JUDGMENT A.K. Yog, J.
1. Aforementioned Writ Petitions, listed in bunch as Connected cases, on the pleadings, raise a common legal question, viz. 'what ' Stamp Duty' is chargeable on 'security' deposit in pursuance of 3 term and condition of an 'agreement' to ensure performance of work- contract, in question executed between concerned respective parties in the above writ Petition?' In other words-whether a document/deed furnishing security, security, as should be treated as 'mortgaged deed' under Section 2(17) or a security deed under Article 57(b) of Schedule 1-B, Indian Stamp -Act, 1899 (as amended in State of U.P.), called the the Act.
2. Learned counsels for the parties join in making statement that facts of each need not be referred and in an the cases only one question of law (as noted above) arises for adjudication by this Court. In the above circumstances, it is not insisted by them to file Counter and Rejoinder Affidavits in each case. None raised objection on all these cases, being heard together and decided finally by a common judgment on the basis of the record as it stands).
3. We shall, therefore, primarily refer to the facts of the case of Strong Construction v. State of U.P, and Ors. which is treated as lending case to Appreciate the issue in hand which this Court is called upon to adjuducate in the above cases.
4. Petitioner/s, known as Government Contractors , filed tender/s to to take and execute contract work under scheme, called PMGSY. It is not disputed that the competent authority Accepted tender filed by the petitioner/s.
5. The Executive Engineer, Temporary Division on (PMGSY), PWD, Kaushambi, Allahabad vide impugned order dated 23.8.2004/ Annexure 1 to the writ Petition demanded duty on the 'security' deposits in the form of FDR/NSC/Bank Guarentees as per terms and conditions of contract agreement treating it as Mortgage Deed which is chargeable under Article 40 of Schedule I-B of the Act. Being aggrieved petitioner/s have filed above-writ-Petition under Article 226, Constitution of India and claimed following reliefs-
"(a) issue a writ, order or direction in the nature of certiorari quashing the order dated 23-8-2004 (Annexure 1 to this Writ Petition) passed by respondent No. 4.
(b) Issue a writ, order or direction in the nature of mandamus commanding the respondents to charge stamp duty on security amount on the basis of Article 57 schedule 1B of the Indian Stamp Act 1899,
(c) Issue any other suitable writ, order or direction which this Hon'ble court may deem just and proper in the facts and circumstances of the case.
(d) Award the costs of this Writ petition."
Learned counsel, representing the petitioners, submit that 'money security', given under a particular term/condition of an agreement to ensure performance of contract, by no stretch of Imagination can be treated as ' Mortgage- deed'; it is pure and simple a security-deed under Article 57(b) of Schedule 1-B of the Act; facts of the cases before the Court are identical and that the 'legal question' raised and required to be decided in these cases has a already been answered by this Court in the case of Tajveer Singh and Ors. v. State of U.P. and Ors. 1997(2) AWC 1029 (DB).
Relevant extract of the aforesaid judgment reads-
"The respondents Invited tenders for constructing drains, culvert etc. in response to which petitioners submitted their tenders. As per terms of the tender, tenderers, whose tenders are accepted have to deposit two per cent of the contract amount as earnest money end ten per cent of the contract amount. as security deposit, which were liable to he refunded if the work is completed within the prescribed time. However, if the tenderers fall to complete the work within the specified time, that the said Amount was liable to be forfeited petitioners' tenders were accepted. An intimation to that effect was given to them by a letter dated 24-6-1994. By the same letter the petitioners were required to make security deposit and also to supply non-judicial stamps for execution of the appropriate deed containing the offer of the amount as security. In paragraph 4 of the writ petition, it has been stated that on the basis of the Government instructions the respondents are demanding the duty from the petitioners on the deposit at the rate of Rs. 125 per thousand, if the deposit is made in cash and at the rate of Rs. 62. 50 per thousand if the deposit is made in terms of N.S.C. or F.D.R. Being aggrieved by the direction contained in the said letter, requiring, them to deposit the stamp duty, the petitioner have filed this writ Petition.
2. We have heard the learned counsel for the petitioners and the learned standing counsel.
3. A Special Bench of this court in Hindustan Sugar Mills Ltd. v. State of U.P. and Ors., AIR 1972 All, 8, has laid down that a security bond is chargeable with a duty under Article 57 Schedule of the Stamp Act. A Special Bench of Delhi High Court in Chief Controlling Revenue Authority v. Marshal Produce Brokers Pvt. Ltd. AIR 1980 Del. 249 has that "the amount of security deposit paid for due performance of the contract of lease is chargeable under Article 57, Schedule 1B." Recently a Division Bench of this Court in Sripal Goel v. Deputy Director, construction, Civil Miss. Writ Petition No. 38837 of 1995, decided on 18.3.1996 has reiterated the same principle, holding that stamp duty on such an agreement is to he paid under Article 57, Schedule 1B of the stamp Act. The position is thus settled that a security deed is chargeable with duty under Article 57 of Schedule 1B.
4. The Supreme Court in Board of Revenue v. A.M. Ansari, AIR 1976 SC 1913, laid down that the sum, which is offered as security is not a mortgage and, therefore? is not liable to stamp duty under Article 35 (C) of the stamp Act. In this case a Bench decision of this Court in Rishideo Sondhi v. Dhempur Sugar Mills, AIR 1947 All 190, wherein it was held that an instrument in which specific Amount is offered a security is not a mortgage deed, was sited with approval.
5. This writ petition is accordingly allowed. The impugned order, so far as it demands stamp duty stamp duty from the petitioners on security deposit is quashed. The respondent will be free to realise the stamp duty, if not already, from the petitioners under Article 57, Schedule 1 B of the Stamp Act as amended by the state of U.P. In view of the facts and circumstances of the case, there shall be no order as to costs."
It is admitted at the bar that Special Leave Petition against the judgment in the case of Tajveer (Supra) has been dismissed as time barred (see para 6 of the counter affidavit). Another Special Leave Petition against judgment in same other case is said to be pending before Apex Court. There is no statement in the counter affidavit nor any of the counsels pointed out that there is interim order in the aforesaid case pending before the Apex Court.
Learned counsel for the petitioner then placed reliance upon the decision in the case of Mohd. Farman v. State of U.P. and Ors. 2001 (2) AWC 899 decided by a Division Bench of which one of us (A. K. Yog, J.) was member; relevant pa.ra 7 to 12 of the judgment, are reproduced -
"7. Learned standing counsel has submitted 'written arguments' stating that the only question to be adjudicated in the case is whether the security bond/deposit is chargeable with stamp duty as per Article 57 of Schedule 1 B or under Article 40 of Schedule IB in the written. argument learned standing counsel points out that this very question has already been referred by a learned single judge in Writ Petition No. 25706 of 1999, Sharma Build-Tech, (Pvt.) Ltd. v. State of U.P. and Ors., vide order dated 30th June, 1999. It appears that this controversy had arisen in large number of writs filed, in the Court and one of such case, being writ petition No. 47964, has been referred to a larger bench.
8. Perusal of the referring order indicates that the Court was considering the scope and extent of Government order dated April 1, 1999, issued by principal Secretary, Tax and Institutions Fiancees, U.P. government. The learned Single Judge has referred to the derision of Tajveer Singh end Ors. v. State of U.P. and Ors., 1997(2) AWC 1029, we well as Supreme Court decision in Board of Revenue v. A.M. Ansari AIR 1976 SC 1813.
The learned single Judge (S. R. Singh, J. ) observed :
"The answer to the question, is interwoven with the interpretation of the term 'mortgage deed' as defined in Section 2(17) of the Act and interaction of Article 40 with Article 57 of Schedule 1 B of the Act as well as terms and conditions of contract as stipulated in the tender notice. In Tejveer Singh (Supra) a Di Bench has placed reliance on Supreme Court decision in A. M. Ansari and held "the position is thus settled that the security deed is chargeable with duty under Article 57 of schedule 1B. I have my reservations about the correctness of the proposition laid down by the Division Bench in the case aforestated. As a matter of fact , the view so taken by the Division Bench purports to be based on Supreme Court decision in a.m. ANSARI (supra) but to me, it that the Supreme Court decision in A.M. Ansari is not intended to law down the proposition that in each and every case stamp duty on security as per the deed of agreement to be executed for due performance of contract is chargeable writ duty under Article 57 of Schedule 1 B only. In the case of A.M. Ansari, the question that begged consideration before the Supreme Court was as to whether the security deposits made by the respondents savoured of the nature of mortgages so as make the respondents liable to pay the stamp duty under Article 35 C of Court after noticing the definition of 'Mortgage Deed' as embodied in Section 2(17) of the Act held bearing In mind clause (1&) of the said notice on that case there is nothing in the above clause to indicate right over or in the security deposit was created in favour of the State Government .
Further the learned Single Judge observed :
"on a careful consideration of the decision in A.M. Ansari, it would transpire that In case, any right over or in the security deposits is crated in favour of the state Government, in that event, the instrument may be termed as 'Mortgage Deed' leviable to stamp duty under Article 40 of Schedule 1 B and by that reckoning the Government order dated April 1, 1999 being Annexure-3 to the writ petition, cannot be discounted. In the above perspective, therefore, ft would be in the fitness of things if a larger Bench is constituted to delve into the question."
Learned single Judge referred the matter to larger bench in view of Government order dated 1, 1999 (referred to above)" This contingency, however, doe snot arise in the present singe as the Government Order dated April 1, 1999 (annexed as Annexure-3 to the writ petition No. 25706 of 1999,Sharma Build-tech (Pvt.) Ltd. v. State of U.P. and Ors., was not in existed the demand order dated 15the February, 1996, (impugned in the present petition) was issued.
9. The justify the imposition of stamp duty under Article 40, Schedule 1 B of the act and to establish that under its terms-reading the document as a whole-renders the security deposit-a mortgage as defined under relevant it was incumbent upon the respondents to file a copy of the agreement in question to satisfy the Court that that the deed in question required deposit of security, and through refundable, it is covered by the definition 'mortgage' . This has not been done respondents have miserably failed to bring on record even by way of pleading a simple fact that deed in question requiring deposit of security is. in effect a mortgage and, therefore, their stand requiring stamp duty under Article 40, Schedule 1B is justified.
10. There is nothing on record of this case as it stands today, to indicate that the any interest is being created in the security amount as such and the- deed sought to be executed between it parties is in the nature of mortgage deed, copy of the respondents have failed to support their claim Court that the of charging higher stamp duty under Article 40 Schedule 1 B of the Indian Stamps Act vide impugned order dated 15th February, 1996 (Annexure 1 to the writ Petition).
11. In absence of the above, decision in the case of Tajveer Singh and Others, squarely applies to the facts of the present case.
12. Our view is supported by the judgment and order dated 18th March, 1996, passed by Division Bench comprising B.M. Lal and R.K. Mahajan, JJ., in the case of Shri Pal Goel v. Deputy Director (Construction), Rajya Utpadan Mandi Parishad, U.P. and Ors. (copy filed as Annexure-2-to the Writ Petition No. 31866 of 1996)."
6. Petitioners also referred to a Division Bench judgment of this Court in Writ petition No. 40007 of 2003, M/S Maa Durga Builders v. State of U.P. and Ors. In this case also Division Bench of this Court answered the question in hand following the ratio laid down in the case of Tajveer Singh (supra). The 'Division Bench' in the case of M/s Maa Durga Builders (supra) quashed Government Order dated 12.4.1999. True Copy of the said judgment in the case of Maa Durga Builders (supra) dated 22.9. 2003 is Annexure 6 to the above mentioned writ Petition No. 41505 of 2004 - Adarsh Constructions v. State of U.P. and Ors. whereas copy of the aforementioned Government order dated 12.4.1999 is Annexure 4 to the said Writ Petition by Maa Durga Builders.
Learned counsel for the petitioners drew our notice to the impugned order dated 23.8.2004/ Annexure 1 to the leading Writ Petition to demonstrate that the said impugned order dated 23.8.2004 require the petitioners to pay Stamp Duty treating ' security deposit1 to be chargeable with Stamp Duty under Article 40 of the Act. He submits that even though the order dated 23.8.2004 does not specifically refer to Article 40 of Schedule 1B of the Stamp Act but it clearly mentions that Stamp Duty was chargeable at the rate of Rs. 70/- per thousand on security deposits of FDRs end NSCs. Learned counsel for the petitioner/s contends that the Impugned order dated 23.8.2004 Annexure 1, and other like orders, in the connected Writ Petitions cannot be sustained and liable to be quashed since similar Government Order dated. 12-4-1999 has already been quashed by this Court in the case of M/S Maa Durga Builders and Special Leave Petition in one of the similar matters in Apex Court has also been dismissed.
7. We have compared the Government order dated 12.4.1999 (Annexure 4 to the one of the above connected petition filed by M/S Adarsh Construction (supra) and that impugned order dated 23.8.2004/ Annexure 1 to the writ petition and find that they are in contents and its effect, same and identical. Under both the above orders contractors are required to pay stamp Duty treating the documents under Article 40 Schedule 1 B of the stamp Act.
8. In view of the judgment of Tajveer Singh (supra) and that of M/s Maa Durga Builders, referred to above (Annexure 6 to the Writ Petition filed by M/s Adarsh Constructions (supra) cannot be sustained and apparently illegal, arbitrary and without justification in as much as similar orders have already been quashed by this the aforesaid cases.
9. The Respondents, on the other hand, vide para 9 to 24 of the Counter Affidavit taken objection that the petitioners have not filed copies of 'agreements' in question.
10. We cannot overlook the fact that copy of Agreement/contract' deed should be with the respondent authority (who invite and accept tenders) and therefore, in all fairness, the respondents should have filed the same.
11. This Court does not expect state and officers to play hide and seek or to exploit litigants who are at much disadvantageous position as compared to it. Respondents are expected to contest in law courts with clean hands and behave as 'model' State prompt to dispense justice without taking shelter of technicalities or undue advantage of handicap of its adversaries in law court.
12. We also express our concern that learned Standing Counsel did not follow rule of 'pleadings' . Counter Affidavit (sworn by R,N. Shukla, the then Deputy Commissioner Stamp, Allahabad) is contrary to the requirement of Chapter XXII Rule 2, Rules of Court which specifically provides that "......................application/petition shall set out concisely in numbered paragraphs the facts upon Which the applicant relies and the grounds upon which the court is asked to issue a direction, order or writ, and shall conclude with a prayer stating clearly...............
13. It is a basic principle that pleadings should refer to facts and facts alone and in no case make argumentative averments. The Counter-affidavit in this case is in chaste breach of the above rule.
14. Learned Standing counsel, representing the respondents, submitted that security furnished under agreement in question is a mortgage deed1 as defined under Section 2(17) of the Stamp Act.
15. Relying upon the said provision it is argued, that Article 40 Schedule 1B is attracted and hence it shall require duty chargeable as on a mortgage deed.
16. Learned counsel for the respondents also referred to Article 12-A of Schedule 1B providing for stamp- Duty, chargeable under the Act upon a 'Bank Guarantee'.
17. Learned counsel for the Petitioner in reply, however, referred to Article 57(b) Schedule IB laying emphasis upon the expressions "security Bond and " in any other case used therein.
18. To appreciate rival contention/s and ready reference, relevant provisions of the Stamp Act re reproduced.
"2(17) "Mortgaged deed " Mortgage-deed" - " Mortgage-deed" included every instrument whereby, for the purpose of securing money advanced, or to be advanced, by way of loan, or on existing or future debt or the performance of an engagement, one person transfers, or creates to, or in favour of, another , a right over or in respect of specified property;"
"SCHEDULE 1-B (STAMP DUTY CM INSTRUMENTS UNDER THE INDIAN STAMP, ACT, 1899, As AMENDED UP-TO- DATE IN ITS APPLICATION TO UTTAR PRADESH)
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19. According to the learned Standing counsel case of the petitioner falls within the ambit of the expression 1 performance of the engagement .....................
20. Expression 'engage' as per Blacks Law Dictionary, apart from father meanings, defined " to employ or involve one self to take part in'.
21. In our considered opinion, above definition (quoted from Dictionary) of the word 'Engage' is relevant in the contest in which the said expression is used in the statute, Execution of an 'agreement' by a contractor and submission of Security to ensure completion of contract work, has no trace of 'engagement' , within the expression "performance of an 'engagement' employed in Section 2(17) of the Act. Security required in the instant case, clearly falls under Section 57(b) Schedule 1 B.
22. We are in full agreement with the view taken by this Court. We are not inclined to take a view- different than the view expressed in earlier Division Bench judgments of this Court noted earlier.
23. We are of considered view that the Insistence on the part of the respondents/State not to demand Stamp Duty on 'security deposit' under Article 57(b) Schedule 1-B ignoring High Court judgment (as noted above) is breach of declaration of law by High Court amounting to abouse of power and to over-retch 'rule of law' which cannot be approved. In the circumstances, it constitute contempt of Court. State is bound by declared by High Court, and expected not to harass its subjects and compel the petitioners to run to this Court particularly where State Government has all the means resources to have taken guidance and expert legal opinion-as it has contingent of State counsels and above all Advocate all Advocate General.
24. Uncalled for insistence and causal approach in issuing impugned orders-without justifying on any valid ground on record before us ignoring that similar orders have been set-aside/over-ruled by this Court in the past- shows that State Authorities casually spend public money on frivolous litigation and burden Courts with uncalled for State sponsored litigation.
25. We hope that in future state Government shall ensure not to generate frivolous litigation.
26. In the result, demand by the respondents to charge stamp duty vide impugned order in leading case (and other similar orders in connected write Petitions noted above) is illegal and arbitrary.
27. Consequently, a writ of certiorari is issued calling to that record of the case and we quash the impugned order dated 23-8-2004/ Annexure 1 to the Writ Petition in leading Writ Petition-and also other similar orders in above-noted connected writ petitions.
28. We also issue a writ of Mandamus commanding the respondents not to compel the petitioners and similarly situate persons, whether they have filed writ petition or net, to pay Stamp Duty on security deposit in question treating as 'mortgage deed' and further to charge Stamp duty on such ' securities' as provided under Article 57 (b) Schedule 1 B of the Act.
29. Writ Petition/s stand allowed subject to above directions.
30. No order as to costs.