1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.1175 OF 2010 Sangeeta Rajendra Wani Age : 33 years, Occ : Household & Service, R/o N-11, E-11/3, Mayurnagar, HUDCO, New Aurangabad. ..Petitioner V/s 1. Bhaskar Gangadhar Shinde Age : 55 years, Occ : Service, R/o N-9, L-75/1, Shivajinagar, CIDCO, New Aurangabad. 2. The Administrator, City and Industrial Development Corporation Shayona Pulp Conversion Mills Pvt. Ltd., Udyog Bhavan, CIDCO, Jalgaon Road, Aurangabad. ..Respondents ......... Mr.A.P. Bhandari holding for Mr.R.M. Pardeshi, advocate for the petitioner. Mr.V.P. Latange, advocate for respondent no.1. Mr.M.A. Shaikh holding for Mr.A.S. Bajaj, advocate for respondent no.2. ........ (CORAM : V.R.KINGAONKAR,J.) DATE : 30th June, 2010. ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith and by consent of learned counsel for the parties, this matter is heard and disposed of finally at the stage of admission. 2. The petitioner is the original plaintiff. He filed suit for 2 specific performance of agreement of sale dated 14th October, 2007. She entered the witness box during the course of trial and sought reliance on the agreement of sale. The agreement of sale is unregistered document drawn on insufficient stamp. So, the objection was raised by the respondents/defendants regarding admissibility of the document. The learned Civil Judge held that the objection was proper and directed that the document shall be forwarded to the Collector under Section 37 of the Bombay Stamp Act, 1958. The petitioner gave an application to recall the order. The petitioner expressed willingness to pay the necessary penalty and deficit amount of stamp duty as contemplated under Section 34 of the Stamp Act. The said application (Exh-74) is rejected by the learned Civil Judge (S.D.), Aurangabad by the order impugned. 3. Heard learned counsel for the parties. 4. There appears confusion in the mind of the learned Civil Judge (S.D.) as regards the procedure to be followed when the document, which is insufficiently stamped, is produced and is required to be impounded. The Court has authority to impound such document under Section 34 prior to admission of the document in the evidence. The Section 34 reads as follows : 3 Section 34: Instruments not duly stamped inadmissible in evidence, etc. No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer unless such instrument is duly stamped or if the instrument is written on sheet of paper with impressed stamp such stamp paper is purchased in the name of one of the parties to the instrument. Provided that,- (a) any such instrument shall, subject to all just exceptions, be admitted in evidence on payment of- (i) the duty with which the same is chargeable, or in the case of an instrument insufficiently stamped, the amount required to make up such duty and (ii) a penalty at the rate of 2 per cent of the deficient portion of the stamp duty for every month or part thereof, from the date of execution of such instrument: Provided that, in no case, the amount of the penalty shall exceed double the deficient portion of the stamp duty. (b) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the 4 proper stamp; the contract or agreement shall be deemed to be duly stamped; (c) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceedings under Chapter IX or Part D of Chapter X of the Code of Criminal Procedure 1973; (d) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of the Government or where it bears the certificate of the Collector as provided by section 32 or any other provision of this Act; (e) nothing herein contained shall prevent the admission of a copy of any instrument or of an oral admission of the contents of any instrument, if the stamp duty or a deficient portion of the stamp duty and penalty as specified in clause (a) is paid. 5. Perusal of Section 34 would make it amply clear that the deficit amount can be recovered along with penalty at the rate of 2% of the deficient portion of the stamp duty for every month or part thereof, from the date of execution of such instrument. The penalty could be determined. The trial Court should have directed Nazir of the Court for taxing proper amount of deficit stamp and penalty. Instead of following the due procedure, the learned Civil Judge straight way forwarded the documents to the Collector. It is 5 important to notice that bare perusal of Section 37 (1) would make it amply clear that only authenticated copy of such document is required to be forwarded to the Collector. The learned Civil Judge should have recalled the earlier order when Section 34 specifically empowers the Court to impound the document and also thereafter admit the same, if deficit stamp duty is paid along with penalty. A Single Bench of this Court in "M/s Conwood Agencies Pvt. Ltd., V/s Namdeo Pandurang Panchal" {2005(1) All M.R. 335}" has expressed similar view in the matter. The relevant observations in para 7 of the given judgment may be reproduced for ready reference: "7. ...... 7.1. ...... 7.2 Sub-section (1) of section 17 provides that the Court has power to admit the document in evidence if the party producing the same would pay the stamp duty together with a penalty as provided by section 34 or duty as provided by section 36. When the Court chooses to admit the document on compliance with such condition, the Court need forward only a copy of the document to the Collector, together with the amoiunt collected from the party for taking adjudicatory steps. But if the party refuses to pay the amount aforestated, the court has no other option but to impound the document and forward the same to the collector, as provided under sub-section (2) of section 37. On receipt of the document through either of the said avenues the 6 Collector has to adjudicate on the question of deficiency of stamp duty. If the Collector is of the opinion that such document is chargeable with duty and is not duly stamped he shall require the payment of the proper duty or the amount required to make up the same together with the penalty provided by section 34. Unless the aforestated procedure is scrupulously followed by the Court, a document which is not duly stamped is not liable to be looked into for any purpose or received in evidence. The question of inviting the opposite party to cross-examine the witness to prove such document, does not arise. The opposite party cannot be compelled to cross-examine the witness unless the procedure contemplated under sections 33, 34 and in particular 37 of the Act of 1958 is scrupulously complied with." 6. Considering the settled legal position and the procedure, the impugned order is quite unsustainable in the eye of law. Hence, the Petition is allowed. The impugned order is set aside. The learned Civil Judge shall recall the earlier order dated 17.07.2009 passed on Exh.71 and shall direct impounding of the document by the Court and the acceptance of deficit stamp duty along with penalty as may be charged. Rule made absolute accordingly. No Costs. (V.R.KINGAONKAR) JUDGE gas/wp1175.10