This Civil Revision Petition is directed against the order dated 02.09.2008 in a memo filed in O.S.No.345 of 2004 on the file of the learned District Munsif, Madurantakam, whereby and whereunder the documents produced by the revision petitioner were ordered to be send to the District Collector for collection of stamp duty and penalty.
2.The suit in O.S.No.345 of 2004 was preferred by the first respondent against the revision petitioner and the second respondent praying for a judgment and decree of permanent injunction with respect to the suit property. The suit was contested by the revision petitioner by filing written statement.
3.Subsequently the matter was taken up for trial and after conclusion of evidence on the side of plaintiff, the petitioner produced certain documents which are stated to be 4 receipts dated 14.10.1979, 09.11.1979, 14.02.1980 and 13.03.1980. Those documents were receipts evidencing execution of an unregistered mortgage deed by one Ramasamy Iyenger in favour of Ellappa Naicker which was stated to be documents evidencing possession.
4.The learned trial Judge was of the view that the documents were insufficiently stamped and unregistered and for collection of proper stamp duty, the documents should be send to the District Collector. At that point of time, the revision petitioner filed a memo, showing his readiness to pay the required stamp duty as well as penalty. The memo was considered by the learned trial Judge and ultimately the documents were directed to be send to the District Collector for collection of stamp duty and penalty. It is the said order, which is impugned in the Civil Revision Petition.
5.The Indian Stamp Act 1899 (hereinafter referred to as the "Act") is a self contained Code, which deals with payment of stamp duty as well as the methods to be adopted in case proper stamp duty was not paid.
Section 33 of the Act provides that in case the document was produced before any person having by law or authority to receive evidence and it was found that the instrument was not duly stamped, the document has to be impounded .
6.
Section 38 of the Act makes provisions for dealing with such impounded documents. As per the said provision, the documents impounded on account of having paid only lesser stamp duty or failed to pay stamp duty could be used in evidence upon payment of duty and penalty as provided by
section 35 Act. The stamp duty as well as penalty so collected shall be send to the Collector along with an authenticated copy of such instrument together with a certificate in writing stating the amount of duty as well as penalty levied. The amount has also to be send to the Collector.
7.
Section 40 of the Act provides for collection of stamp duty by the Collector and return of the instrument duly stamped to the authority who has forwarded the same to the Collector.
8.In CHILAKURI GANGULAPPA VS. REVENUE DIVISIONAL OFFICER, MADANAPALLE reported in AIR 2001 SC 1321, the Honourable Supreme Court considered
Section 33 of the Act and observed thus:
"12.It is clear from the first sub-section extracted above that the court has a power to admit the document in evidence if the party producing the same would pay the stamp duty together with a penalty amounting to ten times the deficiency of the stamp duty. When the Court chooses to admit the document on compliance of such condition the Court need forward only a copy of the document to the Collector, together with the amount collected from the party for taking adjudicatory steps. But if the party refuses to pay the amount aforesaid the Collector has no other option except to impound the document and forward the same to the Collector. On receipt of the document through either of the said avenues the Collector has to adjudicate on the question of the deficiency of the stamp duty. If the Collector is of the opinion that such instrument 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 a penalty of an amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof".
9.In the subject case, the learned Trial Judge found that the documents produced by the revision petitioner was not properly stamped and it requires payment of stamp duty as well as penalty. The Court, being the authority to receive evidence, was entitled to receive the stamp duty as well as penalty. There was no requirement that the Court should send the documents to the Collector for collection of stamp duty as well as penalty. When the Court was convinced about the actual amount payable by the revision petitioner by way of stamp duty and penalty, the Court should have collected the stamp duty as well as penalty and only the copy of the instrument along with stamp duty and penalty which was required to be send to the Collector. There was nothing provided in the Act which shows that the entire document should be send to the Collector for collection of stamp duty as well as penalty and the document could be marked only after receipt of proceedings from the Collector. The scheme of the Act proceeds as if the Court itself is permitted to collect the stamp duty as well as penalty and only a copy of the instrument has to be send to the Collector for proper stamping.
10.Therefore, I am of the view that the procedure adopted by the learned Trial Judge was not as per the provisions of Stamp Act, and as such the impugned order is liable to be set aside.
11.Accordingly, the order dated 02.09.2008 passed in memo in O.S.No.345 of 2004 by the learned District Munsif, Madurantakam is set aside.
12.The Civil Revision Petition is allowed as indicated above. No costs. Consequently, connected miscellaneous petition is closed.
TK To The District Munsif Madurantakam