Partly allowed

S K Krishna v. Sri Venkatesh Raju

Karnataka HC16 Dec 2021WP/16241/2019

Case brief

AI extract

What is this about?

Petitioner sought to quash an order impounding a document for insufficient stamp duty pending a specific performance suit. Court dismissed petition, holding the order had no infirmity, but allowed petitioner to pay duty and approach the Stamp Act quasi-judicial authority.

What did the court decide?

Petition disposed of. Petitioner allowed to pay deficit stamp duty and penalty and approach the concerned authority under Section 38 of the Stamp Act.

S K Krishna Vs Sri Venkatesh Raju — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF DECEMBER 2021

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BEFORE

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THE HON’BLE MR. JUSTICE B. M. SHYAM PRASAD

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WRIT PETITION NO.16241/2019 (GM-CPC)

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BETWEEN:

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S.K. KRISHNA, S/O LATE KARIGOWDA, AGED ABOUT 48 YEARS, R/AT SOGALA VILLAGE, VIRUPAKSHIPUR HOBLI, CHANNAPATNA TALUK, RAMANAGAR-562 138.

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... PETITIONER

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(BY SRI VIJAYAKUMAR BHAT A., ADVOCATE)

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AND:

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SRI VENKATESH RAJU, S/O ANKEGOWDA, AGED ABOUT 52 YEARS, R/AT NO.4, 2^ND CROSS, JYOTHINAGARA, NAGARABHAVI ROAD, BENGALURU-560 072. ... RESPONDENT

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(BY SRI P.D. SURANA, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH/SET ASIDE THE ORDER DATED 03.11.2018 IN O.S.NO.7498/2014 ON THE FILE OF THE CITY CIVIL JUDGE, BENGALURU (CCH-28) WHICH IS PRODUCED AT ANNEXURE – F TO THE WRIT PETITION.

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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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O R D E R

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The petitioner is the plaintiff in O.S.No.7498/2014 on the file of the XIV Additional City Civil Judge, Bengaluru (for short, ‘the civil Court' ). The petitioner has impugned the civil Court's order dated 03.11.2018. The civil Court by this order has impounded the document dated 27.01.2007 produced by the plaintiff directing the office to calculate the deficit stamp duty and the penalty. The office, in fact, has calculated the deficit stamp duty in a sum of Rs.1,12,000/- and penalty in a sum of Rs.11,19,000/-.

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The petitioner has filed the suit in

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O.S.No.7498/2014 for specific performance of the agreement dated 02.07.2011 asserting that such agreement is executed by the respondent in his favour for transfer of the immovable property described in the plaint schedule. According to the petitioner, he has

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paid a total sum of Rs.15,00,000/- as part of the total agreed consideration and, as requested by the respondent, a sum of Rs.14,00,000/- out of this amount of Rs.15,00,000/- is paid to Sri K.P. Mruthunjaya in whose favour the respondent had mortgaged the subject property. Sri K.P. Mruthunjaya has, on the deed dated 27.01.2007 between himself and the respondent, endorsed the receipt of Rs.14,00,000/- and interest in a sum of Rs.1,00,000/- on 18.01.2013. However, this deed dated 27.01.2007 is drawn on Rs.100/- and is not registered.

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The civil Court after elaborate reference to

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the different decisions and the provisions of the Karnataka Stamp Act, 1957 [for short, ‘ the Stamp Act’ ] has opined that this document dated 27.01.2007 (styled a Mortgage Deed) is indeed a mortgage deed and therefore, the petitioner must pay the deficit stamp duty and also the penalty. Sri Vijaya Kumar Bhat A., the learned counsel for the petitioner, relying upon the

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provisions of Section 4 of Stamp Act, submits that the document dated 27.01.2007 and the sale agreement dated 02.07.2011 are part of the sale transaction and therefore the stamp duty payable on the sale agreement, being the principal document would suffice.

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Alternatively, Sri Vijaya Kumar Bhat A.,

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submits that the petitioner’s suit is for specific performance and the document dated 27.01.2007 is produced only to establish an acknowledgment that is endorsed on the document. The civil Court could not have opined that even if the petitioner confines the reliance on this document just to the acknowledgment, the document is insufficiently stamped.

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On the other hand, Sri P.D. Surana, the

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learned counsel for the respondent, relying upon the decision of the Hon'ble Supreme Court in the case of ' M/s. Dharmaratnakara Rai Bahadur Arcot Narainswamy Mudaliar Chattram and other Charities

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and others v. M/s. Bhaskar Raju and Brothers and others' reported in 2020 (4) KCCR 2473 and also the decision of this Court in the case of ' M. Suryanarayana Kalkura and others v. Navaneetha Lokesh Puthran' reported in 2020 (3) KCCR 1727, submits the question of admissibility of the document dated 27.01.2007 must necessarily be considered after the payment of the stamp duty and the penalty when it is undisputed that such document is a mortgaged deed.

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Indeed, the learned counsel for the petitioner does not dispute that the document dated 27.01.2007 is a mortgage deed; in which event, the appropriate stamp duty had to be necessarily paid on this deed. The argument that this deed is a part of the sale transaction because of the part of the agreed consideration is paid to the mortgagee cannot be accepted when it is undisputed that when the mortgage was created in the month of January 2007, the sale of the property in favour of the petitioner was not even under

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contemplation by the respondent. Further, the deed cannot be said to be admissible notwithstanding the deficit stamp only because it contains an acknowledgement of receipt of certain amount when it is undisputed that it is a mortgage deed.

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This Court in the light of foregoing, is not persuaded to opine that the impugned order suffers from any infirmity, but the petition must be disposed of observing that the petitioner, upon paying the deficit stamp duty and the penalty, and consequent to the civil Court’s further action under Section 37 of the Stamp Act, must be at liberty to invoke the discretionary jurisdiction of the concerned under Section 38 of the Stamp Act.

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The petition stands disposed of accordingly.

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Sd/JUDGE

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S K Krishna v. Sri Venkatesh Raju

Case brief

What is this about?

What did the court decide?

S K Krishna v. Sri Venkatesh Raju

Case brief

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