Shri. Kallappa Appa Shandage Vs. Shri. Sanjay Shankar Shandage - Court Judgment

R IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE8H DAY OF JUNE, 2021 BEFORE THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM W.P.NO.109547/2015 (GM-CPC) BETWEEN : SHRI.KALLAPPA APPA SHANDAGE, AGE:

46. YEARS, OCC: AGRICULTURE, R/O KARADAGA-591246 TALUK: CHIKODI, DIST:BELAGAVI. ... PETITIONER (BY SRI.SHARAD.V.MAGADUM, ADVOCATE) AND :

1. SHRI SANJAY SHANKAR SHANDAGE AGE:

36. YEARS, OCC: SERVICE R/O DONWAD-591184 TALUK: CHIKODI, DIST: BELAGAVI.

2. SHRI RAJENDRA SHANKAR SHANDAGE AGE:

41. YEARS, OCC: SERVICE R/O. KUNNUR - 591288 TALUK: CHIKODI, DIST: BELAGAVI. ... RESPONDENTS (BY SRI SHANJAY.S.KATAGERI, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER

DATED:07.08.2015, PASSED BY THE SENIOR CIVIL2JUDGE, CHIKODI ON IA.NO.3 IN OS.NO.103/2014, WHICH IS PRODUCED AT ANNEXURE-F. THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDER

S ON1504.2021 AND COMING ON FOR PRONOUNCEMENT OF ORDER

S, THIS DAY, THE COURT MADE THE FOLLOWING: : ORDER

: The captioned writ petition is filed challenging the order dated 07.08.2015 passed by the Senior Civil Judge, Chikodi on I.A.No.3 in O.S.No.103/2014 as per Annexure-F.

2. The facts leading to the top noted writ petition are as under: The petitioner-plaintiff instituted a suit for specific performance in O.S.No.103/2014. The contention of the petitioner is that respondents- defendants on account of family need and necessity offered to sell the suit land, which was accepted by the petitioner herein and in terms of the negotiations, the respondents-defendants executed an agreement to sell the suit land for 3 sale consideration of Rs.6,27,000/- on 31.3.2014. It is also stated that pursuant to suit agreement, the present petitioner-plaintiff had paid a sum of Rs.6 lakhs as earnest money and balance sale consideration of Rs.27,000/- was agreed to be paid at the time of execution of registered sale deed. The petitioner has also specifically pleaded at Para 3 of the plaint that original agreement is lost and accordingly, the complaint is lodged with the jurisdictional police. It is also stated that paper publication regarding loss of the original agreement of sale is also given. By laying foundation to lead secondary evidence the petitioner-plaintiff has produced notarized copy of suit agreement. Probably in this background, the petitioner- plaintiff filed an application in I.A.No.3 requesting the Court to permit the petitioner- plaintiff to pay deficit stamp duty and penalty, if 4 any. Since the suit agreement is notarized xerox copy and is insufficiently stamped, the said application filed in I.A.No.3 was strongly resisted by the respondents-defendants. The objection raised by the respondents-defendants was deficit stamp duty and penalty can be paid only in respect of original documents. The respondents- defendants raised a strong objection that the copy of the document cannot be marked in evidence and therefore, party relying upon the said document cannot be called upon to pay duty. The learned Judge having examined the rival contentions has rejected the application by holding that the copy of the document insufficiently stamped is inadmissible. The learned Judge by relying on the judgment of the Apex Court rendered in State of Bihar .vs. Karam Chand Thapar and Brothers Limited1 has come to the conclusion that the xerox copy of 1 AIR1962SC1105 the documents cannot be validated and acted upon and no decree can be passed thereon. Being aggrieved by the said order, the petitioner-plaintiff is before this Court assailing the correctness of the order under challenge.

3. The learned counsel appearing for the petitioner-plaintiff would vehemently argue and contend before this Court that the petitioner to substantiate his claim has already laid a foundation in the plaint for having lost the original agreement of sale and therefore the notarized copy of the same is produced. The notarized copy of the agreement of sale being a suit agreement is admissible in evidence and therefore, he would submit to this Court that the order under challenge rejecting the application filed by the petitioner herein in I.A.No.3 suffers from serious material irregularity. 6

4. To buttress his arguments, he would place reliance on the judgment rendered by this Court in the case of Residents of Shri Chitrapur Co-Operative Housing Society Limited, Bengaluru .vs. District Registrar, Bangalore Urban Disrict, Bangalore and another2. The counsel would also place reliance on the decision of the Co-Ordinate Bench of this Court rendered in Shanthi Vijaydev .vs. L.M. Rasan [W.P.No.1573/2017].. The learned counsel appearing for the petitioner would also bring to the notice of this Court the insertion by Amendment Act No.24/1999 to Section 3 of the Karnataka Stamp Act, 1957(for short "the Act 1957"). By placing reliance on the said amendment, the learned counsel would further submit that the explanation incorporated to Section 3 clearly contemplates that even a copy of the original document whether certified or not is chargeable with a duty of an amount which is 2 2008(3) Kar.L.J.377 7 indicated in the Schedule as proper duty for the original of such instrument. He would also further submit to this Court that the explanation clearly contemplates that all the provisions of Chapters IV,VI,VII and VIII of the Act, 1957 shall mutatis mutandis applicable to such copy of the original document. By relying on the said explanation, he would submit to this Court that the order passed by the learned Judge is illegal and contrary to the amendment brought to Section 3 of the Act, 1957. Therefore, he would submit that the order under challenge warrants interference by this Court.

5. Per contra, the learned counsel appearing for the respondents-defendants would vehemently argue and contend that the order under challenge is in accordance with law and therefore, would not warrant interference by this Court. He would submit that Sections 35 and 36 of Stamp Act clearly contemplates that the 8 secondary evidence either by way of oral evidence or copy of the document insufficiently stamped is inadmissible. The learned counsel for the respondents relying on the judgment rendered by this Court in the case of S. Suresh .vs. L. Pothe Gowda and others [2010(6) Kar.L.J.1663 would submit to this Court that the document which is in the nature of xerox copy of original document if sought to be produced in evidence, impounding of xerox of original document would not arise. To buttress his arguments, he has also placed reliance on the decision of the Hon'ble Apex Court rendered in Jupudi Kesava Rao .vs. Pulavarthi Venkata Subbarao and others4. Relying on these two decisions, he would profusely argue and contend that Sections 35 and 36 are not concerned with the copy of the document. A party can be allowed to rely on a document which is an 3 2010(6) Kar.L.J.

166 4 AIR1971SC10709 instrument for the purpose of this Section. He would argue that the Hon'ble Apex Court was of the view that Section 36 of the Act of 1957 does not apply to secondary evidence. Therefore, he would submit that the learned Judge was perfectly right in rejecting the application filed in I.A.No.3.

6. I have meticulously examined the pleadings of the parties and also given my anxious consideration to the reasons and conclusions arrived at by the learned Judge while passing the order on I.A.No.3. The present suit is one for specific performance of contract. The petitioner-plaintiff has filed the present suit by producing the notarized copy of the suit agreement. If these material aspects are taken into consideration, I am of the view that the agreement of sale is a suit document. If this document is taken out of context, then the petitioner would invariably fail and has to suffer 10 the decree of dismissal. The petitioner-plaintiff intends to rely on the notarized copy of the suit agreement and accordingly, he has filed an application in I.A.No.3 calling upon the learned Judge to impound the document and determine the stamp duty and penalty, if any. The said application is rejected by the learned Judge by relying on the judgment rendered by the Hon'ble Apex Court in the case of State of Bihar .vs. Karam Chand Thapar and Brothers Limited(supra). Basing reliance on the judgment cited supra, the learned Judge has come to the conclusion that the determination of deficit stamp duty and penalty would arise only in cases of unstamped or insufficiently stamped documents actually produced in Court and law does not provide for levy of penalty on lost document. The impugned order however needs to be tested by this Court in the light of the amendment to the Karnataka Stamp Act by Act No.24/1999. The explanation is incorporated to 11 Section 3 of the Act, 1957. The said explanation would be relevant and therefore, it would be useful to refer to the same, which reads as follows:

"Explanation-Where no proper duty has been paid on the original of an instrument which is chargeable with an amount indicated in the Schedule as proper duty therefor, then a copy of such instrument whether certified or not and whether a facsimile image or otherwise of the original shall be chargeable with duty of an amount which is indicated in Schedule as proper duty for the original of such instrument, and all the provisions of this chapter and Chapters IV, VI, VII and VIII of this Act shall mutatis mutandis be applicable to such copy of the original.

7. On a bare reading of the explanation which is incorporated by amendment Act No.24/1999 to the Stamp Act would clearly indicate that even on a copy of the original document, proper duty and penalty can be determined in the event the party tenders xerox copy of the same. The explanation also indicates 12 that the provisions of Chapters IV, VI, VII and VIII are applicable even to the copy of the original document. If this explanation to Section 3 of the Act, 1957 is taken into consideration then I am of the view that the impugned order under challenge is contrary to explanation incorporated by way of amendment to Section 3 of the Act, 1957. The learned Judge was not justified in relying on the judgment rendered by the Apex Court in the case of State of Bihar .vs. Karam Chand Thapar and Brothers Limited(supra). The learned Judge was required to place reliance on the explanation to Section 3 of the Act, 1957 which is applicable to the present case on hand. The decision cited by the learned counsel for the respondents has no application to the present case on hand. Though this Court has no cavil to the proposition laid down by the Hon'ble Apex Court in the judgment cited by the learned counsel for the respondents, however, the proposition laid down therein has 13 no application to the present case on hand in view of amendment to Section 3 of the Stamp Act, 1957.

8. This Court in the case of B.V. RAMACHANDRE GOWDA .VS. SMT. KEMPAMMA AND ANOTHER5 had an occasion to consider the case in the light of the Explanation incorporated to Section 3 of the Act, 1957. At para(6) of the judgment, this Court was of the view that even a copy of the original document whether certified or not and whether a fascimile image or otherwise of the original is chargeable with duty of an amount which is indicated in Schedule as proper duty for the original of such instrument. This Court was of the view that provisions of Chapters IV, VI, VII and VIII of the Act, 1957 shall mutatis mutandis be applicable even to a copy of the original document. The principle laid down by this Court in the judgment cited supra is 5 2015(4) Kar.L.J.282 14 squarely applicable to the present case on hand and therefore, I am of the view that the order passed by the learned Judge in rejecting I.A.No.3 suffers from material irregularity.

9. For the foregoing reasons, I pass the following: ORDER

The writ petition is allowed. The impugned order dated 07.08.2015 passed by the Senior Civil Judge, Chikodi, on I.A.No.3 in O.S.No.103/2014 as per Annexure-F is set aside. The application filed in I.A.No.3 is allowed. The learned Judge is directed to impound the document and determine the deficit stamp duty, if any and penalty, in accordance with law. Sd/- JUDGE *alb/-.