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2021 DIGILAW 906 (KAR)

M. N. Puttaramu v. Chikkamma

2021-10-07

SURAJ GOVINDARAJ

body2021
JUDGMENT : 1. None appears for the respondents today also. None has been appearing for the respondents on the earlier occasions. Vide order dtd. 18/8/2021, it was made clear that if none were to appear for the respondents, the matter would be taken up for disposal. Hence, it is taken up for disposal. 2. The petitioner is before this Court seeking for the following reliefs: "WHEREFORE, the petitioner most respectfully prays that this Hon'ble Court be pleased to :- 1. Issue a Writ of Certiorari or any other appropriate writ or order or direction, quashing the impugned order dtd. 18/7/2016 at Annexure-A, passed by the Learned 39th Additional City Civil and Sessions Judge (CCH-40), Bengaluru, in O.S.No.1322/2013; 2. Grant such other and further reliefs as this Hon'ble Court deems fit and proper under the facts and circumstances of the case, in the interest of justice and equity." 3. The suit in O.S.No.1332/2013 has been filed seeking for the following releifs: "Wherefore, the plaintiff most humbly prays that this Hon'ble Court be pleased to pass judgment and decree in favour of the plaintiff and as against the Defendants:- 1. For specific performance of contract i.e., the Agreement to sell dtd. 23/4/2011 executed by the defendants in favour of the plaintiff, directing the defendants to execute the registered sale deed in favour of the plaintiff in respect of the schedule property within the specific period/time to be fixed by this Hon'ble Court by receiving the balance sale consideration amount; 2. Direct the execution of a registered sale deed concerning the schedule property in favour of the plaintiff through a Court Commissioner to be appointed by this Hon'ble Court, if the defendants fail to execute the registered sale deed within the specific period/time fixed by this Hon'ble court; 3. Award costs of the suit; 4. Grant such other and further releifs as this Hon'ble Court deems fit in the circumstances of the case, in the interest of justice and equity." 4. Written statement was filed contesting the said suit and various defences were taken therein. The matter having been posted for evidence of the plaintiff, the plaintiff/petitioner has sought to lead evidence and mark the agreement of sale entered into between the parties. 5. At that stage, the trial Court has suo moto vide its order dtd. Written statement was filed contesting the said suit and various defences were taken therein. The matter having been posted for evidence of the plaintiff, the plaintiff/petitioner has sought to lead evidence and mark the agreement of sale entered into between the parties. 5. At that stage, the trial Court has suo moto vide its order dtd. 18/7/2016 came to a conclusion that in the agreement of sale there was a clause agreeing to hand over the peaceful possession of the entire suit schedule property, at the time of registration of the sale deed, hence, the stamp duty in terms of Article 5(e)(i) of the Karnataka Stamp Duty Act, 1957, (for short ' the Act') would have to be paid, in terms of Article 20 of the Act on the market value of the property and considering that the agreement of sale was not executed on sufficient stamp paper, directed the Office to calculate the duty and penalty payable on the agreement of sale dtd. 23/4/2011. It is aggrieved by the same, the petitioner is before this Court. 6. As observed, none appears for the respondents. 7. Sri. Satish, learned counsel for the petitioner would submit that the entire finding of the trial Court is not proper, inasmuch as the possession has not been handed over under the agreement of sale dtd. 23/4/2011 and as such the stamp duty of Rs.200.00 which has been paid on the agreement of sale is proper and correct, and no stamp duty is required to be paid under Article of the 20 of the Act. On that basis, he submits that the impugned order is liable to be set aside and the document namely agreement of sale dtd. 23/4/2011 be permitted to be marked in evidence. 8. Heard Sri. Satish, learned counsel for the petitioner and perused the petition papers. 9. The points that would arise for determination of this Court are: 1. Whether merely because in the agreement of sale, there is a clause which states that the possession of the property would be handed over at the time of the execution of the sale deed, the agreement of sale would be liable to be stamped in terms of Article 5(e)(i) of the Act on the market value of the property as per Article 20 of the Act? 2. 2. Whether the trial Court could direct the Office attached to the said trial Court to calculate the duty and penalty payable on the agreement of sale and direct the plaintiff to make payment of the same? 3. What order? 10. Answer to Point No.1: Whether merely because in the agreement of sale, there is a clause which states that the possession of the property would be handed over at the time of the execution of the sale deed, the agreement of sale would be liable to be stamped in terms of Article 5(e)(i) of the Act on the market value of the property as per Article 20 of the Act? 9.1. Clause 9 of the agreement of sale is reproduced hereunder for easy reference: "WHEREAS, the vendors have agreed to hand over the peaceful possession of the entire schedule property with all its appurtenances to the purchaser at the time of registration of absolute sale deed/s, free from all encumbrances, claims, litigations, attachments, charges, mortgages, liabilities etc." 9.2. Article 5(i)(e) of the Act which is reproduced hereunder for easy reference: "2[5(e) If relating to sale of immovable property wherein part performance of the contract (i) possession of the property is delivered or is agreed to be delivered before executing the conveyance Same duty as a conveyance (No.20) on the market value of the property: 4[Provided that, where a deed of cancellation of earlier agreement is executed by and between the same parties in respect of the same property and if property stamp duty has been paid on such "deed of cancellation" shall not exceed rupees five hundered. 9.3. A perusal of Clause 9 of the agreement of sale only indicates that the possession would have to be handed over at the time of execution and registration of the sale deed. The entire reading of the agreement including Clause 9 which is reproduced hereinabove does not indicate as to whether the possession has been handed over under the agreement or not. 9.4. The entire reading of the agreement including Clause 9 which is reproduced hereinabove does not indicate as to whether the possession has been handed over under the agreement or not. 9.4. In terms of Article 5(e)(i) of the Act, it is only of possession of the property i.e., the subject matter of the agreement of sale has been handed over under the agreement of sale or before the execution of the conveyance that the said document would be exigible for stamp duty as a conveyance in terms of Article 20 of the Act payable on the market value of the property. 9.5. If the possession were not to be handed over "in presenti" that is under the document then the question of stamp duty being liable to be paid on the market value would not at all arise. 9.6. The aforesaid Clause 11, is an executory clause inasmuch as the possession is undertaken to be handed over on the execution and the registration of a sale deed which is an event which may happen in future, the stamp duty cannot be directed to be paid on an event which may occur in future. In the present case, stamp duty is required to be paid only on the said event happening which would make it exigible for duty. 9.7. Hence, if merely under the agreement of sale there is a clause agreeing to hand over possession in future, it cannot be said that the document is insufficiently stamped. The finding of the trial Court in this regard would be therefore required to be set aside. 11. Answer to point No.2: Whether the trial Court could have directed the Office attached to the said trial Court to calculate the duty and penalty payable on the agreement of sale and directed the plaintiff to make payment of the same? 10.1. This Court in several decisions has categorically held that the trial Court cannot delegate the duty of calculating the stamp duty payable to the Office attached to the trial Court. It would be for the trial Court to first determine the stamp duty actually liable to be paid, since it is only on such determination of the stamp duty liable to be paid on the document that the trial Court could come to a conclusion as to whether the stamp duty paid is proper or not. 10.2. It would be for the trial Court to first determine the stamp duty actually liable to be paid, since it is only on such determination of the stamp duty liable to be paid on the document that the trial Court could come to a conclusion as to whether the stamp duty paid is proper or not. 10.2. In the absence of determination of the stamp duty, there cannot be a finding as to whether the stamp duty paid is proper or not. For this purpose the trial Court after examining the relevant articles of the Karnataka Stamp Duty Act, 1957 is required to determine the stamp duty, adjudicate on whether the stamp duty paid is proper or not. If the stamp duty paid is proper there would be nothing further to be decided. If the stamp duty paid is deficit, then the trial Court would be required to determine the deficit in the stamp duty and thereafter, impose penalty, if any required. These aspects cannot be delegated by the trial Court to the Office attached to it and these are not ministerial acts but judicial functions to be discharged. 12. Answer to point No.3: What order? 11.1. In view thereof, the impugned order dtd. 18/7/2016 is set aside. Since possession has not been handed over under the agreement of sale dtd. 23/4/2011, the same is not exigible for stamp duty under Article 20 of the Act. The trial Court is directed to permit the said documents to be marked in evidence and proceed therefrom. No order as to cost.