TMI Blog1969 (2) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... d the dispute was referred to an umpire who made and published his award on April 19, 1967. The umpire filed the award in the Court of the District Judge, Rajnandgaon in the State of Madhya Pradesh and gave notice of the filing of the award to the parties to the dispute. On July 14, 1967 the appellant filed an application for setting aside the ward under ss. 30 and 33 of the Indian Arbitration Act, 1940. One of the contentions raised by the appellants was that the award was unstamped and on that account invalid and illegal and liable to be set aside . The respondents then applied to the District Court that the award be impounded and validated by levy of stamp duty and penalty. By order dated September 29, 1967, the District Judge directed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility is, or purports to be, created, transferred, limited, extended, extinguished or recorded . An instrument is said to be duly stamped within the meaning of the Stamp Act when the instrument bears an adhesive or impressed stamp of not less than the proper amount and that such stamp has been affixed or used in accordance with the law for the time being in force in India : s. 2 (11). Item 12 of Sch. 2 prescribes the stamp duty payable in respect of an award. Section 33(1) provides, insofar as it is relevant : (1) Every person having by law or consent of whom any instrument, chargeable with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;instrument is chargeable with duty and is not duly stamped, he shall require the payment of proper duty or the amount required to make up the same together with a penalty of five rupees; or, if he thinks fit, an amount not exceeding ten times the 'amount of the proper duty or of the deficient portion thereof. Section 42 provides : (1) When the duty and penalty (if any), leviable in respect of any instrument have been paid under section 35, section 40 or the person admitting such instrument in evidence or the Collector, as the case may be, shall certify by endorsement thereon that the proper duty or, as the case may be, the proper duty and penalty (stating the amount of each) have been levied in respect thereof (2)Every instrument ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the phraseology between ss. 35 and 36 it was urged that an instrument which is not duly stamped may be admitted in evidence on payment of duty and penalty, but it cannot be acted upon because s. 35 operates as a bar to the admission in evidence of the instrument not duly stamped as well as to its being acted upon, and the Legislature has by S. 36 in the conditions set out therein removed the bar only against admission in evidence of the instrument. The argument ignores the true import of S. 36. By that section an instrument once admitted in evidence shall not be called in question at any stage of the same suit or proceeding on the ground that it has not been duly stamped. Section 36 does not prohibit a challenge against an instrument tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : A court is prohibited from admitting an 'instrument in evidence and a Court and a public officer both are prohibited from acting upon it. Thus a Court is prohibited from both admitting it in evidence and acting upon it. It follows that the acting upon is not included in the admission and that a document can be admitted in evidence but not be acted upon. Of course it cannot be acted upon without its being admitted, but it can be admitted and yet be not acted upon. It every document, upon admission, became automatically liable to be acted upon, the provision in S. 35 that an instrument chargeable with duty but not duly stamped, shall not be acted upon by the Court, would be rendered redundant by the provision that it shall not be a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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