IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.17097 OF 2017 (GM-CPC) BETWEEN:
SRI SHAMANNA S/O. LATE ANNIYAPPA AGED ABOUT 62 YEARS R/O. NO.27, 2ND CROSS BYRASANDRA, 1ST BLOCK EAST JAYANAGAR BANGALORE – 560 011 ... PETITIONER (BY SRI R.A.DEVANAND, ADVOCATE) AND:
1. SMT.LAKSHMAMMA W/O. LATE CHANDRAPPA AGED 70 YEARS R/O. NO.27, 2ND CROSS BYRASANDRA, 1ST BLOCK EAST JAYANAGARA BANGALORE – 560 011 2. SRI CHANDRA MURULI S/O SRI KRISHNAPPA AGED 37 YEARS R/O.NO.27, 2ND CROSS BYRASANDRA, 1ST BLOCK EAST JAYANAGAR BANGALORE – 560 011 ... RESPONDENTS (BY SRI B.ROOPESHA, ADVOCATE FOR R1 & R2 A/W SMT.H.R.ANITHA, HCGP) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-8) PASSED ON I.A.NO.13 DTD: 17.03.2017 WHICH IS PRODUCED AS ANNEXURE-M RESPECTIVELY AT O.S.NO.9401/1998 BY ALLOWING THE W.P. AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner being the plaintiff in a specific performance suit in O.S.No.9401/1998 is invoking the writ jurisdiction of this Court for assailing the order dated 17.03.2017, copies whereof are at Annexure-D/M, whereby his prayer for confining the liability for payment of deficit stamp duty along with 10 times penalty in terms of Sections 33 & 34 of the Karnataka Stamp Act, 1957 is rejected by the Court below holding that he is liable to pay the deficit stamp duty and the penalty in respect of all the floors comprised in the subject agreement.
2. After service of notice respondents having entered appearance through their counsel, resist the Writ Petition. Smt. Anitha, learned Government Pleader also has assisted the Court on request, in the matter.
3. Having heard the learned counsel for the parties and having perused the Petition Papers, reprieve needs to be granted to the petitioner for the following reasons:
a) the impugned order of the Court below proceeds on a wrong legal premise that where the agreement contains a clause relating the delivery of possession of a part of the comprised property, the deficit stamp duty and the penalty in respect of entire property and not just in the portion in respect of which a clause for possession is incorporated in the agreement need to be levied. The Karnataka Stamp Act, 1957, is held to be a fiscal legislation by the Co-ordinate Bench of the Apex Court and therefore, its provisions are to be construed is stricto sensu while levying the financial liability on the citizen; if there is any doubt in the interpretation of the provisions of the Act, the same would enure to the benefit of the citizen; and b) Article 5 (e) (i) of the schedule to the Act reads as under:
“(e) if relating to sale of immovable property wherein part performance of the contract,-
(i) possession of the property is delivered or is agreed to be delivered (before) executing the conveyance same duty as a conveyance (No.20) on the market value of the property:”
4. The expression possession of the property is delivered necessarily has to be confined to such portion of the property which the subject agreement speaks of delivery of possession and not the entire property comprised therein, as rightly contended by learned counsel for the petitioner; an argument to the contrary would militate against the interpretation of fiscal provision to the disadvantage of the poor citizen.
In the above circumstances, this Writ Petition succeeds; impugned order is set at naught; the Court below is directed to confine the enquiry as to deficit stamp duty and the penalty payable thereon under Sections 33 & 34 of the Act only to the extent of one floor under the subject agreement dated 05.08.2017, regardless of other floors being part of the property comprised therein. The Court below shall take steps accordingly.
Since the suit is of the year 1998, the learned trial Judge is requested to try & dispose off the same within an outer limit of ten months, all contentions of the parties having been kept open.
No costs.
Sd/- JUDGE DS