ASN 1 Appeal-809.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL LODGING NO.809 OF 2010 IN SUMMONS FOR JUDGEMENT NO.330 OF 2008 IN SUMMARY SUIT NO.599 OF 2008 Vodafone Essar Limited. ..Appellant. Vs. Ms. Sandhay Shetty. ..Respondent. Mr. Virag Tulzapurkar, Sr. Advocate with Mr. Punit Anand for the Appellant. Mr. Ashwin Shete with Mr. Utkarsh Muzumdar for the Respondent. CORAM : MOHIT S. SHAH, C.J. & S. J. VAZIFDAR, J. MONDAY, JANUARY 17, 2011. PC : Appeal is admitted. 2 With the consent of the learned counsel for the parties, appeal is heard finally. 3 This appeal is directed against the order 4th October, 2010 by which the learned Trial Judge adjourned the hearing of Summons for Judgment to 24th January, 2011 on the ground that the application form signed by the respondent is a written agreement which was not duly stamped under the Bombay Stamp Act. The Trial Court therefore, directed for impounding the said application form, for handing over the same to the Prothonotary and Sr. Master of this Court for getting the ASN 2 Appeal-809.sxw endorsement to that effect and for forwarding the same to the appropriate authorities under the Bombay Stamps Act, so that the appellant-plaintiff will be able to pay the stamp duty as well as penalty in accordance with the rules and on payment of the stamp duty as well as penalty, the document can be used in Court. 4 The learned counsel for the appellant-plaintiff submits that the application form itself does not create a liability which should require any stamp duty to be paid on the document. It is submitted that the learned Trial Judge has not yet heard the parties on the question whether the document is chargeable to stamp duty and if at all, it is chargeable to stamp duty, as to who is liable to pay the stamp duty. It is contended that the document does not fall under any Article of the Schedule to the Stamp Act and if at all, it falls within Article-13 relating to “bond” or any other agreement, it would be liable to be paid by the defendant-respondent who signed the application form to pay the stamp duty thereon. 5 On the other hand the learned counsel for the respondent- defendant has opposed the application and supported the impugned order passed by the learned Trial Judge. He admitted however that the point was not raised. Now alternatively, it is contended that if at all the document is chargeable to stamp duty, liability is that of the plaintiff -appellant and not of the respondent defendant. 6 Having heard the learned counsel for the parties, without expressing any opinion on the merits of the controversy as to whether the ASN 3 Appeal-809.sxw document in question is chargeable to stamp duty under the Bombay Stamps Act and as to who is liable for such stamp duty, we dispose of this appeal by setting aside the impugned order. The learned Single Judge shall also decide the question whether the document is chargeable to stamp duty at the hearing of the Summons for Judgment and after hearing the learned counsel for the parties as well as after hearing the learned counsel for the State Government. Even if the document is held to be chargeable for stamp duty, the learned Single Judge is directed to decide who is liable to pay the stamp duty. 7 It is clarified that any party aggrieved by order of the learned Trial Judge will be at liberty to challenge said order in accordance with law. 8 The directions given to the Prothonotary & Sr. Master of this Court are set aside and the Prothonotary and Sr. Master shall recall the said document from the concerned authority and place the same on the record of the proceeding. CHIEF JUSTICE S.J. VAZIFDAR, J.