IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.51245/2017(GM-CPC) BETWEEN:
SRI HONNAIAH, SINCE DIED BY HIS LRS, 1(a) HEMAVATHI, W/O LATE HONNIAH, AGED ABOUT 51 YEARS, 1(b) KUMARA, S/O LATE HONNIAH, AGED ABOUT 31 YEARS, 1(c) PRASANNA, S/O LATE HONNIAH, AGED ABOUT 25 YEARS, 1(d) YASHODA, D/O LATE HONNIAH, AGED ABOUT 27 YEARS, 1(e) ASHA, D/O LATE HONNIAH, AGED ABOUT 24 YEARS, ALL ARE RESIDENTS OF GANDE HALLI VILLAGE, KASABA HOBLI, BELUR-573115. (BY SRI JWALA KUMAR, ADVOCATE) AND:
1. SHESHAIAH, S/O KARIYAIAH, AGED ABOUT 54 YEARS, 2. G. K. SOMEGOWDA, AGED ABOUT 41 YEARS, BOTH ARE RESIDENTS OF GANDE HALLI VILLAGE, KASABA HOBLI, BELUR-573115 **** ... PETITIONERS ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH/ SET ASIDE THE ORDER PASSED ON I.A.NO.III DATED 14.7.2017 IN O.S.NO.119/2011 BY THE COURT OF CIVIL JUDGE AND JMFC, BELUR VIDE ANNEXURE-D.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The plaintiffs filed the present writ petition against the order dated 14.7.2017 on I.A. No.3 made in O.S. NO.119/2011 dismissing the application filed by them under Section 34 of the Karnataka Stamp Act with liberty to mark the agreement to sell dated 15.10.2008 after payment of penalty of Rs.86,895/- by 29.7.2017.
2. The plaintiffs filed the suit for specific performance to enforce the agreement of sale dated 15.10.2008 contending that 1st defendant, who is the owner of the suit schedule property has entered into agreement of sale dated 15.10.2008 with the plaintiffs to sell the suit schedule property for valuable consideration of Rs.1,10,000/- and on the date of the agreement, the 1st defendant received a sum of Rs.75,000/- from them and had agreed to execute the registered sale deed in their favour after receiving balance sale consideration of Rs.35,000/- and inspite of the repeated requests made, the defendants failed to perform their part of the contract. Therefore the suit was filed. The defendants filed the written statement and denied the plaint averments and contended that they never executed any agreement and the very suit for specific performance filed by the plaintiffs is not maintainable and therefore sought for dismissal of the suit.
3. When the matter was posted for plaintiffs’ evidence, at that stage, the plaintiffs filed an application under Section 34 of the Karnataka Stamp Act r/w Section 151 of Code of Civil Procedure to permit them to pay deficit stamp duty with penalty of Rs.5/- on the sale agreement dated 15.10.2008. It is the case of the plaintiffs that the agreement has been written on the stamp paper of Rs.100/-. As the possession of the schedule property was handed over to the husband of plaintiff No.1(a) through the agreement dated 15.10.2008, the agreement ought to have been written on the stamp paper of Rs.7,920/-. There is a deficit stamp duty of Rs.7,820/-.
4. It is also the case of the plaintiffs that deceased husband of plaintiff No.1(a) was a rustic innocent villager and he was an uneducated person and he did not know anything about the payment of stamp duty etc. and it is the 1st defendant who has executed the sale agreement on the stamp paper of Rs.100/-. If at all husband of plaintiff No.1(a) had the knowledge of preparing the agreement as required, he could have got the same prepared by paying the proper stamp duty at the time of agreement. The payment of deficit stamp duty is for bonafide reasons. Therefore the plaintiffs sought for permission to pay the deficit stamp duty with penalty of Rs.5/- on the sale agreement dated 15.10.2008. The said application was orally objected by the defendants. The trial Court considering the application and the objections rejected the said application reserving liberty to the plaintiffs to mark the agreement to sell dated 15.10.2008 after payment of penalty of Rs.86,895/-. Hence the present writ petition is filed.
5. Sri Jwala Kumar, learned counsel for the petitioners contended that the impugned order passed by the trial Court rejecting the application filed by the plaintiffs under Section 34 of the Karnataka Stamp Act is erroneous and contrary to the material on record. He would further contend that the impugned order is manifestly vexatious and without merit and there is no reasoning on factual aspects and it is not a speaking order. Therefore he sought to quash the impugned order passed by the trial Court.
6. Having heard the learned counsel for the petitioners, it is not in dispute that the plaintiffs filed the suit for specific performance to enforce the agreement dated 15.10.2008. It is also not in dispute that as on the date of the agreement, the plaintiffs were put in possession by the defendants. The same is admitted by the plaintiffs in the application filed under Section 34 of the Karnataka Stamp Act before the trial Court. In view of the same, the agreement has to be treated as conveyance as contemplated under the provisions of Article 5(e)(i) & Article 20 of the Karnataka Stamp Act. Therefore the plaintiffs are liable to pay stamp duty in terms of Articles 5 and 20 of the Karnataka Stamp Act.
7. The trial Court considering the application and the law declared by this Court time and again has held that once possession is delivered, the plaintiffs are required to pay the stamp duty as per Articles 5 and 20 of the Karnataka Stamp Act and admittedly the written agreement dated 15.10.2008 was written on the stamp paper of Rs.100/- and therefore the plaintiffs before marking the aforesaid document has to pay the penalty of Rs.86,895/-.
8. At this stage, learned counsel for the petitioners – plaintiffs on instructions submits that petitioners may be permitted to pay the penalty of Rs.86,895/- in terms of the impugned order dated 14.7.2017 passed by the trial Court with liberty to file proper application before the trial Court to refer the matter to the Deputy Commissioner to hold enquiry and reduce the penalty in the manner as provided under Sections 38 and 39 of the Karnataka Stamp Act. The said submission is placed on record.
9. In view of the above, the petitioners – plaintiffs are permitted to pay the penalty of Rs.86,895/- in terms of the impugned order dated 14.7.2017 passed by the trial Court with liberty to file proper application before the trial Court to refer the matter to the Deputy Commissioner to hold enquiry and reduce the penalty in the manner as provided under Sections 38 and 39 and other provisions of the Karnataka Stamp Act in accordance with law.
With the above observations, the writ petition is disposed of.
Sd/-
JUDGE gss/-