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2022 DIGILAW 505 (KAR)

C. K. Raviprasanna v. Deputy Commissiner

2022-04-08

H.B.PRABHAKARA SASTRY

body2022
JUDGMENT 1. The present petitioner has sought for a writ of certiorari seeking quashing the order dtd. 17/7/2007, passed by the learned Civil Judge (Jr.Dn.) & J.M.F.C., Sullia, Dakshina Kannada, (hereinafter for brevity referred to as 'trial Court'), in O.S.No.91/2005, which is produced at Annexure-'D' to the petition, wherein the trial Court by observing that, in spite of the order dtd. 7/3/2007, the plaintiff before it has not paid the deficit stamp duty and penalty as calculated by it, has proceeded to send the original of the alleged Agreement of Sale dtd. 27/11/2004, upon which the deficit stamp duty and penalty was imposed, to the Deputy Commissioner as per Sec. 37(2) of Karnataka Stamp Act, 1957 (hereinafter for brevity referred to as 'Stamp Act'). The petitioner has also sought for a writ of certiorari seeking quashing of official correspondence of the trial Court with respondent No.1 - Deputy Commissioner in the form of a letter dtd. 18/8/2007, which is produced at Annexure-'D-1'. 2. The present petitioner, as a plaintiff, had instituted a suit against one Smt.T.K.Gowramma in the trial Court seeking the relief of permanent injunction. The petitioner as a plaintiff had taken a contention that the property in question was the subject matter of Agreement of Sale dtd. 27/11/2004 in favour of the plaintiff. During the course of the evidence, the petitioner, as a plaintiff, sought to mark the above said Agreement of Sale dtd. 27/11/2004 as an exhibit for collateral purpose. The trial Court on scrutiny of the document, found that the document in question was insufficiently stamped and not registered though it was compulsorily registrable in view of Sec. 17 (1)(a) of Registration Act, 1908. Thereafter, on 7/3/2007, the trial Court proceeded to pass an order directing the plaintiff to pay the stamp duty and penalty to be calculated by its office. It also mentioned in the said order that if the deficit stamp duty and penalty is not paid by the plaintiff, the document will be dealt with in accordance with the provisions of Sec. 37(1) of Stamp Act. Since the plaintiff (petitioner herein) did not pay the deficit stamp duty and penalty within the time prescribed by the trial Court, it proceeded to pass the impugned order on 17/7/2007 by mentioning that the Agreement of Sale dtd. Since the plaintiff (petitioner herein) did not pay the deficit stamp duty and penalty within the time prescribed by the trial Court, it proceeded to pass the impugned order on 17/7/2007 by mentioning that the Agreement of Sale dtd. 27/11/2004 is impounded for non-payment of deficit stamp duty and penalty and directed the office to send the original the said document to the Deputy Commissioner as per Sec. 37(2) of Karnataka Stamp Act, 1957, (Annexure-'D'). Accordingly, the office of the trial Court vide its letter dtd. 18/8/2007 (Annexure-'D-1'), communicated the order to the Deputy Commissioner along with the copy of the said document. It is challenging the said Annexure-'D' and Annexure-'D-1', the plaintiff in the trial Court has filed the present writ petition. 3. Learned counsel for the petitioner in his argument submitted that O.S.No.91/2005 came to be partly decreed by the judgment of the trial Court dtd. 17/4/2008. Against the said judgment and decree, an appeal in R.A.No.64/2008 was filed by the plaintiff in the Court of learned Addl.Senior Civil Judge, Puttur, Dakshina Kannada District, (hereinafter for brevity referred to as 'first Appellate Court'), which ended in the compromise between the parties under Order XXIII Rule 3 read with Sec. 151 of Code of Civil Procedure, 1908, (hereinafter for brevity referred to as 'CPC'), on 22/7/2010 and the same could be seen in Annexure-'C' and Annexure-'C-1' to the petition. With the said submission, learned counsel for the petitioner submitted that the trial Court ought not to have calculated the stamp duty and penalty by itself, but, it should have sent the document to the Deputy commissioner under Sec. 37 of the Stamp Act. As such, the trial Court by itself calculating the stamp duty and penalty and thereafter sending the document to the Deputy Commissioner under Sec. 37(2) of the Stamp Act is erroneous, as such, deserves to be set aside. 4. Learned High Court Government Pleader appearing for the respondents in his argument submitted that Sec. 37(1) of the Stamp Act empowers the Court to impose stamp duty and penalty. Since the plaintiff has not paid the stamp duty and penalty, the trial Court has rightly sent the impounded document to the Deputy Commissioner under Sec. 37(2) of the Stamp Act. 5. Since the plaintiff has not paid the stamp duty and penalty, the trial Court has rightly sent the impounded document to the Deputy Commissioner under Sec. 37(2) of the Stamp Act. 5. In the instant case, even according to the petitioner, who has stated in his memorandum of petition itself that, it was during the course of evidence, he intended to mark the said document which is an Agreement of Sale dtd. 27/11/2004 as an exhibit, however, the Court noticed that the said document was neither registered nor sufficiently stamped, as such, it impounded the said document. As such, under Sec. 34 read with Sec. 37(1) of the Stamp Act, the trial Court proceeded to calculate the stamp duty and penalty on the said document, which is clear in its order dtd. 7/3/2007, which reads as below : " ORDER The agreement of sale dt. 27/11/04 stated to have been entered into by the plaintiff with the defendant requires compulsory registration in view of Sec. 17 (1-A) of the Registration Act. The said document is not duly stamped. The said document can be admitted in evidence only for collateral purpose only if the deficit stamp duty and penalty is paid. Office is directed to write a letter to S.R.O. Sullia by enclosing a copy of the document with a direction to give the market value of the property as on the date of the agreement. Office shall calculate deficit stamp duty and penalty payable on the document as per Article 20 of the Karnataka Stamp Act. The plaintiff shall pay the duty and penalty within the fifteen days from the date of the calculation of the duty and penalty by the office. If the deficit stamp duty and penalty is paid as above the office is directed to send the authenticated copy of the instrument to the District Registrar together with a certificate stating the amount of the duty and penalty levied on the document together with the amount as provided under Sec. 37(1) of the Karnataka Stamp Act, 1957. If the plaintiff fails to pay the amount, the document will be dealt in accordance with the provisions of Sec. 37(2) of Karnataka Stamp Act, 1957." 6. The present petitioner challenged the said order of the trial Court dtd. 7/3/2007 by filing a writ petition before this Court in Writ Petition No.4758/2007 (GM-CPC). If the plaintiff fails to pay the amount, the document will be dealt in accordance with the provisions of Sec. 37(2) of Karnataka Stamp Act, 1957." 6. The present petitioner challenged the said order of the trial Court dtd. 7/3/2007 by filing a writ petition before this Court in Writ Petition No.4758/2007 (GM-CPC). After hearing both side, this Court by its detailed order dtd. 1/6/2007, rejected the writ petition. The operative portion of the said order dtd. 1/6/2007 is reproduced here below : " Therefore under Sec. 34 of the Karnataka Stamp Act there is a bar for a document being received in evidence and the same is absolute unless deficit duty and penalty is paid. Therefore, for any purpose, the document which is not duly stamped is inadmissible in evidence. I decline to accept the contention of the learned counsel for the petitioner. The impugned order passed by the Trial Court is in accordance with law and I find no justifiable grounds to interfere with the same." Thus, the very act of the trial Court directing the registry to calculate the stamp duty and penalty and also observing that in case the plaintiff fails to pay the stamp duty and penalty within fifteen days from the date of calculation, the document would be dealt with in accordance with the provisions of Sec. 37(2) of Karnataka Stamp Act, 1957, was not found fault with by this Court in Writ Petition No.4758/2007. As such, in the present writ petition, once again the very same petitioner cannot rake up the same point which has already been heard and decided on its merits. Thus, the argument of learned counsel for the petitioner that the trial Court ought not to have calculated the stamp duty and penalty by itself on the Agreement of Sale dtd. 27/11/2004, is not acceptable. Secondly, the order to pay the deficit stamp duty and penalty was passed by the trial Court on 7/3/2007 and challenge to the said order made by the plaintiff through Writ Petition No.4758/2007 also ended by this Court passing an order in the said writ petition on 1/6/2007. Accepting the said order, the petitioner as a plaintiff in the Original Suit proceeded with the Original Suit, which ended in decreeing in-part by the judgment and decree of the trial Court dtd. 17/4/2008. Accepting the said order, the petitioner as a plaintiff in the Original Suit proceeded with the Original Suit, which ended in decreeing in-part by the judgment and decree of the trial Court dtd. 17/4/2008. Thereafter, the petitioner filed an appeal in R.A.No.64/2008 before the first Appellate Court, which ended in compromise under Order XXIII Rule 3 read with Sec. 151 of CPC on 22/7/2010. Till then, the plaintiff did not bother about the said Agreement of Sale dtd. 27/11/2004 and his alleged liability to pay the deficit stamp duty and penalty. It is only after ensuring that the dispute between himself and Gowramma has ended in a compromise in R.A.No.64/2008, as such, there is no more requirement of him of the Agreement of Sale dtd. 27/11/2004, the plaintiff/petitioner appears to have filed the present writ petition only with an intention to avoid the payment of the deficit stamp duty and penalty, which is a sum of Rs.23,79,411.00 payable by him. Thus, after the alleged impugned order dtd. 17/7/2007, with a delay of nearly seven years, he has approached this Court through this writ petition. This shows the conduct of the petitioner which is not appreciable. Thus, he has not approached the Court with a clear thought and good heart, but, only to avoid his liability for payment of deficit stamp duty and penalty after getting his purpose served through a compromise in R.A.No.65/2008. Therefore, the present petition not only deserves to be dismissed as devoid of merits, but, with costs. Accordingly, the Writ Petition stands dismissed with a cost of Rs.5,000.00 payable by the petitioner to the Legal Services Committee of this Court within fifteen days from today and to file a compliance memo along with receipt in the registry to that effect. In case, the cost is not paid, the beneficiary i.e., Legal Services Committee of this Court is at liberty to recover the said amount from the present petitioner herein treating this order as a decree and by getting it executed in accordance with law. Registry to transmit copies of this order to the Legal Services Committee of this Court as well to the Trial Court and First Appellate Court, for their information and needful in the mater in case of necessity.