Manjunatha Pandu @ Panduranga Shet vs Ganesh Krishna Shet and Others

A.V. Chandrashekara, J.—Parties and their respective Counsel are present. After hearing the arguments in part, it was suggested to the learned Counsel appearing for the parties to know from their respective parties as to whether there is any chance of settlement. Both the advocates took the matter seriously and persuaded their respective parties to enter into an amicable settlement in regard to the dispute relating to execution of regular sale deed based upon an agreement of sale stated to have been executed by the appellant - defendant Manjunath Pandu in favour of plaintiff - Ganesh Krishna Shet.

At the intervention of the Court, the parties have amicably settled the matter and have filed a compromise petition, which is duly signed by the parties and their respective advocates.

Plaintiff had filed a suit for the relief of specific performance with a request to direct the defendant - Manjunath Pandu to execute a regular sale deed in respect of the house property in survey No. 498/4 situated at Sonarkeri, Mavalli village, Bhatkal taluk.

Suit filed in O.S. No. 29/2004 by Ganesh Krishna Shet came to be allowed and defendant -Manjunath Pandu has been directed to execute a regular sale deed based on an agreement of sale dated 24.10.2001. Regular appeal is filed before this Court u/s 96 of CPC by the defendant challenging the same on various grounds.

During the pendency of the suit, objection had been raised about the insufficiency of stamp paper used for executing agreement of sale. Accordingly, the trial Court had impounded the agreement of sale and has collected a sum of Rs. 1,65,770/- being 10 times penalty and one time duty relating to the deficit stamp duty. This exercise has been done by impounding the agreement of sale under Sections 33 and 34 of the Karnataka Stamp Act, 1957.

Learned Counsel appearing for the parties submit that the jurisdictional Deputy Commissioner has the power u/s 38(1) of Karnataka Stamp Act, 1957 to refund the penalty paid u/s 37(1) and that suitable direction may be given to the Deputy Commissioner to refund the penalty in excess of Rs. 5/- which is paid in respect of the said document. Section 38(2) of the Karnataka Stamp Act, 1957 also provides for refund of the whole penalty so paid, if the document has been impounded or it has been retained in contravention of Section 13 of Section 14 of the Act.

Contents of the compromise petition have been read over to the parties and they have accepted the same. The appellant-defendant has agreed to refund a sum of Rs. 1,89,000/- (One Lakh Eighty Nine Thousand Only) with interest at 9% p.a. thereon from 21.06.2004 till realisation and he has agreed to repay the said amount within four months from today. The appellant has further agreed to pay the stamp duty and penalty of Rs. 1,65,770/- paid on Ex.P24 agreement of sale in case the Deputy Commissioner declines to refund the stamp duty and penalty paid on Ex.P24.

There is no legal or factual inhibition to accept the contents of compromise petition as the parties have entered into compromise on their own volition. Hence compromise petition is to be accepted.

ORDER

Hence, compromise petition filed under Order XXIII Rule 3 of CPC before this Court is accepted. Appellant-defendant shall pay a sum of Rs. 1,89,000/- (One Lakh Eighty Nine Thousand Only) with interest at 9% p.a. thereon from 21.06.2004 till realization within four months from today and in failure of the same there shall be a charge on the suit schedule property till the recovery of the amount mentioned in the compromise petition.

The learned Deputy Commissioner, Uttara Kannada is requested to consider the application that would be filed by the plaintiff - Ganesh Krishna Sheth for refund of penalty and duty paid in excess of Rs. 5/- as per Section 38(1) and (2) of the Karnataka Stamp Act, 1957. The request of the plaintiff be considered leniently in the light of parties being persuaded to enter into a compromise at the instance of this Court.

The request that would be made by the plaintiff for the refund of the amount of duty and penalty paid in excess of Rs. 5/- is in accordance with Section 35 of CPC, which empowers the Court to collect the amount of duty and penalty so paid by the plaintiff as costs from the defendant. This penalty and duty levied on the plaintiff would form part and parcel of the cost that could be recovered from the defendant u/s 35 of CPC and therefore, the request of the plaintiff for refund u/s 38(1) and (2) of the Karnataka Stamp Act, 1957 be considered leniently by the Deputy Commissioner U.K.

Send a copy of this order passed on the compromise petition to the Deputy Commissioner, U.K. for doing the needful in accordance with law.

In view of compromise being entered into between the parties at the instance of this Court, entire Court fee is ordered to be refunded to the plaintiff - respondent and the amount of refund of Court fee be adjusted towards the amount payable by the defendant - appellant to the plaintiff towards refund of earnest money, as agreed.