-1- IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF JANUARY, 2025 BEFORE THE HON’BLE MR.JUSTICE R.DEVDAS WRIT PETITON NO. 2720 OF 2023 (GM-CPC) BETWEEN SRI. K V. VENKATESH S/O LATE VENKATARAMAIAH AGED ABOUT 54 YEARS OCC BUSINESS ADD NO 4/3 HOSATTI LAYOUT, KODIGEHALLI SAHAKARANAGAR POST BENGALURU 560095 …...PETITIONER (BY SRI. VENKATESH P DALWAI., ADVOCATE) AND 1 . SMT. VASANTH KUMARI D/O SRI NARAYANAPPA AGE ABOUT 52 YEARS ADD 3769 OPP GARADI TALUK ROAD DODDABALLAPUR BANGALORE RURAL DISTRICT–561203 2 . SRI M VIJAYAKUMAR S/O SRI MUDDAPPA AGE 46 YEARS ADD GANGADHARAPURA MAJARA HOSAHALLI KASABA HOBLI DODDABALLAPURA BANGALORE RURAL DISTRICT-561203 3 . MRS UMA DEVI W/O B LAKHAN SINGH AGE 60 YEARS OCC HOUSE WIFE ADD NO 22/1 MILLERS ROAD R -2- 1ST CROSS BENSON TOWN BANGALORE – 560046 4 . MRS L PRABHADEVI D/O LATE B LAKHAN SINGH AGED ABOUT 55 YEARS R/AT NO 22/4 3RD FLOOR MILLERS ROAD 1ST CROSS BENSON TOWN BANGALORE – 560046 5 . SRI L RAKESH SINGH S/O LATE B LAKHAN SINGH AGED ABOUT 42 YEARS R/AT NO 22/1 3RD FLOOR MILLERS ROAD 1ST CROSS BENSON TOWN BANGALORE – 560046 6 . SRI L RAJESH SINGH S/O LATE B LAKHAN SINGH AGED ABOUT 40 YEARS R/AT NO 22/1 3RD FLOOR MILLERS ROAD 1ST CROSS BENSON TOWN BANGALORE – 560046 7 . 8 . MRS KAJAL SINGH D/O LATE B LAKHAN SINGH AGED ABOUT 34 YEARS R/AT NO 22/1 3RD FLOOR MILLERS ROAD 1ST CROSS BENSON TOWN BANGALORE – 560046 STATE OF KARNATAKA BY PRINCIPAL SECRETARY REVENUE DEPARTMENT VIDHANA SOUDHA BANGALORE-01. …RESPONDENTS (BY SRI. PRABHUGOUD B TUMBIGI., ADVOCATE FOR R1 SRI. RAMACHANDRA., ADVOCATE FOR R2 SRI. M.R.RAJAGOPAL., SR. COUNSEL FOR SRI. B.RAVINDRA PRASAD., ADVOCATE FOR R4 TO R7 SMT. H.R. AMARAVATHY., AGA FOR R8 R3 SERVED – UNREPRESENTED) -3- THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 28/02/2019 PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND J M F C DODDABALLAPURA IN O.S.NO.71/2012 PRODUCED AT ANNEXURE-D AND ETC. THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED ON 18.09.2024 AND COMING ON FOR PRONOUNCEMENT OF ORDERS, THIS DAY, THIS COURT MADE THE FOLLOWING: CORAM: HON'BLE MR JUSTICE R DEVDAS CAV ORDER (PER: HON'BLE MR JUSTICE R DEVDAS) This writ petition filed under Articles 226 and 227 of the Constitution of India seeks to quash the impugned order dated 28.02.2019 passed by the learned Senior Civil Judge and JMFC, Doddaballapur in O.S.No.71/2012. 2. It is necessary to notice the fact that the impugned order was passed on 28.02.2019 directing the petitioner/plaintiff to pay stamp duty of Rs.38,06,250/- and ten times penalty amounting to Rs.3,80,62,500/-, totaling to Rs.4,18,68,750/-, within two months from the date of the order failing which, it was ordered that the plaintiff is not entitled to get any other relief as per law. However, this writ petition is filed on 31.01.2023, nearly 4 years after the -4- impugned order was passed. However, it should also be noticed that after the impugned order was passed on 28.02.2019, calling upon the petitioner/plaintiff to pay the deficit stamp duty along with penalty, on non-payment of the deficit stamp duty and penalty, the suit in O.S.No.71/2012 was dismissed on 24.10.2019. The suit is one for specific performance of the Memorandum of Agreement dated 08.08.2009. The said order of dismissal of the suit was questioned by the petitioner/plaintiff in Civil Revision Petition No.299/2021, before this Court. This Court, by order dated 11.08.2022, dismissed the CRP on the ground that the order dated 28.02.2019, which is impugned herein remained unchallenged by the plaintiff and the same had reached finality. This Court held that the application filed by the defendants in I.A.No.9, seeking dismissal of the suit for non payment of stamp duty and penalty was rightly allowed by the trial court, having regard to the fact that the plaintiff failed to pay the stamp duty and penalty despite sufficient time being granted and nearly 10 months had elapsed after the order was passed on 28.02.2019. -5- 3. In this background, learned counsel for the petitioner/plaintiff submits that the right of the plaintiff to have his suit decided on merits cannot be curtailed because of non payment of the stamp duty and penalty. At any rate, when the plaintiff seeks to pay the stamp duty and penalty, this Court should consider the challenge raised to the impugned order dated 28.02.2019. 4. Learned counsel for the petitioner/plaintiff would also argue that the petitioner has raised several relevant grounds, including the fact that Section 46A of the Karnataka Stamp Act bars recovery of stamp duty not levied or short levied, after lapse of five years from the date of commencement of the Karnataka Stamp (Amendment) Act, 1980 or the date on which the duty became payable, whichever is later. It is contended that under the Memorandum of Agreement dated 08.08.2009 physical possession was not delivered to the plaintiff and therefore invocation of Article 5(1)(e) of the Karnataka Stamp Act seeking payment of 7% stamp duty on the basis of Conveyance, is contrary to law. It is contended that the -6- trial court has erred in not taking into consideration the amendments brought to the Karnataka Stamp Act on 01.03.2014 and 01.04.2016. According to the learned counsel for the petitioner the amendments create a liability on the agreement holder to whom possession was delivered even prior to the parties entering into an agreement of sale and therefore, such provision being penal in nature are prospective in nature. It is therefore contended that when the petitioner/plaintiff sought for determination of the stamp duty payable, the trial court should have referred the matter to the competent authority. In this regard, reliance is sought to be placed on a decision of the Hon’ble Supreme Court in the case of Chilakuri Gangulappa VS. Revenue Divisional Officer, Madanpalle and another - AIR 2001 SC 1321, wherein it was held that if the party agrees to remit the stamp duty and penalty levied by the Court, the Court has to proceed with the trial after admitting the documents in evidence. If the parties are unwilling to remit the amount, the Court should forward the original of the document to the Collector for the purpose of adjudication on the question of deficiency of stamp duty. Sub-section (2) of -7- Section 37 of the Act provides that in every other case, the person so impounding an instrument shall send it in original to the Deputy Commissioner. Further, it was submitted that a Division Bench of this Court, in Digambar Warty and others VS. District Registrar, Bangalore Urban District and another - ILR 2013 KAR 2099 also held in view of sub-section (2) of Section 37 of the Act, the trail court may proceed to send the instrument in original to the Deputy Commissioner. The Deputy Commissioner may exercise his power under Section 38 of the Act to refund the penalty paid under sub-section (1) of Section 37 of the Act. However, it was also held that the discretion conferred on the Deputy Commissioner should be exercised in a judicial manner. He will be exercising a quasi judicial power and therefore he has to take into consideration the fact of the case, the circumstances under which the instrument is executed, the reason given either for not paying the stamp duty or for payment of insufficient duty on such instrument and other attendant circumstances and then, in his discretion, he can reduce the penalty payable. This submission is made while pointing out to the ordersheet -8- maintained by the trial court, that after objections were raised at the hands of the defendants regarding insufficiency of stamp duty, the trial court impounded the document on 11.01.2018 and passed an order on 21.02.2018 – “for payment of the deficit stamp duty and penalty – write letter to the District Registrar – Call on 20.03.2018”. Reliance is also placed on a recent decision of the Apex Court in the case of Seetharama Shetty VS. Monappa Shetty - 2024 SCC Online SC 2320. 5. Per contra, learned Senior Counsel Sri M.R.Rajagopal, appearing for the contesting respondents, raised the ground of delay and laches, while also contending that the writ petition is not maintainable. It is submitted that when the petitioner/plaintiff raised a challenge to the order of dismissal of suit, by filing a Civil Revision Petition before this Court and was unsuccessful, he cannot be permitted to raise a challenge to the previous order dated 28.02.2019, regarding payment of stamp duty and penalty, when the suit itself stands dismissed subsequently. Reliance is placed on Gangappa and Another VS. -9- Fakkirappa – (2019) 3 SCC 788, where the Hon’ble Supreme Court upheld the decision of a Division Bench of this Court in Digambar Warty (supra), that there is no discretion vested with the authority impounding the document in the matter of collecting the duty under Section 33. The word used in the said provision is ‘shall’ and therefore Sections 33 and 34 clearly indicate that penalty imposed has to be 10 times. 6. Reliance was also placed on State of Orissa and another VS. Mamata Mohanty - 2011 AIR SCW 1332, to buttress the contention that although Limitation Act, 1963 does not apply in writ jurisdiction, however, the doctrine of limitation being based on public policy, the principles enshrined therein are applicable and writ petitions are dismissed at initial stage on the ground of delay and laches. 7. Heard the learned counsel Sri Venkatesh.P. Dalwai, for the petitioner and the learned Senior Counsel Sri M.R.Rajagopal, on behalf of the learned counsel for the respondent No.2 and perused the petition papers. -10- 8. In the recent decision cited by the learned counsel for the petitioner, in Seetharama Shetty (supra), the Hon’ble Supreme Court noticed the decision of a co- ordinate bench of this Court as follows: “8. The learned Single Judge has, in great detail, referred to all the attending circumstances, appreciated their implication vis-à-vis the statutory obligation under the Act to pay ad valorem stamp duty on an agreement of sale satisfying the definition of a conveyance under the Act and dismissed the Review Petition. The findings, in brief, are as follows: 8.1. Section 33 of the Act requires the adjudicating authorities to impound and determine the duty payable on the suit agreement. 8.2. Section 34 of the Act provides for levy of deficit stamp duty and penalty. The Section employs the expression "ten times the amount of the proper duty or deficit portion thereof." Therefore, there is no discretion granted to the adjudicating authorities to waive or reduce the penalty. 8.3. Only on the payment of deficit stamp duty along with ten times penalty, the suit agreement is relied in evidence. 8.4. The text used in Sections 34 and 39 of the Act cannot be linguistically approximated, as the legislature has not vested the discretion given to the -11- Deputy Commissioner under Section 39 of the Act in the same way to the adjudicating authorities under Section 34 of the Act. 8.5. Relying on case law, the impugned order noted that the adjudicating authorities do not have the discretion to disobey the legislative command to waive or reduce the penalty in any circumstance. The discretion however extends to the grant of a reasonable time for the payment of duty and penalty. 8.6. Thus, through the Impugned Order, the Learned Single judge concluded that the Review Petition fails, and the appellant was granted a period of six months' time to pay the deficit stamp duty along with ten times penalty.” 9. The Apex Court has held that the object of the Act is not to exclude evidence or to enable parties to avoid obligations on technical grounds. Rather, the object is to obtain revenue even from such instruments which are at the first instance unstamped or insufficiently stamped. The said objective has the twin elements of recovering the due stamp duty and penalty, and also the public policy of binding parties to agreed obligations. It was noticed that a seven Judges bench in Re:Interplay Between Arbitration -12- Agreements under Arbitration and Conciliation Act, 1996 and Stamp Act, 1889 (2024) 6 SCC 1, has held that Section 35 of the Indian Stamp Act, (analogous to Section 34 of the Karnataka Act) unambiguously requires an instrument chargeable with the stamp duty to only be “admitted in evidence” if it is properly stamped. It was noted that improperly stamping the instrument does not render that instrument void or invalid. On the contrary, it is a defect which is curable upon payment of requisite stamp duty and penalty. It was also noticed that in Hindustan Steel Limited /vs./ M/s. Dilip Construction Company (1969) 1 SCC 597, the Apex Court has held that the Stamp Act is a fiscal measure intended to raise revenue, and the stringent provisions of the Stamp Act cannot be used as a weapon to defeat the cause of the opponent. However, after considering all the relevant provisions of the Act, the Hon’ble Apex Court in Seetharama Shetty (supra), held as follows: “21. As per the steps taken under Sections 3319, 3420, 3521, 3722 and 3923 under Chapter IV of the Act, the position of law is well-established, and -13- axiomatic by the letter of law and precedents of this Court. However, there are a few misgivings in the sequence of its application. For the benefit of practice and procedure, we sum up the steps as follows. 21.1. Section 33 of the Act is titled examination and impounding of instruments. The object of the provision is to disable persons from withdrawing the instruments produced by them on being told that proper stamp duty and penalty should be paid. 21.1.1. The person who intends to rely on an insufficiently/improperly stamped instrument has option to submit to the scope of Section 34 of the Act, pay duty and penalty. The party also has the option to directly move an application under Section 39 of the Act before the District Registrar and have the deficit stamp duty and the penalty as may be imposed collected. In either of the cases, after the deficit stamp duty and the penalty are paid, the impounding effected under Section 35 of the Act is released and the instrument available to the party for relying as evidence. In the event, a party prefers to have the document sent to the deputy commissioner for collecting the deficit stamp duty and penalty, the Court/Every Person has no option except to send the document to the District Registrar. The caveat to the above is that, before the Court/Every Person exercises the jurisdiction under Section 34 of the Act, the option must be exercised by a party. -14- 21.2. Section 34 of the Act is titled instruments not duly stamped inadmissible in evidence. This provision bars the admission of an instrument in evidence unless adequate stamp duty and the penalty are paid. Every person so authorised to collect deficit stamp duty and penalty has no discretion except to levy and collect ten times the penalty of deficit stamp duty. 21.3. Section 35 of the Act is titled admission of instrument where not to be questioned. Section 35 prohibits questioning the admission of an insufficiently stamped instrument in evidence. 21.4. Section 37 of the Act is titled instruments impounded, how dealt with. This Section arises when the party pays the deficit duty and penalty, the Court is to impound the instrument under Section 33 of the Act and has to forward the instrument to the Deputy Commissioner/District Registrar. Sub- section (2) of Section 37 of the Act deals with cases not falling under Section 34 and 36, and the person impounding an instrument shall send it in original to the Deputy Commissioner. This includes the exigencies set out in paragraph 21.1.1. 21.5. Being a regulatory and remedial statute, a party who follows the regulation, and pays the stamp duty and penalty, as per Sections 34 or 39 of the Act, the legal objection emanating from Section 33 of the Act alone is effaced and the document is -15- admitted in evidence. In other words, the objection under the Stamp Act is no more available to a contesting party. 21.6. Section 39 of the Act is titled deputy commissioner's power to stamp instruments impounded. This Section provides the procedure to be followed by the Deputy Commissioner/District Registrar while stamping instruments that are impounded under Section 33 of the Act. As per Section 39(1)(b) of the Act, the penalty may extend to ten times the stamp duty payable; however, ten times is the farthest limit which is meant only for very extreme situations. Therefore, the Deputy Commissioner/District Registrar has discretion to levy and collect commensurate penalty. 21.7. The above steps followed and completed by paying/depositing the deficit duty and penalty would result in the instrument becoming compliant with the checklist of the Act. The finality is subject to the just exceptions envisaged by the Act addressing different contingencies. 21.8. The scheme does not prohibit a party to a document to first invoke directly the jurisdiction of the District Registrar and present the instrument before Court/Every Person after complying with the requirement of duty and penalty. In such an event, the available objection under Sections 33 or 34 of the Act is erased beforehand. The quantum of -16- penalty is primarily between the authority/court and the opposing party has little role to discharge.” 10. It is noticeable that having regard to the facts obtained therein, where the defendant therein raised an objection and sought for the agreement to be impounded and then sent to the District Registrar to be dealt with under Section 39 of the Act and that such objections were raised at a preliminary stage while considering an interlocutory application for grant of temporary injunction, it was held that the trial court is yet to exercise its jurisdiction under Section 34 of the Act. However, it was found that the trial court called for a report from the District Registrar and therefore it was held that the suit instrument was still at one or the other steps summed up in paragraph No.21 therein. It was therefore held that, going by the request of the defendant, the option is left for the decision of the District Registrar. Consequently, it was held under such circumstances, though the suit instrument is insufficiently stamped, still the levy penalty of 10 times under Section 34 of the Act, was illegal and contrary to the steps summed up in paragraph No.21 therein. -17- 11. The facts in the present case, having regard to the orders passed by the trial court, as evident from the order sheets, show that objections were raised at the hands of the defendant on 11.01.2018 when the examination-in- chief of PW1, by way of an affidavit, was filed on behalf of the plaintiff. The trial court made a note in the order sheet that the unregistered agreement of sale dated 08.08.2009 is impounded, for payment of deficit stamp duty and penalty. On the next date of hearing i.e., 21.02.2018, the trial court directed – write letter to the District Registrar, for payment of the deficit stamp duty and penalty- call on 20.03.2018. On 20.03.2018 the matter was adjourned to 17.07.2018 for payment of stamp duty and penalty. On 17.07.2018 the parties were directed to file memo of calculation for payment of stamp duty and penalty. On 31.07.2018 the legal representatives of defendant No.3 filed memo of calculation. The matter was adjourned to 11.10.2018 for objections, if any and for hearing on the question of stamp duty and penalty. The order sheet does not reveal of any objections being filed at the hands of the plaintiff. However, the learned counsels on both the sides are heard on -18- 28.01.2019 and the impugned order was passed on 28.02.2019. 12. The impugned order clearly records the fact that the counsel for the defendant raised objections regarding the maintainability of the suit on the ground that proper stamp duty and penalty over the suit document is not paid in accordance with law. It is recorded that the plaintiff is ready to pay the required stamp duty and penalty as per law and sought direction of the court in that regard in respect of the specific amount of the stamp duty and penalty to be paid over the suit document. Nothing is said in the impugned order regarding the letter directed to be written to the District Registrar, by order dated 21.02.2018. It is therefore clear that the plaintiff failed to invoke Section 34 or 39 to have the deficit stamp duty and penalty determined and to pay the same. On the other hand, the Court impounded the document on 11.01.2018 when the plaintiff sought to mark the document in evidence. Therefore, this is a case falling under Section 33 of the Act. -19- 13. However, in Digambar Warty (surpa), in the latter portion of paragraph 39, it is held as follows: “Therefore, a power is vested in Civil Court to impound the document. In fact, it is an obligation cast on the Civil Court by the statute. But, the Legislature does not want to burden the Civil Court to go into the question, whether a case for payment of lesser penalty is made out or not. The Civil Courts cannot be expected to be wasting their precious judicial time in deciding matters which exclusively fall within the sphere of revenue authorities and under the scheme of the Act, which has to be decided by them. Therefore, it prescribes that after determining the duty payable on such instrument, to collect the duty with ten times penalty and then transmit the document to the Deputy Commissioner with duty and penalty so collected. Thereafter, a power is conferred on the Deputy Commissioner under Section 38 of the Act to hold an enquiry after giving an opportunity to the person who has paid duty and penalty to extend the benefit of reduction of penalty. Such a reduction in penalty is available to both the documents i.e., tendered before the Civil Court or produced directly before the Deputy Commissioner under Section 33. No discrimination in law is made between these two types of documents. However, there appears to be some conflicting opinion in this regard”. 14. Further, the Division Bench considered two conflicting decisions, in the case of J.S.Paramesh Vs. Smt. Indramma – 2008 (5) KLJ 502 and K.Govinde Gowda -20- Vs. Akkayamma and Others, an unreported decision rendered in W.P.No.8892/2010. The Division Bench held that the order in K.Govinde Gowda’s case cannot be treated as a binding precedent, since the decision in the case of J.S.Paramesh was rendered by a Division Bench of this Court, while a learned Single Judge decided the case in K.Govinde Gowda. Finally, it was held in Digambar Warty (supra) that Section 39 of the Act deals with the power of the Deputy Commissioner to stamp the instruments. When he impounds the instrument under Section 33 or he receives any instrument sent to him under sub-section (2) of Section 37, if he is of the opinion that the instrument chargeable with duty or is not duly stamped, he shall require the payment of the proper duty or the amount required to make up the same, together with a penalty of rupees five or if he thinks fit, an amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof, whether such amount exceeds or falls short of five rupees. The Division Bench has held that the discretion is conferred on the Deputy Commissioner to impose a penalty less than ten times the duty payable. -21- Therefore, Sections 38 and 39 of the Act confer power on the Deputy Commissioner to levy penalty on an insufficiently stamped instrument or an instrument which is not stamped at all, with less than ten times the penalty payable thereon under Section 34 of the Act. However, it was made clear that the discretion conferred on the Deputy Commissioner should be exercised in a judicious manner. 15. Having regard to the law laid down in Digambar Warty, which has been upheld in various decisions of the Hon’ble Apex Court including the recent decision of the Apex Court in Seetharama Shetty (supra), and having regard to the fact that the trial court has recorded in the impugned order that the plaintiff is ready to pay the required stamp duty and penalty as per the law and sought direction of the court in that regard and the admitted fact that the trial court had earlier directed the office to write a letter to the District Registrar, to assess the stamp duty payable, the trial court should have followed the procedure as prescribed in Digambar Warty (supra). In the impugned order the trial court determined the deficit stamp duty payable at -22- Rs.38,06,250/- and ten times penalty amounting to Rs.3,80,62,500/-, totaling to Rs.4,18,68,750/-. Further, the trial court directed that the plaintiff shall pay, within two months from the date of the order, the said amount, failing which, it was ordered that the plaintiff is not entitled to get any other relief as per law. 16. The petitioner/plaintiff did not raise a challenge to the impugned order and did not pay the deficit stamp duty and penalty, within two months from the date of the order. The matter was adjourned several times for compliance. On 26.07.2019, the defendant filed I.A.No.9 under Order VII Rule 11(c) for rejecting the plaint. Though objections were called for, the petitioner/plaintiff did not file any objections to I.A.No.9 and consequently the said interlocutory application was heard and by order dated 24.10.2019 I.A.No.9 was allowed and consequently the suit was dismissed for non-prosecution and for non-payment of deficit stamp duty and penalty. It is seen that in the said order dated 24.10.2019, the trial court has recorded the fact that learned counsel for the plaintiff submitted during -23- the course of the arguments that the plaintiff was imprisoned and was languishing in jail and therefore he was unable to pay court fee/deficit stamp duty and penalty. The trial court proceeded to hold that no documents were filed on behalf of the plaintiff to establish the fact that he was imprisoned. It was further held that the plaintiff could have sought for legal aid and could have sought for appointment of amicus curie, from the Jailor of the concerned jail and in that case the court would have considered his application, but the plaintiff has not done so. However, it would be relevant to notice that these facts were not brought to the notice of this court by the learned counsels. It is also not clear as to whether the petitioner/plaintiff is in a position to pay the deficit stamp duty of Rs.38,06,250/-, let alone the penalty. 17. As regards the other limb of argument sought to be put forth by the learned counsel for the petitioner/plaintiff that in terms of Section 46A of the Act there is a bar for recovery of stamp duty not levied or short levied, beyond five years from the date of the -24- commencement of the Karnataka Stamp (Amendment) Act 1980 or the date of which the duty payable, whichever is later, this court finds that in Digambar Warty (supra), the Division Bench has clarified the position insofar as documents which do not require registration, as follows: 69. “However, under the Scheme of the Act, the said benefit could be extended only to such instruments, which are not compulsorily registrable. If an instrument which is not compulsorily registrable but on which the person relies on to prove his title, and it is to be tendered in evidence in a Court of law, unless the proper stamp duty and penalty payable thereon is paid, it is inadmissible. Therefore, the said document would be of no use to enforce a right of such a person. If the documents require registration i.e., compulsory registration, unless the document is registered, there is no transfer of interest in an immovable property. Even though the authorities are prevented from recovering the stamp duty payable on such instrument for non payment of stamp duty, for non registration of the said document, the said document in the eye of law, has no value. Therefore, the provisions contained in Sections 33 and 67 make it clear that even -25- though the revenue is prevented from collecting the revenue, the person claiming right under the instrument is given an opportunity to pay duty, penalty and get the document registered”. 18. Therefore, the said contention raised on behalf of the petitioner/plaintiff, cannot be accepted. If the petitioner/plaintiff seeks to rely upon the Memorandum of Agreement dated 08.08.2009, then he is required to pay the deficit stamp duty and penalty. 19. It is necessary to notice here that although I.A.No.9 was filed by the defendant No.3(d) for rejection of the plaint Under Order VII Rule 11 (c) of CPC, the trial court rightly held that the said provision is applicable only when deficit court fee is not paid by the plaintiff within the time fixed by the court and it does not apply in respect of non- payment of deficit stamp duty and penalty. However, the trial court found it a fit case for dismissal of the suit for non- prosecution under Order VII Rule 11(c) of CPC. 20. In the considered opinion of this Court, the trial court could not have invoked Order VII Rule 11(c) of CPC -26- for dismissal of the suit for non-prosecution. Non-payment of the deficit stamp duty and penalty would only render the instrument inadmissible in evidence. The instrument will continue to be impounded and in the custody of the court. Such a situation will not enable the court to dismiss the suit, for non-payment of deficit stamp duty and penalty. 21. Having regard to such peculiar facts and circumstances, and having regard to the law laid down by the Hon’ble Division Bench in the case of Digambar Warty (supra), this court proceeds to pass the following: ORDER (i) The writ petition is partly allowed. (ii) The impugned order dated 28.02.2019 passed by the learned Senior Civil Judge and JMFC, Doddaballapur, in O.S.No.71/2012, though upheld, nevertheless, three months time is hereby granted to the petitioner/plaintiff to pay the deficit stamp duty and penalty as determined by the trial court. -27- (iii) On receipt of such deficit stamp duty and penalty, the trial court shall re-open the case and forward the original Memorandum of Agreement dated 08.08.2009, along with the deficit stamp duty and penalty to the District Registrar/Deputy Commissioner concerned. (iv) The District Registrar/Deputy Commissioner concerned, shall hear the petitioner/plaintiff, in terms of sub- section(2) of Section 37 of the Act, and determine the penalty payable, which may be rupees five or if he thinks fit, an amount not exceeding ten times the amount of proper duty or of the deficit portion thereof. The Officer shall pass orders accordingly and while retaining the determined stamp duty and penalty, he shall return the remaining to the petitioner/plaintiff. -28- (v) After completion of the entire process, the trial court may proceed from the stage immediately before the passing of the impugned order dated 28.02.2019. Ordered accordingly. Sd/- (R DEVDAS) JUDGE KLY CT: JL