M.P. Thakkar, J.
1. Can the Collector require the Court, and whether the Court has any such jurisdiction, to recover deficit stamp and penalty in respect of a document which is not received in evidence at the trial, but which is all the same impounded and sent to the Collector on being merely produced at the trial? That is the interesting question raised in this Revisional Application preferred by the original plaintiff. It is directed against an order passed by Shri C.H. Trivedi, learned Joint Civil Judge, Junior Division, Navsari, ordering the petitioner to pay a sum of Rs. 498-50 as and by way of deficit stamp and the penalty of Rs. 4,985-00.
2. The facts leading to this application require to be stated. In the course of the trial of Regular Civil Suit No. 41 of 1964 the learned Joint Civil Judge, Junior Division, Navsari passed an order impounding a document on the ground that it was insufficiently stamped. It is of importance to realize that the plaintiff did not at any time make any request for receiving the document in evidence on payment of penalty and it has so far not been received in evidence. The learned trial Judge subsequently allowed him to withdraw the suit. The learned Judge, however, forwarded the document to the Collector having impounded the same. The Collector thereupon made a request to the Court to recover the deficit stamp fee and penalty from the plaintiff. Consequently the learned Judge issued a show-cause-notice (after the suit was disposed of) and ultimately by his order dated February 6, 1967 directed the plaintiff to pay the alleged deficit stamp duty of Rs. 498-50 along with a sum of Rs. 4,985/- by way of penalty.
3. Upon the examination of the scheme of the Bombay Stamp Act, (Act No. LX of 1958), it is clear that the learned trial Judge had no such jurisdiction. The question regarding the manner in which instruments not duly stamped are to be dealt with is treated in Chapter IV of the Bombay Stamp Act. Section 34 inter alia provides that no instrument chargeable with duty shall be admitted in evidence unless a penalty equivalent to ten times the amount of the proper duty or deficit thereof (in case ten times such deficit exceeds Rs. 5/-) is paid. The obligation to recover the deficit duty upon payment of penalty is imposed on the Court only in a case where the document is received and admitted in evidence. Where a document is not received in evidence but merely comes up before a Court, as provided under Section 33, the instrument has merely to be impounded. Section 37 prescribes how the impounded document is to be dealt with. It is only when by consent of parties or by an order in that behalf the Court receives the document in evidence upon payment of penalty that it is required to send an authenticated copy of the instrument together with the certificate in writing, stating the amount of the duty and the penalty levied in respect thereof, and such amount shall be sent to the Collector. In all other cases the official impounding the instrument is required to send it in original to the Collector as provided under Sub-section 2 of Section 37. In the present case, it is not in dispute that the document was never received in evidence on payment of penalty. It only remained on the record of the case as a document produced along with list Exh. 3 and it happened to be impounded. Ultimately the plaintiff withdrew the suit. Till the suit was disposed of, the document was not received in evidence and marked as an exhibit. The provision of Section 37(2) would be applicable in a case of this nature and the Court would be required to send the document in original to the Collector. The learned trial Judge followed this procedure and forwarded the document to the Collector. Having done so, the learned Judge had no jurisdiction to take any further action in the matter having regard to the scheme of the Bombay Stamp Act. In case of documents so impounded, the Collector is required to follow the procedure prescribed in Section 39. If he is of the opinion that the document is duly stamped, he is required to certify by endorsement on the document that it is properly stamped. When, however, he is of the opinion that the document is chargeable with duty and is not duly stamped, he is required to invoke Clause (b) of Sub-section 1 of Section 39 and to call upon the party concerned to make payment of the proper duty or the amount required to make up the same, together with the penalty of Rs. 5/-. It is also provided in-Sub-clause (b) of Section 39(1) that in a fit case the Collector may impose a penalty not exceeding ten times the amount of the proper duty or of the deficient portion thereof, whether such amount exceeds or falls short of five rupees. Section 46 provides that any amount of duty or penalty payable under this Chapter may be recovered by the Collector by distress and sale of the moveable property of the person from whom it is due, as an arrear of land revenue. Thus, it is clear that when the Collector acts under' Section 39, the duty adjudged to be payable by him is to be recovered by the Collector himself in exercise of powers under Section 46. In such a case he cannot call upon the Court to recover such amount for him. In fact, no machinery exists for any such recovery through Court and it is not within the jurisdiction of the Court to effect any such recovery under the Bombay Stamp Act. The jurisdiction of the Court arises only provided a party wants the document to be admitted upon payment of the penalty. When the party himself does not want the document to be admitted and when the Court impounds the document, the Court has to forward the document in original to the Collector for taking action under Section 39. It is also of considerable importance to realise that when the Court receives the document in evidence under Section 34, the Court is obliged to charge penalty equivalent to ten times the amount of the proper duty or deficient portion thereof if the deficit exceeds five rupees. When however the document is impounded and comes before the Collector, the penalty payable is only Rs. 5/- under Clause (b) of Sub-section (1) of Section 39 with the rider that in a fit case the Collector can charge penalty equivalent to ten times the amount of the proper duty or the deficit as the case may be. It is, therefore, clear that ordinarily the Collector would impound the document and recover the proper duty or the deficiency as the case may be along with a penalty of Rs. 5/-. He is not obliged to recover penalty equivalent to ten times the amount of the proper duty or the deficit. It is (presumably) in a case which calls for deterrent action that the Collector may if thought fit recover a larger amount than Rs. 5/-not exceeding ten times of the proper duty or the deficit. Be it realized that these proceedings are to be taken by the Collector and the recovery is to be made by the Collector. The Bombay Stamp Act casts an obligation on the Collector and authorizes him to take necessary steps for recovery of the proper duty or the deficit along with the penalty. He has no competence to ask the Court or the Officer who impounds the document to take the steps envisioned by Section 39 of the Bombay Stamp Act. It is obvious that the learned Judge had no jurisdiction under any provision of the Bombay Stamp Act to pass an order of the nature of the impugned order. It is clearly an order lacking in jurisdiction.
4. The order, therefore, must be set aside. Rule made absolute. Under the circumstances, there will be no order regarding costs.