Karnataka High Court
Sri G M Krishnappa vs State Of Karnataka on 16 June, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 6695 OF 2022 (GM-CPC)
BETWEEN:
SRI G M KRISHNAPPA
S/O MUNIVENKATAPPA,
AGED ABOUT 58 YEARS,
R/AT MUGABALA VILLAGE,
JADIGENAHALLI HOBLI,
HOSAKOTE TALUK,
BENGALURU RURAL DISTRICT-562114
...PETITIONER
(BY SRI.GOPI.P.M, ADVOCATE FOR SRI.
SIDDAMALLAPPA.P.M, ADVOCATE)
AND
1. STATE OF KARNATAKA
REPRESENTED BY ITS PRINCIPAL SECRETARY,
DEPARTMENT OF HOME,
VIKASA SOUDHA,
VIDHANA VEEDHI,
BANGALORE-560001
2. THE DISTRICT REGISTRAR
DISTRICT REGISTRATION OFFICE,
S S COMPLEX,
MAHALAKSHMI LAYOUT,
M B ROAD,
KOLAR-563101
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3. SRI D C DODDAPPAIAH
S/O CHANNARAYAPPA,
AGED ABOUT 70 YEARS,
R/AT DODDADENAHALLI VILLAGE,
JADIGENAHALLI HOBLI,
HOSAKOTE TALUK,
BANGALORE RURAL DISTRICT-562114
...RESPONDENTS
(BY SMT.ANITHA.H.R. HCGP FOR R1 AND 2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226
OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE ORDER DTD. 07.01.2020 PASSED IN O.S.NO. 79/2016
BY THE LEARNED SENIOR CIVIL JUDGE AND JMFC, MALUR,
KOLAR DISTRICT, EXPECTING THE ORDER OF
DTD.28.8.2019 R-2 AND DIRECTED THE PLAINTIFF/
PETITIONER TO PAY DUTY AND PENALTY ON AGREEMENT
OF SALE DTD. 20.02.2013 AS PER ANNX-D AND E AND
ETC.,
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
ORDER
The captioned writ petition is filed by the plaintiff, who is questioning the order dated 01.08.2019 passed by the learned Senior Civil Judge, Malur in O.S.No.79/2016 on I.A.No.III filed under Section 31 of Karnataka Stamp Act read with Section 3 151 of CPC as per Annexure-D and the subsequent order dated 28.08.2019 passed by the District Registrar, Kolar, as per Annexure-E to the writ petition.
2. The petitioner/plaintiff has instituted a suit for specific performance of contract in O.S.79/2016. It is the specific case of the petitioner that respondents/defendants offered to sell the suit schedule property and in terms of negotiation, he has executed an unregistered agreement to sell on 20.02.2013 for a sale consideration of `23,60,000/- and has received an advance amount of `10,00,000/-. The present suit is filed by specifically alleging that respondents/defendants have failed to perform their part of contract.
3. The learned Trial Judge, has suo-motu, proceeded to impound the document at the time of 4 marking though there was no objection by the respondents/defendants. Thereafter, an application is filed in I.A.No.III. The learned Trial Judge has forwarded the suit document to the District Registrar, Kolar District, to determine the Duty and penalty payable on the suit document. Pursuant to the receipt of document, the District Registrar, by order dated 28.08.2019 as per Annexure-E, has determined the Duty and penalty under Article 5(e)(ii) by treating the suit document as conveyance and thereby determined the penalty at `12,95,800/-. These two orders are under challenge.
4. Heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader appearing for respondent Nos.1 and 2.
5. Admittedly, the suit agreement is without possession. Therefore, the Stamp Duty chargeable on 5 the present suit documents is in terms of Article 5(e)(ii) of Karnataka Stamp Act, 1957. The question that needs to be examined by this Court is in two parts. Firstly, this Court has to examine whether the learned Trial Judge was justified in referring the document to the authority to determine the Duty and penalty payable. It is a trite law that once the document is impounded at the time of trial, the Court is required to determine the Duty and penalty payable on the said document. Therefore, this Court needs to examine as to whether the learned Trial Judge is justified in forwarding the document to the authority to determine the Duty and penalty payable on the suit document. In the light of dictum laid down by the Division Bench in Digambar Warty vs. District Registrar, Bengaluru Urban District and another1, this Court is of the view that the learned Trial Judge has no option other than imposing penalty of ten 1 ILR 2013 KAR 2099 6 times the Duty payable. Undisputedly, the suit document in question is drawn on a stamp paper of `200/-. It is a unregistered agreement to sell without possession. Therefore, the Duty and penalty has to be determined interms of Article 5(e)(ii). Admittedly, the sale consideration is `23,60,000/-. Therefore, the Duty payable has to be assessed in terms of Article 5(e)(ii). On perusal of the order passed by the District Registrar as per Annexure-E, this Court would find that the authority has proceeded to determine the Duty and consequently penalty by treating the suit document under Article 5(e)(i) of Karnataka Stamp Act, 1957. Authority has proceeded on an assumption that the agreement is coupled with deemed possession and therefore, calculated the Duty payable at the rate of `1,18,000/- and after deducting Rs.200/-, the Duty payable is assessed as `1,17,800/. By imposing ten times penalty, the Duty is assessed as `12,95,800/-.
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6. In the light of dictum laid down by the Division Bench in the judgment cited supra, the order of the learned Trial Judge as per Annexure-D forwarding the document to the authority to determine Duty and penalty suffers from serious infirmities and therefore, the consequent order passed by the Authority as per Annexure-E is also not sustainable.
7. While determining Duty and penalty, it is incumbent on the part of the Court to examine the recitals in the document. It is a trite law that the stamp Duty chargeable on the document has to be determined only on the basis of recitals in document and reference to relevant provision of law under which document is chargeable or not by referring to pleadings of parties or prayer made in the plaint. Therefore, the order of the learned Trial Judge in forwarding the document and consequent 8 determination by the District Registrar are erroneous and are liable to be set aside.
8. The order passed by the learned Trial Judge vide Annexure-D also runs contrary to the principles laid down by this Court in J.S. Paramesh Siddegowda v/s 2 Indramma V. Murthy case. This Court in the case of 3 Suman v/s Vinayak and another noticed that Trial Courts in recent time are not exercising the power vested under Section 34 for impounding the document, inspite of direction given by Division Bench in Digambar Warty vs. District Registrar, Bengaluru 4 Urban District and another case. The co-ordinate Bench of this Court in the case of K.C.Huchappa and 5 others v/s K.M.Kemparaju , referring to the dictum laid down by the Division Bench in the case of Digambar Warty vs. District Registrar, Bengaluru 2 2008 (5) KARLJ 502 3 2014 (1) KLJ 575 4 ILR 2013 KAR 2099 5 2016(5)KLJ 152 9 6 Urban District and another , has held that Trial Court is bound to impose penalty of ten times and collect the requisite stamp Duty.
9. Keeping these principles in mind, if the facts on hand are examined, this Court would find that agreement does not indicate that the vendors have delivered physical vacant position of suit schedule property in favour of plaintiff. Therefore, this Court is of the view that Article 5(e)(ii) of the Karnataka Stamp Act, 1957 is applicable to the suit document. Hence, the stamp Duty that becomes payable would be same as required to be paid under Article 5(e)(ii) of the Karnataka Stamp Act, 1957 and not under Article 20 as determined by the Authority.
10. For the reasons stated supra, I am of the view that impugned order passed by the learned Trial Judge 6 ILR 2013 KAR 2099 10 forwarding the document as per Annexure-D and consequent determination of duty and penalty by the Authority are not at all sustainable as they are found to be palpably erroneous. Hence, I pass the following;
ORDER
i. The writ petition is allowed. The
impugned orders at Annexure-D and
E are quashed.
ii. The learned Trial Judge is directed to determine the Duty and penalty by referring to the suit document and also by taking note of the principles laid down by Division Bench of this Court in the case of Digambar Warty vs. District Registrar, Bengaluru Urban District and another.
Sd/-
JUDGE HDK