Mr R Mahendra Kumar Shah Vs. Mrs Anuradha Ostwal - Court Judgment

SooperKanoon Citationsooperkanoon.com/1194350
CourtKarnataka High Court
Decided OnJul-05-2018
Case NumberWP 2080/2016
JudgeS SUNIL DUTT YADAV
AppellantMr R Mahendra Kumar Shah
RespondentMrs Anuradha Ostwal
Excerpt:
1 r in the high court of karnataka at bengaluru dated this the5h day of july2018before the hon'ble mr.justice s. sunil dutt yadav writ petition no.2080 of2016(gm-cpc) ... petitioner between: mr. r.mahendra kumar shah s/o mr.raichand shah, aged about 57 years, represented by his duly constituted attorney, sri. keval kumar m.shah, s/o sri. mansukhlal, aged about 31 years, residing at no.12, 2nd floor 1st main road, jayamahal extension, bangalore - 560 002. (by sri. subramanya.s, advocate) and:1. mrs. anuradha ostwal 2. mr. ashok g. ostwal, w/o mr. ashok g. ostwal, aged about 49 years. father’s name not known, aged about 44 years, both are residing at no.169, ashray, aecs layout, 2nd main, 1st cross, rmv ii stage, sanjay nagar, bangalore – 560 094. 2 w/o late sri. p.munishamaiah, aged about 47 years.3. mrs. munikrishnamma 4. mrs. manjula d/o late p.munishamaiah, aged about 31 years. both are residing at ilthore village, kundana hobli, devanahalli taluk bangalore rural district – 562 110. shri. chhaganlal chajed s/o late sri. hanjarimal, aged about 74 years, #no.22/e, jain cloth market, bellary - 583 101 bellary district.5. (by sri. b.prasanna kumar, advocate for r-1; r-2 & r-5 is served and unrepresented; r-3 & r-4 notice dispensed with) ...respondents interlocutory application this writ petition is filed under article 227 of constitution of india praying to allow the above writ petition and issue a writ of certiorari of the order dated 25.11.2015 of the hon’ble senior civil judge at devanahalli in o.s.no.1252/2006 at annexure-a on i.a.no.iv in allowing the second defendant/r-2 herein under section 33 of the karnataka stamp act read with section 151 of code of civil procedure, 1908 and directing the petitioner to pay a deficit stamp duty of `63,800/- along with ten times penalty on deficit stamp duty i.e., `6,38,000/- in total `7,01,800/- (rupees seven lakhs one thousand eight hundred only) in respect of the agreement of sale dated 7.11.1997. filed by the this writ petition coming on for hearing, this day, the court made the following:3. order the writ petition has been filed by the petitioner – plaintiff assailing the order dated 25.11.2015 passed in o.s.no.1252/2006 whereby the court below allowing in part i.a.no.4 filed by defendant no.2 for impounding of the document, had directed the plaintiff to pay the deficit stamp duty of `63,800/- alongwith penalty at ten times of the deficit stamp duty totalling to `7,01,800/- in respect of the agreement of sale dated 07.11.1997. there was a further direction to the office to collect the deficit stamp duty and penalty in terms of section 37 of the karnataka stamp act, 1957 (‘act’ for brevity).2. the parties herein are referred to by their ranks before the court below for the purpose of convenience.3. the plaintiff had filed a suit in o.s.no.1252/2006 against the defendant nos.1 to 5 seeking for specific performance of the agreement of sale 4 dated 07.11.1997 with respect to the suit schedule property consisting of agricultural land measuring 2.00 acres in survey no.47 of ilthore village, kundana hobli, devanahalli taluk, bengaluru rural district. further relief was sought to declare that the sale deed executed by defendant nos.3 and 4 in favour of defendant no.1 on 27.05.2004 subsequent to the agreement of sale in favour of the plaintiff, did not bind the plaintiff.4. the agreement of sale dated 07.11.1997 and the subsequent endorsement dated 11.11.1997 was said to be inadequately stamped and necessary application seeking to impound the said document came to be filed by defendant no.2 under section 33 of the act on 09.08.2006. the trial court, by its order dated 07.09.2006 deferred the consideration of the matter to the stage of evidence when documents were to be marked. the objections to the said application came to be filed on 27.08.2015 after completion of pleadings and 5 after hearing the matter, the impugned order has come to be passed.5. the issues have been framed on 18.01.2016 subsequent to the passing of the impugned order so as to cast the burden on the plaintiff regarding the execution of the agreement of sale dated 07.11.1997. the suit being one for specific performance of the agreement of sale dated 07.11.1997, the agreement of sale is a suit document and the claim without the said document cannot be sustained. the trial court, while considering the application has observed that on 11.11.1997 possession had been handed over to the plaintiff which was four days after the execution of the agreement of sale dated 07.11.1997 and has construed the agreement of sale and endorsement dated 11.11.1997 as part of the same transaction and holding so, has found that in effect, the delivery of possession was under the agreement of sale dated 07.l1.1997 and 6 has impounded the said document. the trial court has construed that the possession was handed over under the agreement of sale dated 07.11.1997 and while referring to the endorsement and holding so directed that after impounding of the said document, the duty and penalty was to be paid in terms of section 34 of the act.6. the trial court construing the agreement of sale and handing over of possession through the said document found that article 5(e)(ii) of the act would be applicable and stamp duty as applicable to conveyance, on the market value of the property ought to have been paid on the said document.7. the present writ petition was filed challenging the finding of the trial court that it was the agreement of sale dated 07.11.1997 which was the document under which the possession was delivered and also as to the procedure to be followed subsequent 7 to the impounding of the document when the document was not yet tendered in evidence.8. the plaintiff, by memo dated 27.06.2018 has confined his challenge only to the order of the trial court insofar as it related to levying of penalty by itself instead of referring the same to the deputy commissioner under section 37(2) of act. the trial court while impounding the document had directed the plaintiff to pay penalty of ten times the deficit stamp duty which is the penalty that flows from exercise of power under section 35 of the act. the plaintiff has contended that the correct procedure that ought to have been adopted by the trial court was to refer the evaluation of penalty payable, to the deputy commissioner, bengaluru urban district and the court itself calculating the duty and penalty amounted to usurpation of powers of the deputy commissioner. 8 9. the plaintiff in support of the said argument has relied upon judgments to contend that when the document was impounded, the question of tendering it in evidence was not a matter for consideration and if that were to be so, under section 33 of the act, the document could be impounded for payment of duty, but the aspect of payment of penalty was to be looked into by the deputy commissioner.10. an attempt is made to distinguish the scope of sections 33 and 34 of the act and it is contended that section 33 refers to a stage prior to the document being admitted in evidence and once the document is impounded in exercise of power under section 33, the court ought to refer it to the deputy commissioner under section 39 of the act. it is further contended that when a document is impounded under section 33 of the act, the penal consequence would cease once the stamp duty is paid and the question of imposing the penalty is 9 one that comes to play only when the document is impounded under section 34 of the act, which is at the stage the document is sought to be admitted in evidence.11. it is also contended that admission of a document in evidence takes within its fold a judicial act and application of mind which comes into play only at the stage of evidence. in support of his arguments, the plaintiff relies on the decision of this court in the case of ilr2010kar 5706 (dr.s.vidhya v. sri r.s.venkata reddy), wherein in paras 8 and 9 of the judgment, this court has observed while setting aside the impugned order therein that the suit not having been posted for trial and the document not having been admitted in evidence or being acted upon, the imposition of penalty at ten times was impermissible. 10 12. the reliance is placed on a full bench’s decision of rajasthan high court in the case of nanga v. dhannalal and others reported in air1962rajasthan68 the relevant portion of para-36 of the said decision is extracted hereinbelow:- “admitted in evidence” is a technical expression and refers to a well-established rule of procedure which is known to all courts of law. we are aware that there are really two stages relating to documents filed in court: the initial stage is, when the documents are presented by the parties in court and then comes the next stage of evidence when the document is formally proved and tendered in evidence. it is only then that a document can be said to be admitted in evidence and thereafter an endorsement is made under rule 4 of o.xiii of the code of civil procedure. the legislature in using the expression “where an instrument has been admitted in evidence” must have been conscious of this well established rule of procedure and if it really intended that a mere finding as to the admissibility of the document is sufficient for the purpose, it would have clearly said so.” 11 hence, it is contended that the stage at which the application was considered and document impounded was a stage prior to the leading of evidence and hence, the procedure under section 34 was premature.13. the decision of himachal pradesh high court in the case of laiqram v. agar das reported in air1967himachal pradesh29has been relied upon (paras-6 to9) to contend that a document to be admitted in evidence, there had to be due application of judicial mind and marking of the document without adjudication or objection could not be held to constitute admission in evidence.14. the plaintiff has placed reliance on paras-19 and 20 of the decision in the case of lakshminarayanachar v. narayan & another reported in 1969(2) mys.l.j.299 to contend that the action of impounding and of imposition of duty and penalty could be considered as two different stages and 12 though the document could be impounded and if the same is not admitted in evidence, it could be sent to the deputy commissioner under section 37(2) of the act (earlier provision) as regards imposition of penalty.15. the defendant, on the other hand contends that the distinction sought to be made as to the exercise of power under sections 33 and 34 of the act is superfluous and that further, the very deference of the application by the trial court to the stage when evidence would commence indicates that there was an intention to tender the document in evidence and if that were to be so, the duty and penalty was even otherwise leviable in terms of power conferred under section 34 of the act.16. it is further contended that looking into the nature of the act being one to penalize evasion of duty, an interpretation favouring doing away with duty is not permissible. reliance has been placed by the 13 respondents to this court’s decision in the case of miss. sandra lesley anna bartels v. miss.p.gunavathy reported in ilr2013kar368wherein, in para 12 of the decision it is held that under section 33 of the act, once the document which is insufficiently stamped comes to the notice of the court, there has to be an order impounding the said document though it is a discretion of the court to exercise its powers under sections 33 and 34 of the act and that the court ought not to wait till the document is tendered in evidence.17. reliance has also been placed on this court’s order dated 07.12.2017 passed in writ petition nos.53448/2017 (gm-cpc) and 53945/2014, which has approved the observations made in ilr2013kar368(supra).18. further reliance has been placed on this court’s order dated 14.8.2013 passed in writ petition no.60926/2011 (gm-cpc) and connected matters to 14 contend that there is no obligation to refer the document to the deputy commissioner, and to the principle, that power of the court cannot be subjudicated to that of the deputy commissioner.19. after having heard learned counsel for both the sides the point that arises for determination is:- whether the impounding of the document at a stage prior to evidence in exercise of power under section 33 of the act would also entail imposition of penalty under section 34 of the act ?.20. it ought to be noted that the application under section 33 of the act to impound the document was made at a very initial stage of the proceedings, i.e. on 9.8.2006 and when the court, by its order dated 7.9.2006 had deferred the consideration of the said application to the ‘stage of evidence’ and the objections to the said application came to be filed on 27.8.2015 after pleadings were complete and very soon thereafter 15 issues have been framed. the suit being one for specific performance, without reliance on the agreement of sale dated 07.11.1997, the relief sought by the plaintiff cannot be considered.21. the non-impounding of the document, though an application was filed at the initial stage in exercise of power under section 33 of the act and the deferring of exercise of the power to impound to a later stage would itself indicate that the court was intending to consider the application for impounding at a subsequent stage, that is, when the evidence would commence. it is not in dispute that as on the date of consideration of the said application, the pleadings of both the parties were complete and what remained was the framing of issues and commencement of evidence of both the parties.22. a distinction is sought to be made by contending that once a document is impounded prior to 16 it being admitted in evidence the power of the court in exercise of power vested under section 33 is to impound the document, but however the question of imposition of penalty would not arise and the document would have to be referred to the deputy commissioner. there is a fallacy in such an argument considering the facts of the present case, as in effect, the stage had reached where the document would have to be tendered in evidence and the evidence was to commence. the power that is available under section 33 of the act to impound is also to be construed to be of such nature that the court has the power to levy the penalty as envisaged under section 34 of the act without necessarily referring the matter to the deputy commissioner, such a procedure would not only entail delay of the proceedings, but if such interpretation were to be allowed, it would amount to subjudicating the power of the court to the administrative authorities, which is not the intendment of the act. 17 23. considering the fact that the document was impounded at a stage prior to the commencement of evidence and intention of the plaintiff is clear to make use of the said document in evidence, the contention that imposition of penalty would have to be deferred till it is sought to be tendered in evidence is a distinction without difference. in essence, as evidence was to commence, the power exercised under section 33 of the act followed by assessment of duty and penalty would be in keeping with the true purport and intent of the provision, i.e., to penalize those who seek to evade the duty. the power that is exercised by the deputy commissioner at a subsequent point of time takes within its fold the power to reduce penalty though imposed by the court and consequently paid would not in any way prejudice the plaintiff, as the power is vested with the deputy commissioner to order for refund of any portion of penalty that has been paid. 18 24. in view of the same, no ground is made out for interference in the impugned order. petition is dismissed. consequently, the procedure as envisaged in the impugned order is to be given effect to. needless to state that the power of deputy commissioner under section 38 of the act to consider as the appropriateness of quantum of penalty is left open.25. noting the fact that the suit is of the year 2006, the trial court is directed to expedite the trial taking into account the seniority of present case vis-à-vis other cases before it in as expedient manner as possible. no order as to costs. sd/- judge vgr
Judgment:

1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE5H DAY OF JULY2018BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.2080 OF2016(GM-CPC) ... Petitioner Between: Mr. R.Mahendra Kumar Shah S/o Mr.Raichand Shah, Aged about 57 years, Represented by his duly constituted attorney, Sri. Keval Kumar M.Shah, S/o Sri. Mansukhlal, Aged about 31 years, Residing at No.12, 2nd Floor 1st Main Road, Jayamahal Extension, Bangalore - 560 002. (By Sri. Subramanya.S, Advocate) And:

1. Mrs. Anuradha Ostwal 2. Mr. Ashok G. Ostwal, W/o Mr. Ashok G. Ostwal, Aged about 49 years. Father’s name not known, Aged about 44 years, Both are residing at No.169, Ashray, AECS Layout, 2nd Main, 1st Cross, RMV II Stage, Sanjay Nagar, Bangalore – 560 094. 2 W/o Late Sri. P.Munishamaiah, Aged about 47 years.

3. Mrs. Munikrishnamma 4. Mrs. Manjula D/o Late P.Munishamaiah, Aged about 31 years. Both are residing at Ilthore Village, Kundana Hobli, Devanahalli Taluk Bangalore Rural District – 562 110. Shri. Chhaganlal Chajed S/o Late Sri. Hanjarimal, Aged about 74 years, #No.22/E, Jain Cloth Market, Bellary - 583 101 Bellary District.

5. (By Sri. B.Prasanna Kumar, Advocate for R-1; R-2 & R-5 is served and unrepresented; R-3 & R-4 Notice dispensed with) ...Respondents interlocutory application This writ petition is filed under Article 227 of Constitution of India praying to allow the above writ petition and issue a writ of certiorari of the order dated 25.11.2015 of the Hon’ble Senior Civil Judge at Devanahalli in O.S.No.1252/2006 at Annexure-A on I.A.No.IV in allowing the second defendant/R-2 herein under Section 33 of the Karnataka Stamp Act read with Section 151 of Code of Civil Procedure, 1908 and directing the petitioner to pay a deficit stamp duty of `63,800/- along with ten times penalty on deficit stamp duty i.e., `6,38,000/- in total `7,01,800/- (Rupees seven lakhs one thousand eight hundred only) in respect of the agreement of sale dated 7.11.1997. filed by the This writ petition coming on for hearing, this day, the Court made the following:

3. ORDER

The writ petition has been filed by the petitioner – plaintiff assailing the order dated 25.11.2015 passed in O.S.No.1252/2006 whereby the Court below allowing in part I.A.No.4 filed by defendant No.2 for impounding of the document, had directed the plaintiff to pay the deficit stamp duty of `63,800/- alongwith penalty at ten times of the deficit stamp duty totalling to `7,01,800/- in respect of the agreement of sale dated 07.11.1997. There was a further direction to the Office to collect the deficit stamp duty and penalty in terms of Section 37 of the Karnataka Stamp Act, 1957 (‘Act’ for brevity).

2. The parties herein are referred to by their ranks before the Court below for the purpose of convenience.

3. The plaintiff had filed a suit in O.S.No.1252/2006 against the defendant Nos.1 to 5 seeking for specific performance of the agreement of sale 4 dated 07.11.1997 with respect to the suit schedule property consisting of agricultural land measuring 2.00 acres in Survey No.47 of Ilthore Village, Kundana Hobli, Devanahalli Taluk, Bengaluru Rural District. Further relief was sought to declare that the sale deed executed by defendant Nos.3 and 4 in favour of defendant No.1 on 27.05.2004 subsequent to the agreement of sale in favour of the plaintiff, did not bind the plaintiff.

4. The agreement of sale dated 07.11.1997 and the subsequent endorsement dated 11.11.1997 was said to be inadequately stamped and necessary application seeking to impound the said document came to be filed by defendant No.2 under Section 33 of the Act on 09.08.2006. The Trial Court, by its order dated 07.09.2006 deferred the consideration of the matter to the stage of evidence when documents were to be marked. The objections to the said application came to be filed on 27.08.2015 after completion of pleadings and 5 after hearing the matter, the impugned order has come to be passed.

5. The issues have been framed on 18.01.2016 subsequent to the passing of the impugned order so as to cast the burden on the plaintiff regarding the execution of the agreement of sale dated 07.11.1997. The suit being one for specific performance of the agreement of sale dated 07.11.1997, the agreement of sale is a suit document and the claim without the said document cannot be sustained. The Trial Court, while considering the application has observed that on 11.11.1997 possession had been handed over to the plaintiff which was four days after the execution of the agreement of sale dated 07.11.1997 and has construed the agreement of sale and endorsement dated 11.11.1997 as part of the same transaction and holding so, has found that in effect, the delivery of possession was under the agreement of sale dated 07.l1.1997 and 6 has impounded the said document. The Trial Court has construed that the possession was handed over under the agreement of sale dated 07.11.1997 and while referring to the endorsement and holding so directed that after impounding of the said document, the duty and penalty was to be paid in terms of Section 34 of the Act.

6. The Trial Court construing the agreement of sale and handing over of possession through the said document found that Article 5(e)(ii) of the Act would be applicable and stamp duty as applicable to conveyance, on the market value of the property ought to have been paid on the said document.

7. The present writ petition was filed challenging the finding of the Trial Court that it was the agreement of sale dated 07.11.1997 which was the document under which the possession was delivered and also as to the procedure to be followed subsequent 7 to the impounding of the document when the document was not yet tendered in evidence.

8. The plaintiff, by memo dated 27.06.2018 has confined his challenge only to the order of the Trial Court insofar as it related to levying of penalty by itself instead of referring the same to the Deputy Commissioner under Section 37(2) of Act. The Trial Court while impounding the document had directed the plaintiff to pay penalty of ten times the deficit stamp duty which is the penalty that flows from exercise of power under Section 35 of the Act. The plaintiff has contended that the correct procedure that ought to have been adopted by the Trial Court was to refer the evaluation of penalty payable, to the Deputy Commissioner, Bengaluru Urban District and the Court itself calculating the duty and penalty amounted to usurpation of powers of the Deputy Commissioner. 8 9. The plaintiff in support of the said argument has relied upon judgments to contend that when the document was impounded, the question of tendering it in evidence was not a matter for consideration and if that were to be so, under Section 33 of the Act, the document could be impounded for payment of duty, but the aspect of payment of penalty was to be looked into by the Deputy Commissioner.

10. An attempt is made to distinguish the scope of Sections 33 and 34 of the Act and it is contended that Section 33 refers to a stage prior to the document being admitted in evidence and once the document is impounded in exercise of power under Section 33, the Court ought to refer it to the Deputy Commissioner under Section 39 of the Act. It is further contended that when a document is impounded under Section 33 of the Act, the penal consequence would cease once the stamp duty is paid and the question of imposing the penalty is 9 one that comes to play only when the document is impounded under Section 34 of the Act, which is at the stage the document is sought to be admitted in evidence.

11. It is also contended that admission of a document in evidence takes within its fold a judicial act and application of mind which comes into play only at the stage of evidence. In support of his arguments, the plaintiff relies on the decision of this Court in the case of ILR2010Kar 5706 (DR.S.VIDHYA v. SRI R.S.VENKATA REDDY), wherein in paras 8 and 9 of the judgment, this Court has observed while setting aside the impugned order therein that the suit not having been posted for trial and the document not having been admitted in evidence or being acted upon, the imposition of penalty at ten times was impermissible. 10 12. The reliance is placed on a Full Bench’s decision of Rajasthan High Court in the case of NANGA v. DHANNALAL AND OTHERS reported in AIR1962RAJASTHAN68 The relevant portion of para-36 of the said decision is extracted hereinbelow:- “Admitted in evidence” is a technical expression and refers to a well-established rule of procedure which is known to all courts of law. We are aware that there are really two stages relating to documents filed in court: the initial stage is, when the documents are presented by the parties in Court and then comes the next stage of evidence when the document is formally proved and tendered in evidence. It is only then that a document can be said to be admitted in evidence and thereafter an endorsement is made under Rule 4 of O.XIII of the Code of Civil Procedure. The legislature in using the expression “where an instrument has been admitted in evidence” must have been conscious of this well established rule of procedure and if it really intended that a mere finding as to the admissibility of the document is sufficient for the purpose, it would have clearly said so.” 11 Hence, it is contended that the stage at which the application was considered and document impounded was a stage prior to the leading of evidence and hence, the procedure under Section 34 was premature.

13. The decision of Himachal Pradesh High Court in the case of LAIQRAM v. AGAR DAS reported in AIR1967HIMACHAL PRADESH29has been relied upon (paras-6 to

9) to contend that a document to be admitted in evidence, there had to be due application of judicial mind and marking of the document without adjudication or objection could not be held to constitute admission in evidence.

14. The plaintiff has placed reliance on paras-19 and 20 of the decision in the case of LAKSHMINARAYANACHAR v. NARAYAN & ANOTHER reported in 1969(2) Mys.L.J.

299 to contend that the action of impounding and of imposition of duty and penalty could be considered as two different stages and 12 though the document could be impounded and if the same is not admitted in evidence, it could be sent to the Deputy Commissioner under Section 37(2) of the Act (earlier provision) as regards imposition of penalty.

15. The defendant, on the other hand contends that the distinction sought to be made as to the exercise of power under Sections 33 and 34 of the Act is superfluous and that further, the very deference of the application by the Trial Court to the stage when evidence would commence indicates that there was an intention to tender the document in evidence and if that were to be so, the duty and penalty was even otherwise leviable in terms of power conferred under Section 34 of the Act.

16. It is further contended that looking into the nature of the Act being one to penalize evasion of duty, an interpretation favouring doing away with duty is not permissible. Reliance has been placed by the 13 respondents to this Court’s decision in the case of MISS. SANDRA LESLEY ANNA BARTELS v. MISS.P.GUNAVATHY reported in ILR2013KAR368wherein, in para 12 of the decision it is held that under Section 33 of the Act, once the document which is insufficiently stamped comes to the notice of the Court, there has to be an order impounding the said document though it is a discretion of the Court to exercise its powers under Sections 33 and 34 of the Act and that the Court ought not to wait till the document is tendered in evidence.

17. Reliance has also been placed on this Court’s order dated 07.12.2017 passed in Writ Petition Nos.53448/2017 (GM-CPC) and 53945/2014, which has approved the observations made in ILR2013KAR368(supra).

18. Further reliance has been placed on this Court’s order dated 14.8.2013 passed in Writ Petition No.60926/2011 (GM-CPC) and connected matters to 14 contend that there is no obligation to refer the document to the Deputy Commissioner, and to the principle, that power of the Court cannot be subjudicated to that of the Deputy Commissioner.

19. After having heard learned counsel for both the sides the point that arises for determination is:- Whether the impounding of the document at a stage prior to evidence in exercise of power under Section 33 of the Act would also entail imposition of penalty under Section 34 of the Act ?.

20. It ought to be noted that the application under Section 33 of the Act to impound the document was made at a very initial stage of the proceedings, i.e. on 9.8.2006 and when the Court, by its order dated 7.9.2006 had deferred the consideration of the said application to the ‘stage of evidence’ and the objections to the said application came to be filed on 27.8.2015 after pleadings were complete and very soon thereafter 15 issues have been framed. The suit being one for specific performance, without reliance on the agreement of sale dated 07.11.1997, the relief sought by the plaintiff cannot be considered.

21. The non-impounding of the document, though an application was filed at the initial stage in exercise of power under Section 33 of the Act and the deferring of exercise of the power to impound to a later stage would itself indicate that the Court was intending to consider the application for impounding at a subsequent stage, that is, when the evidence would commence. It is not in dispute that as on the date of consideration of the said application, the pleadings of both the parties were complete and what remained was the framing of issues and commencement of evidence of both the parties.

22. A distinction is sought to be made by contending that once a document is impounded prior to 16 it being admitted in evidence the power of the Court in exercise of power vested under Section 33 is to impound the document, but however the question of imposition of penalty would not arise and the document would have to be referred to the Deputy Commissioner. There is a fallacy in such an argument considering the facts of the present case, as in effect, the stage had reached where the document would have to be tendered in evidence and the evidence was to commence. The power that is available under Section 33 of the Act to impound is also to be construed to be of such nature that the Court has the power to levy the penalty as envisaged under Section 34 of the Act without necessarily referring the matter to the Deputy Commissioner, such a procedure would not only entail delay of the proceedings, but if such interpretation were to be allowed, it would amount to subjudicating the power of the Court to the Administrative Authorities, which is not the intendment of the Act. 17 23. Considering the fact that the document was impounded at a stage prior to the commencement of evidence and intention of the plaintiff is clear to make use of the said document in evidence, the contention that imposition of penalty would have to be deferred till it is sought to be tendered in evidence is a distinction without difference. In essence, as evidence was to commence, the power exercised under Section 33 of the Act followed by assessment of duty and penalty would be in keeping with the true purport and intent of the provision, i.e., to penalize those who seek to evade the duty. The power that is exercised by the Deputy Commissioner at a subsequent point of time takes within its fold the power to reduce penalty though imposed by the Court and consequently paid would not in any way prejudice the plaintiff, as the power is vested with the Deputy Commissioner to order for refund of any portion of penalty that has been paid. 18 24. In view of the same, no ground is made out for interference in the impugned order. Petition is dismissed. Consequently, the procedure as envisaged in the impugned order is to be given effect to. Needless to state that the power of Deputy Commissioner under Section 38 of the Act to consider as the appropriateness of quantum of penalty is left open.

25. Noting the fact that the suit is of the year 2006, the Trial Court is directed to expedite the trial taking into account the seniority of present case vis-à-vis other cases before it in as expedient manner as possible. No order as to costs. Sd/- JUDGE VGR