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16. A perusal of the said provision shows that when a document is produced (or comes in the performance of his functions) before a person who is authorised to receive evidence and a person who is in charge of a public office (except a police officer) before whom any instrument chargeable with duty is produced or comes in the performance of his functions, it is the duty of such person before whom the said instrument is produced to impound the document if it is not duly stamped. The use of the word shall in Section 33(1) shows that there is no discretion in the authority mentioned in Section 33(1) to impound a document or not to do so. In our opinion, the word shall in Section 33(1) does not mean may but means shall. In other words, it is mandatory to impound a document produced before him or which comes before him in the performance of his functions. Hence the view taken by the High Court that the document can be returned if the party does not want to get it stamped is not correct. (underlining mine) In view of the aforesaid judgment in P.Laxmi Devi's case, there is no discretion in the authority as mentioned under Section 33(1) to impound the document or not to do so, such authority shall do so and is bound to do so.

Undoubtedly, if a person having by law authority to receive evidence and the civil court is one such person before whom any instrument chargeable with duty is produced and it is found that such instrument is not duly stamped, the same has to be impounded. The duty and penalty has to be recovered according to law. Section 35, however, prohibits its admission in evidence till such duty and penalty is paid. The plaintiff has neither OMP 78/2003 Page 5 paid the duty nor penalty till today. Therefore, stricto sensu the instrument is not admissible in evidence. Mr Desai, however, wanted us to refer the instrument to the authority competent to adjudicate the requisite stamp duty payable on the instrument and then recover the duty and penalty which the party who tendered the instrument in evidence is in any event bound to pay and, therefore, on this account it was said that the document should not be excluded from evidence. The duty and the penalty has to be paid when the document is tendered in evidence and an objection is raised. The difficulty in this case arises from the fact that the learned trial Judge declined to decide the objection on merits and then sought refuge under Section 36. The plaintiff was, therefore, unable to pay the deficit duty and penalty which when paid subject to all just exceptions, the document has to be admitted in evidence. In this background while holding that the document Ext. I would be inadmissible in evidence as it is not duly stamped, we would not decline to take it into consideration because the trial court is bound to impound the document and deal with it according to law. (underlining added)

(i) Whether a Court cannot exercise power of impounding an unstamped or an insufficiently stamped document, although, it is so empowered under Section 33 of the Stamp Act, 1899 and also as so held by the Supreme Court in the judgments of Government of A.P.Vs P. Laxmi Devi, (2008) 4SCC 720 and Ram Rattan Vs Bajrang Lal, (1978) 3SCC 236 because such power can only be exercised at the stage of enforcing of the Award under Section 36 of the Arbitration &Conciliation Act, 1996?

(ii) Whether the decision in M.Anasuya Devi and Anr. Vs. M.Manik Reddy and others, (2003) 8 SCC 565 takes away the power of the court to impound insufficient or unstamped documents under Section 33 of the Stamp Act if the court seeks to suo moto exercise the power, and which is, in fact, a duty of the Court as per Section 33 of the Stamp Act and the aforesaid judgments in the cases of Govt. of A.P. Vs. P.Laxmi Devi and Ram Rattan Vs. Bajrang Lal (supra) ?