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Orissa High Court
India) vs Binod Chandra Padra And Others …. … on 1 August, 2025
Author: B.P. Routray
Bench: B.P. Routray
Signature Not Verified
Digitally Signed
Signed by: BASANTA KUMAR BARIK
Designation: Secretary
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 11-Aug-2025 18:45:46
IN THE HIGH COURT OF ORISSA AT CUTTACK
C.M.P. No.590 of 2025
(In the matter of an application under Article 227 of the Constitution of
India)
Karunakara Pradhan@Karunakar .... Petitioner
Pradhan
-versus-
Binod Chandra Padra and others .... Opposite Parties
Advocate(s) appeared in this case:-
For Petitioner : Mr. S. Kar, Advocate
For Opposite Parties :
CORAM: JUSTICE B.P. ROUTRAY
JUDGMENT
1st August 2025
B.P. Routray, J.
1. Heard Mr. S. Kar, learned Advocate for the Petitioner.
2. Present C.M.P. is directed against the impugned order dated
06.12.2024 passed by the learned Civil Judge (Sr. Divn.), Balliguda in
C.S. No.74 of 2019.
3. The Petitioner is the Plaintiff and he filed the suit for specific
performance of contract along with prayer for damages, mandatory
injunction, delivery of possession, etc. The contract is an agreement
C.M.P. No.590 of 2025 Page 1 of 8
Signature Not Verified
Digitally Signed
Signed by: BASANTA KUMAR BARIK
Designation: Secretary
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 11-Aug-2025 18:45:46
dated 14.06.1999 for sale of land. Further, according to the Plaintiff,
the Defendants furnished a Chuktinama on 11.09.2000 upon receipt of
money by way of Bankers Cheque from the Plaintiff. Said Chuktinama
dated 11.09.2000 has been furnished on a five rupees stamp paper, as
per the Plaintiff’s case.
4. During pendency of the suit, the Plaintiff filed a petition under
Order 13 Rule 8, C.P.C. praying for a direction to the authority for
impounding said Chuktinama dated 11.09.2000. Learned trial court
accordingly sent the document for impounding to the revenue
authority, who in return submitted as per his Letter dated 28.3.2024
(Annexure-7) that, since said document was never presented for
registration, question of impounding the same does not arise.
Consequently, learned trial court rejected the prayer of the Plaintiff for
impounding said document vide his order dated 06.12.2024 and the
same is impugned in present C.M.P.
5. As seen from record, the suit has been filed in the year 2019 and
the petition under Order 13 Rule 8, C.P.C. for impounding the
document was presented in the year 2023.
C.M.P. No.590 of 2025 Page 2 of 8
Signature Not Verified
Digitally Signed
Signed by: BASANTA KUMAR BARIK
Designation: Secretary
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 11-Aug-2025 18:45:46
6. Section 38 read with Section 33 & 35 of the Indian Stamp Act
(hereinafter referred as “the Act”) permits impounding of such
instruments not duly stamped. The provisions under Section 35 & 38 of
the Act are reproduced below:-
“35. Instruments not duly stamped inadmissible in
evidence, etc.–No instrument chargeable with duty 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 [shall] 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 of the amount of
the proper duty or deficient portion thereof exceeds five
rupees, of a sum equal to ten times of such duty or portion;
(b)where any person from whom a stamped receipt would
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 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 XII or
Chapter XXXVI of the Code of Criminal Procedure, 1898;
C.M.P. No.590 of 2025 Page 3 of 8
Signature Not Verified
Digitally Signed
Signed by: BASANTA KUMAR BARIK
Designation: Secretary
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 11-Aug-2025 18:45:46
(e)nothing herein contained shall prevent the admission of
any instrument in any Court when such instrument has
been executed by or on behalf of the Government, or
where it bears the certificate of the Collector as provided
by section 32 or any other provision of this Act.
xxx xxx xxx
38. Instruments impounded, how dealt with.–(1) When
the person impounding an instrument under section 33 has
by law or consent of parties authority to receive evidence
and admits such instrument in evidence upon payment of a
penalty as provided by section 35 or of duty as provided by
section 37, he shall send to the Collector an authenticated
copy of such instrument, together with a certificate in
writing, stating the amount of duty and penalty levied in
respect thereof, and shall send such amount to the
Collector, or to such person as he may appoint in this
behalf.
(2)In every other case, the person so impounding an
instrument shall send it in original to the Collector.”
7. Mr. S. Kar, learned counsel submits on behalf of the Plaintiff
(Petitioner) that, even if an unregistered document can be impounded
under Section 38 of the Act at any point of time subsequent to
execution of the same and in this regard, he relies on a decision of this
Court in Braja Sundar Nanda vs. Pravabati Kar and others, AIR
2014 ORISSA 1.
8. As per the provisions of the Act, such instruments chargeable
with duty has been explained in Section 3 read with Schedule-I thereof
C.M.P. No.590 of 2025 Page 4 of 8
Signature Not Verified
Digitally Signed
Signed by: BASANTA KUMAR BARIK
Designation: Secretary
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 11-Aug-2025 18:45:46
of the Act. It is settled legal proposition that an agreement to sell does
not create any right, or title in favour of the intending buyer. [see
Meghamala and others vs- G. Narasimha and others, (2010) 8 SCC
383].
9. A document liable for compulsory registration is specified in the
Registration Act, 1908 and Section 17 thereof prescribes in that regard.
Odisha amendment adds two new provisions to Section 17 of the
Registration Act Viz.17(1)(f) & 17(1)(g). Section 17(1)(f) provides that
an agreement to sale immovable property, possession whereof has been
or is handed over to the purported purchaser, is compulsorily
registerable. Further, Sec 17(1-A) prescribes that the documents
containing contracts to transfer for consideration, any immovable
property for the purpose of section 53A of the Transfer of Property Act
1882 shall be registered if it is executed on or after the commencement
of the Registration and Other Related Laws (Amendment) Act 2001,
came into force w.e.f. 24-09-2001, and if such document is not
registered then it shall have no effect for the purpose of section 53A.
10. Section 33 of the Indian Stamp Act, 1899 prescribes provisions
with regard to instruments not duly stamped and impounding thereof.
C.M.P. No.590 of 2025 Page 5 of 8
Signature Not Verified
Digitally Signed
Signed by: BASANTA KUMAR BARIK
Designation: Secretary
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 11-Aug-2025 18:45:46
Section 35 of the Act makes instruments not duly stamped as
inadmissible in evidence with such recourse under the proviso. In
Sanjeeva Reddi v. Johanputra Reddi, [AIR 1972 AP 373], it has been
held:-
“9. While considering the scope of Section 35 of the Stamp
Act we cannot bring in the effect of non-registration of a
document under Section 49 of the Registration Act. Section
17 of the Registration Act deals with documents, the
registration of which is compulsory and Section 49 is
concerned only with the effect of such non-registration of the
documents which require to be registered by Section 17 or by
any provision of the Transfer of Property Act. The effect of
non-registration is that such a document shall not affect any
immovable property covered by it or confer any power to
adopt and it cannot be received as evidence of any transaction
affecting such property or conferring such power. But there is
no prohibition under Section 49 to receive such a document
which requires registration to be used for a collateral purpose
i.e. for an entirely different and independent matter. There is
a total and absolute bar as to the admission of an unstamped
instrument whatever be the nature of the purpose or however
foreign or independent the purpose may be for which it is
sought to be used, unless there is compliance with the
requirements of the provisos to Section 35. In other words if
an unstamped instrument is admitted for a collateral purpose,
it would amount to receiving such a document in evidence
for a purpose which Section 35 prohibits. .. xx .. .. xx ..”
11. In the instant case, the alleged agreement (‘Chuktinama’),
executed on five rupees non-judicial stamp paper, was never presented
C.M.P. No.590 of 2025 Page 6 of 8
Signature Not Verified
Digitally Signed
Signed by: BASANTA KUMAR BARIK
Designation: Secretary
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 11-Aug-2025 18:45:46
for registration before the competent authority and most importantly,
the very execution of the ‘Chuktinama’ is disputed by the defendants.
The decision cited by the Plaintiff is upon interpretation of
admissibility of such instruments not duly stamped in terms of Section
35 of the Act and for impounding of the same for the purpose of
making the document admissible in terms of Section 35.
12. The facts of the present case being on a different point that a
document never presented for registration was sought to be impounded
after 23 years of its alleged execution, when the execution itself is
disputed, said decision cited by learned counsel for the Petitioner is
found distinguishable.
13. Impounding an agreement to sale of an immovable property after
23 years of its alleged execution, where the execution itself is disputed
and which was never presented for registration, cannot be permitted at
this stage. Such an attempt made by the Plaintiff to impound the
document after 23 years of its execution in absence of one party is not
found acceptable at this point of time. Undoubtedly the fact of not
presenting the document for registration, as an additional factor, is not
disputed by the Plaintiff. Thus, the only purpose of making the
C.M.P. No.590 of 2025 Page 7 of 8
Signature Not Verified
Digitally Signed
Signed by: BASANTA KUMAR BARIK
Designation: Secretary
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 11-Aug-2025 18:45:46
document impounded cannot be accepted as a right on the part of the
Plaintiff particularly in a suit for specific performance of contract
where the evidentiary value of said document is considered with great
importance. The document sought to be impounded needs to be an
instrument compulsorily registerable at the first instance and in
absence of the party who executed the same, the prayer for impounding
of the same only for the purpose of making the same admissible in
evidence is unacceptable.
14. Thus no merit is seen in the contention of the Plaintiff to
interfere with the impugned order. The C.M.P. is dismissed
accordingly.
15. It goes without saying that any such observation made by this
Court in present order would not affect the merits of the suit.
(B.P. Routray)
Judge
B.K. Barik/Secretary
C.M.P. No.590 of 2025 Page 8 of 8
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