S.B. Sinha, J.@mdashLeave granted.
2. Interpretation of Section 36 of the Indian Stamp Act, 1899 (''the Act''), as amended in the State of West Bengal by Indian Stamp (West Bengal
Amendment) Act, 1990 (hereinafter referred to as ''the West Bengal Act''), falls for consideration in this appeal which arises out of a judgment and
order dated 5th May, 2006, whereby and whereunder the Review Application filed by Appellant herein from and order dated 13.4.2005 passed
by the learned 2nd Civil Judge (Senior Division), Barasat was dismissed.
3. The basic fact of the matter is not in dispute. The parties hereto entered into an agreement to develop the suit property. Disputes and differences
having arisen between them in regard to the purported termination of the said agreement by Appellant, a Suit was filed by Respondent herein for
declaration and permanent injunction in the court of the Munsif, 3rd Court, Sealdah on 10.1.1997. An interim order of injunction was passed in the
suit, which although was affirmed by the Appellate Court, but has been set aside by the Revisional Court. Respondent thereafter filed a suit for
specific performance of the contract on 8.1.1999, inter alia, which was marked as Title Suit No. 4 of 1999, praying for the following reliefs:
i) A decree to be passed for specific performance of Contract Agreement dated 16th day of January, 1995 directing thereby the defendant to
perform his part of the contract by way of rendering the exclusive right to the plaintiff to have free access into the suit property for raising rest of the
construction in respect of second and third floors of the suit premises and to execute a registered deed or deeds of conveyance in respect of flats
to be completed in the second floor and third floor of the suit premises in favour of the plaintiff or in favour of his nominees on receipt of balance
consideration thereof and commanding the defendant to extend all sorts of cooperation with the plaintiff as would be required for construction of
the plaintiff''s allocation in respect of second and third floor of the suit premises.
ii) A Decree for Permanent Injunction restraining the defendant and his authorised non and agents from interfering with the act of construction of
the plaintiff in respect of his own allocation relating to second and third floor of the suit premises and/or from parting with the possession of the
super built structures of the second floor and two garages in the ground floor or any part thereof in favour of any third party till final disposal of the
suit.
4. Respondent herein filed the aforementioned Development Agreement dated 16.1.995. The same was exhibited without any objection on the
part of Appellant herein on 17.02.2003. The parties also adduced their respective evidences. 16.2.2005 was the date fixed for argument in the suit
on which date Appellant filed two applications : (1) for recalling the order dated 17.2.2003; and (2) for sending the said documents to the
Collector for impounding thereof in terms of Section 38 of the Indian Stamp Act. By an order dated 13.4.2005, the learned Trial Judge rejected
both the applications. A Revisional Application filed by Appellant before the High Court has been dismissed by reason of the impugned judgment
dated 28.2.2006. A review petition was filed by Appellant was also dismissed by the High Court by an order dated 5.5.2006.
5. Mr. Ranjan Mukherjee, learned Counsel appearing for Appellant, inter alia, submitted that the learned courts below committed a manifest error
in relying on Section 36 of the Indian Stamp Act, which cannot be said to have any application in the instant case, in view of the amendment made
by the State of West Bengal therein, which came into force on 31.1.1994. It was further submitted that in the decision of this Court in Javer Chand
& Ors. vs. Pukhraj Surana [AIR 1961 SC 1655] , whereupon the courts below relied upon, it had no occasion to consider the purport and object
of the State Act, viz, that the statute imposes a duty upon a court to impound a document which was insufficiently stamped so as to sub-serve the
interest of the revenue and, thus, the same could not have been relied upon. As the object and purport of the West Bengal Act was to collect
revenue for the State, it was argued, the learned courts below should have opined that Section 36 of the Indian Stamp Act is not applicable. Our
notice was further drawn to Schedule 1A of the West Bengal Amendment Act in terms whereof stamp duty on instruments have been fixed and
have undergone further amendment by the West Bengal Finance Act, 2006. It was also contended that the High Court also committed a serious
error in not entertaining the review application, although many important questions were raised therein.
Mr. Rana Mukherjee, learned Counsel appearing for Respondent, on the other hand, submitted that the application filed by Respondent herein
was barred under the proviso appended to Sub-Section (5) of Section 33 of the West Bengal Act. It was further urged that Section 36 of the
Indian Stamp Act has rightly been applied as Appellant admitted the document to be taken in evidence without any demur whatsoever.
6. Before embarking upon rival contentions of the parties, we may notice the provisions of the Indian Stamp Act as amended in the State of West
Bengal by the Indian Stamp (West Bengal Amendment) Act, 1990:
Indian Stamp Act was, indisputably, enacted keeping in view the revenue of the State. It defines instrument u/s 2(14) to mean:
2.(14) ""Instrument"" includes every document by which any right or liability is, or purports to be, created, transferred, limited, extended,
extinguished or record;
West Bengal Amendment of the said provision reads as under:
33.1(a) Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an
officer of police, before whom any instrument chargeable, in his opinion, with duty, is produced or comes in the performance in his functions shall,
if it appears to him that such instrument is not duly stamped, impound the same.
(b) Notwithstanding anything contained in Section 31, but without prejudice to the provisions of Clause (a) of this sub-section, the Collector before
whom any instrument is brought u/s 31 for determining the duty with which the instrument is chargeable, shall, if it appears to him that such
instrument is not duly stamped, impound the same:
Provided that nothing contained in this clause shall be deemed to authorize the Collector to impound any instrument which has not been executed
but is brought to him u/s 31 for determining the duty with which the instrument is chargeable or any instrument which he is authorized to endorse u/s
32.
Section 36 and 38 of the Act, which are relevant for the purpose of this case, read as under:
Section 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 been
duly stamped.
Section 38 : Instruments impounded how dealt with
(1) Where the person impounding an instrument u/s 33 has by law or consent of parties authority to receive evidence and admits, such instrument
in evidence upon payment of a penalty as provided by Section 35 or of duty as provided by Section 37, he shall send to the Collector an
authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof, and
shall send such amount to the Collector, or to such person as he may appoint in this behalf.
(2) In every other case, the person so impounding an instrument shall send it in original to the Collector.
Section 61 of the Act, occurring in Chapter VI deals with Reference and Revision.
7. It is not in dispute that Development Agreement dated 16.1.1995 was typed on a non-judicial stamp paper of Rs. 10/-. It was also not
registered. We, however, in this matter are not concerned with the effect of non- registration of the said instrument. There is no doubt or dispute
that in terms of Section 33 of the Indian Stamp Act, as amended by the State of West Bengal, a duty is cast upon the authorities concerned
including the Courts to impound a document where the instrument produced before it is insufficiently stamped. When a deficiency in stamp duty is
brought to the notice of the Collector or it otherwise comes to his notice, he may call for the instrument for the purpose of satisfying himself as to
the adequacy placed thereon and proceed to deal with the instrument in terms of Section 38 thereof. Section 36, however, provides for a ''stand
alone'' clause. It categorically prohibits a court of law from reopening a matter in regard to the sufficiency or otherwise of the stamp duty paid on
an instrument in the event the same has been admitted in evidence. Only one exception has been made in this behalf, viz., the provisions contained
in Section 61 providing for reference and revision. In a case where Section 33 of the Act, as amended by West Bengal Act would be applicable,
the proviso appended to Sub-Section (5) carves out an exception that if no action would be taken after a period of four years from the date of
execution of the instrument.
8. The agreement, as notice hereinbefore, was executed in the year 1995. The applications purported to be u/s 151 of the Code of Civil
Procedure, 1908 were filed by Appellant only on 16.2.2005. The Development Agreement, as notice.d hereinbefore, was admitted in evidence on
17.2.2003. The learned Trial Judge as also the High Court relied upon a decision of this Court in Javer Chand (supra). An attempt to distinguish
the said decision of this Court was made, inter alia, on the premise that therein this Court was concerned with interpretation of the provisions of
Marwar Stamp Act, 1947 in respect of two mudatti hundis, which have been admitted in evidence on payment of duty and penalty, but sought to
be made inadmissible in evidence in terms of the provisions contained in the 1947 Act. This Court opined that once the said document was
admitted in evidence, the new Act i.e. the 1947 Act would be inapplicable, stating:
Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in
the case and has been used by the parties in examination and cross- examination of their witnesses, Section 36 of the Stamp Act comes into
operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the trial court itself or to a court of appeal or
revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same court or a
court of superior jurisdiction.
The said decision, therefore, is an authority for the proposition that Section 36 would operate even if a document has been improperly admitted in
evidence. It is of little or no consequence as to whether a document has been admitted in evidence on determination of a question as regards
admissibility thereof or upon dispensation of formal proof therefore. If a party to the lis intends that an instrument produced by the other party
being insufficiently stamped should not be admitted in evidence, he must raise an objection thereto at the appropriate stage. He may not do so only
at his peril.
9. Objection as regards admissibility of a document, thus, specifically required to be taken that it was not duly stamped. On such objection only the
question is required to be determined judicially. Reliance has been placed on Ram Rattan (Dead) by Legal Representatives vs. Bajrang Lal & Ors.
[AIR 1978 SC 1393] , which in our opinion has no application to the fact of the present case. When there had been no determination as regards
sufficiency of the stamp duty paid on an instrument and in the event the document is taken in evidence with an endorsement, that ""objected,
allowed subject to objection"", this Court in Ram Rattan (supra) held that the objection was not judicially determined and the document was merely
tentatively marked and in such a situation Section 36 would not be attracted. Ram Rattan (supra) also, therefore, is an authority for the proposition
that the party objecting to the admissibility of the document must raise an objection so as to enable the trial judge to determine the issue upon
application of his judicial mind at the appropriate stage. If no objection had been made by Appellant herein in regard to the admissibility of the said
document, he, at a later stage, cannot be permitted to turn round and contend that the said document is inadmissible in evidence.Appellant having
consented to the document being marked as an exhibit has lost his right to reopen the question.
10. What was necessary was that the document should be marked in presence of the parties and they had an opportunity to object to the marking
of the document. The question of judicial determination of the matter would arise provided an objection is taken what document is tendered in
evidence and before it is marked as an exhibit in the case. Before the learned Trial Judge, reliance was placed on a decision of a learned Single
Judge of the Andhra Pradesh High Court in Vemi Reddy Kota Reddy v. Vemi Reddy Prabhakar Reddy (2004) 3 ICC 832. In that case there
was nothing on record to show that the document was marked as an exhibit after an objection has been raised. The said case, therefore, has also
no application to the facts of the present case.It may be true that the object of Indian Stamp Act is to collect revenue and the amendments carried
out by the State of West Bengal provides for more stringent steps in that behalf. It may also be true that by reason of Sub-Section (4) of Section
33 of the West Bengal Act, a duty has been cast upon the court to apply its mind when an instrument having insufficient stamp duty is brought to its
notice, but, only thereby Section 36 of the Indian Stamp Act cannot be made inapplicable. Section 36, as indicated hereinbefore, applies on its
own force. Appellant filed an application u/s 38 of the Indian Stamp Act. The said provisions were clearly not applicable as thereby procedure has
been laid down as to what steps are required to be taken upon impounding a document. It furthermore appears that even the question in regard to
the applicability of Sub-Section (4) of Section 33 of the Act had not been raised.
11. Our attention has also been drawn to a few decisions of the Calcutta High Court, wherewith we may now deal with.
11.1 In Tridip Das Roy v. Chitta Ranjan Jana 1992 (2) CLJ 259 the question which arose for consideration was: ''as to whether an agreement for
sale is an instrument within the meaning of Section 2(14) of the Indian Stamp Act?'' It was held to be so, inter alia, having regard to the explanation
appended to Item No. 5 of Schedule 1A.
There is no quarrel with the aforementioned proposition of law.
11.2 In Biswajit Chakraborty v. Mira Sen Ray 2002 (2) CLJ 449 the Calcutta High Court was dealing with a case where an objection was raised
that the document tendered was insufficiently stamped, holding:
My reading of the provisions of Sections 33, 35, 38, 39, 40 & 61 of the Indian Stamp Act, 1899 is that when a document is tendered in evidence
by a party and an objection is raised by the other side that the document is insufficiently stamped, at that stage, the Court assumes the jurisdiction
to impound the document as it was obligatory to apply the mind of the Court in accordance with the relevant provisions of the said Act. The object
of Section 33 is to protect the revenue and as such the Court or such person, as referred to in the said section, must however, exercise the powers
as envisaged under the said section, if necessary, suo motu, irrespective of the raising of objection by any of the party.
Again, we are not concerned such a question in this appeal.
11.3 In Mujibar Rahman Mondal v. Md. Abdulla Molla & Ors. [2005 (1) CLJ (Cal.) 249] , this Court held:
...The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an `exhibit'' in the
case. Once a document has been marked as an ""exhibit"" in the case and has been used by the parties in examination and cross-examination of their
witnesses, Section 36 comes into operation. Once a document has been admitted in evidence, it is not open either to the trial Court itself or to a
Court of Appeal or revision to go behind that order. In the case on hand, the document in question was marked exhibit with objection which leads
to show that the objection as to admissibility on the ground that the instrument is not duly stamped has not been judicially determined but it was
merely postponed with tentatively marking it as an ""exhibit"". In such circumstance, the said provision of Section 36, in my view is not attracted....
The said decision has also no application in the facts and circumstances of this case.
12. For the reasons aforementioned, we are of the opinion that the High Court committed no error in dismissing the revisional application as also
the review application filed by Appellant herein. The appeal is therefore, dismissed with costs. Counsel''s fee quantified at Rs. 5,000/-.
