IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B.VEERAPPA REVIEW PETITION NO. 23/2019 BETWEEN:
SRI. S SOUNDARARAJAN, S/O LATE SUBRAMANI, AGED ABOUT 52 YEARS, R/AT NO.S-113, SOUTH TOWER, MAYA INDRAPRASTHA, JARAGANAHALLI, J P NAGAR, 6TH PHASE, BENGALURU -560078.
(BY SRI. GANGADHARAIAH A N, ADVOCATE) AND:
SRI. V KRISHNAMURTHY, S/O N R VENUGOPAL NAIDU, AGED ABOUT 57 YEARS, R/AT NO. 121/26, 16TH MAIN, BSK 1ST STAGE, 2ND BLOCK, BENGALURU – 560 050.
(NOTE: SUIT AGAINST THE DEFENDANT NO. 2 & 3 DISMISSED AS SUCH THEY ARE NOT MADE A PARTY) (BY SMT. SHOBHA BHAVIKATTI, ADVOCATE) … PETITIONER … RESPONDENT THIS REVIEW PETITION IS FILED UNDER ORDER XLVII R/W SECTION 114 OF THE CPC, PRAYING TO I) SET ASIDE THE ORDER DATED 31.08.2018 VIDE ANNEXURE-A DISMISSING THE WRIT PETITION AND RECALL THE ORDER DATED 31.08.2018 PASSED BY THE HON’BLE HIGH COURT OF KARNATAKA IN W.P.NO. 1646 OF 2018 BY REVIEWING THE SAME BY HOLDING THAT THE DUTY PAYABLE IS UNDER ARTICLE 47 OF KARNATAKA STAMP ACT BY ALLOWING THIS WRIT PETITION, II) AWARD COSTS AND SUCH OTHER RELIEFS AS THE HON’BLE COURT DEEMS FIT TO GRANT IN THE CIRCUMSTANCES OF THE CASE, INCLUDING THE COST OF THE ABOVE PROCEEDINGS, IN THE INTEREST OF JUSTICE.
THIS REVIEW PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This review petition is filed praying to set aside the order dated 31.08.2018 vide Annexure-A dismissing the writ petition and recall the order dated 31.08.2018 passed by the learned single judge of this Court in W.P.No.1646/2018 by reviewing the same by holding that the duty payable is under Article 47 of the Karnataka Stamp Act.
2. Shri Gangadharaiah, learned counsel for the review petitioner contends that the documents now sought to be marked cannot be construed as lease deed. The duty chargeable on the said document has to be calculated as prevailing on the date of the document and if the advance is refundable, the duty chargeable shall be only under Article 47 and not under Article 30 as held by the trial court and affirmed by this Court.
3. He also contends that in view of the amended provisions of Karnataka Act No.8 of 2003 ( The Karnataka Stamp and Certain other Laws (amendment) Act, 2003) the amended provisions dated 31.03.2013 the following explanation was introduced to Article 30 wherein it was provided that “if the advance is refundable the duty shall be as per Article 47’. Therefore, he sought to allow the present writ petition.
4. Ms. Shobha Bhavikatti, learned counsel for the respondent does not dispute the amended provisions of the Stamp Act.
5. In view of the amendment of the Stamp Act and in view of the dictum of the Full Bench of this Court in the case of CHIEF CONTROLLING AUTHORITY, INSPECTOR GENERAL OF REGISTRATION AND COMMISSIONER OF STAMPS, BANGALORE VS. M/S. TEXAS INSTRUMENTS INDIA LTD. reported in AIR 2004 KAR 70 this Court has considered the identical issue. Wherein at Paragraph No.11 it is held as under:
“11. It is clear from the above said provisions that for attracting duty under Article 30(c) of Schedule to the Act it is to be shown that money paid in advance i.e. prior to arising of liability on account of rent and that payment is in addition to rent reserved. Amount for which there is both liability and covenant to pay as rent cannot be termed as advance. The legal character of such amount paid is rent and merely because it is paid in advance under the covenant its character does not change. The term “money advanced” in Article 30 (c) has to be construed ejusdem generic with other terms preceding namely fine or premium which would indicate that money advanced does not contain idea of repayment and indicative of the amount going irrevocably into the pocket of the lessor. The object of addition of the works” or for money advanced” is apparently to regain transactions which are a combination of a lease and mortgage and which are embodied in the form of a lease providing for payment of an advance.”
Therefore, there is an error apparent on the face of the record which requires review of the order dated 31.12.2018 passed in W.P.No.1646/2018.
In view of the aforementioned reasons, this review petition is allowed. The impugned order dated 31.12.2018 made in W.P. No.1646/2018 passed by the learned single judge of this Court is hereby recalled. The Writ petition is restored to its original file.
Post W.P. No.16462/2018 for admission next week.
Sd/- JUDGE Bsv