Allowed

Govind Jivabhai Sabhaya Since Decd. through His Heirs and Legal Representatives v. State of Gujarat

Gujarat HC15 Nov 2022CA/1760/2022

Case brief

AI extract

What is this about?

High Court of Gujarat allowed Letters Patent Appeal against Single Judge scaling rejection of refund claim for stamp papers. Court held Collector erred by ignoring Section 47(c)(3) regarding refusal to execute deed, remitting matter for fresh consideration.

What did the court decide?

Single Judge's order set aside; matter remitted to 6th respondent (Collector) for fresh consideration of refund claim under Section 47(c)(3). No interest awarded.

Govind Jivabhai Sabhaya Since Decd. through His Heirs and… — Property and Title | Gujarat HC (2022)

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C/CA/1760/2022 ORDER DATED: 15/11/2022

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/CIVIL APPLICATION NO. 1760 of 2022 In R/LETTERS PATENT APPEAL NO. 1430 of 2022 With

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R/LETTERS PATENT APPEAL NO. 1430 of 2022 In SPECIAL CIVIL APPLICATION NO. 15237 of 2019

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============================================= GOVIND JIVABHAI SABHAYA SINCE DECD. THROUGH HIS HEIRS AND LEGAL REPRESENTATIVES

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Versus

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STATE OF GUJARAT

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============================================= Appearance:

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MR BHUVNESH GEHLOT FOR MR NK MAJMUDAR (430) for Applicant No. 1 for the Respondent(s) No. 2,3,4,5,6 MR KM ANTANI, ASST. GOVERNMENT PLEADER for Respondent No. 1

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=============================================

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CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR

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and

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HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

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Date : 15/11/2022 ORAL ORDER

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(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)

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ORDER IN CIVIL APPLICATION No.1760 OF 2022 :

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1. Having heard the learned advocates appearing

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for the parties and considering the averments made in the application, we are of the considered view that delay of 151 days occurred in preferring the Letters Patent Appeal deserves to be condoned and accordingly, it stands condoned. Civil Application No.1760 of 2022 stands allowed.

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Page 1 of 8

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C/CA/1760/2022 ORDER DATED: 15/11/2022

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ORDER IN LETTERS PATENT APPEAL No.1430 OF 2022 :

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The Letters Patent Appeal lays a challenge to the order dated 13.09.2019 passed in Special Civil Application No.15237 of 2019 whereunder the communication dated 08.11.2012 issued by the respondent rejecting the request of petitioner for refund of the amount towards unutilized stamp papers came to be rejected.

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The writ applicants Shri Govind Jivabhai Sabhaya and late Shri Kirtikumar Mohanlal Kabrawala had purchased stamp papers on 16.05.2012 and 18.05.2012 for the purpose of obtaining a registered Sale Deed for a sum of Rs.2,28,000/- and Rs.1,00,500/-. On account of the vendors having refused to execute the Sale Deed and on account of transaction having failed, applicants are said to have submitted an application to the respondent authorities for refund of the value of unutilized stamp papers which remained unused or unutilized by submitting applications on 12.07.2012 and

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Page 2 of 8

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C/CA/1760/2022 ORDER DATED: 15/11/2022

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11.09.2012. Said applications came to be rejected on the ground that said documents have been duly signed and as such, applications for refund cannot be entertained.

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Being aggrieved by the said orders, petitioners approached the learned Single Judge by filing Special Civil Application No.15237 of 2019, who after having noticed that petitioners had not availed the alternate remedy by filing a reference or revision and that too against the decision of the year 2012 has dismissed the application. It was also noticed by learned Single Judge that Section 53 of the Gujarat Stamp Act, 1958, provides for limitation within which the revision petition had to be filed against the orders passed under the provisions of Chapter-V and as such held that belated challenge to the order before this Court under Article 226 is liable to be rejected and accordingly has rejected the application.

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We have heard the arguments of Mr.Bhuvnesh Gehlot, learned advocate appearing for appellant and Mr.K.M.Antani, learned Assistant Government Pleader

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Page 3 of 8

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C/CA/1760/2022 ORDER DATED: 15/11/2022

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who has accepted notice for respondent Nos.1 to 6 and has waived notice on their behalf. By reiterating the grounds urged before the learned Single Judge, appellant’s counsel would pray for the impugned orders being set aside. Per contra, learned Assistant Government Pleader would support the impugned orders.

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Having heard the learned advocates appearing for parties and on perusal of impugned orders namely the orders impugned before the learned Single Judge, it would clearly emerge therefrom that applications dated 12.07.2012 and 11.09.2012 came to be filed for refund of the stamp papers which had been purchased in a sum of Rs.2,28,000/- and Rs.1,00,500/-. According to the applicants, said transaction of sale could not be completed or in other words, said transaction did not take place on account of the vendors having refused to execute the Sale Deed or in other words, they had turned back from their commitment and as such, they contended that Sale Deed could not be executed and registered. Hence, they sought for refund of the value of the stamp papers.

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Page 4 of 8

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C/CA/1760/2022 ORDER DATED: 15/11/2022

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Section 47 of the Gujarat Stamp Act, 1958, provides for an inquiry to be made by the Collector when an application is filed for impressed stamp spoiled sought to be produced before him and refund is sought on any of the grounds enumerated in Clause (a) to (c) thereunder. As could be seen from the impugned order, the applications have been rejected under Section 47(b) on the ground that document was signed or executed by a party to the sale transaction. However, sub-clause (3) of Clause (c) of Section 47 has not been looked into by the said authority, which provision reads as under :

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“ 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

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(a) xxxxxx

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(b) xxxxxx

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(c) the stamp used for an instrument executed by any party thereto which

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Page 5 of 8

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C/CA/1760/2022 ORDER DATED: 15/11/2022

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(1) has been afterwards found to be absolutely void in law from the beginning;

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(2) has been afterwards found unfit, by reason of any error or mistake therein, for the purpose originally intended;

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(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; ”

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(emphasis supplied)

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When there is refusal by a person (vendor) to execute the deed of sale, it results in sale transaction not being completed and thereby give cause of action to the applicant to seek for refund of amount expended for purchase of stamp-paper. As noticed hereinabove, this provision has not been looked into or in other words, a complete go-by is given to the same. Hence, impugned order came to be passed. Section 51 enables the Collector that where allowance is allowed to take recourse to the contingencies prescribed under Clause (a) to (c) thereunder. It is not the case of the revenue that applications filed by applicants for refund was beyond the

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Page 6 of 8

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C/CA/1760/2022 ORDER DATED: 15/11/2022

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period prescribed under Section 48. On the other hand, it is the specific case of the revenue that unused stamp papers which were presented for refund contained signatures of few persons. In other words, sub-clause (3) of clause (c) of Section 47 has not been looked into by the authorities while examining the claim. It is the due satisfaction of the Collector which has to be recorded about there being no legal proceedings commenced in which the instrument could or would have been given or offered in evidence which is to be cancelled was the one which was required to be arrived at. Said exercise having not been undertaken, we are of the considered view that matter requires reconsideration by respondent No.6.

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Hence, we proceed to pass the following

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ORDER

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(i) Appeal is allowed.

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(ii) The order of the learned Single Judge dated 13.09.2019 passed in Special Civil Application No.15237 of 2019 is set aside.

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Page 7 of 8

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C/CA/1760/2022 ORDER DATED: 15/11/2022

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Special Civil Application No.15237 of 2019 is allowed in part and impugned orders dated 08.11.2012 and 11.10.2012 (Annexure-A) are hereby quashed and the matter is remitted back to 6^th respondent for being considered afresh, keeping in mind the observations made hereinabove.

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(iii) It is made clear that in the event of Collector arriving at a conclusion that appellant is entitled for refund, appellant would not be entitled to claim any interest inasmuch as impugned orders which had been assailed before the learned Single Judge was challenged after a period of seven years.

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(iv) Pending application/s, if any, stands consigned to records.

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(ARAVIND KUMAR, CJ)

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(ASHUTOSH J. SHASTRI, J)

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GAURAV J THAKER

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Page 8 of 8

Govind Jivabhai Sabhaya Since Decd. through His Heirs and Legal Representatives v. State of Gujarat

Case brief

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Govind Jivabhai Sabhaya Since Decd. through His Heirs and Legal Representatives v. State of Gujarat

Case brief

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