Sri. Yaseen Khan vs Smt Suraiya Begum
2022 Latest Caselaw 8028 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 2ND DAY OF JUNE, 2022

                     BEFORE

THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

  WRIT PETITION NO. 13183 OF 2020(GM-CPC)

BETWEEN:

 SRI. YASEEN KHAN
 SINCE DEAD BY HIS LRs

 1A) SMT.SHAHISTHA SULTHANA,
 W/O LATE YASEEN KHAN,
 AGED ABOUT 41 YEARS

 1B) SMT. AYESHA BEGUM,
 D/O LATE YASEEN KHAN,
 AGED ABOUT 40 YEARS

 1C) SRI.IMRAN KHAN,
 S/O LATE YASEEN KHAN,
 AGED ABOUT 39 YEARS

 1D) SMT.NASEEBA BEGUM,
 D/O LATE YASEEN KHAN,
 AGED ABOUT 38 YEARS

 1E) SHAJIA BEGUM,
 D/O LATE YASEEN KHAN,
 AGED ABOUT 37 YEARS

 1F) SMT. ARSHIYA BEGUM,
 D/O LATE YASEEN KHAN,
 AGED ABOUT 35 YEARS
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 1G) KUM.ZAREENA KHANAUM,
 D/O LATE YASEEN KHAN,
 AGED ABOUT 10 YEARS
 MINOR REPRESENTED BY HER NATURAL
 GUARDIAN MOTHER
 SMT.SHAHISTHA SULTHANA

 ALL ARE RESIDING AT
 NO.692, 2ND CROSS, 29TH WARD,
 CHAMARAJPETE,
 CHICKBALLAPUR TALUK & DISTRICT-
 562101
                                    ...PETITIONERS
(BY SRI.S.N.ASWATHANARAYANA, SR.ADVOCATE
SRI.L NARASIMHA MURTHY, ADVOCATE FOR R1(A-G))

AND:

 SMT. SURAIYA BEGUM
 W/O FAROOQ PASHA
 AGED ABOUT 54 YEARS,
 R/AT REDDYGOLLAVARAHALLI VILLAGE,
 YALAGERE POST, KASABA HOBLI,
 CHICKBALLAPUR-562101

                                     ...RESPONDENT

(BY SRI.JAI PRAKASH REDDY.M, ADVOCATE)

     THIS PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DTD. 18.09.2020 (ANNX-H) PASSED
ON I.A.NO.7 FILED IN O.S. NO.75/2016 ON THE FILE OF
THE    PRL.SENIOR   CIVIL   JUDGE   AND   CJM    AT
CHICKBALLAPUR.
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     THIS PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:

                           ORDER

The captioned writ petition is filed questioning

the order dated 18.9.2020 passed on I.A.No.7 filed

under Section 151 in O.S.No.75/2016 by the

Prl.Senior Civil Judge and CJM, Chickballapur.

2. The original plaintiff has instituted a suit for

specific performance in O.S.No.75/2016. Since the

suit agreement was insufficiently stamped, the matter

was referred to District Registrar who has calculated

the deficit stamp duty payable and consequently has

also imposed penalty. The petitioners filed an

application in I.A.No.7 to send back the suit

agreement dated 13.06.2013 to the District Registrar

to calculate the duty and penalty as on the date of the

agreement. The petitioners are feeling aggrieved by

the duty and penalty determined by the District

Registrar by order dated 6.8.2019. The learned Judge

having examined the prayer sought in the application

however has declined to grant any relief and thereby

has rejected the application, which is under challenge

in this writ petition.

3. The learned Senior Counsel appearing for

the petitioners would contend that the deficit stamp

duty and consequential penalty determined by the

authority by imposing penalty at the rate of ten times

is on the higher side and therefore, the petitioners

have filed an application in I.A.No.7 requesting the

Court to send back the suit agreement so that the

competent authority can exercise its discretion and

reduce the penalty in the light of Section 39(b) of the

Karnataka Stamp Act. The learned Senior Counsel to

buttress his arguments would place reliance on the

judgment rendered by the Apex Court in the case of

Gangappa and another .vs. Fakkirappa1 and

contend that the authority has discretion in the matter

of imposition of penalty. Though the maximum

penalty that can be imposed is ten times, it is well

within the discretion of the authority to reduce the

penalty having regard to the facts and circumstances

of that particular transaction. It is in this background,

he would point out that the order under challenge

suffers from material irregularity and therefore,

warrants interference at the hands of this Court.

4. Per contra, the learned counsel for

respondent however would seriously object to the

contentions canvassed by the learned Senior Counsel.

He would point out that the very application filed

under Section 151 of CPC is not at all maintainable. If

the petitioners feel aggrieved by the determination in

imposing ten times penalty, it is open for the

(2010) 9 SCC 788

petitioners to question the determination done by the

District Registrar in accordance with law. He would

conclude his arguments contending that the Trial

Court is not vested with jurisdiction to issue directions

to the authorities to reconsider the matter and re-

determine the deficit stamp duty and penalty therein.

5. Heard learned Senior Counsel for the

petitioners and the learned counsel for respondent. I

have also given my anxious consideration to the

dictum laid down by the Apex Court in the judgment

cited supra.

6. The Trial Court having impounded the

document refered it to the District Registrar. The

District Registrar by order dated 6.8.2019 has

determined the deficit stamp duty and penalty to the

tune of Rs.23,76,550/-. The grievance of the

petitioner is that the penalty imposed by the authority

is contrary to Section 39(b) of the Karnataka Stamp

Act and also contrary to the dictum laid down by the

Apex Court in the judgment cited supra. Though this

Court absolutely has no cavil to the proposition laid

down in the judgment cited supra, I do not find any

illegality in the order under challenge. If the

petitioners feel aggrieved by the penalty imposed by

the authority, it is always open for them to challenge

the said order before the competent forum. They

cannot seek a direction by filing an application in the

pending suit to resend the suit agreement for re-

consideration or re-determination of the stamp duty

afresh. Once there is a determination by the

competent authority, the consequences would follow.

If the petitioners feel aggrieved by the determination

of penalty, it is always open for them to seek

appropriate relief before the competent forum.

Therefore, I do not find any illegality in the impugned

order.

Accordingly, the writ petition is dismissed.

However, the order passed by this Court would not

come in the way of the petitioners in availing the

remedy available to them under law.

In view of the disposal of the writ petition, the

amount deposited by the petitioners pursuant to the

interim order granted by this Court shall be refunded

to the petitioners on proper identification.

Sd/-

JUDGE

*alb/-