IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 6TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NOS. 14149-14150 OF 2018 (GM-CPC) BETWEEN:
1. MR. SUBAIR. K S/O M K ASSAI, AGED ABOUT 50 YEARS, 2. MR. NIZAR N P, S/O K ABDUL KHADAR, AGED ABOUT 46 YEARS, BOTH ARE RUNNING BUSINESS AT NO.330, 17TH MAIN, 18TH CROSS, M C LAYOUT, VIJAYANAGAR, BANGALORE – 560 040.
… PETITIONERS (BY SMT. LEELA P DEVADIGA, ADVOCATE FOR SRI. B JANARDHANA, ADVOCATE) AND:
1. MASTER DINAKAR, S/O SRI. VASUDEV, AGED ABOUT 17 YEARS, 2. MASTER CHINMAY, S/O SRI. VASUDEV, AGED ABOUT 9 YEARS, SINCE NO.1 AND 2 ARE MINORS REPRESENTED BY THEIR MOTHER AND NATURAL GUARDIAN SMT. NANDA V NAYKA, W/O SRI VASUDEV AGED ABOUT 44 YEARS.
BOTH ARE RESIDING AT NO.14, OLD NO.174, 18TH CROSS, MRCR MARENAHALLI, OLD NO.35, BANGALORE.
… RESPONDENTS (BY SRI. N R NAIK, ADVOCATE FOR R1 & R2) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 14.03.2018 PASSED BY THE HON’BKE CITY CIVIL JUDGE I.E. ANNEXURE-A IN O.S.NO.4867 OF 2015 ON THE FILE OF THE HON’BLE ADDL. CITY CIVIL JUDGE AT BANGALORE (CCH-18) THAT IS I.A.NO.14.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioners being the defendants in an ejectment suit in O.S.No.4867/2015 are invoking the writ jurisdiction of this Court for assailing the order dated 14.03.2018, a copy whereof is at Annexure-A whereby the learned XXIX Additional City Civil Judge, Bengaluru, has rejected their application filed under Sections 33 & 34 of the Karnataka Stamp Act, 1957, for the purpose of impounding the subject document for payment of deficit stamp duty with ten times of the penalty. After service of notice, the respondent-plaintiffs having entered appearance through their counsel, resist the writ petitions.
2. Having heard the learned counsel for the parties and having perused the writ petition papers, this Court declines to grant indulgence in the matter for the following reasons:
(a) Chapter IV of the Karnataka Stamp Act, 1957 speaks of impounding of documetns and levying of deficit stamp duty with ten time penalty; the consistent view of this Court and of the Apex Court is that once a document is admitted to evidence, sans objections the question of its dutiability or deficit stamping shall not be called in question vide SMT.S AVITHRAMMA R.C. Vs. M/S VIJAYA BANK & ANOTHER, ILR 2015 KAR 1984; relevant portion of para no.6 therein reads as under:
“…If duty and penalty is not paid, the document shall not be admitted in evidence. If such an objection is not taken at the time of admitting the said instrument in evidence, and the insufficiently stamped document is admitted in evidence then Section 35 of the Act provides that such admission shall not be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped...”
b) the reliance by the petitioner on the case of MISS. SANDRA LESLEY ANNA BARTELS Vs. MISS P.
GUNAVATHY, ILR 2013 KAR 368, Division Bench is misplaced inasmuch as, para 12 which is pressed into service does not lay down any proposition that even after a document is admitted to evidence, the Court which has recorded the evidence can reopen the issue as to dutiability of an instrument the Division Bench was only concerned as to whether a document which is not duly stamped is required to be impounded even before it was tendered in evidence; that impounding is one thing and levy of deficit stamp duty with penalty is another; the former is contemplated by Section 33 and the later is envisaged by Section 34; the Court made it clear that the judges cannot defer impounding of unduly stamped document on the ground that it is yet to be tendered in evidence; the ratio laid down in the said decision is irrelevant for adjudication of this matter.
In the above circumstances, these writ petitions being devoid of merits, are dismissed.
All contentions of the parties are kept open. No costs.
Sd/- JUDGE Bsv