*1* sj.73.08.ss.2931.07.944.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.73 OF 2008 IN SUMMARY SUIT NO.2931 OF 2007 Chandru K. Manghnani and another. ..Plaintiffs -versus- Ashish C. Shah. ..Defendant ............ Mr.R.R.Sharma, for the Plaintiffs. Ms.Jerestine Sidhwa a/w Mr.Vinod Solanki, Ms.A.V.Acharya i/by M/s Tijoriwala & Company, for the Defendant. ............ CORAM : S.C.DHARMADHIKARI, J. Date : 07th December, 2011. P.C.: 1 Heard. This suit is filed on the basis of the Bill of Exchange dated 25.09.2003 which is not annexed to the plaint in original. At the hearing of this Summons for Judgment and particularly before the learned Single Judge of this Court on 09.07.2009, upon a perusal of the Bill of Exchange based on which this suit is filed under Order XXXVII of the Code of Civil Procedure, 1908, an objection was raised regarding admissibility of the Bill of Exchange in evidence. The learned counsel appearing for the Plaintiffs sought time to approach the Collector of Stamps for payment of deficit stamp duty and the Summons for Judgment was adjourned. 2 Subsequently, it is stated by producing the original Bill of Exchange that acting in terms of the order passed on 09.07.2009, the Collector adjudicated the deficit stamp duty and the said deficit stamp duty was paid and thereafter, the Collector issued a certificate certifying *2* sj.73.08.ss.2931.07.944.sxw that the stamp duty has been duly paid. Mr.Sharma, learned counsel appearing for the Plaintiffs, would therefore, submit that the requirement stipulated in law has been complied with. Now there is no lacuna or defect and if at all there was one, it stands removed in terms of the amendment to the Indian Stamp Act, 1899 and particularly section 35 thereof. Reliance is placed upon proviso and particularly clause (a) as amended below section 35 in this behalf. 3 A perusal of section 35 of the Indian Stamp Act, 1899 would reveal 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 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. The proviso to section 35 and particularly clause (a) after amendment shows that any instrument shall be admissible in evidence on payment of duty with which it is chargeable or in case of 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. 4 My attention was also invited to section 34 of the Bombay Stamp Act, 1958 and amendment to the proviso thereto, which reads as under:- “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 *3* sj.73.08.ss.2931.07.944.sxw 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 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 proceeding [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 This Summary Suit has been filed on the basis of the Bill of Exchange stated to have been executed on 25.09.2003. The suit is filed in the year 2007 and to be precise on 28.09.2007. Apart from the fact that the Defendant has taken the defence or raised the bar of limitation, additionally in my view, whether, subsequent order made by this Court in *4* sj.73.08.ss.2931.07.944.sxw the year 2009, its compliance by the Plaintiffs allegedly, would permit this Court to admit the Bill of Exchange in evidence, is itself a triable issue. 6 The ambit and scope of the amended provision and particularly whether it would apply to the Instrument and based on which the suit is filed without benefit of the amended provision would give rise to several issues and which cannot be decided only on the basis of the affidavits. Thus, the triable issues arise for consideration and determination of this Court. In such circumstances, the Summons for Judgment is dismissed. There will be unconditional leave to defend. The suit is transferred to the list of commercial causes. Written Statement be filed within eight weeks from today. Discovery and inspection shall also be completed within this period. (S.C. Dharmadhikari, J)