Madras High Court
T.Paneer Selvam vs The Inspector General Of Registration on 20 December, 2011
Author: V. Ramasubramanian
Bench: V. Ramasubramanian
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20/12/2011 CORAM THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIAN W.P.(MD)No.12447 of 2011 T.Paneer Selvam .. Petitioner vs. 1.The Inspector General of Registration, Santhome, Chennai. 2.The District Registrar, Tenkasi, Tirunelveli District. 3.The Sub Registrar, Edaikal, Tenkasi Taluk, Tirunelveli District. .. Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Mandamus, directing the respondents herein to release the Deed of Dissolution of Partnership (Retirement of a Partner) dated 17.10.2001 bearing Registration No.600/2003 to the petitioner. !For Petitioner ... Mr. M.Vallinayagam ^For Respondents ... Mr.M.Alagudevan, Special Govt. Pleader :ORDER
The petitioner has come up with the above writ petition, seeking a direction to the respondents to release the Deed of Dissolution of Partnership dated 17.10.2001, pending registration with the 3rd respondent.
2. I have heard Mr.M.Vallinayagam, learned counsel for the petitioner and Mr.M.Alagudevan, learned Special Government Pleader for respondents.
3. A Deed of Dissolution of Partnership, executed by the petitioner and one Mr.S.Murugaiah on 17.10.2001 was presented for registration before the third respondent. The stamp duty paid on the Deed was Rs.100/-. The document indicated the value of the property divided under the Deed, as Rs.4,02,500/-. Since the stamp duty paid was not in tune with the value of the property reflected in the Deed itself, the document was kept pending as pending document No.71 of 2001.
4. Subsequently, the Sub Registrar sent a notice to the parties to pay deficit stamp duty of Rs.32,996/- and deficit registration fee of Rs.2,660/-. But the District Registrar issued a notice dated 8.6.2004 under Section 33-A of the Indian Stamp Act, calling upon the petitioner to pay the deficit stamp duty of Rs.2,03,552/- and deficit registration fee of Rs.19,575/-. The notice was followed by a Certificate of Recovery on 31.1.2005. The respondents claim to have served the said Certificate on the petitioner on 24.2.2005.
5. However, the petitioner sent two amounts, one for Rs.19,575/- under a cheque dated 26.6.2011 and another for Rs.16,081/- under a cheque dated 21.3.2011. These amounts were sent in accordance with the demand earlier made by the Sub Registrar, before the District Registrar initiated proceedings under Section 33-A. Therefore, the Sub Registrar refused to take these two payments and release the document, forcing the petitioner to come up with the above writ petition.
6. The respondents have filed a counter contending inter alia that after the Sub Registrar erroneously raised a demand for deficit stamp duty of Rs.32,996/- and deficit registration fee of Rs.2,660/-, the District Registrar initiated action under Section 33-A and issued a show cause notice dated 8.6.2004. It was followed by a Certificate of Recovery dated 31.1.2005. The same is final under Section 33-A(2), subject to an appeal under sub-section (3). Therefore, the respondents claim that the document cannot be released.
7. Under Article 46-B (i) of Schedule I to the Indian Stamp Act, 1899, stamp duty is payable on the market value of the immovable property, if a Deed of Dissolution of partnership involves partition of immovable properties among the partners who are not family members. This provision is actually much worse than Article 45 (b), which makes the stamp duty payable on a Deed of Partition itself only on the value of the separated share and not on the value of the whole property. I do not know in what manner, the division of properties between the partners of a partnership firm is worse than the partition of properties between persons who are not family members. Any way I am not concerned with the validity of Article 46-B(i).
8. According to the respondents, the Sub Registrar demanded stamp duty and registration fee on the value of the property indicated in the document. But the respondents claim to have issued a Certificate of Recovery under Section 33-A of the Stamp Act, 1899 and on that basis, the respondents refuse to release the document.
9. But unfortunately, the stand taken by the respondents do not appear to be legally well founded. Under Section 33-A(1), the District Registrar is empowered to issue a Certificate for the recovery of any deficit stamp duty, as an arrear of land revenue, if it is found after the registration of any document that proper stamp duty had not been paid or that the stamp duty paid is insufficient. But the power to issue a Certificate of Recovery is circumscribed by two provisos. Under the first proviso to Section 33-A (1), no Certificate of Recovery can be issued unless "due inquiry is made and such person is given an opportunity of being heard". Under the second proviso to Section 33-A(1), no inquiry under Section 33-A(1) shall be commenced after the expiry of 3 years from the date of registration of the instrument.
10. Keeping the above statutory provisions in mind, if we have a look at the facts in issue, it is seen that the petitioner presented for registration, a Deed of Dissolution of partnership dated 17.10.2001. The document was assigned pending document No.71 of 2001. Since the Sub Registrar had doubts about the nature of the document, he referred it to the District Registrar on 19.10.2001. As per the counter affidavit of the respondents, the District Registrar ordered the document to be classified as a release. Subsequently, the Sub Registrar, Idaikal registered the document and assigned the number 600/2003 and sent a notice for payment of deficit stamp duty of Rs.32,996/- and deficit registration fee of Rs.2,660/-. Thereafter, the District Registrar claims to have issued a notice dated 8.6.2004. Since the petitioner did not respond, the District Registrar claims to have issued a Certificate of Recovery dated 31.1.2005.
11. The sequence of events narrated in the preceding paragraph, have been culled out only from the counter filed by the respondents. Therefore, even if they are true, they do not satisfy the requirements of the first proviso to Section 33-A(1). The requirement of the first proviso is that there should be a "due inquiry" and the person concerned should be given an opportunity of being heard. The opportunity cannot be turned into an empty formality, especially in view of the fact that the second proviso to Section 33-A(1) confers a very valuable right in the nature of a period of limitation.
12. In any case, Section 33-A does not speak about the retention of a document after registration. In fact the scheme of Section 33-A shows that the proceedings thereunder, can be initiated even after registration. A look at Section 33-A(1) would show that it begins with a non abstante clause and it uses the expression "after the registration". Since the proceedings can be initiated even after registration, but within a period of 3 years as per the second proviso, there is no indication in Section 33-A about the power of the Sub Registrar to retain the document.
13. Perhaps the power to retain the document was considered unnecessary, in view of the fact that what is contemplated under Section 33-A(1) is a Certificate of Recovery to enable the recovery of the deficit stamp duty as an arrear of land revenue. Therefore, even if the document is released, it would make no difference and the respondents would still be able to recover the deficit stamp duty as an arrear of land revenue.
14. In view of the above, the writ petition is allowed and a direction is issued to the respondents to release the Deed of Dissolution executed and presented on 17.10.2001 by the petitioner and assigned document No.600/2003,, within two weeks from the date of receipt of a copy of this order, subject to verification whether the amounts of Rs.19,575/- and Rs.16,081/- sent by the petitioner on 26.2.2011 and 21.3.2011 respectively have been received and accounted for in his Office or not. If these cheques have not been received or received but not encashed, the petitioner shall do the needful, to enable the respondent to receive these amounts towards the demand earlier made by the third respondent on 14.3.2002. After releasing the document, It is open to the respondents to proceed further in terms of the Certificate of Recovery dated 31.1.2005. It is also open to the petitioner to defend any such action in terms of the first as well as the second proviso to Section 33-A(1).
15. The writ petition is allowed on the above terms. No costs.
Svn To
1.The Inspector General of Registration, Santhome, Chennai.
2.The District Registrar, Tenkasi, Tirunelveli District.
3.The Sub Registrar, Edaikal, Tenkasi Taluk, Tirunelveli District.