Law:

Section:

(a) Stamp Act (II of 1899) .......... ..........-First Sched. Arts. 15 & 40..........Loan secured by company by mortgaging land..........Mortgage deed..........Payment of stamp duty..........Rate..........Possession of land not given to lender (mortgagee)..........Where possession of land was not given or agreed to be given (to the mortgagee), the stamp-duty shall be charged on the amount secured by such (mortgage) deed as was provided by Art.15 of the First Schedule of Stamp Act, 1899..........Possession of land, in the present case, had not been given to the mortgagee..........Words used in the agreement between the parties that "the mortgagor shall not without the prior written consent of the lender part with possession of the mortgage property" unmistakably showed that possession had not been given to the lender..........Lender's right to sell the mortgaged property without intervention of the Court would accrue only, if the mortgagor defaulted in payment of mortgage money and not otherwise..........Case of appellant company was, thus, covered by Art.15 and not Art.40(a) of the First Schedule of the Stamp Act, 1899 .......... Stamp duty had to be charged accordingly. (b) Stamp Act (II of 1899) .......... ..........-Sections 33, 38 & 48 & Chap. IV..........Examination and impounding of instruments..........Recovery of duties and penalties..........Plea raised by appellant-company was that Collector under S.48 of the Stamp Act, 1899 could recover the duties, penalties and other sums required to be paid under Chapter IV of the Stamp Act, 1899 (only) if the instrument had been produced in evidence and impounded on account of being deficiently stamped in view of the provisions contained in Sections 33 & 38 of the Stamp Act, 1899..........Validity..........Reading of S.33 of the Stamp Act, 1899 showed that every person incharge of a public office except an officer of police, before whom any instrument chargeable with duty was 'produced' or 'comes in the performance of his functions' shall, if it in his opinion was not duly stamped, impound the same..........Words "produced or comes in the performance of his functions" used in the said section…

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