IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B.VEERAPPA W.P.Nos.53450/2017 & 53942/2017 (GM-CPC) BETWEEN:
1. SRI K.THIMMARAJU S/O KEMPANARASAPPA AGED ABOUT 38 YEARS R/AT No.124, NEAR D.M.PUBLIC SCHOOL RAJESHWARI NAGARA LAGGERE, BANGALORE-560058.
2. SRI M.K.ANAND KUMAR S/O LATE KEMPAIAH AGED ABOUT 54 YEARS R/AT No.53, 6TH CROSS CHAMUNDESWARI NAGARA LAGGERE, BANGALORE-560058. ...PETITIONERS (BY SRI NAGAIAH, ADV.) AND:
1. SIDDAGANGAIAH S/O KEMPAHONNAIAH AGED ABOUT 48 YEARS 2. RATHNAMMA W/O SIDDAGANGAIAH AGED ABOUT 40 YEARS 3. MUNIRAJU S/O SIDDAGANGAIAH AGED ABOUT 30 YEARS 4. SRINIVASA S/O SIDDAGANGAIAH AGED ABOUT 28 YEARS 5. MAMATHA D/O SIDDAGANGAIAH AGED ABOUT 26 YEARS ALL ARE R/AT MUDUGIRIPALYA VILLAGE GOTTIGERE DHAKLE HUTTARIDURGA HOBLI KUNIGAL TALUK TUMKUR DISTRICT-572126.
6. M/S. H & R JOHNSON (INDIA) (DIVISION OF PRISTON CEMENT LIMITED) PLOT Nos.1 & 2, KIADB INDUSTRIAL AREA NEAR ANCHEPALYA VILLAEGE KUNITAL-572126 TUMAKURU DISTRICT REPRESENTED BY ITS GENERAL MANAGER (OPERATION) …RESPONDENTS (BY SRI VENKATA KRISHNA RAO.B.K. ADV FOR R-6; NOTICE TO R-1 TO R-5 DISPENSED WITH) THESE WPs ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 09.09.2016 PASSED BY THE SR. CIVIL JUDGE AT KUNIGAL IN O.S.NO.14/2012 DIRECTING PETITIONER TO PAY THE DEFICIT STAMP DUTY OF RS.66,750/- WITH 10 TIMES PENALTY OF RS.6,67,500/- VIDE ANNEXURE-D AND THE ORDER PASSED ON I.A.NO.9 DATED 12.07.2017 VIDE ANNEXURE-G AND ETC.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R These writ petitions are filed by the plaintiffs No.1 and 2 against the order dated 12.07.2017 on I.A.No.9 filed by the plaintiffs under Section 151 of Code of Civil Procedure and the order dated 09.09.2016 on I.A.No.5 dismissing and rejecting the applications filed by the plaintiffs.
2. The present petitioners who are the plaintiffs before the trial Court filed suit for specific performance to enforce the agreement dated 23.01.2012 and to declare the sale agreement between the defendants No.1 and 6 dated 18.02.2012 as null and void and for grant of permanent injunction against the defendants No.1 to 5 contending that the defendants No.1 to 5 are the owners of land bearing Sy.No.36/1 measuring 0- 08.1200 guntas including kharab of 1 gunta situated at Mudugiripalya village, Gottigere Dhakle, Huttaridurga Hobli, Kunigal Taluk, Tumkur District morefully described in the schedule to the plaint belongs to the defendants. Accordingly, they have entered into agreement with the plaintiffs on 23.01.2012 for a sale consideration of Rs.11,37,500/- and defendants No.1 to 5 received Rs.4,00,000/- by way of cash from the plaintiffs from the date of agreement as advance and delivered possession of suit schedule property by the plaintiffs in part performance of the agreement. Now, the plaintiffs are in possession and enjoyment of the suit schedule property.
3. It is the further case of the plaintiffs that the defendants No.1 to 5 also executed agreement of sale in favour of defendant No.6 on 18.02.2012, which is not binding on the plaintiffs. In spite of repeated representation made, the defendants No.1 to 5 have not come forwarded to execute the sale deed. Therefore, they issued legal notice dated 03.03.2012 calling upon the defendants No.1 to 5 to execute the sale deed within 15 days and requested the defendant No.6 to withdraw the registered sale agreement in his favour as defendant Nos.1 to 5 have entered into agreement of sale with the plaintiffs. But the defendants gave evasive reply. Hence, the suit filed by the plaintiffs for the relief sought for.
4. The defendants filed written statement denied the plaint averments and contended that they never executed any agreement of sale as contended by the petitioners. Absolutely there is no cause of action to file the suit and further contended that without prejudice to the contentions taken by the written statement, they contended that the agreement of sale document produced is unstamped and unregistered. Therefore, it cannot be admitted in evidence. Therefore, the suit filed by the plaintiffs is not maintainable and accordingly sought for dismissal of the suit.
5. When the matter was posted for the evidence at that stage, the plaintiffs filed I.A under Section 151 of Code of Civil Procedure praying to return the original agreement of sale to the plaintiffs to pay proper stamp duty on agreement of sale before the competent authority reiterating the averments made in the plaint. The defendants No.1 to 4 filed I.A.No.6 under Order 13 Rule 8 of Code of Civil Procedure to direct defendant No.6 filed another application I.A.No.7 under Order 13 Rule 8 of Code of Civil Procedure to impound the unregistered agreement of sale dated 23.01.2012 which is insufficiently stamped and direct the plaintiffs to pay the duty and penalty on the agreement of sale contending that the suit filed by the plaintiffs against the defendants for specific performance of contract alleging the sale agreement dated 23.01.2012. The said agreement of sale filed by the plaintiffs is not sufficiently stamped and as such the plaintiffs have to pay proper stamp duty on the said document. Hence, the document has to be impounded. The application filed by the defendants was opposed by the plaintiffs by filing objections.
6. The trial Court considering the application and objections, by the impugned order dated 09.09.2016, rejected the application filed by the plaintiffs under Section 151 of Code of Civil Procedure and allowed the application filed by the defendants No.1 to 6 i.e., I.A.Nos.6 and 7 under Order 13 Rule 8 of Code of Civil Procedure and directed the plaintiffs to pay the deficit stamp duty of Rs.66,750/- with 10 times penalty on deficit stamp duty i.e., Rs.6,67,500/- in total, the plaintiffs shall have to pay Rs.7,34,250/- so as to admit the agreement of sale dated 23.01.2012.
7. Subsequently, the plaintiffs filed I.A.No.9 under Section 151 of Code of Civil Procedure to refer the sale agreement dated 23.01.2012 at Annexure-A to the District Registrar for adjudication of duty and penalty or return the sale agreement to enable him to get adjudicate the stamp duty and penalty before the District Registrar on 30.06.2017 contending that this Court has referred the sale agreement to the District Registrar for adjudication of stamp duty and penalty. On account of miscommunication between the plaintiffs and advocate as well as the District Registrar, the document has been returned back to the Court, without there being any adjudication. The adjudication of proper stamp duty and penalty is necessary to enable the plaintiffs to pay the same so as to receive the agreement of sale in evidence. Hence, sought for allowing the application. The said application was opposed by the defendants by filing objections.
8. The trial Court considering the application and objections, by the impugned order dated 12.07.2017, dismissed the application filed by the plaintiffs with costs of Rs.300/-. Hence, the present writ petitions are filed.
9. I have heard the learned counsel for the parties to the lis.
10. Sri.Nagaiah, learned counsel appearing for the petitioners vehemently contended that the impugned order passed by the trial Court rejecting the I.A.Nos.5 and 9 filed by the plaintiffs filed under Section 151 of Code of Civil Procedure are erroneous and contrary to the materials on record. He would further contend that when the original document is produced along with the plaint, the cause of action for the suit arises for the Court to refer the matter only when the plaintiff moved before the Court to refer the document. Till then, the Court has no jurisdiction to refer the matter. Therefore, the impugned order passed by the trial Court is erroneous and contrary to the materials on record. He would further contended that mere production of agreement before the Court not entitle the Court to refer the matter unless the plaintiffs move for reference or at the time of tendering the evidence, then only the Court can have the jurisdiction. Till then, the Court has no jurisdiction. In respect of his contentions he relied upon the decision reported in ILR 2010 KAR 5156 in the case of SHRI S.SURESH V/S. SHRI L.POTHE GOWDA AND OTHERS, to the effect that the admissibility or inadmissibility of document or return of document arise only on tendering evidence and the party may admit the document in evidence or may not choose to admit the same in the evidence. In the said decision, at para 25 it is held that:
“25. If two conflicting opinions are expressed by two different Benches of the same State, normally the matter requires to be considered by the larger Bench. This Court in K.B.JAYARAM's case (supra) has considered the admissibility of the document at the interlocutory stages also, however, it is based on the facts of the said case, question of admissibility of such document in the evidence was not a matter, which fell for consideration. The said decision has also not considered the earlier decision of this Court in the matter of LAKSHMI NARAYANACHAR’S case (supra) and LEELAMMA SAMUEL’s case (supra). The said decision will not be a bar to consider the provisions of C.P.C and the Act, as regard to impounding of the document. Merely because the documents are produced along with the plaint, that by itself automatically does not warrant impounding of the document. The party may admit the document in the evidence or may not choose to admit the same in the evidence.”
Therefore, he sought for quashing of the impugned order.
11. Per contra, Sri.Venkata Krishna Rao.B.K., learned counsel appearing for the respondent No.6 sought to justify the impugned orders and contended that in view of the provisions of Section 33 of the Stamp Act, once it is produced before the Court, or if it appears that such instrument is not duly stamped, the Court shall refer the matter to impound. The same has been done in the present case. He would further contend that in an earlier occasion, the plaintiffs and defendants filed applications-I.A.Nos.5, 6 and 7. Though the application of the plaintiffs rejected, the application filed by the defendants No.1 to 6 under Order 13 Rule 8 of Code of Civil Procedure is allowed and referred to Deputy Registrar for determination. The Deputy Registrar also submitted report on 28.03.2016 and thereafter the order came to be passed on 09.09.2016. Subsequently, the second application filed for similar prayer by the plaintiffs in I.A.No.9 is not maintainable in view of the provisions of Section 11 of Code of Civil Procedure. Therefore, sought for dismissal of the writ petitions.
12. Having heard the learned counsel for the parties, it is not in dispute that the plaintiffs filed the suit for specific performance to enforce the agreement dated 23.01.2012 and it is also not in dispute that according to the plaint averments, the possession was delivered as on the date of the agreement and they are in possession and enjoyment of the same. The said averments made in the plaint is totally denied by the defendants No.1 to 6 and contended that they never executed the sale agreement in favour the plaintiff as alleged. In fact, they admitted the executed agreement in favour of 6th defendant. It is also not in dispute that, earlier the present plaintiffs filed I.A.No.5 under Section 151 of Code of Civil Procedure to return the original agreement of sale to the plaintiffs to pay the stamp duty on the agreement of sale reiterating the plaint averments made in the plaint. It is also not in dispute that the defendant Nos.1 to 6 also filed I.A.Nos.6 and 7 to impound the document and refer the agreement of sale for adjudication before the competent authority.
13. It is also undisputed fact that the trial Court considering the applications and objections of both the sides, rejected the application filed by the plaintiffs under Section 151 of Code of Civil Procedure for return of the original agreement of sale to the plaintiffs to pay proper stamp duty on the agreement of sale before the competent authority but allowed the I.A.Nos.6 and 7 filed by the defendants under Order 13 Rule 8 of Code of Civil Procedure and the document was impounded. The said order passed by the trial Court allowing the I.A.Nos.6 and 7 filed by the defendants No.1 and 6 has reached finality and not challenged till today.
14. It is undisputed fact that once the application filed by the plaintiffs for return of the plaint to pay proper stamp duty, I.A.No.9 filed on 30.06.2017 for the similar prayer to refer the sale agreement dated 23.01.2012 at Annexure-A to the Deputy Registrar for adjudication of the stamp duty and penalty or return the same to enable the plaintiff to get determination on the stamp duty before the Deputy Registrar. In view of the rejection of I.A.No.5 earlier for similar relief, subsequent application filed for similar relief is not maintainable in view of the provisions of Section 11 of Code of Civil Procedure. Since the issue has been decided between the parties on earlier occasion that once that issue is decided by the competent Court on merits, shall not be decided second time. Therefore, provisions of resjudicata is applicable. The trial Court has rightly rejected the said applications.
15. It is also not in dispute that in pursuance of the order passed by the Court under the provisions of Section 33 of the Stamp Act, referring the matter to the concerned Registrar, in turn, the Registrar by communication dated 26.03.2016, after determination of agreement of sale stating possession was taken in terms of the agreement by communication dated 28.03.2016, referred in O.S.No.14/2012, determined the stamp duty payable. The learned Judge has determined the stamp duty payable to the plaintiffs along with I.A.Nos.6 and 7 which is the final conclusive.
The second application filed by the plaintiffs is not maintainable.
16. The trial Court considering the entire materials on record, referring to the earlier orders passed, has recorded a specific finding that once the matter decided by the competent authority on merits, same shall not be decided on second time. On earlier occasion, Court considering all the points now the plaintiffs have argued in present application, passed orders on I.A.Nos.5 and 7 has reached finality. Therefore, there is no scope for considering the same prayer. The Deputy Registrar has already given his finding on proper stamp duty and on the basis of his opinion, the trial Court has directed the plaintiff to pay stamp duty of Rs.66,750/- with ten times penalty. The plaintiffs have not complied with the orders of the trial Court, as such there is no scope to consider the application and no need to send once again the agreement of sale dated 23.01.2012 to the Deputy Registrar to adjudicate the proper stamp duty and penalty unless the plaintiffs show that, the finding of the Deputy Registrar is illegal. Since it is not his case that, the orders of the Deputy Registrar is illegal but for want of proper communication there was no adjudication of agreement of sale. Therefore, the application is not maintainable and accordingly dismissed the application.
17. The fact remains that allowing the applications filed by the defendants No.1 and 6 directing the plaintiffs to pay stamp duty and penalty has reached finality. There is no challenge till today. What is challenged is the application I.A.Nos.5 and 9 for similar relief. The contention of the learned counsel for the petitioners that unless it was tendering evidence, the Court has no jurisdiction cannot be accepted at this stage. In view of the provisions of Section 34 and the law declared by this Court in the case of SMT SAVITHRAMMA.R.C., V/S. M/S. VIJAYA BANK AND ANOTHER reported in ILR 2015 KAR 1984, at paragraphs 3, 6 and 7, this Court has held as under:
“3. The trial Court is right to the extent that, once the document is marked without objection, no subsequent objection regarding its marking can be gone into and such document will have to be looked into while deciding the case on merits. This, however, does come in the way of the court discharging the statutory duty contemplated under Sec.
33 of the Act. Section 33 of the Karnataka Stamp Act, 1957, which deals with Examination and impounding of instruments reads as under:
33. Examination and impounding of instruments.– (1) Every person having by law or consent of parties authority to receive evidence, and every person in- charge of a public office, except an officer of police, before whom any instrument, chargeable in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same.
(2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in the State of Karnataka when such instrument was executed or first executed:
Provided that,— (a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898;
(b) in the case of a Judge of the High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf.
(3) For the purposes of this section, in cases of doubt, the Government may determine,— (a) what offices shall be deemed to be public offices; and (b) who shall be deemed to be persons in-charge of public offices.
4. xxxxxxxx 5. xxxxxxx 6. From the aforesaid statutory provisions and the decisions, it is clear that a duty is cast upon every Judge to examine every document, which is produced or comes before him in the performance of his functions. On such examination, if it appears to the Judge that such instrument is not duly stamped, an obligation is cast upon him to impound the same. This duty is to be performed by the Judge irrespective of the fact whether any objection to its marking is raised or not. Hence, there is a need for diligence on the part of the Court having regard to the statutory obligation under Section 33 of the Karnataka Stamp Act. Section 34 of the Karnataka Stamp Act mandates that an instrument, which is not duly stamped shall not be admitted in evidence. If any objection is taken to the admissibility of the evidence, it shall be decided then and there. If this document is found to be insufficiently stamped, then in terms of the proviso (a) to Section 34, the Court shall call upon the person, who is tendering the said document to pay duty and ten times penalty and thereafter admit the document in evidence. If duty and penalty is not paid, the document shall not be admitted in evidence. If such an objection is not taken at the time of admitting the said instrument in evidence, and the insufficiently stamped document is admitted in evidence then section 35 of the Act provides that such admission shall not be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. It has nothing to do with impounding the document. A duty is cast upon every Judge to examine every document that is sought to be marked in evidence. The nomenclature of the document is not decisive. The question of admissibility will have to be decided by reading the document and deciding its nature and classification. The tendency to mark documents without inspection and verification should be eschewed. Even while recording ex parte evidence or while recording evidence in the absence of the Counsel for the other side, the Court should be vigilant and examine and ascertain the nature of the document proposed to be marked and ensure that it is a document which is admissible. The Court should not depend on objections of the other Counsel before considering whether the document is admissible in evidence or not. Section 33 of the Stamp Act casts a duty on the Court to examine the document to find out whether it is duly stamped or not, irrespective of the fact whether an objection to its marking is raised or not. Section 37 of the Act provides what the Judge has to do when he has collected duty and penalty under Section 34 of the Act and what he has to do, if the case does not fall under Section 34 of the Act. Section 37 of the Karnataka Stamp Act reads thus:
37. Instruments impounded how dealt with.-
(1) When the person impounding an instrument under section 33 has by law or consent of parties authority to receive evidence and admits such instrument in evidence upon payment of a penalty as provided by section 34 or of duty as provided by section 36, he shall send to the Deputy Commissioner an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof, and shall send such amount to the Deputy Commissioner or to such person as he may appoint in this behalf.
(2) In every other case, the person so impounding an instrument shall send it in original to the Deputy Commissioner.
7. If the Judge has acted under Section 34 of the Act and collected duty and penalty and admitted the document in evidence, then under sub-Section (1) of Section 37, he shall send to the Deputy Commissioner an authenticated copy of such instrument together with a Certificate in writing stating the amount of duty and penalty levied in respect thereof and shall send such amount to the Deputy Commissioner or such person as he may appoint in this behalf. If the Judge does not act under Section 34 of the Act, but the document is insufficiently stamped and admitted in evidence though objection regarding admissibility cannot be raised subsequently that does not take away his obligation to impound the document under Section 33 of the Act. If the document is insufficiently stamped and if the Court has admitted such instrument in evidence without collecting duty and penalty, then the Judge shall proceed under Section 33 of the Act and impound the document. After impounding the document, he shall proceed under Section 37(2) of the Act and shall send the impounded instrument in original to the Deputy Commissioner to be dealt with under Section 39 of the Act. Therefore, impounding the document should not be confused to admission of document without objection regarding admissibility or on such objection being taken after collecting the duty and penalty.”
18. Since the order passed by the trial Court has reached finality, it is not the case of the petitioners that when the matter is posted for evidence, he will not tender the documents. Indirectly he made the submission before this Court that if it is the case of the plaintiffs that he will not choose to admit the same in evidence then the things should have been different. As already stated that the direction of the Hon'ble Supreme Court in the case of LAKSHMI NARAYANACHAR’S case (supra) and LEELAMMA SAMUEL’s case (supra), similar case relied upon by the learned Single Judge this Court in the case of SHRI S.SURESH (supra), the law laid down by this Court in the cited decision and reliance made to the Hon'ble Supreme Court stated supra has no quarrel. The facts of the said case are entirely different and the facts of the present case. Since in the present case, there is already determination at the instance of the Court, the District Registrar has determined the proper stamp duty and penalty and the orders passed on I.A.Nos.6 and 7 reached finality. Therefore, the contention of the learned counsel for the petitioners that Court has no jurisdiction unless the plaintiffs tendering the documents at the time of evidence cannot be accepted.
19. This Court in the case of MISS. SANDRA LESLY ANNABARTLETS V/S. MISS. P.GUNAVATHY reported in ILR 2013 KAR 368 considering the provisions of Section 33 of the Stamp Act, held at paragraphs 12 and 13 as under:
“12. Court cannot say that it would impound the document only when the document is tendered in evidence for marking. There may be instances where duty and penalty payable may be very high and the party may not choose to rely upon such insufficiently stamped document in order to avoid stamp duty and penalty. In such circumstances, it would result in loss of revenue to the exchequer. The power of impounding a document is to collect stamp duty and penalty whenever there is an escape of duty. Therefore, when it is brought to the notice of the Court that a document is insufficiently stamped, the Court exercising its power under Section 33 of the Act has to pass an order at the first instance for impounding the document. Though there is a discretion vested in the Court to exercise powers under Sections 33 and 34 of the Act, no Court can hold that it would wait till the document is tendered in evidence. In such circumstances, there may be chances of loss of revenue to the exchequer.
13. In the circumstances, we answer the reference "holding that under Section 33 of the Stamp Act, the moment an insufficiently stamped instrument comes to the notice of the Court, the same has to be impounded in accordance with Section 33, whether the same would be relied upon by the party under Section 34 or not".
20. For the reasons stated above, the impugned order passed by the Trial Court dismissing the application under Section 151 of Code of Civil Procedure is just and proper. No interference is called for to exercise the powers under Article 227 of Constitution of India. Accordingly, the writ petitions are dismissed.
21. At this stage, Sri.Nagaiah, learned counsel for the petitioners seeks reasonable time to pay the duty and penalty as ordered by the trial Court. Taking into consideration the submission made by the learned counsel for the petitioners, this Court is of the opinion that reasonable time of 4 months is granted to pay the stamp duty and penalty.
Ordered accordingly.
Sd/- JUDGE NC.