IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE S.N.SATYANARAYANA W.P.NO.13151/2012(GM-CPC) BETWEEN SMT.KUMUDAVALLI W/O SAMPATH KUMAR @ SAMPATH IYENGAR AGED 40 YEARS R/O KUMBENAHALLY SHRAVANABELGOLA HOBLI, CHANNARAYAPATNA TALUK HASSAN DISTRICT.
... PETITIONER (By Sri. K V NARASIMHAN, ADV.) AND 1. GOPAL KRISHNA IYENGAR S/O LATE KRISHNAMURTHY MAJOR R/O KUMBENAHALLY SHRAVANABELAGOLA HOBLI, CHANNRAYAPATNA TALUK HASSAN DISTRICT.
2. STATE OF KARNATAKA DEPARTMENT OF REVENUE VIDHANA SOUDHA, BANGALORE.
... RESPONDENTS (By Smt PRATHIMA HONNAPUR, AGA FOR R2 VIDE ORDER DATED 2.8.18, NOTICE TO R1 HELD SUFFICIENT) THIS WP IS FILED UNDER ARTICLES 226 AND 227 PRAYING TO QUASH THE ORDER AT ANNEX-F DTD.24.1.12 PASSED BY THE SENIOR CIVIL JUDGE, CHANNARAYAPATNA ON IA NO.20 IN OS NO.144/2002.
THIS WP COMING ON FOR PRLY. HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The plaintiff-Kumudavalli in O.S.No.97/98 has come up in this writ petition impugning the order dated 24.01.2012 passed by the Civil Judge (Sr.Division), Holenarasipura, on I.A.No.20 filed by the defendant under Section 35 of the Karnataka Stamp Act, 1957 (for short ‘Act’) read with Section 151 of CPC.
2. The brief facts of the case are as under:
The petitioner herein is the plaintiff before the Court below. The said suit is filed by her seeking relief of mandatory injunction directing the defendant to execute a registered sale deed on sufficient stamp paper before the Sub-Registrar in respect of the suit schedule property or alternatively to declare the document which is relied upon by her is not a ‘sale deed’ but ‘agreement to sale’ for a decree of specific performance of contract of agreement, directing the defendant to execute the sale deed in respect of schedule property or alternatively, directing the defendant to pay a sum of Rs.57,000/-, which is a sale consideration paid by her under the document in question along with interest from the date of suit till the date of repayment; meanwhile she has sought for permanent injunction restraining the defendant or his agents from interfering with her peaceful possession and enjoyment of the suit schedule property, which is said to be delivered under the document in question.
3. The material on record would indicate that the defendant-Gopalakrishna Iyengar was the owner of the suit schedule property i.e., 3 bits of agricultural land measuring 25 guntas, 18 guntas and 5 guntas respectively in Sy.No.8 of Kumbenahally village, Shravanabelagola Hobli, Channarayapatna Taluk, which are said to have been sold in favour of the plaintiff under a unregistered sale deed dated 19.11.1992 for valuable consideration of Rs.57,000/- on a stamp paper of Rs.15/-. Admittedly, the entire sale consideration is said to have been paid by the plaintiff and the said document would also indicate that the property in question is delivered to the plaintiff on the same day. However, the defendant having not come forward to complete the transaction of registering the aforesaid document after paying requisite stamp paper, the plaintiff has approached the Court below for aforesaid reliefs.
4. In the said suit, the defendant has entered appearance and he has denied the execution of the sale deed, receipt of sale consideration and handing over the possession to the plaintiff on the same day. Issues were framed and matter went into trial. When the matter stood at the stage of plaintiff’s evidence, the suit document, which was sought to be marked, was objected by the defendant by filing I.A.No.20 on the premise that the same has not been duly stamped under the relevant provisions of the Stamp Act and therefore, adjudication proceedings is required to be initiated calling upon the plaintiff to pay duty and penalty on the suit document. It is in this background, I.A.No.20 was considered wherein it is considered that the suit document which is a sale deed executed on a stamp paper of Rs.15/- as on the date when it was produced before the Court. It is further contended for the purpose of relying upon the said document as suit document, stamp duty and penalty is required to be paid as if the said document is a sale deed.
5. In the said application, the defence that was taken by the plaintiff is that since the sale deed not being stamped properly, the stamp duty is required to be assessed as on the date when it is taken up for registration. However, the said defence was rejected by the Court below, it has come to the conclusion that at the time of accepting the document in the evidence where it is sought to be produced and marked as suit document, stamp duty and penalty is required to be adjudicated and the same should be paid by the plaintiff. Therefore, at this juncture, presenting of the document before the Court for the purpose of marking in evidence as sale deed can be considered only after proper stamp duty is assessed and same is received along with penalty as contemplated under Stamp Act. Therefore, the order passed by the Court below on I.A.No.20 is just and proper in as much as the stamp duty which is required to be paid is to be calculated as on the date when it is presented before the Court for the purpose of accepting the suit document as ‘sale deed’ and seek relief of mandatory injunction directing the defendant in the said proceedings to come forward and register the said document.
6. It is in this background, the stamp duty which is adjudicated by the Court below in exercise of its power under Section 35 of the Act appears to be correct and the stamp duty is required to be paid by the plaintiff as adjudicated therein. If the plaintiff pays the stamp duty and proceed with the suit and in the event of petitioner succeeding in the said suit for specific performance of the agreement of sale by deciding the suit in her favour, the only procedure that is required to be completed by her is to get registration of the said document by paying registration fee for completion of the sale transaction.
With the above observations, the petition is dismissed.
Sd/- JUDGE TL