Inayath Vs Nasarullasheriff

THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DTD. 12.11.2020 ON IA NO.16, AT ANNEXURE-A IN O.S.NO.127/2014, PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, CHINTAMANI AND THE CONSEQUENT ORDER PASSED BY THE DISTRICT REGISTRAR AND STAMPS COMMISSIONER, CHIKKABALLAPURA DATED 22.09.2021 AT ANNEXURE-J & ETC.

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

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NC: 2026:KHC:26191 W.P. No.23539/2021

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HC-KAR

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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 challenging the order dated 12.11.2020 passed on I.A.No.16 in O.S.No.127/2014 by the Senior Civil Judge and JMFC, Chintamani (for short, 'the Trial Court').

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Sri.Dilip Kumar I.S., learned counsel appearing for the petitioner submits that the petitioner has filed a suit for specific performance of the contract against the respondents herein. In the said suit, an application is filed under Section 151 of the Code of Civil Procedure, 1908, to impound the agreement of sale dated 04.08.1998 on the ground that the said agreement is insufficiently stamped and the Trial Court, under the impugned order has allowed the application. It is submitted that one V.Narayanaswamy, the original owner of the property executed the agreement of sale dated 04.08.1998 in favour of the defendant No.1 and on 05.08.1998 again the very same V.Narayanaswamy executed a general power of

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HC-KAR

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attorney (GPA) in favour of the defendant No.1. The said GPA was produced before the Trial Court which was impounded and stamp duty was paid on the said document and hence, the said stamp duty would make good in respect of the agreement of sale dated 04.08.1998 as well, as under both the instruments, a possession was delivered by the original owner in favour of the defendant No.1. Therefore, the impounding of the document is incorrect. It is further submitted that the Trial Court, as per the provisions of Karnataka Stamp Act, 1957, ought to have impounded the instrument and referred the same to the jurisdictional authority for adjudication but without any adjudication with regard to the payment of duty and penalty, straightway it has directed to pay the duty as well as penalty which is impermissible. Hence, he seeks to allow the petition.

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Though notice is served on the respondents, they remained absent.

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HC-KAR

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I have heard the arguments of the learned

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counsel for the petitioner and meticulously perused the material available on record.

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The petitioner has filed O.S.No.127/2014

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seeking the relief of specific performance of the agreement of sale dated 15.04.2014 against the respondents herein. In the said proceedings, the petitioner has produced the agreement of sale dated 04.08.1998 entered into between one V.Narayanaswamy and the defendant No.1, as well as

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the GPA dated 05.08.1998 executed between the same parties. The records indicate that the GPA dated 05.08.1998 was impounded and the Authority has adjudicated with regard to the payment of duty and penalty and the petitioner-plaintiff has also paid the same. The records further indicate that the defendant Nos.2 to 5 have filed an application seeking impoundment of the agreement of sale dated 04.08.1998 on the ground that

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the agreement executed by V.Narayanaswamy which is produced by the plaintiff before the Trial Court is

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HC-KAR

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insufficiently stamped. The Trial Court, under the impugned order has allowed the application. I am of the considered view that the Trial Court was fully justified in coming to the conclusion that the instrument is insufficiently stamped, as the agreement of sale dated 04.08.1998 indicates the creation of interest and handing over of the physical possession of the property in favour of the defendant No.1 by the original owner-

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V.Narayanaswamy.

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Be that as it may, the Trial Court, in my considered view has committed a grave error in taking the responsibility of directing the plaintiff to pay the stamp duty along with 10 times penalty. In my considered view, it would be appropriate for the Trial Court to refer the instrument to the competent authority for determination of the duty and penalty and on such determination, the plaintiff shall make good the duty and penalty.

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