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2015 DIGILAW 900 (KAR)

N. Ramachandra v. B. R. Chandrashekar

2015-08-11

RATHNAKALA

body2015
ORDER : Rathnakala, J. This petition is filed by the aggrieved defendant of O.S. No. 188 of 2011 on the file of the II Additional Civil Judge (Junior Division) and Judicial Magistrate First Class, Tumkur. 2. The plaintiff filed a suit for ejectment and other consequential reliefs against the defendant in respect of the plaint schedule property. His case was that, the defendant is a tenant under the plaintiff and the tenancy is a monthly tenancy commencing from 1st of every month and the rate of rent was Rs. 4,000/- per month. 3. The suit was contested. The defence was, the parties entered into lease-cum-rental agreement with effect from 9-3-2006 and the plaintiff received Rs. 3,00,000/- from him with a condition that, out of Rs. 3,00,000/-, the plaintiff will repay Rs. 2 lakhs back to the defendant and from then onwards, the plaintiff will pay monthly rent of Rs. 4,000/- from the date of repayment of Rs. 2 lakhs to the defendant. So far, the plaintiff has not repaid Rs. 2 lakhs. During the defence evidence, defendant intended to produce a document styled as VERNACULAR MATTER OMMITTED. The Court having taken note of the fact that the document being unregistered and sufficient stamp duty having not paid, ordered to impound the document. The office calculated the duty as Rs. 3,000/- and penalty of Rs. 30,000/-. After hearing the parties, the Trial Court passed the impugned order on 3-3-2014, directing the office to calculate the duty and penalty on the document. This time the office calculated the stamp duty at Rs. 25,200/- and penalty at Rs. 2,52,000/-. This calculation is under challenge in this writ petition. 4. Sri L. Shekar, learned Counsel appearing for the petitioner submits that, on a reading of the document at Annexure-C, it is evident that on 9-3-2006, the document was executed and the plaintiff received Rs. 3 lakhs in respect of the plaint schedule property and agreed to hand over the possession of the property on 27-3-2006. In fact, in consultation with the Sub-Registrar, Tumkur, the office calculated the duty and penalty under Article 34(b) of the Karnataka Stamp Act, 1957 ('the Act' for short), which reads thus: "34. Mortgage deed, not being an agreement relating to deposit of title deeds, pawn or pledge, Bottomry bond, mortgage of a crop, Respondentia bond or security bond,- (a) .......................................... ........................................ Mortgage deed, not being an agreement relating to deposit of title deeds, pawn or pledge, Bottomry bond, mortgage of a crop, Respondentia bond or security bond,- (a) .......................................... ........................................ (b) When possession is not given or agreed to be given as aforesaid and not being a hypothecation Fifty paise for every hundred rupees or part thereof for the amount secured by such deed" Subsequent to the order passed on 3-3-2014, the office has calculated the Stamp duty at Rs. 25,200/- and penalty at Rs. 2,52,000/- under Article 34(a) of the Act, which reads thus: "34. Mortgage deed, not being an agreement relating to deposit of title deeds, pawn or pledge, Bottomry bond, mortgage of a crop, Respondentia bond or security bond, - (a) When a possession of the property or any part of the property comprised in such deed is given by the mortgagor or agreed to be given The same duty as conveyance (No. 20) for a market value equal to the amount secured by such deed" 5. Sri Chandrashekar, learned Counsel appearing for the respondent submits that, consequent upon the said calculation, the Court directed the petitioner/defendant to pay this duty and penalty at Rs. 2,77,000/- and the request made by the defendant by way of memo to collect the stamp duty at Rs. 3,000/- and penalty at Rs. 30,000/- as calculated earlier is rejected. 6. On a reading of the document in question VERNACULAR MATTER OMIITTWED it is evident that, as on the date of execution of the document, on 9-3-2006, the possession of the property was not handed over, it was agreed to be handed over on a future date of 27-3-2006. It was not the case of the plaintiff that, under the document of 9-3-2006, the defendant has taken over possession of the property. When the possession is not handed over under the document, which is ordered to be impounded, the provision applicable is Article 34(a) of the Act. Though it is the contention of the respondent/plaintiff that, however the document was acted upon and on a future date the possession is delivered to the plaintiff, thereby calculating duty and penalty as at Article 34(a) of the Act, cannot be accepted for the simple reason that, no such contention is raised in his pleading. Though it is the contention of the respondent/plaintiff that, however the document was acted upon and on a future date the possession is delivered to the plaintiff, thereby calculating duty and penalty as at Article 34(a) of the Act, cannot be accepted for the simple reason that, no such contention is raised in his pleading. It was never his case that under the agreement of 9-3-2006, the defendant came in possession of the property, simultaneous to execution of the document. In that view of the matter, this writ petition is allowed. The order dated 13-8-2014 passed in O.S. No. 188 of 2011 on the file of the II Additional Civil Judge (Junior Division) and Judicial Magistrate First Class, Tumkur, on the memo filed by the defendant/petitioner is quashed. The Court below is directed to redo the calculation of duty and penalty on the document in question in the light of the observation made supra. The petitioner is directed to pay the duty and penalty as directed by the Trial Court within two weeks of such calculation and proceed with the case.