BANGALORE ICE FACTORY Vs. B S VENKATRAM

JUDGEMENT

(1.) Petitioner is the plaintiff and respondent is the defendant in O.S.No.3631/2008 pending in the Bangalore City Civil Court. The suit was filed on 06.06.2008, to pass a decree of specific performance directing the defendant to execute a sale deed in favour of the plaintiff, in respect of plaint schedule property, as per an agreement of sale dated 22.11.2006, by receiving the balance sale consideration amount and for grant of consequential reliefs. The respondent/defendant filed written statement on 30.01.2009, denying the execution of the suit document/sale agreement dated 22.11.2006. Based on the pleadings, issues having been raised, the plaintiff filed an affidavit by way of examination-in-chief. On 26.10.2010, deponent of the affidavit was treated as PW.1. On 16.11.2010, finding that the suit document is insufficiently stamped and also unregistered, Trial Judge directed the office to calculate and put up duty and penalty to be paid by the plaintiff on the said document, for directing the plaintiff to deposit the amount in the Court. By making a reference to a decision reported in ILR 2004 Kar 4752. On 27.11.2010, Trail Judge directed the office to calculate the market value of suit property, as on the date of the sale agreement. On 15.03.2011, PW.1 was partly examined and Exs.P1 to P6 were marked. Suit document was impounded in terms of the decision in the case of S. Suresh V/s L. Pothe Gowda and others,2010 AIR(Kar) 876. Assailing the said order, W.P.No.16063/2011 has been filed.

(2.) After the passing of order dated 02.02.2012, the plaintiff filed an I.A. under S.37(2) of Karnataka Stamp Act, 1957 ("the Act" for short) r/w S.151 of CPC, to recall the order dated 02.02.2012 and refer the agreement to sell dated 22.11.2006 to the Deputy Commissioner for adjudication, on the ground that the duty and penalty imposed as per the order dated 02.02.2012 is excessive and inappropriate and that the plaintiff has a statutory right to seek adjudication before the Deputy Commissioner. The Trial Judge having considered the application and having noticed the ratio of law in the decision reported in ILR 2007 Kar 4752, held that the Court can determine the duty and penalty to be paid. The duty and penalty was calculated and the plaintiff was directed to pay the same. Assailing the said order, W.P.No.10397/2012 has been filed.

(3.) Sri S. Shaker Shetty, learned advocate appearing for the petitioner, at the outset submitted that the petitioner is giving up the challenge to the action/order of the Trial Court, in so far as the impounding of sale agreement dated 22.11.2006 is concerned. Learned counsel contended that the suit document having been impounded, the Trial Judge ought to have sent the document to the Deputy Commissioner for adjudication of the duty and penalty and for issuance of a certificate. He submitted that the Trial Court has no authority to determine the duty and penalty on the impounded document and compel the plaintiff to pay the duty and penalty. He further submitted that the impugned order directing the payment of duty and penalty suffers from material irregularity and being vitiated is liable to be quashed. Reliance was placed on the decisions in the cases of Leelamma Samuel V/s Francis, 1994 ILR(Kar) 3143 and Chilakuri Gangulappa Vs. Revenue Divisional Officer, Madanapalle and another, 2001 AIR(SC) 1321.