Holding

Once a document is admitted as evidence without objection, Section 36 of the Indian Stamp Act bars any later challenge to its stamp duty, and the West Bengal amendment does not affect this rule.

Summary

Shymal Kumar Roy and Sushil Kumar Agarwal entered into a development agreement in 1995. The agreement was exhibited as evidence in a suit for specific performance on 17‑02‑2003 without any objection. Two years later, Roy sought to have the document impounded under Section 38 of the Indian Stamp Act, claiming it was insufficiently stamped (it was on a Rs 10 non‑judicial stamp paper). Both the trial court and the Calcutta High Court dismissed the application, relying on Section 36 of the Indian Stamp Act. On appeal, Roy contended that the West Bengal amendment to the Act rendered Section 36 inapplicable. The Supreme Court held that Section 36 is a standalone provision that bars any reopening of the stamp‑duty issue once a document has been admitted as evidence without objection, and that the West Bengal amendment does not override it. Consequently, the appeal was dismissed with costs.

Issues considered

The applicability of Section 36 of the Indian Stamp Act, 1899 to a document that has been admitted as evidence, notwithstanding the West Bengal amendment.
Whether a party who consented to a document being marked as an exhibit can later invoke Section 38 to have the same document impounded for insufficient stamp duty.
Whether the provisions of Section 33(4) and (5) of the Indian Stamp (West Bengal Amendment) Act, 1990 override Section 36.

Legislation cited

Code of Civil Procedure, 1908s. 151
Indian Stamp Act, 1899s. 33, s. 35, s. 36, s. 37, s. 38, s. 61

Subjects

Indian Stamp ActSection 36admissibility of evidencestamp dutyimpounding documentWest Bengal amendmentcivil procedurespecific performancedevelopment agreement

Judgment

;., )--'

SHYAMAL KUMAR ROY A
v.
SUSHIL KUMAR AGARWAL

OCTOBER 31, 2006

[S.B. SINHA AND DALVEER BHANDARI, JJ.] B

~
Stamp Act, 1899:
.. Sections 36 and 38-Document admitted in evidence-Objection raised
later regarding its admissibility-Permissibility of-Held: Not permissible- c
Party having consented to the document being marked as exhibit loses his
right to reopen the question-West Bengal Amendment Act does not contain
any contrary law-lncfian Stamp (West Bengal Amendment) Act, 1990-
Section 33(4) and (5)-Evidence Act, 1882.

Parties entered into an agreement for development of suit property.
D
Dispute arose between them. Respondent filed suit for declaration and
permanent injunction. Trial Couii passed interim order of injunction. High
Court in revision set aside the order of injunction. Respondent thereafter filed
suit for specific performance. During the hearing, respondent filed
Development Agreement. The same was exhibited without any objection on E
the part of appellant. Two years later, the appellant filed an application for
sending the said Agreement to the Collector for impounding in terms of
Section 38 of the Indian Stamp Act, 1899. Trial Court dismissed the
application, which was upheld by High Court.

In appeal to this Court, appellant contended that the Courts below had F
committed a manifest error in relying on Section 36 of the Indian Stamp Act,
which cannot be said to have any application in the instant case, in view of the
amendment made by the State of West Bengal therein, which came into force

'-• on 31.1.1994.

Dismissing the appeal, the Court G

HELD: 1.1. There is no doubt that in terms of Section 33 of the Indian
Stamp Act, 1899, as amended by the State of West Bengal, a duty is cast upon
the authorities concerned including the Courts to impound a document where
47 H

~
t
48 SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R.

A the instrument produced before it is insufficiently stamped. When a deficiency
in stamp duty is brought to the notice of the Collector or it otherwise comes
to his notice, he may call for the instrument for the purpose of satisfying
himself as to the adequacy placed thereon and proceed to deal with the
instrument in terms of Section 38 thereof. 153-B)

B 1.2. Section 36, however, provides for a 'stand alone' clause. It
categorically prohibits a court of law from reopening a matter in regard to
the sufficiency or otherwise of the stamp duty paid on an instrument in the
event the same has been admitted in evidence. (53-C]

Javer Chand & Ors. v. Pukhraj Surana, AIR (1961) SC 1655, referred
C to.

2. It is of-little or no consequence as to whether a document has been
admitted in evidence on determination of a question as regards admissibility
thereof or upon dispensation of formal proof therefor. If a party to the lis
D mtends that an instrument produced by the other party being insufficiently
stamped should not be admitted in evidence, he must raise an objection thereto
a~ the appropriate stage. He may not do so only at his peril. Objection as
regards admissibility of a document, thus, specifically required to be taken
that it was not duly stamped. On such objection only the question is required
to be determined jl!.dicially. If no objection had been made by Appellant herein
E in regard to the admissibility of the said document, he, at a later stage, cannot
be permitted to turn round and contend that the said document is inadmissible
in evidence. Appellant having consented to the document being marked as an
exhibit has lost his right to reopen the question. 154-B-D, G, HJ

Ram Rattan (Dead) by Legal Representatives v. Bajrang Lal & Ors.,
F AIR (1978) SC 1393 and Vemi Reday Kota Reddy v. Vemi Reddy Prabhakar
Reddy, [2004J 3 ICC 832, held inapplicable.

3. The object of Indian Stamp Act is to collect revenue and the
amendments carried out by the State of West Bengal provides for more
G stringent steps in that behalf. By reason of Sub-Section (4) of Section 33 of
the West Ber.gal Act, a duty has been cast upon the court to apply its mind
when an instrument having insufficient stamp duty is brought to its notice,
but, only thereby Section 3.6 of the Indian Stamp Act cannot be made
inapplicable. Section 36, applies on its own force. Appellant filed an application
under Sect;on 38 of the Indian Stamp Act. The said provisions were clearly
H not applicable as thereby procedure has been laid down as to what steps are
SHY AMAL KUMAR ROY v. SUSHIL KUMAR AGARWAL [S.B. SINHA, J.] 49

required to be taken upon impounding a document. It furthermore appears A
that even the question in regard to the applicability of Sub-Section (4) of
Section 33 of the Act had not been raised. (55-C-E)

... Biswajit Chakraborty v. Mira Sen Ray (2002) 2 CLJ 449; Mujibar
Rahman Monda/ v. Md Abdulla Molla & Ors., (2005) 1 CLJ (Cal.) 249, held
inapplicable. B

Tridip Das Roy v. Chitta Ranjan Jana (1992) 2 CLJ 259, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4609 of2006.

From the Judgment and Final Order dated 28.2.2006 and 5.5.2006 of the C
High Court of Calcutta in C.O. No. 1456/2005 and R.V.W. No. 1130/2006
respectively.

Ranjan Mukherjee for the Appellant.

Rana Mukherjee, Siddarth Gautam and Goodwill lndeevar for the D
Respondent.

The Judgment of the Court was delivered by
,,.,.
S.B. SINHA, J. Leave granted.
E
Interpretation of Section 36 of the Indian Stamp Act, 1899 ('the Act'),
as amended in the State of West Bengal by Indian Stamp (West Bengal
Amendment) Act, 1990 (hereinafter referred to as 'the West Bengal Act'), falls
for consideration in this appeal which arises out of a judgment and order
dated 5th May, 2006, whereby and whereunder the Review Application filed
by Appellant herein from and order dated 13.4.2005 passed by the learned 2nd F
Civil Judge (Senior Division), Barasat was dismissed.

The bask fact of the matter is not in dispute. The parties hereto entered
..... into an agreement to develop the suit property. Disputes and differences
having arisen between them in regard to the purported tern1 ination of the said. G
agreement by Appellant, a Suit was filed by Respondent herein for declaration
and permanent injunction in the court of the Munsif, 3rd Court, Sealdah on
IO. l.1997. An interim order 0finjunction was passed in the suit, which although
was affirmed by the Appellate Court, but has been set aside by the Revisional
Court. Respondent thereafter filed a suit for specific performance of the
contract on 8.1.1999, inter alia, which was marked as Title Suit No.4 of 1999, H
50 SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R.

A praying for the following reliefs :
"(i) A decree to be passed for specific performance of Contract

B
Agreement dated 16th day of January, 1995 directing thereby the
defendant to perform his part of the contract by way of rendering
the exclusive right to the plaintiff to have free access into the suit
property for raising rest of the construction in respect of second ·
and third floors of the suit premises and to execute a registered
-
deed or deeds of conveyance in respect of flats to be completed
in the second floor and third floor of the suit premises in favour
of the plaintiff or in favour of his nominees on receipt of balance
consideration thereof and commanding the defendant to extend
c all sorts of cooperation with the plaintiff as would be required for
construction of the plaintiffs allocation in respect of second and
third floor of the suit premises.

(ii) A Decree for Permanent Injunction restraining the defendant and
his authorised non and agents from interfering with the act of
D construction of the plaintiff in respect of his own allocation
relating to second and third floor of the suit premises and/or from
parting with the possession of the super built structures of the
secon.d floor and two garages in the ground floor or any part
thereof in favour of any third party till final disposal of the suit."
E Respondent herein filed the aforementioned Development Agreement
dated 16. l.I 995. The same was exhibiteJ without any objection on the part
of Appellant herein on 17.02.2003. The parties also adduced their respective
evidences. 16.2.2005 was the date fixed for argument in the suit on which date
Appellant filed two application~ : (I) for recalling the order dated 17.2.2003;
F and (2) for sending the said documents to the Collector for impounding
thereof in terms of Section 38 of the Indian Stamp Act.

By an order date:d 13.4.2005, the learned Trial Judge rejected both the
applications. A Revisional Application filed by Appellant before the High
Court has been dismissed by reason of the impugned judgment dated 28.2.2006. 4Y

G A review petition was filed by Appellant was also dismissed by the High
Court by an order dated 5.5.2006.

Mr. Ranjan Mukherjee, learned counsel appearing for Appellant, inter
alia, submitted that the learned courts below committed a manifest error in
H relying on Section 36 of the Indian Stamp Act, which cannot be said to have
/.>-"" SHY AMAL KUMAR ROY v. SUSHIL KUMAR AGARWAL [S.B. SINHA, J.] 51

· any application in the instant case, in view of the amendment made by the A
State of West Bengal therein, which came into force on 3 l. l .1994. It was

.. further submitted that in the decision of this Court in Javer Chand & Ors.
v. Pukhraj Surana AIR (1961) SC 1655), whereupon the courts below relied
upon, it had no occasion to consider the purport and object of the State Act,
viz, that the statute imposes a duty upon a court to impound a document
which was insufficiently stamped so as to sub-serve the interest of the
B
revenue and, thus, the same could not have been relied upon.
"'.~
As the object and purp~rt of the West Bengal Act was to collect

• revenue for the State, it was argued, the learned courts below should have
opined that Section 36 of the Indian Stamp Act is not applicable. Our notice
was further drawn to Schedule IA of the West Bengal Amendment Act in
c
terms whereof stamp duty on instruments have been fixed and have undergone
further amendment by the West Bengal Finance Act, 2006. It was also
contended that the High Court also committed a serious error in not
entertaining the review application, although many important questions were
raised therein. D
Mr. Rana Mukherjee, learned counsel appearing for Respondent, on the
other hand, submitted that the application filed by Respondent her,ein was
barred under the proviso appended to Sub-Section (5) of Section 33 of the
West Bengal Act. It was further urged that Section 36 of the Indian Stamp
Act has rightly been applied as Appellant admitted the document to be taken E
in evidence without any demur whatsoever.

Before embarking upon rival contentions of the parties, we may notice
the provisions of the Indian Stamp Act as amended in the State of West
Bengal by the Indian Stamp (West Bengal Amendment) Act, 1990 :
F
Indian Stamp Act was, indisputably, enacted keeping in view the revenue
of the State. It defines instrument under Section 2(14) to mean :

~ ... "2.( 14) "Instrument" includes every document by which any right or
liability is, or purports to be, created, transferred, limited, extended,
extinguished or record;"
G

West Bengal Amendment of the said provision reads as under :

"33. l(a) Every person having by law or consent of parties authority
to receive evidence, and every person in charge of a public office,
H

< ,
52 SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R.

A except an officer of police, before whom any instrument chargeable,
in his opinion, with duty, is produced or comes in the performance in
his functions shall, if it appears to him that such instrument is not
duly stamped, impound the same.

(b) Notwithstanding anything contained in Sec. 31, but without
B prejudice to the provisions of clause (a) of this sub-section, the
Collector before whom any instrument is brought under Section 31 for
dete1mining the duty with which the instrument is chargeable, shall,
if it appears to him that such instrument is not duly stamped, impound
the same :

c Provided that nothing contained in this clause shall be deemed to
authorize the Collector to impound any instrument which has not been
executed but is brought to him under Sec.31 for determining the duty
with which the instrument is chargeable or any instrument which he
is authorized to endorse under Section 32".

D Sections 36 and 38 of the Act, which are relevant for the purpose of this
case, read as under :

"Section 36 : Admission of instrument where not to be questioned
-Where an instrument has been admitted in evidence, such admission
shall not, except as provided in Sec. 61, be called in question at any
E stage of the same suit or proceeding on the ground that the instrument
has not been duly stamped.

Section 38: Instruments impounded how dealt with-{1) Where the
person impounding an instrument under Section 33 has by law or
consent of parties authority to receive evidence and admits, such
F instrument in evidence upon payment of a penalty as provided by
Section 35 or of duty as provided by Section 37, he shall send to the
Collector an authenticated copy of such instrument, together with a
certificate in writing, stating the amount of duty and penalty levied in
respect thereof, and shall send such amount to the Collector, or to
G such person as he may appoint in this behalf.

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

Section 61 of the Act, occurring in Chapter VI deals with Reference and
H Revision.

)

'
/_) ....... SHY AMAL KUMAR ROY v. SUSHIL KUMAR AGARWAL [S.B. SINHA, J.] 53

It is not in dispute that Development Agreement dated 16. 1.1995 was A
typed on a non-judicial stamp paper of Rs. I 0/-. It was also not registered. We,
however, in this matter are not concerned with the effect of non-registration
of the said instrument. There is no doubt or dispute that in tenns of Section
33 of the Indian Stamp Act, as amended by the State of West Bengal, a duty
is cast upon the authorities concerned including the Courts to impound a
document where the instrument produced before it is insufficiently stamped. B
When a deficiency in stamp duty is brought to the notice of the Collector or
~ it otherwise comes to his notice, he may call for the instrument for the

- purpose of satisfying himself as to the adequacy placed thereon and proceed
to deal with the instrument in tenns of Section 38 thereof.

Section 36, however, provides for a 'stand alone' clause. It categorically
c
prohibits a court of law from reopening a matter in regard to the sufficiency
or otherwise of the stamp duty paid on an instrument in the event the same
has been admitted in evidence. Only one exception has been made in this
behalf, viz., the provisions contained in Section 61 providing for reference and
revision. In a case where Section 33 of the Act, as amended by West Bengal D
Act would be applicable, the proviso appended to sub-section (5) carves out
an exception that if no action would be taken after a period of four years from
the date of execution of the instrument.
~
The agreement, as notice hereinbefore, was executed in the year 1995.
The applications purported to be under Section 15 l of the Code of Civil E
Procedure, 1908 were filed by Appellant only on 16.2.2005. The Development
Agreement, as noticed hereinbefore, was admitted in evidence on 17.2.2003.
The learned Trial Judge as also the High Court relied upon a decision of this
Court in Javer Chand (supra). An attempt to distinguish the said decision of
this Court was made, inter alia, on the premise that therein this Court was F
concerned with interpretation of the ~rovisions of Marwar Stamp Act, 1947
in respect of two mudatti hundis, which have been admitted in evidence on
payment of duty and penalty, but sought to be made inadmissible in evidence
;,. in terms of the provisions contained in the 194 7 Act. This Court opined that
once the said document was admitted in evidence, the new Act i.e. the \947
Act would be inapplicable, stating : G

"Once a document has been marked as an exhibit in the case and

• the trial has proceeded all along on the footing that the document was
an exhibit in the case and has been used by the parties in examination
and cross-examination of their witnesses, Section 36 of the Stamp Act
H

~//
54 SUPREME COURT REPORTS (2006] SUPP. 8 S.C.R.

A comes into operation. Once a document has been admitted in evidence,
as aforesaid, it is not open either to the trial court itself or to a court

.B
of appeal or revision to go behind that order. Such an order is not one
of those judicial orders which are liable to be reviewed or revised by
the same court or a court of superior jurisdiction."

The said decision, therefore, is an authority for the proposition that
-
Section 36 would operate even if a document has been improperly admitted
in evidence. It is of little or no consequence as to whether a document has
been admitted in evidence on determination of a question as regards
admissibility thereof or upon dispensation of formal proof therefor. If a party
C to the /is intends that an instrument produced by the other party being
insufficiently stamped should not be admitted in evidence, he must raise an
objection thereto at the appropriate stage. He may not do so only at his peril.

Objection as regards admissibility of a document, thus, specifically
required to be taken that it was not duly stamped. On such objection only
D the question is required to be determined judicially.

Reliance has been placed on Ram Rattan (Dead) by Legal
Representatives v. Bajrang Lal & Ors., AIR (1978) SC 1393, which in our
opinion has no application to the fact of the present case.

E When there had been no determination as regards. sufficiency of the
stamp duty paid on an instrument and in the event the document is taken in
evidence with an endorsement, that "objected, allowed subject to objection",
this Court in Ram Rattan (supra) held that the objection was not judicially
determined and the document was merely tentatively marked and in such a
situation Section 36 would not be attracted. Ram Rattan (supra) also, therefore,
F is an authority for the proposition that the party objecting to the admissibility
of the document must raise an objection so as to enable the trial judge to
determine the issue upon application of his judicial mind at the appropriate
stage. _,_
G If no objection had been made by Appellant herein in regard to the
admissibility of the said document, he, at a later stage, cannot be permitted
to turn round and contend that the said document is inadmissible in evidence.

Appellant having consented to the document being marked as an exhibit
has lost his right to reopen the question.
H
SHY AMAL KUMAR ROY v. SUSHIL KUMAR AGARWAL [S.B. SINHA, J.) 55

What was necessary was that the document should be marked in A
presence of the parties and they had an opportunity to object to the marking
of the document. The question of judicial determination of the matter would
arise provided an objection is taken what document is tendered in evidence
and before it is marked as an exhibit in the case. Before the learned Trial
Judge, reliance was placed on a decision of a learned Single Judge of the B
Andhra Pradesh High Court in Verni Reddy Kola Reddy v. Vern/ Reddy
Prabhakar Reddy, [2004] 3 ICC 832. In that case there was nothing on record
to show that the document was marked as an exhibit after an objection has
been raised. The said case, therefore, has also no applicatiCln to the facts of
the present case.

It may be true that the object of Indian Stamp Act is to collect revenue
c
and the amendments carried out by the State of West Bengal provides for
more stringent steps in that behalf. It may also be true that by reason of Sub-
section (4) of Section 33 of the West Bengal Act, a duty has been cast upon
the court to apply its mind when an instrument having_ insufficient stamp duty •
is brought to its notice, but, only thereby Section 36 of the Indian Stamp Act D
cannot be made inapplicable. Section 36, as indicated hereinbefore, applies on
its own force.

Appellant filed an application under Section 38 of the Indian Stamp Act.
The said provisions were clearly not applicable as thereby procedure has E
been laid down as to what steps are required to be taken upon impounding
a document. It furthermore appears that even the question in regard to the
applicability of Sub-Section (4) of Section 33 of the Act had not been raised.

Our attention has also been drawn to a few decisions of the Calcutta
High Court, wherewith we may now deal with.
F
In Tridip Das Roy v. Chitta Ranjan Jana, (1992) 2 CLJ 259, the question
which arose for consideration was: 'as to whether an agreement for sale is
an instrument within the meaning of Section 2(14) of the Indian Stamp Act'?'
' . It was held to be so, inter alia, having regard to the explanation appended
to Item No.5 of Schedule 1A. G

.
) There is no quarrel with the aforementioned proposition of law.

In Biswajit Chakraborty v. Mira Sen Ray, (2002) 2 CLJ 449, the Calcutta
High Court was dealing with a case where an objection was raised that the
document tendered was insufficiently stamped, holding : H
56 SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R.

A "My reading of the provisions of Sections 33, 35, 38, 39, 40 & 61
of the Indian Stamp Act, I 899 is that when a document is tendered
in evidence by a party and an objection is raised by the other side
that the document is insufficiently stamped, at that stage, the Court
assumes the jurisdiction to impound the document as it was obligatory
to apply the mind of the Court in accordance with the relevant
B provisions of the said Act. The object of_ Section 33 is to protect the
revenue and as such the Court or such person, as referred to in the
said section, must however, exercise the powers as envisaged under
the said section, if necessary, suo motu, irrespective of the raising of
objection by any of the party."
c Again, we are not concerned such a question in this appeal.

In Mujibar Rahman Monda/ v. Md. Abdulla Molla & Ors., (2005) 1 CLJ
(Cal.) 249, this Court held:-

" ... The Court has to judicially determine the matter as soon as the
D document is tendered in evidence and before it is marked as an
'exhibit' in the case. Once a document has been marked as an "exhibit"
in the case and has been used by the parties in examination and cross-
examination of their witnesses, Section 36 comes into operation. 'once
a document has been admitted in evidence, it is not open either to the
E trial Court itself or to a Court of Appeal or revision to go behind that
order. In the case on hand, the document in question was marked
exhibit with objection which leads to show that the objection as to
admissibility on the ground that the instrument is not duly stamped
has not been judicially determined but it was merely postponed with
tentatively marking it as an "exhibit". ~n such circumstance, the said
F provision of Section 36, in my view is not attracted ... "

The said decision has also no application in the facts and circumstances
of this case.
. '
For the reasons aforementioned, we are of the opinion that the High
G Court committed no error in dismissing the revisional application as also the
review application filed by Appellant herein. The appeal is therefore, dismissed
with costs. Counsel's fee quantified at Rs.5,000/-.

D.G. Appeal dismissed.

'- '