K.Y. Shailaja vs K.R. Lingappa (Since deceased by L.Rs. Mrs. Gowramma and Others) and M.R. Rakshith

A.N. Venugopala Gowda, J.—Petitioner/Plaintiff has instituted suit against the 1st Respondent-K.R. Lingappa (since deceased, by his L.Rs.), for specific performance of contract under an agreement of sale dated 2.6.2004. The suit has been contested. Issues have been framed and trial has commenced. The Defendant raised objections with regard to the admissibility of the agreement of sale dated 2.6.2004, on the ground that, it is insufficiently stamped. The objection was partly upheld. Aggrieved, Defendant 1 filed W.P.9227/2009. Said writ petition was allowed on 8.8.2008 by observing that, the market value of the suit schedule property will ''have to be determined on the basis of notification issued by the competent authority fixing the guideline market value of similar properties in the locality where the suit property is situated. It was held that, the duty has to be paid accordingly. It was ordered that, after ascertaining the said value, the Court shall adjudicate the stamp duty as per Article 5(e)(i) along with Article 20 of the Karnataka Stamp Act (''the Act'' for short) and if the Plaintiff agrees and pays the stamp duty and penalty as adjudicated upon by the Court, the Court should send the document to the Deputy Commissioner/competent authority under the Act for making necessary endorsement on the document. The impugned order in the writ petition was set aside and the Trial Court was directed to dispose of I.A.2 in the light of the observations made therein, within 30 days from the date of communication of the order.

The Trial Court, thereafter made a reference to the Sub-Registrar, Doddaballapur, for fixing the market value of the agreement of sale dated 2.6.2004. It also desired that, necessary endorsement on the document be made and the same be returned to the Court. The Sub-Registrar, Doddaballapur determined the market value of the property at Rs. 1,60,000/- and sent a communication dated 9.3.2010 to the Trial Court. The stamp duty and penalty was not remitted. Hence, the Trial Court impounded the document by its order dated 21.6.2010.

Prior to the passing of the said order, a memo was filed by the learned Counsel for the Plaintiff i.e., on 12.4.2010 stating that, the Plaintiff has filed a review petition regarding the duty and penalty and the same is pending adjudication. It was submitted that, the case may be adjourned to produce copy of the order passed. Learned Counsel for the Respondent submits that, an application was also filed seeking adjournment for the purpose of payment of duty and penalty.

It is apparent that, the correct statement of facts has not been made by the Plaintiff before the Trial Court. The Trial Court has not been assisted in the matter of determination of stamp duty and penalty payable in terms of the order passed by this Court on 8.8.2008. On account of lack of assistance and also the misrepresentation, the impugned order has been passed.

However, after communication was received from the office of the Sub-Registrar, the Trial Court ought to have determined the duty and penalty payable in terms of the order of this Court dated 8.8.2008, which has attained finality. Matter regarding determination of duty and penalty appears to have got sidelined on account of the memo filed by the learned Counsel who appeared for the Plaintiff on 12.10.2010. Indisputedly, no review petition was filed, but the Trial Court was misled. Long thereafter, the impugned order was passed, i.e., upon failure to make good the deficit stamp duty and penalty, which was agreed to be paid by filing an application for an adjournment of the suit.

After noticing the misrepresentation made before the Trial Court as per Annexure-R3, the Petitioner was directed to file her response in the matter. Learned Counsel appearing for the Petitioner filed an affidavit of one M. Krishnamurthy, son of M. Shivappa, which reads as follows:

I submit that on being instructed by my counterpart at Bangalore that he has filed a review petition, 1 filed a Memo under bonafide impression that he has filed the Review Petition. I submit that subsequently I had to learn that for some technical reasons, the prepared Review Petition has not been filed. The mistaken submission by means of a memo was due to my bonafide impression that the revision has been filed.

I submit that I regret for the mistake that has taken place which was on account of a gap of communication and subsequent development. I submit that the omission is regretted and I tender an un-conditional apology for the mistake that has crept in accidentally on account of bonafide act.

Sri Purushotham Rao submits that, the deponent is an advocate, who appears for the Plaintiff in the Trial Court. The said fact has not been stated in the affidavit. The contents of memo at Annexure R3, filed on behalf of the Plaintiff/Petitioner, is certainly false. There is not even a sincere attempt to accept the misrepresentation which has taken place. It is unfortunate that, there is only a half-hearted approach, even when a response is sought. To say the least, the conduct is irresponsible. Be that as it may.

The impugned order is not in conformity with the direction issued in the order dated 8.8.2008. The Trial Court ought to have determined the duty and penalty payable and if not remitted within the time allowed, should have proceeded further for impounding of the document. There is omission on the part of the Trial Court and hence, the impugned order cannot be sustained.

In the result, writ petition stands allowed. Impugned order stands quashed. The Trial Court is directed to determine the duty and penalty payable, keeping in view the direction issued in the order dated 8 3.2008. If the duty and penalty as determined by the Court is not made good within 15 days from tie date the order is passed, the Trial Court is directed to impound the document. The Trial Court is directed to determine the duty and penalty payable and notify the Plaintiff of the payment to be made before 25.10.2010. The Petitioner is directed to place a copy of this order on the file of Trial Court before 30.5.2010, for compliance.

Misc.W.8726/2010 does not survive for consideration and the same stands dismissed as such.