P. VENKATESHAN AND ORS. Vs. YELLAPPA AND ORS.

JUDGEMENT

(1.) DEFENDANTS in OS 6007/2006 on the file of 12th Addl. City Civil & Sessions Judge, (CCH No. 27), Bangalore, aggrieved by the orders dated 18.3.2011, allowing I.A. No. 11, Annexure -J and order dated 24.4.2013, dismissing I.A. No. 12 and allowing I.A. No. 13 Annexure -P, reports dated 16.11.2012, Annexure -K of the District Registrar -2nd respondent and his letter dated 18.7.2013, Annexure -Q, have presented these petitions, invoking Articles 226 and 227 of the Constitution.

(2.) 1st respondent instituted the suit for specific performance of an agreement of sale dated 10.4.2002 executed by the petitioners' arraigned as defendants to convey the suit schedule property for a valuable sale consideration. Before the commencement of the trial, defendants filed I.A. No. 9 under Section 34 of the Karnataka Stamp Act, 1957 (for short the ''Act'') to impound the agreement of sale dated 10.4.2002 engrossed on Rs. 100/ - stamp paper, being, deficit in stamp duty and determine the deficit stamp duty and penalty. That application was opposed by filing statement of objections stating amongst others, that the application is premature and that question of sufficiency of stamp duty is between the plaintiff and the court. That application when considered by the Court below, regard being had to the amended Article 5(e) of the Schedule to the 'Act', w.e.f. 1.4.95, providing the rate of stamp duty in respect of an agreement of sale of immovable property coupled with delivery of possession, being the same duty as applicable for a conveyance, on the market value, held that the agreement in question engrossed on stamp paper of Rs. 100/ - was deficient, since the sale consideration is Rs. 90 lakhs, and by order dated 13.11.2009, allowed I.A. No. 9, directed the plaintiff to pay the deficit stamp duty and penalty at 10 times the said deficit duty, on the sale agreement. By the said order, the Court below rejected plaintiff's I.A. No. 10 under Sections 33 and 37 of the 'Act' to forward the document to the Deputy Commissioner to adjudicate the payment of stamp duty, which when called in question in WP 36252 -253/2009, a learned single Judge by order dated 30th August 2010, while dismissing the petitions observed that it was for the plaintiff to pay such duty and penalty if the document is to be admitted in evidence and is to be acted upon by the trial court and if the plaintiff chooses not to pay duty and penalty or seeks to abandon the suit, the court would be required to send the document to the Deputy Commissioner under Section 37(2) for further action and during the pendency of the suit would only 'Act' under Order 13 Rule 38 CPC. That order when carried in SLP 34652 -653/2010, the Apex Court by order dated 3.1.2011, dismissed the petitions. Plaintiff without complying with the directions of the Civil Court in the order dated 13.11.2009 allowing I.A. No. 9, filed I.A. No. 11 under Section 151 CPC for the following relief:

(3.) IN the affidavit accompanying the application, it was stated that under Sub -section (2) of Section 37 of the 'Act', the Court impounding the instrument shall send it in original to the Deputy Commissioner and that as the Court had not impounded the document nor passed an order under Section 34 of the 'Act' and having regard to the observations in the order in WP 36252 -253/2009, the plaintiff had the first option to proceed with the suit by paying duty and penalty and the second option to abandon the suit itself. The deponent to the affidavit stated thus: