1. The petitioner has preferred present petition and prayed for below mentioned relief:
"a. That Your Lordships may be pleased to issue writ of certiorari and/or writ of certiorari and/or any other appropriate writ, order or direction and thereby be pleased to quash and set aside impugned order dated 9.2.2012 passed by the respondent No.3 - Chief Controlling Revenue Authority and the order dated 18.3.2011 passed by the Deputy Collector and further be pleased to direct the respondents to refund the amount of Rs.7,85,100/- deposited by the petitioner, with interest at the rate of 12% per annum forthwith from the from the date of deposit till realization.
b. Pending hearing and final disposal of this petition, stay as to execution, implementation and operation of impugned order dated 09.02.2012 passed by the respondent No.3 - Chief Controlling Revenue Authority and the order dated 18.3.2011 passed by the Deputy Collector may kindly be granted."
2. So as to justify the relief prayed for in present petition the petitioner has stated certain facts which, according to the petitioner, are involved in and relevant for present petition. It is stated, inter alia, that the petitioner had availed certain credit HC-NIC Page 1 of 8 Created On Sat Aug 19 22:46:10 IST 2017 SCA/3058/2012 2/8 ORDER facility somewhere in 2004 from respondent no.6 bank. The loan amount of Rs.5.40 crores, comprised cash credit hypothecation against stock receivable amounting to Rs.165 lacs and term loan for plant and machinery amounting to Rs.375 lacs. It is further claimed that so as to facilitate the financial assistance/loan facility, the petitioner offered certain security which included various properties and for the said purpose the petitioner also deposited title deeds. Properties of guarantors and partners were also offered as collateral security. It also emerges from the record that somewhere in January 2005 the petitioner executed memorandum of deposit of title deed. On the basis of the nature of document and description of properties etc. the petitioner paid stamp duty @ of Rs.1 lac. The document came to be registered in 2005 at serial no.254. It appears that subsequently the stamp valuation authority had taken the said document for scrutiny and valuation and opinion of Accountant - Auditor General was also received. Having examined the document and upon considering the opinion of Accountant - Auditor General, the competent authority issued notice dated 1st April 2010, intimating the petitioner that according to tentative and preliminary view of the authority, the petitioner had not paid adequate and requisite stamp duty and it was liable to pay the deficient stamp duty, which was tentatively determined, at Rs.31,40,000/-. The petitioner was afforded opportunity vide said notice dated 1st April 2010 to submit reply and also to remain present before the authority if it had any objections. The petitioner HC-NIC Page 2 of 8 Created On Sat Aug 19 22:46:10 IST 2017 SCA/3058/2012 3/8 ORDER submitted its reply and after considering the objections the First Adjudicating Authority passed order dated 18th March 2011 determining the deficiency in stamp duty at Rs.31,40,000/- and also imposed fine of Rs.1,000/-. Consequently, the First Adjudicating Authority directed the petitioner to pay Rs.31,41,000/- towards the deficient stamp duty.
3. The petitioner felt aggrieved by the said order and that therefore it carried the said order before the competent authority under Section 53 of the Act. After considering the petitioner's application - appeal against the order dated 18.03.2011, the competent authority under Section 53 of the Act passed order dated 9th February 2012 confirming the order passed by the First Adjudicating Authority. The petitioner is aggrieved by the said order. Hence, present petition.
4. While considering the petition and upon hearing the learned counsel for the petitioner, the Court, under order dated 2nd April 2012, directed office to issue notice to the respondents. While passing the order dated 2nd April 2012 the Court observed, inter alia, that:
"1. Learned counsel has drawn this Court's attention to two impugned orders dated 18/3/2011 and 9/2/2012 and contended that the impugned orders are contrary to the provision of Bombay Stamp Act, 1958, as could be seen from the plain reading of provision of Article 6 and definition of Section 2(c) of the Bond. Learned counsel also invited this Court's attention to the averments made in paragrapah no. 11 on page-9, and submitted that the authority i.e. Deputy Collector who had passed order on 18/3/2011 had also passed another order in respect of Rajkot Nagrik Sahkari HC-NIC Page 3 of 8 Created On Sat Aug 19 22:46:10 IST 2017 SCA/3058/2012 4/8 ORDER Bank Ltd on 26/29-10-2010 treating the entry to be falling under Article 6 (1) (a). In view of this, this Court is of the view that let there be notice returnable on 17/4/2012.
2. This Court is of the prima facie view that the contention raised by the petitioner's counsel appears to be appropriate and having force in view of plain reading of Article 6(1) (a) and Article 14 of the Bond. Therefore, in the meantime and till the returnable date there shall be ad-interim relief in terms of paragraph no. 15.b of the petition."
5. In response to the notice, the respondents have entered appearance and filed reply affidavit resisting the petition.
6. Mr.Parikh, learned counsel has appeared with Mr. Karia, learned advocate for petitioner and Mr. Yagnik, learned A.G.P. has appeared for respondent authorities.
7. Mr. Parikh, learned counsel submitted that the impugned orders by the respondent authorities are contrary to the relevant and applicable provisions under the Act. So as to support his submission, Mr. Parikh, learned counsel referred to and relied upon provisions under Article 6 and Article 14 and also made reference to Article 5(1)(H) of the Act. He submitted that the competent authority has committed serious error in interpreting the document and has misconstrued the nature and effect of the document and the document in question is wrongly categorized. So as to support his submission, Mr. Parikh, learned counsel also relied on the decision in case of Nagaraj Shivarao Karjagi v. Syndicate Bank Head Office, Manipal & Anr. [AIR 1991 SC 1507] and the decision in case of Khoja Ahmadali Haji Jerajbhai & Anr. v.
Hussein Kasu Nangiya [1968 GLR 1087].
7.1. Mr. Parikh, learned counsel submitted that the document in question is covered under Article 6 and therefore it would not fall under Article 14 as wrongly held by the competent authority and the First Adjudicating Authrity.
8. Per contra, learned A.G.P. has supported the orders passed by the First Adjudicating Authority and the authority under Section 53 of the Act. He has submitted that individual's properties were offered as security by the concerned parties and the document, having regard to the description, subject matter and nature of the document and transaction, would not be covered under Article 6 of the act as rightly held by the authorities.
9. In present case, while directing the office to issue notice, the Court (Coram: Hon'ble Mr. Justice S.R.Brahmbhatt) has, under order dated 02.04.2012, observed that, "This Court is of the prima facie view that the contention raised by the petitioner's counsel appears to be appropriate and having force in view of plain reading of Article 6(1)(a) and Article 14 of the Bond." The facts emerging from the record and the submissions made by learned counsel for the contesting parties give out that present petition involves and raises question about construction and interpretation of the document. In such circumstances and in light of above quoted observations, ordinarily, Court would admit the petition for further consideration.
HC-NIC Page 5 of 8 Created On Sat Aug 19 22:46:10 IST 2017 SCA/3058/2012 6/8 ORDER 10. Thus, in view of the said prima facie view expressed by the Court, the petition deserves consideration. Therefore, Rule.
11. Now, so far as question about interim relief is concerned, learned counsel for the petitioner was requested to make submission as to the interim relief and learned counsel was requested to justify request for unconditional relief staying operation of impugned order and to explain as to why and how such unconditional relief can be granted.
12. In reply, as mentioned above, learned counsel has made submissions on merits as to the defects in the orders passed by the authorities and has tried to emphasis that the orders are misconceived and unsustainable in law. Any submissions as to probable hardship are not made. Any details, data and facts of petitioner's financial position are neither urged at the time of hearing nor mentioned in the petition and any case is not made out on this count.
13. Learned counsel for petitioner submitted that at the time of preferring appeal, the petitioner had deposited 25% of the amount determined by the First Adjudicating Authority and that therefore the said aspect may be taken into account and the petitioner may not be required to deposit any further or additional amount and interim relief may be granted without any direction for payment of any amount.
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14. The above mentioned facts give out that:
(a) There are two concurrent orders against the petitioner.
(b) The First Adjudicating Authority as well as the authority under Section 53 of the Act have, after adjudication, passed orders against the petitioner.
(c) As of now, the liability of the petitioner is adjudicated and crystallized.
(d) The petitioner is now obliged to pay a sum of Rs.31,41,000/- towards stamp duty.
Since the petition involves question of interpretation of document the same has been admitted.
(e) However, at the same time, the fact that the amount involved is amount towards revenue being the demand for deficient stamp duty and the fact that two adjudicating authorities have held against the petitioner, cannot be overlooked.
(f) Furthermore, as mentioned earlier, neither in the petition nor at the time of hearing the petitioner has given any data or details about its financial position and any case is not made out to claim that direction to deposit the amount as per adjudication would cause any hardship to the petitioner.
(g) The details of petitioner's financial position are also not available on record of the petition and have neither been alleged at the time of hearing also.
(h) The amount adjudicated by two orders is required to be secured and the interest of revenue is required to be protected, more particularly, because it appears from the record that properties of the petitioner and other guarantors/sureties are already alienated and charge has been crated over the properties and the HC-NIC Page 7 of 8 Created On Sat Aug 19 22:46:10 IST 2017 SCA/3058/2012 8/8 ORDER details of its financial position are not declared by the petitioner.
15. Therefore, this Court is of the view that in the facts and circumstances of the case, this case is not fit for unconditional interim relief, only on the strength of the submission that 25% amount has been deposited at the time of preferring appeal, and such relief does not deserve to be granted and appropriate condition is required to be imposed.
16. It is claimed that the petitioner has deposited 25% of the adjudicated amount at the time of preferring application-appeal before the authority under Section 53 of the Act. Therefore, below mentioned order is passed:
17. The implementation and execution of the impugned orders shall remain stayed, during pendency of present appeal and until final hearing or any other or further order is passed, however, on the condition that the petitioner shall pay and deposit further amount of 25% so as to make total 50% of the adjudicated amount, and for balance 50% amount the petitioner shall tender bank guarantee of a nationalized bank, within period of six weeks from today.
18. On compliance of the said condition, the implementation and operation of the orders shall remain stayed.
(K.M.THAKER, J.) jani HC-NIC Page 8 of 8 Created On Sat Aug 19 22:46:10 IST 2017