ORDER
D.V. Shylendra Kumar, J.
1. Writ petition by a company registered under the Companies Act, 1956, who is a borrower of certain amount from the fourth respondent Corporation Bank. The nature of the transaction between the Bank and the petitioner appears to include the loan sanctioned by the Bank in favour of the petitioner after obtaining title deeds of the properties o the petitioner as deposits by way of security.
2. The petitioner claims to be aggrieved by the provisions of the Karnataka Stamp (Amendment) Act, 2006 as amended by Karnataka Act No. 7 of 2006 which has come into effect from 1-4-2006 particularly the amendment in terms of Section 3 of the Amending Act, amending the provisions of Article 6 in Schedule to the Act by adding an explanation which reads as under:
3. Amendment of the Schedule.--
(1) in Article 6, in Clause (1), in Sub-clause (b), in column (3), the following explanation shall be inserted, namely.--Explanation.--For the purpose of Clause (1), notwithstanding anything contained in any judgment, decree or order of any Court order of any authority, any letter, note memorandum or writing relating to the deposit of title deeds whether written or made either before or at the time when or after the deposit of title deeds is effected, and whether it is in respect of the security for the first loan or any additional loan or loans taken subsequently, such letter, note, memorandum or writing shall, in the absence of any separate agreement or memorandum of agreement relating to deposit of such title deeds, be deemed to be an instrument evidencing an agreement relating to the deposit of title deeds.
3. The petitioner claims that it is aggrieved with this amendment in the context of a general communication issued by the fourth respondent-Bank on 8-5-2006 bringing it to the notice of its branches and its customers like the petitioner and apprising them that certain stamp duty will have to be paid under the provisions of the Karnataka Stamp Act, 1957 in view of this amendment, particularly, in respect of transactions of loans secured by a memorandum of deposit of title deeds.
4. It is because of such circular/communication issued by the legal services division of the fourth respondent-Bank, the petitioner has approached this Court for a declaration that the said amendment having the effect of creating a liability for payment of stamp duty on persons like the petitioner is unconstitutional and void and for a declaration to this effect in terms of the amended prayer as prayed in application I.A. No. 1 of 2006 praying for amendment of writ pleadings.
5. Submission of Sri Bhagwat, learned Counsel for the petitioner is that the legislative changes has a history; that a similar attempt to levy stamp duty in respect of such transactions were subject-matter of litigation and ended in judgment dated 22-11-1973 rendered by the Full Bench of this Court in the case of Murugharajendra Co. v. Chief Controlling Revenue Authority and Ors. 1974 (1) Kar. L.J. 177 (DB), holding that a letter that was the subject-matter in the judgment which had been construed as mortgage deed and liable to duty under Article 6 of the Schedule to the Act was not one such and therefore no duty was required to be paid on such a letter; that in the present case also, there is no mortgage deed as such nor any instrument as defined under Section 2(1)(j) of the Act, but by reference to the explanation to Article 6 of the Schedule to the Act, the Bank having apprised the petitioner of its possible liability to pay stamp duty, the petitioner has approached this Court seeking certain relief.
6. It is also submitted that notwithstanding such judgment, the present amendment having the effect of levying stamp duty in respect of a like transaction or even when there is no instrument in the nature of the mortgage deed, the judgment equally applies and no duty could have been levied; that the Legislature not having taken care to alter the basis for levy of stamp duty, the defect as had been pointed out by the Full Bench of this Court continues to persist and therefore the provision should be declared as void, illegal etc.
7. It is also submitted that the present attempt is also one in violation of the very definition of 'instrument' as it occurs in Section 2(1)(j) of the Karnataka Stamp Act, 1957; that what is sought to be subjected to duty in view of the explanation to Article 6 of the Schedule to the Act is on a note or a letter or a memorandum which is not even an instrument within the meaning' of Section 2(1)(j) of this Act and therefore the amendment insofar as it relates to the introduction of explanation to Article 6 in Schedule to the Act is required to be declared as unconstitutional etc.
8. One another argument urged on behalf of the petitioner by the learned Counsel for the petitioner is that a transaction of this nature is not one that is required even under the provisions of the Registration Act, 1908 and if so no stamp duty could be levied.
9. In the first instance, I do not find any need or necessity to examine the validity of the provisions of the explanation as I do not find any liability fastened on the petitioner by an authority functioning under the Act. As to whether a liability is created or not in respect of a particular transaction is essentially dependent on the fact situation, nature of the transaction, nature of the instrument, as to whether it can be termed as an 'instrument' or otherwise and so forth. As far as hypothetical as of now and the writ petition is not in the context of any such question, having actually arisen or the petitioner being affected.
10. I also do not find any need to examine the contention that the earlier judgment of this Court in Murugharajendra Co.'s case and the law as laid down therein renders the amendment equally void as I do not find any occasion to examine such causes at the instance of the petitioner. The petitioner being not a person on whom the liability is sought to be fastened in respect of a transaction prior to the date of the amendment, it is not necessary to examine such questions at the instance of persons like the petitioner.
11. No argument is addressed to show that the amended provision is either lacking legislative competence or is unconstitutional being violative of any provisions of the Constitution. If so, there is no occasion to declare the validity or invalidity of a provision.
12. If a particular transaction does not attract the levy of stamp duty and notwithstanding the authorities should embark on levying of any such duty, it is open to the petitioner to avail of the remedies available under the Act itself as and when the occasion arises.
13. No occasion to examine a matter of this nature on hypothetical grounds.
14. Writ petition is dismissed.