Madras High Court
R.Jayanthi vs Special Deputy Collector (Stamps) on 28 October, 2014
Author: S.Rajeswaran
Bench: S.Rajeswaran
0IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on 14.12.2011 Reheard on 16.10.2014 DATED : 28.10.2014 Coram: THE HONOURABLE MR.JUSTICE S.RAJESWARAN W.P.Nos.20810, 19699, 19585, 19586, 19587, 19475 and 19476 of 2004 R.Jayanthi .. Petitioner in W.P.Nos.20810 & 19699/2004 Sujatha .. Petitioner in W.P.Nos.19585 & 19587/2004 S.Geetha .. Petitioner in W.P.No.19586/2004 S.Sathyanarayanan .. Petitioner in W.P.Nos.19475 & 19476/2004 vs. 1.Special Deputy Collector (Stamps), Rajaji Salai, Chennai 600 001. 2.The Sub-Registrar, Purasawalkam, Chennai 8. .. Respondents in all the writ petitions. Prayer in W.P.No.20810/2004: This writ petition is filed for a writ of Certiorarified Mandamus, calling for the records of the first respondent in his proceedings No.Tha.Pa.No.281/1998 and quash the notice dated 22.12.1998 issued under Rule 4 of the Tamil Nadu Stamp (Preventionof Under Valuation Instrument) Rules 1968 and direct him to accept the market value given in the document No.1092/1998 on the file of the second respondent and direct the respondents to hand over the registered document No.1092/1998 to the petitioner. Prayer in W.P.No.19699/2004: This writ petition is filed for a writ of Certiorarified Mandamus, calling for the records of the first respondent in his proceedings No.Tha.Pa.No.282/1998 and quash the notice dated 21.08.1998 issued under Rule 4 of the Tamil Nadu Stamp (Preventionof Under Valuation Instrument) Rules 1968 and direct him to accept the market value given in the document No.1093/1998 on the file of the second respondent and direct the respondents to hand over the registered document No.1093/1998 to the petitioner. Prayer in W.P.No.19585/2004: This writ petition is filed for a writ of Certiorarified Mandamus, calling for the records of the first respondent in his proceedings No.Tha.Pa.No.284/1998 and quash the notice dated 21.08.1998 issued under Rule 4 of the Tamil Nadu Stamp (Preventionof Under Valuation Instrument) Rules 1968 and direct him to accept the market value given in the document No.1095/1998 on the file of the second respondent and direct the respondents to hand over the registered document No.1095/1998 to the petitioner. Prayer in W.P.No.19586/2004: This writ petition is filed for a writ of Certiorarified Mandamus, calling for the records of the first respondent in his proceedings No.Tha.Pa.No.279/1998 and quash the notice dated 21.08.1998 issued under Rule 4 of the Tamil Nadu Stamp (Preventionof Under Valuation Instrument) Rules 1968 and direct him to accept the market value given in the document No.10901998 on the file of the second respondent and direct the respondents to hand over the registered document No.1090/1998 to the petitioner. Prayer in W.P.No.19587/2004: This writ petition is filed for a writ of Certiorarified Mandamus, calling for the records of the first respondent in his proceedings No.Tha.Pa.No.280/1998 and quash the notice dated 21.08.1998 issued under Rule 4 of the Tamil Nadu Stamp (Preventionof Under Valuation Instrument) Rules 1968 and direct him to accept the market value given in the document No.1091/1998 on the file of the second respondent and direct the respondents to hand over the registered document No.1091/1998 to the petitioner. Prayer in W.P.No.19475/2004: This writ petition is filed for a writ of Certiorarified Mandamus, calling for the records of the first respondent in his proceedings No.Tha.Pa.No.283/1998 and quash the notice dated 21.08.1998 issued under Rule 4 of the Tamil Nadu Stamp (Preventionof Under Valuation Instrument) Rules 1968 and direct him to accept the market value given in the document No.1094/1998 on the file of the second respondent and direct the respondents to hand over the registered document No.1094/1998 to the petitioner. Prayer in W.P.No.19476/2004: This writ petition is filed for a writ of Certiorarified Mandamus, calling for the records of the first respondent in his proceedings No.Tha.Pa.No.271/1998 and quash the notice dated 29.08.1998 issued under Rule 4 of the Tamil Nadu Stamp (Preventionof Under Valuation Instrument) Rules 1968 and direct him to accept the market value given in the document No.1082/1998 on the file of the second respondent and direct the respondents to hand over the registered document No.1082/1998 to the petitioner. For Petitioner in all the W.Ps : Mr.S.Balasubramanian For Respondents in all the W.Ps : Mr.Gomathi Nayagam Additional Advocate General for M/s.V.M.Velumani The then Special Government Pleader COMMON ORDER
As the issued involved in all the writ petitions is one and the same, a common order is being passed to dispose of all the above writ petitions.
2.For the sake of convenience, I am referring to the facts contained in the Writ Petition NO.20810 of 2004.
3.This W.P.No.20810 of 2004 was filed by one R.Jeyanthi, who purchased plot Nos.14 to 20, measuring an extent of 7090 sq.ft. in the layout laid in S.Nos.668/1 and 678/4 at 29, Subramanyaswami Koil Street, Vyasarpadi, Chennai-39 vide Sale Deed dated 27.03.1998 executed by the Receiver appointed in C.S.No.843/1988 on the file of the Original Side of this Court.
4.It is the case of the writ petitioner that an Administration Suit was filed to administer the estate left behind by the deceased Noor Mohamed. The suit was filed against the creditors of the said Noor Mohamed as well as against some other sharers and in fact, there were 18 defendants in the suit. The suit was compromised and a decree was passed by this Court on 07.02.1996. Pursuant to the compromise decree, one of the creditors i.e. Thiru Parasuram, the 18th defendant in the suit was appointed as Receiver and he was permitted to sell the above mentioned property to Thiru K.Sundaraj or his nominees for Rs.50 lakhs.
5.It is further stated that this Court by order dated 26.06.1997 in Application Nos.3784 to 3786 of 1996 and 4285 of 1996 directed Thiru.K.Sundaraj to deposit the entire sale consideration. Accordingly, he deposited the amount of Rs.50 lakhs and this Court by order dated 24.09.1997, directed the Receiver to execute the sale deed in his favour or to his nominee and the Receiver executed the sale deed to the writ petitioner as per the order of this Court above mentioned.
6.The petitioner purchased Plot Nos.14 to 20 measuring an extent of 7090 sq.ft. and the documents were registered in Doc.No.1092 of 1998 on the file of the second respondent. As per the documents, the value of the property was determined at Rs.3,64,051/- and a stamp duty of Rs.47,340/- was paid.
According to the petitioner, this Court accepted the value of Rs.50 lakhs for the entire extent of lands and only on the basis of that value, the Receiver executed the document to her. However, the second respondent, after registering the document, referred the same to the first respondent for the determination of Market Value of the property sold to the petitioner and for the proper duty payable thereon.
7.The petitioner received a notice from the first respondent under rule 4 of the Tamil Nadu Stamp (Prevention of Undervaluation of Instruments) Rules, 1968 and in that notice, the second respondent fixed the market value as per the guidelines at Rs.22,91,632/- and demanded the deference of duty of Rs.25,058/-. The petitioner sent a representation dated 07.09.1998 stating that the market value mentioned in the document is a proper one as the property has been sold pursuant to the decree of this Court. No order has been passed by the first respondent on the basis of her representation dated 07.09.1998. But, she received another notice from the first respondent asking her to pay 50% of the additional amount to be demanded pursuant to G.O.Ms.No.35 dated 26.02.1999.
8.According to the writ petitioner, the demand made by the respondents are not maintainable in law, as the respondents failed to consider the fact that the sale was made by the Receiver appointed by this Court in C.S.No.843 of 1988. It is her further contention that Section 47A of the Stamp Act can be invoked by the respondents only when fraudulent attempts are made by the parties to the document to undervalue the subject of transfer with a view to evade payment of proper stamp duty. Hence, the writ petition has been filed to quash the demand and to direct the first respondent to accept the market value given in Doc.No.1092 of 1998 and also to hand over the documents to the petitioner.
9.The second respondent Sub-Registrar, Purasawalkam has filed a counter affidavit, in which, she admitted that an Administration Suit was filed in C.S.No.843 of 1988 against the creditors of Noor Mohamed. The compromise decree passed by this Court on 07.02.1996 and the appointment of the 18th defendant. Thiru S.Parasuram as Receiver by this Court was also admitted. The second respondent also admits that the Court appointed Receiver was permitted to sell the property situated at No.20, Subramaniyaswami Koil Street, Chennai-29 to Thiru K.Sundaraj for Rs.50 lakhs. The total extent of the entire property is 41 grounds and 1336 sq.ft. It is also admitted that pursuant to the order of this Court, the Receiver executed the sale deed to the petitioner, who is the nominee of Thiru K.Sundaraj for the Plot Nos.14 to 20 in S.No.668/1 and 678/4 measuring 9640 sq.ft. out of the total extent of the property for a sale consideration of Rs.3,64,051/-. It is also admitted in the counter that the sale deed was registered as Doc.No.1092/1998 by the second respondent and the same was referred to by her to the first respondent for determination of market value of the property under Section 47A(1) of the Indian Stamp Act, 1899, since the value set forth in the instrument of sale deed reflected the true market value. The first respondent determined the market value of the property and issued a reminder and demanded the deficit stamp duty of Rs.2,50,581/-.
10.According to the second respondent, the sale made by the Receiver cannot be construed as an involuntary sale. Further, in the absence of sale by Public Auction, the transaction between the Receiver and the Purchaser could be construed as a private negotiation only. She further pointed out that the petitioner was given a chance to make use of the Samadhan Scheme by paying 60% of the deficit stamp duty, but, the petitioner neither availed the scheme nor exhausted the statutory remedy by way of an appeal either to Civil Court or to the Chief Controlling Revenue Authority under Section 47(A)5 of the Indian Stamp Act, 1899.
11.The second respondent made an attempt to differentiate the sale made by this court in its Company jurisdiction and the sale made in the present case by the Receiver and contended that the sale made by the Company Court alone could be accepted as it is and this sale made by the Court appointed Receiver does not fall in the same category and therefore, the writ petition deserves to be dismissed.
12.Head the learned counsel appearing for the petitioners and the learned Additional Advocate General, Thiru Gomathinayagam for the respondents. I have also gone through the entire documents made available on record.
13.Though this matter has been elaborately argued already, for want of some clarifications, all cases were posted before me on 16.10.2014 and I permitted both the parties to make the submissions on all aspects.
14.After hearing the learned counsel appearing for the parties and after going through the entire records, I am of the considered view that the stand taken by the respondents in questioning the sale made by the Receiver, appointed by this Court in C.S.No.843/1988 is quite unacceptable and invoking Section 47A(1) is also improper and unnecessary.
15.First of all, it is an admitted fact that the 18th defendant in the suit was appointed as Receiver by this Court. It is also an admitted fact that the Receiver was permitted to sell the entire property for Rs.50 lakhs and he was also directed to execute the sale deed in favour of Thiru K.Sundaraj or to his nominees. It is not denied that the writ petitioners are the nominees of Thiru K.Sundaraj and they purchased the property from the Court appointed Receiver and registered those documents with the competent Sub Registrars.
16.In the order dated 04.01.1996 made in C.S.No.843/1988, a learned Single Judge of this Court observed that the offer made by the purchaser at Rs.50 lakhs is the best offer that can be obtained for these properties, for which, no suitable buyers could be found for the last three years. In fact, this was the unanimous stand taken by the learned counsel for the second plaintiff and the learned counsel for the Receiver. Therefore, the learned Judge observed that in view of the submissions of the Receiver that no better offer could be obtained for these properties, the Receiver was directed to carry out the terms of Memorandum of Compromise. The amounts realized by the sale of the properties should be deposited into Court to the credit of C.S.No.843/1988. From the above, it is very clear that the amount of Rs.50 lakhs for the entire property was finally accepted by this Court and only on that basis, the sale has been effected by the court appointed Receiver and in such circumstances, it is not open to the respondents to question the same and to refer the matter under Section 47A(1) of the Indian Stamp Act, 1899.
17.As rightly contended by the learned counsel for the petitioners that Section 47A could be pressed into service only when the Registering Officer has reason to believe that the market value of the property has not been truly set forth and it is so done with an intention to fraudulently evade payment of proper stamp duty.
18.Though a number of judgments have been cited by the learned counsel appearing for the petitioners, I am not referring to any one of them, as Section 47A could not be invoked by the authorities, when the High Court accpeted the market value of the property, directed the Receiver appointed by it to execute sale deeds on the basis of the market value arrived at. Therefore, I am of the considered view that referring the documents under Section 47A is itself without jurisdiction and the authorities ought not to have resorted to the same.
19.Though the learned Additional Advocate General attempted to make a difference in Court Sales and the writ petition subject sale, by contending that in all the Court sales, public auction would be resorted to and the Court would monitor the entire transaction, which, according to him is absent in the present case.
20.I am unable to accept the submissions made by the learned Additional Advocate General, as before the learned Single Judge, on 04.01.1996, the Receiver made it very clear that Rs.50 lakhs is the best offer for the total extent of the property, for which, no suitable buyers could be found for the last three years. Only after considering the submissions made by the Receiver, the learned Judge permitted him to go further, which means, this Court has given him its consent of approval to the market value as arrived at by the Court appointed Receiver. When that being the case, it is not open to the authorities to invoke Section 47A, as if parties to the document were unscrupulous with an intention to defraud and to evade the payment of proper stamp duty.
21.Hence, I am inclined to allow all the writ petitions as prayed for. Accordingly all the writ petitions are allowed. No costs.
.10.2014 Internet: Yes Index : Yes cse S.RAJESWARAN, J. cse To 1.Special Deputy Collector (Stamps), Rajaji Salai, Chennai 600 001. 2.The Sub-Registrar, Purasawalkam, Chennai 8. Pre-delivery order made in W.P.Nos.20810, 19699, 19585, 19586, 19587, 19475 and 19476 of 2004 .10.2014