M/S Hinduja Trading Company vs V Vijaya Raghava Rao on 15 December, 2010

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Karnataka High Court

M/S Hinduja Trading Company vs V Vijaya Raghava Rao on 15 December, 2010

Bench: A.N.Venugopala Gowda

IN

THE HON'BLE MR. JUSTICE A.N.VE.NU_GOPALA"GQWDAV 

THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 15"' DAY OF DECEMBER, 20.10]-«._I_E~--v.VV

BEFORE

WRIT PETITION NO.13855/*2O1.QI({3N>CPC"   

BETWEEN:

M/S HINDUJA TRADING CONIRAN_Y--R._,
NO.70, MISSION R,O"AD, I 'I ' 
BANGALORE -- 560 O2?' _ 1
BY IT'S PARTNER ._ '  r
MRS VEENA RNINDu.;IA_'-»V '  '  

  : '  '  PETITIONER

(BY SRI DR. I;"C";I,A'GAA11_NATI5:..__é«SRI"_PRAI<ASH RAO, ADVS)

AND:

v V:/I3A.YA .RAGjr:.Av'.A'  1. ' '
S/OLATE V"VEERABHADRA RAO
AGED'~ABOUT"4_1'YEARS3.

¢;SME.PADM'A.v'_AIHI '

 "'\:*\//;_Q v I/IIAYA' ~A----S~HAvA RAO

  AGED ASQUT 37 YEARS

 5ESG~':?H«.VARE'~RQ'AT
. '-vNO.2'7,fI, END CROSS,
*-..__R.Rv.'M.R}'EXTENSION

EAN.C;A'LORE - 560027

= _SRI'"R CHANDRASHEKAR
 AGED ABOUT 52 YEARS

SMT NAGAVALLI CHANDRASHEKAR
AGED ABOUT 47 YEARS



BOTH ARE R/AT
I-LE3. SAMAJA ROAD

BANGALORE ~ 560 004  
 RESPO4i:\i'EDE_'NVTS'

(BY M/S.D R P BABU & ASSTS, ADVS FOR R1 & R2)_3':--- 0

THIS WRIT PETITION Is FILED UNDER ART'IeI;ES"I22-S 0-. 
227 OF THE CONSTITUTION OF INDIA."PRAYIAIO.TO« QVOASHTHE 
ORDER DATED 03.03.2010 PASSED IN O:._'Ss.E\!I'O.'II41'22f2OO'E.._.E335;'
THE 5" ADDITIONAL CITY cIvIL;_ JODGE, '-.BAi\iGAL---ORE"

(AI\ENEXURE~D).

THIS PETITION COMING OAITOR PRELII-wI«_I&IiAfav HEARING
IN '3' GROUP THIS DAY, THE cOLIRT.."LIAO'E.._THE FOL.!,.QWING:

Petitioner isiithe 3;""¢Iefen0I*a}I--tV__Iﬁ- QISa.No.4122/2005
on the fiie"'O'f.__Vi:€ét3f 'Bangalore, filed by

respondents OiV°O'Ei':,--2_::'a.ga§.n'st._respondents 3 & 4. For the

purpose of-.Io0In\re'nie'n0e.,':"theparties would be referred to with 'reference toitihyeir rank in the suit. 0' :'.,%~t'¢Vl'a..éVntIffs has fiied the suit based on a sale 29.09.2004, to direct the defendants to V -V exeOute"t:he's"aie deed i.e., to specificaliy perform their part vncontiract under the said sale agreement. The 3"

A d'e:fen'dant (petitioner) is a purchaser of the property from /3.

the defendants 1 & 2. By filing written statement, the suit has been contested. Issues were framed. 2"" gala-i.n'tiff deposed as PW--1. When the sale agreement':5dj'a:te€%._,_"'_ 29.09.2004 was sought to be hadgmittecl'"":'n~--'fevi'deVnce,.,:4 objection was raised for its marking. 3fhre:'obj»e'ct'io'n'hav.i,n*g;_n been found to be unacceptab3'e_w.aus oxrerruled.*,'QAu.e5ti,oriing the said order, the 3" defendantlilhas f.i_l_ed t'hi--sl_writ_fpetition.

3. Sri S.N.Murth-y,_V 0' it .AA.',ser_i,ior advocate appearing for Article S(e) of Karnataka 'the Act') is clear that, delh/elred or is agreed to be delivered, the agreement has to be on the market ﬂxl'/"al,_ue'...h.'-Sincelthe sale agreement contains the . l'''cove~n'ant:regarding''''d'elivery of vacant possession, without tkhéviltlocument and directing the plaintiff to pay the»..,defic.it':st-amp duty and the penalty at 10 times, the ""~.__V"order passed is irrational and illegal. Sri D.R.P Babu, learned advocate appearing for _,.th§e respondents 1 & 2 (plaintiffs), by ﬂberring to the sale agreement dated 29.09.2004 -- suit document, contended that, the relevant recital in the agreement is to deliver possession of the suit property and there being no effected and acknowledgement on the part of the trial court is justified in overruling the_'o'E3je1Cti:o'ns'andill 0' admitting the agreement of sale inievid-en.cel.3_1 0

5. In view of the rival contentioras and' tiiiewrvecord of the writ petition, which I halvep-evrusedpltihe point for consideration is:

Whether the suit egi'eemen.tfis_ llinsuhiiciently stamped anvd"whcetjheirliitiere.is---an3?"n'eeci for impounding of the de.curn'ent"l' '0 the plaintiffs to pay the deficit stanripl penalty in exercise of the powerllltgincier.Sections 33 8: 34 of the Act? The l"rei--e--v'ant covenant under the sale 29.09.2004, copy of which has been produced _lasls:P,ri::nexu re-8, reads as follows:

vendors No.1 & 2 agreed to hereby deliver the 0' '=._vacar1t possession together with original documents 00 * -relating to the title of the scheduled properties which the purchasers hereby acknowledﬁe.

/.

I The purchasers No.1 & purchasers No.2 have a'greed to legalise the missing documents of properiv 9/1 & 9/2, give vacant possession objection certificate for manufacturing ..t7oo(3.Vvpro'ducts' "

from the neighbours and cleaimall"the-«sstatottoryp'Cities as on the date of sale properties."

7. The Act was;_.amende.ud:'0y 'Apt with effect from O1.O4.19V9\$._V:".1he__Vfstiitzi"hdoeument is dated 29.09.2004. crease' (e}'VVt'o"{i) came to be substituted effect from 01.04.19.9.5.._i'*In' 'sa.iVt_.»tjocument having been executed on the amended provision is appiicabIe."t_¢" V i. H ArtiHci'e~i,,5_(eV) in the Scheduie to the Act pres'c.ri'0--evs',.thVatv agreement or its records or memorandum of"agreeme.n~t,VA'.:=.ifs reiating to saie of immovable property, 'spwherein part" performance of the contract, possession of "..jt.he'hp.r0pVerty is delivered or is agreed to be delivered executing the conveyance, then, the stamp duty i 9» ,- s payable is the same as conveyance No.20 on the market value of the property. The explanation to Article 5(e) to (i) prescribes that, for the purpose of clause (i) of clause (e) and clause (h), where subsequently, conveyance.» or mortgage as the case may be, is executed in pur,s_uance*;of~« V. such agreement or its records or memorandum,__thejstamp.'f duty, if any, already paid and reco:'/termed' o,_n"--.the or its record or memorandum shal'i'.__b:e.adjusted'~tovya:rdsV'* the total duty Ieviable on the coenveyance.or'=.rri.ortgaVge, as the case may be.

9;' """ thesaidxprovisions, it is clear that, where an agreement 'o,f."v$ja~le"--~._u'i'ider which the possession is delivered, it"'amoVu.n'~ts"to"conveyance and hence, attracts q:,uty~vi.a_S co\n\/e'yance No.20 on the market value of is to say, the stamp duty in respect of suciyan agreement covered by Article 5(e) is ieviable as if is a c'o.nyeyance. The conditions to be fulfilled are; it iii) if there is an agreement of sale of immovable property wherein part performance of contract 'ﬁe:

possession of such property is delivered to the purchaser, or

(ii) is agreed to be delivered without executing.___the Conveyance in respect thereof, an agreement of sale deemed to be a conVeyanfeje.,__i' 5 _.__ é

10. In the instant case, the»agre_em'entj,e"n:te::ed_.:4 into between the parties, which is'-._the"suit'iid_oc'u'm'e"rit~...for:_i ciaiming the relief of specificperforrnaxnce, for sale of immovable property a_n'd..:_it-.._y_does' recite of possession having beeni:7d.eii-yeijyed:"f~'ftiere is also no agreement to deliver :ti"ie».:immo*.tai:nie jjrotoerty without executing re'soe'ctV~Vt»i'iereof. Neither of the said cond_iti'o'ns tohoid that the document is insufficientiy««.._V%% stam__pe.d".'L-~'i'Uniess the document is .~-.é_insuffi5::ientiyV% star'np.ed,v there cannot be impounding.

of the document, there cannot be any dete.ri*.1'ination' the deficit stamp duty payable and the '.conser:;ue'n:t ievy of penaity in terms of Section 34 of the (:

11. While passing the impugned order, the trial court has noticed the relevant clauses of the agreement.

Having found that there is no delivery of possession ofgthe suit property under the agreement by the vendors' purchasers, it has rightly overruled the admitting the document in evidence;~»T.he in being in conformity with law, no interference is. In the result, the writ isihdeyoidglof and shall stand dismissed.

Sd/-3 JUDGE Nov I'

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