Karnataka High Court
K Veeranna vs Shri Sreesha Enterprises on 26 March, 2010
Author: Subhash B.Adi
Bench: Subhash B.Adi
IN THE HIGH COURT OF' KARNATAKA AT BANGALORE
DATED THIS THE 25m DAY OF MARCH 2010 H
BEFO RE
THE HONBLE MRJUSTICE sUBHAsH.s,_;'Ap1
WRIT PETITION NO. 12523 2608 '(€.?.--M}CiéCJ ' _
BETWEEN:
K. Veerarma.
S/0 Shri. Kaniveyappa,
Aged about 89 years.
Thmdlu Grama,
Vidyaranyapura Post, -. r
Bangalore North Taluk. .."PlE2TITIONER
(By Sri. Ashok 4E3ltaPa}€i1,'._~Aci§r.)
1.. Shri;«Sr'eesha 'Esfit:::rp.riTses.;'
N0. 13%, (fxround "E'Ec.or'.~
4-?" MairT~VROadV,
_aP'1\::<: Marlwst Yard.
V-.a._E3'ar1-gaiare -- 56G----922.
" T T?_ep--resér1ted.by its Proprietor
--'_shr:_"a,1§...'sr1nath, %
. S/0 Shri €18. Krishnamurthy Setty.
'<«Age_:1'a.b.:)ut 39 years,
Residing at No.3{)4, 12*" Cross,
' as r Seczrahd BIOc1«;,Jayanagar.
' ..I;3ar1ga1ore -~ 550 01 1. .. RESPONDENT
* (33: HS. Dwarakanath H. Hanumantharayappag HCGP V W " far State) V ' '~:stani'pe'd -t_he..,doc,t: rite 'such. theagreenient. does not V IL) I This Writ Petition is filed tlI1C1€I' Articles 226 & 227 of the Constitution of India praying to setwaside the order dated 22.2.2008 passed by the court of the XI Add}. City Civil Judge on l.A.No.3 in O.S.No.2006/2007' at Annexure--J. * This Petition coming on for hearing this day:
made the following:
~ _'Ct}ulr'1.,.
This Writ. Petition is directed "order 22.2.2008 on I.A.E\io.3 on the X1 AAddi.City'i3..i'vi1."Judge.,x* Bangalore City.
2. Respondent' ~-- 'for specific performance of t';_hel'agreeIi:*ien?t sa1AeL'li'--lPetitifoner as a defendant filed his other contentions. a specific to the admissibility of the agi"een--1en1, of that. under the agreement.
the plaintiff h'as"'oeei--_i p-'.._.it"~ih possession and as it is not duly 1-it-.« t,'.'c111I101 be admitted in evidence or acted Tlvapplication was opposed by the plair1titl' on the ground t.hat'V'sih.ere is no actoat delivery of possession and as attract the provisions of Sections 34 of the Karnataka Stamp Act. The trial court accepted ' contentions raised by the plaintiff and held that the doctirnent does not warrant. for payment of duty and penalty. As against. the said order. this petit.ion is filed. '.1;
'
3. S1*i.Ashok B.Pa1iI. learned Counsel anearincf for {he I 1 2:;
petitioner submiited that. respondenfl, who was an alleged lessee. has filed a suit for specific pe1'for1nanee":
agreement. The Clause 5(e) of the agreement readsfas 1%,x.nvdei':e . "
''5[e} In view of the urlderstondingé " {'.}vie'»'_'_:", PARTIES hereto the PURCHASER is I10[":,UL1bl(3 to porg rents to the \/ENDORfrom l1ereQj"«on}'1z'fie possessiorir of the scheduie property shall be the":
PURCHASER is in pfluhsiciflx possessa_'or'i of'""~é!1e~' schedule properiu as parkberfbr-mancee.5o['7.this Agreement to Self. " ' { u f1der.Z,iri~i ;1g;.'s:;q5p1;gd}a He submitted that'.'««;1fi1:fie possession as a lessee was of sale as part oo11;.:t_'1"ac't.'.."VuFurther, clause shows that the respohciehrii. not pay rem. Despiie {his trial court has ad1'hi11V€Ci..i:he'*.sa'1d document: in the evidence and 'submii;.{eci.f:;ha'11 if £heVCio'eun'1e1'11 is eompulsorily chargeabke. it is 'th'e"r}«.u1'y to look into the document, determine the question avs.toi--whether the document requires payment of duty and per1a1L§_,' and izhereafiier it should determine the amount and Caiied upon the party Eo pay the duty as well as the
--._'Vw;)en%a1ty before impounding the doeumem. However, the court ;*§3eIow has not followed the procedure. lljcourt to look into the document.
4. On the contrary. learned Counsel appearing for the respondent. submitted that. Article 5 clause {e} oi' the schedule to the Karnataka Stamp Act {'Act' for short} stipulates gdelivery of possession or agreement of delivery of pOSS€SSl_€2I1_'lI1"l7i.i'l.tll'l'§? date. in this case, under the agreenient. there is"-no vd'_eliyc.ry--of possession. I-file relied on preamble ol"*i_he do.cunjient"an"d submitted that. admittedly the yyrespolrident is in;;posisesls:ioi=iyVofu the suit schedule property an"cl.y.l"i1e is eon'tiI1_x1:ied.bto' be in possession and there is 'no terrn'i'riatiori"s-oi" tenaneyl In these circumstances. his possession cannot be" to be under the agreement. but_.it*i:s'*prioii' to title ~agreerr1eri:t and it will not fall under Article.,5¢l?l.l"Q.lau:;§5 "{ef"'f-ll 'thel sc--he.d"ule to the Act.
5. $ect.i'ons' the Act: prohibit. admitting any docxurnent. \vhic_h 'is.v"coinpulsorily chargeable and ii" It is not it 's-ufii'c'l;sieiitiiy or duly staintped. the public office or the court would ll't:onsider;_Vthe'v'document to find out whether the document is required 'charged and if it is chargeable. determine the duty an'd_p"cna1ty. call upon the party and thereaftei" the party pay the said amount. the court has power to impound document. Since it is the fiscal liabilit.y, it is the duty of the to find out whether it is ehargeabie or not and ii' it is chargeable, court is required to determine the same in accordance with the provisions of Section 34 of the Act. '
6. I--Iowever, in this case. in the written contention is raised as regard to_the_ad:iiVi'ssiio.i'iity': of document and aiso as regard to ;'o'ayi"nen._t addition to this, an a}3p}icatio':i_"w_as for document. No doubt, said _eyerivfibeiore the document was presented--._..V:i'n_' When this writ petition was pending. the however, during the course ei-oi'-s_s--exan"iinati'o'1'i, the marking oi' the document) is ehVa.;11eii§ed. '
7. xN.o the document is not disputed and once it is°adniitt'ed, 'norn1ally there is no power for the court «-So re-o__a'i} the dootiine1'it~a'lready admitted in the evidence. But if 1 'the y'(i'oni"t.»_'iivasieaiready passed an order holding that the agreenlerit not warrant for payment of duty and penalty 'and the~1'eafter, if it has marked the document. the question oi' 'fraiysing. objection also does not arise. iven if it is marked. it is ' marked in pursuance of its order, now impugned, as such the "aobjection to the marking was raised and it is thereaiter the rgactfi _{,_ cloeument. is marked. hence marking will not afiec1'. the rights of the petitioner to challenge the same.
8. As regards to the possession. Clause E'>.{je}"_'oii"'--the agreement 01' sale referred to above respondent was in possession as a__»ies_s4ee_ mentioned that, in part peri'o1'n1a';1cei;'_'_'oi; possession will continue. A;--uciei'iixelatisellilel,oi' the Act refers to an agreement oi'_s_al'e_un_der whirflfi possession is delivered. Delivery of pos'se.sSion may =ae'ti.;al or constructive. II' the Jossessionls deliveredi'in'i.e art '"e"rl'or1'nanee of the contract. as .it..Woo=.ld he}-in jjossession under the agreementiw'liyjjihe"said'cl¢oetin1ent,'.V it is also stated that the 1'esponde'nt is not liablei'vtolipaly. the rent. hence. his possession I :_ has now (tome. u'ndei<_ the a-"-"'1'eemen1',. Further his ossession is . _ . 5 "~._i_n ;p_e1*fo1'n1anCe------moi" the contract. These Cil'(3Ll.H1St3.i1C€S feleiarlyv_in.diea'tethai he has been put in possession under the agreement. "Q_n.£Ee he is put in possession under the agreement. fthe instrtinz1eVnt'. is chargeable and the plaintiff is required to pay itch-i.t:y as well as the penalty determined by the court.
9. Hence. I find that the order passed by the trial court in rejecting the application for impounding is contrary to the provisions 0i'Artic}e 5 clause (e) of the Seheduie to the Act and further is aiso in vioiation of Section 34 of the Act. I11-Q_i'e SO, when the Clocrument p1'esented in evidence marked. it should have been looked into by the L.'.~'_4'i";:-"$11 it"; reiates the revenue of the State and iS~i'~€.(11',1il'€C'1 tC)V'(3C)VV1'1S_'iCiV€I*'3VC1VV ' properly.
Aeeordingiy, the petition' iS~.__:e&.3,_QweC.lV'. .__The_vOifde.i¥"'iii"1pVtigr1eti' V in this writ petition is q1:laSh€dV,»-"'TI:'i€. riizeitter is'vremi'tted to the trial court to consider the 'LiOC'11'I'§)'¢§t'1V"'L:v ari'dV:t_d,ett'erniine the duty as well as the penaity/V'ir_i tertiiS'V'otTV:j;je_eti.tC>ii. 34 Q.i'VV'Vthe Aet. thereafter, fix a date ii" payment of duty is made. ti'iefi"ihe .VdOC1"/1::{I"3"flV<".'l't"1I~1i')V'(3 refe.r'i~e'dV to the Registrar of Stamps in 1€I'H15Vz'0\f"ih€vi3.I;t)'\;iS.§#)t1.?5:'t3.fi¢:Sff3CtiOI'iS 37 and 39 of the Act. If the duty ant3"per151it.y__ai'¢ S1410-'Liv paid as detemiined. the Court is at " '~ ,_1ii3€Iity:¥.tO: iii;90und"the._c1t)cumer1t.. 3%/~ ESEGE KNM/~