Anim adverting upon the order dated 11.3.2008 passed in I.A.No.216 of 2007 in O.S.No.351 of 2004 by the Second Additional Subordinate Judge, Erode, this civil revision petition is filed.
2. A 'resume' of facts which are absolutely necessary and germane for the disposal of this revision petition would run thus:
The respondent/plaintiff filed the suit O.S.No.351 of 2004 for partition. During trial a document was sought to be marked on the petitioner/defendant's side. At that time, there was objection and consequently, the said document was prevented from being marked. Whereupon C.R.P.No.1526 of 2006 was filed and it was allowed with certain directions. Whereupon the trial Court sent the impugned document to the Collector for assessing the Stamp duty and penalty under
Section 35 of the Indian Stamp Act (herein after referred to as the 'Act' in short). The Collector simply assessed the value of the stamp duty payable and sent back the document to the Court. Whereupon the Court directed the party concerned to pay the stamp duty.
3. According to the petitioners/defendants, as on the date of pronouncing the order, the lower Court simply directed the party to pay a sum of Rs.2720/- as assessed by the Collector and not any penalty. However, on the next day, without informing the party concerned, the lower Court simply suo motu corrected the order as though the party was expected to pay 10 times the penalty also. Being aggrieved by and dissatisfied with the said order, the present revision petition is filed.
4. The learned counsel for the petitioners/defendants has submitted that as per
Section 35 of the Stamp Act, the Collector has got the discretion to collect stamp duty alone without penalty and in such a case it was not open for the Court to sit in judgement over the assessment made by the Collector.
5. Whereas the learned counsel for the respondent/plaintiff would refute the contentions as put forth on the side of the petitioners/defendants.
6. The point for consideration is as to whether the Collector is having power to exonerate totally a party from paying penalty?
7. Proviso (a) as amended by the Tamil Nadu Act 14 of 1958 reads as under:
"Sec.35(a)- any such instrument not being an instrument chargeable with a duty not exceeding twenty paise only or a mortgage of crop (
Article 41(a) of Schedule (1) chargeable under
Section 3 with a duty of fifty paise or a bill of exchange or promissory note, shall, subject to all just exceptions, 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 proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion; (emphasis supplied)
8. The words under lined supra are reiterated hereunder "to make up such duty, together with a penalty of five rupees, or, when ten times the amount of proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion"
9. It is therefore crystal clear that the Collector has not been given carte blanche to totally exonerate a defaulting party from paying penalty altogether. However, it is quite obvious that in all cases ten times penalty need not be collected and it is the discretion of the Collector to collect any amount he might deem fit and proper as penalty.
10. But, in this case, the Collector had simply assessed the stamp duty alone and exonerated the party concerned from paying penalty altogether. There is one other flaw which this Court has noticed in the procedure adopted by the trial Court as well as the Collector. The Collector, on receipt of the document should have, by himself, assessed the stamp duty as well as penalty and collected the same and only after collecting such stamp duty and penalty, he should have sent back the document to the Court concerned. Of course, it is obvious that the Court is empowered to assess the stamp duty and penalty by itself, without sending the document to the Collector. But, in this case in view, the lower Court had chosen to send the document itself to the Collector. Whereupon strictly in accordance with the provisions of the Indian Stamp Act, the Collector should have assessed the stamp duty and also the penalty at his discretion and collected the same and only thereafter, he should have sent back the document to the Court. Hence, in these circumstances, the civil revision petition is ordered by setting aside the order dated 11.3.2008 passed in I.A.No.216 of 2007 with the following directions.
The trial Court shall send the document to the Collector; whereupon the Collector, in addition to having assessed the stamp duty already, shall also asses the penalty, which might be any amount not ten times the penalty and accordingly after collecting the stamp duty and penalty, he is expected to send back the document to the Court; whereupon the Court shall proceed with the matter in accordance with law. I also make it clear that if for any reason the party fails to pay the stamp duty and penalty and commits default, the lower Court is at liberty to proceed with the case without the said document, in accordance with law.
No costs. Consequently, connected miscellaneous petition is closed.