Karnataka High Court
Totappa S/O. Tippanna Suranagi vs Virupaxagoiuda S/O. Basanagouda Patil on 10 January, 2014
Author: N.Kumar
Bench: N.Kumar
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 10TH DAY OF JANUARY 2014
BEFORE
THE HON'BLE MR. JUSTICE N.KUMAR
WRIT PETITION NO.70881/2012 (GM-CPC)
BETWEEN:
TOTAPPA S/O.TIPPANNA SURANAGI,
AGE 47 YEARS, OCC.: AGRICULTURE,
R/O.LAXMESHWAR-582 116,
TQ.: SHIRAHATTI, DIST.: GADAG.
... PETITIONER
(BY SRI.S.S.KOLIWAD, ADVOCATE)
AND:
1. VIRUPAXAGOIUDA S/O.BASANAGOUIDA PATIL,
AGE 57 YEARS, OCC.: AGRICULTURE & BUSINESS,
R/O.: SHIRUR, TQ.: KUNDAGOL,
NOW AT RESIDING VISHWESHAWAR NAGAR,
NO.45, M.H.B. COLONY, HUBLI-20,
DISTRICT DHARWAD.
2. SMT.NEELAVVA W/O.VIRUPAXAGOUDA PATIL,
AGE 48 YEARS, OCC.: AGRICULTURE,
R/O.: SHIRUR, TQ.: KUNDAGOL,
NOW AT RESIDING VISHWESHAWAR NAGAR,
NO.45, M.H.B. COLONY, HUBLI-20,
DISTRICT DHARWAD.
:2:
3. STATE OF KARNATAKA,
REP. BY REVENUE SECRETARY,
M.S. BUILDING, BANGALORE.
... RESPONDENTS
(BY SRI.SADASHIV S. PATIL, ADVOCATE FOR R1 AND R2
SRI.ANAND K.NAVALGIMATH, HCGP FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
SET ASIDE THE ORDER DATED 28.06.2012 PASSED BY THE
CIVIL JUDGE LAXMESHWAR IN O.S.NO.101/2010 VIDE
ANNEXURE-D AS NULL AND VOID.
THIS PETITION COMING ON FOR FINAL HEARING
THIS DAY, THE COURT, MADE THE FOLLOWING:
ORDER
The petitioner has preferred this writ petition challenging the order passed by the trial Court directing the plaintiff to pay the stamp duty of Rs.44/- on the agreement of sale and ten times penalty.
2. The plaintiffs have filed a suit for specific performance of agreement of sale, dated 25.05.2009. The consideration mentioned in the agreement of sale is Rs.4,50,000/-. However, the agreement was written on Rs.6/- stamp paper, whereas it ought to have written on a :3: stamp paper worth Rs.1,125/-. Before filing the suit realizing that the document is not duly stamped, the plaintiffs paid a sum of Rs.1,075/- stamp duty, which according to them was deficit. However, at the time of marking of the document, the defendant objected to the marking on the ground that it is insufficiently stamped. The trial Court upheld the objection and found that the deficit stamp duty was Rs.44/- and therefore, it directed the plaintiffs to pay Rs.44/- deficit stamp duty and ten time the penalty. The plaintiffs have paid the said amount. Now the grievance of the petitioner in this writ petition is that only Rs.6/- was paid on the agreement of sale at the time of the execution of the agreement and admittedly, the plaintiffs have paid Rs.1,075/- additional stamp duty, penalty is payable 10 times the said amount. Therefore, they are aggrieved by the order passed by the Courts below.
3. Section 34 of the Stamp Act deals with the payment of duty and penalty. It categorically provides that :4: no instrument chargeable with the duty shall be admitted in evidence, unless, such instrument is duly stamped, proviso
(a) makes it clear that such an insufficiently stamped documents could be admitted in evidence on payment of a duty, with which the same is chargeable or in a cases of any instrument is insufficiently stamped of the amount required to make such duty together with a penalty of Rs.5/- or ten times the amount of the proper duty or deficit portion thereof exceeds Rs.5/- or sum equals to ten time of duty apportioned. Therefore, it is clear that at the time of the document is tendered in evidence and admitted in evidence, if the instrument is not duly stamped, the deficit stamp duty is to be paid and ten times the penalty is to be paid.
4. The Section do not refer to the payment of duty on the date of execution of the instrument. Even a document, which is executed and it is insufficiently stamped, the sufficient stamp could be supplied before the :5: document is tendered in evidence, so as to avoid mischief of Section 34 of the Act. In the instant case, when Rs.6/- was the stamp paper, on which the agreement of sale was executed, it was insufficiently stamped and the stamp duty payable was Rs.1,125/-, when the plaintiff decided to file a suit and to tender the said document in evidence, he paid the duty of Rs.1,075/-, which according to him would be the proper stamp duty. It is only when the objection was raised at the time of marking, it was found that the document was insufficiently stamped to the extent of Rs.44/-, that is what the Court could have insisted on and ten times the penalty of that insufficiently stamp duty. Therefore, the order passed by the trial Court is just and proper and do not suffer from any legal infirmity. No merits, dismissed.
Sd/-
JUDGE Vnp*