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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH, AT DHARWAD
DATED THIS THE 19TH DAY OF DECEMBER, 2019
PRESENT
THE HON’BLE MR. JUSTICE P.B. BAJANTHRI
AND
THE HON’BLE MR.JUSTICE NATARAJ RANGASWAMY
REGULAR FIRST APPEAL NO.100075 OF 2014 BETWEEN:
BHIMARAO S/O APPASAHEB KOMAR, AGE: 43 YEARS, OCC: AGRICULTURE, R/O KULALI, TQ: MUDHOL-587113.
DUNDAPPA, S/O APPASAHEB KOMAR, AGE :45 YEARS, OCC: AGRICULTURE, R/O KANADAL, TQ: GOKAK-591307.
SMT. TULJABAI, W/O KRISHNASAHEB KOMAR AGE: 52 YEARS, OCC: HOUSEHOLD WORK, R/O: KULALI, TQ: MUDHOL-587113.
SMT. BAISAHEB W/O BHIMARAO DESAI, AGE: 37 YEARS, OCC: HOUSEHOLD WORK R/O: KULALI, TQ: MUDHOL-587113
2 5. SANJU S/O KRISHNASAHEB KOMAR AGE: 34 YEARS, OCC: AGRICULTURE, R/O: KULALI, TQ: MUDHOL- 587113
SMT. JANAKI W/O ANIK NAIK AGE: 31 YEARS, OCC: HOUSEHOLD WORK R/O: KULALI, TQ: MUDHOL: 587113
APPASAHEB S/O KRISHNASAHEB KOMAR AGE: 25 YEARS, OCC: STUDENT, R/O: KULALI, TQ: MUDHOL: 587113
…APPELLANTS
(BY SRI. S.RAJASHEKHAR, ADVOCATE AND SRI. SIDDAPPA S. SAJJAN, ADVOCATE)
AND:
TANAJI S/O APPASAHEB SURYAVANSHI AGE: 53 YEARS OCC: AGRICULTURE, R/O MUDHOL-587113. …RESPONDENT (BY SRI. V.P.KULKARNI, ADVOCATE) THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF THE CIVIL PROCEDURE CODE, 1908, AGAINST THE JUDGMENT AND DECREE DATED: 01.04.2014 PASSED IN O.S. No.30/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, MUDHOL, DECREEING THE SUIT FILED FOR SPECIFIC PERFORMANCE OF CONTRACT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 03.12.2019 COMING ON FOR PRONOUNCEMENT THIS DAY NATARAJ RANGASWAMY J.,DELIVERED THE FOLLOWING:
3 JUDGMENT
This Regular First Appeal is filed by the defendants in the suit challenging the Judgment and Decree dated 01.04.2014 passed by the Senior Civil Judge and JMFC., Mudhol, in O.S. No.30/2008.
For the sake of brevity, the parties are referred to by their rank before the trial Court. This appeal is by the defendants in the suit.
The plaintiff filed O.S. No.30/2008 before the Additional Civil Judge (Senior Division), Jamakhandi, sitting at Mudhol, for specific performance of an agreement of sale dated 13.09.2005 stated to have been executed by the defendants in the suit, agreeing to sell the suit property for a total sale consideration of Rs.25,00,000/-. The facts as pleaded in the suit are that the defendants had received a sum of Rs.10,00,000/- out of Rs.25,00,000/- and had executed an agreement of sale dated 13.09.2005 to sell the suit property to the plaintiff.
4 It is stated that the time fixed for conclusion of the sale transaction was four months from the date of the agreement and that the plaintiff had issued notices dated 22.09.2007 and 25.07.2008 and called upon the defendants to conclude the sale transaction and on their failure to comply with the demand of the plaintiff, a suit for specific performance was filed on 11.09.2008.
The defendant No.1, who was served with summons in the suit, filed his written statement denying the execution of the agreement of sale as well as the issuance of notices dated 22.09.2007 and 25.07.2008 by the plaintiff. It was stated that the suit property belonged to the father of defendant Nos.1 to 3, who died in the year 1993 leaving behind him the defendants and their six sisters. It is claimed that there was no partition amongst them. They also submitted that the plaintiff did not know the place of residence of the defendants and that therefore, wrongly described the residential address of the defendants in the cause title. Defendant No.1 also
5 claimed that the plaintiff had not furnished the particulars of the suit property for identification and that the suit is liable to be rejected under Order 7 Rule 3 of the Civil Procedure Code, 1908 (for short, ‘the CPC’). It is also contended that the suit agreement is barred under the provisions of Sections 33 and 34 of the Karnataka Stamp Act, 1957. The defendants 2 and 3 adopted the written statement of defendant no.1.
The defendant No.3(a) has also filed a written statement reiterating the contentions of the defendant No.1 and further contended that her husband was a drunkard and addicted to vices and contended that the plaintiff took undue advantage of his vices and has manipulated the papers in order to grab the suit lands for a paltry sum of Rs.25,00,000/- though the market value of the suit lands was more than Rs.50,00,000/-. She contended that the family was not in need of money and there was no legal necessity to sell the property.
6 6. Based on the contentions of the parties, the trial Court framed the following issues: “1. Whether Plaintiff proves that Defendants agreed to sell the suit property for Rs.25,00,000/- and received earnest money of Rs.10,00,000/- by executing agreement of sale on 13.09.2005 as contended in the plaint?
Whether Plaintiff further proves that he is ready and willing to perform his part of contract all along?
Whether Defendants prove that suit of the Plaintiff is bad for non description of the suit property properly?
Whether Defendants prove that Agreement of Sale is not duly stamped?
Whether suit of the Plaintiff is time barred?
Whether Plaintiff is entitled for the relief as sought for?
What order or decree?”
The plaintiff was examined as PW.1 and four other witnesses were examined as PWs.2, 3, 4 and 5 and they marked documents as per Exs.P1 to P9 while
7 defendant No.1 was examined as DW.1 and documents as per Exs.D1 to D22 were marked. The trial Court considering the pleadings and evidence on record, decreed the suit in terms of the Judgment and Decree dated 01.04.2014. The defendants feeling aggrieved by the said judgment and decree have filed this Regular First Appeal.
The points that arise for our consideration in this appeal are as under: 1. Whether the plaintiff has established that the defendants had executed an agreement to sell the suit property for Rs.25,00,000/- and has received Rs.10,00,000/- as part of the agreed sale consideration and had agreed to conclude the sale transaction within four months from the date of the agreement ?
Whether the plaintiff was ready and willing to perform his part of the contract ?
8 9. When this appeal was listed for final hearing, the learned counsel for the plaintiff / respondent filed an application, I.A. No.2/2019, under Order 41 Rule 27 read with Section 151 of the CPC to furnish the following documents to be treated as additional evidence: (a) Certified copy of Compromise decree dated 21.07.2001 in O.S. No.435/2000 on the file of the Principal Civil Judge (Sr. Dn.), Jamakhandi;
(b) RTC extract in respect of the land measuring 07 Acres 21 guntas in Sy. No.50/1B situate at Mudhol village, Mudhol hobli, Mudhol Taluk, for the year 2019-20;
(c) RTC extract in respect of the land measuring to an extent of 13 guntas in Sy. No.50/2B situate at Mudhol village, Mudhol hobli, Mudhol Taluk;
(d) Retail outlet dealership agreement of M/s.Indian Oil Corporation Limited issued on 15.06.2004.
(e) Copy of C.L.-9 licence issued by the Department of Excise, Government of
9 Karnataka, with effect from 01.06.2019. (30.06.2019).
(f) Copy of CL-2 licence issued by the Department of Excise, Government of Karnataka with effect from 01.06.2019(02.07.2019).
(g) Order dated 20.05.2003 issued by the Additional Deputy Commissioner, Bagalkot, including the name of the plaintiff in the cinematograph licence of Veeresha Chitramandir.
The learned counsel for the plaintiff - respondent has also filed an application, I.A. No.3/2019, seeking permission of this Court to record his further re- examination to depose about the documents produced as additional evidence.
The learned counsel for the respondent has also filed an application, I.A. No.1/2019, under Order 26 Rule 10A read with Section 151 of the CPC., for scientific investigation of the agreement of sale (Ex.P9) to compare
10 the signatures of the defendants 1,2 and original defendant no.3 with their admitted signatures on the vakalathnama and written statement/ memo adoptingwritten statement.
Before we consider the appeal on merits, we deem it appropriate to consider the applications filed by the respondent in this appeal.
In the application numbered as I.A. No.1/2019, the respondent has sought for scientific investigation of the signatures of the defendants 1,2 and original defendant no.3 on the agreement of sale dated 13.09.2005 and compare them with their admitted signatures. In para No.5 of the affidavit of the respondent accompanying this application, it is stated as under:
“I submit that the defendants herein have not made any efforts to establish that the signatures affixed on Ex.P9 are not of the defendants No.1 to 3.”
We are conscious of the fact that this Court is entitled to appreciate the evidence and is also the final Court which would determine questions of fact. We are equally aware of the fact that in an appeal filed under Section 96 of the CPC., this Court should analyse the facts threadbare and pass a judgment that ought to have been passed in the facts and circumstances of the case. We are also firm that this Court while exercising appellate jurisdiction has the power to secure a report for a full and final adjudication of the dispute between the parties. However, we are aware that a report of an expert would not in itself be conclusive but has a pursuasive value.
The plaintiff in the suit had the fullest opportunity to seek for a scientific analysis of the signatures and for comparison of the disputed signatures with the admitted signatures of the defendants 1,2 and original defendant no.3. Except stating that the defendants did not make any effort to establish that the signatures found on Ex.P9
12 are not signatures of defendant Nos.1,2 and original defendant no.3, the plaintiff did not come up with any justification to seek the indulgence of this Court for scientific examination of the document. At any rate, the trial Court has exhaustively considered the said signatures in exercise of its power under Section 73 of the Indian Evidence Act, 1872 and has returned a finding that a mere look at the disputed and admitted signatures do not induce confidence in the mind of the Court. The application now filed by the plaintiff is therefore an afterthought. This Court would still not hesitate to independently view, ascertain and compare the admitted and disputed signatures of defendants 1 and 2 and original defendant no.3, found on Ex.P9 as provided under Section 73 of the Indian Evidence Act, 1872. Thus, we feel it inappropriate to permit the plaintiff to seek for a scientific investigation of the agreement of sale at this stage of the proceedings and therefore, I.A. No.1/2019 is rejected.
13 15. Insofar as I.A. Nos.2 and 3 of 2019 are concerned, the plaintiff has invoked the provisions of Order 41 Rule 27 of the CPC to produce additional documents and to adduce further evidence. Order 41 Rule 27 of the CPC., provides for producing additional evidence in appeal and the same is extracted below: 27. Production of additional evidence in Appellate Court. – (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if – (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the
14 decree appealed against was passed, or
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause,
the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.
The plaintiff has stated in the affidavit accompanying the application, I.A. No.2/2019, as under: “I submit that I did not produce the documents pertaining to my businesses and agricultural lands referred above before the trial court as the appellants / defendants did not dispute seriously about my financial capacity to pay the sale consideration. But however, in the present appeal, the
15 appellants/defendants are seriously disputing my financial capacity to pay the sale consideration. I submit that even though I am a graduate, I am not much conversant with the legal proceedings and hence the necessary information regarding the above aspect of the matter was not given by me to my advocate at trial Court as I thought that the same was not necessary.”
If this affidavit is viewed through the prism of Order 41 Rule 27 of the CPC., it is clear that the plaintiff has not laid the foundation for producing additional evidence at the appellate stage. A perusal of the documents sought to be produced as additional documents shows that these documents were all in the custody of the plaintiff when the plaint was filed. It is not the case of the plaintiff that these documents were misplaced and / or that they were in someone else’s custody and / or that he was not in a position to produce them at the time of trial before the trial Court. Even assuming that these documents are to be brought on record, this would not
16 demonstrate the financial wherewithal of the plaintiff to conclude the transaction. The plaintiff seems to have withheld the best piece of evidence such as his bank account extract disclosing his financial dealings. The documents sought to be placed on record would not demonstrate his readiness or willingness to perform his part of the contract. Therefore, we feel that no purpose would be served in taking these documents on record as additional evidence and therefore, this application is rejected. Consequently, I.A. No.3/2019 filed by the respondent seeking permission for further examination is also liable to be rejected and is rejected.
Heard the arguments of the learned counsel for the appellants – defendants and the learned counsel of the plaintiff – respondent
The plaintiff has filed the present suit for specific performance of the agreement of sale dated 13.09.2005 and in his plaint, he has averred that he is ready and willing to perform his part of the contract and
17 has thus complied with the provisions of Section 16(c) of the Specific Relief Act, 1963. Plaintiff has also filed the suit within three years from the date of the alleged refusal to receive the notice of demand dated 22.09.2007 (Ex.P4) and 25.07.2008 (Ex.P5) as stipulated under Article 54 of the Limitation Act. The defence of the defendant No.1 has been categorical and he has disputed the execution of the agreement of sale dated 13.09.2005. The defendant No.3(a) on the other hand, who is not the executant of the agreement of sale dated 13.09.2005 has in her written statement contended that her husband was a drunkard and that the plaintiff has taken undue advantage of his vices and has manipulated the agreement in question. This cannot be termed to be an admission of the execution of the agreement but can only be construed as an innocuous statement as the further assertions in the written statement of defendant No.3(a) makes it clear that she has not admitted the execution of the agreement of sale. Thus, it is imperative that we exercise the power under Section 73 of the Indian
18 Evidence Act, 1872 to assess whether the signatures found on Ex.P9 are comparable and whether they tally with the admitted signatures of the defendant Nos.1, 2 and original defendant No.3found in their written statement and respective signature of defendant Nos.2 and 3 in the affidavit/s filed along with the memo/s filed by them adopting the written statement of defendant No.1 and vakalath. Ex.P9 is an agreement drawn on Rs.200/- stamp paper in the name of the deceased defendant No.3 and the first sheet of the said document does not contain the signature, whereas the second sheet of Ex.P9 contains signatures of defendant Nos.1 to 3 and when these signatures are compared with the signature of defendant No.1 in his written statement and respective signature of defendant Nos.2 and 3 in the affidavit/s filed along with the memo/s filed by them adopting the written statement of defendant No.1, it is clear that the signatures found in Ex.P9 are similar to the signature of defendant No.1 in his written statement and respective signature of defendant Nos.2 and 3 in the
19 affidavit/s filed along with the memo/s filed by them adopting the written statement of defendant No.1.The trial Court while considering this question has also held that the signatures found on Ex.P9 are the signatures of defendant Nos.1 to 3 and we completely concur with the findings of the trial Court in this regard.
In addition to the above, the plaintiff was examined as PW.1 and in his cross-examination, he has stated that Ex.P9 was prepared by a Typist near the old Court and that before the agreement was typed out, the negotiations were finalized at Sagar hotel in Mudhol. PW.2 is a witness who had attested the agreement of sale and he, in his cross-examination has stated that Ex.P9 was typed out by the Advocate, Mr. C.R. Doddatti, and that the instruction to draft out Ex.P9 was given by defendant No.3. The chief- examination of this witness goes to show that he was not a mere attesting witness since he seems to know plaintiff well as admitted by him in his cross-examination. PW.3 is yet another witness
20 who stated that he knew the plaintiff as he used to visit the lodge belonging to the plaintiff. PW.3 in his cross- examination has stated that he did not know as to who typed Ex.P9 bond paper, but he learnt from defendant No.3 that Sri C.R. Doddatti, Advocate had prepared it. He has stated that he was not present when negotiation took place before preparation of Ex.P9. PW.4 is another witness who in his chief–examination stated that the agreement was prepared by Sri C.R. Doddatti, Advocate, which he has reiterated in his cross-examination. He also stated that the plaintiff has paid a sum of Rs.10,00,000/- to defendant No.3. PW.5 is the Advocate who stated that he had prepared the agreement Ex.P9. However, in his cross-examination he claimed that neither the plaintiff nor the defendant Nos.1, 2 and original defendant No.3 handed over the revenue documents of the suit property to enable the scribe to draft out Ex-P9. Curiously, he claimed that Ex.P9 was prepared at his office. He also claimed that the plaintiff paid Rs.10,00,000/- to the defendants in his office.
Though there are certain inconsistent statements made in the evidence of the witnesses as well as the plaintiff regarding the place of execution of Ex.P9, the witnesses are categorical in their statement that Ex.P9 was executed. It is to be noted that Ex.P9 was dated 13.09.2005 and the evidence of the witnesses was recorded after eight years and therefore, a margin of error is permissible. We therefore, hold that the defendant Nos.1, 2 and original defendant No.3had executed Ex.P9 agreeing to sell the suit property to the plaintiff.
Insofar as the crucial aspect as to whether the plaintiff was ready and willing to perform his part of the contract, it is to be seen from Ex.P9 that the suit property was offered for sale to meet the legal necessity of the defendants and it is because of such a necessity that the defendant Nos.1, 2 and original defendant No.3 had stipulated four months time as the outer limit for completion of the sale transaction. The learned counsel for the plaintiff – respondent contended that the time
22 stipulated in Ex.P9 was for payment of the balance sale consideration of Rs.15,00,000/- and not for conclusion of the sale transaction. He also vociferously contended that time cannot be the essence of the contract in India insofar as the immovable properties are concerned. In this regard, he relied upon the judgment of the Hon`ble Apex Court in the case of Gomathinayagam Pillai and others v. Palaniswami Nadar reported in AIR 1967 SC 868. He also relied upon the judgment of the Hon`ble Apex Court in the case of Chand Rani (Smt.) (dead) by LRs. vs. Kamal Rani (Smt) (dead) by LRs. reported in (1993) 1 Supreme Court Cases 519. It is no doubt true that time cannot be the essence of contract in respect of immovable properties but yet parties can fix a time within which the contract should be completed and such stipulation would render a contract concluded and is capable of execution in a Court of law.
The Hon`ble Apex Court in the case of Mademsetty Satyanarayana vs. G. Yelloji Rao and
23 others reported in AIR 1965 SC 1405 while dealing with the discretion to grant specific performance has held in para No.9 of the judgment as under: “9. It is clear from these decisions that the conduct of a party which puts the other party in a disadvantageous position, though it does not amount to waiver, may in certain circumstances preclude him from obtaining a decree for specific performance.”
The Apex Court further went on to hold as under: “It is not possible or desirable to lay down the circumstances under which a Court can exercise its discretion against the plaintiff. But they must be such that the representation by or the conduct or neglect of the plaintiff is directly responsible in inducing the defendant to change his position to his prejudice or such as to bring about a situation when it would be inequitable to give him such a relief.”
It is now trite that the plaintiff seeking for specific performance should not only plead but also prove his readiness and willingness to complete his part of the contract within the time stipulated. It is to be noted that the plaintiff was required to pay the balance sale consideration of Rs.15,00,000/- within four months from
24 the date of agreement and obtain a deed of sale. This in itself made the contract Ex.P9 time sensitive and the price at which the parties had agreed was also at that given point in time. Therefore, it is incumbent upon the plaintiff to prove that he was ready and willing to complete his part of the contract by offering to pay the balance sale consideration within four months from the date of the agreement of sale. In order to prove his readiness, the plaintiff except examining himself and claiming that he approached the defendants several times, he did not even whisper in his chief-examination that he had the balance funds and / or that he had the ability to raise the balance funds to conclude the transaction. In addition, the plaintiff has not produced any convincing material to show that he had the balance sum of Rs.15,00,000/-, which the plaintiff could have conveniently and easily produced having regard to his alleged business enterprises such as petroleum outlet, CL2 and CL9 licences, cinematography licence etc. The plaintiff has not chosen to explain as to why he could not
25 produce his extract of bank statement or his income tax returns. If the plaintiff has failed to prove that he had the funds within the time stipulated, he would not be entitled to the relief of specific performance. In order to prove his willingness, the plaintiff has issued two notices dated 22.09.2007 as per Ex.P4 and 25.07.2008 as per Ex.P5. The notices sent to the addresses of defendant Nos.1, 2 and original defendant No.3 returned unserved with the postal endorsement stating that the said defendants are not residing at Mugalkhoda and that they are residing at Kulali village. The cross-examination of PW.1 also disclosed that the defendants were residing at Kulali village. Thus, mailing the notices to Mugalkhoda village can only be construed as an attempt to bamboozle the defendants. Except these two notices, the plaintiff has not chosen to demonstrate his readiness to complete his part of the contract. Insofar as his willingness to perform his part of the contract is concerned, the conduct of the plaintiff needs to be analyzed so as to rule whether he is entitled for discretionary relief of specific
26 performance. The agreement at Ex.P9 is dated 13.09.2005. The time prescribed for completion was four months, which expired on 13.01.2006. In his notice, Ex.P4, the plaintiff has stated as under: “my client repeatedly requested you to receive remaining balance amount of Rs.15,00,000/- and requested you to executed the regular sale deed but, you are avoiding the execution of the sale deed under one or the other pretext.”
This statement is thoroughly vague and bald and does not contain the particulars such as date, time and place when such offer was made. Similarly, in the next notice dated 25.07.2008, it is stated as under: “my client requested you all number of times to execute the sale deed as per terms of contract and within 4 months from the date of execution, he approached you with cash of Rs.15,00,000/- but you went on postponing the execution of sale deed under one or other pretext.”
27 This time too the plaintiff did not disclose the date, time and place where such offer was made. Even otherwise, when the agreement was dated 13.09.2005 and the time for completion was 13.01.2006, the notice Ex.P4 demanding completion of the sale transaction was issued on 22.09.2007 followed by another notice dated 25.07.2008 and after a long lull, the suit was filed on 11.09.2008, which is two days shorter than three years which is the outer limit prescribed for filing the suit for specific performance under Article 54 of the Limitation Act.
A Division Bench of this Court in the case of Smt. Padmini Raghavan vs. H.A. Sonnappa since dead by his LRs., and others reported in ILR 2014 Kar 233, wherein it is observed in para No.120 as under: “It is in this context, if really the plaintiff has paid Rs.1,75,000/- as contended by them and was ready and willing to pay the balance amount of Rs.1,72,100/- within 13 months and if the defendant has not come forward to execute the sale
28 deed, though time is not the essence of the contract, the suit for specific performance ought to have filed within a reasonable time. It is here for nearly two long years the plaintiff has not raised his little finger. There is no demand in writing. As set out earlier, there is no material placed on record to show that he was ready with the balance sale consideration. The plaintiff has chosen to file the suit few days prior to the expiry of the period of limitation. In that context, it is not a mere case of delay, it is a case of total inaction on the part of the plaintiff for two years in clear violation of the terms of the agreement which required him to pay the balance consideration and then ask for execution of the sale deed. Further, as the plaintiff was badly in need of money after cancelling the agreement of sale, she has proceed to sell the property….”
It is profitable to refer to judgment of Division Bench of Hon`ble Apex Court in the case of Ritu Saxena vs. J.S. Grover and another reportedin (2019) 9 Supreme Court Cases 132, wherein it is held that self serving statement of the appellant therein without any proof of financial resource could not be relied upon to return a finding that the appellant was ready and willing to perform her part of the contract. The appellant had not produced
29 any income tax record or bank statement in proof of her plea of financial capacity so as to be ready and willing to perform her part of the contract.
It is equally profitable to refer to a judgment of the Hon`ble Apex court in the case of Coromandel Indag Products Private Limited vs. Garuda Chit and Trading Company Private Limited and anotherreported in (2011) 8 Supreme Court Cases 601.
Thus, the plaintiff has thoroughly failed to prove that he was ready and willing to perform his part of the contract and therefore, he was not eligible to seek for specific enforcement of the agreement of sale Ex.P9. It is seen that under Ex.P9, the plaintiff claims to have been put in possession of the suit property. However, the agreement was drawn on an insufficient stamp. The plaintiff has approached the Deputy Commissioner of Stamps, Bagalkot and has paid the stamp duty of Rs.2,00,000/- and penalty of Rs.20,000/-. The defendants had categorically contended in the written
30 statement that the agreement is not sufficiently stamped and therefore, the Court should exercise discretion to impound the document and collect proper duty and penalty. The trial Court in terms of the order dated 03.03.2012, overruled the objection of the defendants while marking Ex.P9 and held that the document is duly stamped as per the endorsement made on the agreement of sale by the concerned authorities. In this regard, it is relevant to note the judgment rendered by this Court in the case of Digambar Warty and Others vs. District Registrar, Bangalore Urban District and Another reported in ILR 2013 Karnataka 2099. Sections 33 and 34 of the Karnataka Stamp Act, 1957 mandates that when an insufficiently stamped agreement is brought before the Court, the Court is bound to impound the document, collect the applicable duty along with 10 times the duty as penalty and forward it to the concerned authority for determination. It is not known as to how the Deputy Commissioner of Stamps has determined the penalty at Rs.20,000/- and it is not known as to how he
31 has ratified the document. The order passed by the Deputy Commissioner is absolutely silent and no reasons are forthcoming from his order found on Ex.P9. We, therefore, leave this question for consideration by the Deputy commissioner of Stamps.
In view of the above, the plaintiff – respondent herein is not entitled for the discretionary relief of specific performance. Consequently, the impugned Judgment and Decree dated 01.04.2014 passed by the Senior Civil Judge and JMFC., Mudhol, in O.S. No.30/2008 is set aside. However, it is to be noted from the plaint that the plaintiff has also sought for alternate relief of refund of advance amount of Rs.10,00,000/- paid by him to defendant Nos.1 to 3 as provided under Section 22 of the Specific Relief Act, 1963. We deem it appropriate to direct the defendants – appellants herein to refund Rs.10,00,000/- paid by the plaintiff – respondent herein within three months from the date of this judgment, failing which this amount shall carry interest @ 6% per
32 annum from the date of decree till repayment. The plaintiff shall deliver up the original agreement Ex.P9 to the custody of defendants and also deliver possession of the suit property to the defendants.
This Regular First Appeal is disposed off on the above terms. No Order as to costs.
Sd/- JUDGE
Sd/- JUDGE
sma