The petitioner has preferred this writ petition challenging the order passed by the trial Court impounding the Power of Attorney which was sought to be marked by the plaintiff and directing him to pay duty and penalty.

2. The plaintiff has filed a suit for specific performance of the agreement of sale against the defendants. The defendants are contesting the suit. Issues are framed. The Plaintiff, during the course of evidence has produced the agreement of sale which is marked as Ex. P.1. He sought to produce the power of attorney executed by the defendants in favour of his brother Mr. Sunil Bhatia to show that not only the agreement is executed but it is also acted upon. At this stage, the defendants objected to marking of the Power of Attorney on the ground that it is required to be stamped as a conveyance in terms of Article 41 of the Karnataka Stamp Act, 1957 but insufficiently stamped. It is contended by the plaintiff, before the trial court that the Power of Attorney since is not executed for consideration, it need not be stamped as a conveyance.

3. The trial Court after considering the rival contentions and looking into documents produced in the case concluded that the agreement of sale, the power of attorney, affidavit, confirmation deed, receipts, all have simultaneously been executed. All these documents have to be construed as contemporaneous transactions. Thus, the Power of Attorney is executed for consideration and it is insufficiently stamped. Exercising the powers under Sections 33 and 34 of the Karnataka Stamp Act, the trial court has impounded the document, directed the plaintiff to pay stamp duty of Rs.90,055/(Rs.90,155/ duty payable minus Rs.100/ stamp duty already paid) and Rs.9,00,550/ as penalty. Aggrieved by the said order, the plaintiff has preferred this writ petition.

4. Sri. S.K.V.Chalapathy, the learned Senior Counsel appearing for the petitioner contended that, Article 41 is attracted only when a Power of Attorney is executed for consideration and authorizing the attorney to sell the immovable property. In this case though the Power of Attorney authorizes sale of immovable property, it is not for consideration and therefore the order passed by the trial Court treating the power of attorney as an insufficiently stamped document and impounding the same is erroneous. The learned senior counsel appearing for the petitioner has relied on a judgment of this Court in KARAR AHMED Vs RAJANNA & ORS., reported in ILR 2009 KAR 2864 in support of his arguments.

5. Per contra, the learned Counsel appearing for the defendants/respondents supporting the impugned order submits that, though passing of consideration is not mentioned in the Power of Attorney, this document cannot be read in isolation. As held by the trial Court, Agreement of Sale, Power of Attorney, affidavits, confirmation deed, receipts, all have come into existence at the same point of time and are to be read together. When so read together it becomes clear that the power of attorney is executed for consideration.

6. During the year 1985, Article 41(e) of the Karnataka Stamp Act read thus:

“Article 41(e) – When a Power of Attorney has been executed for a consideration authorizing the attorney to sell any immovable property, the stamp duty is payable on the market value equal to the amount of consideration i.e. the same duty as a conveyance.’

7. Therefore, in order to attract payment of stamp duty under the above Article, the Power Attorney:

1) Ought to be executed for consideration; and

2) It should authorize the attorney to sell any immovable property.

8. The argument of the plaintiff in the instant case is that the Power of Attorney is not executed for consideration and therefore Art.41(e) of Karnataka Stamp Act as it stood in 1985 is not attracted. In Karar Ahmed’s case relied upon by the petitioner, this Court while dealing with an agreement of sale, has held as below:

“The petitioner/plaintiff is a stranger to the agreement dated 551997.