W.P. No.12880.10 Writ Petition No. 12880 of 2010 (Trilok Chandra Khurana (Deceased) through L.Rs. Smt. Urmila Khurana and others v. Ramakant Tripathi) 02/11/2011 Shri Amit Garg, learned counsel for the petitioner. Shri Anoop Saxena, learned counsel for the respondent. Heard. This petition under Article 227 of the Constitution of India is directed against order dated 20-08-2010; whereby, Additional District Judge, Nowgaon, District-Chhatarpur, in Civil Suit No.1-B/ 2009 has directed to take in evidence unregistered Promissory Note. The suit at the instance of the petitioner is for recovery of Rs. 98,000/- which as alleged that the respondent defendant despite of execution of promissory note had refused to pay. The claim is based on four promissory notes dated 20-01-2006, 17-02-2006, 05-02-2006 and 03-03-2006 each executed on Rs. 100/- non-judicial stamp paper. On 04-09-2010, respondent-defendant filed an application under section 35 of the Indian Stamp Act alleging that since the Promissory Notes are not duly stamped, they are inadmissible in evidence. Trial Court vide impugned order dated 20-08-2010 allowed the application holding that the instrument W.P. No.12880.10 in question being improperly stamped are inadmissible in evidence. Petitioner challenges the order on the ground that trial Court has erred in allowing the application and directing that the promissory note being insufficiently stamped is not admissible in evidence. It is urged that the trial Court ought to have impounded the instrument if it is of the opinion that it is not properly stamped and should have referred to the Collector Stamp as provided under section 33 and 38 of the Indian Stamp Act, 1899 (hereinafter referred to as the Act of 1899). Reliance is placed on the decision in Peteti Subba Rao v. Anumala S. Narendra : (2002) 10 SCC 427 and the decision by Division Bench of this Court in Umesh Kumar v. Rjaram : ILR (2010) M.P. 1290 (DB) and Man Singh (deceased) through L.Rs. Smt. Sumranbai v. Rameshwar : ILR (2010) M.P. 1077 (DB). The respondent on its turn supports the impugned order. Considered the rival submissions. Section 35 of the Act of 1899 stipulates that no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority of receive evidence or shall be acted upon, registered or authenticated by any such person or by any public officer unless such stamp is duly stamped. Thus, imperative it is W.P. No.12880.10 that, before an instrument is admitted in evidence it must be duly stamped. Proviso (a) to Section 35 (as amended vide Amendment Act 2006) stipulates that “any such instrument shall be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion.” In case an instrument is not duly stamped and yet press in service in a proceeding, procedure to be followed is prescribed under the Act of 1899. Sub-section (1) of Section 33 stipulates that every person having by law or consent of parties authority to receive evidence and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duty, is provided on comes in the performance of his functions shall, if it appears to him that such instrument is not duly stamped, impound the same. Section 38 provides for that : “38. Instruments impounded, how dealt with.- (l) Where the person impounding an instrument under section 33 has by law or consent of parties authority to receive evidence and admits such instrument in evidence upon payment of a penalty as provided by section 35 or of duty as provided by section 37, he shall send to the Collector an authenticated copy of such instrument, together W.P. No.12880.10 with a certificate in writing, stating the amount of duty and penalty levied in respect thereof, and shall send such amount to the Collector, or to such person as he may appoint in this behalf. (2) In every other case, the person so impounding an instrument shall send it in original to the Collector.” In the case at hand, the trial Court since arrived at a conclusion that the document in question is not duly stamped, incumbent it was that the trial Court should have taken recourse to the provisions of section 35 and 38 of the Act of 1899. In Peteti Subba Rao v. Anumala S. Narendra (supra), it is held : “5. Chapter IV of the Indian Stamp Act contains provisions regarding “instruments not duly stamped”. It is Section 35 which falls under the said chapter which empowered the trial court to direct the party (who wants the document to be acted upon) to pay the stamp duty (or the deficient portion) together with a penalty of rupees fifteen, or, when ten times the amount of the proper duty or deficient portion thereof exceeds fifteen rupees, of a sum equal to ten times such duty or portion. This is for the purpose of enabling the document to be admitted in evidence. In such a situation the document would be admitted only on payment of the aforesaid sum. In a case where the party is not willing or he cannot afford to pay the said sum the court has to adopt the procedure envisaged in Section 38 (2) of the Act. That sub-section is with reference to the action which the trial court is, perforce to adopt under section 33 (1) of the Act.” The Division Bench of this Court in Mansingh (deceased) through L.Rs. Smt. Sumranbai and others v. Rameshwar (supra) held that : W.P. No.12880.10 “9. It would be trite to say that if in a document certain recitals are made then the Court would decide the admissibility of the document on the strength of such recitals and not otherwise. In a given case, if there is an absolute unregistered sale deed and he parties say that the same is not required to be registered then we don't think that the Court would be entitled to admit the document because simply the parties say so. The jurisdiction of the Court flows from Sections 33, 35 and 38 of the Indian Stamp Act and the Court has to decide the question of admissibility.” Similarly, in Umesh Kumar v. Rajaram (supra) it is held that : “18. The Court below was also justified in requiring the plaintiff to pay 7½ % duty on the face value of the document and pay ten times penalty in accordance with Sections 33, 35 and 38 of the Indian Stamp Act. The order passed by the Court below is not bad. However, we make it clear that if the plaintiff is not ready and willing to pay the duty and penalty, as proposed by the Court below, then the Court which has impounded the document shall refer the matter to the Collector (Stamps) under Section 38 (2) of he Indian Stamp Act.” In view of above, the petition is disposed of with a direction to the trial Court to take recourse to section 35. In case the petitioner fails to comply with the direction, the trial Court would impound the document and proceed as per section 38 (2) of the Act of 1899 before further proceeding with the evidence. The petition is disposed of finally in above terms. No costs. (SANJAY YADAV) SC JUDGE