Petitioner Counsel :- Shri Kant Respondent Counsel :- C.S.C.,R. Sharma (In Person) Hon'ble Pankaj Mithal, J Who is liable to pay the deficient stamp duty in connection with the instrument in question which is a lease deed executed on 31.10.2010 by the petitioner U.P. Awas Evam Vikas Parishad in favour of respondent no. 3 is the primary question which has cropped up in this writ petition.
Petitioner U.P. Avas Evam Vikas Parishad developed scheme no. 1 Keshavpuram, Kalyanpur in Kanpur Nagar. In the said scheme a commercial plot no. GC 22/C-16 area 49.12 sq. meter was allotted by the petitioner to respondent no. 3 on 6.6.2002.
It appears that some dispute arose between the respondent no. 3 and the petitioner in connection with allotment of the aforesaid plot whereupon respondent no. 3 lodged a complaint before the District Consumer forum. The complaint was decided on 11.5.2004 and the petitioner was directed to refund the entire amount deposited by respondent no. 3 along with interest @ 12% per annum.
The aforesaid order was challenged both by the petitioner and respondent no. 3 by separate appeals before the State Consumer Disputes Redressal Commission. The appeal of the petitioner was dismissed and that of respondent no. 3 was allowed by a common judgment and order dated 3.4.2008. The petitioner was directed to inform the balance amount to be paid by respondent no. 3 in connection with above plot and to execute the sale deed/lease deed by 31.7.2008. The aforesaid decision was upheld in revision by the National Consumer Redressal Commission, New Delhi vide order dated 18.12.2008. The matter was thereafter taken to the Supreme Court by means of SLP No. 9450 of 2009 decided on 14.9.2010 and the following directions were issued:-
In pursuance to the above, the instrument in question was executed on 13.10.2010 and it was presented for registration before the Sub-Registrar on 29.12.2010. The Sub-Registrar submitted report on 31.12.2010 that on the said instrument stamp duty of Rs. 85,120/- is payable whereas only Rs. 20,860/- has been paid and there is deficiency of Rs. 64,260/- in payment of stamp duty. The petitioner in the aforesaid proceedings brought on record the decision of the Supreme Court dated 14.9.2010 and that of the State Consumer Dispute Redresal Forum dated 3.4.2008 and that it had informed respondent no. 3 of the stamp duty of Rs. 28,860/- on the market value of plot as on 31.7.2008. Respondent no. 3 filed objections stating that in view of the decision of the State Consumer Disputes Redressal Forum dated 3.4.2008 stamp duty as on 31.7.2008 was payable as there was a direction to the petitioner to execute the sale-deed by the aforesaid date. Pending the aforesaid proceedings, respondent no. 3 filed miscellaneous application which was given IA No. 2 of 2011 in the above SLP before the Supreme Court and prayed for a direction upon the petitioner to bear the deferential stamp duty payable on the sale-deed for registration as the Sub-Registrar is demanding additional stamp duty over and above Rs. 20,860/- from the respondent no. 3 and is not registering the same for non payment of it. The said IA was rejected by the Supreme Court vide order dated 29.8.2011 which is annexure 5 to the writ petition. Thereafter, Additional District Magistrate (Finance and Revenue) Kanpur Nagar under Section 33 of the Indian Stamp Act passed one of the impugned orders dated 21.6.2011 determining deficiency in the stamp duty on the above instrument to be Rs. 64,260/-, imposing penalty of Rs. 2,000/- and directing the above amounts to be recovered with simple interest @ 1.5% per mensum from the date of the execution of the instrument. The petitioner was held liable for payment of the said amount and a direction for initiating recovery proceedings against the petitioner was issued. The above order was challenged by the petitioner in appeal under Section 56 of the Act but the same was dismissed vide order dated 22.9.2011 passed by the Additional Commissioner, Gorakhpur.
The above two orders dated 21.6.2011 of the Additional District Magistrate (Finance and Revenue)/Collector (Stamp) Kanpur Nagar and dated 22.9.2011 passed by the Additional Commissioner (Administration)/CCRA dismissing the appeal thereto have been impugned in the writ petition on the ground that the liability to pay stamp duty on the instrument is that of the vendee/lessee as provided under Section 29(c) of the Act and the same can not be directed to be recovered from the petitioner. No court held the petitioner liable for payment of deficient stamp duty or the petitioner guilty for delay in execution of the instrument.
The instrument in question is a deed of transfer of immovable land which is ordinarily referred to a sale-deed but in effect is a deed of lease as defined under Section 2 (16) of the Act which is subject to stamp duty as per Article 35 of Schedule (1-B) of the Act.
Section 29 of the Act clearly lays down that in the absence of any agreement to the contrary, the liability to provide proper stamp duty shall be upon the vendee. The language used in Section 29 (c) of the Act is very clear which makes it obligatory upon the vendee to pay stamp duty. It casts no obligation to pay the stamp duty upon the vendor.
Section 48 of the Act provides for the recovery of dues and penalties under the Act. It stipulates that all dues, penalties and other sums payable under the Act are recoverable by the Collector by the sale of movable property of the person from whom the same are due.
In view of the language employed in both the above provisions ie. 29 (c) and 48 of the Act the primary liability to pay stamp duty on the instrument is upon the vendee and it is recoverable from him. No liability to pay the same has been imposed upon the vendor unless there is agreement to the contrary.
In the instant case, the pleadings do not covey that there is any contrary agreement. Nonetheless, respondent no. 3 who appeared in person on the strength of the decisions of the State Consumer Disputes Redressal Form and that of the Supreme Court emphasised that the directions contained therein are in the nature of agreement to the contrary and as such the liability to pay additional/deficient stamp duty would rest upon the petitioner.
I have examined all the orders referred to above. The order of the State Consumer Disputes Redresssal Forum dated 3.4.2008 directs the petitioner to intimate the balance amount required to be paid by respondent no. 3 in connection with the allotment of the plot in question and to execute the sale-deed by 31.7.2008. The said directions are no directions in respect of payment of stamp duty or the person who is liable to pay stamp duty. It only directs for the execution of the sale-deed by a particular date.
The judgment of the Supreme Court dated 14.9.2010 again is silent regarding the liability of the person by whom the deficient stamp duty or additional stamp duty shall be payable. It directs the petitioner to inform the respondent no. 3 the stamp duty payable as on 31.7.2008 in terms of the order of the State Consumer Disputes Redressal Forum and to execute the sale-deed in favour of respondent no. 3. The judgment and order of the Supreme Court no where provides that in the event the amount so informed falls short then the liability to pay the balance amount or the additional amount of stamp duty demanded would shift upon the petitioner.
There is no dispute that the petitioner did inform the respondent no. 3 about the stamp duty payable on the instrument as on 31.7.2008 and had executed the sale-deed. It is not the case of respondent no. 3 that any deliberate delay was caused by the petitioner in executing the sale-deed. There is no finding by the authorities below that the petitioner is guilty of causing delay in the execution of the sale/lease deed.
Above all respondent no. 3 had approached the Apex Court for directing the petitioner to pay additional stamp duty demanded but his application was rejected on 29.8.2011, meaning thereby that the claim of respondent no. 3 in this regard was not accepted .
At the cost of repetition it is reiterated that the liability to pay the stamp duty on an instrument is upon the vendor as provided under Section 29 (c) of the Act and is recoverable from him in view of Section 48 of the Act as there is no agreement to the contrary or any direction or condition in any of the judgment and order referred to above shifting the said liability upon the petitioner. The direction to execute the sale-deed by a particular date do not ipsofacto shifts the liability to pay the stamp duty upon the petitioner.
A Division Bench of this Court in the case of Kunwar Pal Sharma Vs. State of U.P. and another AIR 2003 Alld. 7 in dealing with Section 29 and 48 of the Act held that in case of transfer of immovable property liability to pay the stamp duty is that of vendee and not that of vendor.
Section 17 of the Act provides that instruments chargeable with stamp duty shall be stamped before or at the time of execution. Therefore, the relevant date for imposing stamp duty is the date of its execution which necessarily implies the market value of it on the said date.
It is also settled by the Full Bench of this Court in Ramesh Chandra Srivastava Vs. State of U.P. And Others 2006 (8) ADJ 1 (FB) that the relevant date for determining the market value of the property which is the subject matter of consideration for payment of stamp duty under the Act is the date of execution of the sale-deed and no other date is relevant.
In view of the above, the conclusion is inevitable that on the instrument in question executed on 13.10.2010 the liability to pay stamp duty is that of the vendor ie., respondent no. 3 and that stamp duty is payable on the market value of the property which was prevalent on the said date. The direction to execute the sale-deed by a particular date can not form the basis for charging the stamp duty and in the absence of pleadings and findings that the petitioner was responsible for the delay causing loss to the respondent no. 3, the liability to pay deficiency/additional stamp duty can not be saddled upon the petitioner.
Thus, I hold that under the facts and circumstances of the present case respondent no. 3 alone is liable for payment of deficient/additional stamp duty and consequent penalty and interest thereon on the execution of the instrument dated 13.10.2010.
In view of the above discussion, the writ petition succeeds and is allowed. A writ of certiorari is issued quashing the impugned orders dated 21.6.2011 and 22.9.2011 in so far as they direct for recovery of the deficiency/additional stamp duty, penalty and interest from the petitioner and in view of Section 44 of the Act petitioner is entitle to recover the additional amount of stamp duty, penalty and interest so paid from respondent no. 3. It will however be open for respondent no. 3 to take recourse to whatever legal remedy that may be available to him in law as advised for claiming damages from the petitioner to compensate the loss which may have been caused to him for failure of the petitioner to execute the sale-deed in terms of the directions of the State Consumer Disputes Redressal Forum and the Supreme Court. No orders as to costs.
Dated 20. 3. 2012.
SKS