IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.6049 OF 2019 (GM-CPC) BETWEEN:
SRI. A BABU REDDY AGED ABOUT 45 YEARS, S/O SRI K.M.ABBAIAH REDDY, R/AT NO.16/2, AMBALIPURA, BELLANDUR GATE, BELLANDUR ROAD, SARJAPRUA MAIN ROAD, BANGALORE-560 103.
(BY SRI. VENKATARAVANAPAPA M, ADVOCATE) AND:
1. SRI. H.P.SATHYANARAYANA REDDY AGED ABOUT 55 YEARS, S/O LATE H.R.POOPA REDDY, 2. KUMARI ASHMITHA, AGED ABOUT 18 YEARS, D/O SRI H.P.SATHYANARAYANA REDDY, 3. KUMARI PRERANA AGED 12 YEARS, D/O SRI H.P.SATHYANARAYANA REDDY, MINOR REPRESENTED BY HER FATHER AND NATURAL GUARDIAN SRI H.P.SATHYANARAYANA REDDY 4. DR. H.P.SHASHIDHAR, AGED ABOUT 45 YEARS, S/O LATE H.R.POPPA REDDY, 5. MASTER RITHUL AGED 7 YEARS, S/O DR. H.P.SHASHIDHAR, MINOR REPRESENTED BY HIS FATHER ... PETITIONER AND NATURAL GUARDIAN SRI DR. H.P.SHASHIDHAR, FORMERLY ALL ARE RESIDING AT HARAGADDE VILLAGE, JIGANI HOBLI, ANEKAL TALUK, BANGALORE URBAN DISTRICT .
AND NOW RESIDING AT NO.28/6, 12TH CROSS, 4TH MAIN, WILSON GARDEN, BANGALORE - 560 030.
6. M/S L S R BUILDERS, A PARTNERSHIP FIRM, HAVING ITS OFFICE AT SITE NO.592, FLAT NO.401, JSR ARCADE, HMT LAYOUT, VIDHYARANYAPURA MIAN ROAD, BANGALORE-560 097.
REPRESENTED BY ITS PARTNERS 1. SRI SRINIVASA REDDY 2. LIKHITH A (BY SRI. VASANTH MADHAV, ADVOCATE) ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER AT ANNEXURE-A PASSED BY THE HON’BLE SENIOR CIVIL JUDGE, ANEKAL, DATED 24.0.2018 IN O.S.NO.266/2018 WITH A DIRECTION TO PAY THE STAMP DUTY OF RS.18,78,750-00 AND 10 TIMES PENALTY; AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner being the plaintiff in a specific performance suit in O.S.No.266/2018 is invoking the writ jurisdiction of this Court for assailing the order dated 24.07.2018, a copy whereof is at Annexure-A whereby, the learned Senior Civil Judge, Anekal, having impounded the subject documents has directed the payment of deficit stamp duty and the penalty. After service of notice, the respondent-defendants having entered appearance through their counsel resist the writ petition.
2. Having heard the learned counsel for the parties and having perused the petition papers, this Court grants a limited reprieve to the petitioner for the following reasons:
a) going by the scheme envisaged in Karnataka Stamp Act, 1957, a marked difference is maintained between Section 33 & Section 34 of the Act; Section 33 provides for impounding of the documents when they are placed on record, in any proceeding whereas, Section 34 becomes invokable for the purpose of recovery of deficit stamp duty along with it’s ten time penalty when the documents are pressed into evidence; the second stage has not yet reached, admittedly in this case.
b) the impugned order suffers from an error of law of great magnitude inasmuch as the reasoning in the impugned order does not maintain the difference envisaged in the Scheme of Chapter IV of the; although the subject documents are liable to be impounded under Section 33 of the Act, Section 34 remains miles away since the case has not attained the stage of recording of evidence at all;
(c) the reliance by the respondents on the Division Bench Decision of this Court in the case of MISS. SANDRA LESLEY ANNA BARTEIS Vs. MISS.P.GUNAVATHY, ILR 2013 KAR 368, for the proposition that there is no difference between Section 33 & 34 of the Act that Court need not wait till after the document is produced in evidence is misplaced; at para 12, the Court has observed that impounding should be immediately done and it cannot be deferred till the stage of the case reaches recording of evidence;
(d) the contention of the learned counsel for the respondents that the Writ Court cannot make out a case much different from what emerges from the pleadings of the parties cannot be countenanced inasmuch as in the matters of Stamp Duty arising under a fiscal legislation, Court cannot confine to the pleadings of the parties, to the prejudice of the Public Exchequer.
In the above circumstances, this writ petition succeeds in part; impugned order to the extent that it directs the petitioner to pay the deficit stamp duty and the penalty thereon is set at naught, the remainder having been left intact.
All contentions of the parties are kept open. No costs.
Sd/- JUDGE DS