Smt S L Anurani Vs B M Veerabhadrappa

THIS W.P. IS FILED UNDER ARTILCE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER DTD.23.3.2018 PASSE DIN O.S.NO.203/2015 ON THE FILE OF C/C.PRL.CIVIL JUDGE AND JMFC AT HOSADURGA AT ANENXURE-H.

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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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Plaintiff is before this Court in this writ petition filed under Article 227 of the Constitution of India with a prayer to set aside the order dated 23.03.2018 passed on IA no.5 filed under Section 33 of the Karnataka Stamp Act, 1957 (for short, 'the Act'), in O.S.No.203/2015 by the Court of Prl. Civil Judge & JMFC, Hosadurga.

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Heard the learned Counsel for the parties.

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Petitioner has filed O.S.No.203/2015 before the jurisdictional Civil Court at Hosadurga, with a prayer to direct the defendant to repay the amount of Rs.1,50,000/- with interest paid under the Agreement for Sale dated 14.08.2006 and also has sought for a relief of permanent injunction in respect of the suit schedule property. The contesting defendants have opposed the prayer made in the suit by filing detailed written statement.

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IA no.5 was filed in O.S.No.203/2015 by the plaintiff under Section 33 of the Act read with Section 151 of CPC with a prayer to refer the agreement for sale dated 14.08.2006 to the District Registrar, Chitradurga, for the purpose of collecting deficit stamp duty and applicable penalty on the said document. The prayer made in IA no.5 was opposed by defendants by filing objections. The Trial Court vide the order impugned has rejected the said application and being aggrieved by the same, the plaintiff is before this Court.

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Learned Counsel for the petitioner submits that petitioner has volunteered before the Trial Court to refer the instrument which is insufficiently stamped to the competent authority for

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the purpose of payment of deficit stamp duty and applicable

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penalty. Section 34 of the Act, provides for the same. He submits that whenever the said provision of law is invoked, the Court has no other option but to refer the document to the competent authority for the purpose of collecting the deficit stamp duty and penalty. In support of his arguments, he has placed reliance on the judgment of the Hon'ble Supreme Court

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in the case of SEETHARAMA SHETTY VS MONAPPA SHETTY -

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AIR 2024 SC 5327 .

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Per contra, learned Counsel for the respondent has opposed the prayer made in the writ petition and submits, that the Trial Court was justified in rejecting the application which was filed under Section 33 of the Act. The said provision of law clearly provides that whenever an instrument which is insufficiently stamped comes before the Court or any competent authority, as provided under the said provision of law, the Court or the competent authority is duty bound to impound the instrument. Accordingly, he prays to dismiss the petition.

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HC-KAR

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According to the petitioner who is the plaintiff in O.S.No.203/2015, agreement for sale in respect of the suit schedule property was executed by the defendants in his favour after receiving the advance sale consideration of Rs.1,50,000/and the total sale consideration under the agreement was Rs.1,83,000/-. The suit is now filed with a prayer to direct the defendants to pay the amount of Rs.1,50,000/- collected by them towards advance sale consideration under the aforesaid sale agreement dated 14.08.2006.

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IA no.5 was filed by the plaintiff before the Trial Court invoking Section 33 of the Act with a prayer to refer the aforesaid agreement for sale to the competent authority under the Act for the purpose of collecting the deficit stamp duty and applicable penalty on the instrument. The Trial Court having referred to Section 33 of the Act, has rejected the application on the ground that the said provision of law only empowers the Court to impound the document and not to refer the document to District Registrar for the purpose of determination of deficit stamp duty and penalty. The Trial Court has failed to consider that the plaintiff has invoked Section 33 of the Act instead of

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invoking Section 34 of the Act for the relief which was sought for by him in IA no.5. Mere quoting wrong provision of law cannot be a reason to reject the prayer made in the application.

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The Hon'ble Supreme Court in Seetharama Shetty's case supra, after having referred to Sections 33, 34, 35, 37 & 39 of the Act, in paragraph no.21 has summed up the steps to be followed by the courts and authorities concerned who exercise powers under Sections 33, 34, 35, 37 & 39 of Act. In paragraph nos.21.1 & 21.1.1, it is observed by the Hon'ble Supreme Court as under:

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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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21.1.1. 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

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

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From a reading of the aforesaid paragraph, it is apparent that whenever a party who intends to rely on an insufficiently stamped instrument, makes a request to the Court to refer the document to the competent authority for the purpose of collecting deficit stamp duty and penalty, the Court or the concerned authority before whom such a request is made, has no other option but to send the document to the competent authority for the purpose of collecting deficit stamp duty and penalty. It is made very clear that the said option must be exercised by a party and the Court on its own cannot exercise such power, and on the other hand, if the document otherwise comes before the Court, then the Court is required to exercise its powers under Section 33 of the Act.

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HC-KAR

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In the case of hand, since the petitioner had opted to

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refer the document to the competent authority for collecting deficit stamp duty and applicable penalty, the Trial Court ought to have granted the prayer made in IA no.3, and therefore, the order impugned cannot be sustained.

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Perusal of the order sheet of the Trial Court would go to show that after rejecting IA no.5, the Trial Court has suo motu exercised powers under Section 33 of the Act and has directed the plaintiff to pay deficit stamp duty as well as penalty on the same day. Since the order impugned passed by the Trial Court is unsustainable and the prayer made by the petitioner in IA no.5 is required to be granted, the subsequent order passed by the Trial Court on the very same day exercising its powers under Section 33 of the Act also needs to be set aside. Accordingly, the following order:

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The writ petition is allowed. The order dated 23.03.2018 passed on IA no.5 in O.S.No.203/2015 by the Court of Prl. Civil Judge & JMFC, Hosadurga, is set aside, and the prayer made in

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the said application is granted. Consequently, the suo motu order made by the Trial Court on 23.03.2018 in exercise of its

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