Roshanbi vs Azamatuniss

B. Sreenivas Gowda, J.—The petitioner who is the plaintiff in O.S. 622/2008 has preferred this writ petition seeking a writ of certiorari to quash the impugned order dated 18.04.2011 including the office report dated 16.6.2011 vide Annexure-C and the order Annexure-F dated 28.07.2012 rejecting I.A. No. IX filed by the plaintiffs under Section 151 of the Code of Civil Procedure in OS No. 622/2008 by the III Addl. Civil Judge and JMFC, Belgaum.

The Learned Counsel for the petitioner submits, the plaintiff-petitioner is not aggrieved by the order passed by the Trial Court in so far as ordering for impounding the document styled as sale deed dated 28.09.2001 but she is aggrieved by the later part of the order whereby it has directed the office to calculate the deficit stamp duty payable and to report and the order Annexure-F rejecting I.A. No. IX filed by her under Section 151 of CPC for reconsideration of the deficit stamp duty and penalty calculated by the office.

His submission is, only when plaintiff wants to introduce or tender a document in evidence which is not duly stamped as required under the Stamp Act, the Court can direct the office to calculate the deficit stamp duty payable and till then it could only order for impounding of such document. In support of his submission he has relied upon the Judgment of this Court rendered in the case of Sri Shanath Kumar V.V. vs. Shri Manik Satwajirao Jathar W.P. 5870/2008 disposed of on 4-11-2008. He further submits that even though the Trial Court has got discretionary power to levy lesser penalty on the deficit stamp duty payable, it has committed an error in rejecting I.A. No. 9 filed by the plaintiff for re-consideration of the penalty calculated by the office at ten times on the deficit stamp duty payable. Therefore, he prays for allowing the writ petition as prayed for.

Per contra, the Learned Counsel appearing for the respondents submits, the document in question is a suit document as such, the Trial Court is justified in ordering for impounding the document which is admittedly not duly stamped and further directing the office to calculate the deficit stamp duty payable and rejecting I.A. No. IX filed by the plaintiff. As such, there is no illegality in the impugned order warranting interference of this Court. Therefore, he prays for dismissal of the writ petition.

There is no merit in the contention of the Learned Counsel for the plaintiff that the Civil Court has got discretionary power to impose lesser penalty on an insufficiently stamped document as per the Judgment of Learned Single Judge of this Court in the case of Sri K. Govinde Gowda Vs. Smt. Akkayamma and Others, , as the said Judgment of the Learned Single Judge is held as not a good law by Division Bench of this Court in the case of Digambar Warty and Others Vs. District Registrar and Chief Controller of Revenue and Commissioner of Stamps, .

The issue involved in this case is fully covered by the following Judgments of this Court:

i) In Writ Petition No. 5870/2008 (GM-CPC) in the case of Sri Shanath Kumar V.V. vs. Sri Manik Satwajirao Jathar.

ii) In Miss. Sandra Lesley Anna Bartels Vs. Miss. P. Gunavathy, .

iii) In Digambar Warty and Others Vs. District Registrar and Chief Controller of Revenue and Commissioner of Stamps, .

By the impugned order Annexure-C dated 18.04.2011 the Trial Court has passed the order as under:

"Heard counsel for the plaintiff. The original sale deed dated 28th September 2001 which is unregistered is hereby impounded and the office is directed to calculate the deficit stamp duty payable and to report."

Pursuant to the order of the Trial Court dated 18.04.2011, office of the Trial Court on 16.6.2011 has calculated the deficit stamp duty payable on the document as under;

As seen from the order sheet of the Trial Court, the plaintiff has neither tendered the original sale deed dated 28.09.2001 which according to the plaintiff is an agreement of sale and according to the defendant is a sale deed in evidence nor made an attempt to mark the same as exhibit, if that is so, the Trial Court could have only ordered for impounding the document and it could not have directed the office to calculate the deficit stamp duty payable on it.

It is only when the plaintiff wants to introduce such document or tenders it in evidence, the Court can direct the office to calculate the deficit stamp duty payable and report the same.

It is also made clear, as and when plaintiff wants to introduce such document in evidence, the Court has no discretion but to direct the office to calculate the deficit stamp duty payable with ten times penalty as per proviso to Section 34 of the Stamp Act and only on payment of the said amount, it could permit the party to tender such document in evidence and thereafter, it shall forward an authenticated copy of the said document to the jurisdictional District Registrar for Stamps as required under Section 32(1) of the Act. If a party who is liable to pay stamp duty as directed the Trial Court fails to make payment within the time stipulated by the Court for making such payment and decline to tender or introduce such document in evidence, in such case, the Court has to forward the original of such document to the District Registrar as required under Section 37(2) of the Act.

Of course, there is force in the submission of Learned Counsel for the plaintiff, it is only when plaintiff wants to introduce or tender the document dated 6.7.1996 in evidence, then only the Trial Court can direct its office to calculate the stamp duty or deficit thereof payable with penalty of ten times. Whereas, in the instant case, the suit is for the relief of specific performance of the agreement of sale dated 28.09.2001 stated to be executed by defendants 1 to 6 in favour of the plaintiff as such, document dated 28.09.2001 is a suit document. Therefore, unless, plaintiff pays the deficit stamp duty with ten times penalty as calculated by the office of the Trial Court vide office report dated 16.6.2011, the plaintiff cannot begin the trial. Therefore, it is unnecessary to set-aside the office report dated 16.6.2011. Hence, I pass the following order:

Accordingly, the writ petitions are allowed in part. Impugned order dated 18.4.2011 passed in OS 622/2008 on the file of the Prl. Civil Judge, Belgaum in so far as ordering for impounding the document dated 28.09.2001 produced by the plaintiff and the office report dated 16.6.2011 vide Annexure-C are undisturbed.

Impugned order Annexure-F dated 28.7.2012 rejecting I.A. IX filed under Section 151 of CPC by the plaintiff in OS 622/2008 on the file of the Prl. Civil Judge, Belgaum, is modified as under:

a) If plaintiff wants to tender or introduce the document dated 28.09.2001 in evidence, he shall pay the deficit stamp duty as calculated by the office before commencing his evidence or within one month from the date of posting the case for evidence of the plaintiff.

b) If the trial is already commenced, then the plaintiff shall pay deficit stamp duty as calculated by the office on or before 30.6.2014 and it is only thereafter, the trial Court shall permit the plaintiff to introduce the document in evidence.

c) If the plaintiff fails to pay the deficit stamp duty as calculated by the office of the trial Court and decline to rely upon the document dated 28.09.2001 then, in such case, the trial Court shall forward the original document dated 28.09.2001 to the jurisdictional District Registrar for further course of action as required under Section 37(2) of the Act.