- 1 - HC-KAR NC: 2026:KHC:34977 WP No. 12360 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JULY, 2026 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO. 12360 OF 2022 (GM-CPC) BETWEEN: MRS HAFEEZA BEE W/O LATE A R BASHA, AGED ABOUT 72 YEARS, R/AT NO.4/2, CLEVELAND ROAD, FRAZER TOWN, BENGALURU-560005 (SENIOR CITIZEN BENEFIT NOT CLAIMED). PETITIONER (BY SRI. MALLIKARJUN. NK., ADVOCATE FOR SRI. SAMPATH A.,ADVOCATE) AND: 1. MR SYED FAKRUDDIN S/O SYED SHABUDDIN, AGED ABOUT 57 YEARS, 2. MRS NOOR SALMA W/O SYED FAKRUDDIN, AGED ABOUT 46 YEARS, BOTH RESPONDENT NO.1 AND 2 R/AT NO.657, 7TH CROSS, 5TH BLOCK, IST STAGE, HBR LAYOUT, BENGALURU-560043. 3. A R FAYAZ KHAN S/O LATE A R BASHA, AGED ABOUT 45 YEARS, Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2026:KHC:34977 WP No. 12360 of 2022 4. A R FEROZ KHAN S/O LATE A R BASHA, AGED ABOUT 41 YEARS, BOTH RESPONDENT NO.3 AND 4 R/AT NO.4, CROSS 2, CLEVELAND FRAZER TOWN, BENGALURU-560005. RESPONDENTS (BY SRI. SHIVRUDRAPPA., ADVOCAT FOR R1 AND 2; V/O DTD 23.06.2022 NOTICE TO R3 AND 4 D/W) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO-CALL FOR RECORDS FROM THE FILE OF THE LEARNED XXXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN O.S.NO.1697/2011 AND ETC,. THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This writ petition is filed challenging the order dated 30.05.2022 passed on IA.No.2/2017 in OS.No.1697/2011 by the XXXIV Additional City Civil and Sessions Judge, Benglauru (hereinafter referred to as the 'Trial Court' for short). 2. Sri. Mallikarjun. N.K., learned counsel for Sri. Sampath. A, learned counsel appearing for the - 3 - HC-KAR NC: 2026:KHC:34977 WP No. 12360 of 2022 petitioner submits that the respondents have filed a suit for specific performance of the agreement dated 16.04.2010. In the said suit, petitioner/defendant No.1 filed an application under Sections 33 and 34 of the Karnataka Stamp Act, 1957 (hereinafter referred to as 'Act') seeking to impound the agreement of sale dated 16.04.2010 which is marked Ex.P1 on the ground that, the agreement of sale indicates that the defendants would deliver the vacant possession of each unit whenever purchaser makes further advance payment in total sale consideration. As per the receipt produced dated 28.10.2010 the advance of Rs.5,00,000/- is claimed to have been paid by the plaintiff, further receipt dated 28.10.2010 also indicates the payment and in view of the same, the possession of the schedule property is agreed to be delivered. Hence, Article 5(e)(i) of the Act, applies and the plaintiff is liable to pay the duty along with ten times penalty. - 4 - HC-KAR NC: 2026:KHC:34977 WP No. 12360 of 2022 3. It is further submitted that, the notice issued by the plaintiff's counsel also indicates that the portion of the property is delivered as well as the counsel has agreed before the Trial Court that the plaintiff is in possession of the property i.e., third floor ACC seat which can be noticed from the order dated 07.02.2021. Hence, the instrument in question is liable to be impounded by directing the plaintiff to pay duty and 10 times penalty. However, the Trial court under the impugned order erroneously rejected the application stating that the delivery of position is only symbolic and not physical position. Hence, he seeks to allow the petition. 4. Per contra, Sri. Shivarudrappa Shetkar., learned counsel appearing for respondent Nos.1 and 2 supports the order of the Trial Court and submits that, as per the agreement of sale in question the parties have agreed that the possession will be delivered at the time of registration of the absolute sale deed. It is further submitted that, defendant No.1 in her written statement - 5 - HC-KAR NC: 2026:KHC:34977 WP No. 12360 of 2022 categorically denied any receipt of the amount from the plaintiff and further she has denied that no possession is delivered to the plaintiff. When things stood thus, the filing of an application by the very same defendant seeking to impound the document by contending that the payments are made is an abuse of process of law. 5. It is also submitted that, respondent Nos.1 and 2 had filed a memo along with 2 gift deeds, 2 cancellation of gift deeds, 1 sale agreement, 1 cancellation of sale agreement and absolute sale deed and these instruments are registered instruments executed by the defendants prior to the filing of the writ petition and the petitioner/defendant No.1 has suppressed this fact before this Court and as per these documents the possession was with the defendants and they have sold the schedule property in favour of the third party. It is also submitted that seeing the conduct of the defendant No.1/petitioner, this Court ought to refrain from exercising jurisdiction under Article 227 of the Constitution of India and seeks to - 6 - HC-KAR NC: 2026:KHC:34977 WP No. 12360 of 2022 dismiss the petition with exemplary cost for abusing the process of the Court. 6. I have heard the arguments of learned counsel for the petitioner, learned counsel for the respondents and meticulously perused the material available before this Court. 7. Respondent Nos.1 and 2 have filed suit in OS.1697/2011 seeking the relief for specific performance of the agreement of sale dated 16.04.2010. In the said suit, the petitioner filed a detailed written statement denying the plaint averments. Defendant No.1 filed an application under Sections 33 and 34 of the Act, seeking prayer to impound the agreement of sale dated 16.04.2010, which is marked as Ex.P1, and sought direction to the plaintiff to pay stamp duty and penalty on the same. The said application was opposed by the plaintiff. The Trial Court under the impugned order rejected the said application. - 7 - HC-KAR NC: 2026:KHC:34977 WP No. 12360 of 2022 8. It is required to be noticed that, the agreement of sale dated 16.04.2010 is produced as Annexure-E to the writ petition. Clause-4.7 reads as under: "The vendors shall deliver vacant possession of each unit/s as described in the Schedule 'B' property to the purchasers, as and when the purchasers made further advance payments in the total sale consideration." Clause-6.6 of the Agreement of Sale reads as under "Possession: 6.1) The vendors shall deliver vacant possession of the Schedule Property to the purchasers on the date of registration of the Absolute Sale Deed." 9. The contention of learned counsel for the petitioner is that as per clause-4.7 of the agreement, the vendor has agreed to deliver the possession of the unit described in schedule-B property to the purchaser, when the purchaser makes further advance payment in total sale consideration. As per the said clause, the payments were made as per the receipt dated 28.10.2010. Hence, the case on hand falls under Article 5(e)(i) of the Act. It is also required to be noticed that, in clause-6 it was agreed between the parties that the vendor shall deliver the - 8 - HC-KAR NC: 2026:KHC:34977 WP No. 12360 of 2022 vacant possession of the schedule property to the purchaser on the date of execution of absolute sale deed. The question is whether the parties have acted on clause- 4.7 as contended by the petitioner is required to be looked into during the trial. 10. The perusal of the written statement filed by the petitioner/defendant No.1 who had filed an application for impounding the document at paragraph Nos.2, 5, and 11 has clearly stated that, she has not received any amount after the agreement from the defendants and possession is with the defendants. When the very applicant categorically states before the Trial Court that no advance is paid, contention of the petitioner to consider clause-4.7 of the agreement would not arise. 11. The another contention of learned counsel for the petitioner is that, in the notice as well as the order dated 07.02.2020 the plaintiff has admitted with regard to the possession of portion of the property. However, the - 9 - HC-KAR NC: 2026:KHC:34977 WP No. 12360 of 2022 same cannot be the sole basis to come to conclusion that the plaintiff is liable to pay the duty and penalty. 12. Learned counsel for the respondents/plaintiffs had filed a memo, along with the said memo, he has produced the following documents. 1. Registered gift deed dated 14.07.2000. 2. Registered cancellation of gift deed dated 07.02.2022. 3. Registered gift deed dated 14.07.2020. 4. Registered cancellation of gift deed dated 07.02.2022. 5. Registered agreement of sale dated 08.02.2022. 6. Registered cancellation of sale agreement dated 26.04.2022. 7. Registered sale deed dated 26.04.2022. 13. All the aforesaid instruments are registered instruments executed by the defendant in favour of third parties and these instruments are executed prior to the filing of this writ petition and the petitioner has conveniently suppressed the said fact before this Court. It is also required to be noticed that in a sale deed dated 26.04.2022 the sellers i.e., the defendants have all shown - 10 - HC-KAR NC: 2026:KHC:34977 WP No. 12360 of 2022 their address and stated that they are residing in the same address which they claim to have delivered the possession in favour of the plaintiff. Such an act of the petitioner/defendant No.1 amounts to suppression of material facts with an intention to mislead the fact with regard to delivery of possession. The aforesaid analysis and events clearly indicate that defendant No.1 has abused the process of Court by filing an application seeking to impound the document and when the said application was rejected, further the same was challenged before this Court by suppressing the material fact that they executed the gift deed, cancelled the gift deed, executed an agreement of sale, cancelled the agreement of sale and later executed the absolute sale deed dated 26.04.2022 in respect of the suit schedule property. It is also required to be noticed that, in the absolute sale deed dated 26.04.2022 the very defendants have clearly stated in the sale deed that they have handed over the physical possession of the scheduled property in favour of the - 11 - HC-KAR NC: 2026:KHC:34977 WP No. 12360 of 2022 purchaser. This conduct of the petitioner/defendant No.1 is required to be curtailed by imposing exemplary costs. Hence, I proceed to pass the following: ORDER The writ petition is dismissed as devoid of merit with the cost of Rs.50,000/- to be payable to the plaintiffs on the next date of hearing. It is made clear that, if cost is not paid to the plaintiff as ordered, right of defence of the petitioner/defendant No.1 will be striked off. The Trial Court shall endure to dispose of the suit as early as possible. Sd/- (VIJAYKUMAR A. PATIL) JUDGE PNV List No.: 1 Sl No.: 34