Karnataka High Court
Bangalore Jesuit Educational Society vs Smt. Sukanya Kumari on 1 April, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 01ST DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.15736 OF 2021 (GM-CPC)
BETWEEN
BANGALORE JESUIT EDUCATIONAL SOCIETY
A SOCIETY REGISTERED UNDER
THE PROVISIONS OF
KARNATAKA SOCIETIES
REGISTRATION ACT 1960
HAVING ITS OFFICE AT NO 25
GESUIT NIVAS MUSUEM ROAD
BANGALORE - 560025
REPRESENTED BY ITS
SECRETARY AND TREASURER
PRESENTLY REV. FR ARUN D SOUZA S J
S/O VALERIAN D SOUZA
AGED ABOUT 37 YEARS
...PETITIONER
(BY SRI VENUGOPAL N, ADVOCATE)
AND
1. SMT. SUKANYA KUMARI
DAUGHTER OF N SHIVANNA
WIFE OF MR. ESHWARAPPA
AGED ABOUT 51 YEARS
R/A KALAPANAHALLI VILLAGE
THAVAREKERE POST
NANDAGUDI HOBLI
HOSKOTE TALUK.
2
2. SMT GAYATHRI DEVI
DAUGHTER OF N SHIVANNA
WIFE OF SRI LOKESH
AGED ABOUT 49 YEARS
R/A NAGASANDRAM
C R PALYA POST
DAMKANIKOTE TALUK
KRISHNAGIRI DISTRICT.
3. SMT BHARATHI
DAUGHTER OF N SHIVANNA
WIFE OF N MANJUNATHA
AGED ABOUT 44 YEARS
R/A RAILWAY GATTAHALI POST
DASANAPURA HOBLI
BANGALORE NORTH TALUK
4. SMT ARATHI
DAUGHTER OF N SHIVANNA
WIFE OF SUDHAKAR
AGED ABOUT 42 YEARS
R/A MUGABALA POST
HOSKOTE TALUK
5. SMT. NAGARATHNAMMA
DAUGHTER OF N SHIVANNA
WIFE OF LATE SHANKAR
AGED ABOUT 39 YEARS
R/A RAMASANDRA VILLAGE
NARSAPURA HOBLI
KOLAR TALUK.
6. SRI N SHIVANNA
SON OF NANDESHAPPA
AGED ABOUT 74 YEARS
7. SRI CHANDRASHEKAR
SON OF N SHIVANNA
3
AGED ABOUT 47 YEARS
8. SRI SOMASHEKAR
SON OF N SHIVANNA
AGED ABOUT 39 YEARS
9. SRI JAYASHANKAR
SON OF N SHIVANNA
AGED ABOUT 34 YEARS
10. SRI RAJASHEKAR
SON OF N SHIVANNA
AGED ABOUT 32 YEARS
Respondent nos. 6 to 10 are
R/A RAMASANDRA VILLAGE
NARSAPURA HOBLI
KOLAR TALUK.
11. REV FR HEDWIG D COSTA S G
AGED ABOUT 72 YEARS
R/A GESUIT NIVAS
ST JOSEPH COLLEGE
NO 25 MUSEUM ROAD
BANGALORE - 560025.
12. REV FR LAWRENCE D COSTA S G
AGED ABOUT 78 YEARS
R/A GESUIT NIVAS
ST JOSEPH COLLEGE
NO 25 MUSEUM ROAD
BANGALORE - 560025
....RESPONDENTS
(BY SRI A MADHUSUDHANA RAO, ADVOCATE FOR R1 TO 5)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER DATED 02ND MARCH, 2021 PASSED BY THE II
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, KOLAR IN
ORIGINAL SUIT NO.80 OF 2012 WHICH IS AT ANNEXURE A;
4
AND CONSEQUENTLY OVERRULE THE OBJECTIONS RAISED BY
THE PLAINTIFFS WHO ARE RESPONDENT NO.1 HEREIN AND
ETC.,
THIS PETITION COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This Writ Petition is filed by defendant No.8 in Original Suit No.80 of 2012 on the file of the II Additional Senior Civil Judge and JMFC, Kolar, challenging the order dated 02nd March, 2021.
2. The relevant facts for adjudication of this writ petition are that, plaintiffs have filed suit for partition and separate possession in respect of the suit schedule property. Perusal of writ papers would indicate that on 19th May, 2007, the parties to the suit have entered into an unregistered agreement of sale and Power of Attorney by the defendants in favour of one Rev. Fr. Hedwig Da. Costa S.J., authorising him to sell the suit schedule property to the petitioner herein and also execute a deed of handing over the possession in favour of the petitioner herein. The defendant entered appearance and contested the matter. In the meanwhile, the respondents 1 to 5 herein have raised objection with regard to production and marking of sale 5 agreement dated 19th May, 2007 on the ground that the said document is not properly stamped as per the provisions of Karnataka Stamp Act, 1957 (for short, hereinafter referred to as 'Act'). On the said issue, arguments were heard before the trial Court and trial Court, by order dated 02nd March, 2021, directed the Registry to send the sale agreement and possession certificate to the District Registrar of Stamps and Registration of Kolar for appropriate registration. Being aggrieved by the same, the defendant No.8 has presented this Writ Petition.
3. I have heard Sri Venugopal N, learned counsel appearing for the petitioner and Sri Madhusudana Rao, learned counsel appearing for the respondent.
4. Sri Venugopal N, learned counsel appearing for the petitioner invited the attention of the Court to the provisions contained under Section 34(b) of Act and argued that the trial Court has committed an error in sending the document for determination of stamp duty to the District Registrar and he further contended that the parties, pursuant to the agreement of sale, have executed the sale deed on 09th November, 2011 and 6 therefore, there is no question of recovering the stamp duty on the same property for the second time and accordingly, learned counsel appearing for the petitioner sought for interference in this Writ Petition.
5. Per contra Sri A. Madhusudana Rao, learned counsel appearing for Respondents 1 to 5 submitted that the agreement of sale dated 19th May, 2007 is unregistered document and requires proper affixation of the stamp duty. He further submitted that the sale consideration in the sale agreement, is shown as Rs.1.05 crore, that is Rs.21,00,000/- per acre and he further contended that sale deed has been executed for sum of Rs.50,00,000/- and therefore, he contended that the petitioners have not approached this Court with clean hands. Further, referring to the letter dated 30th March, 2021, by the District Registrar, Kolar address to the Registry of the trial Court, learned Counsel argued that the petitioner is liable to pay stamp duty of Rs.7,87,300/- with penalty and therefore, he contended that the impugned order passed by the trial Court is just and proper and does not call for any interference in this Writ Petition. 7 He also referred to Section 4 of the Act and contended that if several instruments are used for same transaction, then the duty prescribed in the document which is chargeable on the instrument so determined as highest duty, would be taken into consideration and therefore, he contended that the consideration referred to in the agreement of sale date 19th May, 2007 showing the consideration of Rs.1.05 crore, has to be considered for imposition of penalty in terms of the provisions under the Act.
6. In the light of the submission made by the learned counsel appearing for the parties, it is not in dispute that the suit is filed for seeking relief of partition and separate possession in respect of suit schedule property. Perusal o the writ papers would indicate that the defendants 1 to 5 have entered into an agreement of sale and power of attorney authorising the attorney to execute the sale deed in favour of the petitioner herein, so also, issued possession certificate evidencing putting the purchaser into possession of the suit schedule property and the suit schedule property documents are executed on the same 8 day i.e. 19th May 2007. I have also considered the sale deed dated 19th May 2007 which is the subject matter in the impugned order passed by the trial Court, wherein the said document has been sent to District Registrar for quantification of the stamp duty with penalty, wherein the sale consideration is shown as Rs1.05 crore in the sale agreement, however, sale consideration shown in the sale deed dated 09th November, 2009 reflects that sale consideration is of Rs.50,00,000/- and in that view of the matter, I am of the view that the petitioner is not entitled for equitable relief under Articles 226 and 227 of Constitution of India interfering with the impugned order passed by the trial Court.
6. Secondly, I have carefully considered the provision contained under Section 4 of the Act, which reads as under:
"4. Several instruments used in single transaction of sale, mortgage or settlement.-
(1) Where, in the case of any sale, mortgage or settlement, several instruments are employed for completing the transaction, the principal instrument only shall be chargeable with the duty prescribed in the Schedule for the conveyance, mortgage, 9 or settlement, and each of the other instruments shall be chargeable with a duty of 1[one hundred]1 rupees instead of the duty (if any) prescribed for it in the Schedule.
1. Substituted by Act 8 of 1995 w.e.f. 1.4.1995.
(2) The parties may determine for themselves which of the instruments so employed shall, for the purpose of sub-section (1), be deemed to be the principal instrument:
Provided that the duty chargeable on the instrument so determined shall be the highest duty which would be chargeable in respect of any of the said instruments employed."
7. The language employed in Section 4 of the Act provides for determination of the stamp duty of a particular document having duty comparable with several instruments used in single transaction and applying the provision contained under Section 4 of the Act to the case on hand, the stamp duty payable by the petitioner herein is for sum of Rs.1.05 crore, as per consideration shown in sale agreement and therefore, I find force in the submission made by the learned counsel appearing for the respondents that the trial Court, rightly sent the document to the District Registrar of Stamps and Registration of 10 Kolar for determining the actual stamp duty with penalty. In that view of the matter, I am of the view that impugned order passed by the trial court requires to be confirmed. Since the petitioner has approached the Court with unclean hands. Petition is accordingly dismissed.
Sd/-
JUDGE lnn