- (1.) THE petitioner has invoked Art. 227 of the Constitution of India to assail an order of May 4, 2007 passed in Title Suit No. 43 of 2003. By such order, the learned Civil judge (Senior Division), 4th Court at Alipore declined the petitioner's request for not accepting the principal document on which the respondent's suit was based, in evidence, upon putting the respondent on terms.
(2.) THE learned Court below ascertained the stamp duty that was payable on the document and required the respondent to put in five times the value thereof by way of penalty as condition precedent for the document to be received in evidence. The revisional petitioner submits that in view of the provisions of the Stamp Act, 1899, the document could not have been received in evidence upon it being stamped and should have been sent down to the collector for adjudication of stamp duty and penalty. The petitioner assails the adjudication of stamp duty by the learned Court below and the imposition of penalty at five times the amount of stamp duty and urges that Section 35 gives no authority to the Court to assess stamp duty nor does it permit any discretion in the matter of the quantum of penalty. The petitioner urges that in view of Section 36 of the Act, unless the question raised by the petitioner is decided, the petitioner is precluded from questioning the document on the grounds of its admissibility except under Section 61 of the Act. Sections 35 and 36 of the Stamp Act, 1899 provide as follows : "35. 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 duty stamped : provided that (a) any such instrument not being an instrument chargeable with a duty not exceeding ten naye paise only, 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 the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion; (b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him, on payment of a penalty of one rupee by the person tendering it; (c) 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; (d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a criminal Court, other than proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal procedure, 1898 (5 of 1898); (e) 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. 36. Admission of instrument where not to be questioned. Where an instrument has been admitted in evidence, such admission shall not, except as provided in section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not duly stamped. "
(3.) THE petitioner claims that if a document cannot be received in evidence on the ground of it being not stamped or inadequately stamped, there is a complete embargo on such document being used for any purpose, including by a plaintiff against a defendant in a suit of the nature instituted by the respondent in the learned Court below. The petitioner asserts that there is no room for discretion under Section 35, if the power therein can at all be exercised by a court without reference to the Collector.;