H.G. RAMESH, J.

How to determine the correct stamp duty payable on documents? This is the short question that requires to be examined in this case.

2. This writ petition is by a plaintiff and is directed against an interlocutory order dated 29.08.2013 passed by the trial Court, whereby it has impounded an agreement of sale dated 25.11.2003 and has directed the petitioner-plaintiff to pay a deficit stamp duty of Rs.31,800/- and a penalty of Rs.3,18,000/- on the said agreement.

3. I have heard learned counsel appearing for the petitioner and respondent No.1 and perused the record.

4. The question for consideration in this petition is as to whether the aforesaid agreement of sale dated 25.11.2003 was chargeable with stamp duty as per Article 5(e)(i) of the Schedule to the Karnataka Stamp Act, 1957 (‘the Act’ for short) as it stood on the date of the agreement of sale i.e. 25.11.2003; Article 5(e) as on that date was as follows:

“5. Agreement or its records or Memorandum of an agreement,-
(a) ………………………………………….. ………………………………………………
(e) If relating to sale of immovable property, where, in part performance of the contract,-
(i) possession of the property is delivered or is agreed to be delivered without executing the conveyance	The same duty as a Conveyance (No. 20) on the market value of the property
(ii) possession of the property is not delivered,-
(a) where the value of the property
(i) does not exceed Rs. 5,000	Ten rupees
(ii) exceeds Rs. 5,000 but does not exceed Rs. 20,000	Twenty rupees
(iii) exceeds Rs. 20,000 but does not exceed Rs. 50,000	One hundred rupees
(iv) exceeds Rs. 50,000	Two hundred rupees
(b) where such agreement or memorandum of an agreement does not relate to monetary transactions or transactions not susceptible to valuation in terms of money” (Emphasis supplied)	Fifty rupees

5. An agreement for sale of immovable property, to fall within the ambit of Article 5(e)(i) extracted above, either possession of the property was stated to have been delivered under the agreement or was agreed to be delivered without executing the conveyance, in part performance of the contract.

6. As rightly submitted by the learned counsel on both sides, whether the aforesaid agreement of sale dated 25.11.2003 was chargeable under Article 5(e)(i) or not has to be determined on the basis of the recitals at para 4 of the agreement; they read as follows:

“4. Since the purchaser has paid sale consideration as aforesaid, vendor shall execute irrevocable power of attorney in favour of the purchaser. On the strength of the power of attorney, purchaser shall be entitled to possess or sell the schedule property, to receive consideration in his name and exercise all such powers as mentioned in the said power of attorney. Purchaser specifically undertakes that she will not cancel or revoke the power of attorney and she shall have no right to cancel or revoke the power of attorney since power of attorney is coupled with interest.”

(Underlining supplied)

7. Submission of learned counsel for respondent No.1 that para 4 of the agreement provides for delivery of possession of the property without executing the conveyance is not correct as it only states that the purchaser shall be entitled to possess or sell the property on the strength of a power of attorney which shall be executed by the vendor in favour of the purchaser. As the recitals at para 4 of the agreement do not fall within the ambit of Article 5(e)(i), the agreement was not chargeable with stamp duty under the said Article but was chargeable under Article 5(e)(ii)(a)(iv), and accordingly, a stamp duty of Rs.200/- was rightly paid thereon. The decision of this Court in Sri J. Prakash vs Smt M.T. Kamalamma [ILR 2007 KAR 4752] referred to by the counsel has no appl