Sri C Manohar Vs Sri S Meganathan

SRI C RAMAMURTHY S/O LATE CHINNAPPA AGED ABOUT 69 YEARS RESIDING AT NO 10 SUBBNNA SEVANAGAR POST BENGALURU 560003 ALSO AT LAKSHI GIRIDARI TEMPLE ISCON, KACHARAKANAHALLI HRBR LAYOUT, BHARATHI NAGAR BENGALURU - 560 084.

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SMT. MALAR W/O THE LATE MARI AGED AOUT 45 YEARS RESIDING AT NO 33/2 BOW CHERRY NEHRUPURAM SEPPINGS ROAD CROSS NEHRUPURAM, BENGALURU 560001.

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…RESPONDENTS

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(BY SRI NIVEDITHA PRAKASH, ADV, FOR R-1 & R-2;

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R-3 & R-4 SERVED & UNREPRESENTED)

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THIS W.P. FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD.15.4.2021 ON IA FILED U/S 151 OF CPC PASSED IN O.S.NO.912/2019 BY THE LEARNED LXIV ADDL CITY CIVIL AND SESSIONS JUDGE )CCH-65) AT BENGALURU CITY VIDE ANENXURE-L.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN B GROUP THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

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ORAL ORDER

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Defendants nos.2 and 3 are before this Court in the

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writ petition filed under Article 227 of the Constitution of India with a prayer to set aside the order dated 15.04.2021 passed

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on the interlocutory application filed under Section 151 of CPC in O.S.No.912 of 2016 by the Court of LXIV Additional City Civil & Sessions Judge, Bengaluru.

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Heard the learned counsel for the petitioners.

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Suit in O.S.No.912 of 2016 is filed before the

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jurisdiction civil Court by respondent nos.1 and 2 herein seeking the relief of partition and separate possession of the suit schedule properties and to declare the Release Deed as well as the Sale Deed executed by defendant no.1 and 2 as not binding on the plaintiffs. In the said suit, defendants nos.1 to 3 had filed written statement opposing the suit claim. IA under Section 151 of CPC was filed by defendant nos.1 and 3 seeking permission of the Court to permit the defendants to pay stamp duty and penalty in respect of Site No.38 which they had purchased. The said application was opposed by the plaintiffs and the trial Court by the order impugned has rejected the said application. Aggrieved by the same, defendants nos.2 and 3 are before this Court.

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In the present case, defendant Nos.1 and 3 have

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filed application under Section 151 of CPC and have voluntarily come forward to pay the applicable stamp duty and penalty in respect of the Site No.38 allegedly purchased by them from their vendor.

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The Hon'ble Supreme Court in the case of

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SEETHARAMA SHETTY V MONAPPA SHETTY - (2024) SCC

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ONLINE SC 2320 in paragraph Nos.21.1.1, 21.1, 21.4, 21.5 and 21.6 has observed as follows:

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21.1.1. The person who intends to rely on an insufficiently/improperly stamped instrument has option to submit to the scope of Section 34 of the Act, pay duty and penalty. The party also has the option to directly move an application under Section 39 of the Act before the District Registrar and have the deficit stamp duty and the penalty as may be imposed collected. In either of the cases, after the deficit stamp duty and the penalty are paid, the impounding effected under Section 35 of the Act is released and the instrument available to the party for relying as evidence. In the event, a party prefers to have the document sent to the deputy commissioner for collecting the deficit stamp duty and penalty, the Court/Every Person has no option except to send the document to the District Registrar. The caveat to the above is that, before the Court/Every Person

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exercises the jurisdiction under Section 34 of the Act, the option must be exercised by a party.

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21.1. Section 33 of the Act is titled examination and impounding of instruments. The object of the provision is to disable persons from withdrawing the instruments produced by them on being told that proper stamp duty and penalty should be paid .

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21.4. Section 37 of the Act is titled instruments impounded, how dealt with. This Section arises when the party pays the deficit duty and penalty, the Court is to impound the instrument under Section 33 of the Act and has to forward the instrument to the Deputy Commissioner/District Registrar. Subsection (2) of Section 37 of the Act deals with cases not falling under Section 34 and 36, and the person impounding an instrument shall send it in original to the Deputy Commissioner. This includes the exigencies set out in paragraph 21.1.1.

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21.5. Being a regulatory and remedial statute, a party who follows the regulation, and pays the stamp duty and penalty, as per Sections 34 or 39 of the Act, the legal objection emanating from Section 33 of the Act alone is effaced and the document is admitted in evidence. In other words, the objection under the Stamp Act is no more available to a contesting party.

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21.6. Section 39 of the Act is titled deputy commissioner's power to stamp instruments impounded. This Section provides the procedure to be followed by the Deputy Commissioner/District Registrar while stamping instruments that are impounded under Section

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33 of the Act. As per Section 39(1)(b) of the Act, the penalty may extend to ten times the stamp duty payable; however, ten times is the farthest limit which is meant only for very extreme situations. Therefore, the Deputy Commissioner/District Registrar has discretion to levy and collect commensurate penalty .

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From a reading of the aforesaid, it is apparent that

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when a party volunteers before the Court or any other competent authority to pay the deficit stamp duty and penalty applicable on the instrument which is insufficiently stamped, the Court or the Competent Authority has no other option but to refer the document to the jurisdictional District Registrar.

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Even in a case where the Court or Competent Authority impounds an instrument under Section 33 of the Act, the same

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is required to be forwarded to the Deputy Commissioner /District Registrar for collecting the deficit stamp duty and penalty.

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In the case on hand, the trial Court had earlier impounded the instrument and had directed the registry to calculate duty and penalty payable on the impounded documents. It is in this background the prayer made by the

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defendants in their application filed under Section 151 of CPC has been rejected by the trial.

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In my considered opinion, in view of the Judgment

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of the Hon'ble Supreme Court in the case of SEETHARAMA SHETTY (supra) the documents which are impounded in the present case by the trial Court vide the order dated 04.12.2019 were required to be forwarded to the jurisdictional Deputy Commissioner / District Registrar for the purpose of collecting deficit stamp duty and penalty applicable and the Registry could not have been directed to calculate the deficit stamp duty and penalty payable on the impounded document. Therefore, the trial court was not justified in rejecting the application filed by the petitioners under Section 151 of CPC.

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Accordingly 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 dated 15.04.2021 passed on the application filed under Section 151 of CPC in O.S.No.912 of 2016 by the LXIV Additional City Civil & Sessions Judge, Bengaluru is set aside.

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(iii) The trial Court is directed to forward the documents impounded by it by order dated 04.12.2019 passed in O.S.No.912 of 2016 to the jurisdictional Deputy Commissioner / District Registrar for the purpose of determining and collecting applicable deficit stamp duty and penalty on the impounded documents.

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Pending IAs' do not survive for consideration and accordingly the same are disposed of.

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Sd/(S VISHWAJITH SHETTY) JUDGE

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NMS

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List No.: 1 Sl No.: 37

Sri C Manohar v. Sri S Meganathan

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Sri C Manohar v. Sri S Meganathan

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