Karnataka High Court
Fakkirappa S/O. Basappa Kalaki vs Gangappa S/O. Bhimappa Sungar on 17 July, 2014
Author: K.Bhakthavatsala
Bench: K.Bhakthavatsala
:1:
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 17TH DAY OF JULY 2014
BEFORE
THE HON'BLE DR.JUSTICE K.BHAKTHAVATSALA
WRIT PETITION NO.78721/2013 AND
WRIT PETITION NOS.78990-78991/2013 (GM-CPC)
BETWEEN:
Shri. FAKKIRAPPA
S/O BASAPPA KALAKI
AGE 50 YEARS, OCC: AGRICULTURE
R/O SHREWAD, TQ. HUBLI.
...PETITIONER
(BY SRI. R.M. KULKARNI, ADVOCATE)
AND :
1. SHRI GANGAPPA, S/O BHIMAPPA SUNGAR,
AGE 53 YEARS, OCC: AGRICULTURE
R/O SHREWAD, TQ. HUBLI,
DIST. DHARWAD.
2. MANOHAR, S/O VENKAPPA YEDAVANNAVAR
AGE 66 YEARS, OCC: AGRICULTURE
R/O SHREWAD, TQ. HUBLI
DIST. DHARWAD.
.. RESPONDENTS
(BY SRI. C.N. HARLAPUR, ADV.)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DATED 22/04/2013 IN O.S.NO.863/08 C/W
:2:
O.S.NO.864/2008 AND O.S.NO.327/2008 ON THE FILE OF PRL.
CIVIL JUDGE AND JMFC HUBLI PRODUCED AS PER ANNEXURE-A
AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY
HEARING IN B GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Petitioner, who is defendant No.1 in O.S.Nos.863/2008 and 864/2008 on the file of Principal
Civil Judge and JMFC, Hubli, is before this Court praying for quashing the order dated 22/04/2013 passed in the above said suits, at Annexue "A".
2. Learned counsel for the petitioner submits that petitioner's sister filed a suit in O.S.No.327/2008 for partition and separate possession in respect of the schedule properties bearing Sy.No.67/3A measuring 3 acres 2 guntas and Sy.No.63/2 measuring 4 acres 6 guntas. He further submits that the respondents herein have filed suits in O.S.Nos.863/2008 and 864/2008 :3: against the present petitioner for specific performance of agreements of sale dated 12/04/2005 and 16/05/2006, respectively and all the suits have been clubbed. According to the sale agreements mentioned above, possession of the subject matter of the agreements of sale is given to the respondents. The petitioner denies the agreements of sale. It is submitted that respondent No.1/plaintiff in O.S.No.863/2008 filed I.A.No.VI under Section 151 of the Code of Civil Procedure read with Section 46 of the Karnataka Stamp Act, 1957 praying to return the agreement of sale dated 12/04/2005 to produce it before the Deputy Commissioner, Dharwad for determination of stamp duty payable thereon. The application was opposed by the petitioner but the trial Court passed the impugned order on 22/04/2013 directing the plaintiff in O.S.No.863/2008 to pay in all a sum of Rs.36,039/- and Rs.60,960/- in O.S.No.864/2008. He relied upon the decision reported in ILR 2013 KAR 2099 (DIGAMBAR WARTY AND OTHERS vs. DISTRIICT REGISTRAR, BANGALORE URBAN DISTRICT AND :4: ANOTHER) on the point that the ratio laid down in K. Govinde Gowda's case (vide ILR 2011 KAR 4719) is not correct. Therefore, he submits that the impugned order may be modified directing the trial Court to levy the duty and penalty as per the decision reported in ILR 2013 KAR 2099 by the Division Bench of this Court.
3. Learned counsel appearing for respondents 1 and 2 submits that since the petitioner/defendant himself denies the entire agreements of sale that he has not given possession of the subject matter of the sale agreements, there is no need for the respondents/plaintiffs to pay duty and penalty on the agreements of sale and he prays that the impugned order in the suits may be set aside and the matter may be remitted to the trial Court with a direction to re-consider the application namely I.A.No.7 filed by the plaintiffs though they have paid the duty and penalty as determined by the trial Court.
:5:
4. In the light of arguments addressed by the learned counsel for the parties, the only point that arises for my consideration is:
Whether the impugned order calls for interference?
5. My answer to the above point is as per the final order.
6. Admittedly, the respondents have filed a suit for specific performance of agreement of sale on the basis of two sale agreements and in both the sale agreements, there is a mention that the plaintiffs/purchasers have been put in possession of the subject matter of the agreement of sale. My attention is drawn with regard to the prayer made in the plaint. Admittedly, the plaintiffs have prayed for direction to the defendant to hand over actual possession of the suit properties to the plaintiffs. In the written statement, the petitioner/defendant has denied the agreement and giving possession of the suit schedule properties in favour of the plaintiffs. Since there is a mention in the agreement of sale that the purchaser has :6: been put in possession of the properties, for the purpose of admissibility of the document in evidence, requisite court fee has to be paid, though actual possession is not delivered as per the agreement of sale. The plaintiffs themselves approached the trial Court to return the document for payment of deficit stamp duty. The plaintiffs have paid the duty and penalty as per the decision reported in ILR 2011 KAR 4719 rendered in K. Govinde Gowda's case(supra). But the Division Bench of this Court in the decision reported in ILR 2013 KAR 2099, has held that the law laid down in K. Govinde Gowda's case(supra) is not correct and the same is not binding on the High Court and subordinate Courts. It is further held that (vide para No.39) "No discretion is granted to the Court to impose lesser penalty." Therefore, the impugned order calls for interference insofar as not levying duty and penalty as required under law. Accordingly, the point for consideration is answered. In the result, I pass the following order:
:7:
Trial Court is directed to levy the penalty at 10 times as per the decision reported in ILR 2013 KAR 2099.
Accordingly, writ petitions are disposed of.
Sd/-
JUDGE Kmv