Bombay High Court
M/S. Manohar Enterprises And Ors. vs The State Of Maharashtra And Ors. on 7 August, 2025
Author: Milind N. Jadhav
Bench: Milind N. Jadhav
2025:BHC-AS:34143
901.WP.11614.2016.doc
HARSHADA H. SAWANT
(P.A.)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11614 OF 2016
M/s. Manohar Enterprises and Ors. .. Petitioners
Versus
The State Of Maharashtra and Ors. .. Respondents
....................
Mr. E. A. Sasi a/w. Ms. Bhagyashri Mangale, Advocates for
Petitioners.
Mr. S. H. Kankal, AGP for Respondent Nos.1 and 2.
...................
CORAM : MILIND N. JADHAV, J.
DATE : AUGUST 07, 2025
P.C.:
1. Heard Mr. Sasi, learned Advocate for Petitioners and Mr. Kankal, learned AGP for Respondent Nos.1 and 2.
2. The facts in the present case present a very sorry picture and state of affairs. Petitioners before me executed a document titled as 'Deed of Conveyance' dated 11.05.2014 and filed Application for adjudication of document in the office of Collector of Stamps, Kurla. Application was numbered and on the basis of market value determined, Petitioners were directed to pay Stamp Duty of Rs.20,89,925/- which Petitioners deposited on 14.08.2014 pursuant to which an endorsement was given by Collector of Stamps on 26.08.2014.
3. However due to dispute between the parties, the transaction did not fructify and both parties decided to cancel the document of 1 of 11 ::: Uploaded on - 08/08/2025 ::: Downloaded on - 09/08/2025 00:01:59 :::
901.WP.11614.2016.doc transaction. Both parties purchased a Non-Judicial Stamp paper and executed a Deed of Cancellation on 23.03.2015 and 23.04.2015 and cancelled the transaction.
4. Resultantly, Petitioners filed Application for grant of refund of Stamp Duty of Rs.20,89,925/- with the office of Collector of Stamps, Kurla on 10.01.2015 in the 'Online System'. The said Application was numbered as Refund Case Ref/1100901/81/15/4282 and processed during which due to Annexures to the Application not been complete, the Petitioners were called upon to furnish the said Annexures thereto. Petitioners physically i.e. offline submitted the Annexures alongwith a physical copy of the Application filed on 07.05.2015 in the office of Respondent No.5.
5. The said Application of the Petitioners claimed refund, however plea was rejected by Respondent No.5 - the Collector of Stamps, Kurla by forwarding the same to the office of Respondent No.4
- the Additional Controller of Stamps with a remark not to grant refund of Stamp duty to the Petitioners. Respondent No.4 - the Additional Controller of Stamps forwarded the file to the office of Respondent No.2 - Inspector General of Registration and Controller of Stamps endorsing the remark not to grant refund of Stamp Duty.
6. Record shows that on 26.10.2015, an order is passed by Respondent No.2 - Inspector General of Registration and Controller of 2 of 11 ::: Uploaded on - 08/08/2025 ::: Downloaded on - 09/08/2025 00:01:59 :::
901.WP.11614.2016.doc Stamps concluding that Petitioners are not eligible for grant of refund of Stamp duty and plea of Petitioners is rejected. This order is appended at page No. 30, Exh. 'A' of Petition.
7. Respondent No.3 - The Chief Controlling Revenue Authority passed a further order dated 30.07.2016 holding that Appeal filed by Petitioners against the above order is not maintainable, thus dismissing the Appeal. Petitioners being aggrieved by the aforesaid order has filed the present Writ Petition to assail the order dated 30.07.2016 passed by Respondent No.3 - The Chief Controlling Revenue Authority; order dated 26.10.2015 passed Respondent No.2 - Inspector General of Registration and Controller of Stamps and order dated 05.11.2015 passed by Respondent No.5 - the Collector of Stamps, Kurla.
8. Mr. Sasi would submit that the only thread common in the aforesaid orders is the issue of limitation which is on the applicability of Section 48 of the Indian Stamp Act, 1899 (for short 'the said Act') to Petitioners' case for refund which has been applied to the Petitioners' case for rejecting the claim.
9. He would submit that even though there is period of limitation prescribed in Section 48 of the said Act for seeking refund pursuant to the date of registration of cancellation deed, the said provision though prescribes outer limit of six months to make the Application from the date of registration of the cancellation deed, it 3 of 11 ::: Uploaded on - 08/08/2025 ::: Downloaded on - 09/08/2025 00:01:59 :::
901.WP.11614.2016.doc does not say that Application made beyond the period of six months will not be entertained. He would therefore persuade the Court to apply the provisions of Section 5 of the Limitation Act, 1963 relating to showing sufficient cause for consideration of Petitioner's Application.
10. In support of his submissions, he has referred to and relied upon the decisions in the following cases of the Supreme Court and this Court:-
(i) Bano Saiyed Parwaz v. Chief Controlling Revenue Authority and Inspector General of Registration and Controller of Stamps and Ors.1;
(ii) Harshit Harish Jain and Ors. v. The State of Maharashtra and Ors.2;
(iii) Nanji Dana Patel v. State of Maharashtra and Ors.3.
11. While going through the aforesaid three judgments, it is prima facie seen that the case of Petitioners as pleaded in the Petition and grounds in the Petition are clearly covered by the ratio of the aforesaid decisions of Supreme Court and this Court.
12. It is seen that while following the decision of Supreme Court in the case of Bano Saiyed Parwaz (1st supra), the Division Bench of this Court in paragraph No.13 in Nanji Dana Patel (3rd supra) has held as under:-
1 MANU/SC/0460/2024 [Civil Appeal No.6533 of 2024 (arising out of SLP (C) No.4111 of 2020) decided on 17.05.2024].
2 MANU/SC/0103/2025 [Civil Appeal No.1002 of 2025 (arising out of SLP (C) No.21778 of 2024) decided on 24.01.2025.
3 MANU/MH/5448/2024 (Writ Petition No.1897 of 2019 decided on 27.08.2024.) 4 of 11 ::: Uploaded on - 08/08/2025 ::: Downloaded on - 09/08/2025 00:01:59 :::
901.WP.11614.2016.doc
"13. The Apex Court in Bano Saiyed Parwad (supra) in paragraph Nos.14 to 17 held as under:-
"14. In Committee-GFIL v. Libra Buildtech Private Limited & Ors., wherein the issue of refund of stamp duty under the same Act was in question, this Court has observed and held inter alia as under:
29. This case reminds us of the observations made by M.C. Chagla, C.J. in Firm Kaluram Sitaram v. Dominion of India [1953 SCC OnLine Bom 39: AIR 1954 Bom 50]. The learned Chief Justice in his distinctive style of writing observed as under in para 19: (Firm Kaluram case, SCC OnLine Bom) "19.... we have often had occasion to say that when the State deals with a citizen it should not ordinarily rely on technicalities, and if the State is satisfied that the case of the citizen is a just one, even though legal defences may be open to it, it must act, as has been said by eminent Judges, as an honest person."
We are in respectful agreement with the aforementioned observations, as in our considered opinion these observations apply fully to the case in hand against the State because except the plea of limitation, the State has no case to defend their action.
xxx xxx xxx
32. In our considered opinion, even if we find that applications for claiming refund of stamp duty amount were rightly dismissed by the SDM on the ground of limitation prescribed under Section 50 of the Act yet keeping in view the settled principle of law that the expiry of period of limitation prescribed under any law may bar the remedy but not the right, the applicants are still held entitled to claim the refund of stamp duty amount on the basis of the grounds mentioned above. In other words, notwithstanding dismissal of the applications on the ground of limitation, we are of the view that the applicants are entitled to claim the refund of stamp duty amount from the State in the light of the grounds mentioned above."
15. The legal position is thus settled in Libra Buildtech (supra) that when the State deals with a citizen it should not ordinarily rely on technicalities, even though such defences may be open to it.
16. We draw weight from the aforesaid judgment and are of the opinion that the case of the appellant is fit for refund of stamp duty in so far as it is settled law that the period of expiry of limitation prescribed under any law may bar the remedy but not the right and the appellant is held entitled to claim the refund of stamp duty amount on the basis of the fact that the appellant has been pursuing her case as per remedies available to her in law and she should not be denied the said refund merely on technicalities as the case of the appellant is a just one wherein she had in bonafide 5 of 11 ::: Uploaded on - 08/08/2025 ::: Downloaded on - 09/08/2025 00:01:59 :::
901.WP.11614.2016.doc paid the stamp duty for registration but fraud was played on her by the Vendor which led to the cancellation of the conveyance deed.
17. For the foregoing reasons, the appeal is allowed, and we set aside the impugned order dated 02.08.2019 as well as orders of respondent nos.1 and 2 dated 09.06.2015 and 25.02.2016 and direct the State to refund the said stamp duty amount of Rs.25,34,400/- deposited by the appellant."."
13. This Court has concluded that in view of the long standing decision of this Court in the case of Kaluram Sitaram v. Dominion of India4 when the State deals with a citizen it should not ordinarily rely on technicalities, and if State is satisfied that the case of the citizen is a just one and even though legal defences may be open to it, the State must act, as an honest person. The aforesaid observations made by M. C. Chagla, C.J. in the case of Kaluram Sitaram (4th supra) having reiterated by the Division Bench of this Court while determining the case of Nanji Dana Patel (3rd supra) is on identical facts and in identical circumstances as the present case.
14. In fact case of Petitioners is much stronger and on a higher footing than the four cases which are referred to herein above on facts. Here is the case of Petitioners who has invoked his statutory rights as available to him under the Stamp Act but while doing so, the said right having been invoked online, the entire documentation has not been annexed by him which has been subsequently taken on record by the Competent Authority, but the same is rejected due to the limitation prescribed in Section 48(3) of the said Act.
4 [MANU/MH/0008/1954 : AIR 1954 Bom 50].
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15. In the present case it is seen that Application for refund is made by Petitioners under the provisions of Section 48 of the said Act. Title of Section 48 itself reads as "Application for relief under Section 47 when to be made". Thus Section 48 begins with the statement that Application for relief under Section 47 shall be made within the period which are indicated in clauses (1), (2) and (3) thereof. Insofar as Section 47 is concerned, it applies to allowance for spoiled stamps which are required to be returned back to the Government and therefore such allowance is prescribed by the limitation in Section 48. That apart Section 50 to 52-A also prescribe for allowance for stamps not required for use by prescribing various limitation periods. Case of Petitioners falls in the category of "stamps not required for use" due to the reason of cancellation of the deed of conveyance. Section 52-A pertains to allowance for duty which begins with a non obstante clause stating that notwithstanding anything contained in Sections 47, 50, 51, and 52 and refer to the power of Collector to make allowance for stamps which are either spoiled or misused or not required for use. The present situation is such that Petitioners paid stamp duty as a bonafide purchaser of the property in view of the proposed deed of conveyance to be executed between the parties. It is seen that execution of the deed did not fructify. The reasons for non- fructification of the deed of conveyance are not doubted. It is an admitted position. Certain disputes and issues occurred due to which 7 of 11 ::: Uploaded on - 08/08/2025 ::: Downloaded on - 09/08/2025 00:01:59 :::
901.WP.11614.2016.doc it was not possible for the said deed of conveyance to be executed and fructified between the parties. There is nothing untoward observed in the conduct of Petitioners in making the Application for refund of stamp duty thereafter. All that has happened is delay and the delay also in the present case is not unreasonable as can be seen from the timeline alluded to herein above. Petitioners have sought for refund of the stamp duty paid by them. Reasons have been stated and pleaded by Petitioners. Conduct of Petitioners is not at all unreasonable. Neither there is any intentional or wanton delay on the part of Petitioners in applying for refund of stamp duty after many years. The aforesaid provisions prima facie envisages that such Application must be filed within a reasonable period. Though it is true that Application for refund is sought for by the Petitioners under Section 48 of the Stamp Act and even if it is construed that Section 48 refers to the situation pertaining to spoiled stamps, it is well settled that reference of a wrong statutory provision cannot oust the citizen of an entitlement to refund which otherwise follows in terms of a statutory provision. Hence rejecting the Application of Petitioners merely on the ground of delay therefore is not the right course of action and looking at the statutory provision it does not bar the Petitioners from pleading and taking recourse to the provisions of Section 5 of the Limitation Act and plead sufficient cause. Petitioners have clearly made out a case for refund of "stamps not required for use" as also the delay, if any, of 8 of 11 ::: Uploaded on - 08/08/2025 ::: Downloaded on - 09/08/2025 00:01:59 :::
901.WP.11614.2016.doc approximately 2 months.
16. Reference is placed on the decisions of the Supreme Court in the case of Rajeev Nohwar v. Chief Controlling Revenue Authority, Maharashtra State, Pune & Ors.5 and Committee-GFIL v. Libra Buildtech Pvt Ltd & Ors.6
17. Rejection of Petitioner's case on the ground of limitation is therefore unacceptable in the facts of the present case and the reasons having been considered, the delay of approximately 2 months stands condoned.
18. The only defence raised by Mr. Kankal, learned AGP appearing for Respondents - State and its functionaries is that provisions of Section 29(2) of the Limitation Act, 1963 would apply as a bar to the maintainability of the Application of the Petitioners. The said Section 29 and more specifically sub-section (2) of the Limitation Act, 1963 would not apply to the facts of the present case considering that the functionaries of the State who are Respondents before me are not a Court.
19. That apart, observations and findings of the Division Bench of this Court in paragraph No.15 of the decision in the case of Nanji Dana Patel (3rd supra) apply on all fours to the facts and circumstances of the present case in the case of Petitioners. 5 (2021) 13 SCC 754 6 (2015) 16 SCC 31 9 of 11 ::: Uploaded on - 08/08/2025 ::: Downloaded on - 09/08/2025 00:01:59 :::
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20. Equally, twin decisions of the Supreme Court in the cases of Bano Saiyed Parwaz (1st supra) which has been referred to by the Division Bench of this Court and Harshit Harish Jain and Ors. (2nd supra) also squarely cover the case of Petitioners.
21. In that view of the matter, the three impugned orders dated order dated 26.10.2015 passed Respondent No.2 - Inspector General of Registration and Controller of Stamps; order dated 05.11.2015 passed by Respondent No.5 - the Collector of Stamps, Kurla and order dated 30.07.2016 passed by Respondent No.3 - The Chief Controlling Revenue Authority denying refund of Stamp Duty to the Petitioners alongwith penalty amount paid by him are required to be interfered with. The Petitioners are held to be entitled to the refund of the stamp duty amount notwithstanding dismissal of their Applications on the ground of limitation as expiry of period of limitation may bar the remedy but not the right.
22. All three impugned orders are therefore quashed and set aside. Respondents are directed to refund payment of Rs.21,73,525/- i.e. Rs.20,89,925/- towards Stamp Duty and Rs.83,600/- towards penalty to Petitioners forthwith and in any event within a period of two weeks from the date of uploading of this order subject to compliance of statutory deductions in accordance with law.
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23. With the above directions, Writ Petition is allowed and disposed.
H. H. SAWANT [ MILIND N. JADHAV, J. ] Digitally signed by RAVINDRA RAVINDRA MOHAN AMBERKAR MOHAN Date: AMBERKAR 2025.08.08 20:28:44 +0530 11 of 11 ::: Uploaded on - 08/08/2025 ::: Downloaded on - 09/08/2025 00:01:59 :::