IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR WRIT PETITION No.9957 OF 2017 (GM-CPC) BETWEEN Smt. Sowbhagya, W/o. Late Lakshminarayana, Aged about 52 years, R/at A-Vaddahalli Village, Nandagudi Hobli, Hosakote Taluk, Bengaluru Rural District-562114. (By Sri. Adinarayanan, Advocate) AND 1. Smt. Chowdamma, W/o. Munivenkatappa, Aged about 80 years, 2. V.Shivakumar, S/o. M.Venkatappa, Aged about 55 years, Both are residing at A-Vaddahalli Village, Nandagudi Hobli, Hosakote Taluk, Bengaluru Rural District-562114.
(By Sri. M.D.Karishnappa, Advocate for R2, …Petitioner …Respondents R1 – Notice dispensed vide order dated 12.07.2017) This Writ Petition is filed under articles 226 and 227 of the Constitution of India, praying to call for the records from the learned II Additional Senior Civil judge, Bengaluru Rural District at Bengaluru in O.S.No.577/2007 and after perusing the records to set aside the order dated 10.02.2017 passed on I.A.No.VIII under Section 33, 34 of the Karnataka Stamp Act, passed by the learned II Additional Senior Civil Judge, Bengaluru Rural District at Bengaluru vide annexure-A.
This Writ Petition coming on for preliminary hearing in B group, this day, the Court made the following :
ORDER The petitioner has called in question the order dated 10th February, 2017 passed by the trial court on application I.A.8 filed under Section 33 and 34 of Karnataka Stamp Act.
2. The petitioner is the plaintiff in the suit for specific performance. The plaint shows that along with the relief for specific performance, he has also sought for possession of the plaint schedule property. The defendant made an application, I.A.8 under Section 33 and 34 of Karnataka Stamp Act for impounding the agreement of sale based on which suit for specific performance has been filed. The defendant contended that in the agreement there is a recital that possession of the property was delivered and therefore the agreement was insufficiently stamped. The trial court having found that the agreement contained a recital as regards delivery of possession of property to plaintiff, came to conclusion to impound the deed of agreement and allowed the application.
3. The learned counsel for the petitioner submits that since the document in question is already marked, the trial court should not have allowed the application for impounding the document. In support of his argument, he relies upon the judgment of this court in the case of Oriental Insurance Co. Ltd., Vs. Prakash Road Lines (P) Ltd., - ILR 1987 Kar.Pg.3511. He also submits that the petitioner has claimed possession as one of the reliefs in the suit and under these circumstances the court below should have taken the view that there was no actual delivery of possession to plaintiff.
4. After hearing the learned counsel for the petitioner it is to be stated that mere marking of document does not prevent the court from exercising its power under Section 33 of the Karnataka Stamp Act. Marking has nothing to do with impounding the document. Further it is to be stated that whether stamp duty is sufficiently paid on the document or not is to be decided on the basis of the recitals found in the document and not with reference to the reliefs that the plaintiff claims. The agreement contains clear recital that there was delivery of possession and if according to the trial court the agreement in question was insufficiently stamped, it should be impounded. I do not find any infirmity in the trial court’s order. Writ petition is dismissed.
5. The petitioner’s counsel now seeks permission to pay duty and penalty on the document. He is permitted.
Sd/- JUDGE sd