IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 7TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 50405 OF 2019 (GM-CPC) BETWEEN:
1. SRI. SYED TAUFIQ AHMED, S/O SRI SYED MAHABOOB SAB, AGED ABOUT 45 YEARS, R/O NO 397, 8TH MAIN, SADANANDA NAGAR, NGEF LAYOUT, BENGALURU – 560 038.
2. SMT. RIZWANA FATHIMA, W/O SRI SYED TAUFIQ AHMED, R/A NO 397, 8TH MAIN, SADANANDA NAGAR, NGEF LAYOUT, BENGALURU – 560 038.
3. M/S SRCS INDIA GROUP, REPRESENTED BY MANAGING DIRECTOR SRI SYED TAUFIQ AHMED, NO 623, 11TH MAIN, 80 FEET ROAD, INDIRANAGAR, BANGALORE.
(BY SRI. K S BHEEMAIAH, ADVOCATE) AND:
1. SMT. VIDHYA SACHITANAND SUVARNA, W/O SACHITANAND SUVARNA, AGED 36 YEARS, R/A NO 947, FLAT NO.101, 1ST FLOOR, COMFORT NEST, 2ND CROSS IST MAIN, NEW THIPPASANDRA POST, BENGALURU.
2. RAVINDRA REDDY, S/O SRI K RAMANA REDDY, AGED ABOUT 41 YEARS, ... PETITIONERS RANJAPPA REDDY BUILDING, 2ND CROSS, KAGGADASAPURAM, C V RAMAN NAGAR, BANGALORE.
3. SRI. N CHANDRA SEHKAR, S/O SRI NARAYANAPPA M R/A SAI SHREE MANSION 501, 5TH FLOOR 2ND CROSS NEW THIPPASANDRA, HAL 3RD STAGE, BANGALORE.
... RESPONDENTS (BY SRI. HARISH H V, ADVOCATE FOR C/R1) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 18.09.2019 PASSED ON I.A.NO.28 IN O.S.NO. 9218/2015 BY THE HONBLE XXXI ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE CITY (CCH-14) VIDE ANNEXURE-J.
THIS PETITION COMING ON FOR PRELIMINMARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioners being the defendants in a declaratory suit in O.S.No.9218/2015 are knocking at the doors of writ court for assailing the order dated 18.09.2019, a copy whereof is at Annexure-J, whereby XXXI Addl. City Civil & Sessions Judge, Bengaluru having favoured respondent’s application in I.A.No.28 filed u/s. 33 & 34 of Karnataka Stamp Act, 1957 has impounded the subject documents with a direction to pay the deficit stamp duty along with penalty calculated at ten times the deficient value, the respondent has entered caveat through his counsel and resists the writ petition.
2. Having heard the learned counsel for the parties and having perused the petition papers and also after adverting to the rulings cited at the Bar, this Court is of the considered opinion that the impugned order is unsustainable for the following reasons:
(a) under Chapter IV of the 1957 Act a scheme is devised whereunder Sec.33 speaks of impounding of documents brought in the proceedings, regardless of the stage thereof and Sec.34 envisages levying of deficit stamp duty along with penalty at the rate of ten times the deficit value when such a document is sought to be admitted to evidence; this difference in stages is contemplated by the legislature in its wisdom which the learned judge below has lost sight of; thus there is an error of law of great magnitude on the face of the record warranting indulgence of this Court;
(b) the 2nd error of equal magnitude is the assumption of the learned trial Judge that although Sec.30 imposes the liability to pay the stamp duty on the parties to the instrument, when such parties are not before the Court, the person who produces such instrument should pay the deficit stamp duty and the penalty; there is absolutely no warrant for such an assumption when Sec.30 of the Act specifically mentions the persons who are liable to pay the stamp duty; thus the learned trial Judge was misdirected in law;
(c) the contention of the learned counsel for the respondent that regardless of the fact that the document admitted to evidence, there lies the power coupled with duty with the learned trial Judge to impound the same so that no loss is caused to the public exchequer, again is misconceived; it is a settled position of law that a document once admitted to evidence cannot be called in question either by the Court or by the parties on the ground that it is deficitly stamped at the successive stages of the same proceeding; the decision cited by the learned counsel for the respondent in the case of SYED AKHAIL vs. MALLIKARJUNA RAO in W.P.No.16606/2017 (GM-CPC) disposed off on 19.06.2017 does not lay down a proposition now sought to be canvassed by him, to the contra; in the said case the party to the suit did not have an opportunity of objecting to the documents being admitted to evidence which is not the case here; the respondent had abundant opportunity to object to the document being admitted to the evidence.
In the above circumstances, this writ petition succeeds; the impugned order is set at naught.
The right to challenge the admissibility and dutiability of the subject document otherwise is left intact in terms of Sec.58 of the Act, elsewhere but not in the suit proceeding.
No costs.
Sd/- JUDGE Snb/