Allowed

Chandrahas S/O. Ekanath Dhumal v. Rekha W/O. Shankar Madekar

Karnataka HC6 Mar 2019WP/104638/2014

Case brief

AI extract

What is this about?

This High Court of Karnataka allowed a writ petition under Articles 226 and 227 of the Constitution, quashing an order that rejected an application for determining stamp duty on an impounded document. The Court held that the lower appellate court failed to notice that Section 37 mandates calculating and determining duty before rejecting the application, necessitating remand.

What did the court decide?

The writ petition is allowed; the impugned order dated 26.07.2013 is set aside; I.A.No.1 is remitted back to the Lower Appellate Court for reconsideration.

Chandrahas S/O. Ekanath Dhumal Vs Rekha… — Civil Procedure and Limitation | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 06^TH DAY OF MARCH, 2019

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BEFORE

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THE HON’BLE MR. JUSTICE G. NARENDAR WRIT PETITION NO.104638 OF 2014 (GM-CPC)

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BETWEEN

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CHANDRAHAS S/O. EKANATH DHUMAL AGE: 54 YEARS, OCC: AGRICULTURE & SERVICE, R/O. VIDYANAGAR, NIPANI – 591 237, TQ: CHIKODI, DIST: BELGAUM

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... PETITIONER

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(BY SRI. RAVI S BALIKAI, ADVOCATE)

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AND

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REKHA W/O. SHANKAR MADEKAR, AGE: 50 YEARS, OCC: HOUSEHOLD WORK R/O. SAMBHAJI NAGAR, NIPANI – 591 237, TQ: CHIKODI, DIST: BELGAUM

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SACHIN S/O. SHANKAR MADEKAR AGE: 27 YEARS, OCC: BUSINESS R/O. C/O. SHRI BHARAMAL, BEHIND GANESH TEMPLE, MAHADEV GALLI, NIPANI – 591 237,

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TQ: CHIKODI, DIST: BELGAUM

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SMT. SAVITA W/O. SUDHIR MANE, AGE: 23 YEARS, OCC: HOUSEHOLD WORK R/O. LAYAKAT GALLI, ICHALKARANJI – 416 231, TQ: HATHKANAGALE, DIST:KOLHAPUR

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JAYAPRAKASH S/O. SHIVAJI SAWANT, AGE: 36 YEARS, OCC: AGRICULTURE R/O. SANKESHWAR – 591 313, TQ: HUKERI, DIST: BELGAUM.

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... RESPONDENTS

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(BY SRI. M. G. NAGANURI, ADV., FOR R4; R2- NOTICE SERVED; R3- SERVICE HELD SUFFICIENT; R1 – SERVICE COMPLETED)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 26.07.2013 PASSED BY THE LEARNED VII ADDL. DISTRICT AND SESSIONS JUDGE, BELGAUM AT CHIKODI, PASSED ON I.A NO.1, PASSED IN R.A NO.299/2011 PRODUCED AS ANNEXURE-A, BY ISSUING A WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT OR ORDER, AND THE I.A NO.1 BE ALLOWED AS PRAYED FOR.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP , THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Heard the learned counsel Sri. R. S. Balikai and the learned counsel Sri. M. G. Naganuri.

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The petitioner is the appellant in R.A.No.299/2011 and in the said appeal, he had preferred I.A.No.1 under Section 37 and 38 of the Karnataka Stamp Act, 1957 praying that Ex.P1 be forwarded to the District Registrar, Belagavi to determine the duty and penalty. The case of the petitioner is that the document was impounded by the Trial Court on 03.02.2004 with the Trial Court quoting as under:-

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“Sale agreement is admissible if the deficit stamp duty is paid as per law. If in the same paid.”

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Thereafter, on 22.10.2005, the Trial Court

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passed the following order:-

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“Order is passed with deposition of P.W.1 for collection of duty and penalty Call on 26.11.2005”

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Further, by the said order, the Court had directed that the agreement, Ex.P.1, dated 18.05.2001 be sent to the office of the Deputy Commissioner, Belagavi to impound and act as per the provisions of Section 34 of the Karnataka Stamp Act.

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It is fairly admitted by both the learned counsels that though such an order was made, the document, Ex.P.1, was not forwarded to the Deputy Commissioner and that in the meanwhile the suit itself came to be dismissed on merits. Aggrieved, the petitioner/plaintiff has preferred the above Regular Appeal No.299/2011 and in the said appeal, he has preferred instant I.A.No.1.

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The Lower Appellate Court after observing earlier orders, concluded that an opportunity had been granted to the petitioner by the Trial Court, which opportunity the petitioner has failed to avail off and with

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the said observation, the Lower Appellate Court was pleased to reject the I.A.No.1.

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On bare perusal, it is seen that the Lower

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Appellate Court has not adverted to the earlier orders and has probably misread and misunderstood the scope and ambit of the provisions of the Karnataka Stamp Act.

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On a bare reading of Section 37 of the Karnataka Stamp Act, it is apparent that a duty is cast on the Court or the Authority, which impounds the document to forward it to the Deputy Commissioner. Sub-section 1 mandates that in the event the party, liable to pay the deficit duty and consequential penalty volunteers to pay, the same shall be recorded by the Court and the document shall be forwarded to the Deputy Commissioner along with a certificate with regard to duty and penalty to be collected.

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The performance of the mandate under subsection 1 requires to be preceded by another Act by the

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Court itself, which is required to determine the duty and penalty and thereafter record the same and forward it to the Deputy Commissioner along with it’s certificate. In the event the party disagrees, sub-section 2 provides that the person so impounding the instrument shall send it in original to the Deputy Commissioner. Thus, the requirement of law was that the duty and penalty payable had to be calculated.

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In the instant case, no such exercise of calculating the duty and penalty has been carried out. In that view of the matter, the order impugned is contrary to the provisions of section 37 of the Karnataka Stamp Act and accordingly the same warrants interference. Accordingly, the writ petition is allowed.

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The order impugned vide Annexure-A, dated 26.07.2013 passed by the Court of the VII Additional District and Sessions Judge, Belagavi at Chikkodi, is set

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aside and I.A.No.1 in R.A.No.299/2011 is remitted back to the Lower Appellate Court for reconsideration.

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In the light of the above observations, writ

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petition stands ordered accordingly.

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Sd/JUDGE

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yan

Chandrahas S/O. Ekanath Dhumal v. Rekha W/O. Shankar Madekar

Case brief

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Chandrahas S/O. Ekanath Dhumal v. Rekha W/O. Shankar Madekar

Case brief

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What did the court decide?

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