Mr.Y.Mohamed Abubakkar vs The Inspector General Of ...
2023 Latest Caselaw 12048 Mad

                                                                                  W.P.No.22875 of 2017

                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED : 08.09.2023

                                                       CORAM

                                  THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

                                                W.P.No.22875 of 2017
                                                        and
                                           W.M.P.Nos.7866 and 24052 of 2017


                     Mr.Y.Mohamed Abubakkar                                   ... Petitioner


                                                          Vs.


                     1.The Inspector General of Registration,
                       Santhome,
                       Chennai – 600 028.

                     2.The Sub-Registrar,
                       Thirukazhikundram.                                     ... Respondents


                     Prayer: Writ Petition is filed under Article 226 of the Constitution of India,

                     to issue a Writ of Certiorarified Mandamus, calling for the records of the 2nd

                     respondent bearing proceedings No.P/109/2017 dated 16.08.2017 and quash

                     the same with consequential direction to the 2nd respondent to register the

                     Sale Certificate dated 11.04.2017 issued by the State Bank of India and


                     Page 1 of 12



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                                                                                    W.P.No.22875 of 2017

                     return the same to the petitioner with further direction to refund a sum of

                     Rs.17,88,000/- (stamp duty – Rs.5,96,000/- and registration charges –

                     Rs.11,92,000/-) which was paid in excess by way of issuance of a voucher to

                     the Treasury in the name of the petitioner.



                                       For Petitioner          : Mr.R.N.Amarnath

                                       For Respondents         : Mr.C.Jaya Prakash,
                                                                 Government Advocate

                                                          ORDER

The Writ of Mandamus has been instituted for directing the

2nd respondent to register the Sale Certificate dated 11.04.2017 issued by the

State Bank of India and return the same to the petitioner with further

direction to refund a sum of Rs.17,88,000/- (stamp duty – Rs.5,96,000/- and

registration charges – Rs.11,92,000/-) which was paid in excess by way of

issuance of a voucher to the Treasury in the name of the petitioner.

2. The petitioner is the auction purchaser, purchased the property

through an auction sale conducted by the Authorized Officer of State Bank

of India. The petitioner presented the Sale Certificate for registration before

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the 2nd respondent / the Sub Registrar. On presentation of the Sale Certificate

for registration, the petitioner was directed to pay a stamp duty of 7 % on the

value of the sale certificate along with 4% on the registration charges and the

petitioner has paid a sum of Rs.20,86,000/- and Rs.11,92,000/- respectively.

3. Subsequently, the petitioner filed the present writ petition to register

the Sale Certificate dated 11.04.2017 issued by the State Bank of India and

return the same to the petitioner with further direction to refund a sum of

Rs.17,88,000/- (stamp duty – Rs.5,96,000/- and registration charges

– Rs.11,92,000/-) which was paid in excess by way of issuance of a voucher

to the Treasury in the name of the petitioner since, on calculations by the

petitioner, he ought to have only paid 5% on the value of consideration

mentioned in the Sales Certificate and the entire registration charges @ 4%

is to be refunded.

4.The learned counsel for the petitioner mainly relied on the judgment

of this Court in the case of the Bell Tower Enterprises LLP -vs- The State

of Tamil Nadu dated 12.09.2022 passed in W.P.No. 23237 of 2018. The

following paragraphs are relied on:

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9.Countering the said submissions of the learned

Special Government Pleader based on the judgement of the

two Divisional Benches and the Full Bench of this Court,

Mr.Sharath Chandran, learned counsel would submit that the

judgments of the Division Bench and the Full Bench in The

Inspector General of Registration v.Kanagalakshmi

Ganaguru's case over ruled by the judgement of the Larger

Bench of the Hon'ble Supreme Court in Esjaypee Impex Pvt

Ltd v. Assistant General Manager and Authorised Officer,

Canara Bank, reported in 2021 (11) SCC 537, the learned

counsel would place considerable reliance on the following

passage in Esjaypee Impex Pvt Ltd, in support of his

contention:

.. “16. We are of the view that the mandate of law in

terms of Section 17(2) (xii) read with Section 89)4)

of the Registration Act, 1908 only required the

authorised officer of the Banch under the SARFAESI

Act to hand over the duly validated sale certificate to

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the auction-purchaser with a copy forwarded to the

registering authorities to be filed in Book I as per

Section 89 of the Registration Act.”

25. From the above discussion, it could be seen that in view of

the pronouncement of the Hon'ble Spreme Court in Esjaypee

Impex Pvt Ltd v. Assistant General Manager and Authorised

Officer, Canara Bank, the law as it stands today is that an

Authorised Officer, who conducts a sale under the provisions

of the SARFAESI Act, would be Revenue Officer and the

certificate issued by hi in evidence of such sale, would be a

document which is not compulsorily registrable under Section

17(2)(xii) of the Registration Act. It would be sufficient, if the

document is lodged with the Registrar under Section 89(4) to

be filed by him in the Book-I maintained by him. The decisions

of this Court in the Inspector General of Registration v.

K.K.Thirumurugan, (Division Bench,) The Inpector General of

Registration v. Kanagalakshmi Ganaguru, (Division Bench),

Dr.R.Thiagarajan v. Inspector General of Registration, (Full

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Bench) and The Inspector General of Registration v. Prakash

Chand Jain, (Division Bench) are no longer good law, in view

of the pronouncement of the Hon'ble Supreme Court in

Esjaypee Impex Pvt Ltd v. Assistant General Manager and

Authorised Officer, Canara Bank.

26. The next question that would arise is to the amount of

stamp duty and registration charges payable, if such certificate

is presented for registration. Article 18 of the Stamp Act,

provides for Stamp Duty payable on a certificate of sale

granted by a Civil or Revenue Court or Collector or other

Revenue Officer. Clause (c) of Article 18 makes the duty

payable for a conveyance would apply to a sale certificate also.

Under Article 23 of the Stamp Act, the Stamp Duty payble on a

sale is 5% as per G.O.Ms.No.46- CT and All Department dated

27.03.2012. As already pointed out since the document would

not be a conveyance there is no question of payment of any

surcharge either under Section 116-A of the Tamil Nadu

District Municipality Act 1920 or under Tamil Nadu Duty on

Transfer of Property (In Municipal Areas) Act (32 of 2009).

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27. Insofar as the registration charges are concerned,

the State Government has fixed the registration charges at 1%

under Section 78 of the Registration Act and the same has been

published in the Tamil Nadu Government Gazette, as required

under Section 79 of the Registration Act. By G.O.Ms.No.49

dated 08.06.2017, the following proviso was added to Article 1

of the table of the fees:

“Provided further that notwithstanding

anything contained in his Table, in case of

deeds of conveyance, exchange, gift and

settlement among non-family members, the

Registration Fee shall be levied at the rate

of Rupees four per Rupees hundred or part

thereof on the value or amount on which

stamp duty under the Indian Stamp Act,

1899, (Central Act II of 1899) is payable.”

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5. Relying on the above findings in the judgment, the learned counsel

for the petitioner reiterated that the said order was based on the judgement of

the Hon'ble Supreme Court of India in the case of Esjaypee Impex Pvt Ltd

v. Assistant General Manager and Authorised Officer, Canara Bank

reported in 2021 (11) SCC 537.

6. The learned Additional Advocate General, appearing on behalf of

the state, strenuously objected the same on the ground that there is no

findings in the case of Esjaypee Impex Pvt Ltd regarding waiver surcharge.

In the absence of any specific exemption, the judgment of the Hon'ble

Supreme Court has been referred for seeking exemption and therefore, the

writ petition is devoid of merits.

7. The learned Additional Advocate General raised a concern that the

judgment of the Hon'ble Supreme Court has been wrongly understood by the

petitioners as if the Supreme Court granted exemption from payment of

surcharge as contemplated under the provisions of the Act. However, the

Hon'ble Superme Court has not granted any such exemption and more so, in

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the present case, the petitioner had opted for registering the said certificate

under Section 17 of the Registration Act. Thus, he is not exempted from

payment of registration charges and surcharge and therefore, the writ

petitioner is not entitled to claim any refund.

8. Even in the order relied on by the petitioners, the procedures

contemplated under Section 89(4) of the Registration Act has been

considered. Section 89 of the Registration Act enumerates “Copies of

certain orders, certificates and instruments to be sent to registering officers

and filed”. Sub Section (4) of Section 89 stipulates that "Every Revenue

Officer granting a certificate of sale to the purchaser of immovable property

sold by public auction shall send a copy of the certificate to the registering

officer within the local limits of whose jurisdiction the whole or any part of

the immovable property comprised in the certificate is situate, and such

officer shall file the copy in his Book No. 1 or get it scanned”.

9. In unequivocal terms, Section 89(4) explicitly provides that the

Sales Certificate shall be sent by the Revenue Officer to the Registering

Officer within the local limits of whose jurisdiction the whole or part of the

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property comprised in the certificate is situate. Therefore, on completion of

auction sale, the Revenue Officer concerned, granting a certificate of sale to

the purchaser of immovable property, shall send a copy of the certificate to

the Registering Officer. If such a procedure have been adopted in

compliance with Section 89(4) of the Registration Act, then alone the

surcharge is exempted and if any person has opted to present the document

for registration under Section 17 of the Registration Act, then the document

presented attracts registration charges and surcharge as contemplated .

10. Citizens are provided with options to deal with the documents. If

any person has decided to register a document in a particular manner and

chosen the same, he cannot turn around and claim exemption by citing other

provisions available under the statute. A person cannot approbate and

reprobate.

11. Admittedly in the present case, the procedures contemplated under

Section 89(4) of the Registration Act has not been followed by the Revenue

Officer who granted sale certificate. That being the factum, the petitioner is

not entitled for the relief as such sought for in the present writ petition.

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12. Accordingly, the writ petition stands dismissed. No costs.

Consequently, connected miscellaneous petition is closed.

08.09.2023 skr Index : Yes Speaking order Neutral Citation : Yes

To

1.The Inspector General of Registration, Santhome, Chennai – 600 028.

2.The Sub-Registrar, Thirukazhikundram.

https://www.mhc.tn.gov.in/judis W.P.No.22875 of 2017

S.M.SUBRAMANIAM, J.

skr

W.P.No.22875 of 2017

08.09.2023

https://www.mhc.tn.gov.in/judis