Partly allowed

Smt. Krishnavati Sharma v. Sri. Bhagwandas Sharma

Karnataka HC29 Oct 2024WP/7879/2024

Case brief

AI extract

What is this about?

Writ petition challenging impugned order rejecting applications to object to marking of documents and to impound them for stamp duty. Court allowed petition partly, holding trial court erred in rejecting applications on Stamp Act application; confirmed rejection on Order XIII Rule 3 application.

What did the court decide?

Impugned order rejecting application under Order XIII Rule 8 of CPC and Section 34 of Stamp Act set aside; application allowed in part; plaintiffs directed to pay stamp duty but exempt from penalty.

Smt. Krishnavati Sharma Vs Sri. Bhagwandas Sharma — Execution and Attachment | Karnataka HC (2024)

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1 - NC: 2024:KHC:43752 WP No. 7879 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^TH DAY OF OCTOBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 7879 OF 2024 (GM-CPC)

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BETWEEN:

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SMT. KRISHNAVATI SHARMA W/O LATE SRI. G.D. SHARMA, AGED ABOUT 80 YEARS, RESIDING AT: NO.50, 673/1, CENTURY PARK LAYOUT, VASANTH MAHAL ROAD, NAZARBAD MOHALLA, MYSORE-570010 REP. BY HER GPA HOLDER, SRI. KRISHNA KUMAR SHARMA

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…PETITIONER

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(BY SMT. JYOTHI BHAT, ADVOCATE FOR SRI. VIJAY NARAYAN, ADVOCATE)

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AND:

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SRI. BHAGWANDAS SHARMA AGED ABOUT 54 YEARS, S/O LATE SRI G.D. SHARMA, Digitally signed by FLAT NO.C-4, III FLOOR, SUMA RUSTUMJI APARTMENTS, NO.30, Location: NORRIS ROAD, RICHMOND TOWN, HIGH COURT OF BANGALORE-560025. KARNATAKA

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M/S LARSEN AND TURBO 1^ST FLOOR, NO.10/1, LAKSHMINARAYANA COMPLEX, VASANTHNAGAR, BANGALORE-560052 REPRESENTED BY ITS MANAGING DIRECTOR

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M/S DEVLOK TOURIST COTTAGE PVT. LTD. NEAR S.B.M. WEIGH BRIDGE, BANGALORE-MYSORE ROAD,

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MYSORE, REPRESENTED BY ITS MANAGING DIRECTOR, SRI KISHANKUMAR SHARMA, S/O LATE G D SHARMA

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SRI KRISHNAPPA AGED ABOUT 58 YEARS, S/O PEDDANNA, C/O ADARSHA EDUCATIONAL COMPLEX, SITE NO.3, 12^TH CROSS, 1^ST BLOCK, R.T. NAGAR, BANGALORE-560032.

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SRI K. ASHOK KUMAR RAI S/O LATE SANJEEVA RAI, AGED ABOUT 36 YEARS, RESIDING AT NO.13/10, NEW SAYAJI RAO ROAD, BAMBOO BAZAR, MYSORE.

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M/S COLOMBIA ASIA HOSPITAL PVT. LTD., NO.2021, 3^RD FLOOR, SALARPURIA PALLADIUM, 100 FEET ROAD, HAL H STAGE, INDIRANAGAR, BANGALORE-560 038 REPRESENTED BY ITS MANAGING DIRECTOR

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…RESPONDENTS

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(BY SRI. P.D. SURANA, ADVOCATE FOR RESPONDENT NO.1; NOTICE NOT ORDERED IN RESPECT OF RESPONDENT NOS.2 TO 6)

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI SETTING ASIDE THE IMPUGNED ORDER DATED 23.02.2024 (VIDE ANNEXURE-A) PASSED BY THE HONORABLE LXVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-69), BENGALURU, IN UNNUMBERED IAs IN O.S NO.5735/2008 FILED UNDER ORDER 13 RULE 3 OF CPC AND ORDER 13 RULE 8 OF CPC AND ETC.

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THIS PETITION, COMING ON FOR DICTATING ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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3 - NC: 2024:KHC:43752 WP No. 7879 of 2024

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CORAM: HON'BLE MR JUSTICE R. NATARAJ

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ORAL ORDER

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The defendant No.1 in O.S No.5735/2008 on the file of the LXVIII Additional City Civil and Sessions Judge, Bengaluru City (henceforth referred to as 'the Trial Court'), has filed this petition challenging an order dated 23.02.2024 by which it rejected two applications filed by her and defendant Nos.2 and 3, one under Order XIII Rule 8 of the Code of Civil Procedure, 1908 (for short, 'CPC') and Section 34 of the Karnataka Stamp Act, 1957 (for short, 'the Stamp Act') read with Section 151 of CPC and the other under Order XIII Rule 3 read with Section 151 of CPC.

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2(i). The suit in O.S No.5735/2008 was filed for partition and separate possession of the plaintiffs' 1/6^th share each over the suit schedule 'A', 'B' and 'C' properties. The petitioner was the defendant No.1 while the respondent No.1 was the plaintiff No.1 and respondent Nos.2 to 6 were defendant Nos.4 to 8 respectively, in the said suit.

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(ii) The plaintiff No.1 adduced evidence and at the time

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of marking of documents, the defendant Nos.1 to 3 objected

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marking a few. They filed an application (I.A No.11) under Order XIII Rule 3 read with Section 151 of CPC to reject marking of irrelevant and inadmissible documents furnished by the plaintiff No.1. They also filed an application (I.A. No.12) under Order XIII Rule 8 of CPC and Section 34 of the Stamp Act read with Section 151 of CPC to impound the documents tendered by the plaintiff No.1 in his evidence and to collect proper duty and penalty.

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(iii) In I.A. No.11, the defendant No.2 on his behalf and on behalf of defendant Nos.1 and 3 claimed that the plaintiff No.1 had produced:(i) acknowledgment issued by the Registrar of Firms, Shivajinagar Registration District, Bengaluru, relating to the Firm of M/s.Krishnavathi and Co.; (ii) true copy of partnership deed dated 01.04.1978; (iii) certified copy of lease deed dated 12.03.1984; (iv) certified copy of a letter dated 04.05.1985 addressed by the partners of M/s.Krishnavathi and Co. to Indian Overseas Bank about dissolution of the Firm and other correspondence between the partners; (v) photocopy of Will dated 19.03.1990 of Smt. Kesara Devi; and (vi) certified copy of Will of Smt.Kesara Devi. The defendant No.2 claimed

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that these documents were not secondary evidence as they were merely photocopies and hence, could not be marked.

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(iv) In I.A. No.12, the defendant No.2 on his behalf and on behalf of defendant Nos.1 and 3, contended that (i) copy of the dissolution deed dated 01.05.1985 of M/s.Krishnavathi and Co. was not a certified copy as defined under Rules 235 and 236 of the Karnataka Civil Rules of Practice, 1967. It was alleged that a photocopy of the dissolution deed was produced in a civil suit which was withdrawn. Later, certified copy of the photocopy of the said deed produced in that suit was obtained. Therefore, it was contended that this document could not be marked but had to be impounded as it was not registered and stamp duty as prescribed under Article 40C of the Schedule to the Stamp Act was not paid.

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During the pendency of the applications, the plaintiff No.1 filed Miscellaneous Petition in Misc. No.438/2019 before the Principal City Civil and Sessions Judge, Bengaluru, to club O.S. No.5735/2008, O.S No.254/2009, O.S No.4344/2012 and O.S No.7187/2018 and O.S No.633/2018. The Court of the Principal City Civil and Sessions Judge in terms of the order

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dated 05.01.2021, allowed the said Miscellaneous Petition in part. The plaintiff No.1 challenged it before this Court in C.R.P No.49/2021. A coordinate Bench of this Court passed an order on 03.09.2021 modifying the aforesaid order dated 05.01.2021 passed in Miscellaneous Petition and directed that O.S No.5735/2008 which was then pending on the file of CCH-45 be withdrawn from the said Court and transferred to CCH-69, where other suits were transferred by the Trial Court and it was further directed that common evidence shall be recorded by the Trial Court in all the suits and separate judgments shall be passed in each of the suits.

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The Trial Court passed an order dated 11.01.2023 rejecting I.A. Nos.11 and 12 filed by the defendant Nos.1 to 3 stating that when the plaintiffs filed I.A. No.10 under Order VII Rule 14 of CPC., along with some documents, the defendants did not raise any objection and the Trial Court had allowed the said application and posted the case for further evidence of the plaintiffs. It held that the question whether the documents relied upon by the plaintiffs were certified copies or photocopies had to be decided at the time of marking them. The Trial Court held that the grounds urged by the defendants in I.A. Nos.11

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and 12 were untenable as the plaintiffs had furnished certified copies of the documents issued by the competent authority and reserved the right to the defendants to question the legality of the documents at the time of marking them.

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Later, when the plaintiff No.1 tried to mark the documents mentioned above, the defendant Nos.1 to 3 filed the instant applications under Order XIII Rule 3 read with Section 151 of CPC and Order XIII Rule 8 of CPC and Section 34 of the Stamp Act read with Section 151 of CPC. The Trial Court purportedly did not assign any number to the applications. The plaintiffs filed objections to these applications which are marked as Annexure 'K' in the writ petition. In the said applications, the defendant No.2 on his behalf and on behalf of defendant Nos.1 and 3, contended that the Trial Court without going into the merits of the applications, rejected the same on the ground that similar applications (I.A. Nos.11 and 12) filed earlier by the defendant Nos.1 to 3 were considered on merits and rejected. Therefore, it held that the two applications filed by the defendant Nos.1 to 3 were not maintainable and rejected them by the impugned order.

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Being aggrieved by the said order, the defendant

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No.1 has filed this petition.

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Learned counsel for the petitioner / defendant No.1 contended that the Trial Court committed an error in rejecting the applications in limine without referring to the observations made by it in the order dated 11.01.2023. She contended that even if an unstamped document is marked in evidence, the Court does not loose jurisdiction to collect appropriate duty and penalty. She contended that the Trial Court committed an error in marking an unstamped and unregistered document even after objections were raised by the defendant Nos.1 to 3 and did not even record or consider the objections so raised. She contends that the power to verify whether a document is duly stamped or not, and whether a document sought to be marked is compulsorily registerable or not, is upon the Trial Court which it should exercise at the time of marking a document. She contends that the Trial Court should have been more alert when an objection was raised by the defendant Nos.1 to 3 regarding the admissibility of the documents. She contends that the dissolution deed dated 01.05.1985, which was sought to be marked by the plaintiff No.1/respondent No.1

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was a photocopy and therefore, could not be marked in evidence unless the procedure prescribed under Section 65 of the Indian Evidence Act, 1872 is complied. She further contends that the lease agreements sought to be marked by the plaintiff No.1 were inadmissible in evidence as proper stamp duty was not paid thereon. She, therefore, contends that the Trial Court ought to have exercised jurisdiction to collect duty and penalty payable on the lease deed dated 19.01.2008 (Ex.P14) and lease agreement dated 15.02.2008 (Ex.P15). She contended that the Trial Court ought to have decided the objections raised by defendant Nos.1 to 3 against admitting the documents without postponing it. In support of this contention, she relied upon the judgment of the Hon'ble Apex Court in the case of Shalimar Chemical Works Limited v. Surendra Oil and Dal Mills (Refineries) and Others [(2010) 8 SCC 423] . She also relied upon the judgment of a Division Bench of this Court in J.S. Paramesh Siddegowda v. Smt. Indramma V. Murthy [AIR 2008 Kar 172] and judgment of a coordinate Bench of this Court in Suman v. Vinayaka and Others [(2014) 1 Kant LJ 575] and judgment of a coordinate Bench of this Court in Ahmed Bawa v. Smt. Ms.Lalitha Alias

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Lalitha B. and Others [2014 SCC Online Kar 12539]. She invited the attention of this Court to the judgment of the Hon'ble Apex Court in Seetharama Shetty v. Monappa

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Shetty [[2024] 9 SCR 166] regarding the procedure to be adopted while dealing with an inadmissible document. She contends that Section 35 of the Stamp Act is applicable only when the Court had applied its mind to the document and it does not loose jurisdiction to recover stamp duty. In this regard, she also relied upon the judgment of the Hon'ble Apex Court in G.M. Shahul Hameed v. Jayanthi R. Hegde [ (2024) 7 SCC 719] .

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Per contra, the learned counsel for the respondent No.1/plaintiff No.1 contended that the dissolution deed dated 01.05.1985 marked as Ex.P4 is not compulsorily registerable. He contends that the defendant No.1 had admitted the execution of the dissolution deed and therefore, there was no error committed by the Trial Court in marking it as an exhibit. In support of this contention, he relied upon the evidence of Sri Kishan Kumar Sharma, the son and general power of attorney holder of the defendant No.1/petitioner herein, in O.S. No.254/2009 regarding the dissolution deed dated 01.05.1985

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and contended that this document was admitted by the GPA holder of the defendant No.1. In so far as the lease deed dated 19.01.2008 (Ex.P14) and lease agreement dated 15.02.2008 (Ex.P15), he contended that once the documents are marked, the same cannot be questioned or reconsidered on the ground that sufficient stamp duty is not paid on the documents. In support of this contention, he relied upon a judgment of a coordinate bench of this Court in the case of Anil S/o Ramachandra Mashalkar v. Babu S/o Hasansab Kadakol and Anr [2023 (1) Kar. L.R 239] .

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I have considered the contentions of the learned counsel for the defendant No.1 as well as the learned counsel for the plaintiff No.1.

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The defendant No.1 along with defendant Nos.2 and 3 had filed the applications in question following the order dated 11.01.2023 passed by the Trial Court. Therefore, it was incumbent upon the Trial Court to consider the applications in the light of the contentions urged therein. No doubt the dissolution deed dated 01.05.1985 which is marked as Ex.P4 was a document entered into between the plaintiffs and

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defendant Nos.1 to 3 amongst others. The defendant No.1 was not able to point out to any provision of law which required that such dissolution of a partnership should be registered. A perusal of the dissolution deed dated 01.05.1985 does not show that the property/ies of the partnership was/were divested from one partner and invested in the other. Besides this, the dissolution deed was executed on 01.05.1985 at which point of time, there was no provision in law which required registration. This apart, the execution of the dissolution deed was admitted by the GPA holder of defendant No.1, in his evidence in O.S. No.254/2009. Since the original of the dissolution deed was not marked, it was for the plaintiff No.1 to prove the contents of the dissolution deed. Therefore, there is no error committed by the Trial Court in marking the dissolution deed dated 01.05.1985 as Ex.P4.

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In so far as the lease deed - Ex.P14 is concerned, the same was entered into between the plaintiff No.1 and Indian Overseas Bank on 19.01.2008 for a period exceeding 11 months and therefore, it had to be compulsorily registered and stamp duty had to be paid. Likewise, the lease agreement dated 15.02.2008 (Ex.P15) was executed by Sri Umesh Kumar

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Sharma/plaintiff No.2, who is the brother of the defendant No.2, in favour of M/s.Grey Worldwide (India) Private Limited to which the defendant No.1 was not a party. This lease agreement was for a term exceeding 11 months and therefore, had to be compulsorily registered.

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As per section 30(b) of the Karnataka Stamp Act, 1957 in respect of a lease agreement unless there is an agreement to the contrary, the stamp duty is payable by the lessee. However, it is the plaintiff No.1 who has produced the said documents and therefore, he is bound to make good the duty payable on the said documents and recover it from the lessee. Even after payment of duty, the document does not become admissible as the same is not registered as required under Section 17 of the Registration Act, 1908. As far as penalty is concerned, since the plaintiff No.1 was not responsible for payment of stamp duty it is inequitable to compel him to pay the penalty. Therefore, the plaintiff No.1 is not liable to pay the penalty on the lease deed dated 19.01.2008.

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In so far as Ex.P.15 is concerned, having regard to the fact that the plaintiff No.2 was a party to the lease agreement dated 15.02.2008, he cannot escape the consequences of Sections 33 and 34 of the Stamp Act. He is bound to pay the stamp duty payable and recover the same from the lessee in accordance with law, even if document is already marked in evidence. In this regard, it is profitable to refer to the judgment of a coordinate Bench of this Court in Sri Zafarulla Khan v. Smt. R.K. Sujatha and others [W.P. No.47225/2016 decided on 29.08.2023] where reliance was placed on the judgment rendered by Constitution Bench of the Hon'ble Apex Court in M/s.N.N.Global Mercantile Private Limited v. Indo Unique Flame Limited and others [(2023) 7 SCC 1] , to hold that the Court does not loose jurisdiction to collect duty and penalty after a document is marked.

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The provision contained in Section 35 of the Stamp Act disallows questioning a document already marked on the ground that sufficient duty is not paid. However, Section 35 inheres that the Court while marking such a document should apply its mind and decide whether the document is sufficiently stamped. It is only then that a party is prevented from

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questioning the admissibility of that document on the ground that proper duty is not paid thereon. In this regard, it is profitable to refer to the judgment of the Hon'ble Apex Court in

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G.M.Shahul Hameed (supra) where it was held as follows:

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"18. … For section 35 to come into operation, the instrument must have been "admitted in evidence" upon a judicial determination. The words "judicial determination" have to be read into section 35. Once there is such a determination, whether the determination is right or wrong cannot be examined except in the manner ordained by section 35. However, in a case of "no judicial determination", section 35 is not attracted."

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In the present case, the Trial Court did not apply its mind at the time of marking the lease deed dated 19.01.2008 and lease agreement dated 15.02.2008 and therefore, the plaintiffs cannot take shelter under Section 35 of the Stamp Act to avoid payment of stamp duty and penalty. Hence, the following:

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ORDER

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i). The Writ Petition is allowed in part.

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ii). The impugned order dated 23.02.2024 passed by the LXVIII Additional City Civil and Sessions Judge, Bengaluru, rejecting the

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application filed by the defendant Nos.1 to 3 under Order XIII Rule 3 read with Section 151 of the Code of Civil Procedure, 1908 in O.S. No.5735/2008 is confirmed. However , the impugned order passed by the Trial Court on the application filed by the defendant No.1 to 3 under order XIII Rule 8 of CPC and Section 34 of the Karnataka Stamp Act, 1957 read with Section 151 of CPC is set aside and the said application is allowed in part . The plaintiff Nos.1 and 2 are directed to pay stamp duty payable on the lease deed dated 19.01.2008 and lease agreement dated 15.02.2008. However, they are exempt from payment of any penalty. It is open for the plaintiff Nos.1 and 2 to recover the stamp duty from the lessee in accordance with law.

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In view of disposal of this petition, the pending I.As. do

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not survive for consideration and the same stands disposed off.

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Sd/(R. NATARAJ) JUDGE

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List No.: 1 Sl No.: 50

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sma

Smt. Krishnavati Sharma v. Sri. Bhagwandas Sharma

Case brief

What is this about?

What did the court decide?

Smt. Krishnavati Sharma v. Sri. Bhagwandas Sharma

Case brief

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What did the court decide?

What the court decided

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