Karnataka High Court
Suman W/O Suresh Palankar, vs Vinayaka S/O Nagappa Palankar, on 14 August, 2013
Equivalent citations: AIR 2015 (NOC) 93 (KAR.) (DHARWAD BENCH), 2014 (2) AKR 761
Author: Aravind Kumar
Bench: Aravind Kumar
:1:
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 14TH DAY OF AUGUST, 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
WRIT PETITION NO. 60926/2011 (GM-CPC)
C/W
WRIT PETITION NOS. 65188/2009, 65189/2009,
76790/2013 AND 79911/2013 (GM-CPC)
IN W.P NO. 60926/2011:
BETWEEN:
SUMAN
W/O SURESH PALANKAR,
AGE: 52 YEARS,
OCC: HOUSEHOLD,
R/O H. NO. 49,
NAGAPRASAD BUILDING,
SHIVAPUR COLONY,
DHARWAD. ... PETITIONER
(BY SRI.ARAVIND D KULKARNI, ADV)
AND:
1. VINAYAKA
S/O NAGAPPA PALANKAR,
AGE: 80 YEARS,
OCC: AGRICULTURE & BUSINESS,
R/O SHIVAPUR COLONY,
HOSAYALLAPUR,
:2:
DHARWAD.
2. KUMARI. SUCHITA
D/O SURESH PALANKAR,
AGE: 25 YEARS,
OCC: HOUSEHOLD,
R/O H. NO. 49,
NAGAPRASAD BUILDING,
SHIVAPUR COLONY, DHARWAD.
3. KUMAR. SANTOSH
S/O SURESH PALANKAR,
AGE: 23 YEARS,
OCC: BUSINESS,
R/O H. NO. 49,
NAGAPRASAD BUILDING,
SHIVAPUR COLONY,
DHARWAD.
4. DISTRICT REGISTRAR
I FLOOR, MINI VIDHANA SOUDHA
BUILDING, DHARWAD. ... RESPONDENTS
(By Sri S N BANAKAR, ADV FOR R-1; R-2 & 3 NOTICE
DISPENSED WITH. SMT K VIDYAVATHI, AGA FOR R-4)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDER AT ANNEXURE-C,
DATED: 20/11/2010 PASSED BY THE CIVIL JUDGE
(JR.DN.) AND PRINCIPAL JMFC., AT DHARWAD, IN
O.S.NO.805/2009; CONSEQUENTIALLY ALSO QUASH
THE ORDER DATED:18/01/2011 PASSED BY THE
DISTRICT REGISTRAR, DHARWAD, PRODUCED AT
ANNEXURE-D AND DIRECT THE TRIAL COURT TO
DETERMINE THE STAMP DUTY AND PENALTY IN STRICT
COMPLIANCE WITH THE KARNATAKA STAMP ACT.
:3:
IN WRIT PETITION NO. 65188/2009:
BETWEEN:
MODERN EDUCATION SOCIETY,
REGD.NO.46/75-76,
BIJAPUR
BY ITS PRESIDENT SRI.GOKULDAS
S/O BALARAM SHAH,
AGE:75 YEARS,
OCC: AGRICULTURE & BUSINESS,
R/O MUDHOL,
DIST: BAGALKOT. ... PETITIONER
(By Sri: V P KULKARNI, ADV)
AND:
1. SADASHIV
S/O VENKAPPA DASARADDI,
R/O MAHARAJA COLONY,
MUDHOL,
DIST:BAGALKOT.
2. SHARADA
D/O SADASHIV DASARADDI,
AGE:MAJOR, OCC:AGRICULTURE,
R/O MAHARAJA COLONY,
MUDHOL,
DIST: BAGALKOT.
3. GEETA
D/O SADASHIV DASARADDI,
AGE: MAJOR, OCC: AGRICULTURE,
R/O MAHARAJA COLONY,
:4:
MUDHOL,
DIST: BAGALKOT.
4. SEEMA
D/O SADASHIV DASARADDI,
AGE: MAJOR,
OCC: AGRICULTURE,
R/O MAHARAJA COLONY,
MUDHOL,
DIST: BAGALKOT.
5. SUJATA
D/O SADASHIV DASARADDI,
AGE: MAJOR,
OCC: AGRICULTURE,
R/O MAHARAJA COLONY,
MUDHOL,
DIST: BAGALKOT. .. RESPONDENTS
(By Sri. M G NAGANURI & S P PATIL, ADV FOR R-2 TO 5
R-1 SERVED
SMT VIDYAVATHI K, AGA FOR REVENUE)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDER PASSED BY THE CIVIL
JUDGE (SR.DN) JAMKHANDI SITTING AT MUDHOL DTD.
20/8/09 VIDE ANN-D, PASSED ON THE I.A.NO.III AND
ALSO THE IMPUGNED ORDER DTD. 21/8/09 VIDE ANN-
E, PASSED BY THE CIVIL JUDGE (SR.DN) JAMCHANDI
AT MUDHOL AND DIRECT THE DEPUTY COMMISSIONER
(STAMPS) BAGALKOT TO CALCULATE THE DEFICIENT
STAMP DUTY AND ALSO TO LEVY PENALTY AS PER THE
PROVISIONS OF THE KARNATAKA STAMP ACT.
:5:
IN WRIT PETITION NO. 65189/2009:
BETWEEN:
MODERN EDUCATION SOCIETY,
REGD.NO.46/75-76, BIJAPUR
BY ITS PRESIDENT SRI.GOKULDAS
S/O BALARAM SHAH,
AGE: 75 YEARS,
OCC: AGRICULTURE & BUSINESS,
R/O MUDHOL,
DIST: BAGALKOT. ... PETITIONER
(By Sri : V P KULKARNI, ADV)
AND:
1. SMT.PADMAVATI
W/O SADASHIV DASARADDI
R/O MAHARAJA COLONY,
MUDHOL,
DIST:BAGALKOT.
2. SHARADA
D/O SADASHIV DASARADDI,
AGE: MAJOR,
OCC: AGRICULTURE,
R/O MAHARAJA COLONY,
MUDHOL
DIST: BAGALKOT.
3. GEETA
D/O SADASHIV DASARADDI,
AGE: MAJOR,
OCC: AGRICULTURE,
R/O MAHARAJA COLONY,
:6:
MUDHOL
DIST:BAGALKOT.
4. SEEMA
D/O SADASHIV DASARADDI,
AGE: MAJOR,
OCC: AGRICULTURE,
R/O MAHARAJA COLONY,
MUDHOL,
DIST: BAGALKOT.
5. SUJATA
D/O SADASHIV DASARADDI,
AGE: MAJOR,
OCC: AGRICULTURE,
R/O MAHARAJA COLONY,
MUDHOL,
DIST: BAGALKOT. ... RESPONDENTS
(By Sri: M.G.NAGANURI, ADV FOR R-1 TO 5
SMT. K VIDYAVATHI, AGA FOR REVENUE )
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDER PASSED BY THE CIVIL
JUDGE(SR.DN) JAMKHANDI AT MUDHOL DTD. 20/8/09
VIDE ANN-D, PASSED ON THE I.A.NO.III AND ALSO THE
IMPUGNED ORDER DTD. 21/8/09 VIDE ANN-E, PASSED
BY THE CIVIL JUDGE(SR.DN), JAMKHANDI SITTING AT
MUDHOL AND DIRECT THE DEPUTY
COMMISSIONER(STAMPS) BAGALKOT TO CALCULATE
THE DEFICIENT STAMP DUTY AND ALSO TO LEVY
PENALTY AS PER THE PROVISIONS OF THE KARNATAKA
STAMP ACT.
:7:
IN WRIT PETITION NO. 76790/2013:
BETWEEN:
MOHAMMED
S/O. KAYARAMIYA MOODI,
AGE: 77 YEARS, OCC: NIL,
R/O. RAMAN BYAL, SIRSI,
TQ: SIRSI. ... PETITIONER
(By Sri: SADIQ N GOODWALA, ADV)
AND:
1. RIYAZ AHMED
S/O. ABDUL RAHUF,
AGE: 56 YEARS, OCC: BUSINESS,
R/O. RAHAMATH COMPLEX,
KHAZI GALLI, SIRSI.
2. SALEEM AHMED
S/O. ABDUL RAHUF,
AGE: 46 YEARS, OCC: BUSINESS,
R/O. RAHAMATH COMPLEX,
KHAZI GALLI, SIRSI.
3. SALAUDDIN
S/O. ABDUL RAHUF,
AGE: 40 YEARS, OCC: BUSINESS,
R/O. RAHAMATH COMPLEX,
KHAZI GALLI, SIRSI.
4. SAYAD AHMED
S/O. ABDUL RAHUF
AGE: 33 YEARS, OCC: BUSINESS,
R/O. RAHAMATH COMPLEX,
:8:
KHAZI GALLI, SIRSI.
5. MOHAMMED RAFIQ
S/O. ABDUL RAHUF,
AGE: 32 YEARS, OCC: BUSINESS,
R/O. RAHAMATH COMPLEX,
KHAZI GALLI, SIRSI.
6. RAGIYABI
W/O. ABDUL RAHUF,
AGE: 72 YEARS, OCC: BUSINESS,
R/O. RAHAMATH COMPLEX,
KHAZI GALLI, SIRSI.
7. IRSHAD BUDAN SARTURKAR,
AGE: 52 YEARS,
OCC: HOUSEHOLD WORK,
R/O. SALAMATH NAGAR ROAD,
NEHRU ANGAR, SIRSI.
8. FATHIMA MOHAMMED SALIM LOEHAR,
AGE: 50 YEARS,
OCC: HOUSEHOLD WORK,
R/O. NEAR STATE BANK,
KANCHUGAR GALLI, HANAGAL,
TQ: HANGAL, DIST: HAVERI.
9. RUKSHANA MOHAMMED GOUSA PATEL,
AGE: 42 YEARS,
OCC: HOUSEHOLD WORK,
R/O. KAVALAKOPPA,
TQ: MUNDAGODA.
10. AKTHAR NISAR AHMED,
AGE: 35 YEARS,
OCC: HOUSEHOLD WORK,
R/O. P AND T NAGAR,
:9:
NEAR MARIKAMBA NAGAR,
SIRSI.
11. RAJABI ABDUL GAFFAR MOODI,
AGE: 72 YEARS,
OCC: HOUSEHOLD WORK,
R/O. INFRONT OF SHIVANI HOTEL,
SIRSI.
12. FAYAROJA
W/O. NOOR AHAMED JADE,
AGE: 54 YEARS,
OCC: HOUSEHOLD WORK,
R/O. NEAR OLD POLICE STATION JADE,
TQ: SIRSI.
13. ISMAIL
S/O. ABDUL GAFFAR MOODI
AGE: 50 YEARS,
OCC: BUSINESS,
R/O. RAHAMATH COMPLEX,
KHAZI GALLI, TQ: SIRSI.
14. IKBAL GAFFAR MOODI,
AGE: 50 YEARS,
OCC: BUSINESS,
R/O. INFRONT OF SHIVANI HOTEL,
TQ: SIRSI.
15. JAYEDA
W/O. HAZARATHSAB CHALLAL,
AGE: 48 YEARS,
OCC: HOUSEHOLD WORK,
R/O. SUBHAS CIRCLE,
KADIGI ADHE, HAVERI.
: 10 :
16. FAMIDA
W/O. GOUSAMODDIN,
AGE: 46 YEARS,
OCC: HOUSEHOLD WORK,
R/O. AMBEDKAR CIRCLE,
STATION ROAD, HAVERI.
17. ISAK ABDUL GAFFAR MOODI,
AGE: 44 YEARS,
OCC: BUSINESS,
R/O. RAHAMATH COMPLEX,
KHAZI GALLI, SIRSI. ... RESPONDENTS
(By Sri. ANANT R HEGDE FOR R2-R4, R-13, R-14 & R-17
PETITION DISMISSED AGAINST R-5 TO R-12, R-15, R-16)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DTD.29.11.2012 PASSED BY
PRINCIPAL CIVIL JUDGE SIRSI, IN OS.NO.79/2010 VIDE
ANNEXURE-C.
IN WRIT PETITION NO. 79911/2013:
BETWEEN:
1. BHEEMAPPA
S/O. DODDAHANUMAPPA KOLATI,
AGE: 76 YEARS,
OCC: AGRICULTURE,
R/O. KARUR VILLAGE,
TQ: RANEBENNUR,
DIST: HAVERI.
2. HONNAPPA
S/O. BHEEMAPPA KOLATI,
: 11 :
AGE: 49 YEARS,
OCC: AGRICULTURE,
R/O. KARUR VILLAGE,
TQ: RANEBENNUR DIST: HAVERI.
3. DYAVAPPA
S/O. BHEEMAPPA KOLATI,
AGE: 47 YEARS,
OCC: AGRICULTURE,
R/O. KARUR VILLAGE,
TQ: RANEBENNUR,
DIST: HAVERI. ... PETITIONERS
(By Sri. M H PATIL, ADV., )
AND:
MOOGAPPA
S/O. BHARMAPPA SURVE,
AGE: 85 YEARS,
OCC: AGRICULTURE,
R/O. KARUR VILLAGE,
TQ: RANEBENNUR,
DIST: HAVERI. ... RESPONDENT
(By Sri. A S PATIL, ADV., )
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER PASSED BY THE PRINCIPAL CIVIL
JUDGE(JR.DN.) RANEBENNUR ON I.A.NO.2 IN
O.S.NO.396/2011 DATED: 28/03/2013, VIDE
ANNEXURE-F.
THESE WRIT PETITIONS COMING ON FOR
DICTATING JUDGMENT, THIS DAY, THE COURT MADE
THE FOLLOWING:
: 12 :
ORDER
REGARDING W.P.NO.60926/2011:
Petitioner who is defendant No.1 in O.S.No.805/2009 is seeking for quashing of order dated 20.11.2010 Annexure-C passed by Civil Judge (Jr. Dn.) Dharwad and order dated 18.01.2011 passed by the District Registrar, Dharwad, at Annexure-D whereunder trial Court has held that agreement of sale dated 23.03.2000 is insufficiently stamped by order dated 20.10.2010 and has directed the registry to refer the said document to the Sub-Registrar, Dharwad, to collect deficit stamp duty and subsequently by impugned order dated 20.11.2010 referred the said agreement of sale to the District Registrar, Dharwad, to collect stamp duty as per law. Pursuant to which District Registrar by order dated 18.01.2011 Annexure-D has impounded the document under Section 33 of the Karnataka Stamp Act, 1957 (hereinafter referred to as 'Stamp Act' for brevity) and : 13 : ordered for collection of stamp duty of Rs.30,000/- under Article 5(e)(1) by levying penalty of Rs.5,000/- in exercise of his power under Section 39 of the Karnataka Stamp Act, 1957.
2. It is contended by Mr.Aravind D.Kulkarni, learned counsel appearing for the petitioner that under Section 33 of the Karnataka Stamp Act, 1957 when a document which is insufficiently stamped or not duly stamped is produced in a proceedings before Court, it has to be impounded by such Court itself and duty and penalty is to be collected and as such trial court could not have referred the same to the District Registrar, Dharwad, for calculation of stamp duty with penalty. He would also contend that proviso to Section 34 of the Act makes it clear that while impounding a document, Court has no discretion except to impose penalty of 10 times the proper duty or deficient portion thereof, since Section 34 of the Act mandates that no document can be admitted in : 14 : evidence for any purpose unless it is duly stamped under Section 34 of the Act. As such, he contends Court below committed an error in referring the disputed document to the District Registrar, Dharwad for collecting the duty since Section 43 of the Stamp Act does not envisage any such reference. He would further contend that District Registrar without giving notice to the parties and without hearing the parties has proceeded to collect the stamp duty exercising his discretionary power under Section 39 though he did not have jurisdiction to impose lesser penalty and same is impermissible in law. On these grounds, he seeks for setting aside the order dated 20.11.2010 Annexure-C passed by the trial court as well as the consequential order of determination by the District Registrar, Dharwad dated 18.01.2011 Annexure-D. REGARDING W.P.Nos. 65188/2009 & 65189/2009:
3. Petitioners who are plaintiffs in the trial court in O.S.No.101/2002 and O.S.No.100/2002 respectively : 15 : are before this Court seeking for quashing of the order dated 20.08.2009 Annexure-D whereunder applications IA No.III filed by the plaintiffs under Section 33(1) of the Karnataka Stamp Act,1957 praying to impound the agreement of sale dated 03.07.1997 and sending it to the Deputy Commissioner (Stamps), Bagalkot, for taking necessary action came to be allowed in part namely, it was ordered to be impounded and prayer to send the document to the Deputy Commissioner (Stamps) came to be rejected by order dated 20.08.2009 Annexure-D and pursuant to the said order, calculation has been made by the Registry of trial Court and petitioners have been directed to pay stamp-duty and penalty of Rs.5,20,300/-
and Rs.6,57,800/- respectively by 21/8/2009, contending interalia that when an application is voluntarily filed under Section 33(1) of the Karnataka Stamp Act, 1957 by the plaintiffs in both the suits to impound the agreement of sale dated 3/7/1997, for being referred to the Deputy Commissioner (Stamps) Bagalkot, for collecting deficit : 16 : Stamp duty and penalty, trial Court could not have allowed the application in part, namely, it could not have impounded the document by itself and it could not have directed the registry to collect penalty and deficit stamp duty, without referring the said document to the Deputy Commissioner for collection of Stamp Duty and penalty and as such, order of the trial Court is erroneous and is liable to be set aside.
4. Mr.V.P.Kulkarni, learned Counsel appearing for petitioner would contend that Civil Court has no jurisdiction to collect stamp duty and levy penalty and same has to be done by the Deputy Commissioner (Stamps) and the said discretion has to be exercised by him. He would also elaborate his submission by contending that maximum penalty contemplated under Section 39 of the Karnataka Stamp Act, 1957 need not be levied by the Deputy Commissioner and he contends that trial Court after passing the order allowing IA No.III in : 17 : part, ought not to have directed the registry to calculate the deficit stamp duty by levying penalty of 10 times the Stamp duty and said calculation made by the Registry of the trial Court is contrary to the statutory provisions, namely, Sections 34 and 39 of the Stamp Act, and the law laid down by this Court in the case of K.GOVINDEGOWDA VS. AKKAYYAMMA AND ANOTHER reported in (2011) 4 KCCR 2799 and as such, he seeks for setting aside the order passed by trial Court and allowing application filed by the plaintiffs before the trial Court in its entirety or in the alternate he seeks for a direction to the trial Court to collect stamp duty and minimum penalty as held by this Court in GOVNIDEGOWDA'S case. He would submit that trial Court even otherwise has power under Section 34 to collect the duty and penalty by itself and not necessarily levying penalty at the rate of 10 times the duty as prescribed under Section 39 in view of the law laid down by this Court in GOVNIDEGOWDA's case holding that provision of Sections 34 and 39 of the Stamp Act being : 18 : discriminatory in nature, it came to be so read down in the said judgment and hence, he prays for allowing the application IA No.III filed by the plaintiffs before the trial Court to impound the document by Deputy Commissioner (Stamps) or to collect the stamp duty and impose penalty by the trial Court itself as held in GOVINDEGOWDA's case referred to supra.
REGARDING W.P.NO.76790/2013:
5. Petitioner, who is the plaintiff in O.S No.79/2010, has sought for quashing of the order dated 29/11/2012, Annexure-C passed by the Prl. Civil Judge, (Jr.Dn), Sirsi, whereunder unregistered partition deed when sought to be marked during the course of further evidence of defendants it was objected to by the plaintiff on the ground that it was not registered, and as such trial Court has directed payment of Stamp duty of Rs.1,000/-
and levied penalty of Rs.2,000/- i.e. twice the amount of the duty.
: 19 :6. It is contended that trial Court has not recorded proper reasons for levying lesser penalty and it has exceeded its jurisdiction by imposing penalty less than what is prescribed under Section 34 of Stamp Act by relying upon the judgment in K.GOVINDEGOWDA VS.
AKKAYYAMMA AND ANOTHER reported in (2011) 4 KCCR 2799 ignoring the Division Bench judgment of this court reported in 2008(3) KCCR 2061 (DB).
7. It is contended by Mr.Ananth Hegde, learned Counsel appearing for respondent that parties to the lis are Muslims and they are governed by Mohammedan law and when there is oral partition which was subsequently reduced into writing, it need not be registered and there is no question of payment of any stamp duty or penalty and as such defendant's had claimed for exemption from payment of Stamp duty and penalty and as such he prays for dismissal of the Writ Petition.
: 20 :RE: W.P.NO.79911/2013:
8. Petitioners are the defendants 1 to 3 in O.S.No.396/2011 filed for specific performance of agreement to sell dated 12.04.2001. Written Statement came to be filed by the defendants denying the averments made in the plaint. On account of a plea having been raised in the written statement that agreement is not duly stamped, an application IA No.II came to be filed by the plaintiff under Section 34 of Karnataka Stamp Act, 1957 seeking reference of said agreement of sale dated 12.04.2001 to the concerned officer of Court for determination of deficit Stamp Duty and penalty. Said application was opposed by defendants by filing detailed objections. Trial Court after considering the rival contentions allowed the said application by impugned order dated 28.03.2013 Annexure-F and directed the plaintiff to pay deficit stamp duty of Rs.26,800/- along with penalty of Rs.5/- by relying upon judgment of : 21 : co-ordinate Bench of this Court in the case of K.GOVINDEGOWDA VS. AKKAYYAMMA AND ANOTHER and others reported in 2011 (4) KCCR 2799.
9. Aggrieved by the order dated 28.03.2013 Annexure-F defendants have preferred this Writ Petition contending interalia that trial Court had failed to take note of the judgment of Division Bench in the case of J.S. PARAMESH V/S SMT. INDRAMMA reported in 2008 (3) KCCR 2061 and trial Court was not empowered to levy penalty of `5/- it is contrary to the provisions of Karnataka Stamp Act, 1957. Learned Counsel appearing for petitioners reiterates the grounds urged in the writ petition and prays for quashing the impugned order. Per contra Sri.A.S.Patil, learned Counsel appearing for respondent/plaintiff would support the impugned order and prays for dismissal of the writ petition.
: 22 :10. Having heard the learned advocates appearing for the parties, I am of the considered view that following points would arise for my consideration:-
(i) Whether the Civil Court having authority to receive an instrument in evidence is empowered to impound such an instrument produced by the parties in the course of the proceedings in exercise of its power under Section 33 of the Karnataka Stamp Act, 1957 when it is not duly stamped or insufficiently stamped?
(ii) Whether the Court has power to impound any document/instrument under Section 33 and collect duty and penalty as provided under Section 34 without sending the same for being adjudicated by the jurisdictional Deputy Commissioner (Stamps).
(iii) Under what circumstances the Deputy Commissioner of Stamps is empowered to impound an instrument and levy duty and impose penalty?
AND Whether discretionary power available to the Deputy Commissioner Under Section 39 of levy penalty of Five Rupees is also available to a Court while exercising power under Section 34 of the Karnataka Stamp Act?
: 23 :(iv) Whether Court or other Authority while admitting an instrument in evidence finds such instrument is not duly stamped has to levy penalty of 10 times the duty payable as provided under clause (a) to proviso to Section 34 or it can levy lesser penalty as leviable by the Deputy commissioner under Clause
(b) of sub-section (1) of Section 39.
11. In order to answer the points formulated hereinabove, I am of the considered view that following provisions of The Karnataka Stamp Act, 1957 which has a bearing on these points are required to be delved upon and as such they are extracted herein below:-
PROVISIONS OF KARNATAKA STAMP ACT, 1957 "2(j). "Instrument" includes every document [and record created or maintained in or by an electronic storage and retrieval device or media] by which right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded".
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 a : 24 : public office, except an officer of police, before whom any instrument, chargeable in his opinion, with duty, 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 it is stamped with a stamp of the value and description required by the law in force in the State of Karnataka when such instrument 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;
(b) in the case of a Judge of the High Court, the duty of 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, the Government may determine.__ : 25 :
(a) what offices shall be deemed to be public offices; and
(b) who shall be deemed to be persons in-charge of public offices.
34. 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 not being an instrument chargeable [with a duty not exceeding fifteen paise] only, or a mortgage of crop [Article [35](a) of the Schedule chargeable under clauses (a) and (b) of section 3 with a duty of twenty-five paise 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 exceeds five rupees, of a sum equal to ten times such duty or portion;
(b) where a contract or agreement of any kind is effected by correspondence consisting : 26 : 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;
(c) 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;
(d) 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 [Deputy Commissioner] as provided by section 32 or any other provision of this Act [and such certificate has not been revised in exercise of the powers conferred by the provisions of Chapter VI].
37. 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 34 or of duty as provided by section 36, he shall send to the [Deputy Commissioner] 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 : 27 : send such amount to the [Deputy Commissioner] 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 [Deputy Commissioner].
39.[Deputy Commissioner's] power to stamp instruments impounded.-
(1) When the [Deputy Commissioner] impounds any instrument under section 33, or receives any instrument sent to him under sub-section (2) of Section 37, not being an instrument chargeable [with a duty not exceeding fifteen paise] only or a mortgage of crop [Article [35](a) of the Schedule] chargeable under clause (a) or (b) of Section 3 with a duty of twenty-five paise, he shall adopt the following procedure:-
(a) if he is of opinion that such instrument is duly stamped, or is not chargeable with duty, he shall certify by endorsement thereon that it is duly stamped, or that it is not so chargeable, as the case may be;
(b) if he is of opinion that such instrument is chargeable with duty and is not duly stamped he shall require the payment of the proper duty or the amount required to make up the same, together with a penalty of five rupees; or if he thinks fit, an amount not exceeding ten times the amount of the proper duty or of the deficient portion : 28 : thereof, whether such amount exceeds or falls short of five rupees:
Provided that, when such instrument has been impounded only because it has been written in contravention of Section 13 or Section 14, the [Deputy Commissioner] may, if he thinks fit, remit the whole penalty prescribed by this section.
(2) [Subject to any orders made under Chapter VI, every certificate] under clause (a) of sub-section (1) shall, for the purposes of this Act be conclusive evidence of the matters stated therein.
(3) Where an instrument has been sent to the [Deputy Commissioner] under sub-
section (2) of Section 37, the [Deputy Commissioner] shall, when he has dealt with it as provided by this section, return it to the Impounding Officer.
ANALYSIS OF STATUTORY PROVISIONS:
12. "Section 2 (j) defines what an "instrument"
means; it includes every document by which right or liability is or purports to be, created, transferred, limited, extended, extinguished or recorded". Sub-section (1) of Section 33 of the Act empowers such person or authority having by law an authority to receive in evidence to : 29 : impound the same, if such instrument is not duly stamped, when it is produced or comes in the performance of his function. In order to ascertain as to whether an instrument is duly stamped or not, such person or authority can examine such instruments. The exceptions which are carved out under the proviso to sub-section (2) of Section 33 may not be relevant in so far as the facts on hand are concerned and as such they are not delved upon in these petitions.
13. Section 34 of the Act prohibits from admitting in evidence any instrument if not duly stamped when such instrument is chargeable with duty is sought to be produced in evidence. No discretion is vested with the authority impounding the document in the matter of collecting duty. The duty payable on the instrument is prescribed by statute. Proviso to clause (a) of Section 34 of the Act provides for the mode and manner in which such stamp duty and prescribed penalty is to be imposed.
: 30 :If a party seeks for an document or instrument not duly stamped to be admitted in evidence, then, necessarily mandate of clause (a) has to be followed. Section 34 puts a complete embargo or bar against admissibility of such instrument which is not stamped or which instrument is not duly stamped and such document or instrument will not be admitted in evidence unless it is duly stamped.
Proviso (b) to (d) of Section 34 are not relevant insofar as the present cases on hand are concerned and as such these provisions are not delved upon in these petitions.
14. When Deputy Commissioner impounds any instrument under Section 33 or when he receives any instrument sent to him under sub-section (2) of Section 37 he has to adopt the procedure prescribed under Section 39 of the Act and he can certify that instrument is duly stamped or that it is not so chargeable under Clause
(a). However, if he is of the opinion that such instrument is chargeable with duty and is not duly stamped he shall : 31 : require the payment of the proper duty or the amount required to make up the same together with a penalty of Five Rupees or if he thinks fit an amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof as required under clause (b) of Sub-section (1) of Section 39. Sub-section (3) of Section 39 mandates that the Deputy Commissioner after having dealt with the instrument when it has been sent under Sub-section (2) of Section 37 return it to the impounding officer after adjudication thereof.
15. Interpretation of these provisions namely, Sections 34, 37 and 39 have been the subject matter of debate in various judgments of this Court and it has been held as under:-
(1) 1969(2) MYS.LJ 299 - LAKSHMI NARAYANACHAR V/S NARAYAN AND ANOTHER "12. Ordinarily, the duty or power of assessing the amount of stamp duty or collecting stamp duty and penalties is invested by the Act in special authorities controlled ultimately by the Chief Controlling : 32 : Authority. But the proviso to S.34 invests Courts with the special jurisdiction of adjudicating upon stamp duty and imposing penalty in certain cases, and those cases are when a party to a litigation before it tenders a document in evidence. The normal rule in the case of Courts is that when a jurisdiction is invested in them, it is invested for the purposes of the statute which confers that jurisdiction and that Courts should not abdicate such jurisdiction.
13. The occasion for the exercise of jurisdiction under the proviso to S.34 arises when a document is actually tendered in evidence; but it might have been produced much earlier by one or the other of the parties to the litigation. The earlier production, taken along with the intention of such production, viz., the intention of tendering it in evidence, necessarily leads to the normal inference that the document is produced for the purpose of being tendered in evidence and therefore is produced before Court in the course of performance of its function of taking evidence. It is the combination of these circumstances that imposes upon Court the duty of impounding documents under sub-sec(1) of Section 33.
14. The position therefore, according to the scheme of the statute is that when a document chargeable to duty and produced into Court in connection with a proceedings before it is found by that court to be either not stamped at all or is insufficiently : 33 : stamped, it is bound to impound it. But the idea of impounding is to enforce collection of duty or deficient duty together with penalty. When a document has come before Court for the purpose of being used in evidence, the first jurisdiction of determining the duty and penalty is that of the court. It is only when that stage has crossed and the document is not tendered in evidence that it ceases to be a document impounded by the Court which by law has authority to receive evidence and has admitted the same in evidence; though the first part of the description applies to the document, the second part has ceased to be applicable. It is then and then only that a document comes within the description of "in every other case" contained in sub-sec (2) of S.37.
19. The correct position therefore, in law, would be that documents which are liable to be impounded should be impounded as soon as their liability to be impounded comes to the notice of the Presiding Officer. He should retain them till the date of the trail. If they are tendered in evidence, he should act under the proviso to Section 34. Section 37(1) imposes a duty on him to send an authenticated copy of such instrument together with a certificate stating the amount of duty and penalty levied in respect thereof to the Deputy Commissioner. If they are not admitted in evidence, he will then act under sub-section (2) of Section 37 and send the original document to the Deputy Commissioner for assessment of duty and penalty."
: 34 :(2) 2000(4) KAR.L.J. 55- K. AMARNATH V/S SMT. PUTTAMMA "11. A combined reading of Sections 33, 34, 35, 37 and 41 of the Karnataka Stamp Act requires the following procedure to be adopted by a Court while considering the question of admissibility of a document with reference to the Stamp Act: (a) when a document comes up before the Court, it has to examine and determine whether it is properly stamped. When the other side objects to it, the Court should consider such objection and hear both sides; (b) after hearing, if the Court comes to the conclusion that the document has been duly stamped, it shall proceed to admit the document into evidence; (c) on the other hand, if the Court comes to the conclusion that the document is not stamped or insufficiently stamped, it shall pass an order holding that the document is not duly stamped and determine the Stamp duty/deficit stamp duty and penalty to be paid and fix a date to enable the party who produces the document to pay the Stamp duty/deficit Stamp duty plus penalty; (d) if the party pays the duty and penalty the Court shall certify that proper amount of duty and penalty has been levied and record the name and address of the person paying the said duty and penalty and then admit the document in evidence as provided under Section 41(2); and the Court shall send an authenticated copy of the instrument to the District Registrar together with a Certificate : 35 : and the amount collected as duty and penalty, as provided under Section 37(1); (e) if the party does not pay the duty and penalty, the Court will have to pass an order impounding the document and send the instrument in original, to the District Registrar for being dealt with in accordance with law as per Section 37(2) of the Karnataka Stamp Act.
12. The admissibility of the document should also be examined with reference to Section 49 of Indian Registration Act, that is whether it relates to an immovable property requiring registration under Section 17 of Registration Act or any provision of Transfer of Property Act or whether it confers any power to adopt.
13. The deference between Section 34 of the Karnataka Stamp Act and Section 49 of the Registration Act should also be borne in mind. Section 34 says "no instrument chargeable with duty shall be admitted in evidence for any purpose, or shall be acted upon, registered or authenticated by. . . unless such instrument is duly stamped". Subject to the provision enabling the Court to collect the deficit Stamp duty, the bar under Section 34 is absolute and an instrument which is not duly stamped cannot be admitted at all in evidence for any purpose. On the other hand, Section 49 of the Registration Act which deals with the effect of non-registration of documents provides that if a document which is required to be registered under law is not registered, then such document shall not : 36 : affect any immovable property comprised therein, nor can it confer any power to adopt, nor can it be received as evidence of any transaction affecting such property or conferring such power. But the proviso to Section 49 provides that an unregistered instrument may be received as evidence of a contract in a suit for specific performance or as evidence of part performance of a contract for the purpose of Section 53-A of Transfer of Property Act or as evidence of any collateral transaction not required to be effected by registered instrument. For example, if a sale deed is executed on a white paper and is not stamped, it can neither be admitted in evidence nor be used for any purpose. But if a sale deed is executed on requisite stamp paper but is not registered and the executant refuses to admit registration, then the purchaser has a right to file a suit for specific performance, and rely on the sale deed, even though it was not registered, as evidence of the contract for sale. Thus, though both Section 34 of the Stamp Act (corresponding to Section 35 of the Indian Stamp Act) and Section 49 of the Registration Act, both bar the document being received as evidence, the bar is absolute under Stamp Act (unless deficit duty and penalty is paid) and the bar is not absolute under Registration Act.
(3) 2003(1) Kar.L.J. 518- MAHADEVA V/S THE COMMISSIONER, MYSORE CITY CORPORATION AND OTHERS "10. The only other question that was argued : 37 : by Mr. Shetty was whether the amount of duty and penalty on the sale deed relied upon by him could be determined by the Court itself or a reference to the Registrar of Stamps was necessary. There is no provision in the Karnataka Stamp Act, 1957, nor has Mr. Shetty brought any to my notice which would envisage a reference to the Registrar of Stamps for determining the duty payable on any instrument. The scheme of Section 34 of the Karnataka Stamp Act, 1957, also does not envisage any such reference being made before the document could be marked. The amount of duty payable on the sale deed (in the absence of any material to show that the property had been undervalued) is relatable to the consideration that was paid and received by the parties to the transaction. The penalty amount leviable on the instrument also didn't require or call for any enquiry which could possibly call for a reference to the Registrar. The Court below was therefore justified in holding that the duty payable on the instrument as also the penalty had to be calculated by the Court and not by the Registrar as argued by the plaintiff."
(4) 2008 (3) KCCR 2061 (DB)- J.S. PARAMESH V/S SMT. INDRAMMA "3. The impugned order was passed by the Trial Court in exercise of the power under the proviso to Section 34 of the Karnataka Stamp Act, 1957. According to Clause (a) of the said proviso, when the amount of the : 38 : proper duty or deficient portion thereof exceeds five rupees, the penalty to be imposed is a sum equal to ten times such duty or portion. There is no discretion granted to the Court to impose a lesser penalty. Hence the observation contained in the order dated 8.12.2005 in Writ Petition No.43172/2004 that the Courts have the power to impose as penalty a lesser amount than ten times the amount of proper duty or deficient portion is not correct. The observation is contrary to the clear provisions contained in the proviso to Section 34 of the Karnataka Stamp Act, 1957."
(5) 2013 (1) Kar.LJ 374 (DB)-MISS SANDRA LESLEY ANNA BARTELS V/S MISS P. GUNAVATHY "10. The respondent's Counsel has also relied upon another judgment of this Court in S.Suresh vs. L.Pothe Gowda and Others, wherein the learned Single Judge while dealing with Section 34 came to the conclusion, under what circumstances a document can be impounded when the same is tendered in the evidence. Considering all the three judgments relied upon by the respective parties and considering the provisions of Section 33 and 34, we are of the view that this Court in Lakshminarayanachar's case and K.Dinesh's case while considering the provisions of Section 33 has clearly held that, a power is vested in the Court to impound the document if it is insufficiently stamped the moment it is produced before the Court. Under Section 34 of the Act, when such a document is to be : 39 : received in evidence, the Court has got powers to impound the document before admitting the document.
11. There are two different circumstances under the Stamp Act for impounding a document: (1) the Court has power to impound the document, moment it appears to the Court that such instrument is not duly stamped and (2) or to wait till such document is tendered in the evidence. A combined reading of Section 33 and 34 clearly reveal that a discretion is granted to the Court either to impound the document under Section 33 before the same is tendered in evidence and even if a document is not impounded under Section 33, the Court is bound to impound the document when the same is tendered in the evidence under Section
34. In other words, the Court cannot say that it will wait till the document is tendered in the evidence. It is only an option given to Court to exercise the power under Sections 33 and 34 but the difference between Sections 33 and 34 is that, Section 34 can be enforced by a Court when a document has to be received in the evidence but Section 33 can be invoked not only by the court, but by every person in- charge of a public office. A person in-charge of a public office has no power to exercise the power vested under Section 34 of the Act.
12. Court cannot say that it would impound the document only when the document is tendered in evidence for marking. There may be instances where duty and penalty payable may be very high and the party may not choose to rely upon such insufficiently : 40 : stamped document in order to avoid stamp duty and penalty. In such circumstances, it would result in loss of revenue to the exchequer. The power of impounding a document is to collect stamp duty and penalty whenever there is an escape of duty. Therefore, when it is brought to the notice of the Court that a document is insufficiently stamped, the Court exercising its power under Section 33 of the Act has to pass an order at the first instance for impounding the document. Though there is a discretion vested in the Court to exercise powers under Section 33 and 34 of the Act, no Court can hold that it would wait till the document is tendered in evidence. In such circumstances, there may be chances of loss of revenue to the exchequer".
(6) 2013(4) Kar.L.J 247- DIGAMBAR WARTY AND OTHERS V/S DISTRICT REGISTRAR, BANGALORE URBAN DISTRICT, BANGALORE AND ANOTHER "34. Section 34 of the Act declares that 'Instruments not duly stamped are inadmissible in evidence, etc.' It reads as under:
34. 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:: 41 :
Provided that:
(a) any such instrument not being an instrument chargeable with a duty not exceeding fifteen paise only, or a mortgage of crop Article [35](a) of the Schedule chargeable under clauses (a) and (b) of section 3 with a duty of twenty-five paise 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 exceeds five rupees, of a sum equal to ten times such duty or portion;
(b) 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 59or agreement shall be deemed to be duly stamped;
(c) 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;: 42 :
(d) 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 Deputy Commissioner as provided by section 32 or any other provision of this Act and such certificate has not been revised in exercise of the powers conferred by the provisions of Chapter VI."
35. This provision mandates that 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. Further it mandates that such an instrument shall not be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped. Proviso to the said Section provides for admission of such instrument, provided that it can 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 exceeds five rupees, of a sum equal to ten times such duty or portion.
36. This provision refers to the power of the Civil Court which admits the documents in evidence. The main Section is : 43 : couched in the negative. Unless the instrument is duly stamped, it is inadmissible in evidence. As an exception, the proviso provides for payment of duty and penalty. In the matter of collection of duty and penalty no discretion is vested with the authority admitting such an instrument in evidence. The duty payable on the instrument is prescribed by statute. Therefore, there is no question of any discretion being vested with the authority impounding the document in the matter of collecting the duty. Once the duty payable is ascertained from the statute, no discretion is vested with the authority admitting the document in evidence, in the matter of imposition of duty and penalty. The word used in the said proviso is 'shall'. It is mandatory. However, Section 35 makes it clear, that where an instrument has been admitted in evidence without there being objection at the time of admitting the said instrument in evidence, then such admission shall not, except as provided in Section 58, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. Section 58 deals with the power of the Appellate Court to review the finding recorded by the original Court under Section 34 of the Act, either suo motu or on the application of the Deputy Commissioner. Section 36 of the Act deals with admission of improperly stamped instrument. The State Government may make rules providing that, where an instrument bears a stamp of sufficient amount but of improper : 44 : description, it may, on payment of the duty with which the same is chargeable, be certified to be duly stamped, and any instrument so certified shall then be deemed to have been duly stamped as from the date of its execution.
37. Section 37 of the Act deals with the procedure to be followed by the authority after impounding the document under Section 33 and after passing of the orders under Section 34 or Section 36. When the person impounding an instrument under Section 33 has by law or consent of parties authority to receive evidence and admits such an instrument in evidence upon payment of a penalty as provided by Section 34 or of duty as provided by Section 36, under Sub-Section(1) of Section 37, he shall send to the Deputy Commissioner an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty, levied in respect there of, and shall send such amount to the Deputy Commissioner or to such person as he may appoint in this behalf. Sub-section (2) of Section 37 provides that in every other case, the person so impounding an instrument shall send it in original to the Deputy Commissioner.
38. The reason is obvious. Generally, it is the Civil Court which receives the instrument in evidence. Admission of instrument in evidence is not proof of the said instrument. If the execution of the instrument is denied by the executant or the : 45 : opposite party, burden is cast on the person producing the said instrument to prove that the instrument was executed in accordance with law. He may have to examine the attesting witnesses if there is any, or he may request the Court to compare the signature found on the said instrument with the admitted signatures in the case or he may request for sending the said instrument containing the signature for the opinion of the handwriting expert. Therefore the original document, after it being impounded and the party paying the duty and penalty cannot be sent to the Deputy Commissioner, the law provides for a authenticated copy of such an instrument being sent to the Deputy Commissioner. However, in all other cases, it is the original of the document impounded which is to be sent to the Deputy Commissioner. The object being, the said provision should not come in the way of speedy disposal of cases before the Court.
39. Section 38 of the Act deals with the power of the Deputy Commissioner to refund the penalty paid under Sub-section (1) of Section 37. When a copy of an instrument is sent to the Deputy Commissioner under Sub-section (1) of Section 37, he may, if he thinks fit, refund any portion of the penalty in excess of five rupees which has been paid in respect of such instrument. The reason being, when a person receiving the evidence impounds the document and collects the duty under Section 34 of the Act, which in most of the cases, is the Civil Court, the time of the Court should not be wasted in : 46 : deciding, whether it is a fit case where penalty of ten times the duty is to be levied or a case is made out for imposition of lesser penalty. Therefore, the Legislature consciously has used the word, 'shall' taking away any discretion in the Civil Court in the matter of imposition of penalty equal to ten time the duty payable. However, the Civil Court after impounding the document, collecting the duty and penalty, is under a statutory obligation to send it to the Deputy Commissioner under Sub-section (1) of Section 37. Therefore, when such an instrument is so sent to the Deputy Commissioner, he has been conferred the power to reduce the penalty already paid before the Civil Court. One of the reasons why such a discretion is not vested with the Civil Court is, it is the revenue authorities who are more concerned with the collection of revenue, and that is not the job of the Civil Courts. However, if a document which is not stamped or insufficiently stamped is tendered in evidence in Civil Court and admitted in evidence, then the very purpose of the Stamp Act itself would be defeated. Therefore, a power is vested in Civil Court to impound the document. In fact, it is an obligation cast on the Civil Court by the statute. But, the legislature does not want to burden the Civil Court to go into the question, whether a case for payment of lesser penalty is made out or not. The Civil Courts cannot be expected to be wasting their precious judicial time in deciding matters which exclusively fall within the sphere of revenue authorities and under the : 47 : scheme of the Act, which has to be decided by them. Therefore, it prescribes that after determining the duty payable on such instrument, to collect the duty with ten times penalty and then transmit the document to the Deputy Commissioner with duty and penalty so collected. Thereafter, a power is conferred on the Deputy Commissioner under Section 38 of the Act to hold an enquiry after giving an opportunity to the person who has paid duty and penalty to extend the benefit of reduction of penalty. Such a reduction in penalty is available to both the documents i.e., tendered before the Civil Court or produced directly before the Deputy Commissioner under Section 33. No discrimination in law is made between these two types of documents. However, there appears to be some conflicting opinion in this regard."
(7) ILR 2011 KAR 2484- NINGAPPA BHARAMAPPA SOGI V/S GOVERNMENT OF KARNATAKA, BY ITS SECRETARY, DEPARTMENT OF STAMPS AND REGISTRATIOON AND OTHERS "27. Under Section 34, the power is conferred on the Court of levy stamp duty as well as penalty. This provision is self complete providing for charging as well as machinery. It is not dependent on the provisions of Section 39 of the Act nor is it required to be re-determined by the District Registrar. What is contemplated under Section 34 is the power of the Court to determine and levy the stamp duty as well as penalty. Once it is determined by the Court, : 48 : there cannot be any other authority to sit in judgment over the determination arrived at by the Court and re-determine the duty as well as the penalty. As such, Section 39 cannot be understood to mean that the District Registrar has still power to re- determine the duty as well as the penalty even after the Court having determined the same under Section 34.
28. Issue as regards the conflict between Sections 34 and 39 is not germane for the purpose of this case. Section 39 operates in a different field and Section 34 operates only when the document is presented before the Court and in both the cases, the penalty is leviable, legislation cannot be invalidated on the ground that there is disparity between these two provisions. Provisions have to be understood in the context and the purpose.
31.Considering the provisions of Section 53A of the Transfer of Property Act and 17(1A) of the Registration Act, I am of the opinion that Section 34 of the Stamp Act and Clause (e) of Article 5 of the Schedule to the Act does not suffer from any voice of unconstitutionality nor there is any error of exercise of jurisdiction by the Trial Court.
RE: POINT NO.(i):
16. The moment an instrument is produced in a proceedings before an Authority which in law is entitled to : 49 : receive and if it appears to the said authority that such instrument or document is either not stamped or not duly stamped, the first step such authority would have to take is to impound such document as contemplated under sub section (1) of Section 33. There may be a situation in which the instrument or document is produced in the proceedings but not tendered in evidence or it is not sought to be tendered in evidence. Even in such circumstances, a duty is cast on such authority or Court to impound such instrument. In other words such authority or Court before whom such instrument is produced which is not charged with duty or not duly charged, then it has to necessarily impound such document. This is the first stage under which the person in charge of a public office or the Court before which such instrument is produced has to exercise its power under sub-section (1) of Section 33. The scheme of Stamp Act would mandate that when a document chargeable to duty is produced into Court in connection with proceedings : 50 : before it is found to be not stamped or not duly stamped, then such authority holding Public Office or Court as the case may be is bound to impound such instrument or document. As already noticed hereinabove, there may be circumstances or situation where the document has been produced in the proceedings but it is not tendered in evidence. Then, even in such circumstances, it would be the duty of the authority or Court to impound such document or instrument and thereafter, if it is found that such instrument or document is not sought to be admitted in evidence by the party so producing, the course that would be left open to the Court would be to send such instrument or document so impounded by it to the Deputy Commissioner in exercise of its power under sub-section (2) of Section 37 of the Act.
17. There may be instances or circumstances in which a document had been produced before the Court in the course of evidence and or it is sought to be tendered in : 51 : evidence before Court for being marked as an exhibit, then in such circumstances the Court is empowered to admit in evidence such document only on payment of duty with which it is chargeable to or in case of an instrument insufficiently stamped to make up such deficit duty with penalty as prescribed under proviso (a) to Section 34.
18. Co-ordinate Bench of this Court in the case of LAKSHMINARAYANACHAR VS. NARAYANA & ANOTHER referred to supra has been held as follows:-
"12. Ordinarily, the duty or power of assessing the amount of stamp duty or collecting stamp duty and penalties is invested by the Act in special authorities controlled ultimately by the Chief Controlling Authority. But the proviso to S.34 invests Courts with the special jurisdiction of adjudicating upon stamp duty and imposing penalty in certain cases, and those cases are when a party to a litigation before it tenders a document in evidence. The normal rule in the case of Courts is that when a jurisdiction is invested in them, it is invested for the purposes of the statute which confers that jurisdiction and that Courts should not abdicate such jurisdiction.: 52 :
13. The occasion for the exercise of jurisdiction under the proviso to S.34 arises when a document is actually tendered in evidence; but it might have been produced much earlier by one or the other of the parties to the litigation. The earlier production, taken along with the intention of such production, viz., the intention of tendering it in evidence, necessarily leads to the normal inference that the document is produced for the purpose of being tendered in evidence and therefore is produced before Court in the course of performance of its function of taking evidence. It is the combination of these circumstances that imposes upon Court the duty of impounding documents under sub-sec(1) of Section 33.
14. The position therefore, according to the scheme of the statute is that when a document chargeable to duty and produced into Court in connection with a proceedings before it is found by that court to be either not stamped at all or is insufficiently stamped, it is bound to impound it. But the idea of impounding is to enforce collection of duty or deficient duty together with penalty. When a document has come before Court for the purpose of being used in evidence, the first jurisdiction of determining the duty and penalty is that of the court. It is only when that stage has crossed and the document is not tendered in evidence that it ceases to be a document impounded by the Court which by law has authority to receive evidence and has admitted the same in : 53 : evidence; though the first part of the description applies to the document, the second part has ceased to be applicable. It is then and then only that a document comes within the description of "in every other case" contained in sub-sec (2) of S.37".
To contend that there is power to the Court to send an instrument impounded by it when it is sought to be tendered in evidence by referring the matter to the Deputy Commissioner for adjudication and to await for his decision thereon would be fraught with fallacies. Court cannot be made subservient to the jurisdiction to be exercised by the Deputy Commissioner or in other words the Court cannot be made to await the decision of the Deputy Commissioner for proceeding in a matter, since such instrument or document sought to be tendered in evidence may be a suit document. If that was intention of the legislature it would have been expressly stated so in Section 34 itself. The very intention of the legislature to vest the jurisdiction with the Court and the Deputy Commissioner independently itself would indicate that : 54 : Sections 34 and 39 operate in different spheres. As otherwise, the very provisions would become nugatory.
19. A Division Bench of this Court has also examined Sections 33 to 37 of the Karnataka Stamp Act, 1957 and has held that there are two different circumstances under the stamp Act for impounding a document. After considering the statutory provisions of the Act and case laws thereon, it has been held in the case of MISS. SANDRA LESLEY ANNA BARTELS VS. MISS.
P.GUNAVATHY referred to supra as follows:-
"10. The respondent's Counsel has also relied upon another judgment of this Court in S.Suresh Vs. L.Pothe Gowda and Others, wherein the learned Single Judge while dealing with Section 34 came to the conclusion, under what circumstances a document can be impounded when the same is tendered in the evidence. Considering all the three judgments relied upon by the respective parties and considering the provisions of Section 33 and 34, we are of the view that this Court in Lakshminarayanachar's case and K.Dinesh's case while considering the provisions of Section 33 has clearly held that, a power is vested in the Court to impound the : 55 : document if it is insufficiently stamped the moment it is produced before the Court. Under Section 34 of the Act, when such a document is to be received in evidence, the Court has got powers to impound the document before admitting the document.
11. There are two different circumstances under the Stamp Act for impounding a document: (1) the Court has power to impound the document, moment it appears to the Court that such instrument is not duly stamped and (2) or to wait till such document is tendered in the evidence. A combined reading of Section 33 and 34 clearly reveal that a discretion is granted to the Court either to impound the document under Section 33 before the same is tendered in evidence and even if a document is not impounded under Section 33, the Court is bound to impound the document when the same is tendered in the evidence under Section
34. In other words, the Court cannot say that it will wait till the document is tendered in the evidence. It is only an option given to Court to exercise the power under Sections 33 and 34 but the difference between Sections 33 and 34 is that, Section 34 can be enforced by a Court when a document has to be received in the evidence but Section 33 can be invoked not only by the court, but by every person in-
charge of a public office. A person in-charge of a public office has no power to exercise the power vested under Section 34 of the Act.
: 56 :20. Thus, combined reading of Section 33 and Section 34 would indicate that a discretion is available to the Court namely, it can either impound the document under Section 33 before it is tendered for evidence or impound the same when it is tendered in evidence under Section 34 and collect duty and penalty as provided thereunder. In the light of the aforestated dicta, it has to be held that when a document is produced in the course of the proceedings before an Authority who is empowered to receive the same, it has to be necessarily impounded under Section 33 of the Act and it includes Court. Hence, point No.(i) is answered in the affirmative.
RE:POINT NOS. (ii) & (iii):
21. Insofar as levy of stamp duty and imposition of penalty is concerned, Court before which such instrument or document is produced for being admitted in evidence, it has to impound such document or instrument if not already impounded and admit the same in evidence after : 57 : the duty chargeable on such instrument is recovered from the parties so producing together with penalty as prescribed under Clause (a) of Section 34. In the event of the document having been impounded under Section 33 of the Act and during the course of the trial such an instrument is not sought to be tendered in evidence, then the course open to the Court would be to refer such document to the Deputy Commissioner for being adjudicated for collection of chargeable duty and penalty thereof by invoking sub-section (2) of Section 37. When an instrument is impounded by the Deputy Commissioner under Section 33 of the Act or if he were to receive any instrument sent to him under sub-section (2) of Section 37, he can certify that said instrument is not so chargeable to duty or certify by an endorsement that it is duly stamped or if he is of the opinion that it is not duly stamped he shall require the payment of Stamp duty together with penalty of Five Rupees or an amount not exceeding ten times the amount of duty. Thus, Deputy : 58 : Commissioner is empowered under Section 33 of the Act to impound an instrument or document and can required to make-up the payment of duty with penalty of Five Rupees or require the payment of an amount not exceeding ten times the amount of proper duty or deficient portion thereof. Hence, point Nos. (ii) and (iii) is answered by holding that when the Court impounds document under Section 33 or 34 and when such instrument or document is tendered in the course of evidence, court has to necessarily levy duty chargeable on such instrument together with penalty as prescribed under clause (a) of proviso to Section 34 without sending the same under sub-section(2) of Section 37 for being adjudicated by the Deputy Commissioner under Section 39. Section 33 can be invoked by Court as well as by every person in-charge of a public office. However, Section 34 can be invoked only by such person who by law or by consent of parties has authority to receive a document in evidence.
: 59 :RE-POINT NO.(iv):
22. Sri.V.P.Kulkarni, learned counsel appearing for the petitioner in W.P.Nos. 65188/2009 and 65189/2009 has contended that trial Court could not have directed its registry to collect a penalty ten times of the duty payable on instruments and it ought to have exercised its discretion to levy lesser penalty inasmuch as Deputy Commissioner exercising the power under Section 39 of the Act is empowered to levy lesser penalty and as such power of the Court cannot be whittled down to hold it has to levy penalty ten times the duty and/or it cannot be held that power to levy lesser penalty is not available to the Court. In support of said proposition he has relied upon the judgment of this Court in GOVINDEGOWDA's case cited supra. Elaborating his submission he contends that constitutional validity of Section 34 of the Act was under
consideration in the said writ petition and a Coordinate Bench of this Court having examined the vires of Section : 60 : 34 and 39 has arrived at a conclusion that Section 34 of the Act has to be read down to mean that power of the Court under Section 34 is akin to the powers of the Deputy Commissioner under Section 39 1 (b) of the Act.
By way of alternate submission he would contend that if this Court is not inclined to accept the said proposition same may be referred to a larger Bench or in the alternate present writ petition may be placed before the Hon'ble Chief Justice for being referred to a larger bench.
23. At the out set it requires to be noticed that the judgment in GOVINDEGOWDA's case came to be considered by a division bench of this Court in the case of DIGAMBAR WARTY AND OTHERS VS. DISTRICT REGISTRAR, BANGALORE URBAN DISTRICT, BANGALORE AND ANOTHER reported in (2013) 4 KLJ 247 and it has been held as under:-
"58. In view of the aforesaid judgment of the Apex Court, it is clarified that the observation made in the judgment in K.Govendagowda's case should neither be : 61 : treated as binding by the learned Single Bench of High Court or Subordinate Courts and other judicial foras nor should that order be relied upon or made basis, for by passing the principles laid down in the case of J.S.Paramesh, by the Division Bench of this Court."
(Emphasis supplied by me)
24. Division Bench judgment is binding on this Court and the judicial discipline not only demands but also commands for being followed and there being no other division Bench judgment having taken contrary view, the law laid down by the Division Bench in DIGAMBAR WARTY's case referred to supra requires to be followed as a rule of discipline and in view of doctrine of precedent. Yet, another fact which requires to be noticed by this Court is another Division Bench of this Court in J.S. PARAMESH V/S SMT. INDRAMMA reported in 2008 (3) KCCR 2061 has also held that a Court has no discretion to impose a lesser penalty but has to impose penalty 10 times the amount of proper or deficit portion of duty under proviso to Section 34 and any view contrary to : 62 : this would be contrary to the very statutory provision. It has been held by the Division Bench as under:-
"3. The impugned order was passed by the Trial Court in exercise of the power under the proviso to Section 34 of the Karnataka Stamp Act, 1957. According to Clause (a) of the said proviso, when the amount of the proper duty or deficient portion thereof exceeds five rupees, the penalty to be imposed is a sum equal to ten times such duty or portion. There is no discretion granted to the Court to impose a lesser penalty. Hence the observation contained in the order dated 8.12.2005 in Writ Petition No.43172/2004 that the Courts have the power to impose as penalty a lesser amount than ten times the amount of proper duty or deficient portion is not correct. The observation is contrary to the clear provisions contained in the proviso to Section 34 of the Karnataka Stamp Act, 1957."
(Emphasis supplied by me)
25. Section 30 A of the Stamp Act deals with the power of the Deputy Commissioner to refund penalty paid under sub-section (1) of Section 37. Under sub-section (1) of Section 37 the impounding authority which impounds an instrument under Section 33 and admits such : 63 : instrument in evidence upon payment of penalty as provided under section 34, is required to send to the Deputy Commissioner the authenticated copy of such instrument together with a certificate indicating that amount of duty and penalty levied in respect of such instrument while forwarding the amount so collected.
When such instrument is sent to the Deputy Commissioner under Section 37(2) of the Act he would be empowered to adjudicate the claim for refund if any. In other words, when such instrument is sent by the Authority which has impounded and collected the duty and penalty, aggrieved person or the person who has paid such penalty would be entitled to seek for refund of such penalty and Deputy Commissioner on adjudication if he thinks fit in the facts and circumstances of each case, he would be at liberty to refund any portion of the penalty in excess of Rs.5 which has been paid in respect of such instrument so impounded on which penalty has been levied. Consciously the legislature in its wisdom has : 64 : vested the power of adjudication for refund of penalty to the Deputy Commissioner in order to avoid such an exercise being undertaken by a Court since embarking upon such an enquiry would not only be time consuming but may lead to situations where the Court may have to conduct a roving enquiry in this regard and the valuable judicial time would be expended on an issue relating to the revenue which may not have bearing on the actual dispute or real controversy being adjudicated by the Court. In fact division bench of this Court in WARTY's case referred to supra has considered this aspect and answered as under:-
"39. Section 38 of the Act deals with the power of the Deputy Commissioner to refund the penalty paid under Sub-section (1) of Section 37. When a copy of an instrument is sent to the Deputy Commissioner under Sub-section (1) of Section 37, he may, if he thinks fit, refund any portion of the penalty in excess of five rupees which has been paid in respect of such instrument. The reason being, when a person receiving the evidence impounds the document and collects the duty under Section 34 of the Act, which in most 65 of : 65 : the cases, is the Civil Court, the time of the Court should not be wasted in deciding, whether it is a fit case where penalty of ten times the duty is to be levied or a case is made out for imposition of lesser penalty.
Therefore, the Legislature consciously has used the word, 'shall' taking away any discretion in the Civil Court in the matter of imposition of penalty equal to ten time the duty payable. However, the Civil Court after impounding the document, collecting the duty and penalty, is under a statutory obligation to send it to the Deputy Commissioner under Sub-section (1) of Section 37. Therefore, when such an instrument is so sent to the Deputy Commissioner, he has been conferred the power to reduce the penalty already paid before the Civil Court. One of the reasons why such a discretion is not vested with the Civil Court is, it is the revenue authorities who are more concerned with the collection of revenue, and that is not the job of the Civil Courts. However, if a document which is not stamped or insufficiently stamped is tendered in evidence in Civil Court 66 and admitted in evidence, then the very purpose of the Stamp Act itself would be defeated. Therefore, a power is vested in Civil Court to impound the document. In fact, it is an obligation cast on the Civil Court by the statute. But, the legislature does not want to burden the Civil Court to go into the question, whether a case for payment of lesser penalty is made out or not. The Civil Courts cannot be expected to be wasting their precious judicial time in deciding : 66 : matters which exclusively fall within the sphere of revenue authorities and under the scheme of the Act, which has to be decided by them. Therefore, it prescribes that after determining the duty payable on such instrument, to collect the duty with ten times penalty and then transmit the document to the Deputy Commissioner with duty and penalty so collected. Thereafter, a power is confer red on the Deputy Commissioner under Section 38 of the Act to hold an enquiry after giving an opportunity to the person who has paid duty and penalty to extend the benefit of reduction of penalty. Such a reduction in penalty is available to both the 67 documents i.e., tendered before the Civil Court or produced directly before the Deputy Commissioner under Section 33. No discrimination in law is made between these two types of documents. However, there appears to be some conflicting opinion in this regard.
In view of the above discussion I am not inclined to accept the contention of Sri.V.P.Kulkarni that power of court exercised under Section 34 is coextensive with the power exercised by Deputy Commissioner under Section 39 of the Act and same stands rejected.
: 67 : RE:W.P. NO.76790/201326. Plaintiff has sought for quashing of the order dated 29.11.2012 Annexure-C passed by Prl. Civil Judge, Sirsi, whereunder the trial Court has relied upon the judgment rendered by Co-ordinate Bench of this Court in the case of K.GOVINDEGOWDA VS. AKKAYYAMMA AND ANOTHER reported in 2011 (4) KCCR 2799 and directed the plaintiff to pay a sum of Rs.2,000/- towards penalty and Rs.1,000/- towards stamp duty.
27. This Court while examining similar plea in W.P. No.65189/2009 has held that in view of Division Bench Judgment reported in J.S. PARAMESH V/S SMT.
INDRAMMA reported in 2008 (3) KCCR 2061 and DIGAMBAR WARTY AND OTHERS VS. DISTRICT REGISTRAR, BANGALORE URBAN DISTRICT, BANGALORE AND ANOTHER reported in (2013) 4 KLJ 247 such an exercise by the trial Court could not have been undertaken by imposing lesser penalty.
: 68 :28. In the instant case during the course of further evidence defendant had sought for marking of an unregistered partition deed. Impugned order does not disclose as to whether said document has been impounded by the trial Court in exercise of its power Under Section 33 of the Act or not. However, it would indicate that when the said unregistered partition deed was sought to be introduced in the evidence of defendant, same came to be objected to by the plaintiff. As such, trial Court held that each sharer should pay a sum of Rs.250/-
as duty towards their share. The objection of the plaintiff before the trial Court was two fold, namely, (1) said instrument is unregistered, and (2) it was insufficiently stamped. The impugned order does not disclose or indicate that there is adjudication with regard to the first issue, namely, admissibility of an unregistered document.
On this short score, the impugned order cannot be sustained and it is liable to be set aside. Insofar as the : 69 : second issue is concerned, this Court has already taken a view in W.P. Nos. 65188/2009 and 65189/2009 hereinabove that "while Court exercising its power u/S 34 of the Karnataka Stamp Act, 1957 it has no option other than levying penalty 10 times the duty payable". In the instant case, the penalty that has been levied being less than 10 times by relying upon the judgment of Co-ordinate Bench of this Court in GOVINDE GOWDA's case cannot be sustained in view of the dicta laid down by Division Bench in DIGAMBAR WARTY AND OTHERS VS. DISTRICT REGISTRAR, BANGALORE URBAN DISTRICT, BANGALORE AND ANOTHER reported in 2013 (4) KLJ 247.
29. In view of the law laid down by the Division Bench regarding levy of stamp duty and imposing of penalty and there being no examination by the trial Court about the admissibility of the instrument for want of registration of said document having not been considered : 70 : by the Trial Court, impugned order dated 29.11.2012 Annexure-C cannot be sustained and it has to be quashed by allowing the Writ petition and reserving liberty to trial Court to examine the issue regarding admissibility of the document in question and imposing of duty under clause
(a) of proviso to section 34(1) of the Stamp Act by keeping in mind the principles laid down in J.S.PARAMESH's and DIGAMBAR WARTY's case referred to supra.
RE-W.P. NO.79911/201330. This Writ Petition is by the defendants 1 to 3 in O.S. No.396/2011 questioning the order dated 28.03.2013 Annexure-F whereunder I.A. No.2 filed by the plaintiff to pay the deficit stamp duty and penalty came to be allowed.
An agreement to sell dated 12.04.2001 was produced by the plaintiff seeking for specific enforcement of the said agreement. Defendants filed their written statement and a contention was raised in paragraph 6 to the effect that plaintiff has not paid proper stamp duty on the said : 71 : agreement of sale dated 12.04.2001 and said document was inadmissible in evidence. As such, plaintiff filed an application under Section 34 of the Stamp Act seeking for referring the said agreement to the concerned Officer of the Court for determining the stamp duty. This application was opposed by defendants and trial Court after considering rival contentions by relying upon the judgment in GOVINDEGOWDA's case imposed duty and levied penalty of Rs.5/- and directed the document to be sent to the Deputy Commissioner, Haveri under Section 37(1) of the Act.
31. This Court in W.P. Nos.65188/2009 & 65189/2009 referred to hereinabove has held that in view of the statutory provisions of Karnataka Stamp Act, 1957 and the law laid down by two Division Benches of this Court, trial Court had no option other than levying the penalty of 10 times as provided under Section 34 of the Act.
: 72 :32. In the instant case the trial Court has relied on GOVINDEGOWDA's case to levy lesser penalty and in view of J.S.PARAMESH's case and DIGAMBAR WARTY's case the impugned order cannot sustained and it is liable to be set aside by reserving liberty to the trial Court to determine the duty and penalty leviable under Section 34 of Stamp Act by keeping in mind the principles laid down in J.S.PARAMESH's case and WARTY's case referred to herein supra.
RE-W.P. No. 60926/201133. This Writ Petition is by the first defendant questioning the order dated 20.11.2010 Annexure-C passed by Civil Judge (Jr. Dn.) referring the matter to District Registrar, Dharwad, for collecting the stamp duty and the consequential order passed by the District Registrar, ordering for payment of stamp duty of : 73 : Rs.5,000/- and imposing penalty of Rs.30,000/- and seeking quashing of the same.
34. Having heard the learned Advocates for the parties and on perusal of the records it would indicate that an agreement of sale dated 23.03.2000 was sought to be tendered in evidence by the plaintiff. Court below noticed that it was insufficiently stamped and it was not permitted to be marked in evidence. Hence, by an order dated 29.05.2010 trial Court directed the plaintiff to deposit Stamp Duty in the registry and again by order dated 20.10.2010 directed the registry to refer the said document to the Sub-Registrar, Dharwad, for collecting deficit stamp duty and subsequently by impugned order dated 20.11.2010 Annexure-C referred the said document to District Registrar, Dharwad for adjudication and for collection of proper stamp duty. Pursuant to the said reference District Registrar, Dharwad, has adjudicated the : 74 : instrument u/S 39 and has ordered for collection of stamp duty of Rs.30,000/- and penalty of Rs.5,000/-.
35. This Court while considering the power of the Court in such circumstances has held in W.P. NOs.
65188/2009 & 65189/2009 that when an instrument is tendered in evidence and it is sought to be marked in evidence Court has to impound such instrument and determine the duty and penalty payable by taking recourse to Section 34 by relying upon the judgment of Division Bench rendered in J.S.PARAMESH's and WARTY's case referred to supra.
36. In view of the law laid down by Division Bench of this Court and same having been followed in W.P. Nos.
65188/2009 and 65189/2009, I am of the considered view that impugned orders dated 20.11.2010 and the consequential order dated 18.01.2011 passed by the 4th respondent cannot be sustained and it is liable to be set aside. However, liberty in reserved to trial Court to pass : 75 : orders regarding payment of stamps duty and penalty by keeping the observation made hereinabove and the law laid down in J.S.PARAMESH's case and DIGAMBAR WARTY's case referred to supra.
37. Hence, for the reasons aforestated, I pass the following orders.
ORDER
(i) W.P. Nos.65188/2009 and 65189/2009 are hereby dismissed.
(ii) W.P. No.76790/2013 is hereby allowed and order dated 29.11.2013 Annexure-C is hereby quashed. Trial Court is at liberty to adjudicate the stamp duty and penalty payable-leviable under Section 34 of the Karnataka Stamp Act by keeping in mind the judgment rendered by Division Bench in J.S.PARAMESH's case : 76 : referred to supra and observations made hereinabove.
(iii) W.P.No.79911/2013 is hereby allowed and impugned order dated 28.03.2013- Annexure-F is hereby quashed. Trial Court is at liberty to adjudicate the stamp duty and penalty payable-leviable under Section 34 of the Karnataka Stamp Act, 1957 by keeping in mind the judgment rendered by Division Bench in J.S. PARAMESH's case referred to supra and observations made hereinabove.
(iv) W.P.No.60926/2011 is hereby allowed and impugned orders dated 20.11.2010- Annexure-C passed by Civil Judge (Jr. Dn.), Dharwad and order dated 18.01.2011- Annexure-D passed by 4th respondent are hereby set aside. Trial Court is at liberty to adjudicate the stamp duty and penalty : 77 : payable-leviable under Section 34 of the Karnataka Stamp Act, 1957 by keeping in mind the judgment rendered by Division Bench in J.S.PARAMESH's case referred to supra and the observations made hereinabove.
No order as to costs.
SD/-
JUDGE Jm/Vmb/bs/bvv