Bombay High Court
Sreenivasan Valadi Vayyattu vs The State Of Maharashtra Through ... on 28 November, 2023
Author: Madhav J. Jamdar
Bench: Madhav J. Jamdar
2023:BHC-AS:36459
201. WP 4376-2017 (J).doc
Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4376 OF 2017
1. Sreenivasan Valadi Vayyattu .Petitioner
Age : 71 yrs
resident of B/401, Cottage Land,
Sector 19A, Nerul (East),
Navi Mumbai - 400 706.
Vs.
1. The State of Maharashtra through .Respondents
the Collector of Stamps, Thane (City),
Collectorate Bldg., Court Naka,
Thane (West) - 400 601.
2. The Deputy Inspector General of
Registration & the Deputy Controller of
Stamps, Konkan Division, Varai Telephone
Exchange, 7th Floor, Mavali Mandal Road,
Dhobi Aali(Lane),
Thane (West) - 400 601.
3. The Chief Controlling Revenue Authority,
(Inspector General of Registration and
Controller of Stamps), Maharashtra State,
Ground foor, New Administrative Bldg.,
Opp. Council Hall,
Pune - 411 001.
Mr. Govind Javeri, Advocate, for the Petitioner with
Mr. Sreenivasan Valadi Vayyattu, Petitioner
Mr. S. H. Kankal, AGP, for Respondent Nos. 1 to 3 - State
CORAM : MADHAV J. JAMDAR, J.
DATE : 28.11.2023
ORAL JUDGMENT
1. Heard Mr. Govind Javeri, learned Counsel appearing
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201. WP 4376-2017 (J).doc
for the Petitioner and Mr. Kankal, learned AGP appearing for
Respondent Nos. 1 to 3 - State.
2. The challenge in the present Writ Petition is to the
Order dated 20.02.2015 passed by the Deputy Inspector General
of Registration and Deputy Controller of Stamps, Konkan
Division, Thane rejecting claim of the Petitioner for refund of the
stamp duty and the Order dated 17.11.2016 passed by the Chief
Controlling Revenue Authority, Pune in Appeal No.67 of 2015
confirming the said Order dated 20.02.2015.
3. It is the contention of learned Counsel appearing for
the Petitioner that Deed of Cancellation was executed on
20.08.2012 and same was registered on 01.11.2012 and the
Application was filed for refund of Rs. 6,11,600/- immediately
within time prescribed under Section 48(1) of the Maharashtra
Stamp Act ("said Act"), and the said Application was rejected by
the impugned order dated 20.02.2015 and the rejection was
confirmed by the impugned order dated 17.11.2016. It is his
contention that the Application has been filed within time limit,
as provided under Section 48(1) of the said Act and therefore, it
should have been allowed.
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4. On the other hand, it is the contention of Mr. Kankal,
learned AGP appearing for Respondent Nos.1 to 3 that the
Application for refund is not filed within the time limit.
5. Before considering the rival submissions, it is
necessary to set out undisputed factual position which is
recorded in the impugned Order passed by the Chief Controlling
Revenue Authority, Pune in paragraphs 1.1 to 1.5 which read as
under:-
"1.1 Appellant purchased Special
Adhesive Stamps of Rs. 6,11,600/- from the
office of Sub Post Master, Vashi, New
Mumbai on 05/10/2010 for the purpose of
execution of document "Agreement for
Sale".
1.2 Appellant filed an application for
adjudication under 31 of the said Act in the
office of Collector of Stamps, Thane City
(herein after referred a "Lower
Authority"); who numbered the
Adjudication case as ADJ/904/2010. He
determined market value of the property
involved in the document to the extent of
Rs. 1,25,79,000/- and has put his
Endorsement/Certificate on the document
to that effect on 30/11/2010.
1.3 Appellant executed the document on
16/12/2010 and presented it for
registration in the office of Sub Registrar,
Thane No. 6; who registered it at Serial No.
TNN-6-05853/2010 on same day.
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1.4 It is the case of a Appellant that as
per clause 10 on page No. 17 of the
document under sub title 'POSSESSION OF
THE SAID PREMISES/UNITS' the
builder/promoter was under obligation to
give possession of the premises on or before
the 30/06/2011. It is the further case of
Appellant that he found that said
Builder/promoter was not in position to
give possession of the said premises to the
Purchaser on the agreed date. As such
Appellant executed the Deed of
Cancellation on 28/08/2012; which was
registered at serial No. TNN-2-10298/2012
on 01/11/2012. The Developer returned the
amount of consideration of Rs. 66,52,000/-
to the Appellant.
1.5 Appellant filed an application for
grant of refund of stamp duty of Rs.
6,11,600/- in the office of Collector of
Stamps, Thane City on 08/02/2013 under
section 48(1) of the said Act; who
numbered the refund case at serial no.
R/63/13."
6. Proviso to Section 48 of the said Act, as applicable on
the date on which the Petitioner lodged his claim reads as
under :-
"Provided that where an Agreement to sell
immovable property, on which stamp duty
is paid under Article 25 of the Schedule I, is
presented for registration under the
provisions of the Registration Act, 1908 and
if the seller refuses to deliver possession of
the immovable property which is the
subject matter of such agreement the
application may be made within two years
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of the date of the instrument or where such
agreement is cancelled by a registered
cancellation deed on the grounds of, dispute
regarding the premises concerned,
inadequate finance, financial dispute in
terms of agreed consideration, or
afterwards found to be illegal construction
or suppression of any other material fact,
the application may be made within two
years from the date of such registered
cancellation deed"
(Emphasis added)
7. Mr. Javeri, learned Counsel appearing for the
Petitioner relied on the decision of a learned Single Judge of this
Court dated 14.10.2019 in the case of Nirulata Gyandev Sadh v.
State of Maharashtra reported in 2019 SCC OnLine Bom 8424
and more particularly on paragraphs 14 to 17 of the same which
read as under:-
"14. The fact that the agreement to sell or
purchase of the fat was cancelled by a deed
of cancellation, is also not in dispute.
Petitioner had paid stamp duty towards
purchase of the fat. However, when the fat
itself was not purchased, which decision was
taken well in advance of the date of handing
over of possession, it was not justified on the
part of the State to withhold stamp duty
paid by the petitioner on account of
purchase of the fat.
15. Learned counsel for the Petitioner has
pressed into service a decision of this court
in the case of Sanman Trade Impex Pvt.
Ltd., vs. State of Maharashtra, 2004 SCC
OnLine Bom. 747, and contends that it is a
matter of right for the Petitioner to claim
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refund of the stamp duty paid for purchase
of the fat when it was decided well in
advance that there would be no purchase.
In such circumstances, claim for refund
cannot be said to be outside the scope of the
Stamp Act. If the Authorities are
empowered to accept stamp duty, then it is
not understood as to how claim for refund
can be said to be outside the scope of the
Stamp Act. That apart, a reasoned order is
required to be passed while rejecting
refund. The order on the face of it should
disclose reasons for rejection of the claim.
Merely stating that a claim is outside the
scope of the said Act, cannot, under any
circumstance be said to be disclosing the
reason for rejection of the claim. In the
instant case, the authorities had collected
the stamp duty under the Stamp Act but
when the Petitioner approached for refund
of the same, the claim was sought to be
rejected on the ground that refund of stamp
duty falls beyond the scope of the said
Stamp Act which is quite untenable.
16. Learned counsel appearing for
Respondent No. 5, while supporting the case
of the Petitioner, has also placed reliance on
a Division Bench judgment of this court in
the case of M/s. S. K. Realtors vs. Inspector
General of Stamps & Controller of Stamps ,
Maharashtra State, Pune, reported in 2016
SCC OnLine Bom - 14536. In the said case,
this court deliberated upon the purpose
behind incorporating section 48 to the
Stamp Act and held that in a case, where
transaction is not executed, or cancelled
before execution, then the State is not
entitled to claim revenue for execution of
the said document, and that the State,
therefore, is under an obligation to refund
the amount paid for such purpose. The State
cannot resort to profiteering on the basis of
a document which is not executed. In the
facts of that case, Division Bench while
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directing refund of the stamp duty also
directed payment of interest at the rate of
6% per annum from the date of deposit.
17. Having noticed the above, the two
orders dated 04.03.2015 and 18.03.2015
impugned, may not stand judicial scrutiny.
In both orders, the stand taken by the
Respondents is that the claim for refund is
inconsistent and contrary to the provisions
of section 48(1) of the Stamp Act. As
already noted above, Section 48(1) of the
Stamp Act deals with the period of
limitation. Since the claim for refund was
filed within limitation, therefore, to hold
that such prayer is inconsistent and
contrary to the provisions of section 48(1)
of the Act, would be wholly unsustainable.
As regards the second ground, in view of the
Division Bench judgment, question of refund
of stamp duty for cancellation of instrument
can no longer be said to be outside the scope
and ambit of the Stamp Act."
(Emphasis added)
8. The aforesaid Order dated dated 14.10.2019 is
confirmed by the Supreme Court.
9. Mr. Javeri, learned Counsel appearing for the
Petitioner has also relied on the decision of a learned Single
Judge of this Court in the case of Sanman Trade Impex Pvt. Ltd.,
vs. State of Maharashtra, reported in 2004 SCC OnLine Bom 747
as well as the decision of the Supreme Court in the case of
Committee-GFIL v. Libra Buildtech (P) Ltd. , reported in (2015)
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16 SCC 31.
10. The present case is covered by all the above
mentioned decisions. Apart from this aspect, even the Deed of
Cancellation and more particularly, Clauses (c) and (d) in the
said Deed of Cancellation (page 48 of the Petition) clearly show
that there has been a delay of more than two years in handing
over possession of the fat. Proviso to Section 48 of the said Act
inter alia contemplates, if the seller refuses to deliver possession
of the immovable property which is the subject matter of such
agreement the application may be made within two years of the
date of the instrument or where such agreement is cancelled by a
registered cancellation deed on the grounds of, dispute regarding
the premises concerned and therefore, delay of more than two
years in handing over possession is covered by the said proviso.
In any case, the Application is filed within a period of about five
months from the date of the Cancellation Deed which is well
within a period of two years, as contemplated under Section 48 of
the said Act.
11. Accordingly, the Writ Petition deserves to be allowed
in the following terms.
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O R D E R
(i) The Order dated 20.02.2015 passed by the Deputy
Inspector General of Registration & the Deputy Controller of
Stamps, Konkan Division, Thane rejecting claim of the Petitioner
for refund of the stamp duty and the Order dated 17.11.2016
passed by the Chief Controlling Revenue Authority, Pune in
Appeal No. 67 of 2015 are quashed and set aside;
(ii) The Petitioner's Application dated 08.02.2013
seeking refund of stamp duty of Rs. 6,11,600/- is allowed;
(iii) The Respondents to pay Rs. 6,11,600/- with interest
of 6% per annum from the date of lodging the claim for refund of
stamp duty i.e. 08.02.2013 with applicable deductions.
12. The Writ Petition is disposed of in above terms with
no order as to costs.
(MADHAV J. JAMDAR, J.)
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