Dismissed

Sri N Nanjappa v. Sri Byrappa

Karnataka HC6 Jan 2023RSA/1587/2022

Case brief

AI extract

What is this about?

High Court of Karnataka (R.S.A. No.1587/2022) dismissed the appellant's revision appeal challenging the dismissal of a suit for recovery of enhanced stamp duty. The court held that since the impleadment application was filed shortly before a statutory amendment increasing stamp duty, and was pending adjudication for years without being deemed frivolous by lower courts, the defendant was not liable

What did the court decide?

None; appeal dismissed.

Sri N Nanjappa Vs Sri Byrappa — Civil Procedure and Limitation | Karnataka HC (2023)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6^TH DAY OF JANUARY, 2023

¶3

BEFORE

¶4

THE HON'BLE MR. JUSTICE H.P. SANDESH

¶5

R.S.A.NO.1587/2022 (MON)

¶6

BETWEEN:

¶7

SRI N. NANJAPPA, S/O LATE N. NARAYANAPPA, AGED ABOUT 66 YEARS, R/AT NO.72, N.N. FARM, GEDDALAHALLI VILLAGE, RMV 2^ND STAGE, BENGALURU – 560094.

¶8

...APPELLANT

¶9

(BY SRI RAJESWARA P.N., ADVOCATE)

¶10

AND:

¶11

SRI BYRAPPA, SINCE DIED BY LRS.

¶12

SMT. GOWRAMMA, W/O LATE BYRAPPA, AGED ABOUT 78 YEARS.

¶13

SRI SRINIVASA, S/O LATE BYRAPPA, AGED ABOUT 58 YEARS.

¶14

SRI BALASUBRAMANYA, S/O LATE BYRAPPA, AGED ABOUT 53 YEARS.

¶15

¶16

4. SRI SHANTHAKUMAR, S/O LATE BYRAPPA, AGED ABOUT 48 YEARS.

¶17

ALL ARE R/AT NO.113/6, OLD MADRAS ROAD, OPPOSITE KARNATAKA BANK LTD., ULSOOR, BENGALURU – 560058.

¶18

...RESPONDENTS

¶19

THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 18.04.2022 PASSED IN RA.No.1/2019 ON THE FILE OF THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHIKKABALLAPURA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 23.11.2018 PASSED IN OS No.79/2012 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, CHICKBALLAPUR.

¶20

THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶21

J U D G M E N T

¶22

This matter is listed for admission today. Heard the learned counsel for the appellant.

¶23

This appeal is filed challenging the judgment and decree dated 18.04.2022, passed in R.A.No.1/2019, on the file of the III Additional District and Sessions Judge, Chikkaballapura.

¶24

The factual matrix of the case of the

¶25

plaintiff/appellant before the Trial Court in O.S.No.79/2012 is

¶26

¶27

that he had filed an Execution Case No.170/2006 against the judgment-debtor one Narayanappa S/o Late Avalappa on the basis of the judgment and decree passed in O.S.No.67/1994 filed for specific performance of contract on the file of the Senior Civil Judge Court, Chickballapur. It is the contention of the plaintiff before the Trial Court that in the said Execution Case No.170/2006, the plaintiff had filed the draft sale deed on 19.07.2008 and the said sale deed was verified and found correct by the office of the Court as per the order sheet dated 26.08.2008. On 20.03.2009, the said sale deed was prepared and the said execution case stood posted for “Say of NBK”, the plaintiff’s counsel in the said execution case. The defendant filed an application under Order 1 Rule 10 of CPC seeking his impleadment as 2^nd JDR in the said execution case which was rejected on 25.06.2010. From 20.03.2009, the date of filing of the impleading application, till the date of disposal of the impleading application, the Court could not order the execution of the said sale deed prepared and readied on 20.03.2009 for registration. In the meanwhile, the amendment was brought into and the registration cost is also increased. As a result, he

¶28

¶29

had suffered loss to the tune of Rs.9,13,935/- and hence the suit was filed for the recovery of the money.

¶30

The defendant in pursuance of the suit summons

¶31

appeared and filed the written statement contending that the suit is not maintainable and suit is barred by limitation and the relief sought for by the plaintiff in the suit cannot be granted and the relief is not permissible under the provision of law. It is contended that the defendant is not a party to R.F.A.No.1062/2002 and he was not aware about the nature of judgment and decree passed by the Hon’ble High Court. It is further contended that the defendant filed O.S.No.460/2007 for declaration and the said suit is still pending for consideration before the Court. In the said suit, the defendant had filed an application for stay of the execution proceedings and the said application is still pending. As the plaintiff has not arraigned this defendant as a party to the execution proceedings, the defendant was constrained to file an application for impleading in Execution No.170/2006. He also filed an application under Order 21 Rule 99 of CPC. For the delay in legal proceedings, this defendant is not liable to pay any amount to the plaintiff, much

¶32

¶33

less the suit amount. Hence, contended that suit itself is not maintainable.

¶34

Based on the pleadings, the Trial Court framed the

¶35

following issues:

¶36

1. Whether the plaintiff proves that, the defendant is liable to pay sum of Rs.9,13,935/as defendant has attributed filing frivolous and vexatious impleading application thereby caused damage or loss of said sum of the plaintiff?

¶37

2. Whether the defendant is liable to pay the interest at the rate of 2% per month of the said sum?

¶38

3. Whether the suit is barred by time?

¶39

4. Whether the suit is bad for non-joinder of necessary parties?

¶40

5. Whether the plaintiff is entitled for the relief as claimed?

¶41

6. What order or decree?

¶42

The plaintiff examined himself as P.W.1 and got

¶43

marked the documents at Exs.P.1 to 32. On the other hand, the

¶44

¶45

defendant did not examine any witnesses and also not marked any documents. The Trial Court on considering both oral and documentary evidence placed on record, dismissed the suit in coming to the conclusion that there was delay on the part of the plaintiff in getting the sale deed executed and the execution petition was pending from 2006 and was not inclined to grant any relief in favour of the plaintiff. Hence, an appeal was filed by the plaintiff/appellant in R.A.No.1/2009. The Appellate Court on re-appreciation of the material available on record, dismissed the appeal in coming to the conclusion that the Trial Court has not committed any error in dismissing the suit and assigned the reasons in paragraph No.28 in coming to the conclusion that no illegality is committed by the Trial Court in dismissing the suit. Hence, the present appeal is filed before this Court.

¶46

The learned counsel for the appellant would vehemently contend that impleading application was filed on 20.03.2009 and with regard to the payment of stamp duty is concerned, an amendment was brought into on 01.04.2009. As a result, the plaintiff/appellant has to suffer the payment of stamp duty of Rs.9,13,935/- and the same is on account of the conduct of the defendant, who is not having any interest in

¶47

¶48

respect of the issue involved between the parties. The learned counsel would contend that the appellant is entitled for the amount which he has paid as increased stamp duty of Rs.9,13,935/-. Both the Courts failed to notice that the suit was maintainable as contemplated under Section 35A(4) of CPC, where amounts of any compensation awarded under Section 35A as compensatory cost in respect of false and vexatious are defence should be taken into consideration any subsequent suit for damages or compensation in respect of in such claim of defence and the same is ignored by the Trial Court as well as the Appellate Court. Hence, it requires interference of this Court.

¶49

Having heard the learned counsel for the appellant and also on perusal of the grounds urged in the appeal memo and also material available on record, it is not in dispute that the plaintiff/appellant had filed a suit for specific performance and the same was decreed for money decree in his favour and he had challenged the same in R.F.A. and in R.F.A. suit is decreed for specific performance, consequently he has filed an execution petition before the Trial Court in Execution Case No.170/2006. Having perused the material on record, execution petition was pending from 2006 and the impleading application was filed on

¶50

¶51

20.03.2009, almost after three years invoking Order 1 Rule 10 of CPC for impleadment and amendment was brought into force on 01.04.2009 within a span of ten days of filing of application. The material also discloses that draft sale deed was filed in the year 2008 and the same was approved by the Trial Court, but when the matter was listed on 20.03.2009, an application was filed and amendment was brought into on 01.04.2009 enhancing the stamp duty for registration. As a result, he was forced to pay the excess stamp duty of Rs.9,13,935/-. The Trial Court after considering both oral and documentary evidence placed on record, in paragraph No.14 of the judgment elaborately discussed with regard to the judgment and decree passed for specific performance and thereafter filing of execution petition. The Trial Court did not grant the relief of specific performance and alternatively ordered to pay the earnest money and the same is questioned by the appellant/plaintiff before this Court and this Court reversed the same and ordered for specific performance in 2006. Immediately execution petition was filed in 2006. The Trial Court in detail discussed in paragraph No.14 that the execution petition was pending from 2006 and on 13.03.2009 Execution Court passed an order directing the office

¶52

¶53

to prepare the sale deed and at that juncture, an application was filed by the defendant seeking an order of impleadment and within a span of ten days of filing of the said application, an amendment was brought into enhancing the stamp duty and ultimately the impleading application was dismissed on 25.06.2010 and while dismissing the application for impleadment, no cost is imposed against the impleading applicant. Apart from that, the Trial Court also taken note of the date of filing of the application and also amendment and in paragraph No.14 held that there was a delay on the part of the plaintiff himself in getting the sale deed executed though execution was filed in 2006 and hence came to the conclusion that the defendant cannot be responsible to pay the difference amount of stamp duty which has been paid subsequent upon the amendment brought into force.

¶54

The Appellate Court also on re-appreciation of both oral and documentary evidence placed on record and also considering the material available on record, framed an issue with regard to whether the defendant is liable to pay a sum of Rs.9,13,935/- as defendant has attributed to filing of frivolous and vexatious application thereby caused damage or loss of said

¶55

¶56

sum to the plaintiff. The Appellate Court in paragraph No.28 of its judgment taken note of the application filed under Order 1 Rule 10 of CPC and I.A.No.4 filed under Order 21 Rule 99 read with Section 151 of CPC whether it constitutes the abuse of process of Court resulting in extra payment of stamp duty and registration fee by the appellant. Whether the defendant is liable to pay the said amount. The Appellate Court taking note of recovery of deficit stamp duty and deficit registration fee of Rs.9,13,935/- only because he had filed an application for impleading him as a party to the execution petition cannot be a reason for passing the order to direct the defendant to pay the amount and there is no any illegality in filing such an application on the part of the defendant. Only because the said application was rejected with an observation that his remedy is against his vendor, it cannot be said that the defendant is responsible for payment of deficit of stamp duty and registration fee as claimed by the plaintiff and hence dismissed the appeal.

¶57

Having taken note of the reasons assigned by the Trial Court, the application was filed on 20.03.2009 and within a span of ten days, an amendment was brought into enhancing the stamp duty and application was disposed of on 25.06.2010.

¶58

¶59

Within a span of ten days an amendment was brought into that is an act of the State enhancing the stamp duty and application was also filed just prior to ten days of the said amendment. When such being the case, there was a delay on the part of the plaintiff in getting the sale deed executed. Even though execution petition was filed in 2006, the plaintiff did not obtain the sale deed and there was a delay on the part of the plaintiff in getting the sale deed and even after filing of the draft sale deed in 2008, after filing of the sale deed also there was a delay on the part of the plaintiff in getting the sale deed. The First Appellate Court on re-appreciation of the material comes to the conclusion that filing of an application for impleading is with regard to the right which he has claimed and the said application was rejected and for that reason it cannot be held the defendant is responsible to pay the difference amount of stamp duty and I hence do not find any illegality committed by the Trial Court and the First Appellate Court in dismissing the appeal and reasons are given by both the Courts.

¶60

The learned counsel for the appellant submits that

¶61

when the application is filed on 20.03.2009 for impleading, within three days an advancement application is filed before the

¶62

¶63

Trial Court to consider the said application since there is a revision of stamp duty and the same is not considered and the same was opposed by the impleading applicant. The said aspect also has to be taken note of. No doubt, an application is filed on 20.03.2009 for impleadment and the learned counsel brought to the notice of this Court that within three days he has filed an application for advancement of the case, but the case was not taken up for consideration and the same was considered after considering the objection filed by the other side and ultimately the application was dismissed on 25.06.2010 and the State has taken a decision to revise the rate of stamp duty and that also taken place within ten days of filing of such an application. Hence, the defendant cannot be responsible for making of payment of stamp duty and the stamp duty is paid in accordance with law on account of enhancement of stamp duty made by the Government for revising the stamp duty on the market value of the property.

¶64

The other contention of the learned counsel for the appellant is that under Section 35A of CPC, cost can be imposed, if any frivolous application is filed. No doubt, an application was filed at the instance of the defendant, but it is contended that

¶65

¶66

frivolous litigation is raised, but while rejecting the application under Order 1 Rule 10 of CPC by the Trial Court, no such cost is imposed in coming to the conclusion that the same is frivolous application. When such being the material on record, only for the reason that ten days prior to the amendment, an application is filed for impleading, the Court cannot grant any relief of money decree in respect of amount which was paid by the plaintiff towards the registration of the document i.e., in respect of stamp duty paid by the plaintiff for having registered the document in his favour and the same is paid consequent upon the amendment. It is also an admitted fact that the matter was pending before the Court for longer period for the relief of specific performance and consequent upon the disposal of the case, an execution petition was filed and the execution petition was pending from 2006 and amendment brought in within ten days of an application is filed and the defendant claimed his right in the said application and the same is adjudicated and if long time is taken for adjudication and in the meanwhile amendment was brought in force, there would have been force in the argument and the application was pending for consideration and not yet filed objections to the said application and non taking of

¶67

¶68

the matter by the Courts immediately as contended, the defendant is not responsible for the same. I do not find any reasons to invoke Section 100 of CPC to frame substantial question of law when there is no perversity on the part of the Trial Court and the Appellate Court in dismissing the suit and applied judicial mind and passed reasoned judgment.

¶69

In view of the discussions made above, I pass the

¶70

following:

¶71

ORDER

¶72

The appeal is dismissed.

¶73

Consequently, I.A.No.1/2022 for condonation of delay is

¶74

dismissed.

¶75

Sd/JUDGE

¶76

Sri N Nanjappa v. Sri Byrappa

Case brief

What is this about?

What did the court decide?

Sri N Nanjappa v. Sri Byrappa

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

G Jeevanraj Vs Balasubramanya

L R Gangadharaiah Vs Kolluramma

Mr. Hariram Shenoy Vs P Kamala Padiyar

Sri K M Manjunath Vs Smt Vijayalakshmi

G.P.Venkatanarasimhaiah Vs Nagaraju

Vinod @ Bulli Vs State of Karnataka