D. Shekarappa vs B.R. Indudar and Others

S. Sujatha, J.—Petitioner has challenged the orders dated 11.08.2011 at Annexure "D", 19.01.2012 at Annexure "G" and 21.08.2012 at Annexure "J" passed by the Principal Civil Judge (Sr.Dvn.) & CJM, Davangere.

The facts in brief are that 1st respondent has filed O.S. No. 94/2008 against the petitioner and respondents 2 and 3 before the Court below for specific performance of an agreement dated 20.03.2002 and to pass an order directing the petitioner to execute the registered sale deed in his favour with regard to the suit schedule property and to declare that the sale deeds dated 14.11.2003 and 06.12.2003 executed between the petitioner and respondents 2 and 3 are not binding on 1st respondent and also for an order to restrain the petitioner and respondents 2 and 3 from alienating the suit schedule property by way of granting permanent injunction.

According to the 1st respondent, petitioner is the owner of the suit schedule property and the same was a granted land. Petitioner has agreed to sell the land for a sum of Rs. 5,00,000/- per acre and in this regard, he executed an agreement of sale dated 20.3.2002 after receiving an advance amount of Rs. 2,50,000/- and failed to execute the registered sale deed even though the 1st respondent has performed his part of the contract. It transpires that petitioner has sold the suit schedule property in favour of the 2nd respondent and the 2nd respondent has sold the same to the 3rd respondent and on coming to know these sale transactions, the 1st respondent was constrained to file the suit for the aforesaid reliefs. After service of notice on the petitioner and 3rd respondent, separate written statements were filed denying the plaint averments, according to the petitioner, he admitted the agreement of sale executed by the plaintiff/1st respondent but denied the amount of sale consideration. The trial Court framed the issues. On behalf of the 1st respondent, he examined himself as P.W. 1 and two witnesses as PWs 2 and 3 and got marked documents Exs. P.1 to P.8. The petitioner examined himself as D.W. 1 and got marked documents i.e., sale agreement dated 3.01.2002 along with IA Nos. 7 and 8 which were allowed by the trial Court. The Trial Court at the time of hearing found that as per Column No. 7 of page No. 3 of the sale agreement dated 3.1.2002 and also in the shara written at the last page of the document, possession of the property was handed-over through an unregistered document without paying the requisite stamp duty. The said document was impounded and directed to pay the duty and penalty on the document and the trial Court further directed the office to collect the requisite duty and penalty within 15 days and the matter was posted to 11.08.2011. It is contended that on 10.8.2011, the petitioner has paid the duty of Rs. 150/- and penalty of Rs. 1500, in all Rs. 1650/-. The same being short at the duty and penalty liable to be paid under the Karnataka Stamp Act, 1957, (here in after referred to as the Act) the trial Court on 11.8.2011 directed to pay the duty and penalty as per the valuation of the Sub-registrar on or before the next date of hearing. It is further contended that on 23.8.2011, petitioner filed I.A.IX under Section 151 of CPC for recalling the order dated 11.8.2011. The 3rd respondent objected to the same by filing statement of objections. The trial Court dismissed IA IX filed by the petitioner and directed the petitioner to pay duty and penalty as per the Rules within 30 days failing within the Office was directed to forward the said sale agreement dated 3.1.2002 to the Registrar of Davangere to recover the duty and penalty from the petitioner as arrears of revenue. On direction, the Senior Sub-Registrar informed the value of the stamp duty amounts to Rs. 81,600/- as per the letter No. Mudranka: 307:2011-12 and on the basis of the said letter, the trial Court computed the stamp duty and penalty, liable to be paid by the petitioner which was assessed at Rs. 8,13,440/-. The trial Court had directed the petitioner to make the payment of deficit duty and penalty of Rs. 8,13,440/-. These orders are challenged by the petitioner reiterating the grounds urged in the writ petition.

Learned counsel appearing for the petitioner placing reliance on the Judgment of this Court in the case of Govinde Gowda v. Akkayamma (W.P. No. 8892/2010) contended that the penalty imposed by the trial Court at 10 times the duty is contrary to the provisions of Sections 34 and 39 of the Act and the appropriate penalty that would have been levied by the trial Court was Rs. 5/-.

On the other hand, learned counsel appearing for the respondents justifies the orders passed by the trial Court and contends that Sections 33 and 39 of the Act specifically postulates impounding of instruments and to collect the duty and penalty on the unduly stamped instrument.

The issue now raised by the learned counsel for the petitioners is no more res integra. It is very well settled by two Division Bench Judgments of this Court in:

"(1) Digambar Warty and Others Vs. District Registrar and Chief Controller of Revenue and Commissioner of Stamps,

(2) J.S. Paramesh Vs. Smt. Indramma Murthy, ."

A Co-ordinate Bench of this Court has considered the similar issue in the case of Suman v. Vinayaka and Others (2014(1) KLJ 575).

A conspicuous reading of these judgments, makes it clear that no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duty stamped. Sections 33 , 34 , 37 and 38 of the Act are extensively considered in these judgments and even the judgment of Govinde Gowda''s case (supra) referred to above relied on by the learned counsel for the petitioner is also considered and it is held that the same is not in confirmity with the Division Bench of this Court in Paramesh''s case (supra). Further, a co-ordinate Bench of this Court in Suman''s case (supra) cited supra have considered all these provisions with the judgments referred to above and it is categorically held that, "A discretion is available to the Court namely, it can either impound the document under Section 33 before it is tendered for evidence or impound the same when it is tendered in evidence under section 34 and collect duty and penalty as provided thereunder" and the said provision empowers the Court to impound the document. Penalty as contemplated under Section 34 of the Act is leviable at 10 times of the duty.

Given the circumstances, in the wake of the judgments referred to supra, the orders passed by the trial Court cannot be found fault with. Accordingly, writ petitions stand dismissed. The petitioner shall pay the duty and penalty as directed by the trial Court within a period of four weeks from the date of receipt of the certified copy of the order.