Akbar Ali Khan Vs Hussain Bi @ Bibijan

HUSSAIN BI @ BIBIJAN, AGED ABOUT 97 YEARS, S/O LATE ABDUL KHADAR, R/AT NO.131, MANJUNATHA NAGARA, TAVAREKERE, NELAMANGALA TALUK, BENGALURU RURAL-562 122.

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(R-1 HAD DIED, AND AS PER COURT ORDER VIDE DATED 11.01.2023 R-2 TO 4 ARE TREATED AS LEGAL REPRESENTATIVES OF R-1)

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RAHAMATH UNNISA, AGED ABOUT 56 YEARS, S/O LATE ABDUL KHADAR, R/AT NO 131, MANJUNATHA NAGARA, TAVAREKERE, NELAMANGALA TALUK, BENGALURU RURAL-562 122.

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HC-KAR

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NADIRA,

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AGED ABOUT 46 YEARS, S/O LATE ABDUL KHADAR, R/AT NO 321, 3^RD CROSS, ANNASANDRAPALYA, HAL POST, BENGALURU-560 017.

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T M MUNEER PASHA, AGED ABOUT 51 YEARS, S/O ABDUL KHADAR, R/AT NO 131, MANJUNATHA NAGARA, TAVAREKERE, NELAMANGALA TALUK, BENGALURU RURAL-562 122.

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STATE OF KARNATAKA, REP. BY ITS PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, ROOM NO.317, 3^RD FLOOR, VIDHANA SOUDHA, BENGALURU-560 001. (AMENDED AS PER COURT ORDER DATED 20.08.2024)

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…RESPONDENTS

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(BY SMT. ZULFI SULTANA, ADVOCATE FOR R-2 TO R-4; SMT. RADHA RAMASWAMY, AGA FOR R-5)

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THIS WP IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 23.01.2023 AT ANNEXURE-D IN O.S.NO.55/2019 AND DIRECTION MAY BE ISSUE TO CONSIDER AFRESH IN THE LIGHT OF RATION LAID DOWN BY THE ORDER THIS HON'BLE COURT IN WP NO.112448/2017 DATED 15.12.2022 AT ANNEXURE-G AND ALTERNATIVELY ETC.

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

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

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ORAL ORDER

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This writ petition under Article 227 of the Constitution of

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India is filed seeking for the following reliefs:-

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1. "To set aside the order dated 23/01/2023 at ANNEXURE D in O.S No. 55/2019 and direction may be issue to consider afresh in the light of ration laid Dated down by the order this Hon'ble court in WP no 112448/2017 dated 15.12.2022 ANNEXURE G, and alternatively,

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2. Consider the memo of calculation at ANNEXURE F in the OS No.55/2019 pending in the files of Hon'ble 3rd Senior Div Civil judge at Tumkur,

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3. Pass any other or further order/s as this Hon'ble Court may deem fit and proper in the facts and circumstanced of the case."

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Heard the learned counsel for the petitioner and the learned HCGP for respondent No.5.

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OS No.55/2019 is filed by the petitioner herein seeking the relief of specific performance of the agreement for sale dated 07.09.2006. In the said suit, contesting defendants have

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NC: 2025:KHC:44441 WP No. 12336 of 2023

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HC-KAR

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filed written statement opposing the suit claim. Application under Sections 33 and 34 of the Karnataka Stamp Act, 1957 (hereinafter referred to as 'the Act of 1957' for short) was filed on behalf of defendant Nos.2 and 9 to 11 in OS No.55/2019 with a prayer to impound the aforesaid sale agreement dated 07.09.2006 and collect deficit stamp duty and penalty from the plaintiff. The said application was allowed by the Trial Court on 23.01.2023 and being aggrieved by the same, plaintiff/petitioner is before this Court.

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Learned counsel for the petitioner after arguing the matter for sometime submits that, he does not intend to press prayer No.1 made in the writ petition and he would be satisfied if the Trial Court is directed to consider his memo of calculation at Annexure-F for the purpose of determining the deficient stamp duty and penalty payable by the petitioner on the agreement for sale dated 07.09.2006.

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Per contra, learned HCGP has argued in support of the order impugned.

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HC-KAR

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Application under Sections 33 and 34 of the Act of 1957 is

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filed on behalf of defendant Nos.2 and 9 to 11 with a prayer to impound the agreement for sale dated 07.09.2006 produced by the petitioner in OS No.55/2019 for the reason that the same is insufficiently stamped and also to collect the deficit stamp duty and penalty applicable. The Trial Court vide the order impugned has allowed the said application. Learned counsel for the petitioner submits that he does not press his prayer insofar as his challenge to the order impugned wherein the Trial Court has impounded the sale agreement dated 07.09.2006. He has also filed a memo to the said effect which is taken on record. Therefore, the challenge by the petitioner as against the order impugned is only with regard to calculation of deficit stamp duty and penalty payable on the instrument, namely, agreement for sale dated 07.09.2006.

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It is not in dispute that the sale agreement dated 07.09.2006 is an unregistered document and it is also not in dispute that possession of the suit schedule property is not delivered to the petitioner under the said agreement for sale dated 07.09.2006. Therefore, the stamp duty payable by the

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HC-KAR

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petitioner would be as provided under Article 5(e)(ii) of the Act

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of 1957. Article 5(e)(ii) of the Act of 1957 reads as follows:-

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Description of Instrument	Proper Stamp Duty
Xxx	Ten paise for every one
	hundred rupees or part thereof
[(ii) possession of the property is not delivered	on the market value equal to the amount of consideration
Explanation-I.-When a	subject to a maximum of
reference, of a Power of	rupees twenty thousand but
Attorney granted separately by the seller to the purchaser in respect of the property which is the subject matter of such agreement, is made in the	not less than rupees five hundred: 2[Provided that the duty paid on power of attorney under Articles 41(e) or 41(eb), as
agreement, then the	the case may be, is adjustable
possession of the property is deemed to have delivered for the purpose of this clause.	towards the duty payable on agreement for sale under Article 5(e) or instrument of sale or transfer, as the case
Explanation-II.-For purpose of clause (e) and clause (h)	may be, executed between the same parties and in respect of
where subsequently	the same property.]
conveyance or mortgage as
the case may be, is executed
between the same parties in
pursuance of such agreement
or its records or
memorandum, the stamp
duty, if any, already paid and
recovered on the agreement or
its record or memorandum
shall be adjusted towards the
total duty leviable on the
conveyance or mortgage, as the case may be.

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HC-KAR

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The Trial Court inspite of holding that the stamp duty payable by the petitioner would be as provided under Article 5(e)(ii) of the Act of 1957, has directed him to pay the maximum stamp duty payable under the said provision of law, which is Rs.20,000/-. The sale consideration of the suit schedule property under the sale agreement dated 07.09.2006 is undisputedly Rs.82,50,000/-. Therefore, the stamp duty, if calculated at the rate as provided under Article 5(e)(ii) of Act of 1957, would amount to Rs.8,250/-. It is not in dispute that plaintiff has paid a sum of Rs.200/- towards stamp duty on the agreement for sale dated 07.09.2006. Therefore, deficit stamp duty payable would be Rs.8,050/- and penalty leviable would be ten times the deficit stamp duty that was liable to be paid, which would come up to Rs.80,500/-. Therefore, the deficit stamp duty payable by the petitioner would be Rs.8,050/- and penalty payable would be Rs.80,500/- and in all the same amounts to Rs.88,550/-. The Trial Court has however, erred in arriving at a conclusion that the deficit stamp duty and penalty payable on the instrument by the petitioner would totally come up to Rs.2,17,800/-. To the said extent, the order impugned cannot be sustained. Accordingly, the following:-

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HC-KAR

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ORDER

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(i) The writ petition is partly allowed .

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(ii) The order passed on application filed by defendant Nos.2 and 9 to 11 under Sections 33 and 34 of the Act of 1957, to the extent it relates to impounding the sale agreement dated 07.09.2006 is confirmed and the said order directing the petitioner to pay deficit stamp duty and penalty at Rs.2,17,800/- is set-aside and instead it is held that petitioner is liable to pay deficit stamp duty and penalty at Rs.88,550/-.

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(iii) Petitioner is granted four weeks time from the date of receipt of a certified copy of this order to pay the aforesaid deficit stamp duty and penalty before the Trial Court.

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Sd/-

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(S VISHWAJITH SHETTY) JUDGE

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DN List No.: 1 Sl No.: 18

Akbar Ali Khan v. Hussain Bi @ Bibijan

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Akbar Ali Khan v. Hussain Bi @ Bibijan

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