IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 24TH AUGUST 2009 / 2ND BHADRA 1931 WP(C).No. 15079 of 2009(D) ---------------------------------------- PETITIONER(S): -------------------------- KALATHIL KANNOLI ROJA, D/O.SREEDHARAN, AGED 49 YEARS, ATTENDER, PARAPPURATH HOUSE, CHOVVA P.O., ELAYAVOOR AMSOM, CHOVVA DESOM, KANNUR TALUK, KANNUR DISTRICT. BY ADVS. MR.V.T.MADHAVANUNNI, MR.V.A.SATHEESH. RESPONDENT(S): --------------------------- 1. THE DISTRICT REGISTRAR (GENERAL), KANNUR, THALASSERY P.O., KANNUR DISTRICT. 2. THE SUB REGISTRAR, SUB REGISTRAR'S OFFICE, KANNUR, KANNUR DISTRICT. 3. THE STATE OF KERALA REPRESENTED BY THE SECRETARY, REGISTRATION DEPARTMENT, THIRUVANANTHAPURAM. R1 ATO R3 BY GOVERNMENT PLEADER MR.M.A. ASIF THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.15079/2009 D APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE TITLE DEED NO.P.40/2005 DTD. 31/03/2005. P2: COPY OF THE NOTICE DTD. 21/12/2005 ISSUED BY RESPONDENT NO.2 TO THE PETITIONER. P3: COPY OF THE REPLY DTD. 9/01/2006 SENT BY THE PETITIONER TO RESPONDENT NO.2. P4: COPY OF THE NOTICE DTD. 8/06/2006 ISSUED BY RESPONDENT NO.2 TO THE PETITIONER. P5: COPY OF THE LAWYER NOTICE DTD. 14/07/2006 ISSUED TO THE RESPONDENT NO. 1 & 2. P6: COPY OF THE NOTICE DTD. 15/07/2006 ISSUED TO THE PETITIONER BY RESPONDENT NO.2. P7: COPY OF THE JUDGMENT IN WPC.NO.20769/2006 OF THIS HON'BLE COURT. P8: COPY OF THE ORDER OF 1ST RESPONDENT DTD. 18/04/2009. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss V.GIRI, J. ---------------------------------------- W.P.(C).No.15079 of 2009 ---------------------------------------- Dated this the 24th day of August, 2009. JUDGMENT The petitioner purchased a plot and a house situated in R.S.No.17/1 of Elayavvor amsom in Kannur District from one Jayadasan, as evidenced by the original of Ext.P1 sale deed. The total amount shown as consideration is Rs.4,00,000/-. The vendor and the vendee contend that the document was executed on 31.3.2005, the rate of stamp duty as on 31.3.2005 was adopted and the document was engrafted on stamp paper valued at Rs.60,000/-. The sale deed is stated to have been presented for registration on 25.5.2005. Thereafter Ext.P2 notice was issued on 21.12.2005 claiming additional stamp duty of Rs.24,000/- including a fine of Rs.500/-. It was alleged that the document was executed on 20.5.2005 and not on 31.3.2005. The Stamp Act was W.P.(C).No.15079 of 2009 :: 2 :: amended with effect from 1.4.2005 and the document was executed only subsequently. 2. The petitioner submitted Ext.P3 reply. An order was passed by the District Registrar, originally imposing an additional sum of Rs.24,000/- as stamp duty and a fine of Rs.500/-. This was objected to by an advocate's notice Ext.P5. By Ext.P6, the demand was confined for an amount of Rs.24,000/- as additional stamp duty and penalty of Rs.500/-. The petitioner challenged the same in W.P.(C). No.20769/06. By Ext.P7 judgment, the impugned order was quashed and the matter was directed to be reconsidered. 3. On reconsideration, Ext.P8 order has been passed by the District Registrar, finding that the document was actually executed only on 20.5.2005 and therefore,the petitioner was liable to pay additional stamp duty of Rs.24,000/-. A fine of Rs.1,20,000/- was also imposed. W.P.(C).No.15079 of 2009 :: 3 :: 4. I heard learned counsel for the petitioner and learned Government Pleader. I have perused the averments in the writ petition and I have gone through Ext.P8 order. 5. One salient aspect that has been highlighted in Ext.P8 is the recital in Ext.P1 document regarding receipt of Rs.50,000/- as advance amount and receipt of Rs.50,000/- on the date of execution of the document. The balance sale consideration is stated to have been received by means of a cheque issued on HDFC bank bearing No.489313. It seems that on enquiry, it was clearly revealed that the said cheque was a banker's cheque actually issued on 20.5.2009. There could be instances where part of the sale consideration is paid by means of a post dated cheque. That would not derogate from a sale, as per Section 54 of the Transfer of Property Act. But, here is a case where a major part of the consideration is purported to be W.P.(C).No.15079 of 2009 :: 4 :: paid by means of a cheque which is proved to have been issued on 20.5.2005; but nevertheless the number of the cheque is referred to in the document, which is stated to have been executed by the parties on 31.3.2005. Obviously, this is a case where the document was actually executed and could have been executed only on or after 20.5.2005. Consequently, the document cannot be treated as having been executed on 31.3.2005. It is quite evident that the petitioner is not stating the truth when he says that the document was executed on 31.3.2005. The finding by the District Registrar that the document can be treated as having been executed only after 31.3.2005 i.e. On or after 20.5.2005 is therefore perfectly justified and I affirm the same. 6. The District Registrar has also imposed a penalty of Rs.1,20,000/-. Learned counsel for the petitioner submits that originally a penalty of Rs.500/- alone was imposed and it was the said figure which W.P.(C).No.15079 of 2009 :: 5 :: was shown in the show cause notice issued by the District Registrar in the first instance. There is nothing wrong in the District Registrar imposing a penalty higher than Rs.500/-. But then, a fresh show cause notice should have been issued. This is especially so in circumstances where the original order imposing penalty was set aside under Ext.P7 judgment. 7. Therefore, Ext.P8 is affirmed to the extent to which the 1st respondent finds that the document, the original of Ext.P1 should be treated as having been executed on or after 20.5.2005. The levy of additional duty to the tune of Rs.24,000/- is also affirmed. But it shall stand set aside insofar as imposition of penalty is concerned. The 1st respondent shall issue a fresh notice to the petitioner proposing imposition of a penalty. The petitioner shall be given an opportunity to resist the same and after hearing him, a fresh order as regards the imposition and W.P.(C).No.15079 of 2009 :: 6 :: quantification of penalty shall be passed by the 1st respondent. Writ petition is disposed of as above. Sd/- (V.GIRI) JUDGE sk/ //true copy//