Madras High Court
Dr. R. Thiagarajan vs Chief Revenue
Author: M. Duraiswamy
Bench: Vijaya K.Tahilramani, M. Duraiswamy
W.P.(MD) No.3989 of 2017
IN THE HIGH Court OF JUDICATURE AT MADRAS
RESERVED ON : 29.07.2019
DELIVERED ON : 05.08.2019
CORAM :
THE HON'BLE MRS.VIJAYA K.TAHILRAMANI, CHIEF JUSTICE
THE HON'BLE MR.JUSTICE M.DURAISWAMY
AND
THE HON'BLE MR.JUSTICE KRISHNAN RAMASAMY
W.P.(MD) No.3989 of 2017 and
W.M.P.(MD) No.3179 of 2017
Dr. R. Thiagarajan .. Petitioner
v.
1 The Inspector General of Registration,
Santhome,
Chennai - 4.
2 The Special Deputy Collector (Stamps),
District Collectorate,
Madurai.
3 The Sub Registrar,
Sub Registration Office,
N R T Road,
Theni .. Respondents
____________
Page 1 of 30
http://www.judis.nic.in
W.P.(MD) No.3989 of 2017
Writ Petition filed under Article 226 of the Constitution of India
praying to issue of Writ of Mandamus, directing the respondents herein
to return the original sale deed executed in document No.2675 of 2012,
dated 15.03.2012 on the file of the 2nd respondent to the petitioner
and further direct the respondents to refund the excess stamp duty of
2% already paid by the petitioner within the time stipulated by this
Court.
For Petitioner : Mr.Veera Kathiravan, Senior Counsel
For M/s. Veera Associates
For Respondents : Mr.S.R.Rajagopal
Additional Advocate General
Assisted by Mr.T.M.Pappiah,
Special Government Pleader
ORDER
VIJAYA K.TAHILRAMANI, CHIEF JUSTICE AND M. DURAISWAMY,J., Since there are two conflicting judgments rendered by different Division Benches, the learned Single Judge, referred the matter to the Full Bench.
____________ Page 2 of 30 http://www.judis.nic.in W.P.(MD) No.3989 of 2017
2. The Petitioner filed the Writ Petition to issue a Writ of Mandamus, directing the respondents to return the original sale deed executed in Document No.2675 of 2012, dated 15.03.2012 on the file of the 2nd respondent to the petitioner and further directing the respondents to refund the excess stamp duty of 2% already paid by the petitioner within a time frame.
3. The petitioner purchased the property comprised in S.F.Nos. 263, 268 and 268/1 situated at Allinagaram in the public auction conducted by the Syndicate Bank on 31.12.2011. The petitioner had purchased the property for a sum of Rs.1.03 crores. The bank had invoked the provisions of the SARFAESI Act for conducting the said auction. The bank also issued the Sale Certificate, which was registered as Document No.2675 of 2012, dated 15.03.2012. However, the 3rd respondent, who received the Sale Certificate for registration, insisted that the petitioner should pay the stamp duty as per the market value. The petitioner contended that he is liable to pay the stamp duty only in terms of the sale consideration set out in the ____________ Page 3 of 30 http://www.judis.nic.in W.P.(MD) No.3989 of 2017 Sale Certificate. Since the respondents declined to accept the said stand of the petitioner, he has filed the above Writ Petition.
4. Before the learned Single Judge, the learned counsel appearing for the petitioner relied upon a judgment reported in 2015(1) CTC 526 [The Inspector General of Registration and others v. K.K.Thirumurugan] , wherein, the Division Bench of this Court held that the Registering Authority cannot doubt the value mentioned in the Sale Certificate, therefore, Section 47-A would not be applicable in respect of the property purchased by way of public auction conducted under the SARFAESI Act.
5. Before the learned Single Judge, the learned Government Advocate, who appeared for the respondents, placed reliance on the unreported judgment of this Court dated 21.08.2017 made in W.A.(MD) No.3 of 2017 [The Inspector General of Registration, Chennai and others v. Kanagalakshmi Ganaguru], wherein, the Division Bench of this Court held that the Authorised Officer appointed by the bank in the proceedings initiated under SARFAESI Act, by itself ____________ Page 4 of 30 http://www.judis.nic.in W.P.(MD) No.3989 of 2017 could not be equivalent to Civil or Revenue Court and that the SARFAESI Act merely provides for a mechanism and the lender uses the said mechanism to recover the money from the borrower. Further, the Division Bench held that it is only a mode of recovery and that the Authorised Officer can only be termed as an Agent of the secured creditors. In such view of the matter, the Division Bench held that the purchaser therein is liable to pay the stamp duty on the market value of the property concerned.
6. Because of these two conflicting judgments produced by the respective learned counsel, the learned Single Judge, referred the matter to a Larger Bench. Accordingly, this Full Bench is deciding the issue, which is under Reference, i.e., whether the ratio laid down in the judgment reported in 2015(1) CTC 526 [cited supra] (OR) the ratio laid down in the unreported judgment dated 21.08.2017 made in W.A.(MD) No.3 of 2017 [cited supra], is good in law.
7. Mr. Veera Kathiravan, learned Senior Counsel, appearing for ____________ Page 5 of 30 http://www.judis.nic.in W.P.(MD) No.3989 of 2017 the petitioner submitted that since the petitioner had purchased the property in an auction held under the provisions of the SARFAESI Act, the value mentioned in the Sale Certificate by the Authorized Officer cannot be doubted and therefore, the provisions of Section 47-A of the Indian Stamp Act has no application. Further, the learned Senior Counsel submitted that since the property is sold in the public auction, the Authorized Officer should be construed as a Civil or Revenue Officer, thus, the value mentioned in the Sale Certificate should be taken as the value for the purpose of payment of stamp duty.
8. The learned Senior Counsel appearing for the petitioner, in support of his contentions, has relied upon the following judgments:-
(i) 2007 (14) SCC 339 [State of Rajasthan and others v. Khandaka Jain Jewellers] wherein the Hon'ble Supreme Court held as follows:-
" ... 26.Accordingly, we are of the opinion that the view taken by the learned Single Judge as well as by the Division Bench cannot be sustained and the same is set aside. The Collector shall determine the valuation of the instrument on the basis of the market ____________ Page 6 of 30 http://www.judis.nic.in W.P.(MD) No.3989 of 2017 value of the property at the date when the document was tendered by the respondent for registration, and the respondent shall pay the stamp duty charges and surcharge, if any, as assessed by the Collector as per the provisions of the Act. The appeal of the State is allowed. No order as to costs."
(ii) 2015(1) CTC 526 [The Inspector General of Registration, Chennai v. K.K. Thirumurugan] wherein the Division Bench of this Court held as follows:-
" 8. In V.N.Devadoss Vs. Chief Revenue Control Officer-cum-Inspector and Others (2009) 7 SCC 438, the Supreme Court had held that when a property is purchased in the open market, in response to an open offer, the question of non-
disclosure of the correct price or the intention to defraud, in order to evade the does not arise.
(iii) Unreported judgment dated 21.08.2017 of the Division Bench of this Court made in W.A.(MD) No.3 of 2017 [The Inspector General of Registration, Chennai and others v. Kanagalakshmi Ganaguru], wherein, the Division Bench of this ____________ Page 7 of 30 http://www.judis.nic.in W.P.(MD) No.3989 of 2017 Court held as follows: -
" ... 5. The decision of the Apex Court relied upon by the learned counsel for the respondent in V.N.Devadoss v. Chief Revenue Control Officer- Cum-Inspector reported in (2009) 7 SCC 438, does not apply to the case on hand, in which applicability of Article, which has referred to above has not taken into consideration. Further, factual finding rendered therein was effected on the basis of the value fixed by Assets Sales Committee consisting of members such as representatives of IDBI, debenture-holders, Government of West Bengal and Special Director of BIFR. Therefore, the said judgment is distinguishable.
6. The other judgments relied upon by the learned Single Judge in our considered view cannot be accepted, as the scope and applicability of the Articles 18 and 23 of the Indian Stamp Act unfortunately was not brought before it. After all a judgment cannot be read like a statute and an issue, which has been decided without conscious consideration cannot be binding.
7. Since arguments have been made on the ____________ Page 8 of 30 http://www.judis.nic.in W.P.(MD) No.3989 of 2017 second issue, we also inclined to go into the same. What has to be considered by an authority under Stamp Act is fixation of the value of an instrument on the basis of the market value of the property on the date on which the document was presented. Therefore it cannot be construed that such an authority would be diluted of his power in all the sales conducted publicly. The Registration Act mandates a separate Role being the duties assigned to a Registering Authority among others. Unless a Statute provides for such an exercise, Court cannot issue directions to accept the value fixed in an instrument merely because the sale was effected in pursuance of an open auction. All open auctions would not come under the Civil, Revenue or Article 18 of the Indian Stamps Act. As per the Article 23 of the Indian Stamp Act, conveyance has to be charged based upon the market value of the property concern. Therefore, this provision merely speaks about market value and not the value mentioned in the conveyance. The registering authority and others are empowered with the process for the consideration of the market value of the property, which is the subject matter of the conveyance. Article 18 speaks about certificate of sale. This is an exception to Article 23. As per Article 18, ____________ Page 9 of 30 http://www.judis.nic.in W.P.(MD) No.3989 of 2017 the duty mentioned in the conveyance would be deemed to be the market value. To bring the market value under Article 18, the condition precedent mentioned therein will have to be complied with. In other words, the property must be sold by Public auction only by a civil or Revenue Court, or a collector or other revenue Officer. Therefore, even assuming a property sold by Public auction, such an exercise is to be done by a civil or revenue Court, Collector or Revenue officers as the case may be. Now the question for consideration is as to whether the authorised officer appointed by the bank in a proceedings initiated under SARFAESI Act, by itself could be called as a civil or revenue Court Collector or Revenue Officer. The answer will have to be a firm 'No'. Only an officer of the bank, which lend money to the borrowers, acts as an authorised officer, only for the purpose of bringing the property for sale. In other words such officers merely replace the secured creditors. Hence at best they can be termed as an agent of secured creditors. In other words the secured creditors cannot be termed as Collector or Revenue Officers. The proceedings initiated by the lender in pursuant to a contract inter se parties, cannot be termed as that of a civil or revenue Court. The ____________ Page 10 of 30 http://www.judis.nic.in W.P.(MD) No.3989 of 2017 SARFARESI Act merely provides for a mechanism. The lender uses the said mechanism to recover the money. Therefore it is only a mode of recovery. Lender can termed itself to a Civil or Revenue Court who's functions are purely judicial. Therefore, looking from any perspective, we do not find any error in the notice issued. ..."
(iv) AIR 2008 Madras 108 [K.Chidambara Manickam v. Shakeena and others] wherein the Division Bench of this Court held as follows:-
" ... 10.17. The ratio laid down by the Division Bench of this Court in Arumugham, S. & 2 others v. C.K.Venugopal Chetty & 5 others and the Supreme Court in B.Arvind Kumar vs. Government of India and Others, referred supra, squarely applies to the case on hand and we, therefore, have no incertitude to hold that the sale which took place on 19.12.2005 has become final when it is confirmed in favour of the auction purchaser and the auction purchaser is vested with rights in relation to the property purchased in auction on issuance of the Sale Certificate and he has become the absolute owner of the property. Further, as held by the Division Bench of this Court in ____________ Page 11 of 30 http://www.judis.nic.in W.P.(MD) No.3989 of 2017 Arumugham, S. & 2 others v. C.K.Venugopal Chetty & 5 others and the Supreme Court in B.Arvind Kumar vs. Government of India and Others, referred supra, the Sale Certificate issued in favour of the appellant does not require any registration in view of Section 17(2)(xii) of the Registration Act as the same has been granted pursuant to the sale held in public auction by the authorised officer under SARFAESI Act. ..."
(v) 2010(2) CTC 113 [In Re. The Official Liquidator, High Court, Madras] wherein this Court held as follows:-
" ... 56. There is one more crucial issue. Section 17(2)(xii) refers only to a Certificate of Sale granted to the purchaser of a property in public auction by a Civil or Revenue Officer. Section 89(4) uses the term “Revenue Officer” alone. The question as to who is a Civil or Revenue Officer, did not fall for consideration either in the decision of the Division Bench in K. Chidambara Manickam or in any other decision. The only case where this question was considered, was in Shanti Devi L. Singh. But in that case, the Supreme Court was concerned with a sale made by the Tax Recovery Officer of the Income Tax Department. Since ____________ Page 12 of 30 http://www.judis.nic.in W.P.(MD) No.3989 of 2017 the Tax Recovery Officer was collecting the revenue due to the Government, by selling the property of the Assessee in public auction, the Supreme Court extended the meaning of the term “Civil or Revenue Officer” to a Tax Recovery Officer in Shanti Devi L. Singh case. If a person selling a property in public auction is not a “Civil or Revenue Officer”, the sale made by him will not fall under Section 17(2)(xii). If he is not a “Revenue Officer”, it will not also fall under Section 89(4).
57. The term “Revenue Officer” is defined in “Advanced Law Lexicon by P. Ramanatha Iyer” as “an Officer employed in or about the business of any branch of the public revenue”. This definition was culled out from the Explanation to Section 125 of the Indian Evidence Act, 1872. In Sheopatsingh v. Harishchandra {AIR 1958 Rajasthan 324}, it was held that the term “Revenue Officer” will include such Officers of the Income Tax, Sales Tax and Irrigation Department. Again in Gopi Parshad v. State of Punjab {AIR 1957 Pun. 45}, it was held that the expression ‘revenues’ means “the income of the nation derived from its taxes, duties or other sources, for the payment of the nation's expenses”. It is a term ____________ Page 13 of 30 http://www.judis.nic.in W.P.(MD) No.3989 of 2017 generally used in referring to income of a Government or governmental sub division and as so used means all the public moneys which the State collects and receives from whatever source and in whatever manner. In Kishore Chandra Deo Bhanj v. Raghunath Misra {AIR 1959 SC 589}, the Village Accountants were also held to be Revenue Officers.
58. Similarly, the term “Civil Officer” is defined in “Advanced Law Lexicon by P. Ramanatha Iyer” as “any Officer holding appointment under the Government except in the Military or Naval Service, whether the duties are Executive or Judicial or in the highest or the lowest departments”. The term “Civil Officer” has to be understood only in the context of “civilians” as opposed to persons in Military Service. It is doubtful, if an Official Liquidator can be equated to a Civil Officer or a Revenue Officer, so as to make the certificate of sale issued by him come within the purview of Section 17(2)(xii) of the Registration Act, 1908. I do not think that an Official Liquidator can be considered to be a “Revenue Officer” within the meaning of Section 89(4) since he is not collecting revenue for the Government. Even assuming for the sake of argument that he can be equated, Article 18 ____________ Page 14 of 30 http://www.judis.nic.in W.P.(MD) No.3989 of 2017 under Schedule-I of the Indian Stamp Act makes a certificate of sale issued by a Revenue Officer also liable to stamp duty. The term “Revenue Officer” appearing both in Article 18 under Schedule-I of the Indian Stamp Act and also in Sections 17(2)(xii) and 89(4) of the Registration Act, are to be given the same meaning and to be construed to indicate the same person.
59. Therefore, the only conclusion that one can draw by a combined reading of the provisions of the Transfer of Property Act, 1882, the Indian Stamp Act, 1899 and the Registration Act, 1908 is that by whatever name the instrument is called (whether certificate of sale or Sale Deed), the instrument is chargeable with stamp duty, under Article 18 read with Article 23 of Schedule I to the Stamp Act. While the Official Liquidator can leave the choice to the auction purchaser to choose the title to or the nomenclature of the document, neither he nor the purchaser has any choice with regard to the liability to pay stamp duty. ...”
9. Countering the submissions made by the learned Senior ____________ Page 15 of 30 http://www.judis.nic.in W.P.(MD) No.3989 of 2017 Counsel appearing for the petitioner, Mr.S.R.Rajagopal, learned Additional Advocate General, appearing for the respondents submitted that the Authorized Officer cannot be construed as a Civil or Revenue Officer and therefore, the purchaser is liable to pay the stamp duty on the market value of the property under Article 23 of the Stamp Act and not on the value mentioned in the Sale Certificate.
10. The learned Additional Advocate General appearing for the respondents, in support of his contentions, has relied upon the judgment reported in 2007 (5) SCC 745 [ B.Arvind Kumar v. Government of India and others] wherein the Hon'ble Supreme Court held as follows:-
" ... 12.The plaintiff has produced the original registered Sale Certificate dated 29-8-1941 executed by the Official Receiver, Civil Station, Bangalore. The said deed certifies that Bhowrilal (father of the plaintiff) was the highest bidder at an auction-sale held on 22-8-1941, in respect of the right, title, interest of the insolvent Anraj Sankla, namely, the leasehold right in the property described in the Schedule to the certificate (suit property), that his bid ____________ Page 16 of 30 http://www.judis.nic.in W.P.(MD) No.3989 of 2017 of Rs 8350 was accepted and the sale was confirmed by the District Judge, Civil and Military Station, Bangalore on 25-8-1941. The Sale Certificate declared Bhowrilal to be the owner of the leasehold right in respect of the suit property. 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 ____________ Page 17 of 30 http://www.judis.nic.in W.P.(MD) No.3989 of 2017 require registration under sub-Sections (b) and (c) of Section 17(1) of the said Act. We therefore hold that the High Court committed a serious error in holding that the Sale Certificate did not convey any right, title or interest to plaintiff's father for want of a registered deed of transfer. ...”
11. On a perusal of Article 18 of the Indian Stamp Act, it could be seen that in the case of the sale made by public auction by a Civil or Revenue Court or Collector or other Revenue Officer, the stamp duty would be payable on the consideration of the auction raised and not on the market value of the property. If the sale is not made by a Civil or Revenue Court or Collector or other Revenue Officer, the purchaser is liable to pay the stamp duty on the market value of the property as per Article 23 of the Act.
12. Under Section 47-A of the Act, if the Registering Authority has reason to believe that the market value of the property, which is the subject matter of conveyance, has not been truly set-forth in the instrument, he may, after registering such instrument, refer the same to the Collector for determination of the market value of the said ____________ Page 18 of 30 http://www.judis.nic.in W.P.(MD) No.3989 of 2017 property and the proper duty payable thereon.
13. Section 17 (1) of the Registration Act, 1908, speaks about the documents of which the registration is compulsory. Section 17(2) of the Registration Act, speaks about the exemption for registering the document. As per Section 17(2)(xii) of the Act, any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue Officer is exempted from registration.
14. The Sale Certificate is not a compulsorily registrable document, if the property is sold by public auction by a Civil or Revenue Officer. In the judgment reported in 2007 (5) SCC 745 [cited supra] the Hon'ble Supreme Court held that a certificate of sale granted to any purchaser of any property sold by 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.
____________ Page 19 of 30 http://www.judis.nic.in W.P.(MD) No.3989 of 2017
15. In the judgement reported in 2013(5) CTC 337 [P.M. Associates, Udhagamandalam v. IFCI Limited, Chennai and others] , the Division Bench of this Court held as follows:-
" ..... 30. In the judgment reported in (2007) 5 Supreme Court Cases 745 [B.Arvind Kumar Vs. Govt. of India and others], it is clear that when a property is sold by public auction in pursuance of an order of the Court and 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. The Sale Certificate is issued to the purchaser only when the sale becomes absolute, further, it is clear that the Sale Certificate is merely an evidence of such title. It is also well settled that when an auction purchaser derives title on confirmation of sale in his favour, the Sale Certificate is issued evidencing such sale and title, no further deed of transfer from the Court is contemplated or required. So far as the registration of the Sale Certificate is concerned, under Section 17(2)(xii) of the Registration Act, the Sale Certificate issued by a Civil or Revenue Officer does not fall under the ____________ Page 20 of 30 http://www.judis.nic.in W.P.(MD) No.3989 of 2017 category of non-testamentary documents which requires registration under sub-Section 17(1)(b)and(c) of the said Act. In the case on hand, the Sale Certificate was issued by the Authorised Officer, the second respondent. That being the case, the auction purchaser derives title on confirmation of sale in their favour and the Sale Certificate was issued evidencing such sale and title. In respect of the registration of the Sale Certificate issued by the second respondent, since the second respondent is not a Civil or Revenue Officer, the registration of the Sale Certificate is not exempted under Section 17(2)(xii) of the Registration Act. Therefore, we are of the view that though the auction purchaser derived title on confirmation of sale in their favour and a Sale Certificate was issued by the Authorised Officer, evidencing such sale and title, no further deed of transfer is required. In view of the judgment reported in (2007) 5 Supreme Court Cases 745 and the provisions of 17(2)(xii) of the Registration Act, the Sale Certificate issued by the second respondent/Authorised Officer requires registration."
16. In the above referred judgment, the Division Bench held ____________ Page 21 of 30 http://www.judis.nic.in W.P.(MD) No.3989 of 2017 that the Authorized Officer is not a Civil or Revenue Officer and therefore, the registration of Sale Certificate is not exempted under section 17(2)(xii) of the Act. When the same principle is applied for the payment of stamp duty, the sale made by the Authorized Officer cannot be equated with the sale made by a Civil or Revenue Officer.
17. As per Article 18 of the Stamp Act, the purchaser of any property sold by a public auction by a Civil or Revenue Officer or Collector or other Revenue Officer, is liable to pay the stamp duty on the consideration mentioned in the Sale Certificate. The Hon'ble Supreme Court in the judgment reported in 2007 (5) SCC 745 [cited supra] and the Division Bench of this Court in the judgment reported in 2013(5) CTC 337 [cited supra] held that the Authorized Officer of the bank cannot be equated with the Civil or Revenue Officer. Therefore, the sale made by the Authorized Officer is liable for stamp duty under Article 23 and not under Article 18 of the Stamp Act.
18. In the judgment reported in AIR 2008 Madras 108 ____________ Page 22 of 30 http://www.judis.nic.in W.P.(MD) No.3989 of 2017 [K.Chidambara Manickam Vs.. Shakeena and others], the Division Bench of this Court held that the right of redemption provided to the borrower under Section 60 of the Transfer of Property Act will be available to the borrower before it is foreclosed or estate is sold and on the issuance of the Sale Certificate to the auction purchaser, the sale becomes complete, vesting the right in the property in favour of the auction purchaser. In the case on hand, there is no dispute that the auction was confirmed in favour of the auction purchaser and the Sale Certificate was also issued in their favour. Thus, the sale became complete and the right in the property vests in favour of the auction purchaser. Since the third respondent/borrower failed to exercise his right of redemption before sale of the property and also in view of the provisions of Section 13(8) of the SARFAESI Act, the borrower/third respondent cannot now (i.e.) after the completion of the sale in favour of the petitioner seek to redeem the property, that too, without the intervention of a Competent Court or Tribunal.
19. In the judgment reported in 2015(1) CTC 526 [cited supra] the Division Bench held that the value mentioned in the Sale ____________ Page 23 of 30 http://www.judis.nic.in W.P.(MD) No.3989 of 2017 Certificate cannot be doubted by the Registering Authority and therefore, Section 47-A would not be applicable in respect of the property purchased by way of public auction conducted under the SARFAESI Act . While coming to the said conclusion, the Division Bench has not taken into consideration the judgment of the Hon'ble Supreme Court reported in 2007 (5) SCC 745 [cited supra] and the Division Bench of this Court in the judgment reported in 2013(5) CTC 337 [cited supra] wherein it was held that that the Authorized Officer is not a Civil or Revenue Officer.
20. That apart, the value fixed by the Authorised Officer of the bank is not reflecting the actual market value of the property for the reason that the Authorised Officer, while fixing the upset price, not only taking into consideration the market value of the property, but also, taking into consideration the distress value of the property. That being the case, the value fixed by the Authorised Officer cannot be construed as true market value of the property.
21. In the unreported judgment of this Court dated 21.08.2017 ____________ Page 24 of 30 http://www.judis.nic.in W.P.(MD) No.3989 of 2017 made in W.A.(MD) No.3 of 2017 [cited supra], the Division Bench of this Court held that the Authorised Officer appointed by the bank in the proceedings initiated under SARFAESI Act, is not a Civil or Revenue Court, Collector or Revenue Officer and he is an officer of the bank, which lend money to the borrowers, acts as an Authorized Officer, only for the purpose of bringing the property for sale. In other words, such officers merely replace the secured creditors. The Division Bench further observed that at best the Authorized Officer can not be termed as Civil or Revenue Court, Collector or Revenue Officer. Observing so, the Division Bench held that notice issued under Section 47-A of the Indian Stamp Act, claiming stamp duty on the market value of the property is proper.
22. The Sale Certificate issued by the Authorised Officer of the bank cannot be agnated with the Sale Certificate issued by a Civil or Revenue Court. The nomenclature given to the document issued by the Authorized Officer would be irrelevant for exemption from payment of stamp duty and the same will not be covered under Article 18-C Schedule 1 of the Stamp Act. Therefore, the Sale Certificate ____________ Page 25 of 30 http://www.judis.nic.in W.P.(MD) No.3989 of 2017 issued by one who is neither Civil or Revenue Officer would not fall under Section 17(2)(xii) of the Registration Act and the Sale Certificate issued by the Authorized Officer is liable for stamp duty on the market value as per Article 18-C read with Article 23 of Schedule 1 of the Stamp Act.
23. If proper stamp duty is not paid for the said Sale Certificate and registered as required under law, then it is only a still born child and does not confer any right to the petitioner whatsoever. When the Sale Certificate is not properly stamped and registered, it is a void document and no right would vest upon the petitioner based on the same. As per Section 47-A of the Stamp Act, if the Registering Authority has reason to believe that the market value of the property, which is the subject matter of conveyance, has not been truly set-forth in the instrument, he may, after registering such instrument, refer the same to the Collector for determination of the market value of the said property and the proper duty payable thereon.
24. As already stated, the Sale Certificate issued by the ____________ Page 26 of 30 http://www.judis.nic.in W.P.(MD) No.3989 of 2017 Authorized Officer of the bank requires registration as well as stamp duty under Article 18-C read with Article 23 of Schedule 1 of the Stamp Act.
25. In the case of the property being under-valued, then, the Registering Authority is entitled to refer the matter to the Collector under Section 47-A of the Stamp Act. Therefore, in respect of the Sale Certificate issued by the Authorized Officer of the bank, Section 47-A of the Stamp Act is applicable.
26. To summarize, our answer to the question referred to the Full Bench is as follows:-
We are of the considered view that the Sale Certificate issued by the Authorized Officer of the bank is liable for stamp duty under Article 18-C read with Article 23 of Schedule 1 of the Indian Stamp Act. In the event of under-valuation of the property, which is the subject matter of the Sale Certificate, the Registering Officer is entitled to proceed in accordance with Section 47-A of the Indian Stamp Act. Hence, we agree with the proposition laid down by the Division Bench of this Court ____________ Page 27 of 30 http://www.judis.nic.in W.P.(MD) No.3989 of 2017 in the unreported judgment of this Court dated 21.08.2017 made in W.A.(MD) No.3 of 2017 [cited supra] and, with respect, we are not agreeing with the view taken in the judgment reported in 2015(1) CTC 526 [cited supra].
27. As we have already answered the reference as above, the Registry is directed to place the Writ Petition before the learned Single Judge for hearing on merits.
(V.K.T., CJ.) (M.D., J.) (K.R.,J.)
05.08.2019
Index : Yes/No
Speaking Order/Non Speaking Order
Rj
To
1 The Inspector General of Registration, Santhome, ____________ Page 28 of 30 http://www.judis.nic.in W.P.(MD) No.3989 of 2017 Chennai - 4.
2 The Special Deputy Collector (Stamps), District Collectorate, Madurai.
3 The Sub Registrar, Sub Registration Office, N R T Road, Theni ____________ Page 29 of 30 http://www.judis.nic.in W.P.(MD) No.3989 of 2017 THE HON'BLE CHIEF JUSTICE, M. DURAISWAMY,J.
AND KRISHNAN RAMASAMY, J., Rj Order in W.P.(MD) No.3989 of 2017 and W.M.P.(MD)No.3179 of 2017 05.08.2019 ____________ Page 30 of 30 http://www.judis.nic.in