Bombay High Court
M/S. Manohar Enterprises And Ors. vs The State Of Maharashtra And Ors. on 7 August, 2025
Author: Milind N. Jadhav
Bench: Milind N. Jadhav
2025:BHC-AS:34143
901.WP.11614.2016.doc
HARSHADA H. SAWANT
(P.A.)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11614 OF 2016
M/s. Manohar Enterprises and Ors. .. Petitioners
Versus
The State Of Maharashtra and Ors. .. Respondents
....................
Mr. E. A. Sasi a/w. Ms. Bhagyashri Mangale, Advocates for
Petitioners.
Mr. S. H. Kankal, AGP for Respondent Nos.1 and 2.
...................
CORAM : MILIND N. JADHAV, J.
DATE : AUGUST 07, 2025
P.C.:
1. Heard Mr. Sasi, learned Advocate for Petitioners and Mr.
Kankal, learned AGP for Respondent Nos.1 and 2.
2. The facts in the present case present a very sorry picture and
state of affairs. Petitioners before me executed a document titled as
'Deed of Conveyance' dated 11.05.2014 and filed Application for
adjudication of document in the office of Collector of Stamps, Kurla.
Application was numbered and on the basis of market value
determined, Petitioners were directed to pay Stamp Duty of
Rs.20,89,925/- which Petitioners deposited on 14.08.2014 pursuant to
which an endorsement was given by Collector of Stamps on
26.08.2014.
3. However due to dispute between the parties, the transaction
did not fructify and both parties decided to cancel the document of
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transaction. Both parties purchased a Non-Judicial Stamp paper and
executed a Deed of Cancellation on 23.03.2015 and 23.04.2015 and
cancelled the transaction.
4. Resultantly, Petitioners filed Application for grant of refund
of Stamp Duty of Rs.20,89,925/- with the office of Collector of Stamps,
Kurla on 10.01.2015 in the 'Online System'. The said Application was
numbered as Refund Case Ref/1100901/81/15/4282 and processed
during which due to Annexures to the Application not been complete,
the Petitioners were called upon to furnish the said Annexures thereto.
Petitioners physically i.e. offline submitted the Annexures alongwith a
physical copy of the Application filed on 07.05.2015 in the office of
Respondent No.5.
5. The said Application of the Petitioners claimed refund,
however plea was rejected by Respondent No.5 - the Collector of
Stamps, Kurla by forwarding the same to the office of Respondent No.4
- the Additional Controller of Stamps with a remark not to grant
refund of Stamp duty to the Petitioners. Respondent No.4 - the
Additional Controller of Stamps forwarded the file to the office of
Respondent No.2 - Inspector General of Registration and Controller of
Stamps endorsing the remark not to grant refund of Stamp Duty.
6. Record shows that on 26.10.2015, an order is passed by
Respondent No.2 - Inspector General of Registration and Controller of
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Stamps concluding that Petitioners are not eligible for grant of refund
of Stamp duty and plea of Petitioners is rejected. This order is
appended at page No. 30, Exh. 'A' of Petition.
7. Respondent No.3 - The Chief Controlling Revenue Authority
passed a further order dated 30.07.2016 holding that Appeal filed by
Petitioners against the above order is not maintainable, thus dismissing
the Appeal. Petitioners being aggrieved by the aforesaid order has
filed the present Writ Petition to assail the order dated 30.07.2016
passed by Respondent No.3 - The Chief Controlling Revenue Authority;
order dated 26.10.2015 passed Respondent No.2 - Inspector General
of Registration and Controller of Stamps and order dated 05.11.2015
passed by Respondent No.5 - the Collector of Stamps, Kurla.
8. Mr. Sasi would submit that the only thread common in the
aforesaid orders is the issue of limitation which is on the applicability
of Section 48 of the Indian Stamp Act, 1899 (for short 'the said Act') to
Petitioners' case for refund which has been applied to the Petitioners'
case for rejecting the claim.
9. He would submit that even though there is period of
limitation prescribed in Section 48 of the said Act for seeking refund
pursuant to the date of registration of cancellation deed, the said
provision though prescribes outer limit of six months to make the
Application from the date of registration of the cancellation deed, it
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does not say that Application made beyond the period of six months
will not be entertained. He would therefore persuade the Court to
apply the provisions of Section 5 of the Limitation Act, 1963 relating to
showing sufficient cause for consideration of Petitioner's Application.
10. In support of his submissions, he has referred to and relied
upon the decisions in the following cases of the Supreme Court and
this Court:-
(i) Bano Saiyed Parwaz v. Chief Controlling Revenue
Authority and Inspector General of Registration and
Controller of Stamps and Ors.1;
(ii) Harshit Harish Jain and Ors. v. The State of
Maharashtra and Ors.2;
(iii) Nanji Dana Patel v. State of Maharashtra and Ors.3.
11. While going through the aforesaid three judgments, it is
prima facie seen that the case of Petitioners as pleaded in the Petition
and grounds in the Petition are clearly covered by the ratio of the
aforesaid decisions of Supreme Court and this Court.
12. It is seen that while following the decision of Supreme Court
in the case of Bano Saiyed Parwaz (1st supra), the Division Bench of
this Court in paragraph No.13 in Nanji Dana Patel (3rd supra) has held
as under:-
1 MANU/SC/0460/2024 [Civil Appeal No.6533 of 2024 (arising out of SLP (C) No.4111 of 2020) decided on
17.05.2024].
2 MANU/SC/0103/2025 [Civil Appeal No.1002 of 2025 (arising out of SLP (C) No.21778 of 2024) decided on
24.01.2025.
3 MANU/MH/5448/2024 (Writ Petition No.1897 of 2019 decided on 27.08.2024.)
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"13. The Apex Court in Bano Saiyed Parwad (supra) in paragraph
Nos.14 to 17 held as under:-
"14. In Committee-GFIL v. Libra Buildtech Private Limited & Ors.,
wherein the issue of refund of stamp duty under the same Act was
in question, this Court has observed and held inter alia as under:
29. This case reminds us of the observations made by M.C.
Chagla, C.J. in Firm Kaluram Sitaram v. Dominion of India
[1953 SCC OnLine Bom 39: AIR 1954 Bom 50]. The
learned Chief Justice in his distinctive style of writing
observed as under in para 19: (Firm Kaluram case, SCC
OnLine Bom) "19.... we have often had occasion to say that
when the State deals with a citizen it should not ordinarily
rely on technicalities, and if the State is satisfied that the
case of the citizen is a just one, even though legal defences
may be open to it, it must act, as has been said by eminent
Judges, as an honest person."
We are in respectful agreement with the aforementioned
observations, as in our considered opinion these
observations apply fully to the case in hand against the
State because except the plea of limitation, the State has
no case to defend their action.
xxx xxx xxx
32. In our considered opinion, even if we find that
applications for claiming refund of stamp duty amount
were rightly dismissed by the SDM on the ground of
limitation prescribed under Section 50 of the Act yet
keeping in view the settled principle of law that the expiry
of period of limitation prescribed under any law may bar
the remedy but not the right, the applicants are still held
entitled to claim the refund of stamp duty amount on the
basis of the grounds mentioned above. In other words,
notwithstanding dismissal of the applications on the
ground of limitation, we are of the view that the applicants
are entitled to claim the refund of stamp duty amount
from the State in the light of the grounds mentioned
above."
15. The legal position is thus settled in Libra Buildtech (supra) that
when the State deals with a citizen it should not ordinarily rely on
technicalities, even though such defences may be open to it.
16. We draw weight from the aforesaid judgment and are of the
opinion that the case of the appellant is fit for refund of stamp duty
in so far as it is settled law that the period of expiry of limitation
prescribed under any law may bar the remedy but not the right and
the appellant is held entitled to claim the refund of stamp duty
amount on the basis of the fact that the appellant has been
pursuing her case as per remedies available to her in law and she
should not be denied the said refund merely on technicalities as
the case of the appellant is a just one wherein she had in bonafide
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paid the stamp duty for registration but fraud was played on her by
the Vendor which led to the cancellation of the conveyance deed.
17. For the foregoing reasons, the appeal is allowed, and we set
aside the impugned order dated 02.08.2019 as well as orders of
respondent nos.1 and 2 dated 09.06.2015 and 25.02.2016 and
direct the State to refund the said stamp duty amount of
Rs.25,34,400/- deposited by the appellant."."
13. This Court has concluded that in view of the long standing
decision of this Court in the case of Kaluram Sitaram v. Dominion of
India4 when the State deals with a citizen it should not ordinarily rely
on technicalities, and if State is satisfied that the case of the citizen is a
just one and even though legal defences may be open to it, the State
must act, as an honest person. The aforesaid observations made by M.
C. Chagla, C.J. in the case of Kaluram Sitaram (4th supra) having
reiterated by the Division Bench of this Court while determining the
case of Nanji Dana Patel (3rd supra) is on identical facts and in
identical circumstances as the present case.
14. In fact case of Petitioners is much stronger and on a higher
footing than the four cases which are referred to herein above on facts.
Here is the case of Petitioners who has invoked his statutory rights as
available to him under the Stamp Act but while doing so, the said right
having been invoked online, the entire documentation has not been
annexed by him which has been subsequently taken on record by the
Competent Authority, but the same is rejected due to the limitation
prescribed in Section 48(3) of the said Act.
4 [MANU/MH/0008/1954 : AIR 1954 Bom 50].
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15. In the present case it is seen that Application for refund is
made by Petitioners under the provisions of Section 48 of the said Act.
Title of Section 48 itself reads as "Application for relief under Section
47 when to be made". Thus Section 48 begins with the statement that
Application for relief under Section 47 shall be made within the period
which are indicated in clauses (1), (2) and (3) thereof. Insofar as
Section 47 is concerned, it applies to allowance for spoiled stamps
which are required to be returned back to the Government and
therefore such allowance is prescribed by the limitation in Section 48.
That apart Section 50 to 52-A also prescribe for allowance for stamps
not required for use by prescribing various limitation periods. Case of
Petitioners falls in the category of "stamps not required for use" due to
the reason of cancellation of the deed of conveyance. Section 52-A
pertains to allowance for duty which begins with a non obstante clause
stating that notwithstanding anything contained in Sections 47, 50, 51,
and 52 and refer to the power of Collector to make allowance for
stamps which are either spoiled or misused or not required for use.
The present situation is such that Petitioners paid stamp duty as a
bonafide purchaser of the property in view of the proposed deed of
conveyance to be executed between the parties. It is seen that
execution of the deed did not fructify. The reasons for non-
fructification of the deed of conveyance are not doubted. It is an
admitted position. Certain disputes and issues occurred due to which
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it was not possible for the said deed of conveyance to be executed and
fructified between the parties. There is nothing untoward observed in
the conduct of Petitioners in making the Application for refund of
stamp duty thereafter. All that has happened is delay and the delay
also in the present case is not unreasonable as can be seen from the
timeline alluded to herein above. Petitioners have sought for refund of
the stamp duty paid by them. Reasons have been stated and pleaded
by Petitioners. Conduct of Petitioners is not at all unreasonable.
Neither there is any intentional or wanton delay on the part of
Petitioners in applying for refund of stamp duty after many years. The
aforesaid provisions prima facie envisages that such Application must
be filed within a reasonable period. Though it is true that Application
for refund is sought for by the Petitioners under Section 48 of the
Stamp Act and even if it is construed that Section 48 refers to the
situation pertaining to spoiled stamps, it is well settled that reference
of a wrong statutory provision cannot oust the citizen of an entitlement
to refund which otherwise follows in terms of a statutory provision.
Hence rejecting the Application of Petitioners merely on the ground of
delay therefore is not the right course of action and looking at the
statutory provision it does not bar the Petitioners from pleading and
taking recourse to the provisions of Section 5 of the Limitation Act and
plead sufficient cause. Petitioners have clearly made out a case for
refund of "stamps not required for use" as also the delay, if any, of
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approximately 2 months.
16. Reference is placed on the decisions of the Supreme Court in
the case of Rajeev Nohwar v. Chief Controlling Revenue Authority,
Maharashtra State, Pune & Ors.5 and Committee-GFIL v. Libra
Buildtech Pvt Ltd & Ors.6
17. Rejection of Petitioner's case on the ground of limitation is
therefore unacceptable in the facts of the present case and the reasons
having been considered, the delay of approximately 2 months stands
condoned.
18. The only defence raised by Mr. Kankal, learned AGP
appearing for Respondents - State and its functionaries is that
provisions of Section 29(2) of the Limitation Act, 1963 would apply as
a bar to the maintainability of the Application of the Petitioners. The
said Section 29 and more specifically sub-section (2) of the Limitation
Act, 1963 would not apply to the facts of the present case considering
that the functionaries of the State who are Respondents before me are
not a Court.
19. That apart, observations and findings of the Division Bench
of this Court in paragraph No.15 of the decision in the case of Nanji
Dana Patel (3rd supra) apply on all fours to the facts and
circumstances of the present case in the case of Petitioners.
5 (2021) 13 SCC 754
6 (2015) 16 SCC 31
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20. Equally, twin decisions of the Supreme Court in the cases of
Bano Saiyed Parwaz (1st supra) which has been referred to by the
Division Bench of this Court and Harshit Harish Jain and Ors. (2nd
supra) also squarely cover the case of Petitioners.
21. In that view of the matter, the three impugned orders dated
order dated 26.10.2015 passed Respondent No.2 - Inspector General
of Registration and Controller of Stamps; order dated 05.11.2015
passed by Respondent No.5 - the Collector of Stamps, Kurla and order
dated 30.07.2016 passed by Respondent No.3 - The Chief Controlling
Revenue Authority denying refund of Stamp Duty to the Petitioners
alongwith penalty amount paid by him are required to be interfered
with. The Petitioners are held to be entitled to the refund of the stamp
duty amount notwithstanding dismissal of their Applications on the
ground of limitation as expiry of period of limitation may bar the
remedy but not the right.
22. All three impugned orders are therefore quashed and set
aside. Respondents are directed to refund payment of Rs.21,73,525/-
i.e. Rs.20,89,925/- towards Stamp Duty and Rs.83,600/- towards
penalty to Petitioners forthwith and in any event within a period of
two weeks from the date of uploading of this order subject to
compliance of statutory deductions in accordance with law.
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23. With the above directions, Writ Petition is allowed and
disposed.
H. H. SAWANT [ MILIND N. JADHAV, J. ]
RAVINDRA MOHAN
MOHAN Date:
AMBERKAR 2025.08.08
20:28:44
+0530
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