Karnataka High Court
Sri Krishnegowda vs Smt Mamatha on 22 October, 2024
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WP No. 26179 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
WRIT PETITION NO. 26179 OF 2024 (GM-CPC)
BETWEEN:
SRI. KRISHNEGOWDA
S/O LATE KUPPEGOWDA,
AGED ABOUT 56 YEARS,
R/O NO.2896/F, 14TH MAIN ,
WARD NO.40, RPC LAYOUT,
VIJAYANAGARA,
BANGLAORE-560 040.
...PETITIONER
(BY SRI. VIRUPAKSHAIAH P.H., ADVOCATE)
AND:
SMT. MAMATHA
W/O S.S. NAGARAJU,
AGED ABOUT 62 YEARS,
R/AT NO.3465/A, 1ST G CROSS,
RPC LAYOUT, VIJAYANAGARA,
BANGALORE-560 040.
Digitally signed
by ...RESPONDENT
MARKONAHALLI (BY SRI. M.D. BASAVANNA, ADVOCATE FOR
RAMU PRIYA
Location: HIGH
CAVEATOR/RESPONDENT)
COURT OF
KARNATAKA
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER DATED 21.08.2024 VIDE ANNEXURE-H PASSED ON I.A.NO.8
IN O.S.NO.8897/2012 BY THE XXXI ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BANGALORE BY ALLOWING THE APPLICATION
FILED BY PETITIONER / DEFENDANT UNDER SECTION 33 AND 34 OF
THE KARNATAKA STAMP ACT, 1957 VIDE ANNEXURE-F.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
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WP No. 26179 of 2024
CORAM: HON'BLE MR JUSTICE R. NATARAJ
ORAL ORDER
The defendant in O.S.No.8897/2012 pending trial before
the XXXI Additional City Civil and Sessions Judge, Bengaluru
(henceforth referred to as 'Trial Court') has filed this petition
challenging an order dated 21.08.2024 by which, an application
(I.A.No.VIII) filed by him under Sections 33 and 34 of the
Karnataka Stamp Act, 1957 (henceforth referred to as 'Act,
1957') to impound the agreement of sale dated 11.06.2010
(Ex.P1) was rejected.
2. The parties shall henceforth be referred to as they
were arrayed before the Trial Court. The petitioner herein was
the defendant and the respondent herein was the plaintiff
before the Trial Court.
3. The suit in O.S.No.8897/2012 was filed for specific
performance of agreement of sale dated 11.06.2010. The suit
was contested by the defendant. After the conclusion of the
evidence of the plaintiff and after agreement dated 11.06.2010
was marked without objection, the defendant filed an
application (I.A.No.VIII) under Sections 33 and 34 of the Act,
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1957 to impound the sale agreement dated 11.06.2010 as it
was not duly stamped and inadmissible in evidence.
4. The said application was opposed by the general
power of attorney holder of the plaintiff, who contended that
once the document was marked, there was no question of
impounding the said document and collecting duty and penalty
on the said document. He also claimed that the document once
admitted cannot be eschewed from evidence on the ground
that stamp duty was not paid.
5. The Trial Court rejected the application in terms of
the impugned order on the ground that as on the date of the
execution of the agreement, maximum stamp duty payable on
agreement of sale was Rs.20,000/- and that the plaintiff had
paid stamp duty of Rs.200/-. It also held that once a document
though insufficiently stamped is marked without objection, the
defendant cannot raise question of admissibility later.
6. Being aggrieved by the said order, the defendant is
before this Court in this writ petition.
7. The learned counsel for the defendant contended
that the agreement of sale in question was dated 11.06.2010
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and the consideration mentioned in the agreement was
Rs.35,00,000/-. He contends that as on the date the
agreement was entered into, the plaintiff was bound to pay
maximum stamp duty of Rs.20,000/-. He contends that mere
marking of a document does not take away the power of the
Court to impose duty and penalty. In support of his contention,
he relied upon the judgment of the Hon'ble Apex Court in the
case of N.N. Global Mercantile Private Limited vs. Indo
Unique Flame Limited and others [(2023) 7 SCC 1] as well
as the order of a Coordinate Bench of this Court in
W.P.No.47225/2016 dated 29.08.2023.
8. Per contra, the learned counsel for the plaintiff
contended that once a document is marked in evidence, the
Court looses jurisdiction to collect duty and penalty. He
submits that the power of the Court to collect duty and penalty
would arise soon after the document is produced before it. He
contends that if the Court has not exercised the power to
impound and collect the duty and penalty, it looses jurisdiction
to collect duty and penalty later. He therefore, contends that
the Trial Court has rightly rejected the application filed by the
defendant.
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9. I have considered the submissions made by the
learned counsel for the defendant as well as the learned
counsel for the plaintiff.
10. It is the duty imposed upon a Court by statute to
examine whether a party producing a document had paid
sufficient stamp duty thereon or not. It is incumbent upon
every Court and every authority empowered to receive the
evidence to verify the said aspect and ensure that proper duty
is paid on the said document so as to be able to be produced in
the Court of law and to be received as evidence. Having said
that, once the Court applies its mind and receives the
document as evidence, its admissibility cannot be questioned
on the ground that adequate stamp duty was not paid. This is
the law laid down by the Courts from time to time.
11. In the present case, the agreement of sale was
purportedly executed on 11.06.2010 and the consideration
mentioned in the agreement was Rs.35,00,000/-. As on the
relevant date, the stamp duty payable on an agreement of sale
was 0.25% of the sale consideration subject to a maximum of
Rs.20,000/-. Therefore, the plaintiff ought to have paid a sum
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of Rs.20,000/- on the sale agreement as on the date of its
execution. Once the agreement was marked without contest
and objection, the defendant could not seek for impounding the
document. The word "impound" means to seize. The power to
impound a document would be with a Court only till it is
marked in evidence and not thereafter. Therefore, the
contention of the defendant that the document is to be
impounded, is incorrect and therefore, is liable to be rejected.
12. However, the plaintiff cannot take advantage of an
insufficiently stamped document more particularly, in a suit for
specific performance. If the plaintiff wants to act upon the said
agreement, it should necessarily be duly stamped. This is the
law declared by the Hon'ble Apex Court in the case of N.N.
Global Mercantile Private Limited, supra. In similar context,
a Coordinate Bench of this Court in W.P.No.47225/2016 in
terms of its order dated 29.08.2023 had held that the Court is
not deprived of the power to collect duty and penalty. In that
view of the matter, though no exception can be raised to the
impugned order passed by the Trial Court, yet the Trial Court
must have ordered collection of duty and penalty in accordance
with law.
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13. Hence, the following
ORDER
i) This writ petition is disposed off upholding the
order dated 21.08.2024 passed by the XXXI
Additional City Civil and Sessions Judge,
Bengaluru in O.S.No.8897/2012 on application
(I.A.No.VIII) filed by the defendant under
Sections 33 and 34 of the Karnataka Stamp Act,
1957.
ii) However, the Trial Court is directed to collect
duty and penalty as provided under law and
forward the duty and penalty to the Deputy
Commissioner under Section 37 of the Karnataka
Stamp Act, 1957, who shall pass appropriate
orders either to appropriate the penalty or to
refund the same in accordance with law. He shall
also certify on the document about the duty and
penalty received.
iii) Since the suit is filed in the year 2012, the Trial
Court is requested to dispose off the suit as early
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as possible and in accordance with the
Karnataka (Case Flow Management in
Subordinate Courts) Rules, 2005.
Sd/-
(R. NATARAJ)
JUDGE
PMR
