Bombay High Court
Snehanjali Electronics And ... vs Inspector General Of ... on 12 July, 2017
Bench: R.M. Savant
903.wp2796.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2796 OF 2016
Snehanjali Electronics and )
Trading Private Limited, a Company )
incorporated under the provisions of )
the Companies Act, 1956 having its )
office at 4, Heena Gaurav Heights, )
S.V. Road, Kandivali (W), )
Mumbai 400 068 through Director )
Mr. Kanaiyalal K. Mulchandani )
Age : Adult, Occ. Business, )
Address : Fortune Enclave, )
Khar (W), Mumbai. )..Petitioner.
Vs.
1 Inspector of General of Registration )
and Controller of Stamps, Maharashtra )
Having its office at - Ground floor, )
Opposite Vidhan Bhavan (Council Hall), )
New Administration Building, )
Pune 411 001. )
)
2 Dy. Inspector General of Registration )
and Controller of Stamps, Mumbai, )
having his office at Ground floor, )
Shaheed Bhagatsingh Road, )
Mumbai 400 023. )
)
3 Joint District Registrar, Class-1, )
Mumbai Suburban District, having )
his office at Bandra, Mumbai. )
)
4 Sub-Registrar, Andheri- I, )
Having its office at - Ground floor, )
Family Court Building, Opp. )
M.M.R.D.A. Building, Bandra Kurla )
Complex, Bandra East, )
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Mumbai 400 051. )..Respondents.
Mr. Drupad Patil, for the Petitioner.
Mr. Kedar Dighe, AGP for the Respondents.
CORAM : R. M. SAVANT &
SMT.SADHANA S. JADHAV, JJ
DATE : 12th JULY, 2017
ORAL JUDGMENT (PER R.M. SAVANT, J)
1 Rule. Considering the challenge raised in the above Petition,
made returnable forthwith and heard.
2 The Writ jurisdiction of this Court is invoked by the Petitioner
seeking a direction against Respondent No. 4, to immediately register the
document being Exh. B to the above Writ Petition. It is not necessary to
burden this order with unnecessary details having regard to the final directions
that this Court proposes to issue.
3 The Petitioner herein had filed Company Scheme Petition No. 691
of 2014 in this Court. Similarly, Company Scheme Petition Nos. 690 and 692
of 2014 were filed by one Snehanjali Retail Private Limited and Snehanjali
Electronics and Trading Private Limited seeking sanction of this Court under
Section 391 to 394 of the Companies Act, 1956. This Court by Order dated
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28/11/2014 was pleased to allow the said Company Scheme Petitions being
Nos. 690 to 692 of 2014. The Petitioner thereafter, applied for certified copy
on 29/11/2014. The certified copies were supplied to the Petitioner on
26/12/2014. The facts which have unfolded thereafter and which are relevant
for adjudication of the above Petition are tabulated thus :
(i) 23/1/2015 : The Scheme of arrangement under Section 391 to 394
was submitted for adjudication i.e. the decree was submitted for adjudication
to the Collector of Stamps.
(ii) 19/8/2015 : The Collector of Stamps passed interim order directing the
Petitioner to deposit the stamp duty which is in the sum of Rs. 66,00,200/-.
(iii) 24/8/2015 : The Petitioner deposited the stamp duty by E-Challan.
(iv) After payment of the stamp duty, the document was sought to be
presented. However, it is the case of the Petitioner that the said document was
not accepted for registration by the Sub-Registrar, Andheri, I on the ground
that it was presented beyond four months.
(v) 5/3/2016 : The Petitioner vide letter of the said date addressed to the
Administration Officer requested him to issue necessary directions to the
concerned Registration Officer to register the said document. The said letter
was sent by registered post on 10th March, 2016.
(vi) 27/4/2016 : Taking cognizance of the said letter dated 5/3/2016 of the
Petitioner, the Joint District Registrar, Mumbai Suburban District, addressed
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letter dated 27/4/2016 to the Deputy Inspector General of Stamps seeking his
opinion as to whether the document of the Petitioner can be registered.
(vii) 5/4/2016 : The Petitioner had addressed the letter dated 5/4/2016 to
the Deputy Inspector of General of Stamps again requesting him to issue
necessary direction for registration of the document.
(viii) 16/7/2017 : The Petitioner had submitted an application under the
Right to Information Act requesting for the information as to whether any
decision has been taken with respect to the opinion sought by the Joint District
Registrar Class -1. The Petitioner was informed that by letter dated 17/5/2016
necessary directions were given to the Joint District Registrar Class I.
4 The aforesaid dates and events therefore, disclose that the
Petitioner had presented the document for adjudication on 23/1/2015 and the
adjudication was completed by the Collector of Stamps on 19/8/2015. The
Petitioner had thereafter on 24/8/2015 deposited the stamp duty of Rs.
66,00,200/- by E-Challan. The Petitioner had thereafter, received the stamped
copy with the certificate under section 32 B-1 on 26/8/2015. The Petitioner
had thereafter approached the Sub-Registrar for registration of the document,
however, it is the case of the Petitioner that the Sub-Registrar refused to accept
the document as it was presented after 4 months. The Petitioner had thereafter
addressed the letter dated 5/3/2016 to the Administrator in the Office of the
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Collector of Stamps for registration of the document, which letter has been
received by the Administrator on 11/3/2016. Hence, between the payment of
the stamp duty by the Petitioner and the letter addressed by the Petitioner to
the Administrator, there is a gap of 198 days.
5 Insofar as the delay which is occasioned on account of time taken
for adjudication, it is now well settled by the Judgments of this Court that the
said delay cannot be attributed to the party, who is seeking registration of the
document and the period of four months has to be calculated after deducting
the time taken for adjudication of the document. See Judgment of the
Division Bench of this Court in Writ Petition No. 1480 of 2013 (Nestor
Builders & Developers Pvt.Ltd & anr. V/s. State of Maharashtra & ors.)
and Judgment of the learned Single Judge of this Court in Writ Petition
No. 2662 of 2012 dated 17/1/2013, as also in Writ Petition No. 903 of
2014 dated 26/6/2014. In view of the said Judgments, the said issue is no
more res integra.
6 The cause for moving the above Writ Petition seems to be the fact
that the Office of the Sub-Registrar, Andheri I is not accepting the document of
the Petitioner for registration on the ground that the said document was
submitted beyond the period of four months which is postulated in Section 23
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of the Registration Act, 1908. As indicated above, it is the case of the
Petitioner that after the payment of the entire stamp duty, the Petitioner had
approached the Sub-Registrar, Andheri I with a request to register the said
document. However, according to the Petitioner, the Sub-Registrar had refused
to accept the said document on the ground that the same is presented beyond
four months of the decree being passed in the said Company Petition. It is in
the said context that Section 23 and 25 of the Registration Act, 1908 would
have to be looked into. The same are reproduced hereinunder for the sake of
ready reference.
23. Time for presenting documents Subject to the provisions contained in
sections 24, 25 and 26, no document other than a will shall be accepted for
registration unless presented for that purpose to the proper officer within four months
from the date of its execution:
PROVIDED that a copy of a decree or order may be presented within four months
from the date on which the decree or order was made or, where it is appealable,
within four months from the day on which it becomes final.
17[23A.Re-registration of certain documents Notwithstanding anything to the contrary
contained in this Act, if in any case a document requiring registration has been
accepted for registration by a Registrar or Sub-Registrar from a person not duly
empowered to present the same, and has been registered, any person claiming under
such document may, within four months from his first becoming aware that the
registration of such document is invalid, present such document or cause the same to
be presented, in accordance with the provisions of Part VI for re-registration in the
office of the Registrar of the district in which the document was originally registered;
and upon the Registrar being satisfied that the document was so accepted for
registration from a person not duly empowered to present the same, he shall proceed
to the re-registration of the document as if it has not been previously registered, and
as if such presentation for re-registration was a presentation for registration made
within the time allowed therefor under Part IV, and all the provisions of this Act, as to
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registration of documents, shall apply to such re-registration; and such document, if
duly re-registered in accordance with the provisions of this section, shall be deemed
to have been duly registered for all purposes from the date of its original registration:
PROVIDED that, within three months from the twelfth day of September, 1917, any
person claiming under a document to which this section applies may present the
same or cause the same to be presented for re-registration in accordance with this
section, whatever may have been the time when he first became aware that the
registration of the document was invalid.]
25. Provision where delay in presentation is unavoidable
(1) If ,owing to urgent necessity or unavoidable accident, any document executed, or
copy of a decree or order made, in 18[India] is not presented for registration till after
the expiration of the time hereinbefore prescribed in that behalf, the Registrar, in
cases where the delay in presentation does not exceed four months, may direct that,
on payment of a fine not exceeding ten times the amount of the proper registration-
fee, such document shall be accepted for registration.
7 Reading of Section 23 therefore, discloses that the document can
be accepted for registration only if it is presented to the proper officer within
four months from the date of its execution. The proviso to the said Section
carves out an exception. By the proviso, the said four months' period is to be
taken from the date on which the decree or order was made or where it is
appeallable within four months from the date on which it becomes final.
Hence, by the proviso, four months' period which is the limitation provided by
Section 23 in so far as the decree or order is concerned is to be calculated from
the date on which it becomes final. In the instant case, by virtue of sub-section
7 of Section 391 of the Companies Act, the decree became final after a period
of one month had lapsed from the date of the decree i.e. on 28/12/2014.
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8 Now coming to Section 25 of the said Registration Act, the
provision vests a discretion in the Registrar in the circumstances mentioned in
the said section. It provides that the Registrar in case where the delay in
presentation does not exceed four months, may direct that on payment of fine
not exceeding 10 times of the amount of the proper registration fee, such
documents shall be accepted for registration. The said provision covers the
cases where owing to urgent necessity or unavoidable accident, any
document executed, or copy of a decree or order made, in India is not
presented for registration. Hence, a reading of the said Section makes it
clear that the Registrar is vested with the power to extend the time for
registration of the document even if the period of four months as
postulated by Section 23 is over.
9 It is in the context of the aforesaid statutory provisions that
the facts of the instant case would have to be seen. As indicated above,
the Petitioner has paid the entire stamp duty by E-challan on 24/8/2015
and it is the case of the Petitioner that it approached Sub-Registrar I,
Andheri for registration, who refused to accept the document on the
ground that the same was presented beyond four months. Thereafter,
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the Petitioner addressed the letter dated 5/3/2016 to the Administrator
in the office of the Registrar requesting him to direct the concerned
officer to register the document.
10 It is significant to note that though such request was made
vide letter dated 5/3/2016, instead of replying to the Petitioner, the
authorities made a reference to the Deputy Inspector of General of
Stamps whether such a document could be taken up for registration.
11 There is no dispute about the fact that the Petitioner did not
receive any response to the said letter dated 5/3/2016. Hence, for the
purpose of Section 23 the date 5/3/2016 assumes importance. It is on
the said date i.e. 5/3/2016 that the Petitioner can be said to have made
a request for the document to be registered. It is the case of the
Petitioner that the Petitioner was orally informed by the Registrar in
August, 2015 that the document could not be registered as it has been
presented after the period of four months is over. In terms of the
proviso to Section 23, the Petitioner is entitled to the leverage of one
month, which is the period after which the decree has become final.
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Since the decree is dated 28/11/2014, the limitation of four months
postulated under Section 23 would start to run from 28/12/2014.
However, the period between 23/1/2015 when the document was
submitted for adjudication and 19/8/2015 when the adjudication was
complete would have to be left out.
12 The total period between 24/8/2015 and 5/3/2016 as
calculated by the Respondent themselves is a period of 198 days. The
limitation for registering the document would have to be calculated by
leaving out the period taken for adjudication. Hence, the period
between 23/1/2015 and 19/8/2015 as indicated above would have to be
left out. Since the adjudication was completed on 19/8/2015, the
initial period of 4 months would come to an end on or about
14/12/2015 and the further extension of 4 months in terms of Section
25 would come to an end in April, 2016. Since the Petitioner had
applied by letter dated 5/3/2016, the said date being much prior to the
extended period coming to an end in terms of Section 25, the Sub-
Registrar in our view was within his powers to extend the time under
Section 25. The learned AGP sought to contend that the said document
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was never presented for registration, we are unable to accept the said
contention, as it is impossible to believe that a party who has paid stamp
duty to the tune of Rs. 66 Lakhs would not approach the Sub-Registrar
and present the document for registration. Hence, the case of the
Petitioner that it has approached the Sub-Registrar immediately after
payment of stamp duty but the Sub-Registrar refused to accept the said
document as the period of 4 months was over, seems to be more
probable and must be given credence to. The Petitioner had addressed
the letter dated 05/03/2016 out of exasperation. The said letter also
went unheeded. The learned AGP however, fairly concedes the position
that the letter dated 5/3/2016 of the Petitioner elicited in the least a
response from the registering authority.
13 In out view therefore, on a conjoint reading of Section 23 and
Section 25 of the said Act, the Registrar is within his powers to extend
the time. Hence, even if the letter dated 05/03/2016 is taken as the
starting point, the delay if any is between December, 2015 to
05/03/2016 for which the Petitioner would be liable to pay penalty in
terms of Section 25 of the said Act.
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14 In that view of the matter, the above Petition would have to
be allowed and is accordingly allowed and the following directions are
issued.
(i) The Sub-Registrar i.e. the Respondent No. 4 herein is
directed to take the document concerned for registration after carrying
out the process mentioned in Section 25 of the Registration Act only to
the extent of calculating the penalty payable by the Petitioner.
(ii) On the penalty being calculated the same to be
communicated to the Petitioner forthwith.
(iii) On payment of the penalty by the Petitioner, the Respondent
No. 4 would register the document in question.
15 The Petition is allowed to the aforesaid extent. Rule is
accordingly made absolute, with parties to bear their respective costs.
[SMT.SADHANA S. JADHAV,J] [R.M.SAVANT, J]
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