H. Murigappa vs B. Hayavadana Hatwar and Others

S. Sujatha, J.—This writ petition is directed against the order dated 2.9.2013 passed by the I Additional Senior Civil Judge, Davanagere, in OS No. 53/2007.

The facts in brief are that:

"the Respondent No. 1 instituted OS No. 53/2007 seeking specific performance of the agreement dated 21.2.2003 contending that the original defendant had received a total sum of Rs. 5,25,000/- as advance out of Rs. 9,10,000/-, agreed sale consideration and handed over the possession of the plaint schedule property to him. This suit was resisted by the original defendant by filing written statement denying the material averments made in the plaint. It transpires that the original defendant H. Murigeppa died during the pendency of the case and his legal representatives, namely, his children including the petitioner herein were brought on record and amended plaint was filed by the plaintiff incorporating the names of legal representatives of deceased defendant in the cause title of the plaint. The Defendant No. 1[a], one of the legal representatives of deceased defendant filed his written statement and sought for dismissal of the suit for the reasons stated therein. After framing of the issues, the case was set down for evidence of the plaintiff. The plaintiff was examined as PW.1. Before marking the agreement dated 21.2.2003, the examination-in-chief was deferred to hear the parties regarding payment of deficit stamp duty and on the office note put up by the Registry indicating that the plaintiff was required to pay Rs. 81,900/- towards deficit stamp duty and penalty being ten times at Rs. 8,19,000/- totaling to Rs. 9,00,900/-. The learned trial Judge, after hearing both the parties, directed the plaintiff to pay Rs. 81,900/- towards deficit stamp duty and a sum of Rs. 81,900/- towards penalty totaling to Rs. 1,63,800/- instead of Rs. 9,00,900/- indicated in the office note. This order of the learned trial Judge is challenged in this writ petition by the petitioner/Defendant No. 1[b]."

The learned counsel appearing for the petitioner contended that the trial court placing reliance on the Judgment of this court in the case of Sri K. Govinde Gowda Vs. Smt. Akkayamma and Others, , has directed the respondent to deposit the penalty equal to that of the stamp duty whereas this court in the case of Digambar Warty and Others Vs. District Registrar and Chief Controller of Revenue and Commissioner of Stamps, has categorically held that the Judgment rendered in Govindegowda''s case cited supra is contrary to the Judgment of this court in the case of J.S. Paramesh Vs. Smt. Indramma Murthy, .

It is also submitted that under the provisions of section 34 of the Karnataka Stamp Act, 1957, [hereinafter referred to as ''the Act'' for short], no discretion is left with the trial Judge to levy penalty at the rate less than ten times of the deficit stamp duty and accordingly seeks for allowing the writ petition, setting aside the order passed by the trial court and to direct the respondent to deposit the penalty amount equal to ten times as that of the stamp duty.

On the other hand, the learned counsel for the respondent, justifies the order passed by the trial court and seeks support from the Judgment of this court in Govindegowda''s case cited supra. It is contended that the respondent has taken possession of the suit schedule property from tenant who was in possession of the suit property, the respondent has stepped into the shoes of the tenant and as such he is not liable to pay the penalty at ten times the deficit stamp duty and utmost it would be a matter of adjudication before the Deputy Commissioner to arrive at the correct stamp duty as per the prevailing market value of the suit property.

I have heard the learned counsel for the parties and perused the material on record.

The trial Judge, placing reliance on the Judgment of this court in Govitidegowda''s case cited supra, has directed the respondent to pay stamp duty of Rs. 81,900/- and penalty of Rs. 81,900/- equal to that of the stamp duty. Section 34 of the Act contemplates levy of penalty ten times to that of stamp duty. No discretion is vested with the trial Judge to reduce the penalty amount less than ten times of the stamp duty. This aspect has been extensively considered by two division Bench Judgments of this court in the case of J.S Paramesh & Digarribar Warty. A co-ordinate bench of this court in ''SUMAN v. VINAYAKA AND OTHERS'' (2014(1) KLJ 575), by following the division Bench Judgments in J.S. Paramesh and Digambar Warty cases referred to supra has held that ten times the deficit stamp duty is the penalty payable under section 34 of the Act.

In the wake of these Judgments rendered by this court, the order passed by the trial court is not sustainable. Taking possession of the suit property from the tenant would not absolve the plaintiff to make payment of stamp duty and penalty.

Accordingly, writ petition stands allowed. The respondent shall pay stamp duty and penalty amounting to Rs. 9,00,900/- i.e., deficit stamp duty of Rs. 81,900/- and penalty of Rs. 8,19,000/- which is ten times the stamp duty, within a period of eight weeks from the date of receipt of certified copy of the order. The amount already paid shall be given set off to the amount liable to be paid as per this order.