Sri Veerappa vs Smt. Susheelamma
2022 Latest Caselaw 9572 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 24TH DAY OF JUNE 2022

                       BEFORE

       THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

     WRIT PETITION NO.3243 OF 2018 (GM-CPC)

BETWEEN:
       SRI. VEERAPPA,
       S/O LATE NANJAIAH,
       AGED ABOUT 57 YEARS,
       HEBBALE GRAMA,
       KASABA HOBLI,
       ARKALGUDU TALUK,
       HASSAN DISTRICT - 573 102.
                                       ...PETITIONER
(BY SRI. V.B. SHIVA KUMAR, ADVOCATE)

AND:
1.     SMT. SUSHEELAMMA,
       W/O SRI. VEERAPPA,
       AGED ABOUT 55 YEARS,
       HEBBALE GRAMA,
       KASABA HOBLI,
       ARKALGUDU TALUK,
       HASSAN DISTRICT - 573 102.

2.     SMT. MALLIKA,
       D/O SRI. VEERAPPA,
       AGED ABOUT 32 YEARS,
       HEBBALE GRAMA,
       KASABA HOBLI,
       ARKALGUDU TALUK,
       HASSAN DISTRICT - 573 102.
                             2

3.    SRI. JANARADHANA,
      S/O SRI. VEERAPPA,
      AGED ABOUT 30 YEARS,
      HEBBALE GRAMA,
      KASABA HOBLI,
      ARKALGUDU TALUK,
      HASSAN DISTRICT - 573 102.

4.    SRI. K. LAKSHMAN,
      S/O LATE KALEGOWDA
      AGED ABOUT 44 YEARS,
      DHARMAPURI GRAMA,
      KASABA HOBLI
      ALUR TALUK - 573 213.
                                          ...RESPONDENTS

(BY SMT. K.R. ROOPA, HCGP FOR GOVT. V/O DTD:08.11.2019;
     NOTICE TO R1 IS H/S V/O DATED17.11.2021;
     R2 AND R3 ARE SEVRVED;
     SRI. KUMAR K.G., ADVOCATE FOR R4)

     THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE ORDER DATED 21.11.2017 ON I.A.NO.3
PASSED BY THE CIVIL JUDGE, J.M.F.C AT ALUR IN
O.S.NO.42/2016 MARKED AS ANNEXURE-A AND DIRECT
THE CIVIL JUDGE AND J.M.F.C ALUR IN IMPOUND THE
DOCUMENT AND RECOVER THE DUTY PENALTY.

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

                         ORDER

The petitioner aggrieved by the order on

I.A.No.3 dated 21.11.2017 passed in O.S.No.42/2016

by the Civil Judge and J.M.F.C., Alur, has filed this writ

petition.

2. Brief facts leading rise to filing of this

petition are as under:

Respondent No.4 filed a suit in O.S.No.42/2016

seeking for the relief of specific performance of

contract of agreement of sale. The petitioner filed an

application I.A-3 under Section 34 of the Karnataka

Stamp Act r/w Section 151 of the Code of Civil

Procedure to direct respondent No.4 to pay the stamp

duty and penalty on the alleged agreement of sale.

The said application was opposed by the respondent

No.4 by filing objection. The Trial Court, after hearing

the parties, rejected the application filed by the

petitioner. Hence, this writ petition.

3. Heard the learned counsel for petitioner,

learned High Court Government Pleader for State and

also learned counsel for the respondent No.4.

4. Learned counsel for the petitioner submits

that the respondent No.4 has agreed to handover

possession of the suit schedule property. He submits

that there is a recital in the agreement that

respondent No.4 agreed to handover possession of the

suit schedule property. In view of the same,

respondent No.4 is liable to pay the stamp duty and

penalty as per the Article 5(e)(i) of the Schedule to

the Karnataka Stamp Act, 1957. He further submits

that the Trial Court has committed an error in

rejecting the application filed by the petitioner.

Hence, on these grounds, he prays to allow the writ

petition.

5. Per contra, learned counsel for the

respondent No.4 and learned High Court Government

Pleader supports the impugned order.

6. Perused the records and considered the

submissions of the learned counsel for the parties.

7. The Trial Court in the impugned order has

observed as under:

"11. In this case also plaintiff is in possession of the schedule property prior to the agreement but in the agreement there is no recital in the agreement with regard to delivery of possession or agreed to be delivery possession. Hence, the above citation is not applicable to case on hand.

12. The advocate for plaintiff argued and placed two authorities reported in 2015 (5) KCCR 1159, B.C.Narayanaswamy and others V/s Smt.Makbulunnisa and others. This judgment has been delivered by the Justice Sri. A.V.Chandrashekhar. In that case it is held that, to impose stamp duty and penalty, the document in question has to be considered on the basis of the very recitals found in the said document.

13. In this case on perusal of the document, there is no recital with regard to possession hence, the above authority is not applicable to case on hand.

14. The another authority reported in ILR 2014 Karnataka 4350, N.Srinivasan

V/s Sri.Murulesh and others. Justice Sri.N.Kumar delivered the above Judgment. In that it is held that, to attract the provision of Article 5(e)(i) there should be recital in the agreement of sale to the effect that, under the agreement the possession is delivered. In absence of said recital it cannot be order to pay stamp duty and penalty.

15. As discussed above there is no recital about the possession in the agreement dated 13.12.2006. Therefore to attract stamp duty under Article 5(e)(i) the owning two conditions have to be fulfilled.

As per Article 5(e)(i) if relating to sale of immovable property wherein part performance of the contract.

i) Possession of the property is delivered or is agreed to be delivered without executing the conveyance - same duty as a conveyance (No.20) on the market value of the property.

ii) Possession of the property is not delivered - 0.25 rupee for every 100 rupees or party there of on

the market value equal to the amount of consideration.

In this case the agreement date is 2006, market value of the property 4,85,000/-. Article 5(e)(ii) has been amended on 01.04.2009. As per amended article 5(e)(ii) the plaintiff has to pay stamp duty of 0.25 rupees for every one hundred but the document questioned in this case is for the year 2006. Prior to the amendment of Article 5(e)(ii)

Consideration amount Stamp duty

If the consideration Rs.10 amount exceeds Rs.5,000/-

If exceed 5,000/- but does Rs.20 not exceed Rs.20,000/-

If exceeds Rs.20,000/- Rs.100

But does not exceed Rs.200 Rs.50,000/- exceed Rs.50,000/-

In the said document consideration amount show as 4,85,000/- and document written on Rs.200/- stamp paper. The amendment of Article 5(e)(ii) is not applicable. As per old Article 5(e)(ii) the

plaintiff paid Rs.200/-. Hence the stamp duty paid by the plaintiff is sufficient. As discussed above the defendants have not made out ground to allow the I.A. Hence, I answer to Point No.1 is in the Negative.

8. Admittedly, the agreement of sale is of the

year 2006 that is prior to amendment of Article

5(e)(ii). As per the old Article 5(e)(ii) of the Schedule

to the Karnataka Stamp Act, 1957, the respondent

paid Rs.200/- on agreement of sale which is sufficient.

The Trial Court, after considering the material on

record, was justified in rejecting the application filed

by the petitioner. Hence, I do not find any grounds to

interfere with the impugned order. Accordingly, writ

petition is dismissed.

SD/-

JUDGE

GRD