Bombay High Court
Qwik Supply Chain Private Litd vs Chief Controlling Revenue Authority ... on 3 September, 2025
Author: Milind N. Jadhav
Bench: Milind N. Jadhav
2025:BHC-AS:36924-DB
WP.9140.2018+WP.10255.2018.doc
Ajay
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9140 OF 2018
Qwik Supply Chain Pvt Ltd & Anr. .. Petitioners
Versus
Chief Controlling Revenue Authority & Ors. .. Respondents
WITH
WRIT PETITION NO. 10255 OF 2018
Qwick Supply Chain Pvt Ltd & Anr. .. Petitioners
Versus
Chief Controlling Revenue Authority & Ors. .. Respondents
....................
Mr. Vikramaditya Deshmukh a/w Mr. Ketan Dave & Mr. Gaurav
Gangal i/by A.S. Dayal & Associates, Advocates for Petitioners
Ms. Aloka Nadkarni, AGP for Respondents - State.
...................
CORAM : MILIND N. JADHAV, J.
Reserved on : August 13, 2025.
Pronounced on : September 3, 2025.
JUDGMENT:
1. Heard Mr. Deshmukh learned Advocate for Petitioners and
Ms. Nadkarni learned AGP for Respondents - State.
2. This is a group of two Writ Petitions. Both Writ Petitions
challenge twin impugned orders dated 07.03.2015 and 08.02.2018
passed by Respondent No.1 - Chief Controlling Revenue Authority
whereby two Applications filed by Petitioners under Section 47(c)(5)
of the Maharashtra Stamp Act, 1958 (for short 'the said Act') seeking
refund of Stamp Duty came to be rejected.
3. In Writ Petition No. 9140 of 2018 refund of Stamp Duty of
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Rs. 17,50,000/- and in Writ Petition No.10255 of 2018 refund of
Stamp Duty of Rs.42,50,000/- paid by Petitioners are the subject
matter. Impugned orders are appended at page Nos.24 and 32 of the
Petitions.
4. Since the factual matrix in both Writ Petitions is substantially
similar save and except, the two flat numbers and the quantum of
Stamp Duty involved, both Writ Petitions are disposed of by this
common order.
5. Briefly stated, in October 2010, Petitioner No.1 - Company
formerly known as New Empire Millennium Investments and Trading
Pvt. Ltd. as 'Purchaser' proposed to enter into Deed of Transfer with
Kalpesh Navinchandra Daftary, Sangitaa P. Parekh and Sunkkalp
Creation Pvt. Ltd. as 'Vendors' / 'Transferors' for transfer of flat
admeasuring 2000 sq.ft. in Ashok Nagar Co-operative Housing Society
Ltd. building 'Sonbar' situated at North - South Road No.10, Vile Parle
(West), JVPD Scheme, Mumbai for total consideration of
Rs.3,50,00,000/-.
5.1. In another transaction, Petitioner No.1 - Company formerly
known as New Empire Millennium Investments and Trading Pvt. Ltd.
as 'Purchasers' proposed to enter into a second Deed of Transfer with
same Vendors / Transferors in respect of 45% undivided share in the
leasehold rights in Plot No.13 land admeasuring 836.10 square
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metres, one flat admeasuring 1650 square feet, four open car parking
spaces in the compound and five (5) fully paid-up shares of Rs.100/-
each in Ashok Nagar Co-operative Housing Society Ltd. building
'Sonbar' situated at North - South Road No.10, Vile Parle (West), JVPD
Scheme, Mumbai situated at Plot No.13, CTS No.775 of Village Juhu
forming a part of a larger Plot No.4/2 bearing Survey No.70 of Village
Juhu for a total consideration of Rs.8,50,00,000/-.
5.2. Both aforesaid Deeds of Transfer were undated though duly
signed by parties. On 14.10.2010 New Empire Millennium Investments
and Trading Pvt. Ltd. paid Stamp Duty of Rs.17,50,000/- and
Rs.42,50,000/- respectively on the above two Deeds of Transfer.
However owning to disputes amd differences between parties transfers
did not fructify and both unregistered Deeds of Transfer failed its
intended purpose. Neither consideration of the amount of Rs.3.50
crores was exchanged nor there was any transfer or handing over of
possession of said flats / land.
5.3. On 13.04.2011, New Empire Millennium Investments and
Trading Pvt. Ltd. filed two Applications for refund of Stamp Duty i.e.
Rs.17,50,000/- and Rs.42,50,000/- paid on the two Deeds of Transfer.
By letters dated 22.04.2013 and 24.12.2013, Collector sought various
details and particulars from Petitioners to process the refund claim.
5.4. On 01.08.2014, New Empire Millennium Investments and
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Trading Pvt. Ltd. submitted Affidavit-cum-Indemnity Bond in lieu of
execution of a formal Cancellation Deed.
5.5. In the interregnum, by order dated 21.11.2014 of the
National Company Law Tribunal, New Empire Millennium Investments
and Trading Pvt. Ltd. stood amalgamated into Reliance Petro
Distribution Pvt. Ltd.
5.6. By order dated 07.03.2015, Respondent No.1 rejected both
Applications for refund under Section 52A(2) of the said Act on the
ground that Reliance Petro Distribution Pvt. Ltd had failed to furnish a
duly executed Deed of Cancellation.
5.7. Being aggrieved, Reliance Petro Distribution Pvt. Ltd
preferred two Appeals under Section 53(1A) of the said Act before
Respondent No.1.
5.8. During pendency of the Appeal, by order dated 09.11.2017
of the National Company Law Tribunal, Reliance Petro Distribution
Pvt. Ltd was further amalgamated into Fine Tech Corporation Pvt. Ltd.
5.9. By order dated 08.02.2018, Respondent No.1 dismissed both
the Appeals on the ground that they were not maintainable as the
impugned order sought to be challenged had been passed by the same
Authority in its administrative capacity and was thus barred by Section
52A(3) of the said Act.
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5.10. Hence, the present Writ Petitions.
5.11. On 16.04.2020, Registrar of Companies issued a fresh
Certificate of Incorporation recording the change of name of Fine Tech
Corporation Pvt. Ltd. to Qwik Supply Chain Pvt. Ltd. Consequently, by
order dated 04.07.2024 passed by this Court in Interim Application
No.11064 of 2024 and Interim Application No.11087 of 2024 the
name of Fine Tech Corporation Pvt. Ltd. was allowed to be
substituted / amended as Qwik Supply Chain Pvt. Ltd.
6. Mr. Deshmukh, learned Advocate appearing for Petitioners in
both Writ Petitions would submit that Respondent No.1 erred in
rejecting the Refund Applications as well as Appeals preferred against
the said rejection. He would submit that it is admitted position on
record that both proposed Deeds of Transfer though executed by
parties were undated, they remained unregistered and were never
acted upon, consideration was not paid by New Empire Millennium
Investments and Trading Pvt. Ltd. to proposed Vendors therein nor
possession of subject properties was handed over. Hence, there was no
"transfer of property" under Section 5 of the Transfer of Property Act,
1882. Thus both transactions failed to reach its intended object, and
consequently, the Stamp Duty paid thereon cannot be retained by the
State.
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6.1. He would submit that Petitioners submitted all necessary
documentary evidence in support of Refund Applications as
contemplated under Rule 21 of the said Act. He would submit that in
furtherance of their claim, three (3) Affidavits of Directors of New
Empire Millennium Investments and Trading Pvt. Ltd. were submitted,
one of which was an Affidavit-cum-Indemnity Bond which specifically
recorded the reason for non-submission of a formal Deed of
Cancellation due to non-cooperation and refusal of the proposed
Vendors to join execution of the Cancellation Deed.
6.2. He would submit that insistence of the Authority upon
production of a duly executed Deed of Cancellation, despite the
admitted fact that the transactions never fructified is a mere empty
formality. He would submit that the true object of Section 47(c)(5) of
the said Act is to prevent unjust enrichment of the State in cases where
a stamped instrument fails at inception and does not culminate into
conveyance. He would submit that Petitioners complied with Rule 21
of the Maharashtra Stamp Rules, 1939, by filing necessary Affidavits
and Indemnity Bond to explain absence of Cancellation Deed due to
non-cooperation by the proposed Vendors. He would submit that
power to call for documents cannot be exercised arbitrarily so as to
defeat the substantive rights of parties. He would submit that Stamp
Duty being a fiscal imposition can only be retained strictly in
accordance with law and once it is established that no consideration
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was paid and no transfer took place, the State cannot withhold such
Stamp Duty on such hypertechnical grounds.
6.3. In support of his above submissions he has referred to and
relied upon the decisions of the Supreme Court and this Court in the
case of (1) Bano Saiyed Parwaz Vs. Chief Controlling Revenue
Authority and Inspector General of Registration and Controller of
Stamps and Others1.; (2) Sanman Trade Impex Pvt. Ltd. Vs. State of
Maharashtra2 ; and (3) M/s. Manohar Enterprises and Ors Vs. State of
Maharashtra and Ors.3
6.4. He would submit that the impugned orders dated
07.03.2015 and 08.02.2018 suffer from procedural irregularity,
violation of principles of natural justice and complete non-application
of mind and are fully covered by the recent decision of this Court in
the case of M/s. Manohar Enterprises & Ors. (3rd Supra). He would
therefore persuade the Court to set aside the twin impugned orders.
7. PER CONTRA, Ms. Nadkarni, learned AGP for Respondents -
State would support the impugned orders passed by Respondent No.1
and would submit that both orders are passed in accordance with law.
She has drawn my attention to the twin Affidavits-in-reply filed by the
Collector of Stamps in both cases separately, viz; by Mr. Pandurang
Shripate Magdum dated 22.04.2022 appended at page No.269 in WP
1 (2025) 2 SCC 201
2 (2005) 1 Mah LJ 1037
3 Writ Petition No.11614 of 2016; decided on 07.08.2025
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No. 10255/2018 and by Mr. Krishna Jadhav dated 02.08.2024
appended at page No.260 in WP No. 9140/2018.
7.1. She would submit that in the present case Deed of Transfer
was duly executed by all parties in October 2010. Hence the contention
that transaction was not completed is untenable.
7.2. She would submit that Section 47(c)(5) of the said Act
permits refund of Stamp Duty only when it is clearly established that
the instrument has not been acted upon and has been effectively
cancelled. She would submit that this can only be demonstrated by
execution of a registered Deed of Cancellation. However in the present
case, despite sufficient opportunity being granted to Petitioners they
failed to produce the Cancellation Deed and therefore their claim could
not be granted.
7.3. She would submit that mere filing of Affidavits or an
Indemnity Bond cannot substitute the Deed of Cancellation. She would
submit that Cancellation Deed serves as a safeguard for both the State
and parties concerned thereby ensuring that the same instrument is not
misused or given effect to at a later stage by the parties if left as it is.
She would submit that Cancellation Deed is therefore not a mere
formality but a necessary safeguard.
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7.4. She would submit that onus lies squarely on the Petitioners
to demonstrate compliance with statutory requirements. She would
submit that it is settled law that right to refund is a statutory right
however it can only be allowed subject to certain restrictions. Hence,
she would submit that since Petitioners failed to discharge this burden
the said Applications were rejected.
7.5. She would submit that the Affidavit-cum-Indemnity Bond
relied upon by Petitioners is an unilateral document signed only by one
side. However a Deed of Cancellation would require participation of
both parties, so that there is no dispute in future. She would submit
that the Authority is therefore justified in treating the instrument as
valid and subsisting.
7.6. With regard to the Appeal, she would submit that the second
impugned order has rightly held it to be not maintainable as under the
scheme of the said Act an Appeal cannot lie before the same Authority
against its own order. She would also submit that Respondent No.1
while acting in its Administrative capacity has to grant refund in the
strict sense and therefore action under Section 52A(3) not being quasi-
judicial in nature, the right of hearing does not arise. Therefore the
plea of violation of principles of natural justice cannot be accepted.
7.7. She would submit that the impugned orders are passed in
accordance with law and they be upheld.
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8. I have heard Mr. Deshmukh learned Advocate for Petitioners
and Ms. Nadkarni learned AGP for Respondents and perused the
record of the case. Submissions made by both the learned Advocates at
the bar have received due consideration of the Court.
9. At the outset, it is seen that both the proposed Deeds of
Transfer though executed by parties were undated and unregistered.
No consideration was paid by New Empire Millennium Investments
and Trading Pvt. Ltd. to the proposed Vendors and possession of the
properties remained with the Vendors as can be seen from the
averments in the twin Affidavit-cum-Indemnity Bonds dated
01.08.2014 submitted by Petitioners appended at page Nos. 136 and
144 of the Petitions. Thus the transactions therefore never fructified
and failed at inception. Accordingly, the Petitioners' case squarely falls
within the ambit of Section 47(c)(5) of the said Act
10. With regard to the Refund Application, it is seen that
Petitioners produced all relevant documents including the three
affidavits of its directors. It is seen that one of these was an Affidavit-
cum-Indemnity Bond which clearly recorded that a Deed of
Cancellation could not be executed due to non-cooperation of the
Vendors. Hence, in my opinion these documents sufficiently
safeguarded the revenue and served the very same purpose as a formal
Deed of Cancellation. The Petitioners cannot be put to loss and the
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State cannot unjustly enrich itself for no fault of the Petitioners.
11. With regard to the rejection of Applications, it is seen that
sole reason assigned by the Authority is absence of the Cancellation
Deed. In the facts of this case such insistence amounts to a
hypertechnical view by the Authority. Section 47(c)(5) of the said Act
is enacted to prevent unjust enrichment of the State when a
transaction fails at inception.
12. In this regard attention is drawn to the decision of the
Supreme Court in the case of Bano Saiyed Parwaz (1st supra) which is
quoted by the Division Bench of this Court in paragraph No.13 in the
case of Nanji Dana Patel Vs. State of Maharashtra and Ors4. Paragraph
No. 13 reads as under:-
"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
4 Writ Petition No.1897 of 2019 decided on 27.08.2024.
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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
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
India5 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
5 [MANU/MH/0008/1954 : AIR 1954 Bom 50].
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must act, as an honest person. The aforesaid observations made by M.
C. Chagla, C.J. in the case of Kaluram Sitaram (5th supra) having
reiterated by the Division Bench of this Court while determining the
case of Nanji Dana Patel (4th supra) is on identical facts and in
identical circumstances as the present case.
14. Here is the case of Petitioners who has invoked statutory
rights as available to them under the Stamp Act. The present situation
is such that Petitioners paid stamp duty as a bonafide purchaser of
properties in view of proposed Deeds of Transfer executed between
parties. It is seen that admittedly Transfers did not fructify. The
reasons for non-fructification of Transfers are not doubted. It is an
admitted position. Certain disputes and issues occurred between
parties due to which it was not possible for the Transfers to be
fructified between parties. There is nothing untoward observed in the
conduct of the Petitioners in making the Applications for refund of
Stamp duty thereafter. State cannot insist on Deed of Cancellation
especially due to Vendor's reluctance.
15. With regard to the Appeal filed under Section 53(1A) of the
said Act, it is seen that the same was decided by the same Authority
which had passed the original rejection order. It is pertinent to note
that such a course defeats the very object of providing an Appellate
remedy and offends the principle of " Nemo judex in causa sua" as the
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procedure adopted is contrary to fairness in adjudication and renders
the order dated 08.02.2018 unsustainable.
16. It is further seen that the above facts are undisputed and
entire evidence is placed on record and considered. In such
circumstances, remanding the matter back would only prolong the
hardship faced by the Petitioners who have been deprived of their
lawful entitlement since 2014. Petitioners have already suffered the
non-fructification of their transactions. Hence, I am not inclined to
relegate the matter back but to grant the relief in exercise of Writ
jurisdiction under Articles 226 and 227 of the Constitution of India.
Resultantly, both the Writ Petitions succeed.
17. In view of my above observations and citations referred, the
impugned orders dated 07.03.2015 and 08.02.2018 passed by
Respondent No.1 which are subject mater of challenge in both Writ
Petitions deserve to be interfered with. Both orders are quashed and
set aside. State cannot unjustly enrich itself at the cost of its citizens.
Failure of the transaction once shown and proven in this case entitles
the Applications / Petitioners to refund of stamp duty paid once the
transfer fails. Here is a case wherein the Vendors are reluctant to
execute the Deed of Cancellation. In the alternate the necessary
documentation i.e. personal Affidavits of Directors of the Company
alongwith Indemnity Bond having been filed are adequate substitutes
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in such circumstances filed the Petitioners. Petitioners have acted
bonafidely. Case of Petitioners is a just once wherein they have
bonafidely paid the stamp duty with the prospect and hope of
fructifying the Transaction, but it did not go through and got shelved.
Stamp duty amount is paid for registration of the Conveyance / Sale
Deed. The Conveyance Deed was never lodged for registration.
Neither the Petitioners are lax in their approach towards seeking
refund of stamp duty amount. Refund Applications of the Petitioners
for refund of stamp duty stand allowed in accordance with law.
18. In view of the above observations and findings, Respondents
are directed to refund the Stamp Duty amount of Rs.17,50,000/- and
Rs.42,50,000/- to the Petitioners alongwith simple interest at the rate
of 4% from the date of Application for refund within a period of 4
weeks from today.
19. Accordingly, both the Writ Petitions are disposed of in the
above terms.
[ MILIND N. JADHAV, J. ]
Ajay
RAVINDRA by RAVINDRA
MOHAN
MOHAN AMBERKAR
AMBERKAR Date: 2025.09.03
12:12:02 +0530
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