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2018 DIGILAW 7 (KAR)

K. Thimmaraju v. Nagaraja

2018-01-02

B.VEERAPPA

body2018
ORDER : B. Veerappa, J. 1. These writ petitions are filed by plaintiff against the order dated 12.07.2017 made in O.S. No. 18/2012 dismissing I.A. No. 9 filed by the plaintiff under Section 151 of Code of Civil Procedure and the order dated 09.09.2016 rejecting I.A. No. 5 filed by the plaintiff under Section 151 of Code of Civil Procedure. 2. The present petitioner who is the plaintiff before the Trial Court filed suit for specific performance to enforce the agreement of sale dated 23.01.2012 executed by defendant Nos. 1 to 4 in favour of the plaintiff, to declare the agreement of sale dated 18.02.2012 entered into between defendant Nos. 1 and 5 as null and void and for grant of permanent injunction against the defendants No. 1 to 4, contending that defendants Nos. 1 to 4 are the owners of land bearing Sy. No. 36/3 measuring 13 guntas including 1 gunta kharab situated at Mudugiripalya village, Gottigere Dhakle, Huttaridurga Hobli, Kunigal Taluk, Tumakuru District, morefully described in the schedule to the plaint. Defendants 1 to 4 entered into an agreement of sale with the plaintiff on 23.01.2012 in respect of the suit schedule property, for a total sale consideration of Rs. 15,60,000/- and received a sum of Rs. 5,00,000/- by way of cash from the plaintiff as advance and delivered possession in favour of the plaintiff as part performance of the agreement. Now, the plaintiff is in possession and enjoyment of the suit schedule property. 3. It is the further case of the plaintiff that the defendants Nos. 1 to 4 also executed an agreement of sale in favour of defendant No. 5 on 18.02.2012, which is not binding on the plaintiff. In spite of repeated representation made, the defendants Nos. 1 to 4 have not come forward to execute the sale deed. Therefore, plaintiff issued legal notice dated 03.03.2012 calling upon the defendants No. 1 to 4 to execute the sale deed within 15 days and requested the defendant No. 5 to withdraw the registered agreement of sale in his favour as defendant Nos. 1 to 4 have entered into agreement of sale with the plaintiff. But the defendants gave evasive reply. Hence, plaintiff filed the suit for the relief sought for. 4. The defendants filed written statement, denied the plaint averments and contended that they never executed any agreement of sale as contended by the petitioner. 1 to 4 have entered into agreement of sale with the plaintiff. But the defendants gave evasive reply. Hence, plaintiff filed the suit for the relief sought for. 4. The defendants filed written statement, denied the plaint averments and contended that they never executed any agreement of sale as contended by the petitioner. Absolutely there is no cause of action to file the suit and further contended that without prejudice to the contentions taken in the written statement, the agreement of sale is unstamped and unregistered. Therefore, it cannot be admitted in evidence. Therefore, the suit filed by the plaintiffs is not maintainable and accordingly sought for dismissal of the suit. 5. When the matter was posted for evidence, at that stage, plaintiff filed an application under Section 151 of Code of Civil Procedure praying to return the original agreement of sale to pay proper stamp duty on agreement of sale before the competent authority reiterating the averments made in the plaint. 6. The defendant No. 1 filed I.A. No. 6 and defendant No. 4 filed I.A. No. 7, both under Order XIII Rule 8 of Code of Civil Procedure, praying to impound the unregistered agreement of sale dated 23.01.2012 contending that it is insufficiently stamped and to direct the plaintiff to pay the duty and penalty on the said agreement of sale. The application filed by the defendants was opposed by the plaintiff by filing objections. 7. The trial Court considering the application and objections, by the order dated 09.09.2016, rejected I.A. No. 5 filed by the plaintiff under Section 151 of Code of Civil Procedure and allowed I.A. Nos. 6 and 7 filed by the defendant Nos. 1 and 4 respectively and directed the plaintiff to pay the deficit stamp duty of Rs. 93,100/- with 10 times penalty on deficit stamp duty i.e., Rs. 9,31,000/-, in total, directing the plaintiff to pay Rs. 10,24,100/- so as to admit the agreement of sale dated 23.01.2012. 8. Subsequently, the plaintiff filed I.A. No. 9 under Section 151 of Code of Civil Procedure praying to refer the sale agreement dated 23.01.2012, Annexure-A to the District Registrar for adjudication of duty and penalty or return the sale agreement to enable him to lead evidence on the said sale agreement contending that, this Court has referred the sale agreement to the District Registrar for adjudication of stamp duty and penalty. On account of miscommunication between the plaintiff and his advocate as well as the District Registrar, the document has been returned back to the Court, without there being any adjudication. The adjudication of stamp duty and penalty is necessary to enable the plaintiff to lead the evidence on the said sale agreement. Hence, sought for allowing the application. The said application was opposed by the defendants by filing objections. 9. The trial Court considering the application and objections, by the impugned order dated 12.07.2017, dismissed the application filed by the plaintiff with costs of Rs. 300/-. Hence, the present writ petitions are filed. 10. I have heard the learned counsel for the parties to the lis. 11. Sri Vinay. G., Advocate for Sri. Nagaiah, learned counsel appearing for the petitioner/plaintiff vehemently contended that the impugned orders passed by the trial Court rejecting the I.A. Nos. 5 and 9 filed by the plaintiff filed under Section 151 of Code of Civil Procedure are erroneous and contrary to the materials on record. He would further contend that when the original document is produced along with the plaint, the cause of action for the suit arises for the Court only when the plaintiff moves the Court to refer the document. Till then, the Court has no jurisdiction to refer the matter. Therefore, the impugned order passed by the trial Court is erroneous and contrary to the materials on record. He further contended that, mere production of agreement before the Court does not entitle the Court to refer the matter, unless the plaintiff moves for reference or at the time of tendering the evidence, then only the Court can have the jurisdiction. Till then, the Court has no jurisdiction. In respect of his contentions learned counsel relied upon the judgment in the case of SHRI S. SURESH VS. SHRI L. POTHE GOWDA AND OTHERS, reported in ILR 2010 KAR 5156 to the effect that the admissibility or inadmissibility of document or return of document arises only on tendering evidence and the party may admit the document in evidence or may not choose to admit the same. Paragraph 25 of the said decision reads as under: "25. If two conflicting opinions are expressed by two different Benches of the same State, normally the matter requires to be considered by the larger Bench. Paragraph 25 of the said decision reads as under: "25. If two conflicting opinions are expressed by two different Benches of the same State, normally the matter requires to be considered by the larger Bench. This Court in K.B. JAYARAM's case (supra) has considered the admissibility of the document at the interlocutory stages also, however, it is based on the facts of the said case, question of admissibility of such document in the evidence was not a matter, which fell for consideration. The said decision has also not considered the earlier decision of this Court in the matter of LAKSHMI NARAYANACHAR'S case (supra) and LEELAMMA SAMUEL's case (supra). The said decision will not be a bar to consider the provisions of C.P.C. and the Act, as regard to impounding of the document. Merely because the documents are produced along with the plaint, that by itself automatically does not warrant impounding of the document. The party may admit the document in the evidence or may not choose to admit the same in the evidence." Therefore, he sought to quash the impugned order. 12. Per contra, Sri Venkata Krishna Rao. B.K., learned counsel appearing for the caveator/respondent No. 5 sought to justify the impugned orders and contended that in view of the provisions of Section 33 of the Stamp Act, once the document is produced before the Court, or if it appears that such instrument is not duly stamped, the Court shall refer the document for impounding. The same has been done in the present case. He would further contend that, I.A. No. 5 filed by the plaintiff was rejected and I.A. Nos. 6 and 7 filed by defendant Nos. 1 and 5 respectively, was allowed and the document was referred to Deputy Registrar for adjudication. The Deputy Registrar submitted his report dated 28.03.2016 and thereafter the Trial Court passed the order dated 09.09.2016. Subsequently, the second application I.A. No. 9 filed by the plaintiff for similar prayer is not maintainable, in view of the provisions of Section 11 of Code of Civil Procedure. Therefore, sought for dismissal of the writ petitions. 13. The Deputy Registrar submitted his report dated 28.03.2016 and thereafter the Trial Court passed the order dated 09.09.2016. Subsequently, the second application I.A. No. 9 filed by the plaintiff for similar prayer is not maintainable, in view of the provisions of Section 11 of Code of Civil Procedure. Therefore, sought for dismissal of the writ petitions. 13. Having heard the learned counsel for the parties, it is not in dispute that the plaintiff filed the suit for specific performance to enforce the agreement of sale dated 23.01.2012 and it is also not in dispute that according to the plaint averments, the possession was delivered as on the date of the agreement and plaintiff is in possession and enjoyment of the property. The said averments made in the plaint is totally denied by the defendants No. 1 to 4 and contended that they never executed the alleged sale agreement in favour the plaintiff. In fact, they admitted that they executed agreement of sale in favour of 5th defendant. It is also not in dispute that, earlier the present plaintiff filed I.A. No. 5 under Section 151 of Code of Civil Procedure to return the original agreement of sale in order to pay the stamp duty on the agreement of sale. It is also not in dispute that the defendant Nos. 1 and 4 also filed I.A. Nos. 6 and 7 praying to impound the document and to refer the agreement of sale for adjudication before the competent authority. 14. It is also undisputed fact that, the trial Court considering the applications and objections of both the sides, rejected the application filed by the plaintiff under Section 151 of Code of Civil Procedure for return of the original agreement of sale to pay proper stamp duty before the competent authority, and allowed the I.A. Nos. 6 and 7 filed by the defendants under Order XIII Rule 8 of Code of Civil Procedure and the document was impounded. The said order passed by the trial Court allowing the I.A. Nos. 6 and 7 filed by the defendants No. 1 and 5 has reached finality and not challenged till today. 15. 6 and 7 filed by the defendants under Order XIII Rule 8 of Code of Civil Procedure and the document was impounded. The said order passed by the trial Court allowing the I.A. Nos. 6 and 7 filed by the defendants No. 1 and 5 has reached finality and not challenged till today. 15. It is undisputed fact that once the application I.A. No. 5 filed by the plaintiff for return of the document to pay proper stamp duty is dismissed, filing of I.A. No. 9 for similar prayer is impermissible and is not maintainable, in view of the provisions of Section 11 of Code of Civil Procedure. An issue is decided by the competent Court on merits, shall not be decided for the second time. Therefore, the provisions of Section 11/res judicata is applicable. The trial Court has rightly rejected the said applications. 16. It is also not in dispute that in pursuance of the order passed by the Trial Court under the provisions of Section 33 of the Stamp Act, referring the matter to the concerned Registrar, in turn, the Registrar by communication dated 28.03.2016, determined the stamp duty and penalty payable by the plaintiff of the agreement of sale dated 23.01.2012. Therefore, I.A. No. 9 filed by the plaintiff is not maintainable. 17. The trial Court considering the entire material on record, referring to the earlier orders passed, has recorded a specific finding that, once the matter is decided by the competent authority on merits, same shall not be decided for the second time. On earlier occasion, the Court considering all the points now the plaintiff has argued in present application, passed orders on I.A. Nos. 5 to 7 has reached finality. Therefore, there is no scope for considering the same prayer. The Deputy Registrar has already given his finding on proper stamp duty and on the basis of his opinion, the trial Court has directed the plaintiff to pay stamp duty of Rs. 93,100/- with ten times penalty. Since plaintiff has not complied with the order, there is no scope to consider the application and there is no need to send once again the agreement of sale dated 23.01.2012 to the Deputy Registrar to adjudicate the proper stamp duty and penalty unless the plaintiff show that, the finding of the Deputy Registrar is illegal. Since plaintiff has not complied with the order, there is no scope to consider the application and there is no need to send once again the agreement of sale dated 23.01.2012 to the Deputy Registrar to adjudicate the proper stamp duty and penalty unless the plaintiff show that, the finding of the Deputy Registrar is illegal. Since it is not his case that, the orders of the Deputy Registrar is illegal but for want of proper communication there was no adjudication of agreement of sale, the application I.A. No. 9 is not maintainable and accordingly dismissed the application. 18. The fact remains that allowing the applications filed by the defendants No. 1 and 5 directing the plaintiff to pay stamp duty and penalty has reached finality. There is no challenge to the said order till today. What is challenged is, order passed on I.A. Nos. 5 and 9. The contention of the learned counsel for the petitioner that unless the document was tendered in evidence, the Court has no jurisdiction, cannot be accepted at this stage. This Court, in the case of SMT. SAVITHRAMMA. R.C., VS. M/S. VIJAYA BANK AND ANOTHER reported in ILR 2015 KAR 1984, at paragraphs 3, 6 and 7, has held as under : "3. The trial Court is right to the extent that, once the document is marked without objection, no subsequent objection regarding its marking can be gone into and such document will have to be looked into while deciding the case on merits. This, however, does come in the way of the court discharging the statutory duty contemplated under Sec. 33 of the Act. Section 33 of the Karnataka Stamp Act, 1957, which deals with Examination and impounding of instruments reads as under: 33. Examination and impounding of instruments.- (1) Every person having by law or consent of parties authority to receive evidence, and every person in-charge of a public office, except an officer of police, before whom any instrument, chargeable in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same. (2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in the State of Karnataka when such instrument was executed or first executed: Provided that,-- (a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898; (b) in the case of a Judge of the High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf. (3) For the purposes of this section, in cases of doubt, the Government may determine,-- (a) what offices shall be deemed to be public offices; and (b) who shall be deemed to be persons in-charge of public offices. 4. xxxxxxxx 5. xxxxxxx 6. From the aforesaid statutory provisions and the decisions, it is clear that a duty is cast upon every Judge to examine every document, which is produced or comes before him in the performance of his functions. On such examination, if it appears to the Judge that such instrument is not duly stamped, an obligation is cast upon him to impound the same. This duty is to be performed by the Judge irrespective of the fact whether any objection to its marking is raised or not. Hence, there is a need for diligence on the part of the Court having regard to the statutory obligation under Section 33 of the Karnataka Stamp Act. Section 34 of the Karnataka Stamp Act mandates that an instrument, which is not duly stamped shall not be admitted in evidence. If any objection is taken to the admissibility of the evidence, it shall be decided then and there. If this document is found to be insufficiently stamped, then in terms of the proviso (a) to Section 34, the Court shall call upon the person, who is tendering the said document to pay duty and ten times penalty and thereafter admit the document in evidence. If this document is found to be insufficiently stamped, then in terms of the proviso (a) to Section 34, the Court shall call upon the person, who is tendering the said document to pay duty and ten times penalty and thereafter admit the document in evidence. If duty and penalty is not paid, the document shall not be admitted in evidence. If such an objection is not taken at the time of admitting the said instrument in evidence, and the insufficiently stamped document is admitted in evidence then section 35 of the Act provides that such admission shall not be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. It has nothing to do with impounding the document. A duty is cast upon every Judge to examine every document that is sought to be marked in evidence. The nomenclature of the document is not decisive. The question of admissibility will have to be decided by reading the document and deciding its nature and classification. The tendency to mark documents without inspection and verification should be eschewed. Even while recording ex-parte evidence or while recording evidence in the absence of the Counsel for the other side, the Court should be vigilant and examine and ascertain the nature of the document proposed to be marked and ensure that it is a document which is admissible. The Court should not depend on objections of the other Counsel before considering whether the document is admissible in evidence or not. Section 33 of the Stamp Act casts a duty on the Court to examine the document to find out whether it is duly stamped or not, irrespective of the fact whether an objection to its marking is raised or not. Section 37 of the Act provides what the Judge has to do when he has collected duty and penalty under Section 34 of the Act and what he has to do, if the case does not fall under Section 34 of the Act. Section 37 of the Karnataka Stamp Act reads thus: 37. Section 37 of the Act provides what the Judge has to do when he has collected duty and penalty under Section 34 of the Act and what he has to do, if the case does not fall under Section 34 of the Act. Section 37 of the Karnataka Stamp Act reads thus: 37. Instruments impounded how dealt with.- (1) When the person impounding an instrument under section 33 has by law or consent of parties authority to receive evidence and admits such instrument in evidence upon payment of a penalty as provided by section 34 or of duty as provided by section 36, he shall send to the Deputy Commissioner an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof, and shall send such amount to the Deputy Commissioner or to such person as he may appoint in this behalf. (2) In every other case, the person so impounding an instrument shall send it in original to the Deputy Commissioner. 7. If the Judge has acted under Section 34 of the Act and collected duty and penalty and admitted the document in evidence, then under sub-Section (1) of Section 37, he shall send to the Deputy Commissioner an authenticated copy of such instrument together with a Certificate in writing stating the amount of duty and penalty levied in respect thereof and shall send such amount to the Deputy Commissioner or such person as he may appoint in this behalf. If the Judge does not act under Section 34 of the Act, but the document is insufficiently stamped and admitted in evidence though objection regarding admissibility cannot be raised subsequently that does not take away his obligation to impound the document under Section 33 of the Act. If the document is insufficiently stamped and if the Court has admitted such instrument in evidence without collecting duty and penalty, then the Judge shall proceed under Section 33 of the Act and impound the document. After impounding the document, he shall proceed under Section 37(2) of the Act and shall send the impounded instrument in original to the Deputy Commissioner to be dealt with under Section 39 of the Act. Therefore, impounding the document should not be confused to admission of document without objection regarding admissibility or on such objection being taken after collecting the duty and penalty." 19. Therefore, impounding the document should not be confused to admission of document without objection regarding admissibility or on such objection being taken after collecting the duty and penalty." 19. It is not the case of the petitioner that when the matter is posted for evidence, he will not tender the document. If it is the case of the petitioner that he will not choose to admit the document in evidence, then the things would have been different. The decision of the Hon'ble Supreme Court in the case of LAKSHMI NARAYANACHAR'S case (supra) and LEELAMMA SAMUEL's case (supra), has been relied upon by the learned Single Judge of this Court in the case of SHRI S. SURESH (supra). There is no quarrel with regard to the law laid down by the Hon'ble Supreme Court followed by this Court. The facts of the said case are entirely different from the facts of the present case. In the present case, the District Registrar has already determined the stamp duty and penalty payable by the plaintiff and the order passed by the Trial Court directing the plaintiff to pay the stamp duty and penalty has reached finality. Therefore, the contention of the learned counsel for the petitioner that the Trial Court has no jurisdiction to pass the impugned order, cannot be accepted. 20. This Court in the case of MISS. SANDRA LESLY ANNABARTLETS VS. MISS. P. GUNAVATHY reported in ILR 2013 KAR 368 considering the provisions of Section 33 of the Stamp Act, at paragraphs 12 and 13 held as under : "12. Court cannot say that it would impound the document only when the document is tendered in evidence for marking. There may be instances where duty and penalty payable may be very high and the party may not choose to rely upon such insufficiently stamped document in order to avoid stamp duty and penalty. In such circumstances, it would result in loss of revenue to the exchequer. The power of impounding a document is to collect stamp duty and penalty whenever there is an escape of duty. Therefore, when it is brought to the notice of the Court that a document is insufficiently stamped, the Court exercising its power under Section 33 of the Act has to pass an order at the first instance for impounding the document. Therefore, when it is brought to the notice of the Court that a document is insufficiently stamped, the Court exercising its power under Section 33 of the Act has to pass an order at the first instance for impounding the document. Though there is a discretion vested in the Court to exercise powers under Sections 33 and 34 of the Act, no Court can hold that it would wait till the document is tendered in evidence. In such circumstances, there may be chances of loss of revenue to the exchequer. 13. In the circumstances, we answer the reference "holding that under Section 33 of the Stamp Act, the moment an insufficiently stamped instrument comes to the notice of the Court, the same has to be impounded in accordance with Section 33, whether the same would be relied upon by the party under Section 34 or not". 21. For the reasons stated above, the impugned order passed by the Trial Court dismissing the application filed by the petitioner/plaintiff under Section 151 of Code of Civil Procedure, is just and proper. No interference is called for in exercise of the powers under Article 227 of Constitution of India. Accordingly, the writ petitions are dismissed. 22. At this stage, Sri Vinay G., advocate for Sri Nagaiah, learned counsel for the petitioner seeks reasonable time to pay the stamp duty and penalty, as ordered by the trial Court. Taking into consideration the submission made by the learned counsel for the petitioner, reasonable time of four months is granted to pay the stamp duty and penalty. Ordered accordingly.