Bombay High Court
J P Morgan Services India Pvt. Ltd. ... vs Union Of India And 3 Others on 2 February, 2021
Bench: A.A. Sayed, Madhav J. Jamdar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.1968 OF 2021
...
J.P. Morgan Services India Pvt. Ltd. & Anr. ...Petitioners
v/s.
Union of India & Ors. ...Respondents
....
Mr. Venkatesh Dhond, Senior Counsel, Mr. Ankoosh Mehta, Ms. Sanika
Gokhale, Mr. Aviral Sahai i/b M/s. Cyril Amarchand Mangaldas for the
Petitioners.
Ms. Geeta R. Shastri, Additional GP for the Respondent/State.
...
CORAM : A.A. SAYED &
MADHAV JAMDAR, JJ.
DATED : 02 FEBRUARY2021
JUDGMENT (per A.A. Sayed, J.)
1 By this Petition, the Petitioners have impugned the
communication dated 17 December 2020, whereby Respondent No.3-Joint
Sub-Registrar of Assurances has refused to register the 'Agreement to
License' executed between the Petitioners. Respondent No.3 has declined
registration essentially on the ground that the time-period of 4 months for
the registration of the Agreement under section 23 of the Registration Act,
1908, has elapsed. The Petitioners have also prayed for an order directing
Respondent No.3 to accept Agreement to License for registration.
According to the Petitioners, Respondent No.3 has ignored and/or failed to
consider that the delay in the presentation of the Agreement to License was
solely attributable to delay of 319 days on the part of Respondent No.4-
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Collector of Stamps in adjudicating the Agreement to License for the
purpose of stamp duty.
2. Both the Petitioners are Companies who had executed an
'Agreement to License' (hereinafter referred to as 'the Agreement') dated 5
December 2019 whereby the Petitioner No.2 has agreed to license certain
premises viz. Blocks B-9, B-10 and B-11 of Nirlon Knowledge Park,
Western Express Highway, Goregaon (East), Mumbai - 400 063 to the
Petitioner No.1. Under clause 27 of the Agreement the Petitioner No.1 is
required to pay the stamp duty and registration charges.
3 On 12 December 2019, the Petitioner No.1 filed an Application
before the Respondent No.4-Collector of Stamps for adjudication of stamp
duty payable on the Agreement under section 31 of the Maharashtra Stamp
Act, 1958 (hereinafter referred to as "the Stamp Act"). According to the
Petitioners, despite following up with the Respondent No.4, the adjudication
of stamp duty payable was not completed by Respondent No.4 till 26
October 2020. In the meantime, due to outbreak of Covid-19 pandemic a
nation-wide lockdown was imposed from 23 March 2020 and the offices of
the Respondent Nos.3 and 4 were shut. Meanwhile, on 4 April 2020 the four
month period envisaged under section 23 of the Stamp Act for registration
of the Agreement elapsed.
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4 On 26 October 2020 after a delay of more than 10 months, the
Respondent No.4-Collector of Stamps issued a Notice of Adjudication and
Demand intimating the Petitioner No.1 that the stamp duty payable on the
Agreement had been adjudicated/determined at Rs.39,07,89,725/-. The
entire stamp duty amount has accordingly been paid by the Petitioner No.1
on 4 December 2020 which is well within the statutory period of 60 days
prescribed under section 31(4) of the Stamp Act. According to the Petitioner,
when the Petitioner No.1 approached the Respondent No.3-Joint Sub-
Registrar of Assurance to lodge the Agreement for registration, it was
informed that it will not be possible to register the Agreement as the period
for registration under section 23 of the Registration Act, 1908 i.e. four
months from the date of execution of the Agreement had expired. According
to the Petitioners, they were informed that no circumstances existed to
exercise discretion by the Registrar under the proviso to section 25 of the
Registration Act, 1908 whereunder a further period of four months, in case
of an urgent necessity or unavoidable circumstances, is provided.
5 On 4 December 2020 the Petitioner No.1 addressed a letter to the
Respondent No.3 pointing out that the delay was caused by the
Respondent No.4 in issuance of the Notice of Adjudication and Demand
which could not be attributed to the Petitioner No.1, which letter was
responded to by the Respondent No.3 by a reply stating that it would not be
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possible to accept the Agreement as it was executed on 5 December 2019.
A tabular statement showing the date, particulars and the time taken, is set
out hereinbelow:
Sr.No Particulars Date Time taken (in days)
.
01 Execution of the Agreement to December 5, 2019 -
License
02 Filing of application for December 12, 2019 07
adjudication of stamp duty on
the Agreement to License with
Respondent No.4.
03 Pandemic Notification issued March 23, 2020 109
Registration expired
05 Issuance of the Notice of October 26, 2020 326
Adjudication and Demand
Adjudication and Demand
08 Application for registration of December 4, 2020 365
the Agreement to License
6 The question which arises for consideration is whether the time
period taken by the Respondent No.4 for adjudication of stamp duty (i.e.
319 days) ought to be excluded while calculating the time period of four
months as prescribed in sections 23 of the Registration Act. Sections 23 of
the Registration Act reads as follows:
"23. Time for presenting documents.--Subject to the
provisions contained in sections 24, 25 and 26, no document
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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 a of a decree or order may be presented
within four months from the day on which the decree or order was
made, or, where it is appealable, within four months from the day
on which it becomes final.
7 Two Affidavits-in-Reply have been filed on behalf of the State
Government; one is by the Respondent No.4-Collector of Stamps and the
other by the Respondent No.3-Joint Sub-Registrar of Assurances. In the
Affidavit-in-Reply of the Respondent No.4-Collector of Stamps, it is stated in
paragraphs 2 and 3 as follows:
"2. Without prejudice to what is stated above, I say that the
document known as 'Agreement to license' was executed
between the Petitioner Nos.1 and 2 on 05.12.2019. I say that on
12.12.2019 Mr. Shiish Wankhede, Global Real Estate India
Private Limited made an Application under section 31 of
Maharashtra Stamp Act, 1958 with Respondent No.4, the
Collector of Stamps for adjudication of stamp duty payable on the
aforesaid document. The copy of said Application is annexed as
Exhibit B at Page No.484 to the Petition. I say that Respondent
No.4 issued Notice dated 16.10.2020. I say that the Respondent
No.4 in proceeding under Section 31 of Maharashtra Stamp Act,
1958 by adjudication Order dated 16.10.2020 in Adjudication
Case No.ADJ/1100902/1542/19 informed J.P. Morgan Services
India Private Limited that a sum of Rs.39,07,89,725/- was payable
as stamp duty on the afore stated document as per Article 36 read
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with Article 25(9b) of Schedule I of Maharashtra Stamp Act, 1958.
The copy of said adjudication Order dated 16.10.2020 was served
on 26.10.2020. I say that Interim Order is annexed as Exhibit "C"
at page No.476 to the Petition. The stamp duty of
Rs.39,07,89,725/- was paid on 01.12.2020 and accordingly on
03.12.2020 an endorsement of issuance of certificate under
section 32 of Maharashtra Stamp Act was done on the said
document.
3. I say that the period for completion taken for the process
of adjudication was of 10 months due to COVID-19 pandemic
situation, the office work was started on regular basis in the
month of June-2020 and due to huge number of applications."
8 In para 9 to 11 of the Affidavit-in-Reply of the Joint Sub Registrar
of Assurances, it is stated as follows:
"9. I say that the relevant dates in the instance matter are as
under:
(i) The document is executed on 05.12.2019.
(ii) The Application under section 31 of the Maharashtra
Stamp Act, 1908 to the Collector of Stamp is made on 12.12.2019
as stated in the Affidavit of the Respondent No.4.
(iv) The Order of adjudication under section 31 of the
Maharashtra Stamp Act, 1908 is passed on 16.10.2020 and was
served on 26.10.2020 as stated in the Affidavit of the Respondent
No.4.
(v) The payment of stamp duty of Rs.39,07,89,725/- was
made on 01.12.2020 as stated in the Affidavit of the Respondent
No.4.
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(vi) I say that the certificate under section 32 of the
Maharashtra Stamp Act was issued on 03.12.2020 as stated in
the Affidavit of the Respondent No.4.
(vii) The Petitioner No.1 made Application to Respondent
No.3 by letter dated 04.12.2020 with copy of document to provide
date and time for registration.
(viii) The said letter dated 04.12.2020 of the Petitioner No.1
was received by Respondent No.3 on 14.12.2020.
(ix) The Respondent No.3 by letter dated 17.12.2020
informed the Petitioner that the period of presentation of
document for registration was over as the document was
executed on 05.12.2019, and therefore the Registration process
of said document cannot be done.
10. I say that in view of the aforesaid facts the relevant dates
after excluding the time taken for adjudication i.e. 10 months 17
days period then the document for registration would be one
months and twenty seven days till 14.12.2020 and would be three
months and fifteen days till 02.02.2021.
11. I say that the Hon'ble Court, in view of the judgments as
quoted above and relied by the Petitioner in the above case can
pass appropriate Orders regarding Registration of said document
as per the provisions of Law."
9 It is thus an admitted position that the process of adjudication of
the Agreement itself took about 319 days. It is also an admitted position that
if the time for adjudication (i.e. 319 days) is excluded, the time for
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presentation of the Agreement for registration would be within four months
as envisaged in section 23 of the Registration Act.
10 Learned Senior Counsel for the Petitioners has placed reliance on
the following judgments of this Court:
i) Accord Nidhi Developers and Anr. vs. The State of Maharashtra
and Ors., 2016 SCC OnLine Bom 1572 of Division Bench of this
Court;
ii) Nestor Builders & Developers Pvt. Ltd. vs. State of Maharashtra,
2015 SCC OnLine Bom 3480, Division Bench of this Court;
iii) Snehanjali Electronics and Trading Private Limited vs. Inspector
of General of Registration and Controller of Stamps, 2017 SCC
OnLine Bom 6755, Division Bench of this Court;
iv Tardeo Properties Private Ltd. and Another vs. State of
Maharashtra and Another, 2015 SCC OnLine Bom 6544, Division
Bench of this Curt ;
v) Akshay Vitta Management and Investment Consultancy Services
Pvt. Ltd. and others vs. State of Maharashtra and others, 2016(2)
Mh.L.J. 395, Single Judge of this Court.
11 In Nestor Builders & Developers Pvt. Ltd. vs. State of
Maharashtra, 2015 SCC OnLine Bom 3480, the Division Bench of this
Court in paras 10 and 11 observed as under:
"10. ... ... ... In the facts of the present case
the delay was purely attributable to the Collector of Stamps in
passing a final adjudication order under Section 31 of the
Maharashtra Stamps Act on 18 February 2013. This delay on the
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part of the Collector of Stamps cannot be held to be detrimental to
the petitioners who were not at fault and who were diligently
pursuing the proceedings before the Collector of Stamps as
observed above. The action of the respondents not to exclude the
period taken by the Collector of Stamps in adjudication of the
documents for the purpose of determination of the stamp duty
would entail serious consequences, defeating the rights of the
petitioners to get the documents registered for no fault on their
part. ... ... ...."
"11. Having examined the relevant provisions of the
Registration Act and applying the above principles of law as laid
down by the Supreme Court, we are of the considered opinion that
the time taken by the Collector of Stamps for adjudication is
required to be excluded by the respondents in accepting the said
document for registration. ... ... ... ..."
12 In Accord Nidhi Developers and Anr. vs. The State of
Maharashtra and Ors., 2016 SCC OnLine Bom 1572, the Division Bench
of this Court following the aforesaid judgment in Nestor Builders &
Developers Pvt. Ltd. vs. State of Maharashtra, 2015 SCC OnLine Bom
3480 observed as under:
"8. We are of the view that no hairsplitting or
distinction of the principle laid down by this reported judgment is
now permissible. For, this Court has elaborately discussed the
rival contentions, the ambit and scope of the legal provisions and
held that if the delay was purely attributable to a distinct authority,
namely, the Collector of stamps under the Maharashtra Stamps
Act, 1958 and who took time to adjudicate the stamp duty and
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pass an order, then, that period ought to be excluded and the
benefit thereof should be extended to parties like the Petitioners.
9. ... ... ... Hence, the time spent from the date of
presentation before the registration authority and the date of
receipt of the adjudication order was liable to be excluded. Even
on 4th November, 2015 the authority was approached. It may be
that if one goes by mathematical calculation that there was a
marginal delay, however, that was capable of being condoned and
relying on the principle. Eventually these are acts of public bodies
and public officials. Parties like the Petitioners cannot be
expected to control them. If they take their time in adjudicating
matters and passing an order and thereafter communicating the
same to the parties like the Petitioners, then, such instance and a
rigid one would be fatal and the interest of parties would be
adversely affected in the absence of registration. For all these
reasons, we are not in agreement with Ms. Kantharia that the
point is not covered by this Court's judgment referred above."
The other judgments cited across the bar also support the case of the
Petitioners.
13 The issue raised in the Petition is squarely covered by the
aforesaid judgments of this Court. The delay of 319 days on part of the
Respondent No.4 in carrying out the adjudication process is required to be
excluded in reckoning the period of four months from the date of execution
of the Agreement to the date of presentation of the Agreement for
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registration, as prescribed in section 23 of the Registration Act. If this period
of 319 days is excluded, the presentation of the Agreement for all intent and
purposes would be well within the statutory period of four months.
14 In light of the above, the Respondent No.3 is directed to accept
the Agreement to License dated 5 December 2019 when presented by the
Petitioners for its registration under the provisions of the Registration Act.
We record the statement of the learned Senior Counsel that the Agreement
to License shall be presented by the Petitioner for registration within one
week from the date this order is uploaded.
15 The Writ Petition is allowed in the aforesaid terms.
(MADHAV JAMDAR, J.) (A.A. SAYED, J.)
Digitally signed by
Sudarshan Sudarshan R.
Katkam
R. Katkam Date: 2021.02.06
15:55:17 +0530
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