Ismail Vs T N Girish

THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI AND SET ASIDE THE ORDER DATED 24.1.2018 SEEKING OPINION OF THE DISTRICT REGISTRAR IN REGARD TO CALCULATION OF STAMP DUTY PAYABLE ON THE DOCUMENTS IN QUESTION IN O.S.71/2015 ON THE FILE OF LEARNED SR. CIVIL JUDGE, TARIKERE PRODUCED AS ANNEX-G TO THE WRIT PETITION.

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

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL ORDER

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This petition is filed seeking the following relief:

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"a) Issue a writ in the nature of certiorari and set aside the order dated 24.01.2018 seeking opinion of the District Registrar in regard to calculation of stamp duty payable on the documents in question in O.S.No.71/2015 on the file of learned senior Civil Judge, Tarikere produced as Annexure-G to the writ petition."

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Sri.S.V.Prakash, learned counsel appearing for the petitioners submits that the respondent-plaintiff has filed a suit for specific performance and in the said suit the petitionersdefendants filed detailed written statement. During the course of evidence the petitioners produced two instruments dated 15.05.2010 and 19.04.2012; however, the respondent-plaintiff opposed the same stating that the instruments are in the nature of agreements, they are deficiently stamped and requested the trial Court to impound the same, impose duty

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and penalty. It is submitted that trial Court without following the procedure contemplated under Sections 33 & 34 of the Karnataka Stamp Act, 1957, (for short, 'the Act' ) passed an unique order of sending those instruments to the District Registrar, Chikkamagalur, to assess the stamp duty and the penalty and pursuant to the said request of the Court, the District Registrar, Chikkamagalur, on 06.02.2018, as at Annexure-H assessed the stamp duty and penalty. It is further submitted that the trial Court has delegated its power of impounding and calculation of duty and penalty to the District Registrar, which is impermissible. It is also submitted that Section 33 of the Act is very clear that the Court has to form its opinion on the instruments, taking note of the nature of instruments, form its opinion as to whether those instruments are liable for duty and penalty and without doing so, the trial Court has delegated the judicial power to the District Registrar, which is impermissible. In support of his contention and to explain the scheme of the Act, he has placed reliance on the decision of this Court in the case of Smt.Savithramma R.C. v.

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M/s.Vijaya Bank represented by its Manager, Bangalore

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and Another¹ . Hence, he seeks to allow the petition by setting aside the impugned order.

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Per contra, Sri Ravi H.K., learned counsel for the respondent-plaintiff supports the impugned order of the trial Court and submits that the writ petition itself is premature as no order has been passed by the trial Court on the instruments produced by the petitioners herein with regard to the payment of duty and penalty. It is submitted that the trial Court to form its opinion as to whether the instruments require duty and penalty, has sent the instruments to the Officer under the Act and he has calculated the duty and intimated the same as per the Annexure-H. Hence, he seeks to dismiss the petition.

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I have heard the arguments of learned counsel for the petitioners, learned counsel for the respondent, meticulously perused the material available on record. I have given my anxious consideration to the submissions advanced on both sides.

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1 2015 (3) KCCR 2479

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HC-KAR

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The respondent has filed O.S.No.71/2015 seeking for the relief of specific performance of an agreement dated 11.02.2014. The petitioners defended the said suit by filing the written statement. During the course of evidence of the petitioners-defendants, defendants have produced two documents dated 15.05.2010 and 19.04.2012 to support the plea. The respondent-plaintiff opposed the production of those documents during the evidence and for marking on the ground that the instruments are in the nature of agreements, they are deficiently stamped and requested the trial Court to impound the same, calculate the stamp duty and penalty and direct the petitioners to pay the same. The trial Court considering the opposition of the respondent-plaintiff, on 24.01.2018 under the impugned order directed the District Registrar, Chikmagalur, to calculate the stamp duty on those instruments and forwarded those instruments. Pursuant to the said order of the trial Court, the District Registrar, Chikamagalur, on 06.02.2018 calculated the duty payable on those instruments, which are under challenge in the present petition.

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HC-KAR

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This Court in the case of Smt.Savithramma R.C. referred supra referring to the decision in the case of K. Amarnath v. Smt. Puttamma² , wherein this Court at

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paragraph No.10 has held as under:

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"10. A duty is cast upon every Judge to examine every document that is sought to be marked in evidence. The nomenclature of the document is not decisive. The question of admissibility (with reference to Section 34 of Karnataka Stamp Act, or Section 35 of Indian Stamp Act and Section 49 of Registration Act) will have to be decided by reading the document and deciding its nature and classification. The tendency to mark documents without inspection and verification should be eschewed. Even while recording ex parte evidence or while recording evidence in the absence of the Counsel for the other side, the Court should be vigilant and examine and ascertain the nature of the document proposed to be marked and ensure that it is a document which is admissible. The Court should not depend on objections of the other Counsel before considering whether the document is admissible in evidence or not. Section 33 of the Stamp Act casts a duty on the Court to examine the document to find out whether it is duly stamped or not, irrespective of the fact whether an objection to its marking is raised or not. It should be borne in mind that once a document is admitted in evidence, it cannot be called in question thereafter on the ground that it was not duly stamped. Once the Court admits a document even wrongly, such admission becomes final and cannot be reopened. Hence, the need for diligence not only on the part of the opposite Counsel, but also on the part of the Court having regard to the statutory obligation under Section 33 of Karnataka Stamp Act.

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11. A combined reading of Sections 33, 34, 35, 37 and 41 of the Karnataka Stamp Act requires the following procedure to be adopted by a Court while considering the question of admissibility of a document with reference to the Stamp Act: (a) when a document comes up before the Court, it has to examine and determine whether it is properly stamped. When the other side objects to it, the Court should consider such objection and hear

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2 2000 (4) Kar.L.J. 55

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both sides; (b) after hearing, if the Court comes to the conclusion that the document has been duly stamped, it shall proceed to admit the document into evidence; (c) on the other hand, if the Court comes to the conclusion that the document is not stamped or insufficiently stamped, it shall pass an order holding that the document is not duly stamped and determine the Stamp duty/deficit stamp duty and penalty to be paid and fix a date to enable the party who produces the document to pay the Stamp duty/deficit Stamp duty plus penalty; (d) if the party pays the duty and penalty the Court shall certify that proper amount of duty and penalty has been levied and record the name and address of the person paying the said duty and penalty and then admit the document in evidence as provided under Section 41(2); and the Court shall send an authenticated copy of the instrument to the District Registrar together with a Certificate and the amount collected as duty and penalty, as provided under Section 37(1); (e) if the party does not pay the duty and penalty, the Court will have to pass an order impounding the document and send the instrument in original, to the District Registrar for being dealt with in accordance with law as per Section 37(2) of the Karnataka Stamp Act."

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Keeping in mind the enunciation of law laid down by this Court, wherein this Court has held that the Court should not depend on the objections of the other counsel before considering whether the document is admissible in evidence or not. Section 33 of the Act casts a duty on the Court to examine the document and to find out whether it is duly stamped or not, irrespective of the fact whether an objection to its marking is raised or not. In my considered view, the trial Court has committed grave error in directing the District Registrar to calculate the stamp duty on the instruments. It is the duty of

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the Court under Section 33 of the Act to firstly form an opinion as to whether the instrument is duly stamped or not and if not duly stamped, impound such instrument and thereafter calculate the duty and penalty payable as per the provision of the Act and then direct the party, who claims to rely on the said document, to pay the same and thereafter, if the said party is aggrieved, then his remedy lies elsewhere. In the instant case, no such procedure is followed. Hence, I am of the view that the writ petition deserves to be allowed. Hence, for the aforementioned reasons, I proceed to pass the following

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ORDER

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i. Writ petition is allowed in part.

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ii. The impugned order dated 24.01.2018 passed in O.S.No.71/2015 by the Senior Civil Judge, Tarikere, Chikmagalur, is hereby set aside.

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iii. The trial Court is directed to consider and form the opinion as to whether there is any deficit in the stamp duty paid on the instruments dated 19.04.2012 and 15.05.2010 and if found, then direct the petitioners to pay the duty and

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