Kerala High Court
Saithu Kunju A. M vs State Of Kerala on 16 February, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
FRIDAY, THE 16TH DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945
WP(C) NO. 7174 OF 2023
PETITIONER:
SAITHU KUNJU A. M.,AGED 62 YEARS
S/O IBRAHIM MYTHEEN, AAKOTHU HOUSE,
VELLORKUNNAM VILLAGE,
MUVATTUPUZHA TALUK., PIN - 686669
BY ADVS.
P.M.RAFEEK
U.NIDHIN
SARA JOHN
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF TAXES, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM., PIN - 695001
2 DISTRICT COLLECTOR, ERNAKULAM,
CIVIL STATION, KAKKANAD., PIN - 682030
3 REVENUE DIVISIONAL OFFICER
MINI CIVIL STATION, MUDAVOOR P.O,
MUVATTUPUZHA., PIN - 686669
4 SUB TREASURY OFFICER
CIVIL STATION, MUDAVOOR P.O,
MUVATTUPUZHA., PIN - 686669
5 INSPECTOR GENERAL OF REGISTRATION
OFFICE OF THE INSPECTOR GENERAL OF REGISTRATION,
EX-MAYOR R BALAKRISHNAN NAIR RD,
NEAR DISTRICT COURT, VANCHIYOOR,
THIRUVANANTHAPURAM, KERALA., PIN - 695035
6 DISTRICT REGISTRAR
DISTRICT REGISTRAR OFFICE, 3RD FLOOR,
PERIMBILLY BUILDING, MAHATMA GANDHI RD,
SHEOYS, ERNAKULAM., PIN - 682011
WP(C) No.7174 of 2023 2
7 SUB REGISTRAR
SUB REGISTRAR OFFICE, MUVATTUPUZHA P.O,
MUVATTUPUZHA, ERNAKULAM., PIN - 686671
8 SHAMS,S/O IBRAHIM, AGED 54,
KUNJIKUDIYIL, KAVUMKARA KARA,
VELLOORKUNNAM VILLAGE,
MUVATTUPUZHA TALUK.,PIN - 686673
9 MYTHEEN FATHIMA, W/O SHAMS,
AGED 49, KUNJIKUDIYIL, KAVUMKARA KARA,
VELLOORKUNNAM VILLAGE,
MUVATTUPUZHA TALUK., PIN - 686673
10 PETER JONES VARGHESE, S/O VARGHESE,
AGED 50 YEARS NO. 5-128, KOTTIYAL KUDI,
SANTHAPURAM, AGASTEEWARAM,
KANNIYAKUMARI, TAMIL NADU., PIN - 629201
SR.GP JUSTIN JACOB
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
16.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) No.7174 of 2023 3
VIJU ABRAHAM, J.
.................................................................
W.P (C) No.7174 of 2023
.................................................................
Dated this the 16th day of February, 2024
JUDGMENT
The above writ petition is filed seeking a direction to the 3rd
respondent to refund the value of Rs.1,80,160/- deposited by the petitioner
as per Ext.P1 for e-stamp bearing serial no.ES00067214324451139E and
Department Reference no.620T500234101 and for a direction to
respondents 5, 6 and 7 to refund the registration fee of Rs.45,140/-
deposited to the account of 7th respondent as per e-challan bearing
reference no.120215112021000006. Learned counsel for the petitioner
submits that while this writ petition was pending consideration, the
registration fee paid by the petitioner has been disbursed to him and
therefore he is not pressing prayer no.3.
2. It is averred in the writ petition that the petitioner has entered into an
agreement to purchase 64.31 Ares of land situated in survey
nos.1146/1K/39/7, 1146/1K/9/5, 1146/1K/39/6, 1146/1K/9/4 and
1146/1K/39/8 of Mulavoor Village of Muvattupuzha Taluk from respondents 8
and 9, which they obtained as per Deed nos.6411/2011, 2454/2012 and
4307/2013 of Muvattupuzha S.R.O. Accordingly for preparing, executing and
registering the sale deed with respect to the said property the petitioner
purchased non-judicial stamp paper from the 4th respondent for an amount
of Rs.1,80,160/- on 15.11.2021 bearing e-stamp serial no.
ES00067214324451139E and Department Reference no. 620T500234101.
The petitioner also remitted Rs.45,140/- to the account of 7 th respondent as
registration fee for registering the said sale deed as is evident from Ext.P1.
After purchase of the stamp paper, Ext.P2 deed dated 15.11.2021 was
prepared and the same was sent to United Kingdom where respondents 8
and 9 are settled, in order to engross their signature in the document and
accordingly they have placed their signature in the document and sent it
back for complying with other formalities including the registration and for
that purpose they have authorized the 10 th respondent as their power of
attorney holder. In the meanwhile, the petitioner met with financial
stringency and was unable to arrange the entire balance sale consideration
to be paid to respondents 8 and 9. As a result, Ext.P2 deed could not be
registered. Thereafter, a series of meditation was effected and ultimately a
decision was taken to register a sale deed for purchase of a lesser extent of
land owned which will worth the amount which was already paid and readily
available with the petitioner and accordingly, Ext.P3 sale deed was executed
after paying separate stamp duty and registration fee and the registration
formalities were completed. Petitioner, an illiterate layman, could not make a
claim for return of the stamp duty and registration fee once remitted for the
incomplete execution of an unregistered deed. Later Ext.P5 application was
filed before the Tahasildar, Muvattupuzha requesting for refund of the stamp
duty of Rs.1,80,160/-. The said application was rejected as per Ext.P6
stating that the request for refund of the stamp duty was not filed within six
months from the date of purchase and therefore, the request cannot be
entertained. The question as to whether the petitioner is entitled for refund
of the stamp duty paid in respect of the unregistered deed. Petitioner
submits that it is true that Ext.P2 unregistered deed is dated 15.11.2021 and
Ext.P3 registered deed is dated 07.04.2022 and Ext.P5 application for
refund of the stamp duty was filed only on 09.07.2022.
3. Section 47 of the Kerala Stamp Act, 1959 (hereinafter referred to as
"Act") deals with allowance for spoiled stamps which prescribes that the
Collector, on an application made within the period prescribed in Section 48
and if he is satisfied as to the facts, make an allowance for impressed
stamps or e-stamps spoiled. Section 48 of the Act speaks about when an
application for relief under Section 47 should be made. Section 48(2) of the
Act mandates that in case of a stamp paper in which an instrument has
been executed by any of the parties thereto the application has to be
submitted within six months after the date of the instrument. Going by the
said provision, the application for refund of the stamp duty has to be
submitted within six months from the date of Ext.P2, ie., 15.11.2021.
4. Petitioner relying on Proviso (b) to Section 48 of the Act submits that
when, from unavoidable circumstances, any instrument for which another
instrument has been substituted, cannot be given up to be cancelled within
the aforesaid period, the application may be made within six months after
the date of execution of the substituted instrument. On the basis of Proviso
(b) to Section 48 of the Act petitioner would submit that he could make an
application within a period of six months after the date of execution of the
substituted instrument and since Ext.P3 substituted instrument is dated
07.04.2022, Ext.P5 application for refund of the stamp duty which is filed on
09.07.2022 is well within the period of six months prescribed therein and
therefore the stand taken by the 3rd respondent in Ext.P6 is against law.
Petitioner relies on the judgment in Raman Kutty N.P. and another v.
District Collector, Thrissur and another, 2017 (4) KHC 755 wherein in
paragraph 19 this Court held as follows:
"19. I am strengthened in my view by a judgment of this Court Wilson
Chakkappan v. Tahsildar, Aluva (2012 (3) KHC 804), where this Court
had found that when the facts would show such unavoidable
circumstances, which caused delay in making the application for refund
of the spoiled stamps, proviso (b) to Section 48 would stand attracted,
as per which an application can be made during six months after the
date of execution of the substituted instrument."
Petitioner also relies on the decision of this Court in Wilson Chakkappan v.
Tahasildar, Aluva, 2012 (3) KHC 804 wherein it is held that if a person was
prevented to apply for refund within six months from the date of execution
due to unavoidable circumstances and when a fresh sale certificate was
executed, stamp duty can be ordered to be refunded within a period of six
months from the date of execution of fresh sale certificate.
5. Heard the learned Government Pleader also. Learned Government
Pleader submits that since Ext.P5 application for refund was filed only on
09.07.2022, the same has been filed beyond the period of six months
stipulated as per Section 48 of the Act and therefore, the stamp value
cannot be refunded.
In view of the categoric declaration of law as stated above and taking
into consideration the fact that Ext.P3 substituted instrument was executed
on 07.04.2022 and Ext.P5 application for refund of stamp duty was filed on
09.07.2022, I am of the view that the application submitted by the petitioner
is well within the time prescribed as per Proviso (b) to Section 48 of the Act.
Therefore, petitioner is entitled to the relief sought for. Therefore Ext.P6
order is set aside with a consequential direction to the 3 rd respondent to
refund Rs.1,80,160/- deposited by the petitioner as per Ext.P1 for e-stamp
bearing serial no. ES00067214324451139E and Department Reference no.
620T500234101 within a period of two months from the date of receipt of a
copy of the judgment.
With the abovesaid direction the writ petition is allowed.
Sd/-
VIJU ABRAHAM
JUDGE
cks
APPENDIX OF WP(C) 7174/2023
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE E-CHALLAN DATED
12/11/2021 SHOWING THE PURCHASE OF NON-
JUDICIAL STAMP PAPER WORTH RS. 1,80,160/-
AND REMITTANCE OF REGISTRATION FEE OF RS.
45,140/-.
Exhibit P2 TRUE COPY OF THE UNREGISTERED DEED DATED
15/11/2021.
Exhibit P3 TRUE COPY OF THE SALE DEED NO. 2154/2022
DATED 7/04/2022 OF MUVATTUPUZHA S.R.O.
Exhibit P4 TRUE COPY OF THE POWER OF ATTORNEY DATED
26/04/2022 EXECUTED BY THE RESPONDENTS 8
AND 9 IN FAVOR OF THE 10TH RESPONDENT.
Exhibit P5 TRUE COPY AN APPLICATION DATED 09/07/2022
LODGED BY THE PETITIONER TO THE
TAHASILDAR, MUVATTUPUZHA.
Exhibit P6 TRUE COPY OF THE ORDER DATED 19/09/2022
ISSUED BY THE 3RD RESPONDENT.
Exhibit P7 TRUE COPY OF THE APPLICATION DATED
23/02/2023 LODGED BY THE PETITIONER
BEFORE THE RESPONDENTS NO. 7.
Exhibit P8 TRUE COPY OF THE JUDGMENT DATED 7/10/2015
IN W.P.C NO. 27720/2015 OF HON'BLE HIGH
COURT OF KERALA.
Exhibit P10 TRUE COPY OF JUDGMENT DATED 22/06/2012 IN
W.P.(C) NO.29027/2011 OF THIS HON'BLE
COURT.
Exhibit P9 TRUE COPY OF THE JUDGMENT DATED
20/06/2019 OF THIS HON'BLE COURT IN
WP©NO.9207/2019.
