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2009 DIGILAW 358 (KAR)

Karar Ahmed v. Rajanna

2009-06-04

K.BHAKTHAVATSALA

body2009
Judgment :- The petitioner/plaintiff in O.S.No.5445/2006 on the file of XXIV Addl Civil Judge, Bangalore City, is before this Court under Articles 226 & 227 of the Constitution of India, praying for quashing the order dated 27.9.2007 at Annexure-A passed sustaining the objection to marking agreement of sale dated 5.5.1997 during the course of evidence of P.W-1. 2. For the purpose of convenience and better understanding, the petitioner and the respondent Nos.1 to 7 are hereinafter referred to as ‘the plaintiff’ and ‘the defendant Nos.1 to 7’ as arrayed in the suit. 3. The brief facts of the case leading to the filing of the Writ Petition may be stated as under: The petitioner/plaintiff filed a suit in O.S.No.5445/2005 against respondent Nos.1 to 7 for declaration that the plaintiff is absolute owner in possession and enjoyment of the suit land bearing Sy.No.79 measuring 4 acres and 3 guntas and a portion of land bearing No.80 measuring 1 acre and 37 guntas both situated at Mallathahalli Village, Yeshwanthapura Hobli, Bangalore North Taluk, and permanent injunction restraining defendant Nos.4 and 5 from interfering with the plaintiff’s peaceful possession and enjoyment of the suit lands. The petitioner/plaintiff claims that he has purchased the suit lands from defendant Nos.6 and 7 under a registered sale deed. The defendants have filed their respective written statement. Issues have been framed. During the course of examination in chief of P.W-1 an agreement of sale deed dated 5.5.1997 said to be executed by defendant Nos.1 to 3 in favour of defendant Nos.6 and 7 in respect of the suit schedule property was sought to be marked. But, the Counsel for defendant Nos.1 to 5 objected to marking of the agreement of sale on the ground that it was not sufficiently stamped. It was further contended that the District Registrar has levied less penalty though it attracts levy of penalty ten times of the duty. In view of objection raised by defendant Nos.1 to 5, it has been held that the document is insufficiently stamped and therefore the plaintiff has to pay penalty ten times of duty as per law. This is impugned in this Writ Petition. 4. In view of objection raised by defendant Nos.1 to 5, it has been held that the document is insufficiently stamped and therefore the plaintiff has to pay penalty ten times of duty as per law. This is impugned in this Writ Petition. 4. Sri S P. Shankar, learned Senior Counsel appearing for the petitioner, submits that as per Section 39 of the Karnataka Stamp Act, 1957 the Deputy Commissioner, has levied the duty and penalty and payment of the same has been endorsed on the document. Therefore, the agreement of sale dated 5.5.1997 is sufficiently stamped and it can be marked in evidence. It is further submitted that the plaintiff is claiming his right on the basis of the registered sale deed and the agreement of sale deed dated 5.5.1997 which was sought to be marked to establish that the vendors of the plaintiff viz., defendants No.6 and 7 had entered into an agreement of sale of the suit schedule property with defendant Nos.1 to 3, but the trial Court erred in refusing to mark the document. 5. On the other hand, Prof, Nagabhushana, learned Counsel appearing for respondent Nos.1 to 3, submits that as the District Registrar has not properly exercised his right under the Karnataka Stamp Act, the defendant Nos.1 to 3 had filed a Revision before the Chief Controlling Revenue Authority, Bangalore, in SAP No.5/2007-08 as against defendant Nos.6 and 7 and the same has been disposed of by order dated 17.2.2009 remanding the matter to the District Registrar and Deputy Commissioner of Stamps to levy interest at the rate of 12% for the delay in payment of duty and penalty and therefore it is contended that the document sought to be marked in the evidence of P.W-1 was insufficiently stamped and the trial Court has rightly refused to mark the document and there is no illegality or infirmity in the impugned order. 6. Sri Chandrachooda, learned Counsel appearing for respondent Nos.4 and 5, adopts the arguments of the Counsel for respondent Nos.1 to 3. 7. Learned Government Pleader submits that the duty and penalty levied on the document is correct and the impugned order is not sustainable in law. 8. 6. Sri Chandrachooda, learned Counsel appearing for respondent Nos.4 and 5, adopts the arguments of the Counsel for respondent Nos.1 to 3. 7. Learned Government Pleader submits that the duty and penalty levied on the document is correct and the impugned order is not sustainable in law. 8. By way of reply, Sri S.P. Shankar for the petitioner, submits that in pursuance of the order made by the Chief Controlling Revenue Authority in SAP No.5/2007-08, the respondent No.8/District Registrar has passed an order on 16.4.2009 and determined that the petitioner/plaintiff has to pay Rs.11,92,979/-towards interest on account of delay in payment of duty and penalty on the agreement of sale. Therefore, the petitioner/Plaintiff, on 18.5.2009 paid a sum of Rs.4,00,000 and prayed for permission to pay the balance amount in three equal installments. 9. It is crystal clear from the above that the requisite duty and penalty was not paid on the document and still the petitioner/plaintiff has to pay Rs.7,92,979/-. Be that as it may, the question before the Court is whether the trial Court was justified in refusing to mark the agreement of sale dated 5.5.1997 in evidence of PW-1. 10. My answer to the above question is in the negative for the following reasons: The petitioner/plaintiff is a stranger to the agreement dated 5.5.1997. The petitioner/plaintiff is not claiming any right under the agreement of sale and he being a stranger to the contract, he cannot enforce the same. The plaintiff has sought to mark the agreement to sell in his evidence to prove that his vendors had entered into an agreement of sale with defendant Nos.1 to 3. Since the plaintiff is neither claiming any right nor enforcing the agreement of sale, the same could have been marked for collateral purpose thought it was insufficiently stamped. It is relevant to mention that the case of defendants Nos.1 to 3 is that they had not executed the agreement of sale dated 5.5.1997 in favour of defendant Nos.6 and 7. The plaintiff who is not a party to the agreement of sale, has paid the duty and penalty on the agreement of sale and the payment of the same by him cannot be questioned by the respondents 1 to 5/ Defendants 1 to 5. In nutshell, the trial Court erred in not marking the agreement of sale in the evidence of P.W-1 for collateral purpose. In nutshell, the trial Court erred in not marking the agreement of sale in the evidence of P.W-1 for collateral purpose. Therefore, the impugned order is not sustainable in the eye of law. 11. In the result, the Petition is allowed and the order the order of the trial Court sustaining the objection for marking agreement of sale dated 5.5.1997 at Annexure-F, is quashed. No costs.