Research › Search › Judgment

Karnataka High Court · body

2014 DIGILAW 180 (KAR)

Jahanara v. Azamatuniss

2014-02-17

B.SREENIVAS GOWDA

body2014
ORDER B. Sreenivas Gowda, J. 1. The petitioner who is plaintiff in OS 623/2009 has preferred this writ petition seeking a writ of certiorari to quash the impugned order dated 18.04.2011 including the office report dated 16.6.2011 vide Annexure-C and the order Annexure-F dated 28.07.2012 rejecting I.A. No. VIII filed by him under Section 151 of the Code of Civil Procedure in OS No. 623/2008 by the III Addl. Civil Judge and JMFC, Belgaum. 2. The learned counsel for the petitioner submits, the plaintiff- petitioner is not aggrieved by the order passed by the trial Court in so far as ordering for impounding the document styled as sale deed dated 06.07.1996 but she is aggrieved by the later part of the order whereby it has directed the office to calculate the deficit stamp duty payable and to report and the order Annexure-F rejecting I.A. No. VIII filed by her under Section 151 of CPC for reconsideration of the deficit stamp duty and penalty calculated by the office. 3. His submission is, only when plaintiff wants to introduce or tender a document in evidence which is not duly stamped as required under the Stamp Act, the Court can direct the office to calculate the deficit stamp duty payable and till then it could only order for impounding of such document. In support of his submission he has relied upon the Judgment of this Court rendered in Writ Petition No. 5870/2008 disposed of on 04.11.2008 in the case of Sri Shanath Kumar V.V. vs. Shri Manik Satwajirao Jathar. He further submits that eventhough the Trial Court has got discretionary power to levy lesser penalty on the deficit stamp duty payable as per the judgment of this Court in the case of Sri K. Govindegowda Vs. Smt. Akkayyamma reported in 2011(4) KCCR 2799 , it has committed an error in rejecting I.A. VIII filed by the plaintiff under Section 151 of C.P.C. for reconsideration of penalty calculated by the office on the deficit stamp duty payable. Therefore, he prays for allowing the writ petition as prayed for. 4. Smt. Akkayyamma reported in 2011(4) KCCR 2799 , it has committed an error in rejecting I.A. VIII filed by the plaintiff under Section 151 of C.P.C. for reconsideration of penalty calculated by the office on the deficit stamp duty payable. Therefore, he prays for allowing the writ petition as prayed for. 4. Per contra, the learned counsel appearing for the respondents submits, the document in question is a suit document as such, the trial Court is justified in ordering for impounding the document which is admittedly not duly stamped and further directing the office to calculate the deficit stamp duty payable with penalty of 10 times and rejecting I.A. No. VIII filed by the plaintiff. As such, there is no illegality in the impugned order warranting interference of this Court and therefore, he prays for dismissal of the writ petition. 5. There is no merit in the contention of the learned counsel for the plaintiff that the Civil Court has got discretionary power to impose lesser penalty on an insufficiently stamped document as per the Judgment of learned Single Judge of this Court in the case of Govinde Gowda vs. Smt. Akkayamma and Others reported 2011 (4) KCSR 2799 as the said Judgment of the learned Single Judge is held as not a good law by Division Bench of this Court in the case of Digambar Warty and others vs. District Registrar, Bangalore Urban District, Bangalore and another reported in 2013 (4) KLJ 247. 6. The issue involved in this case is fully covered by the following Judgments of this Court: i) In Writ Petition No. 5870/2008 (GM-CPC) in the case of Sri Shanath Kumar V.V. vs. Sri Manik Satwajirao Jathar. ii) In Ms. Sandra Lasley Anna Bartels vs. Miss. P. Gunavati reported in AIR 2013 KAR 52 . iii) In Digambar Warty and Others vs. District Registrar, Bangalore Urban District, Bangalore and another reported in 2013(4) Kar.L.J., 247(DB). 7. By the impugned order Annexure-C dated 18.04.2011 the trial Court has passed the order as under: "Heard counsel for the plaintiff. The original sale deed dated 6.7.96 is hereby impounded and the office is directed to calculate the deficit stamp duty payable and to report." 8. Pursuant to the aforesaid order of the Trial Court dated 18.04.2011, the office of the trial Court on 16.6.2011 has calculated the deficit stamp duty payable on the document on 16.06.2011 as under; 9. The original sale deed dated 6.7.96 is hereby impounded and the office is directed to calculate the deficit stamp duty payable and to report." 8. Pursuant to the aforesaid order of the Trial Court dated 18.04.2011, the office of the trial Court on 16.6.2011 has calculated the deficit stamp duty payable on the document on 16.06.2011 as under; 9. As seen from the order sheet of the Trial Court dated 18.04.2011, the plaintiff has neither tendered the original sale deed dated 6.7.1996 which according to the plaintiff is an agreement of sale and according to the defendant is a sale deed in evidence nor made an attempt to mark the same as exhibit, if that is so, the trial Court could have only ordered for impounding the document and it could not have directed the office to calculate the deficit stamp duty payable with penalty of ten times as per Section 33(1) of the Act. 10. It is only when the plaintiff wants to introduce such document or tenders it in evidence, then only the Court can direct the office to calculate the deficit stamp duty payable and report the same. 11. It is also made clear, as and when plaintiff wants to introduce such document in evidence, the Court has no discretion but to direct the office to calculate the deficit stamp duty payable with ten times penalty as per proviso to Section 34 of the Stamp Act and only on payment of the said amount, it could permit the party to tender such document in evidence and thereafter, it shall forward an authenticated copy of the said document to the jurisdictional District Registrar for Stamps as required under Section 37(1) of the Act. If a party who is liable to pay stamp duty as directed the trial Court fails to make payment within the time stipulated by the Court for making such payment and decline to tender or introduce such document in evidence, in such case, the Court has to forward the original of such document to the District Registrar as required under Section 37(2) of the Act. 12. 12. Of course, there is force in the submission of learned counsel for the plaintiff that, it is only when plaintiff wants to introduce or tender the document dated 6.7.1996 in evidence, then only the trial Court can direct its office to calculate the stamp duty or deficit thereof payable with penalty of ten times. Whereas, in the instant case, the suit is for the relief of specific performance of the agreement of sale dated 6.7.1996 stated to be executed by defendants 1 to 6 in favour of the plaintiff as such, document dated 6.7.1996 is a suit document. Therefore, unless, plaintiff pays the deficit stamp duty with ten times penalty as calculated by the office of the trial Court vide office report dated 16.6.2011, the plaintiff cannot begin the trial. Therefore, it is unnecessary to set aside the office report dated 16.6.2011. Hence, I pass the following order: 1. Accordingly, the writ petition is allowed in part. Impugned order dated 18.4.2011 passed in OS 623/2008 on the file of the Prl. Civil Judge, Belgaum in so far as ordering for impounding the document dated 6.7.1996 produced by the plaintiff and the office report dated 16.6.2011 vide Annexure-C are undisturbed. 2. Impugned order Annexure-F dated 28.7.2012 rejecting I.A.VIII filed under Section 151 of CPC by the plaintiff in OS 623/2008 on the file of the Prl. Civil Judge, Belgaum, is modified as under: a) If the plaintiff wants to tender or introduce the document dated 6.7.1996 in evidence, shall pay the deficit stamp duty as calculated by the office before commencing his evidence or within one month from the date of posting the case for evidence of the plaintiff. b) If the trial is already commenced, then the plaintiff shall pay deficit stamp duty as calculated by the office on or before 30.6.2014 and it is only thereafter, the trial Court shall permit the plaintiff to introduce the document in evidence. c) If the plaintiff fails to pay the deficit stamp duty as calculated by the office of the trial Court and decline to rely upon the document dated 6.7.1996 then, in such case, the trial Court shall forward the original document dated 6.7.1996 to the jurisdictional District Registrar for further course of action as required under Section 37(2) of the Act.