Allowed

D C Model High School v. the State of Hp and Others

Himachal Pradesh HC12 Sept 2024CWP/558/2024

Case brief

AI extract

What is this about?

The High Court allowed a writ petition seeking refund of stamp duty and registration charges paid by DC Model High School for registering a sale certificate obtained via SARFAESI auction. Relying on Supreme Court precedents, the Court held that such certificates do not require stamp duty or full registration, directing the refund of amounts paid. Quality: ok

What did the court decide?

Respondents directed to refund stamp duty and registration charges paid by the petitioner for registering the sale certificate within three months.

D C Model High School Vs the State of Hp and… — Property and Title | Himachal Pradesh HC (2024)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CWP No. 558/2024 Decided on: 12.09.2024

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D C Model High School …Petitioner

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Versus

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State of H.P. & Ors. .…Respondents.

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………………………………………………………………………………. Coram

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Ms. Justice Jyotsna Rewal Dua, Judge.

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Whether approved for reporting?¹

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For the petitioner: Mr. T.S. Chauhan, Advocate. For the respondents: Mr. Anup Rattan, Advocate General with Mr. Y.P.S. Dhaulta, Additional Advocate General.

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Jyotsna Rewal Dua , J

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The petitioner seeks refund of the stamp duty and registration charges paid by it towards registration of the sale certificate/sale deed issued in its favour.

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2. The case pleaded by the petitioner as highlighted by its learned counsel is that the subject property mentioned in the petition came to the petitioner under an auction conducted by Punjab National Bank under the provisions of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 (In short SARFAESI Act). The sale of immovable

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1 Whether reporters of the local papers may be allowed to see the judgment? yes

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property in favour of the petitioner was confirmed by the Bank on 22.09.2021. The sale certificate was issued to the petitioner of the subject land on 07.10.2021. The Bank handed-over physical possession of the property to the petitioner on 25.11.2021. The petitioner thereafter made written request to the respondent-revenue officials on 23.10.2021 and thereafter also for execution and registration of sale deed without affixing stamp duty and payment of registration charges. The respondent did not relent. Repeated requests/representations of the petitioner did not get the desired results, hence under compulsion, the petitioner was forced to pay the stamp duty and registration charges in respect of the land in question. The petitioner thereafter made fresh representation to the respondents seeking refund of the stamp duty and registration charges paid by it. The refund was claimed on the strength of judicial pronouncements on the subject matter. The respondent did not relent, hence, this writ petition.

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2. Heard learned counsel on both sides and considered the case record.

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3. The issue raised in this writ petition is no longer resintegra. Hon’ble Apex Court in Inspector General of Registration & Anr. Vs. G. Madhurambal & Anr.² affirmed the view taken by the Madras High Court and Allahabad High Court that certificate of sale

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2 Appeal (C) No.(s) 16949/2022, decided on 11.11.2022

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cannot be regarded as a conveyance subject to stamp duty. That a sale certificate is not an instrument of the kind mentioned in Clause (b) of Section 17 of the Indian Stamp Act, 1877 and is also not compulsorily registrable.

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The above decision was followed by the Division Bench of this Court in Ajay Kumar & Ors. Vs. State of H.P. & Ors.³ wherein the question involved was whether the respondents can insist upon payment/deposit of stamp duty and registration fee as a pre-requisite for registering the sale certificate/sale deed. The question was answered by placing reliance upon the decision rendered in Inspector General of Registration & Madhurambal & Anr.² as under:-

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“10. The issue is no longer res integra in light of the exposition of law made in the judgment dated 11.11.2022 passed by Hon'ble Supreme Court in a bunch of Special Leave Petitions (Civil) with Petition for Special Leave Appeal (c) No. 16949 of 2022 as lead case, titled The Inspector General of Registration & Anr. vs. G. Madhurambal & Anr., relevant observations whereof read as under:-

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“Learned counsel for the petitioner(s) has made a valiant endeavor to persuade us to interfere with the impugned judgment(s) but not successfully. It is logically so as this issue has been repeatedly settled and if one may say, a consistent view followed for the last 150 years. We may refer to the judgments by the Madras High Court in the Board of Revenue No.2 of 1875 (In Re: Case Referred) dated 19.10.1875 opining that a certificate of sale cannot

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32023:HHC:7911-DB CWP No.5748/2021 decided on 17.07.2023

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be regarded as a conveyance subject to stamp duty, by the Allahabad High Court in Adit Ram v. Masarat-un-Nissa (Manu/UP/0089/1883) opining that a sale certificate is not an instrument of the kind mentioned in clause (b) of Section 17 of Act III of 1877 and is not compulsorily registrable and this Court’s view in Esjaypee Impex Pvt. Ltd. v. Asst. General Manager and Authorised Officer, Canara Bank ((2021)11 SCC 537) opining 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 Purchase with a copy forwarded to the Registering Authorities to be filed in Book I as per Section 89 of the Registration Act and order of this Court in M.A. No.19262/2021 in SLP(C) No.29752/2019 dated 29.10.2021 opining that once a direction is issued for the duly validated certificate to be issued 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, it has the same effect as registration and obviates the requirement of any further action.”

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11. Once the Hon’ble Supreme Court has endorsed the view taken by the Madras High Court that a certificate of sale cannot be regarded as a conveyance subject to stamp duty and further view of Allahabad High Court that sale certificate is not an instrument of the kind mentioned in clause (b) of Section 17 of Act III of 1877 and is not registrable and further taking view from the judgment rendered by the Hon’ble Supreme Court itself in Esjaypee Impex Pvt. Ltd. v. Asst. General Manager and Authorised Officer, Canara Bank ((2021)11 SCC 537) opining 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 Authorized 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

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Registration Act, we have no option, but to allow the instant petition. Ordered accordingly. 12. Consequently, respondent No. 3 is directed to register the sale certificate dated 15.12.2018 (Annexure P-1) issued by the Syndicate Bank in favour of the petitioners without insisting for affixation of stamp duty and thereafter enter the consequent mutation in favour of the petitioners. Needful be done within a period of four weeks from today.”

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In Mohan Singh Guleria Vs. State of H.P. & Ors.⁴ the

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petitioner (therein) was the highest bidder in an auction of immovable property conducted by the bank under the provisions of SARFAESI Act. The sale was confirmed and a sale certificate was issued in favour of the petitioner therein. However, the respondents therein had refused to register the sale certificate without payment of stamp duty as applicable to the registration of a sale deed. The petitioner approached the Court on the grounds that the refusal to register the sale certificate issued in his favour without deposit of stamp duty was illegal and against the provisions of the Registration Act as also the Stamp Act. Placing reliance upon the aforesaid decision of the Hon’ble Apex Court in Inspector General of Registration & Anr.² the petition was allowed and concerned officials were directed to register the sale certificate issued by the bank in favour of petitioner and enter the consequent mutation in favour of the petitioner without insisting for affixation of stamp duty.

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4CWP No. 221/2019, decided on 28.03.2023

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The aforesaid decision has been challenged by the respondent-State before the Hon’ble Apex Court in SLP No. 1071/2024. However, it is admitted position of the parties that there is no interim order passed against the judgment by the Hon’ble Apex Court.

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4. In view of the aforesaid judicial pronouncements, the writ petition has to be allowed. It is accordingly allowed. The respondents are directed to refund the stamp duty and registration charges paid by the petitioner for registering the sale certificate issued in its favour for the subject land, within a period of three months. Pending miscellaneous application(s), if any, shall also stand

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disposed of.

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Jyotsna Rewal Dua Judge

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12^th September, 2024(rohit)

D C Model High School v. the State of Hp and Others

Case brief

What is this about?

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D C Model High School v. the State of Hp and Others

Case brief

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