Kerala High Court
Unknown vs By Advs.Sri.N.N.Sugunapalan (Sr.) on 9 August, 2015
Author: A. Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
TUESDAY, THE 16TH DAY OF JANUARY 2018 / 26TH POUSHA, 1939
WP(C).No. 29956 of 2015 (T)
PETITIONER
M/S CHARITABLE EDUCATION & WELFARE SOCIETY,
KADAMMANITTA, PATHANAMTHITTA DISTRICT,
PIN - 689 649, REPRESENTED BY ITS CHAIRMAN K.J.ABRAHAM.
BY ADVS.SRI.N.N.SUGUNAPALAN (SR.)
SRI.JOBIN JOHN
SRI.S.JUSTUS
SRI.JOHN MATHEW (THEREZHATH)
RESPONDENTS
1. SUB-REGISTRAR, VADAKKENCHERRY SUB-DISTRICT, VADAKKENCHERRY.P.O.,
PALAKKAD DISTRICT - 678 683.
2. THE REVENUE DIVISIONAL OFFICER (R..D.O.),
PALAKKAD, PALAKKAD DISTRICT - 679 534.
3. THE DISTRICT COLLECTOR, PALAKKAD,
COLLECTORATE, PALAKKAD - 679 001.
4. THE VILLAGE OFFICER,
KIZHAKKANCHERRY ii VILLAGE, ALATHUR TALUK,
PALAKKAD DISTRICT - 678 541.
5. THE INSPECTOR GENERAL OF REGISTRATION,
OFFICE OF THE INSPECTOR GENERAL OF REGISTRATION, VANCHIYOOR.P.O.,
THIRUVANANTHAPURAM - 695 035.
6. THE CATHOLIC SYRIAN BANK LTD.,
HAVING ITS REGISTERED OFFICE AT CSB BHAVAN,
ST. MARY'S COLLEGE ROAD, THRISSUR - 680 020.
7. STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.
R1-R5 & R7 BY STATE ATTORNEY SRI. K.V. SOHEN.
R6 BY SRI.R.S.KALKURA.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-01-2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Hr....
WP(C).No. 29956 of 2015 (T)
APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBIT P1 THE TRUE COPY OF THE RESOLUTION DATED 09/08/2015 PASSED BY THE
PETITIONER SOCIETY.
EXHIBIT P2 THE TRUE COPY OF THE CERTIFICATE OF SALE SO ISSUED BY THE
REVENUE RECOVERY OFFICER IN FAVOUR OF THE 6TH RESPONDENT.
EXHIBIT P3 THE TRUE COPY OF THE LETTER DATED 11/04/2008 ISSUED TO THE
PETITIONER BY THE 6TH RESPONDENT BANK.
EXHIBIT P4 THE TRUE COPY OF THE LETTER DATED 07/07/2008 ACCORDINGLY
ISSUED TO THE PETITIONER BY THE 6TH RESPONDENT BANK.
EXHIBIT P5 THE TRUE COPY OF THE LETTER DATED 22/09/2008, ISSUED BY THE
6TH RESPONDENT BANK TO THE PETITIONER.
EXHIBIT P6 THE TRUE COPY OF THE ORDER DATED 03/09/2013 IN
W.P.(C).NO.21897/2013.
EXHIBIT P7 THE TRUE COPY OF THE NOTIFICATION DATED 2/11/2010 PUBLISHED BY
THE 2ND RESPONDENT IN FORM A OF KERALA STAMP (FIXATION OF FAIR
VALUE OF LAND) RULES, 1995.
EXHIBIT P8 THE TRUE COPY OF THE REPORT OF THE 4TH RESPONDENT DATED
10/02/2011.
EXHIBIT P9 THE TRUE COPY OF THE REPORT OF THE ADDITIONAL THASILDAR OF
ALATHUR TALUK DATED 04/06/2011.
EXHIBIT P10 THE TRUE COPY OF THE VALUATION CERTIFICATE OF THE PROPERTY
DATED 17/10/2007 PREPARED BY AN EXPERT.
EXHIBIT P11 THE TRUE COPY OF THE APPEAL DATED 15/11/2010 PREFERRED
AGAINST THE EXHIBIT P7 NOTIFICATION OF FAIR VALUE.
EXHIBIT P12 THE TRUE COPY OF THE ORDER BY THE 3RD RESPONDENT
DISMISSING THE EXHIBIT P11 APPEAL.
EXHIBIT P13 THE TRUE COPY OF THE APPLICATION DATED 2/4/2015 BY THE
PETITIONER TO THE 5TH RESPONDENT.
EXHIBIT P14 THE TRUE COPY OF THE ORDER DATED 30/04/2015 PASSED BY THE 5TH
RESPONDENT.
EXHIBIT P15 TRUE COPY OF THE INTERIM ORDER DATED 08-12-2015 PASSED BY
THIS HON'BLE COURT.
EXHIBIT P16 THE TRUE COPY OF THE UNREGISTERED SALE DEED DATED 15-12-2015
PREPARED ON THE STAMP PAPERS WORTH RS 9,84,000/- (RUPEES NINE
LAKHS EIGHTY FOUR THOUSAND ONLY).
CONT.........2
:2:
WP(C).No. 29956 of 2015 (T)
EXHIBIT P17 THE TRUE COPY OF THE LETTER DATED 15-12-2015 ISSUED TO THE
1ST RESPONDENT.
EXHIBIT P18 THE TRUE COPY OF THE MEMO BEARING NO C-254/15 DATED 15-12-
2015 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P19 THE TRUE COPY OF THE RESOLUTION DATED 01-07-2017 AUTHORIZING
THE NEWLY ELECTED SECRETARY MR. A.I. POTHAN TO REPRESENT THE
PETITIONER SOCIETY IN THE ABOVE CASE BEFORE THIS HON'BLE
COURT.
RESPONDENT(S)' EXHIBITS
NIL
// TRUE COPY//
P.S TO JUDGE.
Hr.....
A. MUHAMED MUSTAQUE, J.
.........................................
W.P.(C).No.29956 of 2015
..........................................
Dated this the 16th day of January, 2018.
JUDGMENT
The petitioner purchased an immovable property from the Catholic Syrian Bank, in a public auction. The sale was conducted by invoking the power under the SARFAESI Act. The petitioner, after purchasing the property from the Catholic Syrian Bank, presented the instrument for registration. The Sub Registrar finding that the petitioner had not paid the stamp duty in accordance with the fair value, directed the petitioner to pay proper stamp duty. The petitioner approached the District Collector. The District Collector noting that the petitioner has no locus standi, rejected the petitioner's appeal. Challenging that, the petitioner approached this Court.
2. Heard the learned Senior Counsel Sri. N.N. Sugunapalan, ably assisted by Sri. John Mathew Therezhath and the learned State Attorney.
3. The petitioner urged the following grounds of challenge. The first ground urged by the petitioner is that, the sale in public auction in this case will have to be treated as a sale as referred in Article 16 of the Schedule of Kerala Stamp Act, 1959 read with Article 18 of Schedule 1 of Indian Stamp Act, 1899 and therefore, stamp duty is payable in accordance with consideration. W.P.(C).No.29956 of 2015 2
4. The second argument is on the ground that the transfer is effected by a juridical entity of a banking company and therefore such transfer cannot be treated as a transfer of inter-vivos as defined under Section 2(d) of the Kerala Stamp Act, 1959.
5. The third argument urged is on the ground that rejection of appeal by the District Collector is without understanding the scope of Section 45A(4) of the Kerala Stamp Act.
6. Insofar as the first ground, the petitioner's case is that when a property is sold in public auction, the stamp duty has to be paid in accordance with the consideration set forth in the instrument. Admittedly, in this case, consideration set forth in the instrument is less than the fair value fixed in the area. To buttress the argument that it is a public auction, the petitioner referred to Ext.P3, nature of deed executed by the Catholic Syrian Bank and communication issued in this matter. The petitioner also referred to Section 9 of the Banking Regulation Act. The above provision mandates that non productive assets have to be liquidated in a time bound manner. Therefore, the argument is that sale would come within the ambit of Article 16 of Schedule of Kerala Stamp Act and 18 of Schedule 1 of the Indian Stamp Act.
7. In this context the petitioner's case is that, the sale will come within the ambit of Article 18 of Schedule 1 of Indian Stamp Act. The petitioner also referred to Article 16 of Schedule of Kerala W.P.(C).No.29956 of 2015 3 Stamp Act. It is appropriate to refer both Article 18 of Schedule 1A of Indian Stamp Act as well as Article 16 of Kerala Stamp Act. Article 18 of Indian Stamp Act:
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Description of Instrument Proper Stamp-duty
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18. CERTIFICATE OF SALE (in respect of each property put up as a separate lot and sold) granted to the purchaser of any property sold by public auction by a Civil or Revenue Court, or Collector or other Revenue-Officer-
(a) where the purchase-money does not Two annas Rs.10;
(b) where the purchase-money exceeds Four annas Rs.10 but does not exceed Rs.25;
(c) in any other case The same duty as a Conveyance (No.23) for a consideration equal to the amount of the purchase-money only.
------------------------------------------------------------------------------------------ Article 16 of Kerala Stamp Act:-
Certificate of sale (in respect of each property The same duty as on a put up as a separate lot and sold) granted to conveyance (No.21 or the purchaser of any property sold by public 22, as the case may be auction by a Civil or Revenue Court or by for a consideration the Government, Collector or other Revenue equal to the amount of Officer the purchase money only W.P.(C).No.29956 of 2015 4
8. According to the petitioner, the sale would not come within the ambit of Article 16 as it was not a sale by civil, revenue, Government, Collector or other revenue officials referred therein, however, it will come within the ambit of Article 18 for the simple reason that there is a residuary clause under Article 18(c) which save all other public auctions other than enumerated one under the main part of Article 18. Therefore the question is whether the sale would come within the ambit of Article 18 of the Indian Stamp Act, 1859. The sale by public auction referred to in Article 18 is the presuppose exercise of a power conferred under a statutory provision or by law. An action emanates from such power conferred by law enable the authority to exercise the power for the sale of property. The emphasis is not with reference to public auction, but to the power that could be exercised by such an authority. Public auction is only a manner and mode of exercising such power. Any person including a private individual can put his/her own property for sale by public auction. The private entities resort to public auction to sell his property will not come within the ambit of Article 18 of Schedule. As already adverted, the sale as referred under Article 18 is only by exercising the power under law and not by own act of an individual or an entity. Article 18 recognize only such sale conducted by the authorities enumerated therein, the Bank will not come within the purview of Article 18. W.P.(C).No.29956 of 2015 5 That be so, Section 18 cannot be attracted when such public auction is conducted not in exercise of power under law. Therefore, the petitioner's argument on this ground is to be repelled. Accordingly, I repel.
9. The petitioner also have a case that Section 9 of Banking Regulation Act mandates the bank to liquidate non productive assets. It is true, under the command of Banking Regulation Act, the Bank has to liquidate such assets. However, that is only in relation to the banking business of a bank and that is being regulated through the statutory provisions. It has nothing to do with any mode of sale to be conducted as referred in Article 18 of the Indian Stamp Act. The regulatory regime that would bind the bank and mode, that be adopted by the bank by observing the regulation, are two distinct features and cannot be clubbed together for the purpose of Article 18 of the Stamp Act. Therefore, this argument also has to be repelled. Accordingly, I do so.
10. The next ground the petitioner argued is that in terms of Section 2(d) the transaction cannot be treated as conveyance. Conveyance as defined under Section 2(d) is a transaction between two living persons. It is appropriate to refer Section 2(d) of Kerala Stamp Act, which reads as follows:
W.P.(C).No.29956 of 2015 6
b