Abdul Kahliq Ansari vs Farkunda and Others

A.N. Venugopal Gowda, J—These petitions are directed against the orders dated 28.06.2014 and 07.07.2015 passed in O.S. No. 313/2008 by the I Addl. Senior Civil Judge, Kolar.

The basic facts which are necessary to decide these petitioners are the following:

The petitioner has instituted, on 25.11.2008, O.S. No. 313/2008 in the Court of Senior Civil Judge at Kolar, to pass a decree for specific performance of an Agreement of Sale dated 05.02.2007, against the respondents. Written Statements of defendant Nos. 3 and 4 was filed on 03.03.2009 and that of defendant No. 1, on 21.07.2009. The Written Statement of defendant No. 2 was filed on 12.09.2012, accompanied by an application seeking condonation of delay. The defendants No. 3 and 4 filed an I.A. on 23.09.2013, under Order VII Rule 11 read with Section 151 CPC to reject the plaint on the ground that the suit document/Agreement of Sale dated 05.02.2007 is insufficiently stamped. The Trial Judge, by considering the rival contentions, by an order dated 13.11.2013, directed the Office to calculate the stamp duty and penalty payable on the suit document. The calculation having been made on 11.03.2014, Trial Judge directed the plaintiff to pay the stamp duty and penalty as calculated by the Office. I.A. No. 14 filed by the plaintiff, under Section 151 CPC, to recall the order and grant permission to file objections was dismissed by an order dated 28.06.2014. Assailing the orders dated 13.11.2013 and 11.12.2013 passed by the Trial Judge, W.P. Nos. 36746-747/2014 were filed and the same were dismissed on 11.02.2015. The plaintiff, on 02.05.2015, filed I.A. No. 15, under Section 151 CPC, to permit payment of deficit stamp duty and penalty of Rs. 31,09,700/-. The said application having been opposed by defendants No. 2 to 4, by filing statement of objection on 30.05.2015 and upon consideration, was rejected by an order dated 07.07.2015. Assailing the aforesaid orders these petitions were filed on 23.07.2015.

Sri G. Manivannan, learned advocate, contended that the impugned Orders, as at Annexures - E and K, passed by the Trial Judge being perverse and illegal, are liable to be set aside. Learned Counsel submitted that the Trial Judge has misread the facts and circumstances of the case and has failed to notice the bona fides on the part of the plaintiff in making the arrangements and producing the D.Ds. for Rs. 31,09,700/-, towards payment of determined stamp duty and penalty. Learned Counsel further submitted that, if the impugned orders were to remain, injustice which will be caused to the petitioner, would be irremediable.

Sri B. Papegowda, learned advocate, on the other hand, contended that the suit was instituted based on an inadmissible document and despite the order passed on 09.04.2014, the stamp duty and penalty payable on the suit document was not remitted and even after dismissal of the writ petition Nos. 36746-747/2014, the determined stamp duty and penalty was not remitted. He further submitted that plaintiff has not deposited the sale consideration amount as shown in the suit document before the Trial Court and by withholding huge amount, he is having illegal benefit and the interest, if worked out on the withheld amount, on FD rate terms, there is illegal benefit of more than Rs. 6,00,000/- to the plaintiff. Learned counsel made submissions in support of the impugned orders.

I.A. No. 14 filed by the plaintiff to recall orders, dated 28.06.2014 was dismissed on the ground that sufficient opportunity has been given to pay the deficit stamp duty and penalty and also by observing that the office having made calculation on 11.03.2014, after four adjournments, I.A. No. 14 was filed to protract the proceedings. It was ordered that on account of non-payment of stamp duty and penalty, the suit document shall not be taken in evidence. I.A. No. 15 was filed on 02.05.2015, to permit payment of deficit stamp duty and penalty of Rs. 31,09,700/- and mark the suit document in evidence. Since the stamp duty and penalty was not remitted even after a lapse of three months of dismissal of WP Nos. 36746-747/2014 and as seven years have elapsed after filing of the suit and being of the opinion that in view of the observations made in the order passed by this Court, the Trial Court has no jurisdiction to entertain the application, order dismissing I.A. No. 15 has been passed.

W.P. Nos. 36746-747/2014 were dismissed on the ground that the plaintiff having agreed to pay the deficit stamp duty and penalty, cannot approbate and reprobate.

Perused the record of the writ petitions and considered the rival contentions. The plaintiff was directed on 09.04.2014 to pay the deficit stamp duty and penalty, as calculated by the Office. I.A. No. 14 was filed on 28.06.2014 to recall the said order and the subsequent orders dated 22.04.2014, 23.06.2014 and 24.06.2014, directing the plaintiff to pay the deficit stamp duty and penalty. I.A. No. 14 was dismissed on 28.06.2014. Orders passed on 13.11.2013, 11.12.2013 by the learned Trial Judge directing the Office to calculate the deficit stamp duty and penalty payable, were assailed on 28.07.2014 in W.P. Nos. 36746-747/2014. Those writ petitions were dismissed on 11.02.2015. No time limit was prescribed within which the deficit stamp duty and penalty should be remitted. I.A. No. 15 was filed on 02.07.2015. A memo was filed furnishing the particulars of six DDs for Rs. 31,09,700/- towards payment of deficit stamp duty and penalty. No doubt, the plaintiff has not remitted the deficit stamp duty and penalty immediately after the dismissal of the said writ petitions. However, DDs have been purchased in the month of April, 2015 and was sought to be produced before the Court below, with the aforesaid memo. The plaintiff has caused harassment to the defendants on account of delay in prosecution of the suit which has been instituted on 25.11.2008 and also has wasted judicial time.

Since no period was prescribed within which the deficit stamp duty and penalty was to be paid and within about three months of dismissal of the writ petitions, stated above, the plaintiff came forward to remit the deficit stamp duty and penalty and since the impugned orders are irrational and if allowed to remain, is likely to lead to an irremediable situation and also keeping in view the fact that while passing the impugned orders, Trial Judge has acted mechanically and has failed to consider the fact that the plaintiff has purchased D.Ds. for Rs. 31,09,700/- and has thus, shown certain bona fides, by subjecting the petitioner to terms, these petitions can be allowed.

In the result, the writ petitions are allowed and the impugned orders are set aside, subject to the plaintiff paying to the defendants, costs quantified at Rs. 50,000/-, on the next hearing date of the suit. The D.Ds. purchased towards payment of deficit stamp duty and penalty shall be deposited in the trial Court on or before 14.10.2015.

Pleadings being complete and the issues having been raised and the suit being at the stage of trial, the plaintiff shall complete his side of evidence on or before 6th January, 2016. The defendants shall complete their side of evidence within a period of three months from the date plaintiff closes his side. The suit shall be decided by the Trial Judge, with expedition and before 30th June, 2016. Ordered accordingly.