KANAI BANERJEE Vs. HASMUKH D PAREKH

JUDGEMENT

(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 :

(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.