Allowed

R.Krishnamoorthy, v. Joint II Sub Registrar

Madras HC19 Jul 2018WP/16586/2018

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging an order imposing stamp duty on a Power of Attorney. Relying on the respondent's unconditional apology and finding the impugned order automatic, the Court set aside the requirement to pay excess duty and directed the registration of the instrument forthwith.

What did the court decide?

The impugned order is set aside; the Writ Petition is allowed; the respondent is directed to accept and register the instrument forthwith.

R.Krishnamoorthy, Vs Joint II Sub Registrar — Writ and Judicial Review | Madras HC (2018)

¶1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶2

DATED : 19.07.2018

¶3

CORAM

¶4

THE HONOURABLE MR.JUSTICE T.RAJA

¶5

W.P.No.16586 of 2018 and W.M.P.No.19759 of 2018

¶6

R.Krishnamoorthy .. Petitioner

¶7

Vs. The Joint II Sub Registrar, Tiruppur, Tiruppur – 641 602. .. Respondent

¶8

Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of certiorarified Mandamus, calling for the records and quash the order dated 22.06.2018 passed in Na.Ka.No.161/2018 on the file of the respondent and consequently, direct the respondent to release the General Power of Attorney Deed dated 22.12.2017 registered as Pending Document No.61 of 2017 on the file of the respondent.

¶9

For Petitioner : Mr.K.Surendar For Respondent : Mr.T.M.Pappiah, Special Government Pleader O R D E R

¶10

This Writ Petition has been filed challenging the impugned order dated 22.12.2017 issued by the respondent calling upon the petitioner to pay Rs.7,70,389/-, which is 4% of the market value of the property of Rs.1,92,62,232/-, on the premise that the Power of Attorney sought to be executed by the parties has mentioned an irrevocable clause, which according to the respondent falls under Article 48(e) of Schedule I of the Indian Stamp Act.

¶11

2.This Court by an order dated 05.07.2018 had directed the respondent to appear in person and explain as to why a direction should not be issued to the competent authority to initiate departmental proceedings for imposition of a major penalty against him for his misuse of the authority.

¶12

3.Mr.T.M.Pappiah, learned Special Government Pleader appearing for the respondent submitted that the respondent, Mr.C.Ananthakumar, Joint II Sub Registrar, Tirupur, is present in the Court and has filed an affidavit tendering unconditional apology, which is extracted hereunder: https://hcservices.ecourts.gov.in/hcservices/

¶13

“2.I humbly submit that a General Power of Attorney Deed dated 22.12.2017, executed by one Subramaniam in favour of the petitioner was presented for registration on the same day. The Deed bore a Stamp Duty of Rs.100/- and the Registration Fee of Rs.10,150/- was paid at the time of presentation.

¶14

3.I humbly submit that when any document is presented for registration before the sub registrar office, the nature and the Stamp Duty for a document is decided based on the recitals in the document presented for registration. The instant document contains the following recitals.

¶15

“,e;j gtu; gj;jpuj;ij ehd; vf;fhuzk; bfhz;Lk; ,uj;J bra;tjpy;iy vdt[k;. mt;thW ,uj;J bra;tjhf ,Ue;jhy; ,UtUk; nru;e;J rk;kjpj;J ,uj;Jg; gj;jpuk; vGjpf; bfhs;s ntz;Lk;/”

¶16

This para forbids the Principal from unilateral Cancellation of the Deed which tends to adjudicate that this is an irrevocable Power of Attorney. Section 201 of the Indian Contract Act stipulates the norms for cancellation of a Power of Attorney. For ready reference that section is reproduced herein.

¶17

Section 201: Termination of Agency

¶18

“An agency is terminated by the principal revoking his authority; or by the agent renouncing the business of the agency; or by the business of the agency being completed; or by either the principal or agent dying or becoming of unsound mind; or by the principal being adjudicated an insolvent under the provisions of any act for the time being in force for the relief of insolvent debtors.”

¶19

This Section vests the power to cancel the Power of Attorney unilaterally without the consent of the Agent.

¶20

4.I humbly submit that as per the recitals of the said document the power of the Principal is curtailed. Under any normal circumstances principal would not agree for such terms unless there is a interest vested over the property which enables the registering authority to conclude that there is an implied interest over the subject matter of the document. Therefore, the above quoted recitals prove that the agent has an interest in the subject matter as such is a Deed of irrevocable power of attorney. As per Section 202 of the Indian Contract Act and

¶21

https://hcservices.ecourts.gov.in/hcservices/

¶22

Standing Order 362 of the Registration Department, a Power of Attorney coupled with the interest of the agent is irrevocable. Thus, this deed evidently is an irrevocable Power of Attorney which falls under Article 48(e) of the Indian Stamp Act and to be stamped therefor.

¶23

5.The respondent humbly submits that Stamp Duty at 4% is to be levied for the instant document as per that Article 48(e). As the consideration was not distinct in that deed the market value of the property was taken for calculation as per Section 27 of the Indian Stamp Act.

¶24

6.These facts were expressed in person to the parties at the time of presentation of the document itself and as they were not prepared to pay the requisite stamp duty the instant document was assigned P.61/2017. Consequently, the show cause notice was issued to the parties to pay the deficit stamp duty. The petitioner has instead of replying to the said notice with relevant facts, had invoked the Writ jurisdiction before this Hon'ble High Court.

¶25

7.The false allegation that the respondent demanded more money in cash is utterly baseless and frivolous and the petitioner is put to strict proof of the same. The petitioner has come up with this allegation only to invoke the writ jurisdiction of this Hon'ble High Court.

¶26

8.I humbly submit that the petitioner has remedies under Indian Stamp Act, 1899. He could have preferred an appeal to the District Registrar (Admin) and to the Inspector General of Registration, the Chief Controlling Revenue Authority (CCRA). Instead he has bypassed all the legal remedies available and has straight away filed this Writ Petition.

¶27

9.I humbly submit that I have discharged the official duty cast on me and acted in at most good faith. Section 86 of the Registration Act stipulates that “Registering Officer is not liable for thing bonafide done or refused in his official capacity. No Registering Officer shall be liable to any suit, claim or demand by reason of anything in good faith done or refused in his official capacity.”

¶28

4.The learned Special Government Pleader further submitted that the Standing Order 362 – Registration Department shows that if the Power of Attorney consists of https://hcservices.ecourts.gov.in/hcservices/ irrevocable clause stating that the Power of Attorney would

¶29

not be revoked at any point of time, then such document always falls under Article 48 (e) of Schedule I and in any event, an appeal provision is available, hence, no Writ Petition is maintainable.

¶30

5.Above all, as the Power of Attorney consists of irrevocable clause, accepting the unconditional apology tendered by the respondent, this Court is inclined to set aside the impugned order.

¶31

6.In view of the above, the impugned order is set aside and the Writ Petition is allowed. The respondent is directed to accept the instrument from the petitioner and register the same forthwith. No costs.

¶32

Sd/-
Assistant Registrar
//True Copy//
Sub Assistant Registrar
VA
To
The Joint II Sub Registrar,
Tiruppur, Tiruppur – 641 602.
+1cc to Mr.K.SURENDAR, Advocate, S.R.No.48574
+1cc to the Government Pleader, S.R.No.48936
W.P.No.16586 of 2018 and
W.M.P.No.19759 of 2018
CS-VI
SMI/03.08.2018

¶33

https://hcservices.ecourts.gov.in/hcservices/

R.Krishnamoorthy, v. Joint II Sub Registrar

Case brief

What is this about?

What did the court decide?

R.Krishnamoorthy, v. Joint II Sub Registrar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

G.Sekaran Vs The Inspector of Police

K.Elumalai, Vs The Commissioner

P.Jayaprakasam, Vs The Tahsildar

G.A. Bushra Shabnam, Vs Dr. K. Gopal, I.A.S.

M. Vijaykumar Vs K.Gopal, IAS

P.Alliraj Vs Mr.Sunil Baalivaal