IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTY FOURTH DAY OF MARCH TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.3802 of 2010 BETWEEN Zubeda Begum. ... PETITIONER AND Mohd. Muzahad Ali Taher. ...RESPONDENT Counsel for the Petitioner: MR. V. HARIHARAN Counsel for the Respondent: MR. K. ANANDA RAO The Court made the following: ORDER: This revision, at the instance of the plaintiff in O.S.No.304 of 2005, is directed against the order of the Court below allowing the application of the defendant being I.A.No.40 of 2007 dated 18.06.2010. 2. The aforesaid suit for recovery of money based on a suit document styled as memorandum of understanding dated 27.08.2002, marked as Ex.A3, was filed by the plaintiff. Before numbering of the suit, the registry of the Court below took objection demanding payment of deficit stamp duty on the said suit document on which the petitioner filed objections and a memo dated 05.09.2005, which reads as follows: “The plaintiff has filed a suit relying upon a memorandum of understanding executed on 27.08.2002 by and between the parties which is filed as Document No.1. The said document is an undertaking by the defendant to pay the amounts advanced by the plaintiff to him. The document is not regarding any development agreement or transfer of interest in property. No further stamp duty is attracted to it. The same may be recorded and the suit be numbered and if any stamp duty is required under law, at any future point of time, the plaintiff would meet the contingency without prejudice to her rights.” 3. In view of the said memo the suit was numbered on 14.09.2005 and thereafter, the Court below recorded evidence on both sides and the suit document came to be marked as Ex.A3 on behalf of the plaintiff. At the time of marking of the suit document, neither any objection was raised by the respondent/defendant nor the attention of the Court below was drawn to the petitioner’s memo dated 05.09.2005 and the order of the trial Court dated 14.09.2005. It is in those circumstances, the respondent filed the present application requiring the petitioner/plaintiff to pay the deficit stamp duty and on failure thereafter, de-exhibit Ex.A3. Under the impugned order, the Court below has allowed the said application by accepting the office note classifying the document as filed under Article 6(B) of the Indian Stamp Act and demanded deficit stamp duty and penalty of Rs.9,07,115/-. 4. Heard the learned counsel on either side. 5. It is evident from the extract of the memo filed by the petitioner, as above, that the Registry of the Court below had taken objection for receiving the document along with the suit as according to the Registry, it was deficiently stamped. After the petitioner filed the aforesaid memo, the Court below directed numbering of the suit subject to the undertaking of the petitioner in view of the said memo. It is, therefore, clear that the said document had to be adjudicated by the Court below with reference to its nature and applicability of the appropriate article under the Indian Stamp Act and the stamp duty, which is attracted thereon. On such adjudication, the petitioner has already undertaken to pay the deficit stamp duty, if any, required. 6. Even now the learned counsel for the petitioner accepts the said position but submits that under the impugned order the Court below has gone merely by the note prepared by the Registry of the Court below before numbering of the suit. He submits that the document merely represents a monetary transaction between the petitioner and the respondent showing part payment and the balance payable. He, therefore, contests the office note that the said document cannot be held to be a development agreement and the deficit stamp duty as calculated cannot be levied. 7. Per contra, the learned counsel for the respondent supports the impugned order by submitting that a reading of the document justifies the conclusion that it falls under Article 6(B) of the Indian Stamp Act. 8. The adjudication of the document by the Court, therefore, is essential to ascertain the stamp duty payable since the document is already marked on behalf of the petitioner and respondent has cross-examined all the witnesses on that ground and de-exhibiting the suit document cannot be permitted at this stage. However, if and when the Court comes to the conclusion that, on adjudication, the stamp duty is payable by the petitioner, the same can always be recovered as arrears of land revenue. The liability of the petitioner to pay the stamp duty, in the circumstances, can, therefore, be put on par with recovery of deficit Court fees and there would be no impediment for recovery of the amount. In that view of the matter, demarking or de-exhibiting Ex.A3 would not be permissible on the facts and circumstances of the case. 9. However, it is clear from para 5 of the impugned order that when the said document was marked as Ex.A3, the Court below as well as the respondent inadvertently missed collecting the stamp duty and had this been noticed at that time, both parties could have addressed the Court and the Court would have adjudicated upon the nature of the document and the duty payable. Since the said inadvertent mistake is now noticed, the Court below is justified in ensuring that the petitioner complies with his memo dated 05.09.2005 as well as the earlier order of the Court below dated 14.09.005, as a mistake committed by the Court cannot be said to prejudice any of the parties. 10. While so, as mentioned above, the demand for payment from the petitioner must precede an appropriate adjudication with respect to the nature of the document and the stamp duty payable. Since the Court below has merely gone by the office note without independently adjudicating upon the said issue, I deem it appropriate to set aside the impugned order and remit I.A.No.460 of 2007 to the Court below with a direction to adjudicate upon the document Ex.A3, after hearing both sides, and determine the stamp duty payable. The Court below shall be at liberty to give appropriate directions for recovery of the said determined amount from the petitioner, if it comes to the conclusion that the petitioner is liable to pay the stamp duty and/or penalty. The civil revision petition is accordingly disposed of. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J March 24, 2011 DSK