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18. At the time of deposition of the plaintiff on 07.03.2003, he stated in his examination-in-chief while referring to the agreement to sell dated 29.03.1999, that this was the original agreement to sell executed by defendant no.1 Sashti Charan Banerjee in his favour in respect of the suit property and it had the signature of defendant no.1 on all pages which he had signed in his presence. The agreement to sell was drafted by Prasanta Pal and typed by Neel Kamal Mallick in his presence. He paid Rs.10,000/- (Rupees ten thousand only) to defendant no.1 as per the said agreement and it was marked as Ex.-1 with objection. He further stated that he was ready to deposit the deficient stamp duty as per order of the Collector. The Trial Court marked the document as Ex.-1 with objection which is also reflected in the Exhibit list similarly. Simultaneously, the Trial Court in the order sheet dated 07.03.2003 noted the said document as Ex.-1 with objection and had further issued notice to the Collector to assess the deficient stamp duty and penalty as per the provisions of section 40 of the Stamp Act and to submit the report accordingly. Further, a copy of the order dated 07.03.2003, along with xerox copy of the disputed agreement to sell dated 29.03.1999, was sent to the Collector vide letter no.63 dated 28.03.2003. However, no reply was received from the Collector till the date the judgment was delivered by the Trial Court.

19. The Trial Court thereafter proceeded to consider the statutory provisions of the Stamp Act namely sections 35, 36, 40 and 42. After discussing the same in detail, it proceeded to hold that the document was inadmissible in evidence, as the plaintiff failed to further pursue the proceedings before the Collector resulting into non-determination of the deficiency and the penalty and consequently, the non-deposit of the deficiency and penalty, which could have been determined by the Collector. The High Court, unfortunately, has not considered the statutory provisions and only proceeded to rely upon the statement of the plaintiff that he had accepted to deposit the deficiency in stamp duty and penalty, if any, imposed by the Collector. It would be worthwhile to mention here that even till date, the plaintiff has not made any efforts before the Collector to get the deficiency and penalty determined on the impounded document and to clear the same.

20. The relevant provisions of the Stamp Act, namely, sections 35, 36, 40 and 42 are reproduced hereunder:

“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 duly stamped:

23. Section 40 of the Stamp Act gives power to the Collector to stamp such instruments which have been impounded. The Collector will determine the proper duty payable on such instrument along with penalty as provided in clause (b) of section 41.

24. Section 42 of the Stamp Act provides that when duty and penalty, if any, leviable in respect of any instrument has been paid under sections 35, 40 or 41 upon endorsement by the Collector that such duty has been paid, instrument shall thereupon be admissible in evidence.