JUDGEMENT
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(1.)BY the present Writ Petition, under Article 226 & 227 of the Constitution of India, the petitioner has challenged the orders dated 07/3/2005 and 09/6/2005 below Exh.69 and Exh.73 respectively in Special Civil Suit No.48 of 1998.
(2.)THE petitioner had filed a civil suit which was registered as Special Civil Suit No.48 of 1998 in the Court of Civil Judge, Senior Division, Pusad for recovery of Rs.3,46,281/- on the ground that respondent/defendant had committed breach of contract i.e. terms and conditions of the Bond under which he had agreed to work as Lecturer in the college run by the petitioner society even after completing M.E. course from I.I.T., Delhi. The petitioner society, therefore, claimed damages to the extent of Rs.3,46,281/-. The respondent appeared in the trial court and filed written statement in which he denied all the adverse allegations levelled against him. The said document of Bond on the basis of which damages were claimed, was exhibited without any objection from the respondent at Exhibit 63. The evidence of both parties was completed and their respective sides were closed. Thereafter, the respondent filed application Exh.69 stating that the said document of Bond Exh.63 was required to be impounded as proper court fee was not paid by the petitioner plaintiff. The application was opposed by the petitioner stating therein that the document having once been exhibited without any objection from the respondent, it was highly impermissible to entertain such application. The learned trial court heard the parties and made an order on application Exh.69 holding that the application was liable to be allowed with a direction to plaintiff to deposit the court fee of Rs.16,000/- having regard to the claim made by the petitioner and having regard to the provisions of the Bombay Stamp Act, 1958. After making the said order, at about 3.30 p.m. the trial court made another order directing imposition of 10 times penalty on the amount of Rs.16,000/-. These are the two orders which are under challenge in the present writ petition.
Mr. Kasat, learned counsel for petitioner submitted that the document Exh.63 was exhibited and there was no objection for exhibition of document by the respondent. The learned counsel submitted that the respondent was not entitled to file any such application like one at Exh.69 and another application at Exh.73 for impounding the document and for levying 10 times penalty of the deficit stamp duty of Rs.16,000/-. Mr. Kasat, learned counsel then argued that as a matter of fact there is no power in the trial court to adopt such a course by allowing both the applications Exh.69 & 73. In support of his contention, he relied upon the decision of the Hon'ble Supreme Court in the case of Javer Chand and others vs. Pukhraj Surana, reported at A.I.R. 1961 Supreme Court 1655 and in the case of Shyamal Kumar Roy vs. Sushil Kumar Agarwal, reported at A.I.R. 2007 S.C. 637.
(3.)PER contra, Mr. Kaptan, learned counsel for respondent submits that the document in question was liable to be impounded because the petitioner plaintiff had not paid the proper stamp duty on the same. He then argued that the document having been exhibited on stamp duty of Rs.10/- only, the stamp duty of Rs.20/-for every part of Rs.500/- was required and the total stamp duty to be paid comes to Rs.16,000/-. He submitted that this being the position, the document was required to be impounded and penalty as provided by Sec.34(a) of the Bombay Stamp Act, 1958 was required to be levied 10 times of the amount of deficit stamp duty as the amendment to Section 34 of the Act was brought in force for the first time by the Maharashtra 22 of 2001 (w.e.f. 01/5/2001) and the document in question is of the date 19/7/1994. He then vehemently argued that he has a right to apply the trial court at any point of time during the course of trial and bring to the notice of the said court any violation of law on the part of petitioner plaintiff. In the alternative, Mr. Kaptan, learned counsel submitted that this court under Article 227 read with Section 58 of the Bombay Stamp Act, 1958 can definitely exercise the powers on its own motion and step in to bring the action in conformity with law. Mr. Kaptan, learned counsel also submitted that Section 58 of the Bombay Stamp Act, 1958 provides for such power to exercise on its own motion by the court of appeal and High Court is the court of appeal.
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