Karnataka High Court
H K Shreenath vs H N Vishwanathashetty on 16 March, 2022
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
WRIT PETITION No.58702 OF 2015 (GM-CPC)
BETWEEN:
H.K.SHREENATH
S/O H.N.KRISHNASHETTY
AGED ABOUT 45 YEARS
BUSINESSMAN, BALAJI TRADERS
JUNIOR COLLEGE ROAD,
CHANNAGIRI TOWN,
R/O NADIGERA BEEDI,
CHANNAGIRI TOWN,
CHANNAGIRI TALUK,
DAVANAGERE DISTRICT-577 213 ..PETITIONER
(BY SRI M.B.SANTHOSH KUMAR, ADVOCATE)
AND:
1. H.N.VISHWANATHASHETTY
S/O H.T.NARAYANASHETTY
SINCE DEAD BY LRS
1A.SUVARNAMMA
W/O H.N.VISHWANATHASHETTY
AGED ABOUT 60 YEARS,
HOUSEHOLD WORK
NADIGERA BEEDI, CHANNAGIRI TOWN,
CHANNAGIRI TALUK,
DAVANAGERE DISTRICT-577 213
2
W.P.No.58702/2015
1B. CHAITRA
W/O SURYAPRAKAH
AGED ABOUT 36 YEARS
HOUSEHOLD WORK
SURYA STORES, SUBHAS SQUARE,
HASSAN TOWN,
AT POST TQ. & DIST.HASSAN
PIN -573 201
1C. CHAMPA
W/O NAGKIRAN
AGED ABOUT 32 YEARS,
HOUSEHOLD WORK,
AJANTHA CYCLE MART,
P.P.CIRCLE,
ARASIKERE TOWN,
ARASIKERE TALUK,
HASSAN DISTRICT -573 103
2. H.K.SHREENIVASASHETTY
S/O H.N.KRISHNASHETTY
AGED ABOUT 47 YEARS
BUSINESSMAN
SAPTAGIRI PROVISION STORES
JUNIOR COLLEGE ROAD,
CHANNAGIRI TOWN
R/O NADIGERA BEEDI,
CHANNAGIRI TOWN
CHANNAGIRI TALUK,
DAVANAGERE DISTRICT-577212
13. H.N.SHALINI
W/O H.K.SHREENIVASASHETTY
AGED ABOUT 37 YEARS,
HOUSEHOLD WORK,
R/O: NADIGERA BEEDI,
CHANNAGIRI TOWN,
CHANNAGIRI TALUK,
DAVANAGERE DISTRICT-577 213 ..RESPONDENTS
(BY SRI.S.KALYAN BASAVARAJ, ADVOCATE FOR R-1A, R-2 & R-
3, SRI.D.P.MAHESH, ADVOCATE FOR R-1(B) & (C)
3
W.P.No.58702/2015
****
This Writ Petition is filed under Article 227 of the
Constitution of India, praying to quash the impugned order
portion "the office is to impound the document an calculate the
duty and penalty" passed in O.S.No.22/2013 dated 17.10.2015
passed by the Sr. Civil Judge and JMFC, Channagiri, in so far as
directing the office to calculate the stamp duty and penalty vide
Annexure-F and subsequent calculation of the office vide
Annexure-G dated 02.11.2015 and direct to calculate the stamp
duty as per Art.5(1)(e)(ii)(iv)(a) of the Karnataka Stamp Act,
1957.
This Writ Petition coming on for Preliminary Hearing in 'B'
Group, through Physical Hearing/Video Conferencing Hearing,
this day, the Court made the following:
ORDER
The present petitioner is the plaintiff in O.S.No.22/2013 in the court of the learned Senior Civil Judge and JMFC, Channagiri, who has instituted a suit against the present respondents arraigning them as defendants for the relief of specific performance.
2. During the pendency of the said suit, the petitioner filed an application i.e., I.A.No.4 under Section 151 of Civil Procedure Code requesting the trial court to impose the 4 W.P.No.58702/2015 duty and penalty on the alleged unstamped sale agreement as per law. The defendants in the trial court filed objections to said I.A.No.4.
3. After hearing both the sides, the trial court by its order dated 17.10.2015 allowed the I.A.No.4 filed by the plaintiff under Section 151 CPC and the document relied upon by the plaintiff that a sale agreement was impounded and plaintiff was directed to pay duty and penalty with ten times the duty. The office was directed to calculate the duty and penalty. Accordingly, the office of the trial court calculated the amount as at `4,62,066/-. The petitioner has challenged said order of the calculation of the duty and penalty and has filed this writ petition.
4. Learned counsel for the petitioner in his arguments though initially submitted that the duty and penalty calculated by the trial court was on the higher side and without any basis of law, however, submitted that the appropriate authority to calculate the duty and penalty was 5 W.P.No.58702/2015 the concerned Deputy Commissioner under Section 37(2) of the Karnataka Stamp Act, 1957 (hereinafter for brevity referred to as "the Stamp Act"), as such, the said competent authority to compute and decide the quantum of duty and penalty. Hence, he prays for the impugned order be modified to the effect that after impounding of document the said document be referred to Deputy Commissioner for calculation of duty and penalty.
5. Learned counsel for the respondents submitted that the impounding of the document has not been disputed by the petitioner. However, the calculation made by the registry is not appropriate since the plaintiff in the very plaint itself stated that the property was sold to him by the alleged vendor and possession of the property was given to him under the alleged document on 06.08.2005 itself, the specific performance of which document the plaintiff has sought for.
6W.P.No.58702/2015
6. In the instance case, it is the plaintiff who himself has requested the court for imposing duty and penalty upon the document admitting that the document specific performance of which he is seeking in the suit, is not stamped. Even in this writ petition it was further clarified by the learned counsel for petitioner in his argument, the petitioner is not challenging the order of the trial court impounding the said document dated 06.08.2005. Thus, the question of impounding the document is not in dispute. However, subsequent to alleged document what procedure that was required to be followed is in question. Admittedly the plaintiff has not led the said document in the evidence as such either the objection for not leading such document as an exhibit during the course of evidence and court invoking its power under Section 34 of the Karnataka Stamp Act, 1957 has not arisen in the matter.
7. At a pre stage i.e., pre-determining of the document the plaintiff himself volunteered to pay duty and penalty conceding that the document suffers no duty or 7 W.P.No.58702/2015 deficit stamp duty. In such a circumstance it is Section 33 of the Stamp Act is applicable. This court had an opportunity of analyzing Section 33 and Section 34 of the Karnataka Stamp Act in the case in Sri.Shiddappa Vs Smt.Mahadevi and others in W.P.No.105667/2018 and W.P.No.106050/2018 dated 13.01.2022. In the said Judgment in paragraph No.12 it was observed as below:
"The above two Judgments squarely corroborates the view taken above that Sections 33 and 34 of the Stamp Act operates at two different stages and that, merely because Section 33 of the Stamp Act operates in a case, it cannot be automatically held that the Court or the authority impounding the document has necessarily to compute or calculate the alleged deficit stamp duty and penalty and direct the producer of the document to pay the deficit stamp duty and penalty. It is also because there may be some instances where a party, who is producing a document which is suffering with deficit stamp duty, may not be inclined to get that document marked as an exhibit in the evidence and does not want to rely upon the said document during the trial of the case. In such a 8 W.P.No.58702/2015 case, it is only Section 33 of the Stamp Act comes into picture, where after noticing the said document, the very Court or authority may impound the said document for deficit stamp duty, but, may not proceed further in imposing duty and penalty upon the person. In such an event, the said authority or the Court before which such a document is produced has to only impound the document and proceed further in accordance with Section 37 of the Stamp Act for its onward process by the Deputy Commissioner."
8. In view of the same, as laid down under Section 37(2) of the Stamp Act, the trial court after impounding the instrument ought to have sent its original to the Deputy Commissioner for doing needful in the matter including determination of the stamp duty and collection of the said stamp duty. However, since the trial court itself has proceeded to calculate the stamp duty at a premature stage the said portion of the order in the impugned order dated 17.10.2015 directing the office of the trial court to calculate the duty and penalty alone deserves to be set aside and the 9 W.P.No.58702/2015 impugned order deserves to be modified to the effect that the document be sent in its original to the concerned Deputy Commissioner under Section 37(2) of the Stamp Act to deal with the document in accordance with law. Needless to say that while referring the said document to the Deputy Commissioner it is suggestive to the trial court to send a certified copy of the plaint also along with it so that the concerned Deputy Commissioner would be in a position to appraise the nature of the document after going through the averments made in the plaint in respect of the alleged in the said document dated 06.08.2005.
Accordingly, the Writ Petition stands allowed in part. That portion in the impugned order dated 17.10.2015 which is at Annexure-F wherein the trial court has directed its office to calculate the duty and penalty alone is set aside and the trial court is directed to send the original of the impounded document to the concerned Deputy Commissioner under Section 37(2) of the 10 W.P.No.58702/2015 Karnataka Stamp Act, 1957 along with a copy of the plaint in O.S.No.22/2013 with a request to the Deputy Commissioner to proceed in the matter regarding the alleged non-payment of deficit stamp duty on the document and take appropriate action in accordance with law at the earliest, however, not later than six weeks from the date of referring the document to the Deputy Commissioner.
In view of the disposal of the main petition I.A.No.1/2018 does not survive for consideration.
Sd/-
JUDGE SBN