Karnataka High Court
Ramesh S/O. Rama Sangolli, vs Fakkirappa S/O. Lokappa Chalawadi, on 20 February, 2014
Author: N.Kumar
Bench: N.Kumar
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20th DAY OF FEBRUARY 2014
BEFORE
THE HON'BLE MR. JUSTICE N.KUMAR
WRIT PETITION No.67391 OF 2011 (GM-CPC)
BETWEEN
RAMESH
S/O. RAMA SANGOLLI
AGE: 61 YEARS, OCC: AGRICULTURE
R/O. LINGANAMATH
TQ: KHANAPUR,
DIST: BELGAUM ...PETITIONER
(By SRI DINESH M KULKARNI, ADVOCATE)
AND
FAKKIRAPPA
S/O. LOKAPPA CHALAWADI
AGE: 71 YEARS, OCC: AGRICULTURE
R/O. LINGANAMATH
TQ: KHANAPUR
NOW AT MALAPRABHA INDIRA NAGAR
ALNAVAR
TQ & DIST: DHARWAD ...RESPONDENT
(By Sri SHREEVATSA S HEGDE, ADVOCATE)
2
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
SET ASIDE THE ORDER DATED 24/10/2011 PASSED BY
THE SENIOR CIVIL JUDGE, KHANAPUR, IN
O.S.NO.127/2008, VIDE ANNEXURE-H AS NULL AND VOID.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT, MADE THE
FOLLOWING:
ORDER
This writ petition is filed challenging the order passed by the trial Court dismissing the application filed by the defendant under Section 33 and 34 of the Karnataka Stamp Act, 1957 for impounding the agreement of sale, which is marked in the case as Ex.P-1.
2. Ex.P-1 is an agreement of sale, which is not in dispute. It is on Rs.50/- stamp paper. The stamp duty payable on agreement of sale is Rs.200/-. Therefore it is insufficiently stamped. Insufficient stamp duty is Rs.150/- and ten times of it is Rs.1500/-, which is the penalty payable. In other words, Rs.1650/- is to be paid. The 3 grievance of the defendant is, though there is no recital in the agreement of sale that possession was delivered under the agreement of sale, the recitals in para 4 of the plaint makes it clear that possession was delivered subsequent to agreement of sale. Therefore he contends that when possession is delivered in pursuance of agreement of sale, the document is to be stamped as conveyance. Therefore Article 5(e)(1) of the Act, is attracted.
3. Article 5(e)(1) of the Act, applies to a case where, an memorandum of agreement relating to sale of immovable property, wherein part performance of the contract, the possession of the property is delivered or is agreed to be delivered without executing the conveyance. Then such an instrument is to be stamped as conveyance on the market value of the property.
4. In the instant case, admittedly possession is not delivered under the agreement. There is also no agreement 4 of delivery of possession without executing the conveyance. Therefore, Article 5(e)(1) of the Act, is not attracted. The trial Judge is justified in holding so. But he has over looked the fact that the agreement of sale should have been stamped with Rs.200/-. The same having not been done, he was bound to collect Rs.150/- and ten times of Rs.150/-. Thus in all Rs.1,650/-. Though he has marked the document subject to that objection, a duty is cast on him under Section 33 of the Act, to levy the insufficient stamp duty and collect ten times penalty. In that view of the matter, I pass the following order:
Writ petition is dismissed. However, the plaintiff shall pay a sum of Rs.1650/- towards insufficient stamp duty and penalty and then proceed with the case on merits.
SD/-
JUDGE ksp/-