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$g:):'r-Eff
BETWEEN:
Sri Richard Percival D'Souza,s'
S/0. Sri A.Vincent D'Souza,
Aged about 52 years,
Residing at No.6,
Aswathkatte Road,
Chikkaiasandra, ' :
Bengaluru -- 560 061. ' "
_ . ' PETITIONER
(By Sri A.MadijusI;jdhana, Rap, Am)"
1. Sri C.P':T_aya|,'"_ . ',
S/en, Sri M.i{.Ta.y~aI,"v.
A§3edarabout'52'years,
. '-R/at..,'No;e--1S, Mar-:'a'sh Compiex,
. W.§\E0.10,, Convent Road,
V
KV..B'ha--.siéara Raju,
S'/0."---Sri"S.Krishnaraju,
Aged about 37 years,
I .rR_esiding at No.123,
x_J.F_'.Nagar III Phase,
Bengaluru -- 560 078.
A "'(F3y Sri S.Ramu, Adv. for R1)
RESPONDENTS
This writ petition is filed under Articles 226 and 227
of the Constitution of India, praying to quash the
impugned order found at Annexure – G dated 8.3.20-10 in
IA No.8 in O.S.l\£o.3076/1999 passed by the Learnedr~.,_1iJ,,_”‘
Additionai City Civil Judge, Bangalore.
This petition coming on for preliminary M
group this day, the Court made the fo|lowin_g:—-».._.
QRDERE,
Petitioner is the aiaiintitt in,Cos.r:itdf’.:s,e.?§/1_7999
pending on the file of City The
respondents are the defendarifts The suit is for
specific performance of agreement of sale
dated 17. i’2′””n’tAdetendant, being
the af|egedof_attovrney holder and also as
agreement * 15′ defendant. The 15′
defendant has_fiie.d’:–wntte’n statement admitting that, he is
“V’s-..the’-pilvriier ‘of,theftsutttvproperty. However, he has denied
in the piaint that, the 2” defendant is
thepower’ofyattorney holder and there is an agreement of
“asaie betitieen him and the 2″ defendant on 30.01.1996.
defendant has specificaily denied any transaction in
‘respect of the suit property between himself and the 2″”
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La-J
respondent. He has stated that, he does not know either
the 2″” defendant or the piaintiff. He has questioned’-._the
maintainability of the suit and has sought V.
suit. The 2″” defendant is stated to have fi|ed”:.t_:he:Vwirittern$_,’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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y
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.
\
/_
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
‘t
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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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E0
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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II
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
12
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. _