Partly allowed

K.R. Roopa v. S.R.Sharada

Karnataka HC11 Apr 2023WP/16968/2018

Case brief

AI extract

What is this about?

Writ petitioner, a plaintiff, challenged civil court orders imposing deficit stamp duty and penalty without hearing her on the delivery of partial property possession. The High Court allowed the petition in part, quashing orders passed without opportunity to respond, and restored the stamp duty issue for reconsideration.

What did the court decide?

Impugned orders dated 07.10.2017 and 13.03.2018 quashed. Question of payment of sufficient stamp duty restored for independent reconsideration.

K.R. Roopa Vs S.R.Sharada — Landlord and Tenant | Karnataka HC (2023)

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WP No. 16968 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF APRIL, 2023

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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. 16968 OF 2018 (GM-CPC)

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BETWEEN:

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K.R. ROOPA W/O. K.V. RAMESH, AGED ABOUT 43 YEARS, R/O. NEMOJI LAYOUT, BASAVESHWARANAGAR, SHIVAMOGGA CITY - 577201.

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…PETITIONER

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(BY SRI. P N HARISH.,ADVOCATE)

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AND:

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Digitally signed by NARASIMHA MURTHY VANAMALA Location: HIGH COURT OF KARNATAKA

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S.R.SHARADA AGED ABOUT 63 YEARS, R/O. INFRONT OF C.S. HOSPITAL, L.L.R. ROAD, SHIVAMOGGA CITY - 577201.

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(BY SRI. SHOWRI H R .,ADVOCATE)

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…RESPONDENT

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDERS DATED 28.08.2017, 07.10.2017 AND THE ORDER DATED 13.03.2018 ON THE APPLICATION FILED BY THE PETITIONER DATED 08.12.2017 PASSED BY I ADDITIONAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE,

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WP No. 16968 of 2018

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SHIVAMOGGA, IN O.S.NO.55/2016 PRODUCED AT ANNNEXURE-G AND J.

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THIS 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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This petition is by the plaintiff in

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O.S.No.55/2016 on the file of the I Additional Senior

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Civil Judge and CJM, Shivamogga [for short, 'the civil Court ']. The petitioner has impugned the civil Court's orders dated 28.08.2017, 07.10.2017 and 13.03.2018. The civil Court by the order dated 28.08.2017 has directed its office to calculate the

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stamp duty payable by the petitioner on the document dated 25.02.2014 and pursuant to such order, a reference is made to the office of the jurisdictional District Registrar.

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Next, the civil Court by its order dated 07.10.2017, has directed the petitioner to comply with the District Registrar's report which requires the petitioner to pay a sum of Rs.37,26,625/- as deficit stamp duty and penalty payable on such agreement.

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WP No. 16968 of 2018

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The civil Court by the subsequent order dated 13.03.2018 has rejected the petitioner's application under Section 151 of the Code of Civil Procedure for review of its order dated 07.10.2017.

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The petitioner has filed the aforesaid suit in O.S.No.55/2016 for specific performance of the agreement dated 09.10.2013 with the prayer for direction to the respondent to execute the sale deed for the subject property in performance of the agreement dated 09.10.2013 upon receiving balance consideration of Rs.54,98,000/-. This agreement dated 9.10.2013 is executed by the respondent for transfer of the subject property for a total value of Rs.75,00,000/-. Admittedly, there is no delivery of possession of the subject property, or any portion thereof in performance of this agreement with the execution thereof.

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However, according to the petitioner, the respondent has executed further agreement dated

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WP No. 16968 of 2018

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25.02.2014 under which there is an acknowledgment of receipt of certain further consideration as advance and an acknowledgment that a portion of the subject property measuring 12’x60' feet is delivered to the petitioner. The civil Court has impounded both these documents and has referred to the Deputy Registrar for opinion on valuation. The District Registrar has opined that the first agreement is undervalued by a sum of Rs.6,500/- and as such, this amount has to be repaid along with penalty at the rate of ten times thereof. The petitioner has paid such amount.

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Insofar as the further agreement dated 25.02.2014, the District Registrar vide report dated 10.03.2017 has opined that this agreement is sufficiently stamped. The respondent, after this report, has filed a memo for impounding the aforesaid document and to pay deficit stamp duty and penalty on the ground that the District Registrar has not considered the endorsement as regards delivery of

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WP No. 16968 of 2018

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possession of a portion of the subject property. Consequentially, the civil Court has passed the order dated 28.08.2017, resulting in the District Registrar's report which requires the petitioner to pay, in terms of the civil Court's next order dated 07.10.2017, a sum of Rs.37,26,625/- as deficit stamp duty and penalty payable on the further agreement.

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The civil Court by its order dated

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13.03.2018 has rejected the application for review of

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its earlier order on the ground that such order does not suffer from any error apparent after detailing the circumstances in which the order dated 07.10.2017 is passed. The civil Court has observed that the petitioner cannot take advantage of the earlier report by the District Registrar in view of the fact that such report did not consider that possession of the subject property was delivered in part performance of the agreement.

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6 - WP No. 16968 of 2018

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Sri P.Naresh, the learned counsel for the petitioner, submits that the petitioner is aggrieved by the order dated 28.08.2017 because the order is on a memo without even an opportunity to the petitioner to respond against the request for impounding notwithstanding the Deputy Registrar's report dated 10.03.2017. If appropriate opportunity was granted, the petitioner could have demonstrated that even in the best-case scenario for the respondent, the petitioner's liability to pay towards deficit stamp duty and penalty would be only on the value of that portion of the subject property which is handed over in part performance.

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It transpires from the records that the petitioner is not extended opportunity to respond to the request for an order on impounding the further agreement dated 25.02.2014, and this failure shows an error that would justify this Court's interference. If the first agreement viz ., dated 9.10.2013 did not

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WP No. 16968 of 2018

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contemplate delivery of possession of any portion of the subject property in part performance and because of certain circumstances in the next agreement dated 25.02.2014, possession of a part of the subject property is delivered, before the petitioner could be called upon to pay deficit stamp duty and penalty as required under Chapter IV of the Karnataka Stamp Act, 1958, the civil Court ought to have examined, after due opportunity to the petitioner, whether the petitioner's liability to pay deficit stamp duty and penalty should be confined to the value of actual extent of the property that is delivered and any reasoning post the decision to comply with the District Registrar's report would be a decision for justification. Hence, the following:

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ORDER

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The petition is allowed in part and the

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civil Court's impugned order dated 07.10.2017 and 13.03.2018 are quashed. The question of payment of sufficient stamp

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WP No. 16968 of 2018

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duty on the further agreement dated 25.02.2014 is restored for reconsideration and such reconsideration shall be independent of any observation in the civil Court's order dated 13.03.2018.

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Sd/JUDGE

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ct:sr

K.R. Roopa v. S.R.Sharada

Case brief

What is this about?

What did the court decide?

K.R. Roopa v. S.R.Sharada

Case brief

What is this about?

What did the court decide?

What the court decided

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