SUIT NO.1089/2009

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Date                      Order with signature of Judge

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1.       For order on commissioner report dated 23.08.2016.

2.       For hearing of CMA No.12336/2016.

 

04.10.2016

 

M/s. Moeen Qamar and Faisal Aziz advocates for plaintiff.

Mr. Mehmood Alam advocate for defendant.

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SALAHUDDIN PANHWAR, J:   Through instant application, defendant seeks return of original power of attorney for compliance with regard to objection of deficiency of stamp duty thereon.

2.                 It appears from the record that during proceeding before Commissioner defendants produced power of attorney but same was objected by learned counsel for plaintiff on the plea that it is not duly stamped as same was executed out of country (Bahrain); according to section 33 of the Stamps Act, it is to be impounded and referred to Collector for penalty and compliance. In support of this contention he has relied upon 1989 MLD 3402 which contains that “Document admitted in evidence by the trial Court without applying its mind, hence it is not open to the appellant to call in question the admission of the document in view of provisions contained in section 35 of the Stamp Act 1899,” as well it was observed that penal sections are there to impose the penalty. I am also of the view that undervalued power of attorney cannot be denied to be produced before the person, competent within meaning of Section 33 of the Act because what is to be seen at later stage is ‘admissibility’ of such document in evidence. Let’s have a direct reference to Section 33 of the Act which is:

33. Examination and impounding of instruments: (1) Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable in his opinion 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 same.”

 

3.                 A bare reading of the Section 33 of the Act, makes it clear that initial responsibility to examine such produced document lies on shoulder of the Court or the person, so authorized to receive evidence but if the Court or such person fails to examine the document and there comes no objection towards admissibility of such document from rival side, as is so evident from Section 36 of the Act.  However, once either on its own the Court or competent person takes notice of deficiency of stamp on such document or the rival points it out, then such Court or person is left with no discretion but to examine the document to determine whether the document is duly stamped or otherwise, as is evident form Section 33(2) of the Act. If the document is found to be not duly stamped then there is no exception but to impound the document. The object of leaving no discretion seems to be that the government must receive due amount on proper stamping on such document , as was applicable when such document was executed or first executed couple with permissible penalty. At this juncture the operative part from judgment, referred supra is made hereunder:-

         “After a document has been impounded, it is the choice of the litigant to tender it in evidence on payment of requisite duty and penalty or to ask the Court to refer the matter to the Collector under subsection (2) of section 38. If the party does not want to produce the document in evidence or otherwise prefers to have the course laid down in section 38(2) adopted by the Court, the latter cannot embank upon determination and realization of the duty and the penalty. It is noteworthy that when a part offers to tender an unstamped or insufficiently stamped document in evidence and the 10 times of the duty, payable on the instrument exceeds Rs.5, the Court must impose a penalty, equal to 10 times of the duty chargeable thereon and in view of the provisions of section 35, is, not left with any choice, to inflict a lesser penalty. However, in this behalf, under section 40 , the Collector appears to be possessed of wider powers.”

 

In the instant matter, it is a matter of record that neither the document has been impounded nor the Court / competent person has imposed penalty as per Section 35(a) so as to declare the document ‘admissible in evidence’ however, the defendants are ready to pay up the insufficiency of stamp for which seeking return of document.

4.                 All these facts prima facie, make it clear that defendants do not deny insufficiency of stamp on the document hence such produced document, having been produced before competent person, cannot be legally returned but has to be impounded even if the defendants do not want the document to be ‘admitted in evidence’ , therefore, same is deemed to have been impounded. It is however, matter of record that the course, provided by Section 33 of the Act is not followed nor is being pressed by defendants then there shall remain available only course provided by Section 38(2) of the Act which reads as:

“(2) In every other case, the person so impounding an instrument shall send it in original to the Collector.’

 

who (Collector) shall follow the procedure provided by section 40 of the Act which lasts on subsection (3) of Section 40 of the Act i.e:

         “(3) When an instrument has been sent to the Collector under Section 38, subsection (2), the Collector shall, when he has dealt with it as provided by this section, return it to the impounding officer.’

 

Accordingly, it is hereby ordered that learned commissioner shall send the document to the Collector  within meaning of Section 38(2) of the Act and the Collector shall deal therewith in accordance with Section 40 and 40A (Sindh Amendment). This exercise be completed preferably within a period of one month. Application is disposed of accordingly.

 

                                                                                         J U D G E

 

Imran/PA