High Court Karnataka High Court

Sri Richard Percival D Souza vs Sri C P Tayal S/O Sri M K Tayal on 14 December, 2010

Karnataka High Court
Sri Richard Percival D Souza vs Sri C P Tayal S/O Sri M K Tayal on 14 December, 2010
Author: A.N.Venugopala Gowda
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14"" DAY OF DECEMBER, 2010

BEFORE

THE HON'BLE MR. JUSTICE A.N.VENUGOPALA_  _

WRIT PETITION No.10841/2910 (Gsx»1«er$g:):'r-Eff    

BETWEEN:

Sri Richard Percival D'Souza,s' 
S/0. Sri A.Vincent D'Souza,
Aged about 52 years,
Residing at No.6,
Aswathkatte Road,
Chikkaiasandra,  '  :
Bengaluru -- 560 061.  '  "

_    .     '  PETITIONER
(By Sri A.MadijusI;jdhana, Rap, Am)" 

1. Sri C.P':T_aya|,'"_ . ', 
S/en, Sri M.i{.Ta.y~aI,"v.
A§3edarabout'52'years,
. '-R/at..,'No;e--1S, Mar-:'a'sh Compiex,
. W.§\E0.10,, Convent Road,
 V   

  KV..B'ha--.siéara Raju,
S'/0."---Sri"S.Krishnaraju,
Aged about 37 years,

 I .rR_esiding at No.123,
x_J.F_'.Nagar III Phase,

 Bengaluru -- 560 078.

A  "'(F3y Sri S.Ramu, Adv. for R1)

 RESPONDENTS

This writ petition is filed under Articles 226 and 227
of the Constitution of India, praying to quash the
impugned order found at Annexure – G dated 8.3.20-10 in

IA No.8 in O.S.l\£o.3076/1999 passed by the Learnedr~.,_1iJ,,_”‘

Additionai City Civil Judge, Bangalore.

This petition coming on for preliminary M

group this day, the Court made the fo|lowin_g:—-».._.

QRDERE,

Petitioner is the aiaiintitt in,Cos.r:itdf’.:s,e.?§/1_7999

pending on the file of City The
respondents are the defendarifts The suit is for
specific performance of agreement of sale
dated 17. i’2′””n’tAdetendant, being
the af|egedof_attovrney holder and also as
agreement * 15′ defendant. The 15′

defendant has_fiie.d’:–wntte’n statement admitting that, he is

“V’s-..the’-pilvriier ‘of,theftsutttvproperty. However, he has denied

in the piaint that, the 2” defendant is

thepower’ofyattorney holder and there is an agreement of

“asaie betitieen him and the 2″ defendant on 30.01.1996.

defendant has specificaily denied any transaction in

‘respect of the suit property between himself and the 2″”

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respondent. He has stated that, he does not know either

the 2″” defendant or the piaintiff. He has questioned’-._the

maintainability of the suit and has sought V.

suit. The 2″” defendant is stated to have fi|ed”:.t_:he:Vwirittern$_,’i

statement on 20.06.2003. Issues,’hav’i’r’ig,_fi:amed,”trial’-h’as”‘.

commenced. During the course of :examin’a~tion ‘.of–._’t’h..e”~_

piaintiff/PW~1 on 24.08.2009, ‘t–h.ev–iagrevei’n,er’.tyof “darted 0

17.10.1996 was prod,uce_d atid’ Vo’i3j._ection””was raised
with regard to the same ibieiinigavrecei_y.edi_}i.n ‘evidence. The
objection was:oo§qrrz.;ledA_ on the thjat, the possession

of the suit §j4ro’p’erty”°was’–nof-déiiiiyeyrewd’to the plaintiff. The

ag reement was”‘ma..rked’ Ex’. Pw 1.

2. 1V5″._de’fen’d.ant filed LA No.8 on 17.11.2009

to V_i»i*§~i.po_i1nd the”–ag__ree-ment of saie dated 17.10.1996 –~

‘E§..»~,1 ..on..the’vground that, it is not duiy stamped. The

.pia.ii1t’iffuVf’il’Ae’d statement of objection contending that, there

is no déiivery of possession of the suit property under the

“..fi.axgre.ement of sale and as such, the payment of stamp duty

ascontemplated under Article 5(e)(i) in the Scheduie

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appended to Karnataka Stamp Act (for short ‘the Act’)

does not arise and that, the stamp duty already paid on

the instrument in question is in accordance with ~’iIa’v1}”g’g;}Zt,4

was also contended that, the document ”

marked as Ex.P-~1, Section 35 of the Act comvestlinto »pjl,ay., if

and the application is

application and the objectionVang:d”~.upon”h.ea’ring.:the”i’earned ” ‘

counsel, the trial court de–sp.i”te”‘*»-noticirigvv…that, the
possession of the property a.’ctu_a.l,:ldy handed over to
the plaintiff un,ci:ei’..__the_””agreem’enyit,,_ bvutlthere is a clear
recital witlf.””‘i’eg5ard_V “t’o_.,,.__lagreernent» to handover the
possess.lon~. of ‘to the plaintiff, by referring

to the dec’is__ion_ repdi’t.e’d.:ki’_n ‘ILR 2007 Kar 4752, has held

that,§;the’~agreement drawn on stamp paper of 22200/- is

insufficivent-aind __ by determining the deficit stamp duty at

penalty at 10 times being 32,98,000/~,

V –V direc’ti.ngLth’e.V’ plaintiff to pay 33,27,800/~ as per Section

of the Act, by impounding Ex.P–1, has allowed LA

– Aggrieved, the plaintiff has filed this writ petition.

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3. Sri A.Madhusudhana Rao, learned advocate

appearing for the petitioner, firstly contended that, E3 SecondIyg,j’vthey4d’eci’sion it

reported in ILR 2007 viiiagr 4752′ applicaticon to the
case on hand. The agreement-i.dated::~’ii.7i.:1’G’i__1996 — Ex.P~1
does not contaizaiiariy the possession
of the propertyciha§z_ing~:,jhe’e.n_Vie-itherdelivered earlier or
havingigbeenidelivered~b.h’u*nde”r the instrument to the
purchase«r’.E:_’The’ only recites about the

agre.eme*iat holvderiagreeing to handover the possession of

site»: purchaser ie., at a future date. Since the

is insisting for execution of the

V –g con’v’eya..hAce,”‘V’with which the possession of the property has

it he delivered, there is no liability to pay the stamp duty

f u.hde’E Article 5(e)(i) of the Schedule to the Act. Thirdly,

“without noticing the material facts and circumstances of

L2”

the case, on account of the misdirection adopted, the
impugned order has been passed, which is irrational, ,il’legal

and hence, interference is called for.

4. Sri S.Ramu, learned advocate

the 1″ respondent, by taking me th”rou’gh the agre’erhen-t~’oi”‘.

sale dated 17.10.1996 »- EX.P-1A:4(A>fi*r]t3XUIi€§j’vF§)’v

referring to a contention advan-céd, whi|e–.”order
of temporary injunction” not to””aitie’i1aVt’e.thelsuit property,
contended that, Ex.P–1 is’%t;d»-ta-redid’by{Att.t¢’Ie_, 5(e)(i) of the

Schedule to th_e.A;ct-,. siriice ,th;ere,,Vi’s.’.l’g,..glaiih lvmade regarding

posses:;VionlVoft~th_e having been delivered. Learned
counsel ‘contend’e_d’t_hat,’the, trial court upon consideration

of the _ material Vaspectsfiof the case, has passed the

order, vvh’i’cn’vbeing just, no interference is caiied

it f_o”r ,’ ” ‘

“Keeping in view the rival contentions and the

drecotrd ofthe writ petition, which 1 have perused, the point

. for consideration is: X

K

Whether the trial court is justified in allowing

LA No.8? V.

6. The aileged agreement of sale executed..VE:§y._4th_e

2″” respondent in favour of the petitioner has been”rnaLri§eid__._” .

as Ex.P«1. A copy of the saidWVdocume’nt–.::i’ea’s-1been’

produced as Annexure–D. In the docurnen’t;<._.ttie_i

recital with regard to the possessioniiofithe pilrVo'p.erttyVVre'§adVs

as foliows:

“Whereas the said’*«.agr_eeme;g:t hoitietll hereby agreed to

hand over the posysessioirli site to the

purchaser. this

_ the 15″ respondent that, he is
not awareof_the._éifirespio’-‘i’dent and he has not entered

into an-ytytransaction viithxihim. The 2″” respondent is not

.'”theV'””ov\i’ner'”‘of the iiii “suit property. Unless deiivery of

15’ respondent to the 2″” respondent had

taken pviaceigiithere cannot be any handing over of

Z””‘-hppssesisvioh of the property by the 2′” respondent to the

_”pe’titi.oner. For the purpose of construction of a document,

Vh true nature of the document has to T ascertained on

futtsre act.

reading the recitals in the document. The document in

question does not indicate the delivery of posses.zs_’io.r’1f”-._l:)y_’

the vendor -~ 2″” respondent in favou”r’–

petitioner/purchaser. The docume.nt~ was “i”r.4_’t~het-,_V

evidence of PW~1 on 24.08.2009 O1\5J’£3.ulA’Al’LJ:’l:ii’l?0

objections, by specifically notVilci_,n’g..V_thefact no ‘~ 0′

delivery of possession of ptQperty–…un_der the
instrument. Even in trial court
has specifically,.:fo:,s_nd of the suit
property w:as–…hVa’nd:ecl to the plaintiff
under ailsohoticed that, the recital
in the the possession of the suit

property t”(j–..t.l1G, pVl’a.int.iff,ttaereby meaning that, it will be a

V ~4’i”o.:p_ass the impugned order, the trial court has

de.’._i_4’\}%ecl Vs1J’pp_ort from the decision reported in ILR 2007 Kar

34752.” The trial court has failed to notice the material facts

‘-f_w.hic’iA_: fell for consideration in the said decision and the

fatio of law laid down therein. The facts which fell for

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consideration in the said decision are that, the plaintiff filed
the suit for specific performance of an agreement and for
permanent injunction, restraining the defendant from

interfering with the possession and enjoyment of

property. The plaintiff claimed that, he was_;’_’a’l’re.aV-d:v__V’:
possession of the property prior to the date—o.–f:fa.greeihenVt”
as a permissive occupier. The cioavurt,-.haiviung’:

document, noticed that, ‘.r.-he vendor has”‘v’i’agreedT§ to

handover possession of the provp’ert*y’.VwithoLIt:fekecigiting the

conveyance. l–iaving_”‘:g«– “.._the”«.,_said fact, by
distinguishing the decisi.o_n’_’i.n c’a’se”:pif—‘fbanappagouda

Fakkiraigouda . Vfifatii-yes,:i<.a'fnalawwa, reported at 2005(4)
KCCR 243'9,__, it was ,h"e:,a asjfollows:
..4.i."lnf'~the presen_t___t7ese. the agreement speaks of delivery
of." iipossgession without executing a conveyance.
if ' 'this decision is not appiicabie to the facts of
case."

[Emphasis supplied}

if The Trial Court, unfortunately did not discuss

the factual aspects and by merely placing reliance on the

“‘1?

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decision reported at {LR 200? KAR 4752 has held that,

deficit stamp duty and penalty has to be paid.

Reliance on the decision without looking

factual background of the case before

impermissible. As is too well settled, by all”iea4te’iia_j;.of., V

decisions of the Apex Court, a decisiornlis

its own facts. Each case presents its.”ov__vn .f_eatu’r_:es’;w it is ” V

not everything said bya’Judgge,-~–w.h:i–le”givingl§ud.grfi§ent that
constitutes a precedentl.’T§i_ef’.=Vgn’4|W’,tgh,in’»gV in a Judge’s
decision bincling.la…party’V’i’sH:the:’upon which the
case is is important to

analyseya –.<:lecis'i"otfi'-..arlid"ils,ol'ate "from it the ratio decidendi.

What is e'ss_eince'"in"a. decision is its ratio and not every

obsetvation fourldlitvherein nor what logically flows from the

va'rious_:"A0i;sVe"rv_ations made in the Judgment. The

enunciaVtio"ri»–ofgthe reasons or principle on which a question

–V before a:’.Co”urt has been decided is alone binding as a

it”4′:–,p’i’ec.edeVnt. The Judgment in the case reported at ILR 2007

. “$1752 has been rendered merely by having regard to

“the fact situation obtaining therein, which unfortunately,

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was not noticed by the learned Trial jiudge and thu-shas

misappiied the said decision to hold that the docuinleintgihas

to be impounded on the ground of the ”

insufficiently stamped.

10. Mere marking ofVEx,_P~1is._n’ot

there is no delivery of possession of the under
Ex.P~1, which is clearifromTtheiiVptoicyeedings the trial
court dated 24.0§3.2009_an’d para 8 of the

impugned
:1; …. :p”«e:ti.:ia”‘l’:5r::V”ia’y~–..fii.i.n~§; the suit for specific
perforrnance relief of directing the

defendantsyto exlecuéte deed of conveyance. The said

aspectlv has notv…pe_e_n, kept in view while passing the

There is no delivery of possession of the

llsuigltepiropelrty Ex.P~1 in favour of the petitioner, in

V . vieufof there is no liability to pay the stamp duty

Article 5(e)(i) of Schedule of Karnataka Stamp Act,

.’ i’9:S7′;: The trial court has acted illegally in holding that,

T “the requisite stamp duty has not been paid on the

£2

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instrument — Ex.P–1. Ex.P–1 being a simple agreement,

without effecting deiivery of possession or acknowi.ecl_iij’ing

the deiivery of possession of the property prior__tfo’tine-.ciet:e4_ _

of its execution, the stamp duty of ‘<'.2QO/.+."_:'ipsaitii is

accordance with iaw.

In the respit, I pass the»c’fo_l.IowingJ:””
0Ro1ru§’iR:_V”V’ _ V
Writ petition is th_e,,i”i’mpugn’eciAvvorder is
quashed. it it i

No ‘

KSJ/-V. _