IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE H.G.RAMESH WRIT PETITION NO.57879/2014 (GM-CPC) BETWEEN:
M/S. IKON COMMERCIAL PROJECTS PRIVATE LIMITED, NO.322, III-A CROSS II BLOCK, III STAGE, BASAVESWARA NAGAR BANGALORE – 560 079 REPRESENTED BY ITS DIRECTOR SHRI C.GANGADHARA MURTHY S/O SHRI CHENNIGAPPA AGED 46 YEARS ... PETITIONER (BY SRI G.KRISHNAMURTHY, SR. COUNSEL FOR SRI RAKESH BHATT, ADVOCATE) AND:
1. SHRI GHANASHYAM V. NICHANI S/O LATE G.VISHANDAS AGED ABOUT 72 YEARS 2. SMT. MANJU G.NICHANI W/O SHRI GHANASHYAM V. NICHANI AGED ABOUT 66 YEARS 3. SHRI ARUN G.NICHANI S/O SHRI GHANASHYAM V.NICHANI AGED ABOUT 43 YEARS 4. SHRI AMIT G.NICHANI S/O SHRI GHANASHYAM V. NICHANI AGED 35 YEARS P1 TO P4 ARE R/AT GROUND FLOOR, GOKUL NIVAS NO.15 (OLD NO.16/2) SHESHADRI ROAD BANGALORE – 560 009 5. STATE OF KARNATAKA BY DEPARTMENT OF REGISTRATION AND STAMPS, M.S.BUILDING AMBEDKAR VEEDHI BANGALORE – 560 001 REP.BY ITS PRINCIPAL SECRETARY …RESPONDENTS (BY SRI D.R.ANANDEESHWARA, HCGP FOR R5; R1 TO R4 SERVED & UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 16.10.2014 (ANNEXURE-G) PASSED BY THE COURT OF V ADDITIONAL CITY CIVIL JUDGE, BANGALORE IN O.S.NO.5270/2008 DIRECTING TO PAY ADDITIONAL DUTY AND PENALTY ON AGREEMENT AND CONSEQUENTLY QUASH THE CALCULATION SUBMITTED BY THE OFFICE AND DIRECTION ISSUED ON 20.11.2014.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R H.G.RAMESH, J. (Oral):
1. This writ petition by the plaintiff is directed against an interlocutory order dated 16.10.2014 passed by the trial court in the suit in O.S.No.5270/2008 directing the petitioner to pay the duty and penalty as per Article 5(f) of the Karnataka Stamp Act, 1957 (‘the Act’ for short) on the goodwill agreement dated 08.08.2005.
2. I have heard the learned counsel appearing for the parties and perused the record.
3. Sri Krishnamurthy.G, learned Senior Counsel appearing for the petitioner contended that the impugned order is contrary to the law laid down by this Court in Vinod Sequeira vs. Mrs. Rita F. Monteiro and Another [ILR 2017 KAR 2094] and in C.S.Mahesh v. Nagaprasad Srinivasan and another [W.P.Nos.44078-44079/2016 (DD 09.10.2018)].
He further contended that the trial Court has not examined as to how Article 5(f) of the Schedule to the Act is attracted to the document.
4. I find force in the contention urged by the learned Senior Counsel. As could be seen from the impugned order, the trial court has not examined as to how Article 5(f) of the Schedule to the Act is attracted to the document dated 08.08.2005. It is stated that Article 5(f) of the Schedule to the Act as it stood as on the date of the document dated 08.08.2005 was as follows:
Art. No.
Description of Instrument Proper Stamp Duty 5. Agreement or its records or memorandum of an agreement,-
……………………………………………………………… (f) If relating to giving authority or power to a promoter or developer by whatever name called, for construction or, development of, or sale or transfer (in any manner whatsoever) of any immovable property, situated in Karnataka State One thousand rupees 5. In view of the above, the matter requires to be reconsidered by the trial court in the light of the aforesaid two decisions. Hence, I make the following order:
The impugned order dated 16.10.2014 is set aside. The matter is remitted to the trial court for reconsideration in accordance with law. All contentions of both the parties are kept open.
Petition disposed of.
hkh.
Sd/- JUDGE