Karnataka High Court
S R Kamalamma vs Suvarnamma on 13 June, 2025
-1-
NC: 2025:KHC:1056
WP No. 35580 of 2018
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION NO. 35580 OF 2018 (GM-CPC)
BETWEEN:
S.R.KAMALAMMA
W/O R.RAMU,
AGED ABOUT 57 YEARS
HOMEMAKER,
R/O 'SRI NAGALAKSHMI NILAYA',
J.C.NAGAR, 1ST CROSS,
MARANAVAMIBYLU
SHIVAMOGGA-577 201
...PETITIONER
(BY SRI. UMESH MOOLIMANI, ADVOCATE FOR
SRI.S.V.PRAKASH, ADVOCATE)
AND:
1. SUVARNAMMA
W/O LATE S.D.ANANDAPPA,
Digitally AGED ABOUT 61 YEARS
signed by R/O MANJUNATHANAGARA,
SUVARNA T WARD NO.4, PURLE VILLAGE,
Location: NIDIGE POST,
HIGH SHIVAMOGGA TALUK & DISTRICT-577 201
COURT OF
KARNATAKA 2. JAYALAKSHMI
D/O LATE S.D.ANANDAPPA
AGED ABOUT 54 YEARS
TAILOR,
R/O 'ANANDA NILAYA'
4TH CROSS, SESHADRIPURAM,
SHIVAMOGGA-577 201
3. VIJAYALAKSHMI
TAILOR,
AGED ABOUT 52 YEARS
-2-
NC: 2025:KHC:1056
WP No. 35580 of 2018
HC-KAR
R/O ANANDA NILAYA
4TH CROSS, SESHADRIPURAM,
SHIVAMOGGA CITY-577 201
...RESPONDENTS
(BY SRI.PRAKASH SHETTY, ADVOCATE FOR
SRI.RAVI L. VAIDYA, ADVOCATE FOR R2
R1- SERVED AND UNREPRESENTED)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER
DATED: 10.07.2018 PASSED BY THE LEARNED II ADDITIONAL CIVIL
JDUGE AND JMFC, SHIVAMOGGA IN O.S.NO.110/2013 VIDE
ANNEXURE-F.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
ON 21.01.2025, COMING ON FOR PRONOUNCEMENT OF ORDER THIS
DAY, THE COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
CAV ORDER
Aggrieved by the order passed in I.A. in O.S.No.110/2013
dated 10.07.2018 by the II Addl. Civil Judge and JMFC.,
Shivamogga, the plaintiff is before this Court.
2. The suit is filed seeking specific performance. Earlier,
on the sale deed i.e., Ex.P.1, the Trial Court had calculated the
stamp duty and penalty at Rs.32,890/- on 15.07.2015 and the
plaintiff has paid the same. Thereafter, the Trial Court had
observed that the sale deed dated 01.03.1999, the sale
consideration amount is Rs.80,000/- and it is written on a
-3-
NC: 2025:KHC:1056
WP No. 35580 of 2018
HC-KAR
stamp paper of Rs.20/-. The prevailing rate of stamp duty as on
1999 was 10% of the market value as per Article 20 of the
Karnataka Stamp Act, 1957. The Trial Court had observed that
10% of Rs.80,000/- is Rs.8,000/- which was the stamp duty
payable by the plaintiff on 01.03.1999. However, the document
was written on a stamp paper of Rs.20/-. Therefore, there is a
deficit of Rs.7,980/-. When there is a deficit, the party is liable
to pay duty plus 10 times the penalty i.e., 7980/- + Rs.
79,800/- which makes it a total of Rs.87,780/-. The plaintiff has
already deposited Rs.32,890/- and the balance will be
Rs.54,800/-. The Trial Court further observed that Ex.P3 is the
rent agreement for 11 months, where monthly rent was
Rs.950/- and advance amount is Rs.10,000/-. Therefore, rent
for 11 months is Rs.10,450/-, which makes it a total premium
of Rs.20,450/-. As per Article 30 and Article 12 of the
Karnataka Stamp Act, 1957, the stamp duty payable was 5% of
the premium amount that is 5% of Rs.20,450/- is 1,023. Since
the plaintiff has already paid Rs.50/- as stamp duty, the deficit
stamp duty is Rs.973/-. Therefore, duty and penalty is
Rs.9,730+973 i.e., Rs.10,703/- on Ex.P.3. Ex.P.4 is the rent
agreement dated 26.05.2012, where monthly rent was agreed
-4-
NC: 2025:KHC:1056
WP No. 35580 of 2018
HC-KAR
at Rs.1,500/- with an advance amount of Rs.15,000/-.
Therefore, total amount payable for 11 months was Rs.16,500/-
along with advance amount of Rs.15,000/- i.e, Rs.31,500/- and
as per Article 30 of the Karnataka Stamp Act, 1957, the stamp
duty is 1% of the premium amount. Therefore, 1% of
Rs.31,500/- is Rs.315/-. The plaintiff has already paid Rs.20/-
towards the stamp paper. Therefore, the deficit duty is Rs.295/-
and accordingly, the plaintiff is liable to pay duty and penalty of
Rs.295/- + Rs.2,950/- put together Rs.3,245/-. Aggrieved
thereby, the plaintiff is before this Court.
3. Learned counsel appearing for the plaintiff/ petitioner
submits that already the Trial Court, exercising the powers has
already fixed penalty and the duty at Rs.32,890/- which is
already paid by him. That order is not questioned by the
defendants and the Trial Court cannot review its own order. It is
submitted that he is not relying on Ex.P3 and P4. In that case,
the question of paying the stamp duty will not arise. He submits
that he is not claiming any relief in respect of those documents
as such on those documents there cannot be any penalty or any
deficit stamp duty. He had relied on the judgment of Hon'ble
-5-
NC: 2025:KHC:1056
WP No. 35580 of 2018
HC-KAR
Apex Court in case of Gangappa and another Vs. Fakkirappa1.
By relying on para Nos.18 to 20, he submits that in a similar set
of facts, the Hon'ble Apex Court has confirmed the order of the
Trial Court, though 10 times penalty only in that case, 2 times
penalty was imposed. Considering the stage of the suit and the
case of the party, he submits that the petitioner's case also falls
under the similar lines and he is also entitled for such a relief
from this Court. He further submits that the order passed by
the Trial Court is not a well considered one.
4. Learned counsel appearing for the defendants/
respondents submits that though the Trial Court had passed the
earlier order fixing the amount at Rs.32,890/-, when it is
brought to the notice of the Trial Court that a lesser amount is
collected contrary to the provisions of the Karnataka Stamp Act,
1957. Considering the same, the Trial Court felt that the earlier
calculation that is arrived at by the Trial Court was not correct
and directed the party to pay the amount. He submits that even
an unstamped document, even for a collateral purpose cannot
be looked into and the Trial Court had rightly imposed the
1
(2019) 3 SCC 788
-6-
NC: 2025:KHC:1056
WP No. 35580 of 2018
HC-KAR
penalty on Ex.P3 and directed him to pay the deficit stamp duty
on Ex.P3 and P4 and there is no illegality with the order.
5. Having heard the learned counsels on either side,
perused the material placed on record. The suit is filed seeking
specific performance. Ex.P1 is the sale deed. The sale
consideration amount is Rs.80,000/- and the sale deed is dated
01.03.1999. Even as per the submission of the learned counsel
for the petitioner, the stamp duty is 10% on the market value
as per Article 20 of the Karnataka Stamp Act, 1957 as on 1999.
10% of Rs.80,000/- is Rs.8,000/- and it was written on a stamp
paper of Rs.20/- and the deficit is Rs.7,980 and Rs.7,980/- +
10 times penalty is Rs.79,800/- which comes to Rs.87,780/-. As
far as this calculation is concerned, there is no dispute and
there is no necessity to send the same for calculation to the
Registrar. It is the contention that already, the Trial Court had
determined the stamp duty at Rs.32,890/- as the said order
was not questioned by any of the parties, the Trial Court cannot
pass another order. This submission of the learned counsel for
the petitioner, this Court is not able to appreciate. When there
-7-
NC: 2025:KHC:1056
WP No. 35580 of 2018
HC-KAR
is a mistake in the calculation of the amount, it is the duty of
the Court to rectify the said mistake.
6. A Co-ordinate Bench of this Court in the case of
Sri.Zafarulla Khan Vs. Smt.R.K.Sujatha and Others arising
out of WP.No.47225/2016 dated 29.08.2023 had discussed
in detail on a similar issue and the order reads thus:
"13. From the aforesaid law enunciated by the Apex
court reiterating the principles laid down in its earlier
Judgment in the case of Hindustan Steel Ltd., (supra)
it is clear that merely because an insufficiently
stamped instrument is admitted in evidence
unopposed would not be a bar in the court or the
authority to exercise and discharge its duties namely
to impound and seek payment of stamp duty. Lest
there would be bar in acting upon such insufficiently
stamped instrument.
15. As noted above, even Section 34 of the Act,
1957 apart from placing a complete embargo on the
`admissibility' of an instrument not duly stamped
also puts an embargo on `acting upon' the same. A
close reading of Section 35 of the Act, 1957 reveal
that only "admission" of an instrument insufficiently
stamped cannot be called in question. There is
however no reference in Section 35 with regard to
"acting upon" on such instrument. As observed by the
Apex Court in the case of Hindustan Steel Ltd., which
is referred to in paragraph 51 of its Judgment is
M/s.N.N.Global Mercantile (P) Limited (supra) court
is prohibited from both "admitting" an insufficiently
stamped instrument in evidence and `acting upon it'.
It further clarifies that a document can be admitted
yet not acted upon. Thus, mere act of admitting a
document, though sufficient enough to prevent
questioning/or reopening the same in terms of
Section 35 of the Act, the same however cannot
prevent from `being not acted upon' unless the
defect is cured in the manner known to law.
-8-
NC: 2025:KHC:1056
WP No. 35580 of 2018
HC-KAR
16. Thus, in view of the law laid down by the Apex
Court in M/s.N.N.Global Mercantile (P) Limited
(supra) the Stamp Act being a fiscal measure
intended to raise revenue and the stringent
provisions of the Act are meant to protect the
interest of the revenue and that upon endorsement
being made under Section 41 of the Act, 1957 the
document admitted in evidence can be acted upon.
As already noted though the document in question
has been admitted in evidence the same does not
purport to authorize the court to act upon the same
without compliance of payment of required stamp
duty.
17. It may not be out of place to refer to some of
the decisions of this court on the aforesaid issue;
(i) In the case of Savik Vijai Engineering
Private Limited and others Vs BCL Financial
Services Private Limited, in
W.P.65132/2016 decided on 21.03.2019
this court while relying upon the Judgment
in the case of Savithramma (supra) held
that the document insufficiently stamped
and admitted in evidence though objection
was not raised, subsequently it does not
take away the obligation to impound the
document under Section 33 of the Act.
(ii) Similarly in the case of Sri.R.Mahesh
and anr Vs B.P.Venugopal reported in AIR
2019 Kant 198, ILR 2018 Kar 3029 dealing
with identical situation, Coordinate Bench
of this court has held at paragraph 14 that
.........."A mere marking of the document
would not suffice to escape from the rigour
of the Act. It is obvious that there has been
no judicial application of mind before
admitting the document. The marking of
document is a ministerial act and on the
contrary, the admission of a document is a
judicial act. Admittedly no objections has
been raised at the time of marking of
document. That by itself will not absolve
the court of its responsibility to examine
the admissibility aspect of the same or the
power to secure the interest of the State
Exchequer by calling for and impounding
the document for the limited purpose of
calculating and collecting stamp duty. This
-9-
NC: 2025:KHC:1056
WP No. 35580 of 2018
HC-KAR
view of the court is further fortified by
scheme of the Act as set out in Section 36,
41 and 42 of the Act.
Further relying upon the observation of the
Apex Court in the case of Hindustan Steels
Ltd., (Supra) and in the light of provisions of
Section 58 of Act 1957 has held that ".......in
respect of a document which is already
marked the court is entitled to subsequently
hold it to be a document which is not
stamped or insufficiently stamped and it
shall also determine the amount of duty with
which such instrument is chargeable."
(iii) In the case of S.Byregowda and anr Vs
Saramma Joseph Tannickal in
W.P.Nos.49650- 49651/2017 decided on
12.09.2019 following the principles in the
case of R.Mahesh (supra) has directed
document to be impounded with liberty to
pay the deficit duty and penalty.
18. In the light of the provisions of Act,
1957, principles of law enunciated by the
Apex Court and the consistent decisions of
Co-ordinate Benches of this court referred to
hereinabove, it can safely be said that even
if an insufficiently stamped instrument is
admitted in evidence unopposed, the
embargo placed under Section 35 of the Act,
1957 regarding questioning the admissibility
cannot be read to mean that the same would
enable the court to "act upon" such
insufficiently stamped instrument without
curing the defect of payment of stamp duty.
The requirement of payment of stamp even
as contemplated under Section 17 of the Act,
1957, is before or at the time of execution
and a duty is casted upon the Court under
Section 34 to ensure payment of stamp duty.
The only remedy is to cure the defect by
payment of stamp duty and penalty if any in
accordance with law and such an act would
not amount to recall or review or reopening
of the order admitting the document.
19. In the light of the law enunciated by
the Apex Court in the case of
M/s.N.N.Global Mercantile (P) Limited
- 10 -
NC: 2025:KHC:1056
WP No. 35580 of 2018
HC-KAR
(supra) and for the aforesaid reasons and
analysis writ petition is allowed. Impugned
order dated 01.08.2016 in
O.S.No.1342/2006 on the file of I
Additional Senior Civil Judge, Bangalore
Rural District, Bangalore is set aside.
Matter is remitted to the trial court for
adjudication on the memo dated
24.04.2014 filed by the petitioner and to
pass appropriate orders in the light of the
observations made hereinabove. Such order
shall be passed within a period of eight
weeks from the date of receipt of the
certified copy of this order."
7. The Co-ordinate Bench of this Court in the above cited
judgment had set aside the order of the trial Court and directed
to consider the memo with regard to the deficit stamp duty and
penalty.
8. Coming to the facts of the present case, there is no
dispute about the fact that the Court had wrongly calculated the
stamp duty and penalty at Rs.32,890/- instead of Rs.87,780/-.
It is the duty of the Court to see that proper stamp duty is paid.
The Stamp Act being a fiscal measure intended to raise revenue
and by the order impugned Court had not gone into the
admissibility of the document. The judgment that is relied on by
the learned counsel for the petitioner do not apply to the facts
and circumstances of this case and in the considered opinion of
- 11 -
NC: 2025:KHC:1056
WP No. 35580 of 2018
HC-KAR
this Court, the Trial Court has every jurisdiction/obligation to
direct the plaintiff to pay the deficit stamp duty. Then coming to
Ex.P3 and P4 when the documents are marked, the plaintiff
cannot say that he is not seeking any relief. Even for collateral
purpose also, an unstamped document cannot be looked into
and the Trial Court had rightly passed an order. Hence, this
Court finds no reasons to interfere with the well considered
order passed by the trial Court. Accordingly, this Court is
passing the following:
ORDER
i. Accordingly, the writ petition is dismissed.
ii. All I.As., in this writ petition, shall stand closed.
SD/-
(LALITHA KANNEGANTI)
JUDGE
BN/MEG
