IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF NOVEMBER 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.50256 OF 2014 (GM-CPC) BETWEEN:
1. SMT. GANGAMMA, W/O. LATE HANUMAIAH @ KARIHANUMAIAH, AGED ABOUT 70 YEARS, 2. SRI. K.H.RAMAIAH, S/O. LATE HANUMAIAH @ KARIHANUMAIAH, AGED ABOUT 48 YEARS, BOTH ARE R/AT NO.142/F, NEAR GOUTHAM BAR, KENGERI, MYSORE ROAD, BENGALURU-560060.
… PETITIONERS (BY SRI. V.VISWANATHA SETTY, ADVOCATE) AND:
1. SHRI. KUMAR, S/O. RAMANNA, AGED ABOUT 57 YEARS, R/AT KENGERI VILLAGE & HOBLI, BENGALURU SOUTH TALUK, BENGALURU DISTRICT-560060.
2. SMT. SHARADAMMA, W/O. B.JAYARAM AGED ABOUT 50 YEARS, R/AT NO.213, 7TH CROSS, 3RD MAIN, CHAMARAJPET BENGALURU-560010.
3. SHRI P.ANAND, S/O. PERUMAL NAIDU, AGED ABOUT 30 YEARS, R/AT NO.115/B, 11TH MAIN ROAD, RAJAJINAGAR 3RD STAGE, BENGALURU-560010.
4. THE MANAGER, KARNATAKA STATE CO-OPERATIVE APEX BANK LTD., KENGERI SATELLITE TOWN, BENGALURU-5620060.
5. THE RECOVERY OFFICER, KARNATKA STATE CO-OPERATIVE APEX BANK LTD., PAMPA MAHAKAVI ROAD, CHAMARAJPET, BENGALURU-560018.
… RESPONDENTS (BY SRI.NAGAIAH, ADVOCATE FOR R3-ABSENT, SRI. ABHINAV, ADVOCATE FOR R4 – ABSENT, R5-SERVED & UNREPRESENTED VIDE ORDER DATED 15.07.2016 NOTICE TO R1 & R2 DISPENSED WITH) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE ENTIRE RECORDS ON THE FILE OF THE PRINCIPAL CITY CIVIL & SESSIONS JUDGE, BENGALURU IN F.R.NO.O.S.2717/2014, CASE REG.NO.O.S.2780/2014 & QUASH THE ORDER DATED 20.09.2014 PASSED BY PRINCIAL CITY CIVIL & SESSIONS JUDGE, BENGALURU IN F.R.NO.O.S.2717/2014, CASE REG.NO.O.S.2780/2014 DIRECT THE PETITIONERS TO PAY COURT FEE ON MARKET VALUE AND FURTHER DIRECT THE OFFICE TO ACCEPT THE COURT FEE ALREADY PAID BY THE PETITIONERS UNDER SECTION 7(2) OF KCF & SV ACT (ANNEX-E) AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Sri Vishwanatha Setty V., learned counsel for the petitioners.
2. Petition is admitted for hearing. The same is heard finally.
3. In this petition under Article 227 of the Constitution of India, the petitioners inter alia have assailed the validity of the order dated 20.09.2014 passed by the Trial Court, by which the plaintiffs have been directed to pay the court fee on the sale consideration mentioned in the sale deed.
4. Facts giving rise to filing of the writ petition briefly stated are that, petitioners have filed the suit seeking relief of declaration and permanent injunction. The relief sought for is reproduced below in the following terms:
“(a) Declaring that the plaintiffs are the absolute owners of ‘A’ schedule property bearing Sy.No.113/4A1 measuring about 7 guntas out of 22 guntas situated at Kengeri Village & Hobli, Bangalore South Taluk, Bangalore District;
(b) Declaring that the registered sale deed dt. 22.02.2010 vide Document No.3748/2009-10 executed by GPA Holder, Kumar S/o Ramanna in favour of the Smt.Sharadamma, defendant No.2 in respect of portion of the ‘A’ schedule property in Site No.4 and 5, which is registered at the Office of the Sub- Registrar, Kengeri is sham and collusive not binding on the plaintiffs;
(c) Declaring that the registered sale deed dt. 28.01.2011 Vide Document No.4420/2010-11 executed by Smt.Sharadamma, W/o. B.Jayaram, defendant No.2 in favour of P.Anand, S/o. Perumal Naidu, the defendant No.3 in respect of portion of the ‘B’ schedule property in Site No.4 and 5, which is registered at the Office of the Sub- Registrar, Kengeri is sham and collusive and not binding on the plaintiffs;
(d) Declaring that the registered Mortgage Deed dt. 01.02.2011 Vide Document No.4458/2010-11 executed by P.Anand, S/o.Perumal Naidu, the defendant NO.3 in favour of the defendant No.4 Bank The Karnataka State Co-op. Apex Bank Ltd. Pledging the ‘B’ schedule property bearing Site No.4/5, which is registered at the Office of the Sub-Registrar, Kengeri is sham and collusive and not binding on the plaintiffs;
(e) Restraining the defendants No.4 and 5 from putting the Site No.4/5 i.e. ‘B’ schedule property in public auction either by themselves or their GPA holders, henchmen, supporters or any other person/s claiming any right under or through them by granting permanent injunction;
(f) Direct the defendants to pay the cost of the suit;”
5. The Trial Court, however, vide impugned order, has directed the petitioners to pay the court fee on the sale consideration mentioned in the sale deed. In the aforesaid factual background, writ petition has been filed.
6. Learned counsel for the petitioners submitted that the impugned order passed by the Trial Court is in contravention of the law laid down by the Supreme Court and it ought to have been appreciated that the plaintiffs are not parties to the sale deed. Therefore, for mere declaration that the aforesaid sale transaction does not bind them, plaintiffs need not have to pay court fee.
7. The Supreme Court in the case of SUHRID SINGH @ SARDOOL SINGH Vs. RANDHIR SINGH - AIR 2010 SC 2807 has held that where the plaintiff is not a party to the sale transaction, it is sufficient for him to seek a mere declaration that the Sale Deed does not bind him and in such a case, plaintiff need not pay the court fee on the sale consideration mentioned in the sale deed. However, the impugned order has been passed in violation of the law laid down by the Supreme Court and by overlooking the fact that the plaintiffs are not parties to the sale deed in question. The impugned order, therefore, suffers from the error apparent on the face of the record as well as jurisdictional infirmity. Hence, the same is quashed. In the result, writ petition is allowed.
Sd/- JUDGE PKS