M/S Valmark Homes vs Smt. Rathnamma on 25 November, 2021

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Karnataka High Court

M/S Valmark Homes vs Smt. Rathnamma on 25 November, 2021

Bench: Krishna S.Dixit

                               1

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 25TH DAY OF NOVEMBER, 2021

                             BEFORE

          THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

         WRIT PETITION NO.37227 OF 2016 (GM-CPC)

BETWEEN:
M/S. VALMARK HOMES
A PARTNERSHIP FIRM,
REPRESENTED BY ITS PARTNER,
SRI NAKODA CONSTRUCTION LIMITED,
NO. 133/1, THE RESIDENCY,
10TH FLOOR, RESIDENCY ROAD,
BENGALURU - 560 025.
REPRESENTED BY ITS DIRECTOR
SRI. MAHAVEER GULECHA
                                             ...PETITIONER
(BY SRI. RADHANANDAN B.S., ADVOCATE)

AND:

1.     SMT. RATHNAMMA
       W/O. LATE KRISHNAPPA
       AGED ABOUT 48 YEARS

2.     SRI. BABU K.
       S/O. LATE KRISHNAPPA
       AGED ABOUT 36 YEARS

3.     SRI. SHANKAR
       S/O. LATE KRISHNAPPA
       AGED ABOUT 34 YEARS

4.     SRI. M. PAPANNA
       S/O. MUNIYALLAPA
       AGED ABOUT 61 YEARS

5.     SRI ANAND H.P.
       S/O. M. PAPANNA
       AGED ABOUT 35 YEARS

6.     SRI. MANJUNATH H.P.
       S/O. M. PAPANNA
                             2

      AGED ABOUT 28 YEARS

7.    SMT. JAYAMMA
      W/O. LATE NARAYANASWAMY
      AGED ABOUT 58 YEARS

8.    SRI. SRINIVAS
      S/O. LATE NARAYANASWAMY
      AGED ABOUT 42 YEARS

9.    SRI. JAYARAM
      S/O. LATE NARAYANASWAMY
      AGED ABOUT 40 YEARS

10.   SRI. RAMESH
      S/O. LATE NARAYANASWAMY
      AGED ABOUT 39 YEARS

11.   SRI. DORESWAMY
      S/O. MUNIYELLAPPA
      AGED ABOUT 68 YEARS

12.   SRI. THAYAPPA
      S/O. DORESWAMY
      AGED ABOUT 38 YEARS

13.   SRI. VIJAY KUMAR
      S/O. DORESWAMY
      AGED ABOUT 32 YEARS

14.   SRI. NANJUNDA
      S/O. LATE MUNINARAYANAPPA
      AGED ABOUT 40 YEARS

15.   SRI. SRINIVAS
      S/O. LATE MUNINARAYANAPPA
      AGED ABOUT 34 YEARS

16.   SMT. GEETHAMMA
      W/O. LATE BHEEMANNA
      AGED ABOUT 43 YEARS

      ALL ARE RESIDING AT
      NO. 71/J, HULIMAVU MARIAMMA ROAD,
      BANGALORE - 560 076.
                                           ...RESPONDENTS
(R1 TO R3, R6 TO R11, R13 TO R15 - SERVED AND
UNREPRESENTED;
                                 3

NOTICE TO R5, R12, R16 ARE HELD SUFFICIENT V/O
DTD:9/7/2021)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH AND SET
ASIDE THE IMPUGNED ORDER DATED 13.01.2016 ON THE
ADMISSIBILITY OF THE DOCUMENT PASSED BY THE HON'BLE
39TH ADDL. CITY CIVIL AND SESSIONS JUDGE HOLDING
CHARGE OF 38TH ADDL. CITY CIVIL AND SESSIONS JUDGE,
BANGALORE CITY BANGALORE IN O.S.4443/2010 AT ANNEX-A.

     THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:

                             ORDER

Petitioner being the plaintiff in a money suit in O.S.No.4443/2010 is knocking at the doors of writ court for assailing the order dated 13.01.2016, whereby the Court below treating the subject instrument as providing delivery of possession of the property and therefore held it to be unduly stamped and consequently directed levy of duty & penalty under Sections 33 & 34 of Karnataka Stamp Act 1957.

2. Despite service of notice, the contesting respondents have not entered appearance; however that will not relieve the court from deciding the cause brought before it.

3. Having heard the learned counsel for the petitioner and having perused the petition papers, this Court 4 is inclined to grant indulgence in the matter inasmuch as paragraph 10 of the subject instrument/documents namely the agreement of sale dated 30.06.2007 reads as under:

"10. The Possession of the Schedule Property shall be handed over to the purchaser at the time of execution and registration of the sale deed."

The learned Judge has misconstrued this condition as parting away of the possession of the subject property simultaneously with the execution of the said instrument.

4. This Court in a catena of decisions has held that an Agreement to Sell as contra distinguished from a contract for sale shall be treated on par with the full conveyance if pursuant to the said agreement, possession of the said property is parted in favour of the vendee and not other wise; the text of clause 10 of the said agreement reproduced above does not speak of delivery of possession in present; that being the position, the instrument is miles away from article 5(e) of schedule to 1957 Act.

In the above circumstances, this writ petition succeeds; impugned order is set at naught; the Court below is directed 5 to consider admissibility of the subject document sans issue of stamp duty if it is otherwise relevant & admissible;

Since the suit is of the year 2010, the Court below is requested to try & dispose off the same within an outer limit of one year and report compliance to the Registrar general of this Court.

All contentions are kept open.

Costs made easy.

Sd/-

JUDGE DS/JY

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