Full Judgment Text
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REPORTABLE
2024 INSC 443
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2024
(arising out of SLP (C) No. 4111 of 2020)
BANO SAIYED PARWAZ …. APPELLANT
VERSUS
CHIEF CONTROLLING REVENUE
AUTHORITY AND INSPECTOR
GENERAL OF REGISTRATION
AND CONTROLLER OF STAMPS & ORS. ...RESPONDENTS
J U D G M E N T
PRASHANT KUMAR MISHRA, J.
Leave granted.
2. The instant appeal is directed against the judgment and
order impugned dated 02.08.2019 passed by the High Court of
Judicature at Bombay in Writ Petition No. 281 of 2019 whereby
Signature Not Verified
the High Court, dismissed the appellant’s demand for refund of
Digitally signed by
Deepak Joshi
Date: 2024.05.17
18:26:07 IST
Reason:
Stamp Duty paid towards an un-executed conveyance deed. In
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effect, the impugned order has upheld the orders of respondent
nos. 1 and 2 dated 09.06.2015 & 25.02.2016 rejecting the
aforesaid demand of the appellant.
3. Briefly stated, the facts of the matter are that the appellant
agreed to purchase the property bearing C.T.S. No.340.340/1 to
340/14 of Kurla-1 Division situated lying and being Fitwalla
Cottage, Fitwalla Compound Bazaar Ward, Old Agra Road, Kurla
(West), Mumbai-400070 from the Vendor - Mohammed Hanif
Ahmed Fitwala and to that effect, they prepared a deed of
conveyance which was sent for adjudication to respondent no.1
on 07.05.2014 for payment of stamp duty, which was assessed
at Rs. Rs.25,34,350 (Rupees Twenty-Five Lakhs Thirty-Four
Thousand Three Hundred Fifty Only). Accordingly, the appellant
paid this sum and purchased the stamp duty on 13.05.2014 for
registration of conveyance deed.
4. Albeit, the stamp duty was paid by the appellant to
respondent no.1 on 13.05.2014, said conveyance deed was not
lodged for registration as the vendor of the appellant by playing
fraud on the appellant had earlier sold the said property to a
third party in 1992. However, before executing the said
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conveyance deed, the appellant had given a public notice but
nobody objected to the said transaction. Thereafter, in view of
these facts, the appellant decided to cancel the said transaction,
for which he tried to contact the said vendor but he was not
available, compelling the appellant to file a complaint with the
Police Authority. Thereafter, the Vendor executed the
cancellation deed on 13.11.2014. However, the appellant had on
22.10.2014 already applied online for refund of the said amount
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as per Section 48 of the Maharashtra Stamp Act, 1958 and had
filed written application on 06.12.2014 along with the
documents. The appellant’s case was rejected by respondent
nos.1 & 2 on the ground that the application filed by her was
beyond the limitation period as per Section 48 of the Act.
5. The learned counsel for the appellant submits that the
appellant’s case is squarely covered within the circumstances
laid down in Section 47 (c) [1] and [5] of the Act and Rules 21
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and 22A of the Bombay Stamp Rules, 1939 which read as
under:
“47. (c) the stamp used for an instrument executed by any party
thereto which—
1. ‘Act’
2. ‘Rules’
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(1) has been afterwards found 1[by the party] to be
absolutely void in law from the beginning; 2[1A] has been
afterwards found by the Court, to be absolutely void from the
beginning under section 31 of the Specific Relief Act, 1963;
*
(5) by reason of the refusal of any person to act under the
same, or to advance any money intended to be thereby
secured, or by the refusal or non-acceptance of any office
thereby granted, totally fails of the intended purpose;”
“21. Evidence as to circumstances of claim to refund or
renewal.
The collector may require any person claiming a refund or
renewal under chapter v of the Act, or his duly authorized
agent, to make oral deposition oath or affirmation, or to file
an affidavit, setting forth the circumstances under which
the claim has arisen, and may also' if he thinks fit, call for
the evidence of witnesses in support of the statement set
forth in any such deposition or affidavit.
NOTES
Claim for refund of stamp duty.
Under rule 21 where a claim for refund of stamp duty is
made, the procedure laid down under the rule to take
evidence by the Collector. Accordingly, the Collector may
direct any person claiming a refund under Chapter v to
make an oral deposition on oath or affirmation or to file an
affidavit, setting forth the circumstances under which the
claim has arisen and if he thinks fit call all evidence of
witnesses in support of the statement set forth in any such
deposition or affidavit. Rule 22A deals with matters relating
deducting to deduction to be made from the amount of
spoiled or misused or unused stamps. The word “spoiled
stamps” is not expressly defined either in the Act or in the
Rules but Section 47 describe instances of such spoiled
stamps for the purpose of claiming refund.
22A, Rule of deduction from the amount of stamps,
allowance for spoiled, misused or unused etc.
When any person is in possession of –
(a) spoiled stamps, under section 47, misused stamps under
section 50, or printed forms on- stamped paper no longer
required under section 49 and he applies to the collector for
making allowance in respect or the same.
(b) a stamp or stamps which have not been spoiled or
rendered unfit or useless for the purpose intended, but, for
which he has no immediate use and he delivers up the same
to the collector for cancellation, then the collector may, give
in lieu thereof may repay to such person, the same, value in
money of such stamp or stamps or printed forms on stamped
papers, after deducting rupees ten for each stamp or printed
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form on stamped paper or amount equal to (ten per cent) of
the value of such stamp or such printed form, whichever is
more”.
6. The learned counsel for the appellant further submitted that
the law of refund embodied in Sections 47 and 48 of the Act and
Rules 21 and 22A of the Rules, envisages two separate and
distinct stages for refund of stamp duty i.e., i) making of
application for refund within six months and ii) holding of enquiry
and leading of evidence as per Rules made by the State
Government, to satisfy the Collector that case of refund is
covered by one or more of the circumstances (a) (b) and (c) [1]
to [8] set out in Section 47 of the Act.
7. The learned counsel for the appellant would further submit
that the respondent no. 2 and the High Court as well
misconstrued the provisions of Sections 47 & 48 of the Act and
has also overlooked Rules 21 and 22A of the Rules. In as much
as, the appellant’s application was within time and the same
could not have been rejected as barred by limitation.
8. Per contra, the learned counsel for the respondents
vehemently opposed the present appeal and submitted that in
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the present proceeding though the appellant filed application for
refund of stamp duty on 22.10.2014, but the cancellation deed
executed between the appellant and the seller of the said
property was dated 13.11.2014 i.e., beyond the limitation period
of six months from the date of purchase of stamp duty, after
cancellation of those documents, as prescribed under Section 48
of the Act. As per Section 48 of the Act, the last date for applying
for the refund was 12.11.2014, therefore, the application filed
by the appellant was beyond the period of limitation.
9. We have heard both the counsel for the parties and perused
the pleadings.
10. Admittedly, the appellant being a bonafide purchaser is a
victim of fraud played upon her by the vendor. She has paid a
sum of Rs.25,34,400/- towards stamp duty for registration of
conveyance deed. However, the conveyance deed was not lodged
for registration as she become aware of the fraud played by the
Vendor and thereafter, she immediately applied online on
22.10.2014 for refund of the stamp duty. Her effort to contact
the vendor to execute a cancellation deed did not fructify
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immediately because of unavailability of the Vendor which Led
to a police complaint and it is only at this point of time, due to
intervention of the Police, the vendor could be traced, and a
cancellation deed was executed on 13.11.2014.
11. From the above admitted facts, prima facie it appears that
the appellant herein was pursuing her remedies in law and she
was not lax in her approach towards seeking refund of the said
stamp duty paid by her and she has been denied the same only
on the ground of limitation.
12. The finding returned by the High Court in the impugned
order that the appellant’s application for refund dated
22.10.2014 is not maintainable in law as it has been filed before
the cancellation of the conveyance deed dated 13.11.2014 is
misplaced in so far as while submitting the online application
there was no caution to the appellant that all of the documents
and materials for the satisfaction of the Collector should be filed
with the application- either online or hard copy- itself and the
finding of the learned single judge is contrary to the
requirements stipulated by Sections 47 & 48 which envisages
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only the application for relief under Section 47 of the Act to be
made within six months of the date of the instrument which
prima facie is appeared to have been done by the appellant in
the present case.
13. The evidence required and enquiry to be made in terms of
Section 47 of the Act is a separate process altogether and
apropos circumstances for refund under Section 47 (c) [1] & [5]
of the Act, evidence is not required to be filed along with the
application- either the online application or separately on the
same day by way of hard copy.
14. In Committee-GFIL v. Libra Buildtech Private Limited
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& Ors. , wherein the issue of refund of stamp duty under the
same Act was in question, this Court has observed and held inter
alia as under:
“29. This case reminds us of the observations made by M.C.
Chagla, C.J. in Firm Kaluram Sitaram v. Dominion of
India [1953 SCC OnLine Bom 39 : AIR 1954 Bom 50] . The
learned Chief Justice in his distinctive style of writing observed
as under in para 19: (Firm Kaluram case, SCC OnLine Bom)
“19. … we have often had occasion to say that when the State
deals with a citizen it should not ordinarily rely on
technicalities, and if the State is satisfied that the case of the
citizen is a just one, even though legal defences may be open
3. (2015) 16 SCC 31
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to it, it must act, as has been said by eminent Judges, as an
honest person.”
We are in respectful agreement with the aforementioned
observations, as in our considered opinion these observations
apply fully to the case in hand against the State because
except the plea of limitation, the State has no case to defend
their action.
xxx xxx xxx
32. In our considered opinion, even if we find that applications
for claiming refund of stamp duty amount were rightly
dismissed by the SDM on the ground of limitation prescribed
under Section 50 of the Act yet keeping in view the settled
principle of law that the expiry of period of limitation
prescribed under any law may bar the remedy but not the
right, the applicants are still held entitled to claim the refund
of stamp duty amount on the basis of the grounds mentioned
above. In other words, notwithstanding dismissal of the
applications on the ground of limitation, we are of the view
that the applicants are entitled to claim the refund of stamp
duty amount from the State in the light of the grounds
mentioned above.”
15. The legal position is thus settled in Libra Buildtech (supra)
that when the State deals with a citizen it should not ordinarily
rely on technicalities, even though such defences may be open
to it.
16. We draw weight from the aforesaid judgment and are of the
opinion that the case of the appellant is fit for refund of stamp
duty in so far as it is settled law that the period of expiry of
limitation prescribed under any law may bar the remedy but not
the right and the appellant is held entitled to claim the refund of
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stamp duty amount on the basis of the fact that the appellant
has been pursuing her case as per remedies available to her in
law and she should not be denied the said refund merely on
technicalities as the case of the appellant is a just one wherein
she had in bonafide paid the stamp duty for registration but fraud
was played on her by the Vendor which led to the cancellation of
the conveyance deed.
17. For the foregoing reasons, the appeal is allowed, and we
set aside the impugned order dated 02.08.2019 as well as orders
of respondent nos.1 and 2 dated 09.06.2015 and 25.02.2016
and direct the State to refund the said stamp duty amount of Rs.
25,34,400/- deposited by the appellant.
…………………………………….. J.
(B.R. GAVAI)
.......………………………………. J.
(PRASHANT KUMAR MISHRA)
NEW DELHI;
May 17, 2024.