Andhra Pradesh High Court - Amravati
Arka Infra Developers vs The State Of Andhra Pradesh on 6 December, 2024
APHC010089132023 IN THE HIGH COURT OF ANDHRA PRADESH Bench
Sr.No:-18
AT AMARAVATI
[3483]
WRIT PETITION NO: 4541 of 2023 along with
W.P.Nos.3976, 9008, 12372 & 25324 of 2024
W.P.No.4541 of 2023:
M/s. Fame Builders Private Limited ...Petitioner
Vs.
The State of AP and others ...Respondent)
**********
Advocates for Petitioners : Mr. N. Ashwani Kumar Mr. Prabhakar Peri Mr. D. S. Sivadarshan Mr. V. V. Satish Advocates for Respondents : GP for Registration and Stamps CORAM : THE CHIEF JUSTICE DHIRAJ SINGH THAKUR SRI JUSTICE RAVI CHEEMALAPATI DATE : 6th December 2024 Per DHIRAJ SINGH THAKUR, CJ (Oral):
Since common questions of facts and law arise in the present petitions, we propose to pass a common judgment and order. Facts in W.P.No.3976 of 2024 are taken for reference.
2. Briefly stated, the material facts are as under:
The petitioner claims to have participated in an e-auction conducted by the liquidator under the IBC code and was declared as the highest bidder in 2 HCJ & RCJ W.P.No.4541 of 2023 & batch regard to a property for an amount of Rs.1,42,34,567/-. A sale certificate, dated 21.06.2023, was issued in favour of the petitioner. A copy of the sale letter was forwarded by the liquidator vide his letter, dated 14.11.2023, to the Joint Sub-Registrar-1, Bhimavaram, which was required to be filed in terms of Section 89 of the Registration Act, 1908, in Book No.1 maintained in the Office of the Sub-Registrar.
3. It was urged that in response to the letter, dated 14.11.2023, the Joint Sub-Registrar-1 issued the impugned proceedings, dated 21.11.2023, holding that all certificates of sale were to be charged with proper stamp duty under the Indian Stamp Act, 1899, and the registration fee was also liable to be levied on the market value of the property.
4. Learned counsel for the petitioner would submit that the filing of sale certificate, issued by liquidator, in Book No.1 did not warrant stamp duty or registration fee and that the sale certificate simply had to be filed in terms of Section 89(4) of the Act, 1908, and that the impugned proceedings were unsustainable in law.
5. It is therefore prayed that the Joint Sub-Registrar-I be directed to file the sale certificate issued by the liquidator in Book No.1 maintained in the office of the Sub-Registrar without insisting on payment of stamp duty and the registration fee.
3
HCJ & RCJ W.P.No.4541 of 2023 & batch
6. Learned counsel for the respondents, on the other hand, tried to buttress the stand of the registering authority as also the impugned communication.
7. Heard learned counsel for the parties.
8. Section 17 of the Act, 1908, envisages the compulsory registration of documents which include instruments of gift of immovable property and other non-testamentary instruments in terms of Sections 17(1)(a), 17(1)(b) and 17(1)(c).
Section 17(2) of the Act, 1908, envisages that nothing in clauses (b) and (c) of sub-section (1) of Section 17 would apply to any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue-Officer.
For facility of reference, Section 17(2)(xii) of the Act, 1908, is reproduced here under:
"17(2)(xii) - any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue-Officer"
Section 89 of the Act, 1908, envisages copies of certain orders, certificates and instruments to be sent to registering officers and filed, and in particular, Section 89(4) reads thus:
"Section 89 (4) - Every Revenue Officer granting a certificate of sale to the purchaser ofimmovable property sold by public auction shall send a copy of the certificate to the registering officer within the local limits 4 HCJ & RCJ W.P.No.4541 of 2023 & batch of whose jurisdiction the whole or any part of the immovable property comprised in the certificate is situate, and such officer shall file the copy in his Book No.1."
9. In the aforementioned backdrop, the Apex Court in Esjaypee Impex (P) Ltd. V. Canara Bank 1, observed as under:
"16. We are of the view that the mandate of law in terms of Section 17(2)(xii) read with Section 89(4) of the Registration Act, 1908 only required the authorised officer of the Bank under the SARFAESI Act to hand over the duly validated sale certificate to the auction-purchaser with a copy forwarded to the registering authorities to be filed in Book I as per Section 89 of the Registration Act."
Subsequently, the said judgment was followed in Inspector General of Registration v. G. Madhurambal2, and recently yet again in State of Punjab v. Ferrous Alloy Forgings (P) Ltd.3, wherein it was held:
"20. The position of law discussed above makes it clear that sale certificate issued by the authorised officer is not compulsorily registrable. Mere filing under Section 89(4) of the Registration Act itself is sufficient when a copy of the sale certificate is forwarded by the authorised officer to the registering authority. However, a perusal of Articles 18 and 23 respectively of the first schedule to the Stamp Act respectively makes it clear that when the auction purchaser presents the original sale certificate for registration, it would attract stamp duty in accordance with the said Articles. As long as the sale certificate remains as it is, it is not compulsorily registrable. It is only when the auction purchaser uses the certificate for some other purpose that the requirement of payment of stamp duty, etc. would arise."1
(2021) 11 SCC 537 2 (2022) SCC Online SC 2079 3 (2024) SCC Online SC 3372 5 HCJ & RCJ W.P.No.4541 of 2023 & batch
10. In line with the aforementioned legal provisions, the principles of law were succinctly dealt with by the Apex Court in B. Arvind Kumar v. Government of India4, wherein it was held:
"12. ... When a property is sold by public auction in pursuance of an order of the court and the bid is accepted and the sale is confirmed by the court in favour of the purchaser, the sale becomes absolute and the title vests in the purchaser. A sale certificate is issued to the purchaser only when the sale becomes absolute. The sale certificate is merely the evidence of such title. It is well settled that when an auction-purchaser derives title on confirmation of sale in his favour, and a sale certificate is issued evidencing such sale and title, no further deed of transfer from the court is contemplated or required. In this case, the sale certificate itself was registered, though such a sale certificate issued by a court or an officer authorised by the court, does not require registration. Section 17(2)(xii) of the Registration Act, 1908 specifically provides that a certificate of sale granted to any purchaser of any property sold by a public auction by a Civil or Revenue Officer does not fall under the category of non-testamentary documents which require registration under sub-sections (b) and (c) of Section 17(1) of the said Act. ..."
11. On a conspectus of the judgments as also the legal provisions supra, it is therefore clear that the registering authority would be entitled to claim the stamp duty as also the registration fee only if the original sale certificate was brought for registration by the auction purchaser before the registering authority in accordance with Articles 18 and 23 of the Schedule I of the Indian Stamp Act, 1899.
12. Since the petitioners in W.P.Nos.3976, 9008 & 25324 of 2024 are not claiming registration of the sale certificates and seek a direction only for filing of the sale certificates forwarded by the concerned authorities to the 4 (2007) 5 SCC 745 6 HCJ & RCJ W.P.No.4541 of 2023 & batch registering authority, for purposes of filing under Section 89(4) of the Act, 1908, the registering authority would be under an obligation to file the same in Book No.1 in terms of the said section.
13. Be that as it may, we allow W.P.Nos.3976, 9008 & 25324 of 2024 and set aside the orders impugned. The registering authorities are directed to file the sale certificates in Book No.1 in terms of Section 89(4) of the Act, 1908.
Insofar as W.P.Nos.4541 of 2023 & 12372 of 2024 are concerned, the petitioners would be liable to pay the requisite stamp duty and registration fee in accordance with the Indian Stamp Act, 1899, and the Registration Act, 1908, as they claim registration and of filing under Section 89(4) of the Act, 1908. W.P.Nos.4541 of 2023 & 12372 of 2024 are therefore found to be without merit and are accordingly dismissed.
Consequently, connected miscellaneous applications, if any, shall stand closed.
DHIRAJ SINGH THAKUR, CJ RAVI CHEEMALAPATI, J kbs 7 HCJ & RCJ W.P.No.4541 of 2023 & batch 142 HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, CHIEF JUSTICE & HON'BLE MR. JUSTICE RAVI CHEEMALAPATI W.P.No.4541 of 2023, 3976, 9008, 12372 & 25324 of 2024 Dt: 06.12.2024 kbs