Research › Search › Judgment

Karnataka High Court · body

2013 DIGILAW 111 (KAR)

Y. N. MALLINATH v. SANGAMMA

2013-01-29

N.ANANDA

body2013
ORDER 1. The petitioner has challenged the impugned order wherein, the learned trial judge has levied penalty of two times the stamp duty. 2. It is the grievance of petitioner (defendant no.2) that the learned trial judge should have levied 10 times of stamp duty as penalty as per the provisions of Section 34 of the Karnataka Stamp Act. 3. Heard learned counsel for parties. 4. The learned counsel for petitioner would submit that the court has no discretion in the matter of levy of penalty. The learned counsel has relied on the judgments reported in AIR 2008 KAR 172 (in the case of J.S. Paramesh Siddegowda vs. Smt. Indramma V. Murthy) and ILR 2011 KAR 2484 (in the case of Ningappa Bharamappa Sogi vs. Government of Karnataka by its Secretary, Department of Stamps and Registration and Others) and 2008 (1) AIR KAR R 172 (in the case of Sri. J. Prakash S/o M. Jayaram vs. Smt. M.T. Kamalamma & Another) to contend that in the matter of levy of duty and penalty, the courts have no discretion; stamp duty is a tax; the hardship and inconvenience caused to the party cannot be a ground to reduce duty and penalty payable in terms of Section 34 of the Karnataka Stamp Act (hereinafter referred to as the Act). 5. The learned counsel for respondents has relied on the judgment of Supreme Court reported in AIR 1961 SC 1655 (in the case of Javer Chand and others vs. Pukhraj Surana) to contend that once a document has been marked as an Exhibit in the case and the trial has proceeded all along on the footing that the document has been used by the parties in examination-in-chief, then, Section 36 of the Act comes into operation. Once a document has been admitted in evidence, it is not open either to the trial court or the court of appeal or revision to go behind that order. 6. In the case on hand, when the suit document was tendered in evidence, the trial court found that document was written on Rs.100/- stamp paper and entertained doubt bout sufficiency of stamp and adjourned the case. 7. The impugned order relates to levy of two times the stamp duty. 6. In the case on hand, when the suit document was tendered in evidence, the trial court found that document was written on Rs.100/- stamp paper and entertained doubt bout sufficiency of stamp and adjourned the case. 7. The impugned order relates to levy of two times the stamp duty. On 01.08.2012, the trial court has held that document is insufficiently stamped and levied deficient stamp duty and directed the plaintiff to make good the deficient stamp duty of Rs.74,503/- and levied penalty equivalent to two times of stamp duty. In all, the plaintiff was directed to pay a sum of Rs.2,23,509/- as deficit stamp duty and penalty. On 17.08.2012, PW.2 was recalled for further examination-in-chief and the document was tendered in evidence. Defendants no.1 and 2 though present when the document was marked in evidence as per Ex.P16, they did not raise any objections. Under Section 36 of the Act, when the document is tendered in evidence, it cannot be impounded on the ground that the document is insufficiently stamped. 8. The learned counsel for petitioner would submit that the order of trial court regarding levying of duty and penalty is challenged in this petition. Therefore, marking of the document would not foreclose right of defendant to challenge the impugned order. 9. As already stated, the document was tendered in evidence on 17.08.2012. The petitioners were aware of the order passed by the trial court. If petitioner had felt that duty and penalty levied by the trial court is insufficient, he should have objected for marking the said document (Exhibit P.16) on the ground that it is insufficiently stamped. The petitioner who had not raised such objection when the document was tendered in evidence, cannot contend that the document is insufficiently stamped. Even if document is insufficiently stamped either by act of the parties or by order of the court, the opponent has right to raise objection of insufficiency of stamp duty when the document is tendered in evidence. The opponent has right to challenge the sufficiency or otherwise of duty and penalty levied by the trial court. If such an objection is not raised when the document is marked and received as evidence, the opponent will be forfeiting his right to challenge the sufficiency or otherwise of the duty and penalty. 10. There are no grounds to interfere with the impugned order. The petition is accordingly dismissed.