- 1 - HC-KAR CNR: KAHC010349842021 NC: 2026:KHC:36735 WP No. 17372 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2026 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.17372 OF 2021 (GM-CPC) BETWEEN: MR. NAYAZ PASHA AGED ABOUT 51 YEARS S/O. NAWAB JAN R/AT NO.134/2, VBN FABRICATION WORKS NEAR VARTHUR POLICE STATION BENGALURU-560 087 …PETITIONER (BY SRI NAGARAJA HEGDE, ADVOCATE) AND: 1. SMT. K. SHANTHAKUMARI AGED ABOUT 71 YEARS W/O. LATE LAKSHMANRAJU 2. SRI RAJA PRASANNA KONDOOR AGED ABOUT 48 YEARS S/O. LATE LAKSHMANRAJU 3. MRS. SUNITHA KANDOOR AGED ABOUT 45 YEARS D/O. LATE LAKSHMANRAJU 4. MRS. VINUTHA KONDOOR AGED ABOUT 43 YEARS D/O. LATE LAKSHMANRAJU Digitally signed by AASEEFA PARVEEN Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR CNR: KAHC010349842021 NC: 2026:KHC:36735 WP No. 17372 of 2021 ALL ARE R/AT NO.487 9TH MAIN, 3RD CROSS HAL, 2ND STAGE BENGALURU-560 008 …RESPONDENTS (BY SRI K. K. VASANTH, ADVOCATE FOR R-1 TO R-4) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 25.08.2021, PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, IN O.S.NO.1239/2021 VIDE ANNEXURE-A. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This writ petition is filed challenging order dated 25.08.2021 passed in O.S.No.1239/2021 by the Principal Senior Civil Judge, Bengaluru Rural District, Bengaluru. 2. Sri.Nagaraja Hegde learned counsel appearing for the petitioner submits that petitioner had filed a Suit for Specific Performance of the Agreement of Sale dated 19.11.2014. In the said suit, even before issuance of summons to the defendant, the trial Court proceeded to - 3 - HC-KAR CNR: KAHC010349842021 NC: 2026:KHC:36735 WP No. 17372 of 2021 impound the Agreement of Sale on the ground that the agreement of sale is deficiently stamped and the said agreement indicates the delivery of possession and is an unregistered instrument. It is submitted that the direction to pay duty and penalty would arise only if the said document is sought to be marked. It is submitted that as per the agreement there are two conflicting clauses. One clause indicates that the possession will be delivered at the time of registration and another clause says that vacant possession is delivered. The earlier clause of the agreement has to prevail and nowhere in the plaint, it is stated that the possession is delivered to the plaintiff. In support of his contention, he placed reliance on the decisions of the Hon'ble Supreme Court in the case of RUDRA SUNDAR DUTTA VS. MOHD. JAHADUR RAHIM AND OTHERS1 and in the case of MAULESHWAR MANI AND OTHERS vs. JAGDISH PRASAD AND OTHERS2 and the 1 AIR 1959 SC 24 2 2002 2 SCC 468 - 4 - HC-KAR CNR: KAHC010349842021 NC: 2026:KHC:36735 WP No. 17372 of 2021 decision of the Bombay High Court in the case of VESTAS WIND TECHNOLOGY INDIA PRIVATE LIMITED vs. INOX RENEWABLES LIMITED AND OTHERS3 and seeks to allow the petition. 3. Per contra, Sri.K.K.Vasanth, learned counsel appearing for the respondents/defendants, supports the order of the trial Court and submits that generally latter clause of the agreement has to prevail. It is submitted that even Section 17 of the Registration Act, 1908, mandates the registration of the instrument, if the plaintiff is contending that the possession is delivered. It is admitted that the instrument is insufficiently stamped as the trial Court taking note of the same, has ordered to pay a deficient stamp duty and penalty which does not call for any interference and hence, he seeks to dismiss the petition. 3 2019 SCC Online, Bom 554 - 5 - HC-KAR CNR: KAHC010349842021 NC: 2026:KHC:36735 WP No. 17372 of 2021 4. I have heard the arguments on behalf of the learned counsel for the petitioner and learned counsel for the respondent and perused the material on record. 5. Petitioner filed O.S.No.1239/2021 seeking relief of Specific Performance of the contract of Agreement of Sale dated 19.11.2014, the said instrument was impounded by the trial Court by exercising power under Sections 33 and 34 of the Karnataka Stamp Act, 1957 on the ground that the agreement indicates delivery of possession and the instrument is insufficiently stamped and ordered to pay duty and ten times penalty. It is required to be noticed that clause 3 and clause 13 of the agreement reads as under: "3. The Sellers agrees to deliver the possession of the schedule property at the time of execution and registration of the Sale Deed." "13. And whereas the Vendors have this day handed over the vacant possession of the schedule property to the purchaser for his use and enjoyment and development." - 6 - HC-KAR CNR: KAHC010349842021 NC: 2026:KHC:36735 WP No. 17372 of 2021 6. The aforesaid two clauses are inconsistent with regard to the delivery of possession. Clause 3 of the agreement indicates that the seller has agreed to deliver the possession of the suit schedule property at the time of execution of the registered sale. Clause 13 of the very same agreement indicates that vendor has this day handed over the vacant possession of the schedule property to the purchaser for use, enjoyment and development. It is to be noticed whether clause 3 or clause 13 of the agreement will prevail is required to be adjudicated by the trial Court along with the suit. The perusal of the plaint averment indicates with regard to the execution of the agreement of sale, payment of advance sale consideration etc., However, the plaint is silent with regard to whether the possession is handed over to the plaintiff by the defendant or not, under the agreement. However, in the writ petition, petitioner has specifically pleaded and made averment at para 12 that the possession was never delivered to the plaintiff. Be that as - 7 - HC-KAR CNR: KAHC010349842021 NC: 2026:KHC:36735 WP No. 17372 of 2021 it may, when there is a conflict in clauses in the agreement and there is absence of averment in the plaint with regard to handing over the possession in my considered view, the trial Court at the earliest stage of the proceeding impounding the document and ordering for payment of deficit duty and penalty, may not be appropriate. Hence, without adjudicating as to whether clause 3 or 13 will prevail and arriving at a conclusion that the possession delivered may not be proper. It is also not forthcoming from the impugned order as to why the trial Court proceeded to accept one clause and decline to accept another clause. Hence, in my considered view the impounding under section 33 of the Act may be proper if trial Court is of the opinion that instrument is insufficiently stamped, but the order to pay the duty and penalty may not be appropriate as the instrument is not sought to be admitted as evidence as provided under Section 34 of the Act. It would be appropriate for the trial Court to decide the issue as to whether the possession of the schedule - 8 - HC-KAR CNR: KAHC010349842021 NC: 2026:KHC:36735 WP No. 17372 of 2021 property was delivered under the agreement or not, which shall be decided along with deciding the suit on merits at the appropriate stage. 7. For the aforementioned reasons, I proceed to pass the following: ORDER i. Writ petition is allowed. ii. Impugned order dated 25.08.2021 passed in O.S.No.1239/2021 by the Principal Senior Civil Judge, Bengaluru Rural District, Bengaluru is set aside, keeping open all the contentions to be urged before the trial court to be decided at the appropriate stage. iii. No order as to costs. Sd/- (VIJAYKUMAR A. PATIL) JUDGE DS CT:VC List No.: 1 Sl No.: 23