Karnataka High Court
Sri.H.Murigappa vs Sri.B.Hayavadana Hatwar on 4 November, 2015
Author: S.Sujatha
Bench: S Sujatha
IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
DATED THIS THE 4TH DAY OF NOVEMBER, 2015
BEFORE
THE HON'BLE MRS JUSTICE S SUJATHA
WRIT PETITION NO.46433/2013 (GM-CPC)
BETWEEN:
SRI H MURIGAPPA
S/O ANAJI SIDDALINGAPPA
SINCE DEAD BY HIS LR
SMT SHREESHAILA
W/O P N PARVATHAPPA
AGED ABOUT 55 YEARS
J J TUTORIALS, MALLAPURA ROAD
JCR EXTENSION, CHITRADURGA-577 501
NOW RESIDING AT:
NO.139, 5TH MAIN ROAD
6TH CROSS, PADMANABHA NAGARA
BSK II STAGE, BANGALORE-560 070
...PETITIONER
(BY SRI D R RAJASHEKARAPPA ADV.)
AND
1. SRI B HAYAVADANA HATWAR
S/O RAMACHANDRA HATWAR
AGED ABOUT 49 YEARS
HOTELIER, R/O D.NO.2185/1
5TH MAIN ROAD, 5TH CROSS
MCC "A" BLOCK, DAVANAGERE-577 001
2. SRI H M RUDRAMURTHY
S/O LATE H MURIGEPPA
AGED ABOUT 53 YEARS
2
3. SRI H M MANJUNATH
S/O LATE H MURIGEPPA
AGED ABOUT 45 YEARS
4. SRI H M RAVIKUMAR
S/O LATE H MURIGEPPA
AGED ABOUT 38 YEARS
RESPONDENT NOS.2 TO 4 ARE
R/AT HADADI VILLAGE
DAVANAGERE TALUK-577 001
5. SMT REKHA
W/O VINAY DIWAKAR
AGED ABOUT 36 YEARS
HOUSEWIFE
R/O PALLAGATTE BUILDING
OPPOSITE TO BAPUJI BANK
AVK COLLEGE ROAD
DAVANAGERE-577 001
...RESPONDENTS
(BY M/S. IMRAN PASHA AND
KRISHNA REDDY, ADVS FOR R1;
NOTICE TO R2 TO R5 ARE DISPENSED WITH
VIDE COURT ORDER DATED 23.10.2013)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 02.09.2013 MADE BY THE 1ST ADDITIONAL
SENIOR CIVIL JUDGE, DAVANAGERE IN O.S.NO.53/2007 ON
OFFICE NOTE, REGARDING PAYMENT OF DEFICIT STAMP DUTY
AND PENALTY IN RESPECT OF THE AGREEMENT DATED
21.02.2003 VIDE ANN-A AND DIRECT THE PLAINTIFF/FIRST
RESPONDENT TO PAY THE DEFICIT STAMP DUTY OF
RS.81,900/- AND PENALTY OF RS.8,19000/- TOTALLYING TO
RS.9,00,900/- INDICATED IN THE OFFICE NOTE BEFORE THE
LEARNED TRIAL JUDGE IN O.S.NO.53/2007.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY THE COURT MADE THE FOLLOWING:
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ORDER
This writ petition is directed against the order dated 2.9.2013 passed by the I Additional Senior Civil Judge, Davanagere, in OS No.53/2007.
2. The facts in brief are that:
the Respondent No.1 instituted OS No.53/2007 seeking specific performance of the agreement dated 21.2.2003 contending that the original defendant had received a total sum of Rs.5,25,000/- as advance out of Rs.9,10,000/-, agreed sale consideration and handed over the possession of the plaint schedule property to him. This suit was resisted by the original defendant by filing written statement denying the material averments made in the plaint. It transpires that the original defendant H. Murigeppa died during the pendency of the case and his legal representatives, namely, his children including the petitioner herein were brought on record 4 and amended plaint was filed by the plaintiff incorporating the names of legal representatives of deceased defendant in the cause title of the plaint. The Defendant No.1[a], one of the legal representatives of deceased defendant filed his written statement and sought for dismissal of the suit for the reasons stated therein. After framing of the issues, the case was set down for evidence of the plaintiff. The plaintiff was examined as PW.1. Before marking the agreement dated 21.2.2003, the examination-in-chief was deferred to hear the parties regarding payment of deficit stamp duty and on the office note put up by the Registry indicating that the plaintiff was required to pay Rs.81,900/- towards deficit stamp duty and penalty being ten times at Rs.8,19,000/- totaling to Rs.9,00,900/-. The learned trial Judge, after hearing both the parties, directed the plaintiff to pay Rs.81,900/- towards deficit stamp duty and a sum of Rs.81,900/- towards penalty totaling to 5 Rs.1,63,800/- instead of Rs.9,00,900/- indicated in the office note. This order of the learned trial Judge is challenged in this writ petition by the petitioner/Defendant No.1[b].
3. The learned counsel appearing for the petitioner contended that the trial court placing reliance on the Judgment of this court in the case of 'K. GOVINDE GOWDA Vs. SMT. AKKAYAMMA AND OTHERS' [ILR 2011 KAR 4719], has directed the respondent to deposit the penalty equal to that of the stamp duty whereas this court in the case of 'DIGAMBAR WARTY AND OTHERS. Vs. DISTRICT REGISTRAR, BANGALORE URBAN DISTRICT, AND ANOTHER' (ILR 2013 KAR 2099) has categorically held that the Judgment rendered in Govindegowda's case cited supra is contrary to the Judgment of this court in the case of 'J S PARAMESH Vs. SMT.INDRAMMA' (2008(3) KCCR 2061).
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4. It is also submitted that under the provisions of section 34 of the Karnataka Stamp Act, 1957, [hereinafter referred to as 'the Act' for short], no discretion is left with the trial Judge to levy penalty at the rate less than ten times of the deficit stamp duty and accordingly seeks for allowing the writ petition, setting aside the order passed by the trial court and to direct the respondent to deposit the penalty amount equal to ten times as that of the stamp duty.
5. On the other hand, the learned counsel for the respondent, justifies the order passed by the trial court and seeks support from the Judgment of this court in Govindegowda's case cited supra. It is contended that the respondent has taken possession of the suit schedule property from tenant who was in possession of the suit property, the respondent has stepped into the shoes of the tenant and as such he is not liable to pay 7 the penalty at ten times the deficit stamp duty and utmost it would be a matter of adjudication before the Deputy Commissioner to arrive at the correct stamp duty as per the prevailing market value of the suit property.
6. I have heard the learned counsel for the parties and perused the material on record.
7. The trial Judge, placing reliance on the Judgment of this court in Govindegowda's case cited supra, has directed the respondent to pay stamp duty of Rs.81,900/- and penalty of Rs.81,900/- equal to that of the stamp duty. Section 34 of the Act contemplates levy of penalty ten times to that of stamp duty. No discretion is vested with the trial Judge to reduce the penalty amount less than ten times of the stamp duty. This aspect has been extensively considered by two division Bench Judgments of this court in the case of J.S Paramesh & Digambar Warty. A co-ordinate bench of 8 this court in 'SUMAN vs VINAYAKA AND OTHERS' (2014(1) KLJ 575), by following the division Bench Judgments in J.S. Paramesh and Digambar Warty cases referred to supra has held that ten times the deficit stamp duty is the penalty payable under section 34 of the Act.
8. In the wake of these Judgments rendered by this court, the order passed by the trial court is not sustainable. Taking possession of the suit property from the tenant would not absolve the plaintiff to make payment of stamp duty and penalty.
9. Accordingly, writ petition stands allowed. The respondent shall pay stamp duty and penalty amounting to Rs.9,00,900/- i.e, deficit stamp duty of Rs.81,900/- and penalty of Rs.8,19,000/- which is ten times the stamp duty, within a period of eight weeks from the date of receipt of certified copy of the order. 9 The amount already paid shall be given set off to the amount liable to be paid as per this order.
Sd/-
JUDGE AN/-