Karnataka High Court
Mr S Suresh Revankar vs Mr R Mruthunjayappa on 28 November, 2022
Author: B. M. Shyam Prasad
Bench: B. M. Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF NOVEMBER 2022
BEFORE
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
WRIT PETITION NO.20841/2022 (GM-CPC)
BETWEEN :
MR S. SURESH REVANKAR
S/O SUBRAMANYA REVANKAR
AGED ABOUT 56 YEARS,
R/O HIRALENNEKERI
SHIKARIPUR TOWN
SHIVAMOGGA-577201.
... PETITIONER
(BY SRI. K V SATEESH CHANDRA, ADVOCATE)
AND :
1. MR R MRUTHUNJAYAPPA
S/O RAMANI CHANDRAPPA
AGED ABOUT 81 YEARS
DODDAPETE, SHIKARIPUR TOWN
SHIVAMOGGA-577201.
2. MR P RAJU
S/O P SHANKARAPPA
AGED ABOUT 58 YEARS
R/O MASUR ROAD
SHIKARIPUR TOWN
SHIVAMOGGA-577201.
... RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 28.09.2022 PASSED BY THE COURT
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OF SENIOR CIVIL JUDGE AND JMFC AT SHIKARIPUR,
SHIVAMOGGA, O.S. NO. 50/2016 VIDE ANNEXURE-G.
THIS WRIT PETITION COMING ON FOR ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
This petition is by the plaintiff in O.S. No.50/2016 on the file of the Civil Judge and JMFC, Shikaripura [for short, 'the civil Court']. The petitioner has impugned the civil Court's order dated 28.09.2022, and the civil Court's impugned order in its material part reads as under:
"On perusal of the agreement dated 26-04-2009 it is clear that the total sale consideration is mentioned. at Rs. 6,25,000/-. Though the possession of the suit property has not been delivered as per the recital of the agreement, the plaintiff was seized to pay rent to the defendant from the dated of agreement. It is also necessary to say that the plaintiff was tenant. Thereafter the plaintiff alleges that the defendant have executed a sale agreement dated 26-04-2009.
The same is seriously disputed by the defendants. Since in the sale agreement it is 3 stated that the plaintiff is not requited to pay rents, his possession can be considered as that under the agreement only the plaintiff has got possession. Therefore, though there is recital, since the possession has been handover based on the agreement, the plaintiff is requited to pay stamp duty.
The said agreement was drawn on Rs.
50/- stamp paper. The total sale consideration is Rs. 6,25,000/-. As per the stamp Act, the required stamp duty is Rs. 46,875/-. As per Sec. 33 of stamp Act the plaintiff is required to pay penalty of 10 times. If the same is calculated i.e., Rs.46,875/- +10 times penalty=Rs.4,68,750/- it comes around Rs. 5,15,625/-. Therefore the plaintiff is directed to pay the duty and penalty of Rs. 5,15,625/- in the office."
Sri K V Sateeschandra, the learned counsel for the petitioner, submits that the petitioner, who was in possession of the subject property as a tenant, has entered into sale agreement dated 26.04.2009 to purchase the subject property. The petitioner cannot 4 deny that the sale agreement is drawn on insufficient stamp paper, but the civil Court could not have called upon the petitioner to pay the stamp duty and penalty without considering the provisions of Article 5[e][ii] of the Karnataka Stamp Act, 1957 [for short, 'the Stamp Act']. If the agreement is that the possession of the subject property is agreed to be delivered before executing the conveyance, the stamp duty will have to be paid under Article 5[e][i] of the Stamp Act otherwise it will have to be under Article 5[e][ii] of the Stamp Act. The civil Court has failed to consider that the sale agreement is executed by the respondent-owner in favour of the petitioner who is a tenant neither there is delivery of possession in part performance nor agreement to deliver possession before the execution of the sale deed to bring about a cessation of such relationship.
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The petitioner's grievance is that the question of payment of the stamp duty is not considered in the light of the statutory provisions and on the reading of the impugned order as extracted above, this Court is of the considered view that rather than interfering with the impugned order the petition must be disposed of reserving liberty to the petitioner to file an application for recalling of the impugned order dated 28.09.2022 in O.S. No.50/2016 and directing the civil Court, if such application is filed, to consider the same in accordance with law and the grievance canvassed before this Court within an outer limit of six [6] weeks from the date of receipt of a certified copy of this order.
The petition stands disposed of accordingly.
Sd/-
JUDGE AN/-