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Judgment
A.N. Venugopala Gowda, J.—Petitioners are the legal representatives of the deceased plaintiff in O.S. No. 12/2005 on the file of Additional Civil Judge (Sr. Dn.), Bagalkot. The suit has been instituted, to pass a decree for recovery of a sum of Rs. 57,940/- with interest and cost, based on a hand-loan chit dated 23.02.2004. Trial court having found that the suit has been instituted, based on a hand-loan chit, as nomenclatured in the plaint and not agreeing with the submission that it is a Promissory Note, passed an order dated 01.03.2010, directing the plaintiff to pay the determined sum of Rs. 4,400/- being the duty and penalty on the said document. Assailing the said order, this writ petition has been filed by the legal representatives of the deceased plaintiff.
Heard the learned advocates on both sides and perused the writ petition record. Before the document could be marked in evidence, suo motu objection having been raised with regard to the said instrument, impugned order has been passed. Section 33 of the Karnataka Stamp Act, 1957 [for short ''the Act''], provides for examination and impounding of instruments. Section 34 declares that interments not duly stamped are inadmissible in evidence, etc. Section 37 of the Act deals with the procedure to be followed by an authority after impounding the instrument u/s 33 of the Act and after passing orders u/s 34 or Section 36 of the Act. The instrument in question has not been tendered in evidence. The legal representatives of the plaintiff did not seek the marking of the instrument. In the circumstances, the instrument in question ought to have been impounded and referred to the Deputy Commissioner for passing the order. Instead, the trial court determined the duty and penalty and directed the plaintiff to pay the same. To the extent of determination of duty and penalty and direction issued to the plaintiff to remit the same, being irrational, interference is warranted.
In the result, writ petition is allowed and the impugned order to the extent of directing the plaintiff to pay the determined sum of duty and penalty of Rs. 4,400/- is quashed.
However, the instrument being insufficiently stamped is impounded and the trial court shall send the instrument to the Deputy Commissioner, Bagalkot, in exercise of power u/s 37 of the Act and await the decision of the authority.
No costs.