Dr Prashant S Urs vs V Girish on 13 October, 2009

[Cites 6, Cited by 1]

Karnataka High Court

Dr Prashant S Urs vs V Girish on 13 October, 2009

Bench: Ashok B.Hinchigeri

.1.

IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 13TH DAY OF OCTOBER 2009 
BEFORE '

THE HONBLE MRJUSTICE ASHOK 3.;-1I:\rc1L11'G:EI«2j:_{ "' 

WRIT PETITION NO.20263/2009 '(oM-Cine)  
Between A' A. l .

Dr.Prashant S Urs

S/o late l\/l.S.Somaraj Urs,

Aged about 42 years,

R/a No.2/A/8,

East End Main Road,

4"? '1' Block, Jayanagar,  H   cg *   .. 

Bangalore 560 041. _j  g '=. _  1    Petitioner

    .  

V.Girish _

S/o M.Venkataran1an, V'

Aged about .29 years,

R"/a No.34-;.g2m3~cross,' " A V

l"{.K.I.ayout'; F:admanabha"'Nagar,

BS-K II 'St;age,V Bangalore 560 070.  Respondent

   Adv for respondent--sd.. Absent
A " S:t.'i..'i*laniinlantharayappa, HCGP for State)

 'Nrit Petition is filed under Articles 226 and 227 of the

 Constitutiorx 'o.f'India praying to quash the Order dated 3.6.2009 in

«. '~OS..jV'O.4'5'3¢/2006 on IA,No.3 on the ﬁle of the Court of IV

A ._"Additi,ona.1_.ACivil Judge [Sr.Dn) and JMFC, Mysore in rejecting the

" 'f..re'ques'.i made by the petitioner to impound the agreement dated
' 1'21 _2_._f?.OO4 for insufficiency of stamp duty vide AnneXure--A.

This Writ Petition coming on for Preliminary Hearing in 'B'

 "_~Ofoup this day, the Court made the following:



ORDER

The petitioner has raised the challenge to the 3.6.2009 [Annexurev~A) passed by the Court of the K V' Judge {Sr.Dn) and JMFC, Mysore, on iA.eiefi1:' in .coes.1\;:e.x4_'55,t2e0sf'.'2

2. The facts of the case in brief ' are that the re'slj3Qii.de1T1t_ellﬁled 4 the suit seeking the relief of Olivfithe sale agreements dated respect of the schedule property. In suitVg:f':l'--.p'i'oceedings, the petitioner / defendant the documents.

dated 17. 12.20oai__1a',"'?':goos_ and the receipt. dated 10.8.2005. as is evident from the Trial Court'slA'(:ijder petitioner appears to have restricted ibisxargurrient.7'on.l'-the insufficiency of the stamp value 3dneV'docuiiient;li.e., dated 20.8.2005. The Trial Court disposedlfof holding that it does not arise for its 3consideration,. by the same, this petition is presented. it Subramanya, the learned Counsel appearing for the petitioner"Alhas raised a solitary but formidable contention that fund'er"fSection 33 of the Karnataka Stamp Act, 1957, the Trial is authorised to impound the document. if it is not duly ﬁﬁii . 3 ..

stamped, as soon as it comes to its notice in the course of discharging its functions. Section 33 of the said Act reads as follows:

33. Examination and impounding of instrumenvts_,"+._,C_C'-.

(1) Every person having by law or consent of authority to receive evidence, and every personfiri--" b charge of a public office, except an before whom any instrument, chargeab1:eti,n Ad with duty, is produced or comes in 'f1'i.Et"'p€rf01fEIi'r1i,.1CeA.0f:'j his functions, shall, if it appears» to"

instrument is not duty stamped_,...irr1pou.nd the 'same; {2} For that purpose evejiyho examine every ch'argeab'ie»ww.and so produced or Cominggbeforehim, to: ascertain Whether it is stampeddyvith value and description required byéthe lavkﬁ in force in the State of Karnataka , whengsuch instrumentgwas executed or first executed:

_ I V:h,ei*ein contained shail be deemed to require anyiiumagistrate or Judge of a Criminal Court to examinetorvimpound, if he does not think fit so to do, .,.::an;__instrument coming before him in the course of any

--p1"oCe.eding other than a proceeding under Chapter XIE C or Chapter XXXVI of the Code of Criminal Procedure, 1898;

ﬁﬁié

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{b} in the case of a Judge of the High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as thehg Court appoints in this behalf.

(3} For the purposes of this section, in cases of«l.do1ibt,l' the Government may determine,-

{a} what offices shall be deemed and .. ll {b} who shaii be deemed to bel*ple1'sonsllin of Public offices. l

4. Sri Subramanya als_o_l 1» notice that the respondents learned also admitted that the sale agreement 2O}8V5.2élyt}fi2'"isl:"'in.sufficient1y stamped and he sought the --return4"A't11e" sai-dlldocument. so that the respondent would penaltylandl insufficient stamp duty before the

5. Sri S_ui3ramanya submits that it is not in dispute that the sale. consideration was Rs.57,8().0()O/-- and that the l"'ipossessionn.~'of the schedule property was already made over to the lfreespondent. The duty payable is the same as a conveyance under 'Article 20 is on the market value of the property. The respondent .. 5..

is liable to pay the stamp duty of Rs.5,78,000/~ on the said agreement.

6. Sri Hanumantharayappa, the learned Government Pleader submits that the Trial Court appears to have proeeeded».ti:.1ja._dt;hVe matter as if the application is premature. As the ~ has not yet come, the Trial Court appears__to hays" 0"

lA.No.lH holding that it does not arise for itsieonsideration;"ee.,,, learned Government Pleader bt'ingsi:_t'e.__my 'notice of this Court in the case of K031 --Vs-

OBALESHAPPA AND OTHERS:'repertedvle_'tts:7~4__(2) KLJ 361. The relevant portiorrofyptite riepjorted decisioais extracted herein below:

"Chapter F; orftaltee CVK-airiiadtaka Stamp Act, 1957, contains pr'ovis'ions-_ enripoiyering the Court before which anvwfiynstarnped "do§:__nment is produced to levy stamp duty aridépertalty before it is admitted in evidence."

'3"'.'. 0'"l-he submissions of the learned Counsel have received my amzious cuonsi-Cpleration.

agreement, dated 20.8.2005 states that the is put in physical possession of the property in ' qegeeon. The Sale Agreement, dated 17.12.2004 states that the .aVr'tva§reed rate is Rs.365/-- per sft., for the property measuring 14,450 53% sft. On the same day the resporéident has also acknowledged the receipt of the keys of the schedule property for taking over its vacant possession. Ail these recitals clearly indicate that the agreed sale Consideration of Rs.57,80,000/-- and possession is already handed over by the * respondent. Therefore, the stamp value has to be"paidio;i1eethe' Asa}-eu agreement as a conveyance under Article 1:20 the 'emarkeet. {z-¢a;1--..=,e"a£ the property.

9. As is evident from the ordyeruipassed by 'the_AATitiEal Court, the respondent's side also appearsitcphhiaveuadinitted the fact of sale agreement being' *'}"i'here is reference in the impugned order" to heby the respondent's side for the return of docurunentsode"'td:enable him to pay the penalty and stamp"-idu'typ:'oefore the District Registrar hirnseif. __Courtpdo:es__not appear to have given due weightage to theseuaspectsv o-i"'_v~th'e;.Vrnattei'. But, the Triai Court has taken the considered View ' 'A that, as the document in question is not

4. .Vregisitere:d_., it is not admissible in evidence and therefore it need not V"«_Libelrinipoeunded. I am afraid this View of the Trial Court is not V esu'_sta:Lr1eable. The Karnataka Stamp Act, 1957, is a fiscal Act and e""«.th"erefore its provisions are required to be construed strictly. §§%

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10. The intendment of the legislature is clear by the use of the word "sha.1I" in Section 33 of the said Act, meaning the'"'C0urt has no option, but to impound the document, if it stamped. The intendment of the legislature is more proviso {a) to Section 33(2) of the said Ac,'t,"\7vh'erei;n a; <1\/jilagletrate or the Judge of the Criminal Court is given diseretioii examining or impounding the (iOC11ITi!3:ﬁt.,pif he does ﬁt tob do so, any instrument coming before the 'ceurse of any proceeding other than a proceteding' iunder XII or Chapter XXXVI ofthe c.P.c._ 1 1. if aniinsizffieiiciitly stamped document is not admitted in not be impounded, is not sustainable for hereinabove.

12_,Wt,' _:thevrefore~vVset__Aaside the impugned order. I.A.No.III stands;aE1_owed'i,n The Triai Court is directed to impound the sale x20.8.2005. No order as to costs.

Sd/-~ JUDGE "bNjn.,/V_<§R

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