TMI Blog2007 (10) TMI 687X X X X Extracts X X X X X X X X Extracts X X X X ..... have to give notice of 6 months to the tenant and will also refund the payment of ₹ 4,75,000/- to the tenant. On the other hand, if the tenant wants to vacate the shop he will have to give prior notice of 6 months to the landlord and the landlord will pay back ₹ 4,75,000/- to the tenant. This document was affixed with a notarial stamp of ₹ 4/-. Under the Indian Stamp Act, 1899 (for short the Act ), agreement of this nature requires affixture of a stamp of Re.1/- under Schedule I, Item 42 of the said Act. 3. On 12.5.2003 a suit for eviction was filed by the respondent-landlord before the Civil Judge, Bhopal under Section 12(1)(f) of the Madhya Pradesh Accommodation Control Act, stating the bonafide need for the use of the accommodation by his elder son. It was the case of the appellant-tenant that the original copy of the agreement which was with him was stolen and thus he was unable to produce the original document dated 28.3.1988, but was in possession of a photostat copy of the agreement and made a prayer for receipt of the photocopy of the agreement as secondary evidence under Section 63 of the Indian Evidence Act, 1872. The trial court allowed the applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in(India) when such instrument was executed or first executed: 35. Instruments not duly stamped inadmissible in evidence, etc. - No instrument chargeable with duty shall be admitted in evidence for any person having by law or consent of parties 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: 6. Section 33 gives power to the authority to check whether the instrument has been duly stamped and in case it is not duly stamped, to take steps to impound the same by proper stamp duty on the said document. This power can be exercised in regard to an `instrument . Section 2(14) of the Act defines `instrument as: Instrument includes every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or record. 7. The instrument as per definition under Section 2(14) has a reference to the original instrument. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndian Evidence Act in Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao and others AIR 1971 SC 1070 and held that :- 13. The first limb of Section 35 clearly shuts out from evidence any instrument chargeable with duty unless it is duly stamped. The second limb of it which relates to acting upon the instrument will obviously shut out any secondary evidence of such instrument, for allowing such evidence to be let in when the original admittedly chargeable with duty was not stamped or insufficiently stamped, would be tantamount to the document being acted upon by the person having by law or authority to receive evidence. Proviso (a) is only applicable when the original instrument is actually before the Court of law and the deficiency in stamp with penalty is paid by the party seeking to rely upon the document. Clearly secondary evidence either by way of oral evidence of the contents of the unstamped document or the copy of it covered by Section 63 of the Indian Evidence Act would not fulfil the requirements of the proviso which enjoins upon the authority to receive nothing in evidence except the instrument itself. Section 35 is not concerned with any copy of an instrument and a par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt was unstamped or not properly stamped and not in regard to a document which was although stamped but was improperly stamped. As per the learned counsel, the case in hand shall be governed by Section 37 of the Act and not by Section 33 read with Section 35 of the Act. The learned counsel further urged that the High Court has committed an error in overlooking Section 48-B inserted by Indian Stamp (Madhya Pradesh Amendment) Act, 1990 (No. 24 of 1990], which received assent of the President and was published in the Madhya Pradesh Gazette (Extraordinary) dated 27.11.1990, applicable in the State of Madhya Pradesh whereby the Collector is authorized even to impound copy of the instrument. 10. Section 33 refers to the power of the authority to impound the instrument not duly stamped, and by virtue of Section 35 any document which is not duly stamped shall not be admitted in evidence. 11. Section 37 of the Act reads as under: 37. Admission of improperly stamped instruments.- The State Government may make rules providing that, where an instrument bears a stamp of sufficient amount but of improper description, it may, on payment of the duty with which the same is chargeable be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used solely on the account of the difficulty or inconvenience of the holder of the instrument to procure the adequate stamp duty required to be paid on the instrument. But the power under Section 37 and Rule 19, even after framing the rules by the State Government, could only be exercised for a document which is an instrument as described under Section 2(14). By various authorities of this Court, an instrument is held to be an original instrument and does not include a copy thereof. Therefore, Section 37 and Rule 19 would not be applicable where a copy of the document is sought to be produced for impounding or for admission as evidence in a case. 14. Section 48-B is a provision applicable in the State of Madhya Pradesh which was inserted by Indian Stamp (M.P. Amendment) Act, 1990 (No. 24 of 1990] in Chapter IV under heading Instrument not duly stamped of the Act. This Section reads as under: 48-B. Original instrument to be produced before the Collector in case of deficiency. Where the deficiency of stamp duty is noticed from a copy of any instrument, the Collector may by order require the production of original instrument from a person in possession or in custody of the orig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ginal instrument on insufficiency of the stamp duty paid being noticed from the copy of the instrument, can only be taken within five years from the date of execution of such instrument. The words the Collector may proceed in the manner provided in this Chapter has reference to Section 48 of the Act. Under this Section, all duties, penalties and other sums required to be paid under Chapter IV, which includes stamp duty, would be recovered by the Collector by distress and sale of the movable property of the person who has been called upon to pay the adequate stamp duty or he can implement the method of recovery of arrears of land revenue for the dues of stamp duty. By virtue of proviso to Section 48-B, the Collector s power to adjudicate upon the adequacy of stamp duty on the original instrument on the basis of copy of the instrument is restricted to the period of five years from the date of execution of the original instrument. This Section only authorizes the Collector to recover the adequate stamp duty which has been avoided at the time of execution of the original instrument. This Section does not authorize the Collector to impound the copy of the instrument. 16. For the reas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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