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IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
SACHIN SHANKAR MAGADUM, J.
Shri Kallappa Appa Shandage – Petitioner
Versus
Shri Sanjay Shankar Shandage – Respondent
W.P. No. 109547 of 2015
Decided On : 08-06-2021
Karnataka Stamp Act, 1957 – Sections 3, 36 – suit for specific performance – Petitioner-plaintiff instituted a suit for specific performance in O.S. – Contention of petitioner is that respondents- defendants on account of family need and necessity offered to sell suit land, which was accepted by petitioner herein and in terms of negotiations, respondents-defendants executed an agreement to sell suit land for sale consideration of Rs.6,27,000/- – It is also stated that pursuant to suit agreement, 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 time of execution of registered sale deed. – Judge having examined rival contentions has rejected application by holding that copy of document insufficiently stamped is inadmissible –Documents cannot be validated and acted upon and no decree can be passed thereon. – Being aggrieved by said order, petitioner-plaintiff is before this Court assailing correctness of order under challenge.
Finding of the Court:
On a bare reading of explanation which is incorporated by amendment Act No.24/1999 to Stamp Act would clearly indicate that even on a copy of original document, proper duty and penalty can be determined in event party tenders xerox copy of same. – Explanation also indicates that provisions of Chapters IV, VI, VII and VIII are applicable even to copy of original document. – If this explanation to Section 3 of Act, 1957 is taken into consideration then Court is of view that impugned order under challenge is contrary to explanation incorporated by way of amendment to Section 3 of Act, 1957. – Judge was not justified in relying on judgment rendered by Apex Court in case of State of Bihar .vs. Karam Chand Thapar and Brothers Limited(supra). – Judge was required to place reliance on explanation to Section 3 of Act, 1957 which is applicable to present case on hand. – Decision cited by counsel for respondents has no application to present case on hand. – Though this Court has no cavil to proposition laid down by Hon'ble Apex Court in judgment cited by learned counsel for respondents, however, proposition laid down therein has no application to present case on hand in view of amendment to Section 3 of Stamp Act, 1957. – Court was cf view that even a copy of original document whether certified or not and whether a fascimile image or otherwise of original is chargeable with duty of an amount which is indicated in Schedule as proper duty for original of such instrument. – Court was of view that provisions of Chapters IV, VI, VII and VIII of Act, 1957 shal! mutatis mutandis be applicable even to a copy of original document. – principle laid down by this Court in judgment cited supra is squarely applicable to present case on hand and therefore, Court is of view that order passed by learned Judge in rejecting I.A.No.3 suffers from material irregularity. – Impugned order passed by Senior Civil Judge, Chikodi, on I.A. as per Annexure-F is set aside.
Result : Writ Petition Allowed
ORDER :
1. 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 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 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 Limited, AIR 1962 SC 110 has come to the conclusion that the xerox copy of 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.
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 and Another, 2008 (3) Kar. L.J. 377. 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
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