Karnataka High Court
Shri. Datta Narayan Airache vs Shri Dattatraya Ganesh Khatavkar on 3 August, 2023
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NC: 2023:KHC-D:8228
WP No. 105184 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 3RD DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 105184 OF 2022 (GM-CPC)
BETWEEN:
SHRI DATTA NARAYAN AIRACHE,
AGE: 56 YEARS, OCC: BUSINESS,
R/O: NO.2390, KAMAT GALLI,
BELAGAVI-590005.
...PETITIONER
(BY SRI SOURABH HEGDE ADV. FOR
SRI SHREEVATSA HEGDE, ADVOCATES)
AND:
1. SHRI DATTATRAYA GANESH KHATAVKAR,
AGE: 81 YEARS, OCC: EX-SERVICEMAN,
R/O: NO.2873, MANNURKAR GALLI,
KHADE BAZAR, BELAGAVI-590001.
2. SMT. LATA DATTATRAYA KHATAVKAR,
AGE: 54 YEARS, OCC: HOUSEWIFE,
MOHANKUMAR
B SHELAR R/O: NO.2873, MANNURKAR GALLI,
KHADE BAZAR, BELAGAVI-590001.
Digitally signed by
MOHANKUMAR B
SHELAR
3. THE SALE OFFICER,
Location: DHARWAD MARATHA CO-OPERATIVE URBAN BANK LIMITED,
Date: 2023.08.08
12:55:20 -0700 BASAWAN GALLI, BELAGAVI-590001.
4. THE REGISTRAR,
DISTRICT CO-OPERATIVE SOCIETIES, BELAGAVI,
SAHAKARA ADALITA BHAVANA, JAKKERI HONDA,
BELGAUM CITY, BELGAUM-590001,
NEAR RAILWAY OVER BRIDGE.
5. THE MARATHA URBAN CO-OPERATIVE BANK LIMITED,
REPRESENTED BY ITS CHAIRMAN,
BASAVAN GALLI, BELAGAVI-590001.
...RESPONDENTS
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NC: 2023:KHC-D:8228
WP No. 105184 of 2022
(BY SRI SHIVAPRABHU S. HIREMATH, AGA FOR R4;
KUM. SHOBA A. KHANAPUR, ADV. FOR SRI SUNIL
S. DESAI, ADV. FOR R5;
NOTICE TO R1 TO R3 ARE SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI, SETTING ASIDE THE IMPUGNED ORDER DATED
11.11.2021 PASSED BY THE II ADDITIONAL CIVIL JUDGE AND JMFC,
BELAGAVI IN O.S.NO.1214/2010 VIDE ANNEXURE-A.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The captioned writ petition is filed by plaintiff No.1 assailing the order dated 11.11.2021, wherein Court has impounded the document on the ground that the agreement to sell is insufficiently stamped and has consequently referred the document to the District Registrar to determine the stamp duty prevailing in the year 1990. The said order is under challenge.
2. Heard learned counsel for the petitioner and learned counsel for respondents.
3. The plaintiff has instituted a suit for specific performance based on agreement dated 28.02.1990. The -3- NC: 2023:KHC-D:8228 WP No. 105184 of 2022 amendment to Karnataka Stamp Act was brought in the year 1995 with effect from 01.04.1995 and in terms of Article 5 (e) (i) of the Karnataka Stamp Act, delivery of a possession of a property under an agreement was held to be treated as conveyance in terms of Article 20 of the Karnataka Stamp Act. However, the agreement to sale in the present case on hand is dated 28.02.1990 and therefore, amended provision in terms of Article 5(e)(i) of the Karnataka Stamp Act, are not applicable to the present case on hand. The Hon'ble Apex Court in the case of T. Mohan Vs Kannammal and Another reported in (2002) 10 Supreme Court Cases 82, in an identical case held that provisions of Stamp Act in respect of a document executed pre-1995, a prescribed stamp duty payable is Rs.5/-. In the light of law laid down by Hon'ble Apex Court, the order under challenge is not sustainable on two grounds. The impugned order does not indicate as to whether learned Judge has taken cognizance of amendment provisions of Stamp Act or has applied Pre- Amendment Act prevailing as on date of execution of -4- NC: 2023:KHC-D:8228 WP No. 105184 of 2022 document. The order under challenge is also not sustainable as the learned Judge erred in referring the document to the Registrar to determine the Stamp duty. This Court in catena of judgment has held that if insufficiently stamped document is tendered in evidence, the Court has to impound document and also impose penalty.
4. Be that as it may, in the present case on hand prima-facie a stamp duty paid on the agreement is found to be Rs.20/-. Therefore, learned Judge erred in impounding the document.
5. For the reasons stated supra, writ petition is allowed.
6. Impugned order dated 11.11.2021 passed by II Additional Civil Judge and JMFC, Belagavi in O.S.No.1214/2010 vide Annexure-A, is set-aside. -5-
NC: 2023:KHC-D:8228 WP No. 105184 of 2022
7. The plaintiff is at liberty to proceed with the suit based on the suit document.
Sd/-
JUDGE AM List No.: 1 Sl No.: 10