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2015 DIGILAW 743 (KAR)

Satish Babu v. M. D. Anwar

2015-07-10

A.V.CHANDRASHEKARA

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ORDER : A.V. Chandrashekara, J. Heard the learned Counsel for the parties. Perused the impugned order dated 22-10-2013 passed in SCC No. 2119 of 2011 pending on the file of the IV Additional Small Causes Judge, Bangalore. 2. The petitioner herein is the plaintiff and the respondent herein is the defendant in the said suit. Petition has been filed before the Trial Court for eviction of the respondent from the suit schedule premises. During the course of the evidence, the petitioner wanted to rely upon an unregistered agreement of lease stated to have been entered into between himself and the defendant and wanted to get it marked as exhibit. The learned Judge has impounded the said document under Section 34 of Karnataka Stamp Act, 1957 and directed the petitioner/plaintiff to pay a penalty at ten times and duty at one time on the document dated 10-4-2005. While passing such order, the learned Judge has observed that the plaintiff is at liberty to recovery the said duty and penalty amount paid by him in terms of mandatory of Section 38 of Karnataka Stamp Act, 1957. 3. Learned Counsel for the respondent also had submitted that this observation is contrary to the mandatory provision of Section 38 of Karnataka Stamp Act, 1957, in terms of which the petitioner/plaintiff, after payment of requisite penalty and duty, could request concerned DC to refund the amount in excess of Rs. 5/-. 4. The learned Counsel for the petitioner further submitted that no stamp duty is payable on advance amount of Rs. 2.5 Lakhs received by him from the defendant as advance rent and he has placed reliance on case reported in ILR 2003 Kar. 4386 (FB), The Chief Controlling Authority, Inspector General of Registration and Commissioner of Stamps, Bangalore v. Texas Instruments (India) Limited, Bangalore. Dwelling upon Article 47 of Karnataka Stamp Act, 1957 and Article 30(2)(c) of the Schedule, this Court has held that no stamp duty is payable on the advance amount received by the lessor from the lessee as reflected in the lease agreement and therefore no stamp duty and penalty is payable on the said advance amount. 5. The learned Counsel for the petitioner has filed a memo dated 3-10-2013 calculating total duty and penalty payable. According to him, Rs. 31,750/- is stamp duty and ten times penalty payable and a sum of Rs. 5. The learned Counsel for the petitioner has filed a memo dated 3-10-2013 calculating total duty and penalty payable. According to him, Rs. 31,750/- is stamp duty and ten times penalty payable and a sum of Rs. 2,000/- is already paid on the instrument and therefore, no amount is payable. One time duty payable being Rs. 2,975/- and Rs. 29,750/- being ten times penalty. Therefore, the total penalty and stamp duty payable on the document amounted by the Trial Court is Rs. 32,725/-. 6. Thus, the total deficit stamp duty and penalty payable would be Rs. 32,725/-. The petitioner is ready to pay the said amount and get the document marked by the Trial Court. If the said sum is paid, the learned Judge shall collect the same and send the authenticated copy of the agreement to the DC in terms of Section 37 of Karnataka Stamp Act. It need not be reiterated that it is only the Deputy Commissioner who is competent to refund the penalty amount paid under Section 37(1) of Karnataka Stamp Act and he has power to refund any portion of the penalty in excess of Rs. 5/- which has been paid in respect of such instrument. Nothing comes in the way of the petitioner to request the DC in terms of Section 38 of Karnataka Stamp Act, 1957, seeking refund of the penalty in excess of Rs. 5/-: ORDER 1. The petition is disposed of directing the petitioner to pay in all a sum of Rs. 32,725/- (Rs. 29,750/- being ten times penalty and Rs. 2,975/- being one time duty payable on the said document) on receipt of the same, the Trial Court to mark the said document. 2. The petitioner is at liberty to seek refund of the penalty amount in excess of Rs. 5/- from the DC in terms of mandate of Section 38 of Karnataka Stamp Act, 1957. Both petitions are disposed of accordingly. Since, the matter is of the year 2011, learned Judge to dispose of the matter as early as possible without any undue delay. Parties and learned Counsel shall co-operate with the Court.