Calcutta High Court
Asl Vypar Private Limited vs The Registrar Of Assurance on 18 June, 2010
Author: Dipankar Datta
Bench: Dipankar Datta
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
W. P. No.1295 of 2009
ASL Vypar Private Limited
Versus
The Registrar of Assurance, Kolkata & Ors.
Mr. Sakya Sen, Adv. with
Mr. P. Saha, Adv.
..for the petitioner
Mr. Jaydeep Kar, Adv. with
Mr. S. Ghosh, Adv.
..for the State
Ms. Ruma Sikdar, Adv.
..for the Official Liquidator
BEFORE : The Hon'ble JUSTICE DIPANKAR DATTA
__________________________________________________________________
Date: 18th June, 2010
__________________________________________________________________
Kayan Udyog Limited went in liquidation on 21.07.04. Its
assets were put up for sale by advertisement dated 21.06.06. The
petitioner herein purchased the property in question in course of
sale conducted by the Court for a sum of Rs.87 lakh. The sale was
confirmed in its favour on 08.09.06. The entire consideration of
Rs.87 lakh was deposited by the petitioner on 26.09.06. Possession
of the property was handed over by the Official Liquidator on
20.10.06. Thereafter, deed of conveyance was presented for
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registration on 07.05.08 and stamp duty as assessed on Rs.87 lakh
was deposited. The registering authority refused to accept the
valuation of the property as mentioned in the deed resulting in
assessment of additional stamp duty and a demand being raised
for effecting registration.
Challenging the demand for payment of additional stamp
duty, this writ petition was presented before this Court on
21.12.09. The writ petition was considered by me on 26th March,
2010. Having noted that because of divergence of opinion between
two Hon'ble Division Benches of this Court, a reference was
pending before the Larger Bench on identical issue, I had
formulated the following question and referred the same to the
Hon'ble the Chief Justice for considering the desirability of placing
the same before the Larger Bench for decision:
"Whether the consideration money fetched for sale of a
property in course of liquidation proceedings before the Company
Court upon re-advertisement, falling short of the reserve price
mentioned in the initial advertisement, or the price so fetched
although higher than the reserve price but in the opinion of the
registering authority is lower than the market value determinable
under Rule 3 of the West Bengal Stamp (Prevention of
Undervaluation of Instruments) Rules, 2001, should be treated to be
the market value for the purpose of registering and stamp duty and
thus provisions of Section 47A of the Stamp Act (West Bengal
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Amendment) read with Rule 3 framed thereunder would have no
application to such Court sale?"
It is now represented by Mr. Sen, learned Advocate for the
petitioner that the Bench comprising of the Hon'ble the Chief
Justice, the Hon'ble Soumitra Pal and the Hon'ble Sanjib Banerjee,
JJ., by judgment dated 13.05.2010 has answered the question
which was posed for decision by holding as follows:
"29. In view of the above discussion, our conclusions are as under :
(1) On a correct interpretation of the provisions of Section 47A read
with Section 2(16A) of the Indian Stamp Act, 1899 as applicable to the
State of West Bengal and the West Bengal Stamp (Prevention of
Undervaluation Instruments) Rules, 2001, the sale conducted by the
Court or conducted by the Court through its officers which qualifies to
be an open market sale as contemplated in Section 2(16B) of the Act
cannot be the subject matter of exercise of powers by the registering
authority under sub-sections (1) & (2) of Section 47A of the Act.
(2) For a Court sale to satisfy the requirements of an open market
sale, the following conditions shall be satisfied:-
( a ) There must be wide publicity of the proposed sale and
particularly there shall be publication of advertisement
in at least one newspaper having wide circulation in
the concerned city/town/district.
( b ) The purchaser of the property must not be connected
with or related to the authority/officer conducting the
sale.
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(3) The above conclusions will equally apply to sales conducted by
the Company Court after publication of advertisement in a widely
circulated newspaper.
30. The answer to the question referred by the learned Division Bench
is in the negative, that is to say, the provisions contained in Section
47A of the Indian Stamp Act, 1899 as applicable to West Bengal read
with Rule 3 of the West Bengal Stamp (Prevention of Under-valuation
of Instruments) Rules, 2001 are not applicable to an instrument
executed by a Receiver pursuant to an order of Sale passed by a Civil
Court after publication in the newspapers.
31. The question referred by the Learned Single Judge stands
answered in terms of our answer as indicated above.
32. The matter shall go back to the concerned courts for hearing in
light of the answers given by us."
The writ petition has now been listed for decision in terms of
the direction contained in the judgment dated 13.05.2010.
Mr. Kar, learned Advocate for the State submits that the State
intends to prefer Special Leave Petition against the said judgment
dated 13th May, 2010 and, hence, right of the State to reopen the
proceedings, if at all its Special Leave Petition succeeds, may be
reserved.
The submission of Mr. Kar appears to be reasonable.
The respondent authority shall proceed to register the deed
on the basis of the valuation mentioned therein. The exercise shall be completed within a period of fortnight from date. 5
Nothing in this order shall preclude the State to reopen the question of valuation, if the judgment dated 13th May, 2010 is upset.
The writ petition is, thus, disposed of. There shall be no order as to costs. Urgent certified photostat copy of this order be made available to the parties, if applied for, upon compliance of all requisite formalities.
( Dipankar Datta, J. ) AKGoswami