Madhya Pradesh High Court
Smt.Radhabai vs Satyanarayan on 28 November, 2017
M.P.No.307/2017
INDORE
28.11.2017
Shri Ashish Joshi, learned counsel for the petitioner.
None for the respondent.
Heard on the question of admission.
The petitioner has filed the present petition being aggrieved by the order dated 23.08.2017, passed by the Civil Judge, Class-I, Badnawar, District Dhar.
The respondent No.1 filed the suit against the petitioner Nos.1 to 4 and respondent Nos.2 to 4 seeking declaration and permanent injunction in respect of agricultural land having various survey numbers, total area 1.297 hectares. The defendant Nos.1 to 4 filed written statement denying the averments made in the plaint.
The plaintiff filed an application under Section 35 & 40 of the Indian Stamp Act, 1899 on the ground that the agreement dated 19.05.1995 is not properly stamped, therefore, same be referred to the Collector for impounding. The said application was opposed by the present petitioner that under Section 41 of Indian Stamp Act, 1899, the impounding can be done within one year.
The learned Trial Court, vide order dated 23.08.2017 has allowed the application and referred the agreement to sale dated 19.05.1995 to the Collector for stamping, hence, present petition.
Learned counsel for the petitioner submits that under Section 41 of the Indian Stamp Act, 1899, document is liable to be referred within one year and learned Trial Court has wrongly passed the impugned order.
Section 41 of the Indian Stamp Act, 1899 is reproduced below:
"41. Instruments unduly stamped by accident. -- If any instrument chargeable with duty and not duly stamped, not being an instrument chargeable [with a duty not exceeding ten naye paise] only or a bill of exchange or promissory note, is produced by any person of his own motion before the Collector within one year from the date of its execution or first execution, and such person brings to the notice of the Collector the fact that such instrument is not duly stamped and offers to pay to the Collector the amount of the proper duty, or the amount required to make up the same, and the Collector is satisfied that the omission to duly stamp such instrument has been occasioned by accident, mistake or urgent necessity, he may, instead of proceeding under sections 33 and 40, receive such amount and proceed as next herein after prescribed. "
The Section 41 of the Indian Stamp Act, 1899 is applicable where due to mistake the deed could not be properly stamped then it can be produced before the Collector for payment of proper stamp dues. The Provisions of Section 41 are independent provisions subject to the condition mentioned therein. Under Section 35 and 40 of the Indian Stamp Act, 1899, if any document is insufficiently stamped, the proceedings can be initiated for impounding of the document.
It is settled law that if any document is insufficiently stamped and it comes to the knowledge of the Court, then it is the duty of the Court to send it for impounding, therefore, the learned Trial Court has not committed any error while passing the impugned order, hence, petition is misconceived and accordingly dismissed.
(VIVEK RUSIA)
jasleen Judge
Jasleen Singh Saluja
2017.12.05 16:43:13 +05'30'