Sri Thammaiah S. vs Sri Raju

Subhash B. Adi, J.—The petitioner has celled in question the order dated 2.7.2008 passed in O.S. No. 145/2004 on the file of the Civil Judge (Sr.Dn.), Bhadravathi.

The petitioner is a defendant. During the course of evidence, he sought to produce two documents dated 30.11.1996 and 17.10.2003. The trial Court, considering the nature of documents found that, one document is in the nature of agreement to deliver possession and called upon the petitioner to pay the stamp duty as well as penalty. As against the said order, this writ petition has been filed.

Learned Counsel for the petitioner submits bat, both the documents do not relate to any agreement of sale between the parties.

Article 5 Clause (e) of Schedule to Karnataka Stamp Act (for short ''the Act'') requires duty to be paid only in case if there is an contract of sale and in part performance of such contract, if the party had been put in possession and if the said party (sic), the admission, such document in his evidence he is required to pay the stamp duty in accordance with Article 20 of the Act None of these documents are agreement of safe nor they relate to part performance of the Contract. They do not come within the recalling of ''instrument'' referred to under Article 5(e) of the Act. There is no finding of the trial Court as regard to the nature of document. The trial Court blindly, based on the alleged agreement to deltas possession has directed the petitioner to pay the stomp duly.

Before the Court directs the party to pay the duty and penalty it should consider the nature of transaction as to whether such transaction as to document fids within the meaning of ''conveyance'' u/s 2 Clause (d) and it requires the stamp duty to be paid as per the Schedule only after finding out that the document requires the duty and the penalty to be paid, the Court can call upon the party to pay the same. However, the trial Court, without reference to any of provisions and without even considering the nature of transaction and document has erroneously directed the petitioner to pay the stamp duly. Hence, the order requires to be set aside.

In the circumstances, petition is allowed, the impugned order is set aside.