Allowed

Shri Vijaykumar S/O Ninganagouda Patil v. Shri Mohammadkamil S/O Abdulrauf Bukhari

Karnataka HC10 Oct 2023WP/102391/2023

Case brief

AI extract

What is this about?

The High Court allowed a writ petition quashing a lower court order that refused to impound an insufficiently stamped General Power of Attorney. Relying on Section 33 of the Karnataka Stamp Act, the Court held that the power to impound is mandatory upon notice of inadequate stamp duty and cannot be delayed pending tender of evidence.

What did the court decide?

The impugned order refusing to impound the General Power of Attorney was set aside and the learned Judge directed to take appropriate steps.

Shri Vijaykumar S/O Ninganagouda Patil Vs Shri… — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC-D:12046 WP No. 102391 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 10^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM

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WRIT PETITION NO. 102391 OF 2023 (GM-CPC)

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BETWEEN:

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SHRI VIJAYKUMAR S/O. NINGANAGOUDA PATIL, AGE: 51 YEARS, OCC: AGRICULTURE, R/O: PLOT NO. 136, SECTOR NO. 2, SHIVA BASAVA NAGAR, BELAGAVI-10.

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…PETITIONER

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(BY SRI VISHWANATH P. ALLANNAVAR, ADV. FOR SRI DINESH M. KULKARNI, ADV.)

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AND:

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SHRI MOHAMMADKAMIL S/O. ABDULRAUF BUKHARI, AGE: 48 YEARS, OCC: AGRICULTURE, R/O: SHIVAGANGA APARTMENT, SUBHASH NAGAR, BELAGAVI-590 016.

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MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR

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SHRI PRADEEP S/O. SHIVAJIRAO VARUTE, AGE: 36 YEARS, OCC: AGRICULTURE, R/O: H.NO. 513, 4^TH CROSS, VIJAYA NAGAR, HINDALGA, BELAGAVI-591 108.

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SHRI ARUN S. KONNUR, AGE: 65 YEARS, OCC: AGRICULTURE, R/O: 187/18, GURUKRUPA, VIVEKANANDA NAGAR, 2^ND CROSS, GOKAK, TQ: GOKAK, DIST: BELAGAVI-591 307.

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SHRI PRASAD S/O. ARUN KONNUR, AGE: 32 YEARS, OCC: AGRICULTURE, R/O: 187/18, GURUKRUPA, VIVEKANANDA NAGAR, 2^ND CROSS, GOKAK, TQ: GOKAK, DIST: BELAGAVI-591 307.

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2 - NC: 2023:KHC-D:12046 WP No. 102391 of 2023

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SMT. AMRUTA W/O. GURUNATH MEWUNDI, AGE: 34 YEARS, OCC: AGRCULTURE, R/O: 187/18, GURUKRUPA, VIVEKANANDA NAGAR, 2^ND CROSS, GOKAK, TQ: GOKAK, DIST: BELAGAVI-591 307.

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SHRI RAGHUNATH S/O. BALAKRISHNA SOUNDALGEKAR, AGE: 71 YEARS, OCC: AGRICULTURE, R/O: FLAT NO. 1/2, HIMALI APARTMENT, ERANDWANE, NEAR MEHANDALE GARAGE, PUNE, MAHARASHTRA-411 004.

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SHRI VIJAY S/O. DADASAHEB PATIL, AGE: 51 YEARS, OCC: AGRICULTURE, R/O: CTS. NO. 751, SAMADEVI APARTMENT, NARVEKAR GALLI, SHAHAPUR, BELAGAVI-590 003.

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SMT. MANJIRI W/O. RAJAN NAIK, AGE: 69 YEARS, OCC: AGRICULTURE, R/O: 5, OMKAR, SANT DNYANESHWAR SOCIETY, SANT NAGAR, BELAGAVI-125 075.

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…RESPONDENTS (BY SRI GIRISH A. YADAWAD, ADV. FOR R1; SRI KIRANKUMAR S. CHATTIMATH, ADV. FOR R3 TO R6; SRI SANGRAM S. KULKARNI, ADV. FOR R7; NOTICE TO R2 IS SERVED)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI TO QUASH THE IMPUGNED COMMON ORDER ON I.A.NOS.III AND VII, IN O.S.NO.104/2019, VIDE ANNEXURE-K DATED 29/01/2022 PASSED BY THE LEARNED II ADDITIONAL SENIOR CIVIL JUDGE, BELAGAVI, AS NULL AND VOID; TO ALLOW THE I.A.NO.III FILED BY THE DEFENDANT NOS.5 AND 6 AS PRAYED FOR BY IMPOUNDING THE GPA DATED 06/08/2018 VIDE ANNEXURE-A FOR PAYMENT OF DEFICIT STAMP DUTY AND PENALTY.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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3 - NC: 2023:KHC-D:12046 WP No. 102391 of 2023

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ORDER

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Captioned petition is filed by defendants 5 and 6 assailing the order of the learned Judge passed on I.A.No.III filed under Section 33 and 34 of the Karnataka Stamp Act (for short “the Act”) wherein the present petitioners/defendants are praying for impounding of irrevocable General Power of Attorney on the ground that it is insufficiently stamped in view of Article 41 (eb) of the Act. The learned Judge has rejected the application.

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Respondent No.1-plaintiff has instituted a suit through GPA-Respondent No.2 seeking the relief of declaration and injunction. Present defendants raised objection that the GPA is insufficiently stamped and the same being in contravention of Article 41(eb) of the Act, is liable to be impounded. The learned Judge has rejected the application on the ground that respondent No.1-Plaintiff has revoked the GPA and is not relying on the said document.

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The entire procedure adopted by the learned

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Judge while passing the impugned order runs contrary to the law laid down by the Division Bench of this Court in the case

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4 - NC: 2023:KHC-D:12046 WP No. 102391 of 2023

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of Miss. Sandra lesly Annabartlets v. Miss. P.Gunavathy¹ . It would be useful to cull out paragraphs 11

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and 12 of the judgment, which reads as under:

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“11. There are two different circumstances under the Stamp Act for impounding a document; (1) the Court has power to impound the document, moment it appears to the Court that such instrument is not duly stamped and (2) or to wait till such document is tendered in the evidence. A combined reading of Sections 33 and 34 clearly reveal that a discretion is granted to the Court either to impound the document under Section 33 before the same is tendered in evidence and even if a document is not impounded under Section 33, the Court is bound to impound the document when the same is tendered in the evidence under Section 34. In other words, the Court cannot say that it will wait till the document is tendered in the evidence. It is only an option given to Court to exercise the power under Section 33 & 34 but the difference between Sections 33 and 34 is that, Section 34 can be enforced by a Court when a document has to be received in the evidence but Section 33 can be invoked not only by the Court, but, by every person in-charge of a public office. A person in-charge of a public office has no

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1 ILR 2013 KAR 368

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5 - NC: 2023:KHC-D:12046 WP No. 102391 of 2023

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power to exercise the power vested under Section 34 of the Act.

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Court cannot say that it would impound the document only when the document is tendered in evidence for marking. There may be instances where duty and penalty payable may be very high and the party may not choose to rely upon such insufficiently stamped document in order to avoid stamp duty and penalty. In such circumstances, it would result in loss of revenue to the exchequer. The power of impounding a document is to collect stamp duty and penalty whenever there is an escape of duty. Therefore, when it is brought to the notice of the Court that a document is insufficiently stamped, the Court exercising its power under Section 33 of the Act has to pass an order at the first instance for impounding the document. Though there is a discretion vested in the Court to exercise powers under Sections 33 and 34 of the Act, no Court can hold that it would wait till the document is tendered in evidence. In such circumstances, there may be chances of loss of revenue to the exchequer.”

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On reading the above culled out paragraphs, this Court is of the view that the impugned order runs contrary to the dictum laid down by the Division Bench on the issue

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raised in the captioned petition. The controversy relating to impounding the document is no longer res-integra and same is given quietus by this Court in catena judgments rendered by this Court. Conjoint reading of Section 33 and 34 of the Act clearly impose a duty on the Court to forthwith impound the document even if it is not tendered in evidence under Section 34 of the Act. What emerges from the records is that the Court need not wait till party relies on the document, which is already placed on record while tendering oral evidence. Therefore, I am of the view that the Court below erred in not impounding the document dehors application filed seeking discharge of the agency. Therefore, the order under challenge suffers from very serious perversity and the same is not sustainable. For the reasons stated supra, I pass the following:

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ORDER

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i) The writ petition is allowed.

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ii) The impugned order at Annexure-K is hereby set aside.

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7 - NC: 2023:KHC-D:12046 WP No. 102391 of 2023

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iii) Learned Judge shall take appropriate steps by taking note of the judgment rendered by the Division Bench of this Court cited supra.

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iv) In view of disposal of the petition, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly.

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Sd/JUDGE

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YAN List No.: 1 Sl No.: 10

Shri Vijaykumar S/O Ninganagouda Patil v. Shri Mohammadkamil S/O Abdulrauf Bukhari

Case brief

What is this about?

What did the court decide?

Shri Vijaykumar S/O Ninganagouda Patil v. Shri Mohammadkamil S/O Abdulrauf Bukhari

Case brief

What is this about?

What did the court decide?

What the court decided

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