Gujarat High Court
Saptak Trade Link Private Limited vs Chief Controlling Revenue Authority on 21 February, 2023
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1345 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SAPTAK TRADE LINK PRIVATE LIMITED
Versus
CHIEF CONTROLLING REVENUE AUTHORITY & 3 other(s)
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Appearance:
MR AS ASTHAVADI(3698) for the Petitioner(s) No. 1
MR.JAY TRIVEDI, AGP for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 21/02/2023
ORAL JUDGMENT
1. RULE returnable forthwith. Mr.Jay Trivedi learned AGP waives service of notice of Rule on behalf of the respondent State.
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2. With the consent of learned advocates for the respective parties, the petition is taken up for final hearing.
3. By way of this petition under Article 226 of the Constitution of India, challenge is to the orders dated 30.05.2015 passed by the respondent no.1 and dated 24.02.2014 by the respondent no.2.
The consequential prayer is that the additional stamp duty of Rs.28,94,085/- and interest amount which is Rs.5,79,360/- be refunded.
4. Facts in brief would indicate that the assets of M/s. G.T.C.L. Mobile-cum-Technologies Limited ('GTCL' for short) were mortgaged to Dena Bank towards the loan secured by the said company.
Since GTCL could not repay the loan to the bank, the properties were put to auction wherein the petitioner offered a bid of Rs.7,21,00,000/- which Page 2 of 28 Downloaded on : Fri Feb 24 20:39:33 IST 2023 C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023 was accepted by the High Court vide order dated 13.01.2009 passed in Company Application No.619 of 2008. It is the case of the petitioner that thereafter the Court passed an order directing the bank to cooperate with the applicant company in entering into a sale deed.
Accordingly the sale deed was executed on 18.05.2013.
5. It is the case of the petitioner that the respondent no.3 did not accept the stamp duty of Rs.35,33,000/- on the ground that the property would actually be valued at Rs.14,52,63,948/-
and therefore the required stamp duty was Rs.71,17,934/-. The petitioner was asked to pay the deficit stamp duty of Rs.35,84,930/- and therefore the sale deed was impounded under Section 33 of the Stamp Act. The case of the petitioner is that without considering the Page 3 of 28 Downloaded on : Fri Feb 24 20:39:33 IST 2023 C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023 submissions, the respondent no.2 held that the value of the property should be Rs.13,11,64,600/-
requiring to pay the deficit stamp duty of Rs.28,94,065/- with penalty of Rs.250/- which the petitioner ultimately paid along with interest.
6. Mr.Asthavadi learned counsel for the petitioner would submit that once the property was purchased in a public auction as settled by the decision of this Court by following the decision of the Supreme Court in case of V N Devadoss V. Chief Revenue Control Officer-CUM-INS reported in 2009 (7) SCC 438, it was open for the authorities to ask for stamp duty at the additional/enhanced rate.
7. Mr.Jay Trivedi learned AGP would vehemently oppose the petition and submit by reading the order passed by this Court in Company Page 4 of 28 Downloaded on : Fri Feb 24 20:39:33 IST 2023 C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023 Application No.619 of 2008, that though it is termed as a public auction, 23 bidders were informed and it was only the petitioner who showed interest and participated in the inter-se bidding offering Rs.7.50 crores. Obviously therefore this was not the true reflection of the value of the property in question. He would also fall back upon the affidavit in reply filed on behalf of the authorities and bring it to the notice of the Court that in light of the provisions of Section 2(la) which defines the term market value, it is clear that 'market value' in relation to any property means the price which such property would have fetched if sold in open market on the date of execution of the sale deed.
He would emphasise on the word 'execution'. He would submit that though the property in question was purchased in the year 2009, the sale deed was only executed in the year 2013 i.e. Page 5 of 28 Downloaded on : Fri Feb 24 20:39:33 IST 2023 C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023 18.05.2013. No inspection for waiting for the sale deed to be registered for the period of four years is forthcoming and therefore market value of the property has to be taken in consonance with the differing Jantri rate on the date of execution of the sale deed.
8. In support of his submission, Mr.Trivedi would rely on a decision of a coordinate bench of this Court in case of Bajaj Col Chem v. Deputy Superintendent of Stamp and Anr. reported in 2011 (1) G.L.H. 243. Para 6 of the judgement would be pressed into service where the Court negated the contention of the advocate for the petitioner holding that there is a difference between two prices in respect of one property. One that is fixed in public auction and the another that is fixed by Jantri decided by the State.
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9. Considering the submissions made by the learned counsel for the respective parties, the decision in the case of V N Devadoss (supra) of the Supreme Court which considered the question of a sale in public auction needs reference. Pursuant to a sale by an Assets Sale Committee, a property in question was sold for a certain consideration. The sale deed was lodged on 17.06.2004. The Supreme Court examining the provision of Section 47A of the Stamp Act opined that the stand of the State is fallacious and though the market value is a changing concept, registration has to be done at the price disclosed in the document of conveyance. The relevant para reads as under:
"7. Apart from explaining and setting out the circumstances under which he purchased the property, the appellant also questioned the jurisdiction of the authorities to invoke Section 47-A of the Act. It is the specific case of the appellant that without affording personal hearing, the second Page 7 of 28 Downloaded on : Fri Feb 24 20:39:33 IST 2023 C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023 respondent by order dated 11.04.2005, confirmed the market value of the land as Rs.465/- per sq. ft. and called upon him to pay the additional stamp duty. Aggrieved by the order of the second respondent, the appellant preferred an appeal before the first respondent on 13.04.2005.
8. On 08.02.2006, the first respondent rejected his appeal, confirming the market value of the property as Rs.465/per sq, ft. The first respondent also directed the appellant to pay interest at the rate of 2% per month towards the demand made by the authorities. Aggrieved over the same, the appellant filed the appeal before the High Court under Section 47-A (10) of the Act.
9. The High Court took the view that it was not a case of sale by the government or a transaction between the government organizations/bodies. It was held that statutory authorities like BIFR and AIFR acted as facilitators and, therefore, it was held that there was no scope for a different view to be taken regarding the market value and for this limited purpose the matter was remanded to the original authority for passing an appropriate order.
10. Learned counsel for the appellant submitted that the aforesaid view of the High Court is clearly erroneous. It was a case where the sale was conducted under the orders of the statutory authority i.e. BIFR. There are several instances, it is Page 8 of 28 Downloaded on : Fri Feb 24 20:39:33 IST 2023 C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023 submitted, where the official liquidator is involved to take a decision in the matter of acceptance of the bid made.
11. Learned counsel for the respondents on the other hand submitted that the High Court is correct in holding that it was essentially not a matter between State or a party and the role of the BIFR is that of mediator.
12. To appreciate the rival stands Section 47-A and Rules 3 and 4 of Rules need to be noted. The said rules have been framed in exercise of powers conferred under Sections 47-A and 75 of the Act. Rule 4 and Section 47-A so far as relevant read as follows:
"47-A.Instruments of conveyance etc. undervalued how to be dealt with -
(1) If the registering officer appointed under the Indian Registration Act, 1908 (Central Act XVI of 1908) while registering any instrument of conveyance, exchange, gift, release of benami right or settlement has reasons to believe that the market value of the property of which is the subject matter of conveyance, exchange, gift, -release of benami right or settlement, 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 Page 9 of 28 Downloaded on : Fri Feb 24 20:39:33 IST 2023 C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023 such property and the proper duty payable thereon.
(2) On receipt of a reference under subsection (1), the Collector shall, after giving the parties a reasonable opportunity of being heard and after holding an enquiry in such manner as may be prescribed by rules made under this Act, determine the market value of the property which is the subject matter of conveyance, exchange, gift, release of benami right or settlement, and the duty as aforesaid. The difference, if any, in the amount of duty,- shall be payable by the person liable to pay the duty.
(3) The Collector may, suo motu or otherwise, within five years from the date of registration of any instrument of conveyance, exchange, gift, release of benami right or settlement, not already referred to him under sub-section (1), call for the examine the instrument for the purpose of satisfying himself as to the correctness of the market value of the property which is the subject matter of conveyance, exchange, gift, release of benami, right or settlement, and the duty payable thereon and if after such examination, he has reason to believe that the market value of the property has not been truly set forth in the instrument, he may determine the market value of such property and the duty as aforesaid in accordance with the procedure provided for in sub-section Page 10 of 28 Downloaded on : Fri Feb 24 20:39:33 IST 2023 C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023 (2). The difference, if any, in the amount of duty, shall be payable by the persons liable to pay the duty:
Provided that nothing in this subsection shall apply to any instrument registered before the date of commencement of the Indian Stamp (Tamil Nadu Amendment) Act, 1967.
(4) ......................
(5) Any person aggrieved by an order of the Collector under sub-section (2) or sub section (3), may appeal to such authority as may be prescribed in this behalf. All such appeals shall be preferred within such time, and shall be heard and disposed of in such manner, as may be prescribed by rules made under this Act.
(6) ......................
(7) ......................
(8) .....................
(9) ......................
(10) Any person aggrieved by an order of the authority prescribed under subsection (5) or the Chief Controlling Revenue Authority under sub-section (6) may, within such time and in such manner, as may be prescribed by rules made under this Act, appeal to the High Court."Page 11 of 28 Downloaded on : Fri Feb 24 20:39:33 IST 2023
C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023 "Rule 4: Procedure on receipt of reference under Section 47A:
(1) ..............
(2) ..............
(3) ..............
(4) After considering the
representations, if any, received from the person to whom notice under sub- rule (1) has been issued, and after examining the records and evidence before him, the Collector shall pass an order in writing provisionally determining the market value of the properties and the duty payable. The basis on which the provisional market value was arrived at shall be clearly indicated in the order."
A bare perusal of the rules make the position clear that sub-Rule (4) enumerates procedure on receipt of reference under Section 47-A. Rule 5 speaks about the principles for determination of market value. Sub-clause (a) refers to lands; (b) house sites; (c) buildings and (d) properties other than lands, house sites and buildings.
13. Sub-Sections (1) and (3) of Section 47-A clearly reveal the intention of the Legislature that there must be a reason to believe that the market value of the property which is the subject matter of the conveyance has not been truly set out in the Page 12 of 28 Downloaded on : Fri Feb 24 20:39:33 IST 2023 C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023 instrument. It is not a routine procedure to be followed in respect of each and every document of conveyance presented for registration without any evidence to show lack of bona fides of the parties to the document by attempting fraudulently to under value the subject of conveyance with a view to evade payment of proper stamp duty and thereby cause loss to the revenue. Therefore, the basis for exercise of power under Section 47-A of the Act is willful under valuation of the subject of transfer with fraudulent intention to evade payment of proper stamp duty.
14. In the instant case the factual scenario shows that the vendors of the appellant i.e. M/s Dunlop India Limited became a sick industry and was declared so under the provisions of 1985 Act. Consequent upon such declaration, surplus properties and assets belonging to the said company were disposed of on the basis of orders passed by BIFR and AIFR by forming an Assets Sales Committee. The appellant submitted that his tender alongwith others and his offer of Rs.24.34 crores approximately was the highest, and the same was accepted by the Assets Sales Committee and also by the statutory authorities. The company was granted permission to execute the sale deed in favour of the appellant.
15. Stand of the State is that what has been disclosed is clearly a sale value and the Page 13 of 28 Downloaded on : Fri Feb 24 20:39:33 IST 2023 C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023 same cannot be termed as market value. There is fallacy in this argument.
16. Market value is a changing concept. The explanation to sub-Rule (5) makes the position clear that value would be such as would have fetched or would fetch if sold in the open market on the date of execution of the instrument of conveyance. Here, the property was offered for sale in the open market and bids were invited. That being so, there is no question of any intention to defraud the revenue or non disclosure of the correct price. The factual scenario as indicated above goes to show that the properties were disposed of by the orders of BIFR and AIFR and that too on the basis of value fixed by ASG. The view expressed by the Assets Sales Committee which consisted of members such as representatives of IDBI, Debenture Holders, Government of West Bengal and Special Director of BIFR. That being so, there is no possibility of any under valuation and, therefore, Section 47-A of the Act has no application. It is not correct as observed by the High Court that BIFR was only a mediator.
17. Sale has been defined under Section 54 of the Transfer of Property Act, 1882 (in short the `TP Act'). Although the Act has not included the definition of sale, Section 2(10) of the Act defines conveyance as including a conveyance on sale, every instrument and every decree or final order of any Civil Court by which property whether Page 14 of 28 Downloaded on : Fri Feb 24 20:39:33 IST 2023 C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023 immovable or moveable or any estate or interest in any property is transferred to, or vested in or declared to be of any other person, inter vivos, and which is not otherwise specifically provided for by Schedule I or Schedule 1-A, as the case may be.
18. On the facts of the case it cannot be said that Section 47-A has any application because there is no scope for entertaining a doubt that there was any under valuation. That being so, the High Court's order is clearly unsustainable and is set aside. The registration shall be done at the price disclosed in the document of conveyance. There is no scope for exercising power under Section 47-A of the Act as there is no basis for even entertaining a belief that the market value of the property which is the subject matter of conveyance has not been truly set forth with a view to fraudulently evade payment of proper stamp duty.
19. The appeal is allowed. There will be no order as to costs."
10. The Division Bench of this Court in Letters Patent Appeal No.1436 of 2019 following the decision in case of V N Devadoss (supra) in para 4 of the decision held as under:
"4. We are of the view that no error not to Page 15 of 28 Downloaded on : Fri Feb 24 20:39:33 IST 2023 C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023 speak of any error of law could be said to have been committed by the learned Single Judge in passing the impugned order. The issue decided by the learned Single Judge is squarely covered by a decision of the Supreme Court in the case of V.N. Devadoss vs. Chief Revenue Control Officer-cum- Inspector, reported in (2009) 7SCC 438, wherein the Supreme Court held as under:
"13. Sub-Sections (1) and (3) of Section 47- A clearly reveal the intention of the Legislature that there must be a reason to believe that the market value of the property which is the subject matter of the conveyance has not been truly set out in the instrument. It is not a routine procedure to be followed in respect of each and every document of conveyance presented for registration without any evidence to show lack of bona fides of the parties to the document by attempting fraudulently to under value the subject of conveyance with a view to evade payment of proper stamp duty and thereby cause loss to the revenue. Therefore, the basis for exercise of power under Section 47-A of the Act is willful under valuation of the subject of transfer with fraudulent intention to evade payment of proper stamp duty.
14. In the instant case the factual scenario shows that the vendors of the appellant i.e. M/s Dunlop India Limited became a sick industry and was declared so under the provisions of 1985 Act. Consequent upon such declaration, surplus properties and assets belonging to the said company were disposed of on the basis of orders passed by BIFR and AIFR by forming an Assets Sales Page 16 of 28 Downloaded on : Fri Feb 24 20:39:33 IST 2023 C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023 Committee. The appellant submitted that his tender alongwith others and his offer of Rs.24.34 crores approximately was the highest, and the same was accepted by the Assets Sales Committee and also by the statutory authorities. The company was granted permission to execute the sale deed in favour of the appellant.
15. Stand of the State is that what has been disclosed is clearly a sale value and the same cannot be termed as market value. There is fallacy in this argument.
16. Market value is a changing concept. The explanation to sub-Rule (5) makes the position clear that value would be such as would have fetched or would fetch if sold in the open market on the date of execution of the instrument of conveyance. Here, the property was offered for sale in the open market and bids were invited. That being so, there is no question of any intention to defraud the revenue or non disclosure of the correct price. The factual scenario as indicated above goes to show that the properties were disposed of by the orders of BIFR and AIFR and that too on the basis of value fixed by ASG. The view expressed by the Assets Sales Committee which consisted of members such as representatives of IDBI, Debenture Holders, Government of West Bengal and Special Director of BIFR. That being so, there is no possibility of any under valuation and, therefore, Section 47-A of the Act has no application. It is not correct as observed by the High Court that BIFR was only a mediator.
17. Sale has been defined under Section 54 of the Transfer of Property Act, 1882 (in Page 17 of 28 Downloaded on : Fri Feb 24 20:39:33 IST 2023 C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023 short the `TP Act'). Although the Act has not included the definition of sale, Section 2(10) of the Act defines conveyance as including a conveyance on sale, every instrument and every decree or final order of any Civil Court by which property whether immovable or moveable or any estate or interest in any property is transferred to, or vested in or declared to be of any other person, inter vivos, and which is not otherwise specifically provided for by Schedule I or Schedule 1-A, as the case may be.
18. On the facts of the case it cannot be said that Section 47-A has any application because there is no scope for entertaining a doubt that there was any under valuation. That being so, the High Court's order is clearly unsustainable and is set aside. The registration shall be done at the price disclosed in the document of conveyance. There is no scope for exercising power under Section 47-A of the Act as there is no basis for even entertaining a belief that the market value of the property which is the subject matter of conveyance has not been truly set forth with a view to fraudulently evade payment of proper stamp duty."
11. The Division Bench held that when a party purchases any property in an open auction and when such party is the highest bidder and the sale deed is executed, then the sale consideration set for in the instrument in Page 18 of 28 Downloaded on : Fri Feb 24 20:39:33 IST 2023 C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023 question should be considered as the true market value of the property in question, of course subject to a rider that is framed.
12. Considering the facts of the case, though learned AGP Mr.Jay Trivedi in his submissions pointed out that the petitioner was the sole bidder, what is evident is that it was a sale in light of an auction held in the High Court in a company petition where only the petitioner remained present and offered the highest bid. The sale having taken place in the proceedings before the High Court would therefore would not be tainted with fraud and therefore the judgements referred to herein above is squarely applied to the facts of the case.
13. Even in the case of Registrar of Assurances and Another v. ASL Vyapar Private Limited Page 19 of 28 Downloaded on : Fri Feb 24 20:39:33 IST 2023 C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023 and Anr. reported in 2022 LawSuit (SC) 1342, decided by the Supreme Court on 10.11.2022, reading the conclusions in paras 22 to 30, the same are as under:
"Conclusion:
22. On the conspectus of the matter, we have not the slightest hesitation in upholding the view that the provision of Section 47A of the Act cannot be said to have any application to a public auction carried out through court process/receiver as that is the most transparent manner of obtaining the correct market value of the property.
23. It is no doubt true that in a court auction, the price obtainable may be slightly less as any bidder has to take care of a scenario where the auction may be challenged which could result in passage of time in obtaining perfection of title, with also the possibility of it being overturned.
But then that is a price obtainable as a result of the process by which the property has to be disposed of. We cannot lose sight of the very objective of the introduction of the Section whether under the West Bengal Amendment Act or in any other State, i.e., that in case of under valuation of property, an aspect not uncommon in our country, where consideration may be passing through two modes - one the declared price Page 20 of 28 Downloaded on : Fri Feb 24 20:39:33 IST 2023 C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023 and the other undeclared component, the State should not be deprived of the revenue. Such transactions do not reflect the correct price in the document as something more has been paid through a different method. The objective is to take care of such a scenario so that the State revenue is not affected and the price actually obtainable in a free market should be capable of being stamped. If one may say, it is, in fact, a reflection on the manner in which the transfer of an immovable property takes place as the price obtainable in a transparent manner would be different. An auction of a property is possibly one of the most transparent methods by which the property can be sold. Thus, to say that even in a court monitored auction, the Registering Authority would have a say on what is the market price, would amount to the Registering Authority sitting in appeal over the decision of the Court permitting sale at a particular price.
24. It is not as if a public auction is carried out just like that. The necessary pre- requisites require fixation of a minimum price and other aspects to be taken care of so that the bidding process is transparent. Even after the bidding process is completed the court has a right to cancel the bid and such bids are subject to confirmation by the court. Once the court is satisfied that the bid price is the appropriate price on the basis of the material before it and gives its imprimatur to it, any interference by the Registering Authority on the aspect of price Page 21 of 28 Downloaded on : Fri Feb 24 20:39:33 IST 2023 C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023 of transaction would be wholly unjustified.
25. We may only note that this Court in P. Laxmi Devi15 case has opined the purpose behind bringing into force Section 47A in the Andhra Pradesh State, i.e., in case of large scale under-valuation of the real value of property in the sale deed, the Government is defrauded of a proper revenue. It was to take care of the absence of any provision in the original Stamp Act empowering revenue authority to make an inquiry about the value of the conveyed property, that the Amendment was brought forth so that the revenue did not suffer. The judgment in V.N. Devadoss 16 case albeit in respect of Amendment in Tamil Nadu, opined that it was not a routine procedure to be followed in respect of each and every document of conveyance presented for registration without any evidence to show a lack of bona fides of the parties. There has to be a willful under-valuation of the subject of transfer with fraudulent intention to evade payment of proper stamp duty.
26. We do not accept the contention that the mere wordings of these different provisions in any way take away the fundamental intent with which the provision was brought into force and specifies so in the same manner though albeit in a different language. In a court auction following its own procedure, the Registering Officer cannot have any reason to believe that the market value of the property was not duly Page 22 of 28 Downloaded on : Fri Feb 24 20:39:33 IST 2023 C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023 set forth - a pre-requisite for a Registering Authority to exercise its power under the said Section.
27. If we see in the factual context of the two scenarios before us in respect of the two cases, the telling aspect in a partition case was the existence of 98 tenants on a land at a monthly rent of Rs.8,000 for the entire land and 80 vendors occupying the land for hawking business during day time. It is trite to say that the mere existence of tenancy results in a considerable decline in the market value of the property as they may have their statutory rights and even otherwise, the purchaser would be acquiring the property hardly in an ideal scenario and would be left with the burden to take legal processes for the eviction. In such a scenario, there is actually a great depression in the market value of the property as even if a fair transaction without an auction takes place with full reflection of price, the transacted value would be half or less of a vacant property. The tenancy aspect can hardly be said to be an aspect which could be ignored in the determination of the price.
28. In the company matter, repeated auctions were held and it is in the negotiated bid that the higher price was obtained. It was court monitored. There would be no occasion for the court to accept the bid if it was not satisfied with the process and the valuation. A correct value of a property is the one where there is a Page 23 of 28 Downloaded on : Fri Feb 24 20:39:33 IST 2023 C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023 purchaser and a seller ad idem on the price (the actual price). The market value is, thus, the value which the highest bidder is willing to pay in the facts and prevailing circumstances and not a notional price.
29. We find hardly any rational in adopting the submissions on behalf of the appellant. The provisions are not dissimilar in the different enactments in its fundamentals; the "reason to believe" of a Registering Officer has to be based on ground realities and not some whimsical determination; the Registering Authority cannot be permitted to doubt the liquidation proceedings as having some superior knowledge when it is a court monitored process where the court would take care of aspects such as cartelization; the Registering Authority can hardly be said to be the only authority with knowledge of the subject to the exclusion of the court; the independent determination by a Registering Officer would not apply to a court sale but to a private transaction; the Stamp Act being a fiscal statute, while being interpreted strictly and literally would not imply some kind of absolute power.
30. The decision of this Court in V.N. Devadoss17 case can hardly be said to be per incuriam. No doubt a court monitored auction is a forced sale, but then it has a competitive element of a public auction to realize the best possible price. In many court cases, this is the process followed by the court to get the best obtainable price taking due precaution."
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14. Reading the conclusions would indicate that the Supreme Court observed that it is no doubt true that in a Court auction, the price obtainable may be slightly less as any bidder has to take care of a scenario where the auction may be challenged but then that is the price obtainable as a result of the process by which the property has to be disposed of. An auction of a property is possibly one of the most transparent methods. Even the Court monitored the auction. Therefore the registering authority cannot sit in appeal over the decision of the Court directing a sale at a particular price.
15. Coming to the other submissions of the learned AGP as pointed out in the affidavit of the sale deed being registered four years after the date of the auction, reading of the order annexed to the Page 25 of 28 Downloaded on : Fri Feb 24 20:39:33 IST 2023 C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023 petition indicates that the auction was held pursuant to the order first in point of time on 13.01.2009. Thereafter, after an order passed on 18.12.2009, in Company Application No.46 of 2009, the applicant was permitted to execute a sale deed. An O.J. Appeal was filed which was partly allowed by a judgement of the Division Bench on 14.06.2011 and finally it was by an order dated 27.02.2013 of this Court that the way was paved for the petitioner to execute the sale deed which he did on 18.05.2013. No delay therefore can be attributed to press into service the argument advanced by the State in its affidavit suggesting that the Jantri rates would be different at the date of confirmation of the sale and execution of the sale deed.
16. Prima-facie, in light of the judgement of the Supreme Court in case of V N Devadoss (supra) Page 26 of 28 Downloaded on : Fri Feb 24 20:39:33 IST 2023 C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023 the observations of this Court in Bajaj Col Chem (supra) may not be binding on this Court.
17. For the aforesaid reasons, the order dated 30.05.2015 passed by the respondent no.1 and the order dated 24.02.2014 passed by the respondent no.2 are quashed and set aside. The amount of Rs.28,94,085/- and the penalty of Rs.250/- is directed to be refunded to the petitioner within a period of 10 weeks from the date of receipt of copy of this order.
18. So far as the issue of interest is concerned, at this stage Mr.Asthavadi would rely on the decision in case of Alok Shanker Pande v.
Union of India reported in 2007 LawSuit (SC) 154, particularly Para 9 thereof suggesting that there is misconception about interest. Interest is not a penalty or punishment at all. It is normally Page 27 of 28 Downloaded on : Fri Feb 24 20:39:33 IST 2023 C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023 acquisition of capital. Here is a case where on an interpretation of the provisions of the Act, the authorities in their wisdom may be which now is subsequently held to be erroneous have passed an order. The remedy has been availed of by the petitioner, for which, the petitioner has earned the amount of refund. Therefore, no interest as prayed for can be granted. Petition is allowed to the aforesaid extent. Rule is made absolute accordingly. No costs.
(BIREN VAISHNAV, J) ANKIT SHAH Page 28 of 28 Downloaded on : Fri Feb 24 20:39:33 IST 2023