IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO R.S.A.No.1559/2013 BETWEEN:
SRI RAMANJANEYA S/O SRI CHINNAPPA AGED ABOUT 39 YEARS R/AT KUMBENA AGRAHARA VILLAGE -560 017 BANGALORE EAST TALUK BANGALORE ...APPELLANT (BY SRI BHADRINATH R., ADVOCATE) AND:
1.SRI POORNA SINGH S/O LATE ANATHARAMSINGH AGED ABOUT 68 YEARS 2.SMT. SAKKU BAI W/O POORNA SINGH AGED ABOUT 63 YEARS 3.SRI P BHAVANI SINGH S/O POORNA SINGH AGED ABOUT 43 YEARS 4.SRI P HANUMAN SINGH S/O POORNA SINGH AGED ABOUT 38 YEARS 5.SRI MUNI SINGH S/O POORNA SINGH AGED ABOUT 37 YEARS 6.SRI NAGUSINGH @ SAGENDRA SINGH S/O POORNA SINGH AGED ABOUT 35 YEARS RESPONDENTS No.1 TO 6 ARE RESIDING AT No.84 HUNASANAHALLI KASABA HOBLI BANGARPET TALUK-563114 KOLAR DISTRICT. ...RESPONDENTS (BY SRI ABHINAV R, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED:13.08.2013 PASSED IN R.A.No.85/2012 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT, K.G.F., DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED:31.07.2012 PASSED IN O.S.No.87/2005 ON THE FILE OF CIVIL JUDGE (SR.DN.) AND PRINCIPAL JMFC, K.G.F.
THIS RSA COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is directed against the Judgment and decree dated 13.08.2013 passed in R.A.No.85/2012 by the Presiding Officer, Fast Track Court at K.G.F wherein appeal filed by plaintiff came to be dismissed. Thus, order dated 20.7.2012 and 31.07.2012 passed by learned Civil Judge, Senior Division and Principal JMFC, K.G.F in O.S.No.87/2005 stood confirmed.
2. In order to avoid overlapping and confusion, the parties are referred with reference to their ranks held by them before the trial Court.
3. It is a plaintiff’s second appeal against the Judgment of learned first appellate Judge. Basically plaint filed by the present appellant in O.S.No.87/2005 came to be rejected under Order VII Rule 11(c) of Civil Procedure Code.
4. Factual matrix of the matter is, plaintiff filed an original suit in O.S.No.87/2005 against defendants for the relief of specific performance of the agreement dated 31.01.2005, wherein the defendants entered into an agreement to sell the suit schedule property measuring 2 acres out of 4 acres of agricultural land in Sy.No.6/P17 of Kanvekallu Village, Kasaba Hobli, Bangarpet Taluk, Kolar District for a cash consideration of Rs.2,50,000/- and received an advance amount of Rs.2,16,000/- and agreed to execute the registered sale deed of the schedule property within three months i.e. on or before 01-04-2005.
5. Plaintiff claims that he was ready and willing to perform his part of contract and further alleges that the defendants committed breach of contract. The suit sale agreement is written on a non judicial stamp paper of R.200/-. The possession of the suit schedule property is stated to have been delivered under the said registered sale agreement.
6. Defendants appeared and opposed the claim of the plaintiff and denied the plaint averments.
7. The trial Judge, was accommodated with the oral and documentary evidence of PWs 1 to 4, DWs 1 to 4, and documentary evidence of Exs.P1 to P17 and Exs.D1 and D2.
8. During the first phase of proceedings, suit filed by the plaintiff for specific performance came to be decreed by the trial Court on 29.01.2010 and defendants were directed to execute the registered sale deed in the lines of the sale agreement dated 31.01.2005. However, appeal preferred by the defendants in R.A.No.49/2010 before the Presiding Officer, Fast Track Court, KGF came to be allowed on 16-10-2010 and in view of non payment of proper stamp duty of the suit document-sale agreement I.A.Nos. 1 and 2 filed by the defendants were allowed and matter came to be remanded to the trial court with certain directions.
9. After the remand from the first Appellate Court, the trial Court adjudicated the matter in a summary manner and the application filed by the plaintiff seeking permission to deposit the duty and penalty and the plaint came to be rejected by the trial Court in its order dated 31.07.2012 in O.S.No.87/2005. Against the said order, plaintiff preferred the appeal under order 41 Rule 1 CPC before the first Appellate Court in R.A.No.85/2012 which came to be dismissed on 13.08.2013 and consequently the orders passed by the learned Civil Judge (Sr.Dn) KGF in O.S.No.87/2005 dated 31.7.2012 came to be confirmed. Against which, plaintiff preferred this second appeal.
10. While admitting the appeal on 26.9.2013, this Court framed the following substantial question of law for consideration:
Whether non-payment of duty and penalty on a document would permit rejection of plaint by the trial court under order VII Rule 11 CPC?
The substantial question of law is reframed today as under:
(i) Whether the Trial Court and the First Appellate Court were legally justified in rejecting the plaintiff when the plaintiff in the subsequent circumstances was ready to pay the duty and penalty though he failed to pay the same in the beginning?
(ii) Whether the plaintiff is legally entitled for an opportunity to make good the deficit stamp duty resulting from deficit stamp duty paid on the agreement of a suit of the year 2005?
11. Sri.R.Bhadrinath, learned counsel for the appellant/plaintiff would submit that mother of the plaintiff was bed ridden with malignancy being diagnosed. Now she is no more. During relevant period, the appellant was unable to attend the matter with punctuality and comply with the directions of the Court.
12. Sri.Abhinav.R learned counsel for respondents/defendants would submit that there is no provision for accepting the payment of penalty after the rejection of plaint. However, it is meant for payment of deficit court fee.
13. In the circumstances, it is to be stated that, the transaction or the events have come up in the following manner:
Suit is for the relief of specific performance and on the basis of the sale agreement dated 31.01.2005. The suit was numbered as O.S.No.87/2005 on the file of the Civil Judge (Sr.Dn) at KGF. The sale consideration stated in the agreement is Rs.2,50,000/-. The advance amount paid to the defendant is stated to be Rs.2,16,000/-. However the agreement was written on non judicial stamp paper of Rs.200/-. The possession of the schedule property which is a vacant land was also stated to have been delivered under the sale agreement to the purchaser. By virtue of the amendment to Stamp Act dated 01.04.1995, The stamp duty payable was Rs.2,11,200/-. It requires to be stated that in the entire judgment or orders of the trial Court and the first Appellate Court, the actual amount of deficit stamp duty is not mentioned.
The order of the learned trial Judge dated 31.7.2012 is as under:
“Plaintiff absent. Advocate absent. Court orders are not complied. Admittedly, stamp duty and penalty not paid. Plaint is rejected under order 7 Rule 11 (c) of CPC.”
14. The judgment passed by the learned Presiding Officer, Fast Track Court, KGF in R.A.NO.85/2012 also fails to provide the actual figure i.e. deficit payment of stamp duty. However, in para NO.4 of the judgment of the first Appellate Court the payable duty and penalty is stated as Rs.1,90,012/-. Even while mentioning digit, it is mentioned as “1,90,2012” which goes to show that the payable amount is ‘Rs.19,02,012/-‘. This is sheer negligence on the part of the judicial officer who has not taken pains to correct the judgment. He forgot that litigation or objections are very much likely to arise just because of such kind of mistakes.
Atleast the plaintiff or defendant or atleast the Court has not chosen to see the memo filed by the defendants wherein by virtue of amendment of Article 5 (e) Karnataka Stamp Act, the deficit stamp duty payable is mentioned as ‘Rs.24,800/-‘ i.e. the total stamp duty payable is considered as Rs.25,000/- being the 10% of the value and Rs.200/- stamp duty paid on the agreement was deducted and the balance is shown as ‘Rs.24,800/-‘.
15. The learned first Appellate Judge has forgotten to mention the calculation of proper court fee in his judgment. As the order indicates mentioning of the deficit stamp duty of Rs.1,90,012/-. Further the making superficial observation by the appellate Judge is not proper.
16. It is also necessary to mention that, plaintiff has mentioned the calculation in the objection statement as under:
“Plaintiff has to duty amount [2,50,000 x 7.78] = 19,450/-
100 Minus already paid [paid on stamp paper] = 200/-
19,200/-
Plaintiff has to pay penalty 10 times = [19,200/- x 10] Rs/1.90,200/-“ 17. Wherein it indicates the stamp duty payable is calculated at Rs.19,450/- at the rate of Rs.7,78 on Rs.2,50,000/- divided by 100, which comes upto Rs.19,450/-. The deficit court fee of Rs.19,200/- the objections filed by the plaintiff to the memo filed by defendants starts with a miscalculation thereby stating Rs.19,450/- - 200 = 19,200/- which is an arithmetical mistake in deducting. Further, the said calculation accepted by the first Appellate Judge as it is which invariably suggests that to accept the resultant figure of Rs.19,200/-. Learned Appellate Judge had no patience or time to go through the memo. Further, the payment of the amount is to calculate the duty and penalty i.e. the deficit stamp duty and penalty of 10 times of deficit stamp duty which comes upto Rs.19,200/- x 10 times of the deficit i.e. Rs.1,92,000/- plus Rs.19,200 = 2,11,200/-.
18. As could be seen from the order sheet maintained by the learned trial Judge, the suit came to be filed on 11.07.2005. However, suit was decreed on 29.01.2010. Thus in the first phase of proceedings, OS No.85/2007 came to be decreed. However, regular appeal preferred by the defendants in R.A.No. 49/2010 before the Presiding Officer, Fast Track Court at KGF, came to be allowed on 16.9.2011. The operative portion read as under:
‘The appeal filed by the appellants/defendants is allowed with costs.
The I.A.No.I and II filed by the appellants are allowed as prayed.
The judgment and decree passed in O.S.NO.87/2005 dated 29-01-2010 on the file of the Additional Civil Judge (Sr.Dn) KGF is set aside.
The matter is remanded to trial Court for fresh disposal by framing additional issue as stated in the body of the judgment by giving an opportunity to appellants/ defendants to adduce evidence on the said additional issue and opportunity is to be given to the respondent/plaintiff to cross examine the witness.
The appellants/defendants are directed to amend the written statement within fifteen days on their appearance before the lower court.
Both parties are directed to appeal before the lower court on 26.09.2011 without fail.
The respondent/plaintiff is also directed to pay duty penalty on Ex.P1 according to law.
The trial Court is also directed to dispose the matter in accordance with law within 6 months from the date of after receipt of the records.
Return the file to the Lower Court.”
19. The first Appellate Judge by setting aside the judgment, remanded the matter to the trial Court for framing additional issue as stated in the body of the judgment and adjudicate the matter on the basis of the preliminary issue. The defendants were directed to amend the written statement within 15 days. Thus, by virtue of the judgment and decree of the first Appellate Court, the matter came to be remanded for disposal in a time bound limit within an outer limit of six months from the receipt of the records.
20. It was after the remand, the original suit in OS No.85/2005 was adjudicated in the second phase of proceedings. In the second phase of proceedings, by order dated 31.07.2012 the trial Judge rejected the plaint of the plaintiff under order 7 Rule 11 (c) of CPC for non payment of stamp duty and penalty. Thus the direction issued by the first Appellate Judge while remanding the matter was not followed completely by the trial Judge and disposal is made in his own line without there being any additional issue or oral evidence. It is against this order, the appeal is preferred before the Presiding Officer, Fast Track Court, KGF in R.A.NO.85/2012 which came to be dismissed on 13-08-2013.
21. Here, it is necessary to mention the provision of order VII Rule 11 CPC which provides for rejection of plaint which is as under:
11. Rejection of plaint.- The plaint shall be rejected in the following cases:-
(a) Where it does not disclose a cause of action;
(b) Where the relief claimed is undervalued, and the plaintiff on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;
KARNATKA HIGH COURT AMENDMENT [(c) where the relief claimed is properly valued, but the Court fee actually paid is insufficient and the plaintiff does not make good the deficiency within the time, if any granted by the Court;]”
(d) where the suit appears from the statement in the plaint to be barred by any law;
[(e) where it is not filed in duplicate;
[(f) where the plaintiff fails to comply with the provisions of Rule 9:] [Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.]”
22. Thus, it is to be seen that, it provides not only for non payment of proper court fee when the relief is undervalued.
Thus, the plaintiff who fails to comply with the order of making good the deficit court fee has to face an order of rejection of plaint. Regard being had to the fact that the matter of limitation is not the domain of the court in the present case. Order VII Rule 11 Sub Rule (c) provides for the same. The said Rule is as under:
“(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;
KARNATKA HIGH COURT AMENDMENT [(c) where the relief claimed is properly valued, but the Court fee actually paid is insufficient and the plaintiff does not make good the deficiency within the time, if any granted by the Court;]”
23. In the circumstances of the case, it is necessary to have a cursory glance of Section 35(a) of Duty and Penalty which is as under:
“35. Instruments not duly stamped inadmissible in evidence etc.- No instruments chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped:
Provided that – (a) any such instrument 4[shall, be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times of the amount the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;”
24. Thus the plaint filed under order VII Rule 11 CPC came to be rejected on 31.7.2012. Thereafter, an application was filed by the plaintiff seeking to pay the judicial stamp duty with penalty. The said application came to be rejected on 16.8.2012. It was the order dated 31.7.2012 was challenged before the first Appellate Court in the second round of litigation in R.A.No.85/2012 which came to be dismissed by the Appellate Court confirming the order dated 31.7.2012 which is challenged in this second appeal.
25. The substantial question of law in this case is regarding the entitlement of plaintiff to seek an opportunity to make good the deficit stamp duty. It is clear by now that plaintiff does not deny the responsibility of paying the stamp duty and penalty. In fact that has been his case when he filed an application seeking permission to pay the duty and penalty before the trial Court.
26. Further, it is clear that order dated:31.07.2012 passed under order VII Rule 11(c) is appealable. This Court admitted the appeal as it involved the substantial questions of law. In the circumstances, the plaintiff no doubt relied on the document and the suit was decreed in the first phase of proceedings. However, during the second phase after remanding of the matter, the suit of the plaintiff was rejected.
27. In the overall circumstances of the case, I find both the trial Court and the first Appellate Court seriously erred in rejecting the plaint to dislodge the case of the plaintiff and in confirming the same. It should have been nice and proper and within the domain of the Court to grant an opportunity for the plaintiff to pay deficit stamp duty and penalty for having paid the insufficient stamp duty at the time of entering into the agreement.
28. Though unreasonable and extraordinary non- compliance are to dealt with serious reasonable curable defects deserves a reasonable approach. The present case definitely did not fall under the former category.
29. Thus, the judgment and decree challenged in this appeal and the order passed by the learned trial Judge after remand are liable to be set aside and the matter requires to be remanded to the trial Court with a direction to receive the plaint and the deficit stamp duty and penalty from the plaintiff and thereafter to dispose of the matter exactly in accordance with law. Though the matter is remanded the substantial questions of law reframed in this appeal are answered accordingly.
30. For the foregoing reasons, the appeal is allowed.
The judgment and decree dated 13-08-2013 passed in R.A.No.85/2012 by the learned Presiding Officer, Fast Track Court, KGF and the order dated 31.7.2012 passed in O.S.No.87/2005 after the remand by the learned Civil Judge (Sr.Dn) and JMFC, KGF, are set aside.
The matter is remanded to the trial Court with a direction to receive the plaint and the deficit stamp duty and penalty within 20 days from today from the plaintiff and thereafter dispose of the matter in accordance with law.
As the matter is being remanded, to save the wastage of the judicial time, the parties are at liberty to adduce their oral and documentary evidence if any.
Parties will not be served with the further notice by the trial Court and they are directed to appear on 04-10-2019.
The trial Court shall provide an opportunity to the parties to adduce their oral and documentary evidence if any.
SBN/tsn* Sd/- JUDGE