1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF SEPTEMBER, 2018 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.41188/2017(GM-CPC) BETWEEN: SRI. ABDUL RASHEED, AGED ABOUT 63 YEARS, SON OF LATE SRI. SYED GHAFUR, PRESENTLY RESIDING AT NO. 10, 2ND FLOOR, SJM COMPLEX, KEB OFFICE AND KAS OFFICE, BENGALURU-560 002. PETITIONER (BY SRI VENKATESHA C., ADVOCATE FOR SRI CHENNARAYA REDDY S, ADVOCATE) AND: 1. SMT. MARY AGED ABOUT 87 YEARS, WIFE OF SRI. FRANCIS, RESIDING AT NO. 27/8, DEVARAJEEVANAHALLI, BENGALURU-560 045. 2. SMT. TAMILARASI AGED ABOUT 56 YEARS, 2 WIFE OF SRI. P. RADHAKRISHNAN, RESIDING AT NO. 110, 1ST FLOOR, 5TH CROSS, CHELUVADIPALYA, DR. TCM ROYAN MAIN ROAD, BBMP WARD NO.30, BENGALURU-560 053. 3. SRI. R. SAMPATH KUMAR, AGED ABOUT 44 YEARS, SON OF SRI. S. RAMAKRISHNA, RESIDING AT NO.3, 6TH CROSS, MYSORE ROAD, BENGALURU-560 026. 4. SRI. B. L. BABU, AGED ABOUT 48 YEARS, SON OF SRI. BALARAJ, RESIDING AT NO.28, 1ST MAIN ROAD, 8TH CROSS, VALMIKINAGAR,MYSORE ROAD, BENGALURU-560 026. 5. SRI. SIDDIQUE AHMED AGED ABOUT 38 YEARS, SON OF SRI. ANWAR PASHA, RESIDING AT NO. 22, PILLANNA GARDEN, 9TH MAIN ROAD, III STREET, BENGALURU-560 040. 6. SRI. MUNIRAJU, AGED ABOUT 58 YEARS, SON OF SRI. MUTHAPPA, RESIDING AT KAVAL BYRASANDRA VILLAGE, R.T. NAGAR POST, BENGALURU-560 032. 3 7. SRI. S. RAVI AGED ABOUT 61 YEARS, SON OF SRI. SUBRAMANI, RESIDING AT NO.36/1, 2ND MAIN, 6TH CROSS, HOSAHALLI, VIJAYANAGAR, BENGALURU-560 040. RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE PORTION OF THE IMPUGNED ORDER DATED 21.02.2012 IN [CASE NUMBER] ON THE FILE OF THE ADDITIONAL CITY CIVIL JUDGE, BENGALURU (CCH-16), REGARDING THE FINDINGS AND DIRECTIONS GIVEN TO THE OFFICE TO ASSESS THE BALANCE OF STAMP DUTY TO BE PAID ON THE DOCUMENT DATED 29.11.1997 AND PENALTY REQUIRED TO BE PAID ON THE MARKET VALUE OF THE SUIT PROPERTY AND ALSO THE REPORT MADE BY THE OFFICE REQUIRING THE PETITIONER TO PAY RS.3,45,400/- ON THE DOCUMENT DATED 29.11.1997 AS PER THE SAID ORDER DATED 21.02.2012 VIDE ANNEXURE-H. THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:- 4 ORDER
The petitioner - plaintiff filed the present writ petition for the following reliefs:
" Issue a writ of certiorari or orders of like nature, directions, quashing the portion of the impugned order dated 21.2.2012 in [CASE NUMBER] on the file of the Court of Addl. City Civil Judge, Bengaluru (CCH-16), regarding the findings and directions given to the office to assess the balance of stamp duty to be paid on the document dated 29.11.1997 and penalty required to be paid on the market value of the suit property and also report made by the office requiring the petitioner to pay Rs.3,45,400/- on the document dated 29.11.1997 as per the order dated 21.2.2012 (Annexure-H).
2. The plaintiff filed the suit for specific performance against the defendants and sought for a direction to the 2nd defendant to execute the registered sale deed in his favour in respect of the suit schedule property by admitting the receipt of full agreed sale consideration of Rs.50,000/- from him and also for Permanent Injunction restraining the defendant Nos.2 to 6 from interfering with his peaceful possession and enjoyment of the suit schedule property. It is the case of the plaintiff that he is and has been in physical possession of immovable property bearing Site No.37 formed out of former Sy.No.108 of Kayamgutha Kadugondanahalli village, Kasaba hobli, Bengaluru north taluk, now situated within the BBMP limits and the same was acquired by him for valuable consideration from the 2nd defendant under an agreement of sale dated 29.11.2017 and the said 2nd defendant had got the said site from her vendor, the 1st defendant for valuable consideration. The sale consideration is Rs.50,000/- and on the date of the agreement, the entire amount was paid. Inspite of the repeated requests made by the plaintiff, the 2nd defendant has not executed the sale deed in respect of the suit schedule property in his favour and therefore he has filed the suit for the reliefs sought for.
3. Learned counsel for the petitioner submits that the 2nd defendant has not filed the written statement. The said statement is placed on record.
4. The defendant Nos.3 and 4 have filed the written statement and denied the plaint averments and contended that the 2nd defendant on behalf of the 1st defendant sold the suit schedule property in favour of the 3rd defendant on 4.5.2016 and possession of the suit schedule property was also delivered to the 3rd defendant. Subsequently, the 3rd defendant has made an application to the BBMP for transfer of khatha in his favour and also paid betterment charges. Since the 3rd defendant is not staying permanently at Bengaluru city, he has executed General Power Attorney dated 16.2.2007 in favour of his friend - [ENTITY], who is the 4th defendant so as to enable him to look after the affairs of the suit schedule property. When the 7th defendant tried to interfere with peaceful possession and enjoyment of the suit schedule property by the 4th defendant, the 4th defendant filed [CASE NUMBER] against the 7th defendant for the relief of Permanent Injunction and the trial Court granted Permanent Injunction and the appeal filed by the 7th defendant before this Court in [CASE NUMBER] came to be dismissed at the stage of admission itself. It is further contended that the allegation made by the plaintiff that he has entered into agreement of sale with the 2nd defendant is denied by defendant Nos.3 and 4 and sought for dismissal of the suit.
5. When the matter was posted for plaintiff's evidence, at that stage, the plaintiff wants to produce the agreement of sale dated 29.11.1997 (Annexure-B). The trial Court before permitting the plaintiff to mark the said document as Exhibit, by the impugned order dated 21.2.2012 directed the office to calculate the stamp duty and penalty required to be paid as per the market value on the agreement dated 29.11.1997, treating it as nothing but sale deed. Subsequently when the matter came up before the trial Court on 21.3.2012, the office note was put up calculating the stamp duty and penalty required to be paid by the petitioner at Rs.3,45,400/- and accordingly, the trial Court directed the plaintiff to pay the said amount. Learned counsel for the petitioner - plaintiff submits that the stamp duty and penalty has not yet been paid, but the trial Court extended time to produce certain documents. Subsequently, after evidence, now the matter is posted for arguments. Hence the present writ petition is filed.
6. I have heard the learned counsel for the petitioner.
7. Sri [ENTITY], learned counsel for the petitioner contended that the impugned order passed by the trial Court directing the plaintiff to pay the stamp duty and penalty, is erroneous and contrary to the material on record. He would further contend that the agreement of sale came to be entered into on 29.11.1997 (Annexure-B) and the trial Court without properly appreciating the contents of the document has held that it is nothing but sale deed and therefore he has to pay the stamp duty and penalty to mark the said document and the same is erroneous and contrary to the material on record. He would further contend that since the suit was filed on 15.6.2009 and the agreement came to be entered on 29.11.1997, the trial Court cannot treat the agreement as outright sale deed and direct the plaintiff to pay the stamp duty and penalty, which has resulted in serious miscarriage of justice. Therefore he sought to allow the petition.
8. Having heard the learned counsel for the petitioner, it is not in dispute that the plaintiff filed [CASE NUMBER] to enforce the agreement dated 29.11.1997 said to have been executed by the 2nd defendant. When the matter was posted for evidence, at that stage before permitting the plaintiff to mark the agreement of sale dated 29.11.1997 as Exhibit, the trial Court directed the office to calculate the stamp duty and penalty required to be paid on the agreement as per the market value treating the agreement as nothing but sale deed in view of the recital in the agreement that "on acknowledgment of the entire sale consideration, the vendor has this day delivered the physical vacant possession of the schedule property to the purchaser, and the vendor has relinquished all his rights, title, claim, interest of whatsoever nature in respect of the schedule property in favour of the purchaser". Subsequently when the matter came up before the trial Court on 21.3.2012, the office note was put up calculating the stamp duty and penalty required to be paid at Rs.3,45,400/- and accordingly, the trial Court directed the plaintiff to pay the said amount.
9. The provisions of [SECTION] of the [ACT] clearly depict that in such cases, the stamp duty has to be paid as a conveyance on the market value of the property. The impugned order passed by the trial Court is in consonance with [SECTION] of the [ACT]. The trial Court after consideration of the entire material on record has come to the conclusion that the 'agreement of sale' dated 29.11.2017 is nothing but 'sale deed' and therefore to mark the said document, the plaintiff has to pay the stamp duty and penalty as per the market value, treating the agreement as sale deed. The same is in accordance with law.
10. The Hon'ble Supreme Court while considering the provisions of [SECTION] of the [ACT] in the case of [PRECEDENT] held at paragraphs 18, 19 and 23 as under:
18. The unregistered deed of sale was an instrument which required payment of the stamp duty applicable to a deed of conveyance. Adequate stamp duty admittedly was not paid. The court, therefore, was empowered to pass an order in terms of [SECTION] of the Act.
19. The contention of learned counsel for the appellant that the document was admissible for collateral purpose, in our opinion, is not correct. In [PRECEDENT] this Court was not concerned with the provisions of the Act. Only interpretation of the provisions of the [ACT] was in question. It was opined :-
" The main question, as we have already noted, is the question of continuous possession of the plaintiffs over the suit lands. The sale deed dated 9-5-1931 by [ENTITY], father of the defendants in favour of [ENTITY], the predecessor-in- interest of the plaintiffs, is an admitted document in the sense its execution is not in dispute. The only defence set up against the said document is that it is unstamped and unregistered and therefore it cannot convey title to the land in favour of the plaintiffs. Under the law a sale deed is required to be properly stamped and registered before it can convey title to the vendee. However, legal position is clear law that a document like the sale deed in the present case, even though not admissible in evidence, can be looked into for collateral purposes. In the present case the collateral purpose to be seen is the nature of possession of the plaintiffs over the suit land. The sale deed in question at least shows that initial possession of the plaintiffs over the suit land was not illegal or unauthorized "
In this case, by reason of the statutory interdict, no transfer at all is permissible. Even transfer of possession is also not permissible. [See [PRECEDENT] and [PRECEDENT]]
23. For the reasons aforementioned, there is no merit in this appeal which fails and is dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.
11. This Court while considering [SECTION] of the [ACT] in the case of [PRECEDENT] held that " the relief in suit has been claimed only on the basis of the recitals/covenants contained in the deed in question - The document in question has not been sought to be made use for any other collateral purpose other than to prove transaction of mortgage - Since the suit claim is based entirely on the document in question, the same cannot be admitted and marked in evidence for the collateral purpose as alleged - Order of the trial Court is justified". In the said Judgment, this Court at paragraphs 8 and 9 has observed as under.
8. [SECTION] of the [ACT], deals with instruments not duly stamped and inter alia provides that no instrument which is chargeable to duty shall be admissible in evidence for any purpose or shall be acted upon, registered or authenticated by any person or by public officer unless such instrument is duly stamped. The expression that 'for any purpose' used in [SECTION] of the Act, is wide enough to include use of the document for a collateral purpose or transaction. In the case of [PRECEDENT] while considering the contention that unregistered document, which was compulsorily registerable under [SECTION] of the [ACT] could be relied upon and admitted in evidence to prove a collateral transaction as envisaged by proviso to [SECTION] of the [ACT] has held as follows:
7. That a document is being admitted for a collateral purpose does not however necessarily mean that it can be let in for that purpose even when it is not duly stamped.
[SECTION] of the [ACT], deals with instruments not duly stamped and inter alia provides that no instrument which is chargeable to duty shall be admissible in evidence for any purpose or shall be acted upon, registered or authenticated by any person or by any public officer unless such instrument is duly stamped. The expression 'for any purpose' used in [SECTION] of [ACT], is wide enough to include use of any document for a collateral purpose or transaction. In [PRECEDENT], their Lordships held that the words 'for any purpose' used in [SECTION] of the [ACT], had to be given their natural meaning and would include even a collateral purpose for which the party relying upon the document like the same to be admitted. The following passage in this regard is apposite:
the words 'for any purpose' in [SECTION], [ACT], should be given their natural meaning and effect and would include a collateral purpose. Where an unstamped document is admitted in proof of some collateral matter it is certainly admitted in evidence for that purpose which the Statute has prohibited. Consequently an unstamped partition deed cannot be used to corroborate the oral evidence for the purpose of determining even the factum of partition as distinct from its terms.
8. It is therefore difficult to accept the submission made by Mr. [ENTITY] that just because an unregistered document can be admitted in evidence for proving a collateral transaction, any such use would entitle the document to be marked as an exhibit dehors the provisions of [SECTION] of the [ACT]. The provisions of [SECTION] of the Act remain limited to the consequences of non-registration of compulsorily registrable documents. The said provisions does not deal with or stipulate the consequence that follow if an instrument sought to be proved is not duly stamped.
That part is provided for separately by provisions of [SECTION] of the [ACT], which does not make any exception in favour of documents sought to be admitted in evidence for proving a collateral transaction. So long as an instrument is chargeable with duty, the provisions of [SECTION] would render it inadmissible in evidence for any purpose unless the same is duly stamped.
9. The [SECTION] prescribes the conditions subject to which a document which is not duly stamped can be admitted in evidence. It inter alia provides for payment of the duty with which the same is chargeable or in the case of an instrument insufficiently stamped, the amount which is required to make up such duty - together with the prescribed penalty. Suffice it to say that there is no conflict between what is permitted by the proviso to [SECTION] of the [ACT] on the one hand and [SECTION] of [ACT], on the other. The demand of duty and penalty in terms of the [SECTION] before the document could be marked in token of its having been admitted in evidence did not therefore suffer from any error of law to warrant interference. As a matter of fact, whenever an objection regarding the admissibility of an instrument on the ground of its being unstamped or insufficiently stamped is raised, the Court is required to determine the objection before proceeding any further, unlike other cases where an objection to the admissibility of a document on any other ground may be examined at a later stage and the document tentatively marked to avoid delay in recording of the evidence. The decisions of the Supreme Court in [PRECEDENT] and Bipin Shantilal Panchal v.
State of Gujarat ( 2001 Cri.L.J. 1254), and that of a Single Bench of this Court in [PRECEDENT], clearly settled the legal position in this regard.
9. In the case of [PRECEDENT], considering the contention that the document can be looked into for collateral purpose and could be admitted in evidence for collateral purpose even if it was not duly stamped, has held as follows:
"12. [SECTION] of the Act, as has been quoted above, mandates, no document shall be admitted in evidence for any purpose, unless it is duly stamped. Section puts a complete embargo and bar against admissibility of such a document which is not stamped, or which is not duly stamped, and it cannot be made use of for any purpose, it means for all the purposes. When I so, observe, I find support for my view from the decision of their Lordships of the Privy Council in the case of [PRECEDENT], where their Lordships observe at page 53, Column 3:
With this latter opinion their Lordships are not in agreement. As already noted, [SECTION], [ACT], enacts that no instrument chargeable with duty shall be admitted in evidence for any purpose. Mr. [ENTITY] as part of his argument for the respondent adopted the note on the words 'for any purpose' in [SECTION] contained in Edn. 4, of Sir [ENTITY]'s book on the [ACT]. He pointed out that the words 'for any purpose' first appeared in India in the [ACT], and in England in the [ACT], and that under the earlier Acts there were decisions in both countries that an unstamped document might be admitted in evidence for a collateral purpose, that is, to prove some matter other than the transaction recorded in the instrument, and he submitted that these cases applied even under the later Acts. Their Lordships do not take this view. A document admitted in proof of some collateral matter is admitted in evidence for that purpose, and the statute enacts that it shall not be admitted in evidence for any purpose. Their Lordships see no reason why the words 'for any purpose' in the [ACT] should not be given their natural meaning and effect. Such words may well have been inserted by the Legislature in order to get rid of the difficulties surrounding the question of what amounted to a collateral purpose.
In this view of the matter, the trial Court was justified in rejecting the contention that document could be admitted for collateral purposes.
13. Even this Court in the case of K. Amarnath v. Smt. Puttamma (2000) 4 Kant LJ 55, has expressed the same view, as just above, and in this decision Hon'ble [ENTITY], J., considered the distinction between the language used in [SECTION] and [SECTION] of the [ACT], and opined that under [SECTION], bar is absolute and document cannot be admitted for any purpose in evidence."
12. Admittedly in the present case, the suit filed by the plaintiff for the specific performance based on the agreement of sale dated 29.11.1997. It is not in dispute that on the date of the agreement itself, the possession was delivered to the plaintiff. Therefore in view of [SECTION] of the [ACT], it amounts to conveyance. Therefore the order passed by the trial Court directing the plaintiff to pay the stamp duty and penalty is perfectly justified and the same is in accordance with law. It is also not in dispute that though the impugned orders passed by the trial Court as long back as in the year 2012, the present writ petition is filed in the year 2017 i.e., after lapse of nearly five years and there is absolutely no explanation for the delay in approaching this Court. Even on that ground also, the writ petition cannot be entertained.
13. In view of the aforesaid reasons, the impugned orders passed by the trial Court are just and proper. The petitioner has not made out any ground to interfere with the impugned orders in exercise of powers under [SECTION] of the [ACT].
Accordingly, the writ petition is dismissed.
JUDGE Gss/-