Karnataka High Court
M/S Khivraj Motors vs Sathya D Sampath W/O Sri D Sampath on 8 April, 2010
Author: B.S.Patil
Bench: B.S.Patil
WP10895/2010
1N THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED TI-IIS THE 87" DAY OF' APRIL, 20 19 --f ._
BEFORE * H
THE HONBLE MR.JUST§-C'"E»B..SA.I?A'rrLf.--'I.
W.}'.No.10895/201d°£G1irif§'Ci5C}:AA" A
BETWEEN: A I A A
1. M/s.Khivraj Motors. A
A Registered Partnershi_}5"-F,'irm, _ V
Having its office at No. 140/ * }
Kasturba Road, Bangalore''--_ f 1
560 001, duly represen'ted'b}j
its partners: 4' A =:
2. Mr. Devraj3Chor:f'1ia,"'--- . '
Aged abQut ,
3. Mr. ' A
Aged about 50 yearise A'
4. Mr. Prafuleharid. Ch0r;:1ia;'
Agegzl about 47" years. V
V. M15 Je£ii:n:r111A.._Ch0rdia,
_ Aged abput 'years.
A11 residingzaf No. 10 /2,
_ Kasturba Read, Bangalore ~
560 001; Ml duly represented
--. by Mr.VGanesh Hegde,
Aged about 60 years,
_S/--e~'SI';'. Ganappaya Hegde,
Business Manager.
' = --W0rk1'ng at 13% Petitioner Firm. PETITIONERS
" *VV{By S1-i B.S.Sat11yanand. Adv.)
WT' E0895/2010
AND:
Smt. Sathya Ilsampath,
W/o Sri Dsampath,
Aged about 60 years,
R/at No.35/8, Langford Road,
Langford Town,
Bangalore W 560 025. nss1_,¥oj1~z}ns1i:'r.'.:', 0
{By Sri M.Dl1yan Chinnappa, Adv., for '
M/s.Crest Law Partners. Advs, for C/RA)
This petition is filed undererhrtioiestt' of the
Constitution of India praying,<"to* oritset "aside the
impugned orders dated Annex--C in
O.S.No.9571/2006,A._passedV--biz 1-the-. 1e.arr1fiedV 'ii:frh" Addl. City Civil
Judgtifiangaiorc
for iéreiiminary Hearing, this day,
the Courtéqiade th_¢'f§'114¢wi1_ige_" h
V' - _'_'9R9ER
ffietiitionsers are«.de.fendants in the Trial Court. They are
V':;hd1I'en_gin.g"~thei"order dated 12.03.2010 passed by the Trial
Court"'£io1di1ig--:that the xerox copy of the unregistered iease
'agreerrietit,chorifronted to PW--1 in the course of cross-
' eicarriination was not admissible in evidence and therefore,
be permitted to be marked.
._ J;
WP 10895/2010
4
requisite stamp duty. Aggrieved by this order, the present writ
petition is filed.
3. Learned Counsel for the petitioners submits that as the
document in question is admitted by the witness, even itais a
Xerox copy and although it is a compulsorily
document. the court ought to have received it ands
allowed it to be marked. In this regiardgiplearnedlppflounsell
placed reliance on the following pjudgmentsfl
{1} T.MOHAN vs AND. _ Ara-)T1§i3R -- ILR
2003 KAR 353-3.;
{ii}p"" ores. VS PARVATINI
V _ AMARE:~i'D;§zaCIe1o'JIDI1ARY & ons. -- 2007 AIR scw
_4233?xp.. , op,
p{:=;ii)" BIPIN PANCHAL VS STATE OF GUJARAT
V. AND ANOTHER --- AIR 2001 so 1158:
VV~-\f1:;,*$1SfJlésNEYA SETTY VS K.H.RANGIAl-I SETTY --- ILR
_ .205'02"KAR 3613.
A Taking support from the judgment of the Apex Court in
it of T.MoH.A1~z vs KANNAMMAL AN!) ANOTHER -- ILR 2003
3533. learned Counsel for the petitioners contends that in
~ .:.the absence of the original document, copy of the agreement
which was nothing but a duplicate of the original could have
fie
if
WP 10895/2010
5
been received as secondary evidence in the case as PW--l had
admitted the said document. It is necessary at this stage to
observe that in the aforementioned case, the question _.1'egarding
compulsory registration of the document, a duplicate
was sought to be produced and markedon th_e'grcu_ndV"that the "
witness had admitted the signaturesvlon ;the:'dccuIn:e'nt" not 6
arise. Learned Counsel further draws ..attent1on AQfT..hC Court' *
to the observation made in para of decision in the case of
BIPIN SI-IANTILAL PANCH.AI;_ vs ;s1}*Aa:E_ or GUJARAT AND
ANOTHER - AIR 2001 so 1A15S'._ to eorltend. £1'1a:---- in matters where
any objection is of any material in
evidencefithe bett'e.::~~course_Tis--. _ti1at keeping open the objection,
the material-could be evidence so as to avoid delay
V and togjfacilitate flflecappellate court to have the benefit of the
would be otherwise discarded if the objections
Were"-ct_ojcAbe4:"goriel'VV'i::ito at the stage of tendering the document
_itse1f.'~..Irierfurther submits that the Trial Court ought to have
<4""':v".'A"-.aliowed the document to be marked subject to objection.
Counsel has drawn the attention of the Court to
c -p.a_.ragraphs 18 & 30 of the judgment in KANJANEYA SETIY VS
A C' " SETTY --- ILR 2002 KAR 3613, to contend that
t no total prohibition for receiving unregistered document
we 10895/2010
6
in evidence. It is held in the said case that unregistered
partition deed could be received in evidence to prove any
collateral transaction. Thus, the main crux of the argument is
that regardless of whether it is a Xerox copy or an unregistered
document, the Court below ought to have the
document subject to objection.
5. Learned Counsel for the
contentions urged by the petitioner, hasedrawn i:he.attenti.onaof*..g
the Court to the decision in the of 11A12,io1v.{Ati:;AiiirAL vs V
PRAKASH CHAN!) MALVIYA'wg_AII§°§I)O8V-li'}._66, iri'sup'port of his
contention.lmlVHe.?h_asllihrgeldaitliat 'admittedly the original of the
docunienthisl indisputably the transaction
reflected in xe1°oj.xf.copyl'sought to be confronted in evidence
'l"is_a eolinpiilsorily registerable document. What the petitioner
original, cannot be done with the copy of
the 'same. HlnI_other words, his contention is that even if the
'petitioner llvgrere to confront PW--1 with the original lease deed
clomplulsorily registerable, he could not have relied upon the
unless the said document was admitted in evidence by
lhfollowing the procedure prescribed under the Karnataka Stamp
A 1957 by impounding the same and on payment of the
WP 10895/2010
7
requisite stamp duty and penalty. Therefore, in the absence of
the original document, petitioner cannot achieve any better
result by producing the xerox copy as the same cannot be
impounded and the petitioner cannot be permitted to rely:
saine and mark it in evidence. Placing reliance
& 8 of the judgment of the Apex it
Case, learned Counsel for the respondent_'_'submit.s'"thatitthe'law
is now well settled that copy'l_o'f, an iiistriimentfceannot bee' validated by impounding and the___sam_e'»cannot«be admitted as secondary evidence under-'the Act, 1899. He submits that though this.'j'ud,<j:mei1t"»ii_sl in connection with theiprovisionleunder the Indian Stamp Act. the same is the'*-- position vvitliyhlregéard to the provisions under the Karnat_ai{aeeStamp 1957. as well.
Apfi%i'~--.Court in the aforementioned judgment was situation where the copy of the lease deed had been produced' and relied upon and the question arose as to it it * llhwhctlier the same could be admitted in evidence by impounding collecting the stamp duty and penalw. In that context, the ~ 'A' Court observed as unden-
WP 10895/2010 8
"8. It is clear from the decisions of this Court and a plain reading of Sections 33, 35 and 2[14} of the Act that an instrument which is not duly stamped can be impounded and when the required fee penalty has been paid for such instrument it taken in evidence under Section 35 of the Stan1j5'Act.v'- r.~ S Sections 33 or 35 are not concerned with anye'copy.A_'o,F the instrument and party can oniy"'b'e alloewedx on the document which is an meaning of Section 2(14). i»e"Fhuere inclusion of the copy of documeri.t for ttie_burt2ose's the Indian Stamp Act. no doubtiueil settled that copy' the cannot be validated by' impounding 1 cannot be ad:nitted'* setifondazy evidence under the Indian Stainp "Act; .i:89T9,'f' ee "
7. The definitivonieof tlietiterm 'instrument' in the Karnataka '3 "Stamp.Act;-e.A19t57, as caiibe seen from Section 2[j} is parimateria definition of the term 'instrument' contained in Section 2(1_4} Indian Stamp Act, 1899. except in so far as the amendment carried in the year 1999 to the Karnataka 'Act, 1957, by which 'even a record created or maintained or by an electronic storage and retrieval device or media' is V _ uhaiso inciuded in the definition of the term 'instrument'. tr WT' £0895/2010
8. Having heard the learned Counsel for the parties and on careful perusal of the materials on record and the judgments relied on by the learned Counsel for the parties, I learned Trial Judge was right and justified xerox copy of the document which ishlcompuvlsorily cannot be admitted in evidence, No doiiht, PVV--i.I'.has adrnitteld in her evidence when confrontedlvwlith the lXerox..'co]o3I that the lease deed was executed fliilelfii had since expired. The admission by a parfir an otherwise inadmissible doeumerjt tO:r'b€§El%l'dI1ilZ1ZéTf:~:iY1v%Mf;tZ:L€T1C€, as otherwise it will amount' enacted in this regard under theeARegistratjon:'Act;~.l9O8. 5 As per Section 17{1}(d] of the Registration "Aflctl, V1908,"Athejtransaction contained in the xerox __copy sought to" ~ marked in evidence is compulsorily 49 of the Registration Act, 1908, spells out eerroiiilregistration of documents required to be V V' _registéred.--._'. Itetates that, Vl""'No document required by Section 17 or by any 'provision of the Transfer of Property Act, 1882, to be registered shall» (CL) effect any imrnooable property comprised therein; or we ioses/2010 10
(b) confer any power to adopt, or {c} be received as evidence of any affecting such property or conferring such S __ ' unless it has been registered." * .. * -. '
9. The proviso to Section 49 en_aets_as Whergiiidi under such document could be received. isstated such a document can be received as evidence. ofia cro._'ntract in at . L' suit for specific performance orV__as:Wevidence' ofvvanyiicoiiateral transaction not required tdhe .ef1*ect.ed Ejyipregisbtered instrument.
10. Therefore, inthe instant.Vcase.,fmerc1yi because PW«~1 has admitted,» "in course pcrossierzamination when confronted with the Sgerort vvas such a document executed, the said xedroxib copdyi cannot be permitted to be marked in ,eviden'c'.e ignoring fl18__[)'i"Qhibi1LiOI1 contained under Section 49 of V"the;Registrat.ion"'Act, 1908. It is not the case of the petitioner that docdumepntivshould have been permitted to be marked for 'collateral purpose. On the contrary, it is contended that as the kdocumentvdiis admitted, it should be permitted to be marked in ..jevid:ebnce to prove the transaction and the contents thereof.
--..4: fore, such permission, if granted, would certainly run we 10895/2010 1 1 counter to the mandate contained under Section 49 of the Registration Act, 1908.
11. Moreover, the court below has specifically--e3it that wherever the objection relates topdeficieney"of" the Court has to decide the objection.._before:'proceeding'further and therefore the decision rendered byllthis Cotirt' vs KANNAMMAL AND ANOTHER -'iVL:R 2ooa":tA:R'l35f;3 had no application to the facts of-.._._tl.?e case-.. case, it cannot be disputed that the transactionvihWasltretiuirevdl registered and the document laspier the provisions of the readlwith the provisions of the Registration Act, in dispute that the document does not beart'theV'r'equisite stamp duty. It is in this background 'll'tlaat c--ou1*tA.belovv""l'ias held that the document cannot be :'in;'evi'der1{:e. The judgment relied on by the learned Cour1sel for respondent in the case of HARIOM AGRAWAL VS 'pgAKAsHV"cHAND MALVIYA -- AR 2003 so 166 is directly applica'b1e to the facts of the present case, in as much as the copy cannot be impounded for the purpose of making it pdlvadmissible. The original having not been produced, the question of impounding the document does not arise. is wp 10895/2010 12 Therefore, no exception can be found with the order passed by the court beiow. The other decisions relied on by the iesmed Counsei for the petitioners also have no application to involved in this case. d I
12. Hence, writ petition being devoidppofbprnerit' is it V '