Bombay High Court
Mrs. Armaity Rusi Driver vs State Of Maharashtra And Anr. on 17 September, 2025
Author: Abhay Ahuja
Bench: Abhay Ahuja
2025:BHC-AS:39598
16-WP-5436-1999.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5436 OF 1999
MRS. ARMAITY RUSI DRIVER )
Indian Inhabitant of Mumbai, residing at )
C/o. Mrs.Zanobia H. Mirza, 311/13, Dinshaw )
Building, Dadabhai Road, Vile Parle (West), )
Mumbai - 400 056. )...PETITIONER
V/s.
1. STATE OF MAHARASHTRA )
)
2. MR. A. S. SURVEY )
Chief Controlling Revenue Authority, )
Opp. Council Hall, Maharashtra State, )
Pune - 411 001. )...RESPONDENTS
Mr.Rumi Mirza a/w. Mr.H.D.Mirza i/by Mr.R.H.Mirza, Advocate for the
Petitioner.
Mr.Ketan Joshi, 'B' Panel Advocate for the Respondents no.1 and 2 -
State.
CORAM : ABHAY AHUJA, J.
DATE : 17th SEPTEMBER 2025
ORAL JUDGMENT :
1. By this Petition, the Petitioner is seeking intervention of this Court under Article 227 of the Constitution of India to set aside the ARTI VILAS KHATATE order dated 20th March 1999 passed by the Chief Controlling Revenue Digitally signed by ARTI VILAS KHATATE Date: 2025.09.20 19:17:27 +0530 avk 1/19 ::: Uploaded on - 20/09/2025 ::: Downloaded on - 26/09/2025 22:52:15 ::: 16-WP-5436-1999.doc Authority, Maharashtra State, Pune, rejecting the appeal filed by the Petitioner against the order dated 24 th April 1998 passed by the Superintendent of Stamps, Mumbai, on the ground that the application is time barred, and therefore, the Petitioner is not entitled to refund of the amount paid on the draft instrument.
2. It is the case of the Petitioner that the Petitioner had submitted draft of the Agreement for Sale to the Superintendent of Stamps, Mumbai, under the provisions of Section 32 of the Bombay Stamp Act, now the Maharashtra Stamp Act, 1958 (the "Stamp Act"), after which the Superintendent of Stamps determined the value of the subject matter of the draft instrument and informed the Petitioner that the stamp duty of Rs.57,950/- was payable on it. That, accordingly, the Petitioner had issued a cheque of the amount of Rs.57,950/- and handed over to the Superintendent of Stamps against a receipt on 6 th November 1996. That, the said instrument had been stamped by the General Stamp Office on 28th November 1996 and endorsed by the Collector on 30th November 1996 under Section 32 of the Stamp Act. That, thereafter, on account of inability of the Petitioner to raise money for purchase of the property, which is the subject matter of the draft instrument, the Petitioner by her letter dated 7th May 1997 addressed to avk 2/19 ::: Uploaded on - 20/09/2025 ::: Downloaded on - 26/09/2025 22:52:15 ::: 16-WP-5436-1999.doc the Superintendent of Stamps, Mumbai, requested for refund of amount of stamp duty paid on the draft agreement. It is submitted that the said application was received on 13 th May 1997. By letter / order dated 24th April 1998, the Superintendent of Stamps informed the Petitioner that since the stamps were purchased on 6 th November 1996 and the application for refund for the same was submitted by the Petitioner on 13th May 1997, that is after a gap of six months, the application for refund was time barred and the refund could not be granted. That, thereafter, an Appeal was filed before the Chief Controlling Revenue Authority against the said order and as noted above, by order dated 20th March 1999, the Chief Controlling Revenue Authority rejected the appeal as the application of the Petitioner was time barred.
3. Mr.Mirza, learned Counsel, appearing for the Petitioner has submitted that even though the Petitioner issued the cheque on 6th November 1996, the draft instrument had been certified by the Collector on 30th November 1996 and as such, the date of purchase of the stamp is 30th November 1996 and the application for refund filed on 13th May 1997 would, therefore, be within the time limit envisaged under Section 48(3) of the Stamp Act, which is six months from the avk 3/19 ::: Uploaded on - 20/09/2025 ::: Downloaded on - 26/09/2025 22:52:15 ::: 16-WP-5436-1999.doc date of purchase of the stamp. Mr.Mirza would submit that, therefore, the issue for consideration before the Chief Controlling Revenue Authority was whether the date of issue of cheque or the date of certification of the Collector was to be taken for calculating the time limit of six months.
4. Mr.Mirza submits that the Chief Controlling Revenue Authority has erred in holding that since the Appellant had issued the cheque on 6th November 1996, the date of purchase would be 6 th November 1996 and not the date of 30th November 1996, as certified by the Collector under Section 32 of the Stamp Act. Mr.Mirza submits that considering the two dates, the application is within time and that, this Court may, therefore, make the rule absolute as prayed for.
5. On the other hand, Mr.Joshi, learned AGP for the Respondents State referring to the impugned judgment submits that it is against the cheque dated 6th November 1996 that a receipt was issued and that, therefore, the date of purchase has correctly been taken as 6 th November 1996 and not the date on which the Collector had endorsed the instrument. Mr.Joshi would submit that the date of certification by the Collector is an administrative matter and it may vary on the avk 4/19 ::: Uploaded on - 20/09/2025 ::: Downloaded on - 26/09/2025 22:52:15 ::: 16-WP-5436-1999.doc workload of the Respondents. That, the same cannot be used for calculating the period of six months for refund. The Petitioner, Mr.Joshi submits, had issued the cheque on 6 th November 1996 and the amount of the same was duly credited to the government account and that the application for refund has been made on 7 th May 1997 which was received by the Superintendent of Stamps on 13 th May 1997, which is well after the period of six months, and therefore, not tenable as the statutory limit in the Stamp Act is mandatory. Mr.Joshi, accordingly, submits that the Writ Petition be dismissed after the rule is discharged.
6. I have heard the learned Counsel and considered the submissions.
7. At the outset, it is to be noted that the facts are not in dispute. The only issue is the date of purchase of the Stamp. However, before proceeding further, it would be apposite to set out the relevant provisions of the Stamp Act.
8. Section 47 of the Stamp Act provides for allowance for spoilt stamps. The said Section provides that the Collector on an application made within the period prescribed in Section 48 and if he is satisfied as avk 5/19 ::: Uploaded on - 20/09/2025 ::: Downloaded on - 26/09/2025 22:52:15 ::: 16-WP-5436-1999.doc to the facts make allowance for impressed stamps spoiled in the cases mentioned therein. For the sake of convenience, the said Section is set out as under:-
"47. Allowance for spoiled stamps Subject to such rules as may be made by the State Government as to the evidence to be required, or the inquiry to be made, the Collector may on application, made within the period prescribed in section 48, and if he is satisfied as to the facts, make allowance for impressed stamps spoiled in the cases hereinafter mentioned, namely:--
(a) the stamp on any paper inadvertently and undesignedly spoiled, obliterated or by error in writing or any other means rendered unfit for the purpose intended before any instrument written thereon is executed by any person;
(b) the stamp on any document which is written out wholly or in part, but which is not signed or executed by any party thereto;
(c) the stamp used for an instrument executed by any party thereto which--
(1) has been afterwards found by the party to be absolutely void in law from the beginning;
( 1A) has been afterwards found by the Court, to be absolutely void from the beginning under section 31 of the Specific Relief Act, 1963;
(2) has been afterwards found unfit, by reason of any error or mistake therein, for the purpose originally intended;
(3) by reason of the death of any person by whom it is necessary that it should be executed, without having executed the same, or of the refusal of any such person to execute the same, cannot be completed so as to effect the intended transaction in the form proposed;
(4) for want of the execution thereof by some material party, and his inability or refusal to sign the same, is in fact incomplete and insufficient for the purpose for which it was intended;
avk 6/19 ::: Uploaded on - 20/09/2025 ::: Downloaded on - 26/09/2025 22:52:15 :::
16-WP-5436-1999.doc (5) by reason of the refusal of any person to act under the same, or to advance any money intended to be thereby secured, or by the refusal or non- acceptance of any office thereby granted, totally fails of the intended purpose;
(6) becomes useless in consequence of the transaction intended to be thereby effected by some other instrument between the same parties and bearing a stamp of not less value;
(7) is deficient in value and the transaction intended to be thereby effected had been effected by some other instrument between the same parties and bearing a stamp of not less value;
(8) is inadvertently and undesignedly spoiled, and in lieu whereof another instrument made between the same parties and for the same purpose is executed and duly stamped:
Provided that, in the case of an executed instrument, except that falling under sub-clause (1A), no legal proceeding has been commenced in which the instrument could or would have been given or offered in evidence and that the instrument is given up to be cancelled, or has been already given up to the Court to be cancelled. Explanation.--The certificate of the Collector under section 32 that the full duty with which an instrument is chargeable has been paid is an impressed stamp within the meaning of this section."
(emphasis supplied)
9. Section 48 provides for the procedure or the manner and the timeline within which the refund can be claimed in respect of the circumstances set out in Section 47. For the sake of convenience Section 48 is set out as under:-
"48. Application for relief under section 47 when to be made The application for relief under section 47 shall be made avk 7/19 ::: Uploaded on - 20/09/2025 ::: Downloaded on - 26/09/2025 22:52:15 ::: 16-WP-5436-1999.doc within the following period, that is to say, --
(1) in the cases mentioned in clause (c) (5), within six months of the date of the instruments:
Provided that where an agreement to sale of immovable property on which stamp duty is paid under Article 25 of the SCHEDULE I, is registered under the provisions of the Registration Act, 1908 and thereafter such agreement is cancelled by a registered cancellation deed for whatsoever reasons before taking the possession of the property which is the subject matter of such agreement, within a period of five years from the date of execution of the agreement to sale, then the application for relief may be made within a period of six months from the date of registration of cancellation deed; (2) in the case when for unavoidable circumstances any instrument for which another instrument has been substituted cannot be given up to be cancelled, the application may be made within six months after the date of execution of the substituted instrument. (3) in any other case, within six months from the date of purchase of stamp."
10. Even Section 52 requires the State Government to repay the value of stamps in money in case the stamps are not used and given to Collector for cancellation. The said provision is usefully quoted as under :
"52. Allowance for stamps not required for use When any person is possessed of a stamp or stamps which have not been, spoiled or rendered unfit or useless for the purpose intended, but for which he has no immediate use, the Collector shall repay to such person the value of such stamp or stamps in money, deducting therefrom such amount as may be prescribed by rules made in this behalf by the State Government, upon such person delivering up the same to be avk 8/19 ::: Uploaded on - 20/09/2025 ::: Downloaded on - 26/09/2025 22:52:15 ::: 16-WP-5436-1999.doc cancelled, and proving to the Collector's satisfaction --
(a) that such stamp or stamps were purchased by such person with a bona fide intention to use them; and
(b) that he has paid the full price thereof; and
(c) that they were so purchased within the period of six months next preceding the date on which they were so delivered:
Provided that, where the person is a licensed vendor of stamps, the Collector may, if he thinks fit, make the repayment of the sum actually paid by the vendor without any such deduction as aforesaid."
11. Therefore, the period of limitation for making an application is six months from the date of purchase of the stamp.
12. A perusal of the draft instrument at Exhibit B to the Petition indicates that on the top of the said instrument is a receipt. The receipt bears no.42/23 dated 6th November 1996 with a number and suggests that the same is of the General Stamp Office indicating receipt of Rs.57,950/- from the Petitioner. The said stamp bears a date of 28 th November 1996 and at the bottom a signature of the Collector which also bears the date which is 30th November, although there is no year mentioned therein. Both the learned Counsel are ad idem that for the said date, the year would be 1996. A scanned copy of the said stamp on the draft instrument is extracted as under :
avk 9/19 ::: Uploaded on - 20/09/2025 ::: Downloaded on - 26/09/2025 22:52:15 :::
16-WP-5436-1999.doc
13. As noted above, the learned AGP has submitted that the date of the receipt on the top viz. 6th November 1996 is the date of purchase. Mr.Mirza, learned Counsel for the Petitioner has submitted that the date of purchase be reckoned as 30 th November 1996 as that is the date on which the said instrument has been certified under Section 32 of the Stamp Act. Mr.Mirza has submitted that it would be only upon the certification by the Collector on the instrument that the stamp can be deemed to have been purchased.
14. I am afraid, I am unable to agree with Mr.Mirza and therefore it would be necessary to consider Section 32 of the Stamp Act, which is usefully quoted as under :
avk 10/19 ::: Uploaded on - 20/09/2025 ::: Downloaded on - 26/09/2025 22:52:15 :::
16-WP-5436-1999.doc "32. Certificate by Collector (1) When an instrument brought to the Collector under section 31, is in his opinion, one of a description chargeable with duty, and --
(a) the Collector determines that it is already fully stamped, or
(b) the duty determined by the Collector under section 31, or such sum as with the duty already paid in respect of the instrument, is equal to the duty, so determined has been paid, the Collector shall certify by endorsement on such instrument that the full duty '[(stating the relevant Article of Schedule I and the amount)] with which it is chargeable has been paid. (2) When such instrument is, in his opinion, not chargeable with duty, the Collector shall certify in manner aforesaid that such instrument is not so chargeable.
(3) Subject to the provisions of section 53-A, any instrument upon which an endorsement has been made under this section, shall be deemed to be duly stamped or not chargeable with duty, as the case may be; and, if chargeable with duty, shall be receivable in evidence or otherwise, and may be acted upon and registered as if it had been originally duly stamped:
Provided that nothing in this section shall authorise the Collector to endorse -
(a) any instrument executed or first executed in the State and brought to him after the expiration of one month from the date of its execution or first execution as the case may be;
(b) any instrument executed or first executed out of the State and brought to him after the expiration of three months after it has been first received in this State; or
(c) any instrument chargeable with the duty of twenty naye paise or less when brought to him, after the drawing or execution thereof, on paper not duly stamped."
(emphasis supplied) avk 11/19 ::: Uploaded on - 20/09/2025 ::: Downloaded on - 26/09/2025 22:52:15 ::: 16-WP-5436-1999.doc
15. A bare perusal of the the aforesaid provision clearly indicates that when the Collector certifies by endorsement, the same suggests the opinion of the Collector as to whether the instrument chargeable with duty of a particular description in his opinion has been duly stamped with the correct stamp duty. It is the date of such certification by a Collector of correct duty having been paid on an instrument and cannot be said to be the date of purchase, as that would always precede such certification. However, even the submission by the learned AGP that on the date on which the cheque dated 6th November 1996 was given to the Superintendent of Stamps, be the date on which the instrument was purchased, cannot be taken as the date of purchase, as there could also be an eventuality that after issuance of the cheque, for various reasons, the cheque may be dishonoured. The banking channels do take time to credit the amount in respect of which a cheque has been issued unless it is demonstrated to this Court that the amount was credited on the very same date on which the cheque was issued, which does not appear to be the case here. Therefore, the date of the General Stamp Office of 28th November 1996, as can be seen in the extracted portion above, which is the date which has drawn this Court's attention. It is obvious that unless and until the amount of the cheque is credited, the General Stamp Office would not have endorsed the avk 12/19 ::: Uploaded on - 20/09/2025 ::: Downloaded on - 26/09/2025 22:52:15 ::: 16-WP-5436-1999.doc receipt on the instrument. Although the Collector has certified under Section 32 of the Stamp Act on 30th November 1996, it is only after the endorsement of the General Stamp Office on 28 th November 1996 that the instrument would have been put up for the Collector's certification. Therefore, according to me, the date of purchase be taken as 28 th November 1996 and neither 6th November 1996 nor 30th November 1996. No contrary material proving otherwise has been placed before this Court. If 28th November 1996 is taken as the date of purchase and the application for refund has been filed on 13th May 1997, then the application has been filed within the statutory period of six months. It has not been disputed that the application has been filed for refund as the document was incomplete and of no use to the Petitioner. Having observed that the application has been filed within a period of six months, then going by the timelines in whichever provision viz. Sections 47 or 48 or Section 52 of the Stamp Act, the application has been filed in time.
16. Having held that the application for refund has been filed within the period of six months, the question of extending the said period would not arise.
17. Although in the facts of this case, this Court has held that the application for refund is made within time, however, useful reference to avk 13/19 ::: Uploaded on - 20/09/2025 ::: Downloaded on - 26/09/2025 22:52:15 ::: 16-WP-5436-1999.doc the decision in the case of Satish Buba Shetty vs. Inspector General of Registration and Collector of Stamps and Others 1 (Coram : N. J. Jamadar, J.) can be made, as although the said case was dealing with the aspect of limitation of five years with respect to cancellation of a registered instrument, reliance was placed in the said case upon the decision of the Hon'ble Supreme Court in the case of Rajeev Nohwar vs. Chief Controlling Revenue Authority, Maharashtra State, Pune and Others2, where although the Hon'ble Supreme Court had found that the provisions of Section 47 had no application to the facts of the case, yet the Hon'ble Supreme Court allowed the claim for refund on the ground that rejection of the application would violate equity, justice and fairness, of course in the facts therein that the Applicant was made to suffer the brunt of judicial delay. As Hon'ble Justice Jamadar, this Court is also inspired to quote paragraphs 31 to 33 of the said decision as under :
"31. In the present case, the stamp paper was purchased bona fide in view of the agreement to sell which was to be executed by the appellant with the developer. There was a dispute with the developer which led to the institution of the proceedings before the NCDRC. There was nothing untoward in the conduct of the appellant and certainly no unreasonable delay on the part of the appellant in awaiting the outcome of the proceedings. The NCDRC allowed the complaint giving the 1 2024 : BHC-AS : 1279 2 2021 SCC Online SC 863 avk 14/19 ::: Uploaded on - 20/09/2025 ::: Downloaded on - 26/09/2025 22:52:15 ::: 16-WP-5436-1999.doc option to the appellant of either going ahead with the agreement along with an award of compensation or, in the alternative, to seek a refund with interest. The appellant having exercised the latter option applied within two months from the order of the NCDRC for the grant of refund. The conduct of the appellant, therefore, cannot be held to be unreasonable nor was there any intentional or wanton delay on the part of the appellant in applying for a refund of stamp duty. Such an application must be filed within a reasonable period.
32. In Committee-GFIL (supra), a two-judge Bench of this Court was dealing with the issue of limitation prescribed in the Indian Stamp Act 1899. In this case, an auction sale of immovable properties was held by a committee constituted by this Court. Successful bidders deposited with the committee, the entire sale consideration along with the stamp duty. However, the transaction failed due to reasons beyond the control of the parties. The Court cancelled the transaction and directed the committee to refund the sale consideration with interest and permitted the purchasers to approach the State Government for refund of the stamp duty. The applications of the auction-purchasers seeking refund of stamp duty was rejected on the ground that the applications were time- barred. An application against the rejection of the refund applications was filed before this Court. This Court allowed the application on three grounds: (i) the transaction which was Court-monitored, could not be fulfilled for reasons beyond the control of the auction-purchasers. No act of the Court should prejudice a person; (ii) in view of the principle of restitution embodied in Section 65 of the Contract Act, any advantage received by a person under a void contract or a contract that becomes void is bound to be restored; and (iii) in light of equity and justice, the six months limitation period prescribed in Section 50 of the Indian Stamp Act 1899 must be read to mean six months from the date of the order of this avk 15/19 ::: Uploaded on - 20/09/2025 ::: Downloaded on - 26/09/2025 22:52:15 ::: 16-WP-5436-1999.doc Court.
33. We are conscious of the fact that as a general rule of law, the right to refund is a statutory creation. A refund can be sought in terms envisaged by statute. As discussed above, the case of the appellant is not specifically barred by any substantive provision. It is an established principle that this Court while exercising its power under Article 142 of Constitution must not ignore and override statutory provisions but must rather take note of the express statutory provisions and exercise its discretion with caution. Therefore, if a statute prescribes a limitation period, this Court must be slow to interfere with the delay under Article 142. However, in the case of an eventuality such as the instant case where the facts of the case are not covered by the statute, this Court under Article 142 will have the power to do complete justice by condoning the delay. We are of the view that since the delay in filling the application for refund in the instant case was due to the prolonged proceedings before the NCDRC, the application cannot be rejected on the ground of delay. A litigant has no control over judicial delays. A rejection of the application for refund would violate equity, justice and fairness where the applicant is made to suffer the brunt of judicial delay. Therefore, this is a fit case for the exercise of the power under Article 142 of the Constitution."
18. This Court has also in the case of M/s.S. K. Realtors and Another vs. The Inspector General of Stamps and Controller of Stamps, Maharashtra State, Pune and Another3 while considering a case involving refund of stamp duty and interpreting Section 48 of the Stamp Act has in paragraph 10 observed as under:-
3 (2016) SCC Online Bom 14536 avk 16/19 ::: Uploaded on - 20/09/2025 ::: Downloaded on - 26/09/2025 22:52:15 ::: 16-WP-5436-1999.doc "10. The purpose behind incorporating section 48 of the Maharashtra Stamp Act is clearly to ensure that in cases where transaction is not executed, or cancelled before execution, then the State is not entitled to claim revenue for execution of the said document, and the State, therefore, is under an obligation to refund the said amount. The State, therefore, in our view, cannot resort to profiteering on the basis of a document which is not executed. The Dy. Inspector General of Stamps, Pune was not justified on relying on the circular issued by the Department, which stated that application has to be made online. It is not in dispute that the Petitioners had no opportunity to make application online, since the server was not working, and therefore, he could not make application online. The Jt. District Registrar-I and Stamp Collector in his report has accepted this position."
19. There is no doubt in the facts of this case that the stamp duty of an amount of Rs.57,950/- had been purchased by the Petitioner which has not been used. It is not in dispute that the State Exchequer has received the same. Going by the aforesaid decision, the State is under an obligation to refund the said amount on the basis that the stamp is not required for use. The State is, accordingly, obliged to refund the same, as the application for refund, as observed above, has been made in time viz. within a period of six months.
20. In view of the aforesaid, it would not be necessary to deal with the other submissions made by the learned Counsel. avk 17/19 ::: Uploaded on - 20/09/2025 ::: Downloaded on - 26/09/2025 22:52:15 :::
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21. In the circumstances, this Court is inclined to set aside the impugned order dated 20th March 1999, holding that the application for refund of stamp duty is time barred.
22. Just when the Court has passed this order, Mr.Mirza submits that since there has been a delay in the final adjudication, this Court may also consider awarding interest at the rate of 15 percent per annum from the date of application for refund viz. 13 th May 1997 and tenders across the bar a decision of this Court in the case of Katmandu Apparel Private Limited, through its Authorized Signatory Md. Adil Ayub Ansari vs. Inspector General of Registration & Superintendent of Stamps and Others4. It is observed that the Court in the said decision has awarded 6% per annum interest and I am inclined to follow the same.
23. Accordingly, in view of the above discussion, the following order is passed :
ORDER
(i) Writ Petition is allowed and Rule is made absolute.
(ii) The impugned order dated 20th March 1999 passed by the Chief Controlling Revenue Authority, Pune in Appeal No.115 of 1998 is 4 2025 SCC Online Bom 3124 avk 18/19 ::: Uploaded on - 20/09/2025 ::: Downloaded on - 26/09/2025 22:52:15 ::: 16-WP-5436-1999.doc quashed and set aside as also the order dated 24 th April 1998 passed by the Superintendent of Stamps, Mumbai.
(iii) The application filed by the Petitioner for refund of stamp duty stands allowed.
(iv) The Petitioner is entitled to refund of the stamp duty of Rs.57,950/- paid on the draft agreement / instrument along with simple interest at the rate of 6 percent per annum from 13 th May 1997.
(v) The claim for refund to be processed within a period of one month.
(ABHAY AHUJA, J.) avk 19/19 ::: Uploaded on - 20/09/2025 ::: Downloaded on - 26/09/2025 22:52:15 :::