Bombay High Court
Armstrong Machine Builders Private ... vs State Of Maharashtra Thr The Secretary ... on 3 September, 2025
Author: Milind N. Jadhav
Bench: Milind N. Jadhav
2025:BHC-AS:36925
WP.8750.2024.doc
Ajay
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8750 OF 2024
Armstrong Machine Builders Private Limited .. Petitioner
Versus
State of Maharashtra through the Secretary
Ministry of Revenue and Anr. .. Respondents
....................
Mr. Mutahhar Khan a/w Ms. Kavisha Shah, Advocates i/by India
Law Alliance for Petitioner.
Mr. Jay Sanklecha, 'B' Panel Advocate alongwith Ms. M.S.
Srivastava, AGP for Respondents.
....................
CORAM : MILIND N. JADHAV, J.
Reserved on : August 19, 2025
Pronounced on : September 3, 2025
JUDGMENT:
1. Heard Mr. Khan, learned Advocate for Petitioner and Mr.
Sanklecha, learned 'B' Panel Counsel a/w Ms. Srivastava learned AGP
for Respondents.
2. Writ Petition impugns order dated 09.10.2023 passed by
Office of Inspector General of Registration and Controller of Stamps,
Pune. Application filed by Petitioner under Section 47(c)(1) of the
Maharashtra Stamp Act, 1958 (for short 'the said Act') for refund of
Stamp Duty is rejected solely on the ground of limitation. Impugned
order is appended at page No.23 of the Petition.
3. Briefly stated, on 13.07.2021, Petitioner entered into a Share
Purchase Agreement (for short 'SPA') with one M/s. Dematic Holdings
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UK Limited and others for transfer of equity shares for a total
consideration of Rs. 585,37,92,000/-. In compliance with requirement
under Article 5(h-A)(iv) of said Act, Petitioner paid Stamp Duty of
Rs.1,17,08,200/- through purchase of e-Stamp paper (e-SBTR Challan)
bearing GRN No.MH003566080202122S to facilitate execution of SPA.
3.1. On 17.04.2020 Ministry of Commerce and Industry, through
Department for Promotion of Industry and Internal Trade (FDI Policy
Section) issued a Press Note No.3 (2020 series) mandating that a non-
resident entity of a country sharing land border with India or where
beneficial owner of investment in India is situated in or is a citizen of
such a country, he could invest in India only under the Government
Route which required prior Government approval.
3.2. Since the ultimate beneficial owner of M/s. Dematic
Holdings UK fell within the ambit of Press Note No.3, said Purchaser -
M/s. Dematic Holdings UK Limited applied for approval to Ministry of
Commerce and Industry under the Foreign Investment Facilitation
mechanism by filing Application No.5825 for acquisition of shares of
Petitioner Company under the SPA.
3.3. By letter dated 24.03.2022, Ministry of Commerce and
Industry rejected the Application thereby rendering the SPA void-ab-
initio and unenforceable.
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3.4. Hence on 22.09.2022 Petitioner filed Application for refund
of Stamp Duty paid on the SPA. Application came to be rejected by
Respondent No.2 - Inspector General of Registration and Controller of
Stamps, solely on the ground of limitation. Rejection order dated
28.11.2022 was communicated to the Office of the Deputy Inspector
General, Nashik Division.
3.5. On 19.01.2023, Deputy Inspector General, Nashik Division,
upon completion of enquiry, forwarded recommendation to
Respondent No.2 to disallow refund claim of Petitioner under Section
52 of the said Act. Pursuant thereto, on 12.09.2023, Petitioner was
afforded an opportunity of personal hearing.
3.6. Thereafter by the impugned order dated 09.10.2023,
Respondent No.2 - Inspector General of Registration and Controller of
Stamps, rejected Petitioner's Application for refund of Stamp Duty.
3.7. Hence the present Writ Petition.
4. Mr. Khan, learned Advocate appearing for Petitioner would
draw my attention to the impugned order passed by Respondent No.2
and would submit that it is passed without following the principles of
natural justice and is hypertechnical, unjust and illegal. He would
submit that Application for refund is solely rejected on the ground of
delay in filing the Application. He would submit that Respondent No.2
failed to consider that the application for approval submitted by M/s.
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Dematic Holdings UK Limited as per Press Note No. 3 was rejected on
24.03.2022 i.e. 8 months after payment of Stamp Duty which rendered
the SPA void only thereupon on rejection of the Application, hence
until that date, Petitioner had no cause of action to seek refund.
4.1. He would submit that Petitioner did not avail any benefit
under the SPA as it did not fructify. He would submit that Respondent
No.2 failed to consider that e-Stamp paper used for SPA was found to
be unfit due to Government rejection. Hence according to him
limitation period for refund of stamp duty ought to have been
considered from date of SPA becoming void or unenforceable i.e. on
24.03.2022 and not from the date of purchase of stamp.
4.2. He would submit that denial of refund of Stamp Duty would
amount to unjust enrichment by the State as State cannot retain Stamp
Duty when the underlying transaction failed to fructify and became
void-ab-initio.
4.3. He would submit that delay was occasioned solely due to
delay in Governmental process which is entirely beyond the control of
Petitioner. He would submit that though Petitioner could not apply for
refund within the prescribed period of six (6) months solely due to
rejection of the mandatory Government approval, however later in
point of time i.e. after 8 months of payment of Stamp Duty, this
ground of delay cannot defeat the legitimate claim of refund of
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Petitioner.
4.4. In support of his submissions he has referred to and relied
upon the following decisions of the Supreme Court and this Court as
under:
(i) Committee - GFIL Vs. Libra Buildtech Private Ltd and
Ors.1,
(ii) Rajeev Nohwar Vs. Chief Controlling Revenue
Authority, Maharashtra State, Pune and Ors.2 ;
(iii) Satish Buba Shetty Vs. Inspector General of
Registration and Collector of Stamps and Ors.3;
(iv) Kasthmandup Developer Pvt. Ltd. Vs. State of
Maharashtra4;
(v) Bano Saiyed Parwaz Vs. Chief Controlling Revenue
Authority And Ors.5 ;
(vi) Nanji Dana Patel Vs. State of Maharashtra and Ors.6;
(vii) Panoli Intermediate (India) Pvt. Ltd. Vs. Union of
India and Ors. 7 ;
(viii) Pruthvirajsingh Nodhubha Jadeja Vs. Jayeshkumar
Chhakaddas Shah and Ors.8 ;
(ix) Vilas Eknath Nangude Vs. State of Maharashtra9 ; and
(x) Harshit Harish Jain and Anr. Vs. State of Maharashtra
and Ors.10.
1 (2015) 16 SCC 31
2 (2021) 13 SCC 754
3 Writ Petition No.9657 of 2022, decided on 11.01.2024.
4 (2023) SCC OnLine Bom 1143
5 (2024) SCC OnLine SC 979
6 (2024) SCC OnLine Bom 2817
7 (2015) SCC OnLine Guj 570
8 (2019) 9 SCC 533
9 (2023) SCC OnLine Bom 2051
10 (2025) SCC OnLine SC 166
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4.5. He would submit that impugned order suffers from
procedural irregularity, violation of principles of natural justice and
complete non-application of mind thereby rendering it legally
unsustainable. He would persuade the Court to quash and set aside the
impugned order and allow the Petition.
5. PER CONTRA, Mr. Sanklecha learned 'B' Panel Counsel
appearing alongwith Ms. Srivastava, learned AGP for Respondent -
State would support the impugned order and submit that it is passed
by following the due process of law and is sustainable.
5.1. He would submit that Refund Application was filed after a
delay of 1 year 2 months and 9 days from the date of purchase of
stamp. He would submit that it is pertinent to note that Section 48 of
the said Act has a mandatory limitation period of six (6) months for
filing of Application for refund. Thus, the Application for refund was
hopelessly barred by limitation.
5.2. He would submit that though it is settled law that right to
refund is a statutory right however it can be allowed only subject to
certain restrictions. He would argue that it is not open for Petitioner to
rely only on its statutory right and ignore restrictions subject to which
such right is made enforceable. In support of this submission he has
referred to and relied upon the decisions of the Supreme Court in the
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case of Burmah Constructions Company Vs. State of Orrisa and Ors. 11 ;
Union of India Vs. VKC Footsteps (India)(P) Ltd. 12; and Rajeev Nohwar
(2nd supra).
5.3. He would submit that applicability of Section 47 has to be
made alongwith and in compliance with Section 48 of the said Act. He
would submit that Section 47 of the said Act adverts to "impressed
stamps spoiled in the cases". He would submit that Sub-section 1 of
Section 47(c) is concerned with an instrument which is "afterwards
found to be absolutely void in law from the beginning" which is the
ground taken in the present case by Petitioner. He would submit that
in the facts of the present case, the SPA did not render itself absolutely
void since the beginning but only upon refusal of permission by the
Ministry of Commerce and Industry (Government Authority) and
hence Section 47(1)(c) would not be applicable to the Petitioner's case.
He would submit that even if it is assumed to be applicable it clearly
states that Application will have to be within the period prescribed
under Section 48 which provides for limitation of six (6) months from
the date of purchase of Stamp which is not adhered to in the present
case by Petitioner.
5.4. In support of his submissions he has referred to and relied
upon the following decisions of the Supreme Court and other High
11 1961 SCC OnLine SC 26
12 (2022) 2 SCC 603
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Courts as under:-
(i) District Registrar and Collector, Hyderabad
and Anr. Vs. Canara Bank and Ors.13 ;
(ii) State of Madhya Pradesh Vs. Rakesh Kolhi and
Anr.14;
(iii) S.N. Mathur Vs. Board of Revenue and Ors.15;
(iv) Hindustan Lever and Anr. Vs. State of Maharashtra
and Anr.16;
(v) Sakuru Vs. Tanaji 17;
(vi) L.S. Synthetics Ltd. Vs. Fairgrowth Financial Services
Ltd. and Anr.18 ;
(vii) M.P. Steel Corporation Vs. Comissioner of Central
Excise.19 ;
(viii) Jayminbhai Navinbhai Doshi and Ors. Vs. State of
Gujarat and Ors.20 ;
(ix) Parsvnath Developers Ltd. Through its Vice President,
New Delhi Vs. State of U.P. Through the Secretary
(Finance) Lucknow and Ors.21 ;
(x) Nanji Dana Patel Vs. State of Maharashtra and Ors.22 ;
(xi) Chandra Singh Vs. State of Rajasthan23 ; and
(xii) A.M. Allisom Vs. B.L. Sen.24
5.5. He would submit that it is an admitted position that Refund
Application was made six (6) months after the date of purchase of
13 (2005) 1 SCC 312
14 (2012) 6 SCC 312
15 (2009) 13 SCC 301
16 (2004) 9 SCC 438
17 (1985) 3 SCC 590
18 (2004) 11 SCC 456
19 (2015) 7 SCC 58
20 2014 SCC OnLine Guj 8961
21 2018 SCC OnLine ALL 6447
22 Civil Writ Petition No.1897 of 2019; decided on 27.08.2024.
23 (2003) 6 SCC 545
24 1956 SCC OnLine SC 112
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Stamps by Petitioner. He would submit that Respondent No.2 has
passed correct order in accordance with law and would urge the Court
to dismiss the Writ Petition.
6. I have heard Mr. Khan, learned Advocate for Petitioner and
Mr. Sanklecha, learned Counsel / Advocate alongwith Ms. Srivastava
learned AGP for Respondents and perused the record of the case with
their able assistance. Submissions made by learned Advocates at the
bar have received due consideration of the Court.
7. At the outset, it is seen that in July 2021 Petitioner paid
stamp duty amount of Rs.1,17,08,200/- to facilitate transaction
pertaining to the SPA. Admittedly the said transaction did not fructify
due to rejection of Government approval mandated under Press Note
No.3 dated 17.04.2020 issued by the Ministry of Commerce and
Industry, through the Department for Promotion of Industry and
Internal Trade (FDI Policy Section) on 24.03.2022. Pursuant thereto
Petitioner filed Application for refund of Stamp Duty on 22.09.2022
which is appended at page No.163 of the Petition. It is seen that
Respondent No.2 rejected this Application solely on ground of delay
citing delay of 1 year 2 months and 9 days from the date of purchase
of stamp.
8. It is seen that Ministry of Commerce and Industry, through
the Department for Promotion of Industry and Internal Trade rejected
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the mandatory prior Government Approval on 24.03.2022 which was 8
months after payment of Stamp Duty by Petitioner. This rejection led
to the SPA becoming unenforceable. The underlying transaction
between parties did not go through and fructify. Hence the Refund
Application could not have been filed within limitation of six (6)
months as prescribed under Section 48(3) of the said Act and held by
the Authority because until such rejection the SPA was withheld. It was
only upon rejection that the SPA became infructuous and this delay
was beyond the control of Petitioner. However, that would prima facie
not entitle Respondent - State to retain the stamp duty amount
admittedly refundable to the Petitioner.
9. Supreme Court in the in case Mool Chandra vs. Union of
India & Anr.25 observed that it is not the length of delay that would be
required to be considered while examining the plea for condonation of
delay, it is the cause for delay which has been propounded which will
have to be examined. If the cause for delay would fall within the four
corners of "sufficient cause", irrespective of the length of delay, then
the same deserves to be condoned.
10. Supreme Court in the case of Bano Saiyed Parwad (5th
supra) has held that when State deals with a citizen it should not
ordinarily rely on technicalities and if the State is satisfied that the case
of citizen is a just one, even though legal defences may be open to it, it
25 2024 SCC OnLine SC 1878
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must act, as an honest person. Furthermore, it held that that period of
limitation prescribed under any law should not come in the way
because it may bar the remedy, but not the right.
11. It is therefore necessary to examine the scope of Sections 47
and 48 of the said Act which are pivotal for determination of
Petitioner's claim and so relied upon by the Competent Authority.
They read thus:-
"47. Subject to such rules as may be made by the State
Government as to the evidence to be required, or the enquiry to
be made, the Collector may, on application made within the
period prescribed in section 48, and if he is satisfied as to the
facts, make allowance for impressed stamps spoiled in the cases
hereinafter mentioned, namely:
(a) the stamp on any paper inadvertently and undersignedly
spoiled, obliterated or by error in writing or any other means
rendered unfit for the purpose intended before any instrument
written thereon is executed by any person;
(b) the stamp on any document which is written out wholly or
in part, but which is not signed or executed by any party
thereto;
(c) the stamp used for an instrument executed by any party
thereto which--
(1) has been afterwards found 1[by the party] to be absolutely
void in law from the beginning ;
2[(1A) has been afterwards found by the Court, to be absolutely
void from the beginning under section 31 of the Specific Relief
Act, 1963 ;]
(2) has been afterwards found unfit, by reason of any error or
mistake therein, for the purpose originally intended ;
(3) by reason of the death of any person by whom it is
necessary that is should be executed, without having executed
the same, or of the refusal of any such person to execute the
same, cannot be completed so as to effect the intended
transaction in the form proposed ;
(4) for want of the execution thereof by some material party,
and his inability or refusal to sign the same, is in fact incomplete
and insufficient for the purpose for which it was intended ;
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(5) by reason of the refusal of any person to act under the same,
or to advance any money intended to be thereby secured, or by
the refusal or non-acceptance of any office thereby granted,
totally fails of the intended purpose ;
(6) becomes useless in consequence of the transaction intended
to be thereby effected by some other instrument between the
same parties and bearing a stamp of not less value ;
(7) is deficient in value and the transaction intended to be
thereby effected had been effected by some other instrument
between the same parties and bearing a stamp of not less value ;
(8) is inadvertently and undersignedly spoiled, and in lieu
whereof another instrument made between the same parties and
for the same purpose is executed and duly stamped :
Provided that, in the case of an executed instrument,
[except that falling under sub-clause (1A)], no legal proceeding
has been commenced in which the instrument could or would
have been given or offered in evidence and that the instrument
is given up [to be cancelled or has been already given up to the
Court to be cancelled.]
Explanation.--The certificate of the Collector under section 32
that the full duty with which an instrument is chargeable has
been paid is an impressed stamp within the meaning of this
section.
12. Clause (c) of Section 47 applies only in cases where the
stamp has been used for an instrument executed by a party thereto.
Which is why for instance sub clause (2) refers to the instrument being
subsequently found unfit either by reason of an error or mistake for the
purpose for which it was originally intended. Sub clause (4) adverts to
a situation where the instrument has not been executed by a material
party and by his inability or refusal to sign it renders the instrument
incomplete and insufficient for the purpose for which it was intended.
Clause (c) of Section 47 has no application to the facts of the present
case since it is common ground that the stamp was not used for an
instrument by any party thereto.
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"48. The application for relief under section 47 shall be made
within the following period, that is to say,--
(1) in the cases mentioned in clause (c)(5), within 3[six
months] of the date of the instruments :
[Provided that, where an agreement to sale of immovable
property on which stamp duty is paid under Article 25 of the
SCHEDULE I, is registered under the provisions of the
Registration Act, 1908 and thereafter such agreement is
cancelled by a registered cancellation deed for whatsoever
reasons before taking the possession of the property which is the
subject matter of such agreement, within a period of five years
from the date of execution of the agreement to sale, then the
application for relief may be made within a period of six months
from the date of registration of cancellation deed.]
(2) in the case when for unavoidable circumstances any
instrument for which another instrument has been substituted
cannot be given up to be cancelled, the application may be
made within six months after the date of execution of the
substituted instruments ;
(3) in any other case, within 6[six months] from the date of
purchase of stamps."
13. Section 48 of the said Act prescribes the period of limitation
for Applications made under Section 47. Clause (1) provides six
months from the date of the instrument in cases covered by Section
47(c)(5). Clause (2) prescribes six months from execution of the
substituting instrument where the original cannot be surrendered for
cancellation due to unavoidable circumstances. Clause (3), being
residuary, grants six months from the date of purchase of the stamp in
general.
14. Though it does provide an outer limit of 6 months to make
the Application, it also does not say that Application made beyond the
period of 6 months will not be entertained. In the Stamp Act, there is
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no provision conferring power of condonation to the Authority under
the Act or any provision which states that power of condonation
cannot be exercised after the extended period of limitation.
15. On analysis of the Stamp Act, I find that there is no provision
which excludes applicability of Section 5 of the Limitation Act, 1963 to
the Stamp Act and more particularly under Section 48 of the said Act
which provides for the time limit for making Application for refund of
Stamp Duty. Though equally speaking Authority constituted under the
Stamp Act does not have the power to condone the delay if
Application is made beyond the time specified in Section 48 of the said
Act. However it is seen that the merits have not been considered while
passing the impugned order. Hence the moot question is 'Is the
Petitioner remediless?' In the present case Petitioner has averred that
delay was due to pendency of Government Approval which later came
to be rejected 8 months later after payment of Stamp Duty due to
which Petitioner could not have filed the Refund Application earlier.
Conduct of Petitioner is not in question. Petitioner was entirely reliant
on the Government approval. Once that was rejected, the SPA fell
through and could not be fructified even though it was executed by
parties. However that would prima facie not result into Respondent -
State retaining the stamp duty amount.
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16. Evidently in view of the aforesaid discussion Application by
Petitioner though styled under Section 47 of the said Act does not
strictly fall within the ambit of the said provision. It is settled law that
mere reference to an incorrect statutory provision cannot disentitle a
citizen from a legitimate claim for refund, if otherwise such
entitlement flows from the statute.
17. In the present case Share Purchase Agreement became void
and unenforceable on rejection of the mandatory Government approval
under Press Note No.3 which was entirely beyond the control of
Petitioner. Since Petitioner had paid stamp duty for the transaction
that did not materialize, refund cannot be denied merely on the
ground of limitation or due to an incorrect reference to a statutory
provision. What is material is the substance of the claim rather than its
form. Therefore Petitioner's right to refund must be assessed on the
basis of its statutory entitlement and not defeated by procedural
technicalities. Mr. Sanklecha has argued that the SPA had fructified its
purpose and on receiving Government approval parties were obligated
to take further steps as stipulated in the SPA. Hence according to him,
the stamp duty paid on the SPA is not refundable. This argument of the
Respondents is not sustainable.
18. Attention is drawn to the decision of the Supreme Court in
the case of Committee- GFIL (1st supra). In the said matter, the issue
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which fell for consideration was whether refund of stamp duty could
be granted in respect of a transaction which had failed for reasons
beyond the control of the parties. For ready reference, relevant
observations contained in paragraph Nos. 26, 27 and 32 which
squarely cover the present case are reproduced herein below:
"26] In our considered opinion, while deciding a case of this
nature, we have to also bear in mind one maxim of equity,
which is well settled namely "actus curiae neminem gravabit"
meaning - an act of the Court shall prejudice no man. In
Broom's Legal Maxims 10th edition, 1939 at page 73 this
maxim is explained saying that it is founded upon justice and
good sense and afforded a safe and certain guide for the
administration of law. This maxim is also explained in the same
words in (Jenk. Cent.118. This principle is fundamental to any
system of justice and applies to our jurisprudence. (See:
Busching Schmitz Pvt. Ltd. vs. P.T. Menghani & Anr.(1977) 2
SCC 835 and Raj Kumar Dey & Ors. vs. Tarapada Dey & Ors.
(1987) 4 SCC 398).
27] It is thus a settled principle of law based on principle of
equity that a person cannot be penalized for no fault of his and
the act of the court would cause no prejudice to any of his right.
xxxxxx
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"
19. Attention is also drawn to the decision in the case of Rajeev
Nohwar (2nd supra) wherein refund of Stamp Duty was sought before
execution of the Agreement to Sale. The Supreme Court in that case
found that provisions of Section 47 had no application to the facts of
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the case. The Application of claim for refund was allowed observing
that rejection of such Application for refund would violate equity,
justice and fairness where Applicant is made to suffer the brunt of
judicial delay. The observations of the Supreme Court in paragraph
Nos. 30 to 33 are material in regard to the present case and read thus:
"30] Evidently, and for the reasons that we have indicated
above, the application filed by the appellant did not fall within
the ambit of Sections 47, 52 and 52A. It is true that the
application for refund was titled with reference to the
provisions of Section 47. But, it is well settled that a reference
of a wrong statutory provision, cannot oust the citizen of an
entitlement to refund which otherwise follows in terms of a
statutory provision.
31] In the present case, the stamp paper was purchased bona
fide in view of the agreement to sell which was to be executed
by the appellant with the developer. There was a dispute with
the developer which led to the institution of the proceedings
before the NCDRC. There was nothing untoward in the conduct
of the appellant and certainly no unreasonable delay on the part
of the appellant in awaiting the outcome of the proceedings.
The NCDRC allowed the complaint giving the option to the
appellant of either going ahead with the agreement along with
an award of compensation or, in the alternative, to seek a
refund with interest. The appellant having exercised the latter
option applied within two months from the order of the NCDRC
for the grant of refund. The conduct of the appellant, therefore,
cannot be held to be unreasonable nor was there any
intentional or wanton delay on the part of the appellant in
applying for a refund of stamp duty. Such an application must
be filed within a reasonable period.
32] In Committee-GFIL (supra), a two-judge Bench of this Court
was dealing with the issue of limitation prescribed in the Indian
Stamp Act 1899. In this case, an auction sale of immovable
properties was held by a committee constituted by this Court.
Successful bidders deposited with the committee, the entire sale
consideration along with the stamp duty. However, the
transaction failed due to reasons beyond the control of the
parties. The Court cancelled the transaction and directed the
committee to refund the sale consideration with interest and
permitted the purchasers to approach the State Government for
refund of the stamp duty. The applications of the auction-
purchasers seeking refund of stamp duty was rejected on the
ground that the applications were time-barred. An application
against the rejection of the refund applications was filed before
this Court. This Court allowed the application on three grounds:
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(i) the transaction which was Court-monitored, could not be
fulfilled for reasons beyond the control of the auction-
purchasers. No act of the Court should prejudice a person; (ii)
in view of the principle of restitution embodied in Section 65 of
the Contract Act, any advantage received by a person under a
void contract or a contract that becomes void is bound to be
restored; and (iii) in light of equity and justice, the six months
limitation period prescribed in Section 50 of the Indian Stamp
Act 1899 must be read to mean six months from the date of the
order of this Court.
33] We are conscious of the fact that as a general rule of law,
the right to refund is a statutory creation. A refund can be
sought in terms envisaged by statute. As discussed above, the
case of the appellant is not specifically barred by any
substantive provision. It is an established principle that this
Court while exercising its power under Article 142 of
Constitution must not ignore and override statutory provisions
but must rather take note of the express statutory provisions
and exercise its discretion with caution. Therefore, if a statute
prescribes a limitation period, this Court must be slow to
interfere with the delay under Article 142. However, in the case
of an eventuality such as the instant case where the facts of the
case are not covered by the statute, this Court under Article 142
will have the power to do complete justice by condoning the
delay. We are of the view that since the delay in filling the
application for refund in the instant case was due to the
prolonged proceedings before the NCDRC, the application
cannot be rejected on the ground of delay. A litigant has no
control over judicial delays. A rejection of the application for
refund would violate equity, justice and fairness where the
applicant is made to suffer the brunt of judicial delay.
Therefore, this is a fit case for the exercise of the power under
Article 142 of the Constitution."
20. Reliance is also placed on paragraph No. 14 of the decision
of the Supreme Court in the case of Bano Saiyed Parwad (5th supra).
Paragraph No. 14 reads as under:-
"14. In Committee-GFIL v. Libra Buildtech (P) Ltd. [Committee-GFIL v.
Libra Buildtech (P) Ltd., (2015) 16 SCC 31 : (2016) 3 SCC (Civ) 596] ,
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 : (SCC
pp. 44-45, paras 29 & 32)
"29. This case reminds us of the observations made by M.C.
Chagla, C.J. in Kaluram Sitaram (Firm) v. Dominion of India
[Kaluram Sitaram (Firm) 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 :
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[Kaluram (Firm) case [Kaluram Sitaram (Firm) v. Dominion of
India, 1953 SCC OnLine Bom 39 : AIR 1954 Bom 50] , 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.
***
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."
21. In the present case, delay in seeking refund arose on account
of compliance of mandatory procedure before the Government
Authority, which was beyond the control of Petitioner. In view thereof,
on the pretext of adherence to the strict period of limitation,
Government cannot unjustly enrich itself by forfeiting the stamp duty
amount deposited by Petitioner on the SPA. Furthermore, I am of the
view that a litigant cannot be penalized for the time consumed before
a Government Authority. To deny refund solely on the ground of
limitation would offend equity, justice and fairness in the present case.
I am therefore of the considered view that this is a fit case where
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interference is warranted and Application for refund of Stamp Duty
deserves to be allowed.
22. In view of my above observations, findings and citations
relied on, the impugned order dated 09.10.2023 passed by Respondent
No.2 is unsustainable. It is quashed and set aside. Resultantly
Application for refund of stamp duty filed by Petitioner stands allowed.
All steps taken in furtherance of the impugned order are set aside.
Respondents are directed to refund the Stamp Duty amount of
Rs.1,17,08,200/- to the Petitioner alongwith simple interest at the rate
of 4% p.a. within a period of 4 weeks from today.
23. Writ Petition is allowed and disposed in the above terms.
[ MILIND N. JADHAV, J. ]
Ajay
RAVINDRA by RAVINDRA
MOHAN
MOHAN AMBERKAR
AMBERKAR Date: 2025.09.03
12:19:44 +0530
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