1. Heard Mr. Patel, learned advocate for the petitioner and Mr.Shah, learned AGP, for the respondents.
2. The petitioner - Bank has brought under challenge order dated 21.4.2010 passed by the Dy. Collector (Stamps) and the order dated 15.2.2012 passed by the Chief Controller (Stamps), Revenue Authority, under the provisions of the Bombay Stamp Act, 1958.
3. From the facts stated by the petitioner, it transpires that the original owner of the property had entered into hypothecation agreement in question with the petitioner - Bank while availing loan facility. It appears that subsequently, the borrower - original owner defaulted. The petitioner - Bank executed the hypothecation deed by way of Summary Lavad Suit. The suit was decreed in favour of the petitioner - Bank as a result of which, the petitioner - Bank was HC-NIC Page 1 of 5 Created On Sun Feb 28 01:00:38 IST 2016 SCA/7103/2012 2/5 ORDER authorized to auction sale the property in question and to realize its dues.
3.1 Consequently, the petitioner - Bank proceeded with the auction and the property in question was auction sold.
3.2 At this stage, it is relevant to mention that the petitioner Bank and the auction purchaser entered into sale deed which was submitted for registration. It is also claimed that in respect of the said sale deed, requisite stamp duty was paid.
3.3 There is no dispute between the parties on this count and, prima facie, there does not appear to be any demand also from the respondents in respect of the conveyance deed entered into between the petitioner - Bank and the auction purchaser.
3.4 However, subsequently in September 2009, respondent No.3 issued show cause notice under section 39(1)(b) of the Act calling for petitioner's explanation for alleged non-payment of stamp duty in respect of the transaction said to have occurred between the petitioner Bank and the original borrower. It appears that the respondent authority being of the view that upon default in making payment by original borrower, when the petitioner Bank took action of disposing the property in question by way of auction sale pursuant to the award in Lavad case, the bank was required to take possession of the property in question so that it can be sold by the bank. According to the respondents, the petitioner Bank had HC-NIC Page 2 of 5 Created On Sun Feb 28 01:00:38 IST 2016 SCA/7103/2012 3/5 ORDER subsequently acquired title and possession of the property in question which tantamounts to independent transaction of sale between the petitioner and the original borrower and that, therefore, stamp duty ought to have been paid on the said transaction. On such premise, the aforesaid notice came to be issued.
4. Therefore, the question has arisen in respect of the transfer of title in the property after the judgment and decree passed by the Lavad Court on the strength of the mortgage deed which was executed between the borrower-owner and the Bank, however, duty was paid considering the document as mortgage deed and not sale-deed.
4.1 The question which arises is as to whether the petitioner - Bank is required to pay any stamp duty on the ground that the title in the property stood transferred to the bank when it took possession of the property upon rendition of the judgment allowing bank to realize the mortgage and whether such action amounts to sale/transfer of property chargeable for stamp duty.
4.2 The question requires consideration hence, RULE. Mr. Patel, learned AGP waives service of notice of rule on behalf of the respondents.
5. It appears from the record that the petitioner had contested the above-mentioned notice in view of which Deputy Collector passed order against the petitioner Bank. It also appears that the petitioner Bank had carried the said order in appeal HC-NIC Page 3 of 5 Created On Sun Feb 28 01:00:38 IST 2016 SCA/7103/2012 4/5 ORDER under Section 53(1) of the Act, who, by the impugned order dated 15.2.2012, rejected the appeal.
5.1 It is claimed by the petitioner Bank that at the time of preferring application under Section 53 of the Act, it had complied the conditions requiring pre- deposit of 25% of the adjudicated demand.
6. Mr. Patel, learned advocate for the petitioner, has submitted that the demand has been raised against the petitioner - Bank. He has disputed the demand and submitted that Article 20 of Schedule I of the Bombay Stamp Act, would not affect the present case. He has submitted that after the order dated 26.3.2010, the respondent authorities have issued attachment warrant.
7. According to the petitioner, the adjudicating authority determined the amount towards stamp duty at Rs.25,000/- and the petitioner - bank has been directed to pay the said amount with interest at the rate of 15%. It is for the recovery of the said amount that the attachment warrant has been issued.
8. Under the circumstances, it is directed that the petitioner - Bank shall deposit, on or before 15.10.2012, sum equivalent to the amount adjudicated by the adjudicating authority i.e. Rs.25,000/- (less the amount already deposited at the time of preferring revision application). On such deposit, the operation and implementation of the impugned orders and the attachment warrant shall remain stayed.
amount was not deposited, then, the petitioner - Bank shall pay the entire i.e. 100% amount as by the first authority. A receipt acknowledging the payment will have to be placed on record of the petition.
8.3 It is clarified that the amount so deposited will be subject to the result of the petition and without prejudice to the contentions raised by the petitioner - Bank.
The aforesaid directions are issued by way of interim relief.
Direct service is permitted.
(K.M. Thaker, J.) Bharat* HC-NIC Page 5 of 5 Created On Sun Feb 28 01:00:38 IST 2016