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TMI Blog2010 (6) TMI 900X X X X Extracts X X X X X X X X Extracts X X X X ..... n of Financial Assets and Enforcement of Security Interest Act, 2002 (for short' SARFAESI Act) and in exercise of the powers conferred under Section 13 read with Rule 12 of the Security Interest (Enforcement) Rules, 2002, brought the properties mortgaged to secure the debt due to the Jawahar Mills Limited for sale, on 02.05.2005. One V.S. Murugan, Proprietor of M/s. Hari Tex, 63 Patel Road, Coimbatore, submitted a tender for purchasing the property at the rate of Rs. 7,00,70,007/- with a deposit of a sum of Rs. 70,00,007/- and the tender was accepted by the Authorised Officer. Subsequently, since the tenderer failed to deposit the balance amount of Rs. 6,30,63,000/- within the time stipulated in the tender notice, the Authorised Officer, by a letter dated 23.08.2005 cancelled the acceptance of the tender; challenging the same, the said V.S. Murugan filed W.P. No. 37139 of 2005 before this Court against the Indian Overseas Bank, through its Regional Manager, Salem and the Authorised Officer of Indian Overseas Bank, Salem as well as the Jawahar Mills. At the time of hearing of the Writ Petition, the tenderer offered to pay the balance amount of Rs. 6,30,63,000/- along with intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the sum of Rs. 13,18,351/- towards the stamp duty and a penalty of Rs. 649/- making a total sum of Rs. 13,19,000/- should not be collected from him. On receipt of the same, the Petitioner submitted his explanation in the form of objections on 17.12.2008, but there was no reply for the same. Hence, he made a representation to the 1st Respondent on 1.11.2008, who is the Appellate Authority; but, the 1st Respondent, by an order dated 26,12.2008, has rejected his representation holding that since the Sale Certificate was not issued by a Civil/Revenue Court or Collector or Revenue Officer, it cannot be classified as one coming under Article 18, Schedule-I of the Stamp Act and it is chargeable with 8% stamp duty on the market value of the property under Article 23 in Schedule-I of the Stamp Act. Aggrieved over the said order, the present Writ Petition is filed. 3. Learned Counsel for the Petitioner would submit that Section 3 of the Indian Stamp Act says that every instrument, except under the exemptions contained in Schedule I shall be chargeable with duty. So far as the Sale Certificate issued by the Authorized Officer cannot be construed as an instrument chargeable with duty, Sched ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable to the facts of this case and he prayed that the order passed by the 1st Respondent has to be sustained. 5. Heard the learned Counsel for the parties and perused the records. 6. After hearing the submissions on either side, now the question that arises for consideration is, whether the Sale Certificate issued by the Authorized Officer of the Indian Overseas Bank is chargeable with duty or not. To decide the matter, it is necessary to look into the principles laid down in the various decisions relied upon by the learned Counsel for the Petitioner. In the judgment reported in Municipal Corporation of Delhi v. Pramod Kumar Gupta, AIR 1991 SC 401, it has been held as follows: 4. The expression "instrument" in Section 147 of the Act has the same connotation as the word has under the Stamp Act, the reference to which has been expressly made. Clause 14 of Section 2 of the Stamp Act gives an inclusive definition of the expression as referring to any document by which any right or liability is purported to be created, transferred, limited, extended, extinguished or recorded. Clause 10 of the said section states that "conveyance" includes a conveyance on sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he object of issuance of such a Certificate is to avoid any controversy with respect to the identity of the property sold, and of the purchaser thereof as also the date when the sale becomes absolute. The use of past tense in the rule stating that the same "became" absolute, is consistent with this interpretation. The Certificate, therefore, cannot be termed to be an instrument of sale so as to attract duty under Section 147 of the Delhi Municipal Corporation Act. The Appeal is accordingly dismissed with costs. 7. In Shanti Devi L. Singh v. Tax Recovery Officer, AIR 1991 SC 1880, it has been stated as follows: 9. There are thus some differences between the two procedures and this aspect has been touched upon in some very early decisions under the Registration Act, 1877: vide, Fatteh Singh v. Daropadi, 1908 Punj. Rec. Case No. 142, Siraj-un-nissa v. Jan Muhammad, 1882 (2) All WN 51, Masarat-un-nissa v. Adit Ram, 1883 ILR 5 All 568 (FB). Reference may also be made to Premier Vegetable P. Ltd. v. State, AIR 1986 MP 258. We need not, however, consider for the purposes of this case whether filing and registration mean one and the same thing for all purposes and what the leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act requiring registration will not apply to transfers by orders of Court. Vide also the decisions reported in Gaya Prasad v. Baji Nath, ILR 14 All. 176 and Wazirey v. Mathura Prasad, AIR 1939 Oudh, 55. 21. As against this, learned Counsel for the Appellants cited the following authorities: In Sidheswar Mukherjee v. Bhubneshwar Prasad Narain Singh, AIR 1953 SC 486 : 67 LW 1 (SC) it was held that the purchaser of an undivided share did not acquire any defined share in the property and was entitled only to joint possession from the date of his purchase. It is laid down that the purchaser could work out his right only in a Suit for partition.... From the above said decisions, it is clear that the Sale Certificate issued in a Court sale does not require registration. 9. On the contrary, it is contended by the learned Additional Government Pleader that in the said decisions, the Sale Certificates were issued under the different enactments, whereas in the instant case, it has to be decided as to whether the Sale Certificate issued by the Authorized Officer of a bank can be equated to the Sale Certificate issued by a Civil or a Revenue Court. Further, it is contended that in on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ijayalakshmi Charitable Trust v. The Sub-Registrar, 2009 (5) CTC 15, contended that the learned Single Judge of this Court has categorically held that "Article 18 imposing stamp duty on registration of Sale Certificates would apply only if a party goes for registration and it would not apply when the Sale Certificate is sent to the Registrar for filing as distinguishable from registering. Sale Certificate sent to the Registrar for a filing would not attract Article 18". By coming to such conclusion, the learned Single Judge has directed the authorities to file the copy of the Sale Certificate dated 22.12.2006 in Book-I, because the Sale Certificate needs no registration. 12. Countering the submissions made by the learned Counsel for the Petitioner, the learned Additional Government Pleader has produced a judgment of this Court In Re, The Official Liquidator, High Court, Madras, 2010 (2) CTC 113 and contended that in the said judgment, this Court, by taking into consideration the earlier judgments including the judgment reported in Shree Vijayalakshmi Charitable Trust v. The Sub-Registrar, 2009 (5) CTC 15, has elaborately dealt with the differences between processing of f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the case may be, in his Book No. 1. (4) Every Revenue Officer granting a Certificate of Sale to the purchaser of immovable property sold by public auction shall send a copy of the certificate to the registering officer within the local limits of whose jurisdiction the whole or any part of the property comprised in the certificate is situate, and such officer shall file the copy in his Book No. 1. In its application to the State of Tamil Nadu, Section 89 has been amended to include 3 sub-sections viz., sub-sections (5), (6) and (7). Similarly, by a State Amendment, Section 89-A has been inserted, empowering the Government to make Rules for filing copies of documents. By Section 89-A (2-A), every Court passing an order effecting or raising an attachment of immovable property, should communicate a copy giving details of the property and the Registering Officer is obliged to file the same in Book-I. The Registering Officer is thus obliged to perform a crucial role. But the role is not restricted to the Registration Act alone. He is also obliged to perform a role under the Indian Stamp Act. Therefore, if an instrument is presented to him for registration, he is expected to examine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld on issue No. 1 that when a copy of the Certificate of Sale is received by a Registering Officer, he should act in terms of Section 89(4) and file the same in Book No. 1. 42. The second question as framed for consideration by the Supreme Court in Shanti Devi L. Singh, in paragraph 5 of its decision was slightly different from the second question actually taken up for consideration in paragraph 7. It was whether the filing of the copy of the Certificate of Sale in Book No. 1 within the meaning of Section 89 Tanta mounted to the registration of the document under the Registration Act or whether the concept of filing a copy of the Certificate of Sale in Book No. 1 was different from the concept of registration. On this aspect, the Supreme Court found that the registration of a document under the Act is conditional on the fulfilment of several requirements laid down in Sections 32 to 35. Once a document is admitted for registration, the Registering Officer is bound to follow the procedure laid down in Sections 51 to 67. 43. After tracing the procedure for registration of a document, laid down in the Registration Act, the Supreme Court noted in paragraph 8 of its decision, the dif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove, the Supreme Court took up for consideration another question in para 10 of its decision. This question was whether the Certificate of Sale was liable to stamp duty and if so, what the consequences were. On this question, even at the threshold, the Court upheld the view of the Delhi High Court, with reference to Sections 3 and 29(f) read with Article 18 under Schedule I of the Stamp Act, that in the case of a Certificate of Sale, necessary stamp duty is to be paid by the auction purchaser, unless by a contract to the contrary, the liability is shifted to the Government. After giving a preliminary finding to the said effect in para 10 of its judgment, the Apex Court made certain important observations in para 11, Therefore, it is reproduced as follows: 11. There are two provisions in the Stamp Act which provide for the adjudication of stamp duty. Under Section 31, it is open to the executants of any document, at any stage but within the time limit set out in Section 32, to produce a document before the Collector of Stamps and require him to adjudicate on the question whether the document should bear any stamp duty. The Collector thereupon may adjudicate the stamp duty himself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... took up for consideration in para 12 of its decision, the question as to whether the Sub-Registrar has no jurisdiction to refuse registration, on the ground that the document (Certificate of Sale) is insufficiently stamped. On this issue, the Court held as follows: We should, however, like to deal with a contention raised in the grounds that even if the Certificate of Registration is sought to be presented for registration by the Petitioners, the Sub-Registrar has no jurisdiction to refuse registration on the ground that the document is insufficiently stamped. As already pointed out, Section 17(2) (xii) of the Registration Act makes it clear that the Certificate of Sale issued in a Court sale or by a Revenue Officer does not need registration. (Though this provision, like Section 89, relates only to a Certificate of Sale granted to the purchaser of any property sold by public auction by a Civil Court or Revenue Officer, for the same reasons as have been set out earlier, we think that the certificate issued by the TRO is also covered by this provision). It is, therefore, clear that it is not obligatory on the purchaser of property in a tax recovery sale to get the Certificate of S ..... 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