HINDUSTAN STEEL LTD v. M/S. DALIP CONSTRUCTION COMPANY

which, not having been previously by any person, is after the first day of July, 1899; extended, extinguished or "Inatrument" is defined m s. 2(14) as including "every docu ment by which any right or liability is, or purports to be, creat ed, transferred, limited, recorded". An instrument is said. to be "duly stamped" within the meaning of the Stamp Act when the instrument bears an adhesive or im- prOiSOCI stamp of. not less than the proper a.tnount and that such stamp has been affixed or used in accordance with the law for Item 12 of Sch. I the time being in force in India : s. 2 ( 11). respect of an award. . pr~ribes the stamp duty payable Section 33 ( l) provides, insofar as it is relevant : " ( l) Every person having by law or consent of parties authority to receive evidence. . before . . with duty, . 'lfhom any instrument, chargeable. ill produced or comes in the perfom1ance of his func- tions, shall, if it appears to him that such instrument ill not duly stamped, impound the same." . . . . A C D Sectioo 35 of the Stamp Act provides, insofar as it is relevant : E "No instrument chargeable with duty shall be ad mitted in evidence for any purpose by any person having by law or consent of parties authority to re ceive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such imistrument is duly stamped: F Provided that .................... " Section 36 provides : "Where an instrument has been admitted in evi dence, such admission shall not, except as provided in section 61, be called in question at any stage of the aame suit or proceeding qn the ground that the instru- ment has not been duly stamped." Section 38 deals with the impounding of the instruments : prcmdes: " ( l ) When the person inlpounclif1g an instrume~t 11Dder sectiQD 3 3 has . . . . . . authonty to receive evi- dence and admits such instrument in evidence upon payment of a penialty as provided by section 3 5 or G H A B c J) G HINDUSTAN STEEL V. DALIP. CONST. CO. (Shah, /.) 739 ........ , he shall send to the Collector an authenti cated ·copy of such instrument, together with a certi ficate in writiJig, stating the amount of duty and penalty levied in respect thereof, ........ " By s. 39 the Collector is authorised to adjudge proper penalty and to refund any portion of the penalty which has been paid in respect o.f the instrument, sent to him. Section 40 prescribes the procedure to be followed by the Collector in respect of an i;nstrument impounded by h!m or sent to him under s. 38. If the Collector is of the opinion that the instrument is chargeable with duty and is not duly stamped, he shall require the payment or 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 dut) or of the deficient portion thereof. Section 42 provides : in respect of a,ny " ( 1) When the duty and penalty (if any), Jevi instrument have been paid under section 3 5, section 40 or ...... , the person admitting such instrument in evide; nce or the Collec tor, as the case may be, sha]J 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 so endorsed shall thereupon be admissible in evidence. and may be registered and acted upon and authenticated as if it had been duly stamped, and shall be delivered on his application in this behalf to the person from whose possession came into the hands of the officer impoundin~ it, or as such person may direct : Provided !;hat- ........... ; ; . ; ; . ; ........... . " The award, whidh is an "instrument" within the meaning\ oe the Stamp Act was required to be stamped. Being unstamped, the aw.ard could not be received in evidence by the Cami, nor could 1~ be acted upon. But the Court was competent to im pound 11 and to send it to the Collector with a certificate in writing s~ating the amount of duty and penalty thereon. On the instrument so received the Collector may adjudge whe ther it. is duly stamped and he may require penalty to be paid thereon, j,f in his view it has not been duly stamped. If th( duty and penalty are paid, the Collector will certify by endorse ment on the instrument that the proper duty and penalty hav• been paid. levied 740 SUPREME COURT ll.EPORTS [1969] 3 S.C.R. stamped as well as to An instrument which is not duly stamped cannot be received in evidence by any person who has authority receive evi dence, and it cannot be acted upon by that person or by any public officer. Section 35 provides that the admissibility of a• instrument qnce admitted in evidence shall not, except as pro vided in s. 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. Relying upon the difference in the phraseology betweein ss. 35 and 36 it was urged that an instrument whiclt is not duly stamped may be admitted in evidence. on pa)ment of duty and penalty, but it cannot be acted upon because s. 35 operates as a bar the admission instrument not duly its being actcti 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 prt:>· ceeding on the ground that it has not been duly stamped. Sectio• 36 does not prohibit a challenge against an instrument that it shall not be acted upon because it is not duly stamped, but on. that account there is no bar against an instrument not duly stamped being acted uporr after payment of the stamp duty and penalty according to the procedure prescribed by the Act. The doubt, if any, is removed by the terms of s. 42(2) which enact, in terms unmistakable, that every instrument endorsed by Collector under s. 42 ( 1) shall be admissible in evidence and may be acted upon as if it had been duly stampoo. in evidence of The Stamp Act is a fiscal measure enacted to secure revenue for the State Ol!l certain classes of instruments : it is not enacted to a'1ll a litigant with a weapon of technicality to meet case of his opponent. The stringent provisions of the Act are conceived in the interest of the revenue. Once that object is secured according to law, the party staking his claim on initial instrument will not be defeated on the ground of the de.feet in the instrument. Viewed in that light the Scheme is clear : s. 35 of the Stamp Act operates as a bar to an unstamp ed instrument being admitted in evidence or being acted upon; instruments being im· section 40 provides the p~ocedure for pounded, sub-s. ( 1) of s. 42 provides for certifying that an ins trument is duly stamped, and sub-s. (2) of s. 42 enacts cQ\llsequences resulting from such certmcation. Our attention was invited to the statement of law by M.C. Desai, J., in Mst. Bittan Bibi and Another v. Kuntu La~ ami 14.nother(') that : ---- (1) I.LR . .' 195:1 2 All. 9€4. A B c D E F G H HINDUSTAN STEEL V. DALIP CONST. CO. (Shah, /.) 7 0 "A court is prohibited from admitting an instru ment in evidence ainkl a Coun and a public officer both are prohibited acting upon it. Thus a Court is prohibited from both admitting it in evidence and acting upon it. It foilows that the acting upon is not included in the admission aUld 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. 1f 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 provisio11. that it shall not be admitted in evidence for adv pur pose. To act upon an instrument is to give effect to it or to enforce it" In 011r judgment, the learned Judge attributed to s. 36 a meanin~ wlLich the Legislature did not intend. Attentiqn of the learnca Judge was apprently not invited to s. 42(2) of the Act which expte!sly renders an instrument, when certified by endorsement that proper duty and penalty have been levied i.'l respect thereof. capable of being acted upon as if it had been duly stamped. The appeal fails and i~ dismissed with costs. o.c. Appeal dismissad. A B c D E ' •