IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 22ND DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 5735 OF 2017 (GM-CPC) BETWEEN:
SRI TESHEE VENKATESH AGED ABOUT 45 YEARS, S/O SRI.M.RAMAIAH, R/AT NO.182/1, 31ST CROSS, 11TH MAIN, 4TH BLOCK, JAYANAGAR, BANGALORE-560 004.
… PETITIONER (BY SRI. G R MOHAN, ADVOCATE) AND SRI K.J.MITHRA AGED 57 YEARS, S/O LATE JOGAPPA, BUS OPERATOR, 11TH CROSS, RAJENDRA NAGAR, SHIMOGA - 571 203.
… RESPONDENT (BY SRI. UMESH MOOLIMANI, ADVOCATE FOR SRI. S V PRAKASH, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS IN O.S.NO.141/2012 ON THE FILE OF THE II ADDL. CITY CIVIL JUDGE (SR.DN) SHIMOGGA, HEAR THE PARTIES AND SET ASIDE THE ORDER OF THE TRIAL COURT DATED 14.12.2016 AS PER ANNEXURE-D.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioner being the defendant in a money suit in O.S.No.141/2012 is invoking the writ jurisdiction of this Court for assailing the order dated 14.12.2016, a copy whereof is at Annexure-D, whereby overruling the Objection, the learned trial judge having held subject document to be only an acknowledgement of debt has admitted the same to evidence. After service of notice, the respondent having entered appearance through his counsel, resists the writ petition.
2. Having heard the learned the learned counsel for the parties and having perused the petition papers, including the subject instrument, a copy whereof is at Annexure-A, this Court declines to grant indulgence in the matter because:
(a) the contention of the petitioner that certain rights are transferred under the instrument in question by way of security for the repayment of debt and therefore article 6(2) of Schedule to the Karnataka Stamp Act, 1957 is attracted cannot be countenanced because article 6(2) contemplates an instrument comprising pawn or pledge of a “movable property”; it is a matter of common knowledge that a movable property is necessarily a tangible property subject to all just exceptions; the transfer of “copy rights”, “negative film rights” and “screening rights of the film” as specified in the document in question are not tangible property at all; they are in the nature of jura in repropria and therefore, they cannot be “movable property”; and (b) the Karnataka Stamp Act, 1957 is held to be a fiscal legislation, by the Apex Court; it is a settled principle of interpretation that the provisions of fiscal legislations have to be construed stricto sensu whilst imposing liability on the citizens; thus article 6(2) if read in common parlance cannot be construed to include the documents/instruments that comprise the transactions founded on jura in repropria, as distinct from tangible property, especially when it is the specific assertion of the petitioner that because of some injunctive relief granted by the court in his suit, the physical property such as Film Reels and the like are still with him only;
(c) the text of subject instrument which is nomenclatured as an Acknowledgment/Assignment dated 19.05.2007 is a composite document because it has a clause that partakes the character of an acknowledgement of debt and it has another clause which speaks of transfer of certain rights by way of security for the repayment of the debt in question; to the extent, this is not considered the view of the learned trial judge about the document is selective in nature;
In the above circumstances, no other ground having been urged, the writ petition being devoid of merits, is dismissed.
Sd/- JUDGE Bsv