- 1 - HC-KAR NC: 2025:KHC:49665 WP No. 40043 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY WRIT PETITION NO. 40043 OF 2018 (GM-CPC) BETWEEN: SMT B HAMSAVENI, W/O SRI BETTAPPA NAIDU, AGED ABOUT 55 YEARS, R/AT NO.6, IV MAIN ROAD, K.H.M.BLOCK, R.T.NAGAR, BENGALURU - 560 032. …PETITIONER (BY SRI.NARAYANA SWAMY V K., ADVOCATE) AND: 1. SRI SYED SHAFIULLA, S/O LATE SYED ABDUL JABBAR, AGED ABOUT 78 YEARS, 2. SRI SYED AHMED, S/O LATE SYED ABDUL JABBAR, AGED ABOUT 76 YEARS, 3. SMT FIROZ UNNISA, D/O LATE SYED KALEEMULLA, AGED ABOUT 60 YEARS, 4. SMT RESHMA JABEEN, D/O LATE SYED KALEEMULLA, AGED ABOUT 36 YEARS, 5. SMT NAEEMA PRAVEEN, D/O LATE SYED KALEEMULLA, AGED ABOUT 33 YEARS, 6. SRI SYED ALEEM, Digitally signed by KAVYA R Location: High court of Karnataka - 2 - HC-KAR NC: 2025:KHC:49665 WP No. 40043 of 2018 S/O LATE SYED KALEEMULLA, AGED ABOUT 33 YEARS, ALL ARE RESIDING AT NO.U-10, MASJID STREET, MUNIREDDY PALYA, BENGALURU - 560 006. 7. SRI.B.MAHESH, S/O LATE N.BYRAPPA @ BYREGOWDA, AGED ABOUT 43 YEARS, R/AT NO.63, 1ST FLOOR, 5TH CROSS, MUNINANJAPPA BLOCK, DINNUR, R.T.NAGAR, BENGALURU - 560 032. …RESPONDENTS (BY R1 TO R6 SERVED AND UNREPRESENTED; SRI. S.Z.A.KHURESHI., ADVOCATE FOR R7; SMT.RADHA RAMASWAMY, AGA FOR PROFORMA RESPONDENT) THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH SET ASIDE THE IMPUGNED ORDER DTD 14.7.2017 AT ANNEXURE-B2, AND ORDER DATED 20.07.2018 AT ANNEXURE-D MADE IN O.S.NO.5728/2010 ON IA NO.9 UNDER ORDER XIII RULE 8 OF CPC FILED BY THE DEFENDANT NO.2 DIRECTING THE PLAINTIFF TO PAY THE STAMP DUTY ON THE MARKET VALUE OF THE SUIT PROPERTY, AS DETERMINED BY THE COURT BELOW, AS A LAST CHANCE BY ISSUING A WRIT CERTIORARI OR ANY OTHER APPROPRIATE WRIT OR ORDER, AS ILLEGAL AND CONTRARY TO LAW AND THE RULING OF THIS HON'BLE HIGH COURT DHARWAD BENCH IN THE CASE OF VITHAL V/S LAXMAN CASE, VIDE W.P.NO.72353/2012 [GM-CPC] DTD 28.2.2014., AND ETC. - 3 - HC-KAR NC: 2025:KHC:49665 WP No. 40043 of 2018 THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY ORAL ORDER This writ petition under Article 227 of the Constitution of India is filed on behalf of the plaintiff with a prayer to set aside the order dated 12.07.2017 passed on I.A.No.9 and the order dated 20.07.2018 passed in O.S.No.5728/2010 by the Court of XXIX Additional City Civil Judge, Bengaluru City. 2. Heard the learned counsel for the petitioner and learned AGA for the State. 3. Petitioner herein has filed O.S.No.5728/2010 before the Jurisdictional Civil Court seeking the relief of specific performance of the sale agreement dated 14.02.2005. In the said suit, the contesting defendants have filed written statement and opposed the suit claim. I.A.No.9 was filed by defendant No.2 with a prayer to impound the sale agreement Ex.P1, for the reason that the - 4 - HC-KAR NC: 2025:KHC:49665 WP No. 40043 of 2018 same was insufficiently stamped. The application was opposed by the plaintiff by filing objection. The Trial Court vide order dated 12.07.2017 has allowed I.A.No.9 and has directed the plaintiff to pay stamp duty on the market value of the suit schedule property. Subsequently, on 20.07.2018, a further order is passed by the Trial Court, directing the petitioner to pay deficit stamp duty and penalty at Rs.4,81,800/-. Being aggrieved by the aforesaid two orders plaintiff is before this Court. 4. Perusal of the material on record would go to show that sale agreement dated 14.02.2005 has been produced and marked as Ex.P1 during the course of trial in O.S.No.5728/2010. I.A.No.9 is filed by the defendant to impound the said document for the reason that the same is insufficiently stamped. The Hon'ble Supreme Court in the case of G.M. SHAHUL HAMEED VS. JAYANTHI R. HEGDE reported in 2024 INSC 493 has observed that notwithstanding Section 35 of the Stamp Act, if the Court finds that there was no proper adjudication with regard to - 5 - HC-KAR NC: 2025:KHC:49665 WP No. 40043 of 2018 the sufficiency of stamp duty paid at the time of marking the document, even at a later stage, the Court can exercise its powers under Sections 33 and 34 of Act and impound the instrument/document for the purpose of collecting deficit stamp duty and penalty applicable. 5. In the case of hand, allegation is that Ex.P1 which is the sale agreement dated 14.02.2005 is insufficiently stamped. Article 5 of the Karnataka Stamp Act, 1957 (in short 'the Act, 1957) provides for payment of stamp duty on an agreement for sale. Perusal of the agreement would go to show that there is no mention of handing over possession of the suit schedule property under the agreement in question. Therefore, the Trial Court was not justified in holding that stamp duty as provided under Article 5(e)(i) of the Act, 1957 would be applicable to the document in question. 6. The Hon'ble Supreme Court in the case of SEETHARAMA SHETTY VS. MONAPPA SHETTY reported in 2024 SCC ONLINE SC 2320 has held that the Court in - 6 - HC-KAR NC: 2025:KHC:49665 WP No. 40043 of 2018 exercise of its powers under Sections 33 and 34 of the Stamp Act, 1957 is only required to impound the instrument/document in the event it is found that the instrument/document is insufficiently stamped. In the said case, it is clearly held that Court should not determine the deficit stamp duty and penalty payable and for the said purpose the document is required to be forwarded to the Office of District Registrar or any other Competent Officer as provided under Section 39 of the Act, 1957. 7. The Trial Court has failed to appreciate the said aspect of the matter and vide order impugned at Annexure-D dated 20.07.2018, has directed payment of deficit stamp duty and penalty at Rs.4,81,800/- which has been determined by the Court vide order dated 01.02.2018 and therefore, the orders which are impugned in this writ petition cannot be sustained. Accordingly, the following: ORDER i. The writ petition is allowed. - 7 - HC-KAR NC: 2025:KHC:49665 WP No. 40043 of 2018 ii. The impugned order dated 12.07.2017 passed on I.A.No.9 and the impugned order dated 20.07.2018 passed in O.S.No.5728/2010 by the Court of XXIX Additional City Civil Judge, Bengaluru City are set aside and the matter is remitted to the Trial Court to consider I.A.No.9 afresh in the light of the observations made herein, after hearing all the concerned parties. Pending I.A's, if any, do not survive for consideration and the same are accordingly, disposed of. Sd/- (S VISHWAJITH SHETTY) JUDGE KVR List No.: 1 Sl No.: 12