Section 34

Chapter VIII: SUPPLEMENTAL PROVISIONS 73. Books, etc. to be open to inspection.— Every public officer having in his custody any registers, books, records, papers, documents or proceedings, the inspection whereof may tend to secure any duty, or to prove or lead to the discovery of any fraud or omission in relation to any duty, shall at all reasonable times permit any person authorised 'in writing by the Collector to inspect for such purpose the registers, books, papers, documents and proceedings, and to take such notes and extracts as they may deem necessary, without fee or charge. 74. Power to make rules relating to sale of stamps.—The State Government may make rules for regulating— (a) the supply and sale of stamps and stamped papers, (b) the persons by whom alone such sale is to be conducted, and (c) the duties and remuneration of such persons: Provided that such rules shall not restrict the sale of ten naye paise or five naye paise adhesive stamps. {S.O. 1367 dated the 11th October, 1982— In exercise of the powers conferred by clause (a) of sub-section (1) of Section 9 and Section 74 of the Indian Stamp Act, 1899 (Act no. 2 of 1899). the Governor of Bihar is ploased to make rules that the duties of Stamp vendors and duties of Katibs (Deed writers) must not be performed by the same individual, 2. In view of the cleanliness of the Administration and for checking forgery and defaications it is highly desirable that the duties of a stamp vendor and that of deed writer should not be performed by the same person or individual, 3. This notification will come in force at once. [There is another notification also | Section 34: Indemnity Bond: 34. Indemnity Bond: ("The same duty as Security Bond (No. 57) for the same amount, subject to a maximum of Rs. 1000/- (Rupees One thousand)". Chapter IV: INSTRUMENTS NOT DULY STAMPED 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 public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duly 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. (2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether itis stamped with a stamp of the value and descriptidn required by the law in force in India, when such instruments was executed or first executed: Provided that — (a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (V of 1898); (b) in the case of a Judge of a High Court, the duty of the examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf. (3) For the purposes of this section, in cases of doubt— (a) the State Government may determine what offices shall be deemed to be public offices; and (b) the State Government may determine who shall be deemed to be persons in charge of public offices. Comments and Case-law [An arbitration award is required to be made on stamped paper by Article 12. This defect in the arbitration award is curable under section 33 and it cannot be said that section 35 of the Stamp Act imposes a permanent bar on the powers of the court to make such an arbitration award a rule of the court, even if the defect 1. Ins.by Bihar Act 6 of 1937 (from 14,1938) 2. See now the Code of Criminal Procedure, 1973 (2 of 1974) | Section 34: Sepcial provision as to unstamped receipts 34. Sepcial provision as to unstamped receipts.—Where any receipt chargeable with a duty not exceeding ten naye paise is tendered to or produced before any officer unstamped in the course of the audit of any public account, such officer may in his discretion, instead of impounding the instrument, require a duly stamped receipt to be substituted therefor. 35. Instrument not duly stamped inadmissible in evidence, etc.—No instrument chargeable with duly shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence; or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped: Provided that — (a) any such instrument not being an instrument chargeable with a duty not exceeding ten naye paise only, or a bill of exchange or promissory note, shall, subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceed five rupees, Or a sum equal to ten times such duty or portion: (b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it, . (c) where a contract or agreement of any kind is effected by correspondence Chapter IV: INSTRUMENTS NOT DULY STAMPED 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 public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duly 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. (2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether itis stamped with a stamp of the value and descriptidn required by the law in force in India, when such instruments was executed or first executed: Provided that — (a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (V of 1898); (b) in the case of a Judge of a High Court, the duty of the examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf. (3) For the purposes of this section, in cases of doubt— (a) the State Government may determine what offices shall be deemed to be public offices; and (b) the State Government may determine who shall be deemed to be persons in charge of public offices. Comments and Case-law [An arbitration award is required to be made on stamped paper by Article 12. This defect in the arbitration award is curable under section 33 and it cannot be said that section 35 of the Stamp Act imposes a permanent bar on the powers of the court to make such an arbitration award a rule of the court, even if the defect 1. Ins.by Bihar Act 6 of 1937 (from 14,1938) 2. See now the Code of Criminal Procedure, 1973 (2 of 1974) | Section 34: Sepcial provision as to unstamped receipts Sec. 36 ] Indian Stamp Act, 1899 [ 97 consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped; (d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XIl or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898)'; (e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behaif of the Government, or where it bears the certificate of the Collector as provided by section 32 or any other provision of this Act. Comments and Case-law [Unless a document is properly stamped as is provided under section 35, it cannot be permitted to be used even for collateral purpose. A collateral purpose is included in the expansion "any purpose" as contemplated under section 35. Mahendra Narayan Choudhary vs. Sukhdev Choudhary, 1970 PLJR (N.O.C.) iii. A promissory note which is not duly stamped is inadmissible in evidence but the creditor who has advanced the loan is not precluded from pursuing his ordinary legal remedy of enforcing repayment by a suit based on a original cause of action. P.C. Gopinathan Nair vs. P. P. A. Pillai, AIR 1991 Ker 16. This section operates as a bar to an unstamped document, instrument being admitted or being acted upon. M/s Wilson & Co. (Pvt.) Lid. vs. Kslokavinayagam, AIR 1992 Madras 100. In an arbitration case the defect in the award can be cured by impounding the document and after the defect is removed, it can be brought on record and made a rule of the Court as it is not a permanent bar of the power of the Couri to make such an award rule of the court even if the defect regarding the stamp is cured by the procedure under the stamp Act. ibid. Limitation Act, 1963-Article 136-Legislative mandate as sanctioned u/r 136 can not be kept in abeyance unless the self same legislation makes a provision therefor by the passing of a final decree (Order XX, Rule 18, CPC), the right stand crystalized and it is only thereafter its enforceability can be had though not otherwise- undoubtedly section 2(15) includes a decree of partition and section 35 lays down a bar in the matter of unstamped or insufficient stamp being admitted in evidence or being acted upon but that does not mean that the prescribed period of limitation shall remain suspended until the stamp paper is furnished and the partition decree is drawn thereon and subsequently cigned by the judge enforceability of the decree can not be the subject matter of section 35 neither the limitation can be said to be under suspension-time (limitation) does not stop running at the instance of any individual unless it has some statutory sanction. Hameed Joharan vs. Abdul Salam. 2002(1) PLUR (SC) 5. Document required to be stamped but not stamped cannot be used even for collateral purpose. Mahendra Narayan Choudhary vs. Sukhdev Choudhary, 1970 PLJR (NOC) iii. Court not debarred from making an avard a rule of the court after defect in the award, as regards stamps, is removed. Pradip Tracing Co. vs. State of Bihar, 1974 PLJR 235. Even though there is no prohibition u/s 49 of Registration Act to receive an unregistered document in evidence for collateral purpose. Bul the document so tendered should be duly stamped or should comply with requirements of Section 35. Avinash Kumar Chauhan vs. Vijay Krishna Mishra, 2009(1) Supreme 58.)