Karnataka High Court
Mr. Syed Mohiddin vs Sri Sonnappa on 2 September, 2022
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR.JUSTICE R. NATARAJ
WRIT PETITION NO.10947 OF 2016 (GM - CPC)
BETWEEN:
MR SYED MOHIDDIN
S/O SYED AJIMUDDIN
AGED 67 YEARS
OCC: AGRICULTURIST
R/O KATTAGENAHALLI
HOSKOTE TALUK
BENGALURU DISTRICT - 562114. ...PETITIONER
(BY SRI VEERANNA G TIGADI, ADVOCATE)
AND:
1. SRI SONNAPPA
S/O LATE THAMMANNA
AGED: 79 YEARS
R/O KODIHALLAI VILLAGE
JADIGENAHALLI HOBLI
HOSKOTE TALUK
BENGALURU RURAL DISTRICT - 562114.
2. SMT SUBBAMMA
W/O LATE SRIKANTACHARI
AGED: 77 YEARS
3. SMT LEELAVATHAMMA
D/O LATE SRIKANTACHARI
AGE: 56 YEARS
2
4. SMT PRABHAVATHAMMA
D/O LATE SRIKANTACHARI
AGED: 54 YEARS
5. SRI MANJUNATH
S/O LATE SRIKANTACHARI
AGED: 51 YEARS
6. SRI GAJENDRA KUMAR
S/O LATE SRIKANTACHARI
AGED: 44 YEARS
7. SMT MANGALA
S/O LATE S/VIJAY KUMAR
AGED: 32 YEARS
(RESPONDENT NO.2, 4 ARE
RESIDENTS OF 2ND STAGE
MARUTHI EXTENSION
NEAR HANUMANTANAGAR
MALUR - 563130.
(RESPONDENT NO.3, 5 TO 7
ARE THE RESIDENTS OF
DODDAKADATHUR VILLAGE
KASABA HOBLI
MALUR TALUK - 563130.
...RESPONDENTS
(VIDE ORDER DATED 31.8.2021 SERVICE OF NOTICE TO
RESPONDENT NO.1 IS HELD SUFFICIENT
VIDE ORDER DATED 4.10.2021 NOTICE TO RESPONDENT NOS.2
TO 7 ARE DISPENSED WITH,
BY SMT.H R ANITHA, HIGH COURT GOVERNMENT PLEADER)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ANNEXURE - J THE ORDER DATED 05.02.2016 I.A.NO.XXII AND
3
XXIII IN ORIGINAL SUIT NO.135/2012 PASSED BY THE
LEARNED SENIOR CIVIL JUDGE, MALUR AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner was the defendant No.7 in O.S.No.135/2012 on the file of the Senior Civil Judge and JMFC, Malur (hereinafter referred to as 'Trial Court' for short), who had filed this writ petition challenging an order dated 05.02.2016 passed therein, by which, the application (I.A. No.XX wrongly stated as I.A. No.XXII in the impugned order) filed by him and application (I.A. No.XIX wrongly stated as I.A. No.XXIII in the impugned order) filed by defendant Nos.4 and 5 under Sections 33 and 34 of the Karnataka Stamp Act, 1957 (hereinafter referred to as 'the Act of 1957' for short) were rejected. 4
2. The parties shall henceforth be referred to as they were arrayed before the Trial Court.
3. The suit in O.S.No.135/2012 was filed for specific performance of an agreement of sale dated 08.12.2009. The plaintiff claimed that he had entered into an agreement of sale with the defendant Nos.1 to 6 agreeing to purchase the suit property for a total sale consideration of Rs.20,00,000/- and had paid a sum of Rs.19,50,000/-. The suit was contested by the defendant Nos.4 and 5 by filing their written statement. Later, the suit property was transferred to the defendant No.7 and the defendant No.7 was brought on record. The defendant No.7 also filed his written statement denying the averments made in the plaint and claimed to be a bona fide purchaser.
4. Based on these rival contentions, the Trial Court set down the suit for trial and after the trial was concluded, the suit was set down for arguments. The plaintiff addressed arguments and the case was thereafter 5 posted for the arguments of the defendants, who also argued the case and the suit was set down for reply arguments of the plaintiff. At that stage, the defendant No.7 filed an application under Sections 33 and 34 of the Act of 1957 to recall the order marking the agreement of sale dated 08.12.2009 on the ground that it was insufficiently stamped or in the alternative to direct the plaintiff to pay duty and penalty as applicable. Defendant Nos.4 and 5 filed an application to direct the plaintiff to pay the duty and penalty on Ex.P1, which was insufficiently stamped. The Trial Court in terms of its order impugned in this writ petition, rejected the applications on the ground that once a document is marked, it cannot be recalled.
5. Being aggrieved by the aforesaid order, the defendant No.7 has filed this writ petition.
6. Learned counsel for the defendant No.7 submitted that under Section 33 of the Act, 1957, the Trial Court does not loose jurisdiction to recover the duty and penalty as the document is placed before the Trial Court 6 and is marked in evidence. He further submitted that this document is relied upon by the plaintiff and therefore, he is bound to pay proper stamp duty. He submitted that mere marking of a duty will not prevent the Trial Court from recovering the applicable stamp duty and penalty.
7. Learned High Court Government Pleader submitted that once a document is marked, there is no provision in law to recover the stamp duty and supports the order passed by the Trial Court.
8. I have considered the submissions made by the learned counsel for the petitioner and the learned High Court Government Pleader.
9. Once an insufficiently stamped instrument or document is brought before the Court, it owes a duty to impound the said document and collect the applicable duty and penalty. Section 34 of the Act of 1957 mandates that no document which is not sufficiently stamped can be 7 admitted in evidence. The question whether the inverse is applicable has fallen for consideration in this writ petition.
10. In the case on hand, an agreement of sale was marked in evidence though it was insufficiently stamped. A reading of Sections 33 and 34 of the Act, 1957 leaves no doubt that the Court does not loose the jurisdiction to collect duty and penalty in respect of an insufficiently stamped document, which is admitted in evidence. A judgment of a coordinate Bench of this Court in K. Amarnath v. Smt.Puttamma [2000 (4) Kar.L.J.55] considered the said question and held as follows:
"9. When a document is produced and sought to be exhibited, the Court should decide whether it is admissible or not immediately, so that the parties will know whether such document could be relied on or not. If a document is not admitted, by refusing to mark it, the party may take steps to let in other relevant and permissible evidence to prove the document. On the other hand, if the document is marked in evidence, the parties may not choose to let in further evidence on that aspect. When the question of marking of the document is left open, 8 the parties will have to proceed with the evidence with considerable uncertainty. Therefore, Courts should consider and decide the question of admissibility of a document sought to be exhibited, before proceeding further with the evidence. If the Court has any doubt, it may hear arguments on the question.
10. A duty is cast upon every Judge to examine every document that is sought to be marked in evidence. The nomenclature of the document is not decisive. The question of admissibility (with reference to Section 34 of Karnataka Stamp Act, or Section 35 of Indian Stamp Act and Section 49 of Registration Act) will have to be decided by reading the document and deciding its nature and classification. The tendency to mark documents without inspection and verification should be eschewed. Even while recording ex parte evidence or while recording evidence in the absence of the Counsel for the other side, the Court should be vigilant and examine and ascertain the nature of the document proposed to be marked and ensure that it is a document which is admissible. The Court should not depend on objections of the other Counsel before considering whether the document is admissible in evidence or not. Section 33 of the Stamp Act casts a duty on the Court to examine the document to 9 find out whether it is duly stamped or not, irrespective of the fact whether an objection to its marking is raised or not. It should be borne in mind that once a document is admitted in evidence, it cannot be called in question thereafter on the ground that it was not duly stamped. Once the Court admits a document even wrongly, such admission becomes final and cannot be reopened. Hence, the need for diligence not only on the part of the opposite Counsel, but also on the part of the Court having regard to the statutory obligation under Section 33 of Karnataka Stamp Act.
11. A combined reading of Sections 33, 34, 35, 37 and 41 of the Karnataka Stamp Act requires the following procedure to be adopted by a Court while considering the question of admissibility of a document with reference to the Stamp Act: (a) when a document comes up before the Court, it has to examine and determine whether it is properly stamped. When the other side objects to it, the Court should consider such objection and hear both sides; (b) after hearing, if the Court comes to the conclusion that the document has been duly stamped, it shall proceed to admit the document into evidence; (c) on the other hand, if the Court comes to the conclusion that the document is not stamped or insufficiently stamped, it shall pass an order holding that the document is not duly 10 stamped and determine the Stamp duty/deficit stamp duty and penalty to be paid and fix a date to enable the party who produces the document to pay the Stamp duty/deficit Stamp duty plus penalty; (d) if the party pays the duty and penalty the Court shall certify that proper amount of duty and penalty has been levied and record the name and address of the person paying the said duty and penalty and then admit the document in evidence as provided under Section 41(2); and the Court shall send an authenticated copy of the instrument to the District Registrar together with a Certificate and the amount collected as duty and penalty, as provided under Section 37(1); (e) if the party does not pay the duty and penalty, the Court will have to pass an order impounding the document and send the instrument in original, to the District Registrar for being dealt with in accordance with law as per Section 37(2) of the Karnataka Stamp Act."
11. From the aforesaid statutory provisions of law and the decision referred above, it is clear that a duty is cast upon every Judge who is competent to receive evidence to examine whether a document placed before him is sufficiently stamped or not. If a document is found to be insufficiently stamped, then in terms of the proviso 11
(a) to Section 34 of the Act of 1957, the Court shall call upon the person, who is tendering the said document to pay duty and penalty. Mere marking of a document would not efface the responsibility of the Court to collect such duty and penalty as held by a coordinate Bench of this Court in Smt. Savithramma R.C. v. M/s. Vijaya Bank and another [ILR 2015 Kar 1984]. This Court further held:
"If the Judge does not act under Section 34 of the Act, but the document is insufficiently stamped and admitted in evidence though objection regarding admissibility cannot be raised subsequently that does not take away his obligation to impound the document under Section 33 of the Act. If the document is insufficiently stamped and if the Court has admitted such instrument in evidence without collecting duty and penalty, then the Judge shall proceed under Section 33 of the Act and impound the document. After impounding the document, he shall proceed under Section 37(2) of the Act and shall send the impounded instrument in original to the Deputy Commissioner to be dealt with under Section 39 of the Act."12
12. In addition, the Court is bound to calculate the duty and penalty payable and recover it as costs. In the present case, the Trial Court has blatantly ignored this position of law and has rejected the applications on the mere ground that the document is already marked in evidence and therefore, the Court has no jurisdiction to collect the duty and penalty. This finding of the Trial Court deserves to be interfered with. Hence, the following:
ORDER This Writ Petition is allowed. The Order dated 05.02.2016 passed on I.A.No.XX (wrongly stated as I.A. No.XXII in the impugned order) filed by defendant No.7 and I.A. No.XIX (wrongly stated as I.A. No.XXIII in the impugned order) filed by defendant Nos.4 and 5 in O.S. No.135/2012 passed by the Senior Civil Judge and JMFC., Malur, is set aside. Consequently, the aforesaid applications filed by the defendant No.7 / petitioner herein and defendant Nos.4 and 5 respectively, are allowed. The Trial Court is directed to forward the agreement of sale 13 dated 08.12.2009 marked as Ex.P1 to the District Registrar of Stamps and Valuation, Kolar District, for ascertainment of proper stamp duty.
Sd/-
JUDGE NR - para Nos.1 to 7 sma-from para No.8 till end