Kaleemulla vs V. Srihari

B. Manohar, J.—Petitioner is the plaintiff in OS No. 97/2014 on the file of the Civil Judge and JMFC, Gauribidanuru. Being aggrieved by the order dated 16.8.2014 directing him to pay stamp duty of Rs. 1,12,400/- on the deficit stamp duty within 10 days from the date of the order, he has filed this writ petition.

The petitioner herein filed the suit seeking for specific performance of agreement of sale dated 10.12.2013 executed by the defendant in his favour pertaining to the suit schedule property. In the plaint, it was contended that though the defendant agreed to execute the sale deed within the time frame, he has not come forward to perform his part of obligation in spite of issuing a legal notice. In view of that, he filed the suit seeking for the aforesaid relief. The defendant filed written statement. The parties have led evidence. After conclusion of trial, the matter was posted for judgment. At that time, the Trial Court noticed that the agreement of sale relied upon by the plaintiff is an unregistered one. In the agreement of sale, it was specifically mentioned that pursuant to the agreement of sale, the petitioner was put in possession of the suit schedule property. The said document is not sufficiently stamped. On the basis of the unregistered document, he sought for specific performance of agreement of sale. The Trial Court posted the matter for orders on 16.8.2014 with regard to payment of stamp duty. The plaintiff argued the matter contending that when once the document has been marked, it is not open to the Court to raise an issue regarding payment of deficit stamp duty and penalty. The Trial Court after considering the matter in detail found that the document, on which the specific performance is sought, is an unregistered document. Pursuant to the said document, the petitioner was put in possession of the property under the provision of the Karnataka Court Fees and Suits Valuation Act. Article 5(e)(i) of the Act states that possession of the property is delivered or is agreed to be delivered without executing the conveyance and same duty as a conveyance i.e. stamp duty is paid on the market value of the property of agreement for sale. In the instant case, the agreement of sale was typed on stamp paper of Rs. 100/-. It was not sufficiently stamped. In view of that, the Trial Court directed the plaintiff to pay stamp duty as well as penalty. Being aggrieved by the order impugned, the present writ petition has been filed.

The learned Advocate appearing for the petitioner contended that the order passed by the Trial Court is contrary to law. When a particular document is marked in the evidence, no objection can be raised subsequently. Learned Advocate sought for setting aside the order impugned by allowing the writ petition.

I have carefully considered the arguments addressed by the learned Counsel appearing for the petitioner, perused the order impugned and other relevant records.

The records clearly disclose that on the basis of the agreement of sale dated 10.12.2013, the suit has been filed for specific performance of the said document. The agreement of sale marked as document Ex. P1 which clearly discloses that pursuant to the agreement of sale, the petitioner was put in possession of the property. On the said document, the stamp duty has to be paid under Article 5(e)(i) of the Act. Unless the stamp duty is paid, the said document cannot be acceptable in the evidence. Since nobody raised objection regarding marking of the agreement of sale, the Trial Court has not noticed the fact that it is an unregistered document. When the matter was posted for judgment, the Court found that pursuant to the agreement of sale entered into between the parties, the plaintiff is in possession of the property. It was insufficiently stamped. Accordingly, the Trial Court directed the petitioner to pay the deficit stamp duty and also penalty. Therefore, I do not find any infirmity or irregularity in the findings of the Trial Court. The Trial Court after considering the matter in detail has passed the order in accordance with law. The petitioner has not made out prima facie case to interfere with the order impugned. Accordingly, I pass the following:

ORDER

The writ petition stands dismissed.