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2014 DIGILAW 314 (KAR)

N. Srinivasa v. Murulesh

2014-03-05

N.KUMAR

body2014
Judgment :- 1. The defendant has preferred this writ petition challenging the order passed by the trial Court declining to impound documents under Section 33 of the Karnataka Stamp Act, 1957 (herein after referred as 'the Act'). 2. The plaintiffs have filed a suit for specific performance of agreement of sale. The case of the defendant is that under the agreement of sale, possession is agreed to be delivered within five months and accordingly, it was delivered. Therefore, the case falls under Article 5(e)(i) of the Act and the documents have to be stamped as a deed of conveyance. The trial Court declined to accept the said contention on the ground that the possession is not delivered under the agreement in part performance of the contract but it was agreed to be delivered within five months from the date of agreement and not under the agreement. 3. Article 5(e) (i) reads as under:- Article 5. Agreement or its records or Memorandum of an Agreement [e) if relating to sale of immovable property wherein part performance of the contract (i) possession of delivered or is agreed to be delivered without executing the conveyance. Same duty as a conveyance (No. 20) on the property is the market value of the property. Provided that, where a deed of delivered without cancellation of earlier agreement is executing the executed by and between the same parties conveyance respect of the same property and if proper stamp duty has been paid on such agreement, then the duty on such "deed of cancellation" shall not exceed rupees five hundred. 4. Therefore, to attract stamp duty under Article 5(e)(i), the following two conditions have to be fulfilled: a. In part performance of the contract, possession of the property is to be delivered, b. In part performance of the contract, possession is agreed to be delivered without executing the conveyance. 5. To attract the said provision there should be a recital in the agreement of sale to the effect that under the agreement the possession is delivered. Whether possession is actually delivered under the agreement or not is immaterial. Similarly, if possession is delivered earlier to the agreement or subsequent to the agreement is also immaterial. The recital that the possession would be delivered after five months would not amount to delivering possession under the agreement. Whether possession is actually delivered under the agreement or not is immaterial. Similarly, if possession is delivered earlier to the agreement or subsequent to the agreement is also immaterial. The recital that the possession would be delivered after five months would not amount to delivering possession under the agreement. Similarly, the recital that the possession is agreed to be delivered is not sufficient to attract the liability to pay stamp duty. There should be express recital that "without executing the conveyance", the possession is agreed to be delivered. Admittedly, there is no recital in the agreement of sale to the effect that possession is delivered in part performance of the agreement. Nor is there any recital that such possession is agreed to be delivered without executing the conveyance. On the other hand, the recital in the agreement is to the effect that 'the possession is being delivered after five months and that 'on payment of the consideration, the seller shall execute the registered sale deed'. Therefore Article 5(e)(i) of the Schedule to the Act is not attracted. There is no merit in this writ petition, Accordingly, it is dismissed.