R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE25H DAY OF APRIL, 2024 PRESENT THE HON'BLE MR. JUSTICE S.G.PANDIT AND THE HON’BLE MR. JUSTICE C.M. POONACHA R.F.A. No.59 OF2016(SP) BETWEEN MR MAHABOOB MUNAVER S/O LATE ISMAIL MUNAVER AGED ABOUT65YEARS R/O NO.4/1, UZMA MANSION1T FLOOR, 2ND A CROSS HANUMAN LAYOUT MANORAYANAPALYA R T NAGAR POST BANGALORE-32 ...APPELLANT (BY SRI DHANANJAY V JOSHI, SENIOR COUNSEL FOR SRI H L PRADEEP KUMAR, ADVOCATE FOR LRs OF DECEASED APPELLANT) AND SRI ASHWATHANARAYANA GUPTHA M S SINCE DECEASED BY LRS1 SMT. M A RADHA DEVI W/O LATE ASHWATHANARAYANA GUPTHA M S AGED ABOUT60YEARS2. SRI M A MADHU BABU S/O LATE ASHWATHANARAYANA GUPTHA M S AGED ABOUT42YEARS23 . SRI M A SRINATH S/O LATE ASHWATHANARAYANA GUPTHA M S AGED ABOUT40YEARS4. SRI M A KEDARNATH S/O LATE ASHWATHANARAYANA GUPTHA M S AGED ABOUT38YEARS ALL ARE RESIDING AT SRI SRIKANTA GLASS AND PLAYWOODS, BRAHIMIN STREET NEW BUS STAND ROAD KOLAR PIN:563 101 …RESPONDENTS (BY SRI VASANTH V FERNANDES, ADVOCATE FOR C/R1-R4) THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE
JUDGMENTAND DECREE DATED3011.2015 PASSED IN O.S NO.195/2012 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE, KOLAR, DECREEING THE SUIT FOR SPECIFIC PERFORMANCE AND ETC. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENTON0304.2024, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, POONACHA. J., DELIVERED THE FOLLOWING:
JUDGMENTThe present first appeal is filed by the defendant under Section 96 of the Code of Civil Procedure, 19081, challenging the judgment and decree dated 30.11.2015 passed in OS No.195/2012 by the Principal Senior Civil 1 Hereinafter referred to as the ‘CPC’ 3 Judge at Kolar2, whereunder the suit for specific performance filed by the plaintiff has been decreed with costs.
2. For the sake of convenience, the parties herein are referred as per their rank before the Trial Court.
3. It is the case of the plaintiff that the defendant claims to be the owner of two vacant sites3 and offered to sell the same and accordingly, after negotiations, the plaintiff agreed to purchase the suit property and entered into an Agreement of Sale dated 18.10.20104, whereunder the defendant agreed to sell the suit property to the plaintiff for a total sale consideration of `36,50,000/- and received an advance amount of `50,000/- on the date of the Agreement. It was further agreed that the balance sale consideration of `36.00 lakhs would be paid within three months and the Sale Deed would be executed in favour of the plaintiff. 2 Hereinafter referred to as the ‘Trial Court’ 3 Hereinafter referred to as the ‘suit property’ 4 Hereinafter referred to as the ‘Agreement’ 4 4. It is the further case of the plaintiff that when he approached the defendant by the end of November 2010 to complete the sale transaction, the defendant sought for some time. That inspite of repeated attempts, the defendant went on postponing to perform his part of the contract. That the plaintiff got issued a legal notice dated 4.11.2011 calling upon the defendant to come to the office of the Sub Registrar, Kolar on 21.11.2011 to execute the registered Sale Deed and receive the balance sale consideration. That despite service of the notice on the defendant, there is no response to the same. It is averred that the plaintiff was always ready and willing to perform his part of the contract. That the defendant has evaded performing the contract. Hence, the plaintiff filed a suit for specific performance.
5. During the pendency of the suit, the plaintiff died and his wife and children came on record as his legal representatives. 5
6. The defendant entered appearance in the suit and filed his written statement denying the case of the plaintiff. The defendant has further contended that the plaintiff is incapable of performing his part of the contract since he has only paid a sum of `50,000/- out of the sale consideration of `36,50,000/- and that the plaintiff was not in a position to pay the balance sale consideration. Hence, he sought for dismissal of the suit.
7. Consequent to the pleadings, the Trial Court framed the following issues: i) “Whether the plaintiff proves that the defendant has agreed to sell the suit schedule properties to him and executed an agreement of the sale dated 18.10.2010 for valuable consideration of `36,50,000/- and received part sale consideration amount of `50,000/-?. ii) Whether plaintiff proves that he was/is always ready and willing to perform his part of contract?. iii) Whether plaintiff is entitled to the relief of specific performance of contract?. iv) What order or decree?.
8. Plaintiff No.1(d) examined himself as PW.1. A witness to the Agreement was examined as PW.2. The advocate who drafted the Agreement was examined as 6 PW.3. Exs.P1 to P14 were marked in evidence. The defendant examined himself as DW.1. The wife of the defendant was examined as DW.2. Exs.D1 to D5 were marked in evidence. The Trial Court, by its judgment and decree dated 30.11.2015 decreed the suit and passed the following order: “The suit of the plaintiff/LRS is hereby decreed with costs. It is hereby ordered and decreed that defendant shall execute the regular registered sale deed by receiving balance sale consideration of `36 lakhs (Rupees Thirty lakhs only) from him in respect of the suit schedule properties in favour of the plaintiff/LRs as per the sale agreement dt. 18.10.2010-Ex.P1 within 60 (sixty) days from the date of this judgment. In the event of defendant failing to execute the same, the plaintiff/s are called upon to deposit the said amount into the court and get the registered sale deed executed in their favour through due process of law. I call upon the office to draw the decree accordingly.
9. Being aggrieved, the present appeal is filed by the defendant. 7
10. Sri Dhananjay V.Joshi, learned Senior Counsel appearing for Sri H.L.Pradeep Kumar, learned counsel for the appellant/defendant contends that the Agreement of Sale dated 18.10.2010 (Ex.P1) is insufficiently stamped and the instrument ought to have been impounded and the respondents/plaintiffs ought to have been directed to pay the stamp duty. That there is no evidence to establish the readiness and willingness on the part of the plaintiff to perform his part of the Agreement. That the finding recorded by the Trial Court holding that Ex.P1 has been executed by the defendant is erroneous and liable to be set aside.
11. Per contra, Sri Vasanth V. Fernandis, learned counsel for the respondents/plaintiffs justifying the judgment and decree passed by the Trial Court submits that although the defendant has denied execution of the Agreement, the plaintiffs have examined the witness and the scribe and as rightly recorded by the Trial Court the defendant has agreed to sell the suit property in favour of the original deceased plaintiff. Further, he submits that 8 the plaintiffs have produced sufficient documents to demonstrate that they were always ready and willing to perform their part of the contract and the finding of the Trial Court regarding readiness and willingness also is not liable to be interfered with. Hence, he seeks for dismissal of the appeal.
12. The submissions of both the learned counsel have been considered and the material on record including the records of the Tribunal have been perused. The questions that arise for consideration are: i) Whether the finding of the Trial Court holding that the plaintiff has proved due execution of the Agreement dated 18.10.2010 is just and proper?. ii) Whether the finding of the Trial Court holding that the plaintiff was ready and willing to perform his part of the contract is just and proper?. iii) Whether the judgment and decree of the Trial Court is liable to be interfered with?. 9 Re. question No.(i):
13. In order to prove due execution of the Agreement of Sale dated 18.10.2010 (Ex.P1), plaintiff No.1(d) examined himself as PW.1 and he has stated that his father who died on 8.5.2013 had entered into the Agreement (Ex.P1) with the defendant, wherein the suit property was agreed to be sold by the defendant to the deceased plaintiff for a sum of `36,50,000/- and an advance of `50,000/- has been paid on the date of the Agreement. The averments made in the plaint have been reiterated in the affidavit by way of examination-in-chief filed on behalf of PW.1.
14. A witness to Ex.P1 has been examined as PW.2, who has deposed that himself and two other witnesses namely K.N.Murali Krishna and Mrs.Nargisara i.e., the wife of the defendant have put their signatures on the Sale Agreement as witnesses and that the Agreement was prepared by one S.M.Venkatesh, Advocate, Kolar. PW.2 has identified the signatures on the document. He 10 has further deposed that at the time of the Agreement itself, the deceased plaintiff has paid `50,000/- in cash to the defendant as advance sale consideration.
15. PW.3 is the Advocate who drafted the Agreement (Ex.P1) and he has deposed that on 18.10.2010 the defendant came along with the deceased plaintiff and others. That on the request of the deceased plaintiff, he has prepared the Agreement as desired and instructed by the defendant. That he read over the contents of the Agreement to both the parties and that the defendant and his wife and a witness affixed their signatures to the said Agreement and after their signatures, he affixed the signature along with the seal on the said Agreement.
16. Although PWs.1 to 3 have been cross- examined at length by the defendant, nothing is forthcoming in their cross-examination to disbelieve their testimony.
17. The defendant examined himself as DW.1 and he has deposed that he has not executed any Agreement 11 in favour of the deceased plaintiff and that his wife has not attested the said Agreement. It is also contended that his name is Mahaboob Munawar and not Mehaboob Munawar Pasha. He has produced his SSLC Marks card (Ex.D1) and other documents to demonstrate the same.
18. The wife of the defendant has been examined as DW.2, who has also deposed that her husband has never executed any Agreement and that she and her husband had shifted to Bengaluru from Kolar when the Agreement has been created by the deceased plaintiff. That she is working as a Government School Teacher and on the date of the Agreement i.e., 18.10.2010 she was working and hence, the question of she going to Kolar to affix the signature does not arise. Although DW.2 has also denied execution of the Agreement, in the cross- examination she admits the signature of the defendant on Ex.P1.
19. Having regard to the fact that the plaintiffs have examined a witness to the Agreement as PW.2 and the scribe of the Agreement as PW.3 as also having regard 12 to the fact that DW.2 has admitted the signature of DW.1, it is clear that the plaintiffs have adequately proved the due execution of the Agreement (Ex.P1). Although, the defendant examined himself as DW.1 and another witness as DW.2, as noticed above, DW.2 has admitted the signature of DW.1 in Ex.P1. Further, having regard to the evidence available on record, the plaintiff has adequately proved the due execution of Agreement (Ex.P1). The Trial Court has appreciated the oral evidence of PWs.1, 2 and 3 and the other documentary evidence on record and has recorded a finding that the evidence adduced by the plaintiffs is consistent and their credibility has not been shaken in the cross-examination. Hence, the Trial Court has answered issue No.1 in the affirmative and held that the Agreement has been proved.
20. In view of the aforementioned, it is clear that the plaintiffs have proved the due execution of the Agreement and finding of the Trial Court on issue No.1 is just and proper. Hence, question No.(i) framed for consideration is answered in the affirmative. 13 Re. question No.(ii):
21. To demonstrate their readiness and willingness, the plaintiffs have got marked Exs.P11, P12 and P13, which are the bank statements of plaintiff Nos.1(b), 1(c) and 1(d) respectively. However, it is relevant to note that the said documents are the bank account statements for the period from 1.4.2013 to 31.3.2014. The plaintiffs have also produced the VAT Registration Certificates of plaintiff Nos.1(b), (c) and (d) as Ex.P8, P9 and P10 respectively.
22. In the plaint, the deceased plaintiff has averred that he was ready and willing to complete the sale transaction. In the affidavit by way of examination-in- chief of PW.1, who is plaintiff No.1(d) has stated that during the lifetime of his father he was always ready and willing to perform his part of the contract and after the death of his father, himself and the other plaintiffs were always ready and willing to perform their part of the contract. 14
23. In this context, it is relevant to note that there is no documentary material on record to demonstrate that from the date of the Agreement i.e., from 18.10.2010 up to the date of the death of the original plaintiff i.e., 8.5.2013, the deceased plaintiff had the necessary funds at his disposal to pay the balance sale consideration. The bank account statements at Exs.P11 to P13 also do not have as their balance a sum of `36.00 lakhs as the balance sale consideration.
24. Although, it is the vehement contention of the learned counsel for the respondents/plaintiffs that the VAT Registration Certificates at Exs.P8 to P10 are with regard to the joint family business and the plaintiff Nos.1(b) to (d) were carrying on business and they had the necessary funds to complete the sale transaction, there is neither any averment nor any material on record to demonstrate the same.
25. The Trial Court, while recording its finding on issue No.2 regarding readiness and willingness, has merely had the fact in mind that Agreement (Ex.1) has been 15 proved and recording the conduct of the defendant in repeatedly changing the counsel and also by recording that plaintiffs need not show that they had sufficient bank balance, answered the said issue in the affirmative. It is relevant to note that the plaintiffs have not demonstrated that the necessary funds were available in the bank accounts of either the deceased plaintiff or the legal representatives who have subsequently come on record, nor has it been demonstrated that they had the capacity to raise the necessary funds to pay the balance sale consideration.
26. The Hon'ble Supreme Court in the case of U.N.Krishnamurthy (since deceased) Thr. Lrs., v. A.M.Krishnamurthy5 considering the aspect of readiness and willingness has held as follows: “24. Section 16 (c) of the Specific Relief Act, 1963 bars the relief of specific performance of a contract in favour of a person, who fails to aver and prove his readiness and willingness to perform his part of contract. In view of Explanation (i) to clause (c) of Section 16, it may not be essential for the plaintiff to actually tender money to the defendant or to deposit money in Court, except when so directed by the 5 2022 SCC OnLine SC84016 Court, to prove readiness and willingness to perform the essential terms of a contract, which involves payment of money. However, explanation (ii) says the plaintiff must aver performance or readiness and willingness to perform the contract according to its true construction.
25. To aver and prove readiness and willingness to perform an obligation to pay money, in terms of a contract, the plaintiff would have to make specific statements in the plaint and adduce evidence to show availability of funds to make payment in terms of the contract in time. In other words, the plaintiff would have to plead that the plaintiff had sufficient funds or was in a position to raise funds in time to discharge his obligation under the contract. If the plaintiff does not have sufficient funds with him to discharge his obligations in terms of a contract, which requires payment of money, the plaintiff would have to specifically plead how the funds would be available to him. To cite an example, the plaintiff may aver and prove, by adducing evidence, an arrangement with a financier for disbursement of adequate funds for timely compliance with the terms and conditions of a contract involving payment of money.
34. There is a distinction between readiness and willingness to perform the contract and both ingredients are necessary for the relief of Specific Performance. In His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar [(1996) 4 SCC526 cited by Mr. Venugopal, this Court said that there was a difference between readiness and willingness to perform a contract. While readiness means the capacity of the Plaintiff to perform the contract which would include his financial position, willingness relates to the conduct of the Plaintiff. The same view was taken by this Court in Kalawati v. Rakesh Kumar [2018) 3 SCC658.
35. Even in a first appeal, the first Appellate Court is duty bound to examine whether there was 17 continuous readiness and willingness on the part of the Plaintiff to perform the contract. ….” (emphasis supplied) 27. It is a settled position of law that the plaintiffs are required to plead and prove that they had the necessary funds or they had the capacity to pay the balance sale consideration and the same is required to be demonstrated from the date of the Agreement till passing of the decree for specific performance. The plaintiffs have miserably failed to demonstrate the same. Hence, the finding recorded by the Trial Court on issue No.2 regarding readiness and willingness is erroneous and liable to be interfered with. Hence, question No.(ii) framed for consideration is answered in the negative. Re. question No.(iii):
28. It is the vehement contention of the appellant- defendant that the Agreement of Sale dated 18.10.2010 (Ex.P1) is insufficiently stamped and having regard to 18 Section 58 of the Karnataka Stamp Act 19576, the said document is required to be impounded by this Court.
29. Before considering the said contention, it is relevant to notice the relevant factual aspects regarding the same. When the suit was at the stage of defendant’s arguments, the defendant filed an application on 13.11.2015 under Section 30 of the Stamp Act to dismiss the suit by imposing penalty on the ground that the proper stamp duty is not paid in respect of the Agreement of Sale dated 18.10.2010. The Trial Court considered the said application and vide its order dated 13.11.2015 noticed that when the Agreement of Sale dated 18.10.2010 (Ex.P1) was marked, no objection regarding the stamping of the said agreement was taken and hence, the document was marked as an exhibit. The trial Court considered various aspects of the matter and by the said order dated 13.11.2015, dismissed the said application on cost.
30. The relevant provision of the Stamp Act i.e., Sections 35 and 58(1) read as under:
6. Hereinafter referred to as ‘Stamp Act’ 19 30.1 Section 35 of the Stamp Act states as follows: “35. Admission of instrument where not to be questioned.-. Where an instrument has been admitted in evidence such admission shall not, except as provided in section 58, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.
30.2 Section 58(1), (2) and (3) of the Stamp Act states as follows: “58. Revision of certain decisions of Courts regarding the sufficiency of stamps. – (1) When any Court in the exercise of its Civil or Revenue jurisdiction or any Criminal Court in any proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898, makes any order admitting any instrument in evidence as duly stamped or as not requiring a stamp, or upon payment of duty and a penalty under section 34, the Court to which appeals lie from, or references are made by, such first mentioned Court may, of its own motion or on the application of the Deputy Commissioner, take such order into consideration. (2) If such Court, after such consideration, is of opinion that such instrument should not have been admitted in evidence without the payment of duty and penalty under section 34, or without the payment of a higher duty and penalty than those paid, it may record a declaration to that effect, and determine the amount of duty with which such instrument is chargeable, and may require any person in whose possession or power such instrument then is, to produce the same, and may 20 impound the same when produced. (3) When any declaration has been recorded under sub-section (2), the Court recording the same shall send a copy thereof to the Deputy Commissioner and, where the instrument to which it relates has been impounded or is otherwise in the possession of such Court, shall also send him such instrument.
31. It is relevant to note the following judgments:
31. 1 A seven judge Bench of the Hon’ble Supreme Court in the case of Re: Interplay between Arbitration Agreements under the Arbitration and Conciliation Act 1956 and the Indians Stamp Act 18997, has held as follows: “M. Conclusions:
224. The conclusions reached in this judgment are summarised below: a. Agreements which are not stamped or are inadequately stamped are inadmissible in evidence under Section 35 of the Stamp Act. Such agreements are not rendered void or void ab initio or unenforceable; b. Non-stamping or inadequate stamping is a curable defect;……..” (emphasis supplied) 21 31.2 A learned Single Judge of this Court in the case of Savithramma R.C v. M/s. Vijaya Bank & Anr.,8 considering a situation as to whether the objections regarding stamp duty could be taken after a document is marked in evidence has held as follows: “6. From the aforesaid statutory provisions and the decisions, it is clear that a duty is cast upon every Judge to examine every document, which is produced or comes before him in the performance of his functions. On such examination, if it appears to the Judge that such instrument is not duly stamped, an obligation is cast upon him to impound the same. This duty is to be performed by the Judge irrespective of the fact whether any objection to its marking is raised or not. Hence, there is a need for diligence on the part of the Court having regard to the statutory obligation under Section 33 of the Karnataka Stamp Act. Section 34 of the Karnataka Stamp Act mandates that an instrument, which is not duly stamped shall not be admitted in evidence. If any objection is taken to the admissibility of the evidence, it shall be decided then and there. If this document is found to be insufficiently stamped, then in terms of the proviso (a) to Section 34, the Court shall call upon the person, who is tendering the said document to pay duty and ten times penalty and thereafter admit the document in evidence. If duty and penalty is not paid, the document shall not be admitted in evidence. If such an objection is not taken at the time of admitting the said instrument in evidence, and the insufficiently stamped document is admitted in evidence then Section 35 of the Act provides that such admission shall not be called in question at any stage of the same suit or 7 AIR2024SC18 ILR2015KAR198422 proceeding on the ground that the instrument has not been duly stamped. It has nothing to do with impounding the document. …..” (emphasis supplied) 31.3 A learned single Judge of this Court in the case of Susheela S.Sheregar v. Jayanth Kumar Shetty & Ors.,9 while considering Sections 35 and 58 of the Stamp Act has held as follows: “10. It is noted that Section 35 of the Act itself carves an exception in the form of Section 58 of the Act. On a reading of these two Sections harmoniously, it would become clear that while there is a bar for questioning any document which has been admitted in evidence, subsequently in the same suit of proceeding on the ground that the instrument has not been duly stamped with no such objection being raised at the time of its admission, under Section 58 of the Act, the appellate Court on its own motion or on the application of the Deputy commissioner could taken into consideration the order admitting in evidence any instrument as duly stamped or as not requiring a stamp, or upon payment of duty and penalty under Section 34 and consider the correctness of that order. Sub-section (2) of Section 58 of the Act deals as to what the appellate Court should do after taken into consideration the order passed by the trial Court. Learned counsel for the respondent No.1 submitted that it is only when an objection has been raised with regard to admission of any document and an order being passed by the trial Court admitting that document, in such a case only, the order admitting the document could be considered by the appellate Court and not when no objection was raised by the 9 Order dated 27.1.2017 passed in WP No.253-255/2017 (GM-RES) 23 opposite party for marking of the document. He contended that in such a case the appellate Court would be bound by what the trial Court had done at the time of marking of an inadmissible document or instrument, when there was no objection to the marking of the same and had admitted the document.
11. Such a interpretation cannot be accepted for the simple reason that a harmonious reading of Section 35 and Section 58 of the Act would indicate that, Section 58 is an exception of Section 35 of the Act. If a party does not raise any objection to the marking of a document which is inadmissible in evidence, then such a party would lose his right to object to the same in the same proceeding or even subsequently. In other words, as has been stated by this Court in the case of Gajanan Seshappa Hegde Vs. Venkatraman Sheshappa Hegde and others reported in 1999(2) KLJ462 the right to object would be waived and no objection can be taken even before the appellate Court. But, if a document which could not have been admitted in evidence, has in fact been admitted in evidence by the trial Court, without there being any objection, it cannot be held that the appellate Court would be bound by the admission of such document by the trial Court, if it has been wrongly admitted in evidence. The appellate Court could consider the admission of such a document in accordance with law on its own motion or on the application of the Deputy Commissioner. The power granted to the appellate Court under Section 58 of the Act cannot be scuttled by what has been stated under Section 35 of the Act. In fact Section 58 of the Act is an exception to what is stated in Section 35 of the Act. Therefore, even if a party has not objected to the marking of a document or admissibility of such a document in evidence by the trial Court, the correctness of the same could be considered by the appellate Court. In fact, it would be necessary to do so by the appellate Court, if on the basis of such a document, the suit has been decreed. 24
14. In the aforesaid terms it is held that the petitioner herein could not have invoke Section 58 of the Act for the purpose of seeking a review of marking of Ex.D8 and also the admissibility of the said document in evidence. The appellate Court therefore rightly rejected that application. However, having regard to the scope of Section 58 of the Act, the appellate Court could suo motu exercise its jurisdiction under that provision if it so thinks.” (emphasis supplied) 31.4 A learned single Judge of this Court in the case of Sri R.Mahesh and Another v. Sri B.P.Venugopal10 considering Sections 35 and 58 of the Stamp Act has held as follows: “15. There can be no dispute with regard to the proposition of law, that once a document is admitted in evidence, the order admitting the document cannot be revised or reviewed by the said Court itself. The provisions of Section 58 address a wholly different circumstance. The provisions of Section 58 read in conjunction with the provisions of Section 35 of the Act provide for instances where the Court may, after the document has been admitted, conclude that the same is chargable to duty or is insufficiently stamped.
16. From a bare and conjoint reading of Sections 33 and 34 of the Act, it is apparent that both the Court and any such Authority before whom the document is produced are empowered to and duty bound to impound the document which would result in the document being made unavailable for 10 ILR2018KAR302925 consideration pending payment of necessary stamp duty and penalty. In the event of such document being marked on account of inadvertence or on the Court failing to detect the same on scrutiny, the Act provides for collection of the duty and penalty on such documents, which have evaded scrutiny as provided under sub-Section (2) of Section 58 of the Act.
17. A plain reading of sub-Section (2) of Section 58 of the Act makes it apparent that the Court is not rendered powerless or functus officio on account of an un-registered or insufficiently stamped document being marked and being admitted in evidence. On the contrary, the provisions of Section 58(2) mandate the Court below to record a declaration to the effect that the document already marked is one on which the duty and penalty or higher duty and penalty is chargeable. On the Court recording such a declaration, it is thereafter required to impound the same for the purpose of forwarding it to the Deputy Commissioner, who thereafter shall notwithstanding anything contained in the order admitting such instrument prosecute the person for any offences under the Act. The proviso to sub-Section 4 of Section 58 of the Act further provides that no such prosecution shall be instituted provided the amount including duty and penalty is paid to the Deputy Commissioner.
18. Thus, from the ambit of Section 58 of the Act, it is apparent that the Trial Court has rendered an erroneous order. In respect of a document, which is already marked, the Court is entitled to subsequently hold it to be a document which is not stamped or insufficiently stamped and it shall also determine the amount of duty with which such instrument is chargeable. This is the only conclusion that can be drawn, keeping in view the purpose of the Act, which is to secure the revenue of the State. …. 26
19. It is held that the Court below is entitled to impound a document already admitted in terms of Section 58 for the limited purpose of ascertaining the duty and calling upon for payment of the same and also refer it to the Deputy Commissioner for prosecution only. The order impounding the admitted document under Section 58 will in no way impinge or entrench upon the sanctity of the order admitting the documents nor will it amount to a review of the order admitting the documents. “ (emphasis supplied) 32. Keeping in mind the fact situation as well as the legal position, as noticed above, notwithstanding the fact that the Agreement of Sale dated 18.10.2010 (Ex.P1) was marked and no objection regarding the stamping was taken, having regard to Section 58 of the Stamp Act, it is open to this Court, while considering the above appeal to consider whether the document is adequately stamped and pass necessary orders in that regard.
33. It is the contention of the learned counsel for the appellant/defendant that the Agreement of Sale dated 18.10.2010 (Ex.P1) attracts a stamp duty of `9125/- as on the date of its execution per Article 5(e)(ii) of the Stamp Act. It is forthcoming that no stamp duty is paid on the 27 said Agreement (Ex.P1) and the said document is merely printed on two sheets of document paper valued at `2.00 each.
34. Having regard to proviso (b) to Section 33(2) of the Stamp Act, it is just and proper that the objection regarding stamping of Agreement (Ex.P1) is upheld and the said document be impounded. The duty of examining the said document for assessing the duty and penalty payable is delegated to the jurisdictional Deputy Commissioner of Stamps to determine and assess the same. Consequent to the assessment made by the jurisdictional Deputy Commissioner of Stamps, the plaintiff to pay the duty and penalty and the modified decree to be drawn only after the plaintiff furnishes the receipt for having paid the duty and penalty as adjudicated by the jurisdictional Deputy Commissioner of Stamps. Hence, question No.(iii) framed for consideration is answered partly in the affirmative.
35. In view of the aforementioned, the following:
28.
ORDERi) The above appeal is partly allowed; ii) The judgment and decree dated 30.11.2015 passed in OS No.195/2012 by the Principal Senior Civil Judge at Kolar, is set aside; iii) The suit filed by the plaintiff in OS No.195/2012 on the file of the Principal Senior Civil Judge, Kolar, is partly decreed by directing the defendant to pay the plaintiffs a sum of `50,000/- together with interest at 12% pa., from the date of Agreement till date of payment with costs; iv) The Agreement of Sale dated 18.10.2010 (Ex.P1) is impounded. For the purpose of assessing the duty and penalty payable under the said document, the Registry shall send the said document to the jurisdictional Deputy Commissioner of Stamps; v) Modified decree to be drawn after the receipt for having paid the duty and penalty on the 29 Agreement of Sale dated 18.10.2010 (Ex.P1) is furnished by the plaintiff. No costs. Sd/- JUDGE Sd/- JUDGE nd/-