B.J. Divan, J.
1. The petitioner in the present Civil Revision Application is the original plaintiff and the respondent is the original defendant. A suit was filed by the plaintiff in 1962 in the City Civil Court at Ahmedabad being Civil Suit No. 867 of 1962 of that Court. At the trial of that suit a document Ex. 4/1 was tendered as an exhibit and the learned Judge trying the suit came to the conclusion that it was insufficiently stamped. He therefore assessed the deficit at Rs. 88-50 and he also assessed the penalty at Rs. 885/-. The total amount according to the learned Judge therefore came to Rs. 973-50 and the learned Judge then passed the following order:
I impound the instrument Ex. 4/1. and direct that plaintiff shall pay an amount of Rs. 973-50 nP. as deficit stamp duty and penalty within two weeks from today.
It is against this order of the learned trial Judge that the plaintiff has filed this Revision Application.
2. The order passed by the learned Judge in the City Civil Court was clearly defective inasmuch as the learned Judge had no jurisdiction to insist that the penalty should be paid or that it should be paid within a particular period. Under Section 34 proviso (a) of the Bombay Stamp Act 1958 (hereinafter referred to as the Act) he had the power to admit a particular document in evidence on payment of the duty together with the penalty payable thereon; but he was also bound under Section 33 of the Act to impound the document and then under Section 37 send to the Collector an authenticated copy of such instrument together with the certificate in writing stating the amount of duty and penalty levied in respect thereof and had to send such amount to the Collector or to such person as the Collector may appoint in this behalf. Instead of adopting the procedure which is clearly referred to in Section 34 proviso (a) and Section 37(1) of the Act the learned Judge has passed the order directing the impounding and the payment of penalty without passing the appropriate order under Section 34 proviso (a). As I have mentioned earlier the only order that the learned Judge could have passed was to admit the document on record subject to the deposit of stamp duty and penalty.
3. It was contended before me on behalf of the petitioner by Mr. Peerzada relying on the decisions in Pearey Lal v. Sukhan Ram : AIR1926All478 ; and Jai Narayan v. Yasin Khan A.I.R. 1955 Hyderabad 17 that under the Act it is only the Collector who has the jurisdiction to assess the correct amount of stamp duty payable in respect of a particular instrument and in view of such assessment to decide the amount of the penalty leviable in respect of the document concerned. In : AIR1926All478 Dalai J. who dealt with the matter was concerned with a point slightly different from the point that I have to deal with. He laid down that were a Judge discovers that an instrument presented to him is insufficiently stamped he is bound to impound it before he admits the instrument in evidence upon payment of a penalty and of deficient duty. The decision then finally rests with the Collector to determine whether the instrument was really insufficiently stamped or not and that duty cannot be discharged by an appellate Court. There is nothing in the Allahabad decision to show that the view that I am taking in the instant case viz. that it is in the first instance for the Court concerned or the authority taking the document in evidence to decide what is the deficit court fee and the penalty leviable in respect of the particular instrument or document and that ultimately it is for the Collector when the authenticated copy is sent to him to decide what is the amount of the correct deficit and the penalty is erroneous. It may be pointed out that under Section 38(1) when the copy of an instrument is sent to the Collector he may if he thinks fit refund any portion of the penalty in excess of Rs. 5/which has been paid in respect of such instrument. Therefore the finality is given to the Collectors decision regarding the deficiency if any in the stamp duty and the penalty leviable thereon but it is in the first instance for the Court concerned or the authority taking the document as a part of evidence before it to decide how much is the deficit of the stamp duty and what penalty shall be levied thereon. It is not correct to say that it is only for the Collector to decide the deficiency in the stamp duty or penalty leviable because of such deficiency. If the contention of Mr. Peerzada is accepted no effect can be given to provisos to Section 34 and the whole scheme of the Act as set out in Section 37(1) and 38 would be rendered nugatory.
4. The decision in Jai Narayans case (supra) is a Full Bench decision and there the Hyderabad High Court held that it was the Collector alone who had the power to assess the penalty though it is true that the Court or any other officer having the authority by law may impound the document but after impounding the same the Court or the officer has to send the original document to the Collector under Section 38 clause (2) and it is only then that the Collector adopts the procedure laid down in Section 40. What happened before the Hyderabad High Court was that a Division Bench of that High Court had impounded an insufficiently stamped document and had assessed the amount of the penalty and sent it to the Collector for realising the amount; and under these circumstances it was held that judgment of the Division Bench relating to the assessment of penalty was not warranted by the provisions of the Stamp Act and did not consistute a bar to hearing the matter by the Full Bench in a reference under Section 55 after the assessment of penalty by the Collector. With respect to the learned Judge of the Hyderabad High Court I am unable to accept the view if that is the view of the Full Bench that the Court cannot in the first instance assess the amount if the deficiency in the stamp duty and the amount of the penalty payable because of such deficiency. The scheme of the Act particularly as laid down in Sections 34(1) and 37(1) of the Bombay Stamp Act would be rendered nugatory if after impounding the document the original has to be sent by the Court impounding it to the Collector. Under the scheme after the document has been impounded the Court concerned has to send an authenticated copy to the Collector so that the Collector may properly assess the deficieny of the stamp duty and the amount of the penalty. Under these circumstances it cannot be said that it is only the Collector who has power to decide as to what is the amount of the deficiency of the stamp duty and the, penalty in respect of such deficiency.
5. As I have pointed out the learned trial Judge in the Court below was in error in passing the order as he did. What he should have done was to admit the document on record subject to payment of penalty and he should also have directed that in the event of non-payment of penalty the document would not be treated as having been taken on record; and an authenticated copy of the document should have been sent to the Collector under the provisions of Section 37(1) of the Act.
I therefore substitute the following order for the order passed by the learned trial Judge:
The document Ex. 4/1 is impounded and this document shall be taken on the record of this case as an exhibit subject to the payment of penalty of Rs. 973-50 np. as deficit stamp duty and penalty. If the amount of Rs. 973-50 np. is not paid within two weeks from today the document to be treated as not exhibited on the record of this case. An authenticated copy of the document to be sent to the Collector under Section 37(1) of the Bombay Stamp Act.
The period of two weeks shall be counted from today and not from the date of the order passed by the learned trial Judge.
In the result this Civil Revision Application is allowed and the order which I have indicated above shall be substituted for the order of the learned trial Judge. The Rule is made absolute. There will be on Order as to costs.