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TMI Blog2023 (8) TMI 1632X X X X Extracts X X X X X X X X Extracts X X X X ..... ution Professional etc. In all these cases, the original owner of the property had borrowed loan from banks or financial institutions which become Non-Performing Assets (in short "NPA"), with the result, the bank or financial institutions by invoking the provisions of SARFAESI Act, had brought the respective properties for sale by way of auction. (ii) In the auction, these petitioners having participated, they were declared successful bidders or auction purchasers and thereafter, on payment of the entire amount, i.e., the bid amount, the sale was completed and as a evidence to the said sale, sale certificate was issued under the relevant rule of the Security Interest (Enforcement) Rules, 2002. (iii) When these sale certificates were produced before the concerned Registering Authority by the petitioners or on their behalf, for filing the same in the book of the Registering Authority in Book No. 1, either the same has been refused to be filed or rejection orders have been passed refusing to file the same. (iv) In some of the cases in this batch, though the registration of these document is not compulsorily in nature in view of Section 17(2)(xii) of the Registration Act, 1908 (h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t prayers have been sought for, the sum and substance of the issue raised in these writ petitions is one and the same, where as to whether these petitioners are entitled to get their sale certificate/document concerned issued by the authorised officer in this regard as a evidence of title should be filed in Book No. 1 under Section 89(4) of the Act without insisting any stamp duty or not. 3. If this question is answered, the prayer sought for by these petitioners seeking mandamus to file the document in Book No. 1 under Section 89(4) as well as the mandamus seeking for the refund of the excess amount paid by them for registering certain document all can be decided. 4. Heard the learned counsel appearing for the petitioners who would submit that, the issue raised in these writ petitions is no more res integra as many number of Judgments have come on the issue i.e., the sale certificates being filed before the Registering Authority for filing the same in Book No. 1 maintained by them, whether to be accepted and filed without demanding any stamp duty and even though it is not a compulsorily registrable document within the meaning of Section 17(2)(xii), even then if registration is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2)(xii) of the Registration Act. He would also submit that, the nomenclature given to the document issued by the authorised officer would be irrelevant for exemption from paying of stamp duty. Unstamped sale certificate is a void document and no right would vest upon the auction purchaser of the property. 9. He would also submit that, whatever name the instrument is called whether certificate of sale or sale deed, the instrument is chargeable with stamp duty under Article 18 r/w Article 23 of schedule 1 to the Indian Stamp Act. 10. The learned Additional Advocate General would further contend that, the auction purchaser to choose the title to or the nomenclature of the document, neither he nor the purchaser has any choice with regard to the liability to pay the stamp duty. If they do not pay stamp duty and do not choose to have the document registered, it may be impermissible in evidence in view of Section 35 of the Indian Stamp Act and Section 49 of the Registration Act. 11. He would also submit that, in a case where certificate is granted by the civil officer, apart from the revenue officer, registration would not be compulsory, thus till it is not presented for registration, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintained by the Registering Authority. 17. In view of the said conflicting decisions made by two different Division Benches of this Court, it became necessitated to refer the matter to a Full Bench, which in Dr. R.Thiagarajan v. Inspector General of Registration reported in 2019 (4) CTC 839 had considered and decided. However, the Full Bench has approved the view taken by the Division Bench in Kanagalakshmi Ganaguru's case cited supra and disapproved the view taken in K.K.Thirumurugan's case cited supra. 18. Therefore, the respondents mainly relied upon these decisions, especially the Full Bench decision of this Court in Thiagarajan's case and stated that, when the law has been ultimately declared by this Court in a Full Bench decision, that alone should govern the field, therefore based on which, if we look at the issue raised in these writ petitions, the plea raised by them that, automatically if it is forwarded, the sale certificate shall be filed in Book No. 1 by the registering authority and the registration shall be undertaken by the registering authority by collecting only the lesser stamp duty as fixed already for this kind of documents, but not demanding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is compulsory : (2) Nothing in clauses (b) and (c) of sub-section (1) applies to- (xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue Officer."" Section 89 (4) of the Registration Act, reads as follows: ""89. Copies of certain orders, certificates and instruments to be sent to registering officers and filed.- (4) Every Revenue Officer granting a certificate of the 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." 13. A reading of Section 17(2)(xii) would show that a certificate of sale issued by a Civil or a Revenue Officer in evidence of a sale conducted by way of public auction is not compulsorily registrable. Section 89(4) imposes an obligation on the Revenue Officer, who conducts an auction sale to forward the certificate to the Registering Authority to enable him to file the same in Book-I maintained by him. Article 18 of the Stamp Act, deals w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mely a sale certificate observed as follows: "12. ...When a property is sold by public auction in pursuance of an order of the court and the bid is accepted and the sale is confirmed by the court in favour of the purchaser, the sale becomes absolute and the title vests in the purchaser. A sale certificate is issued to the purchaser only when the sale becomes absolute. The sale certificate is merely the evidence of such title. It is well settled that when an auction purchaser derives title on confirmation of sale in his favour, and a sale certificate is issued evidencing such sale and title, no further deed of transfer from the court is contemplated or required. In this case, the sale certificate itself was registered, though such a sale certificate issued by a court or an officer authorized by the court, does not require registration. Section 17(2)(xii) of the Registration Act, 1908 specifically provides that a certificate of sale granted to any purchaser of any property sold by a public auction by a civil or revenue officer does not fall under the category of non testamentary documents which require registration under sub-section (b) and (c) of Section 17(1) of the said Act. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ality Act 1920 or the Tamil Nadu Duty on Transfer of Property (In Municipal Areas) Act (32 of 2009). In doing so, this Court had followed the Judgment of the Single Judge in Dr. Meera Thinakaran v. State of Tamil Nadu & Others, and that of the Division Bench in K.Chidambara Manickam v. Shakeena & Others, referred to supra. 19. The very same question arose before another Division Bench of this Court in Inspector General of Registration v. Kanagalakshmi Ganaguru. This court had held that the authorised officer appointed by the Bank under the provisions of the SARFAESI Act, cannot be called a Civil or Revenue Court or Collector or Revenue Officer. However, the earlier decisions of this Court adverted to supra were not brought to the notice of the Hon'ble Division Bench which decided Inspector General of Registration v. Kanagalakshmi Ganaguru. Noting the apparent conflict between the Inspector General of Registration v. K.K.Thirumurugan, 2015 (1) CTC 526 (DB), which had taken the view that Section 47-A could not be invoked in a sale conducted under the SARFAESI Act, since there has no question of intentional under valuation of the property at a public auction and the judgment in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;ble Supreme Court in paragraph 16 of Esjaypee Impex Pvt Ltd v. Assistant General Manager and Authorised Officer, Canara Bank, as a corollary, the judgment of the Division Bench in Inspector General of Registration v. Kanagalakshmi Ganaguru, would also stand impliedly over ruled, in view of the subsequent decision of the Hon'ble Supreme Court. 23. The learned Special Government Pleader in her effort to sustain the view of the Division Bench in Inspector General of Registration v. Kanagalakshmi Ganaguru, would submit that even as late as on 16.09.2021, a Division Bench of this Court in Inspector General of Registration v. Prakash Chand Jain, has followed the judgment in Inspector General of Registration v. Kanagalakshmi Ganaguru, and the judgment of the Full Bench in Dr. R..Thiagarajan v. Inspector General of Registration's case. No doubt the Division Bench in Inspector General of Registration v. Prakash Chand Jain, had followed the decision of the Full Bench in Dr. R..Thiagarajan v. Inspector General of Registration's case. Unfortunately the decision of the Hon'ble Supreme Court in Esjaypee Impex Pvt Ltd v. Assistant General Manager and Authorised Officer, Canara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of stamp duty and registration charges payable, if such certificate is presented for registration. Article 18 of the Stamp Act, provides for Stamp Duty payable on a certificate of sale granted by a Civil or Revenue Court or Collector or other Revenue Officer. Clause (c) of Article 18 makes the duty payable for a conveyance would apply to a sale certificate also. Under Article 23 of the Stamp Act, the Stamp Duty payable on a sale is 5% as per G.O.Ms. No. 46CT and All Department dated 27.03.2012. As already pointed out since the document would not be a conveyance there is no question of payment of any surcharge either under Section 116A of the Tamil Nadu District Municipality Act 1920 or under the Tamil Nadu Duty on Transfer of Property (In Municipal Areas) Act (32 of 2009). 27. Insofar as the registration charges are concerned, the State Government has fixed the registration charges at 1% under Section 78 of the Registration Act and the same has been published in the Tamil Nadu Government Gazette, as required under Section 79 of the Registration Act. By G.O.Ms. No. 49 dated 08.06.2017, the following proviso was added to Article 1 of the table of the fees: "Provided further th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner(s) has made a valiant endeavor to persuade us to interfere with the impugned judgment(s) but not successfully. It is logically so as this issue has been repeatedly settled and if one may say, a consistent view followed for the last 150 years. We may refer to the judgments by the Madras High Court in the Board of Revenue No. 2 of 1875 (In Re: Case Referred) dated 19.10.1875 opining that a certificate of sale cannot be regarded as a conveyance subject to stamp duty, by the Allahabad High Court in Adit Ram v. Masarat-unNissa (MANU/UP/0089/1883) opining that a sale certificate is not an instrument of the kind mentioned in clause (b) of Section 17 of Act III of 1877 and is not compulsorily registrable and this Court's view in Esjaypee Impex Pvt. Ltd. v. Asst. General Manager and Authorised Officer, Canara Bank [(2021) 11 SCC 537)] opining that the mandate of law in terms of Section 17(2)(xii) read with Section 89(4) of the Registration Act, 1908 only required the Authorised Officer of the Bank under the SARFAESI Act to hand over the duly validated Sale Certificate to the Auction Purchase with a copy forwarded to the Registering Authorities to be filed in Book I as per Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spector General of Registration has proposed to levy filing fee for the sale certificate which is sent for filing whether issued by civil court or Revenue Officer or authorised officer of the bank under section 78 of the Registration Act, 1908. 2. The Government examined the proposal of the Inspector General of Registration and have decided to accept the same. Accordingly, the Government direct that the notification appended to this order will be published in an Extraordinary issue of the Tamil Nadu Government Gazette, dated the 23rd March 2023. The Works Manager, Government Central Press, Chennai-1 is requested to send 100 copies to the Government and 100 copies to the Inspector General of Registration, Chennai-28 of the Gazette Notification. (BY ORDER OF THE GOVERNOR)" The Appendix to this G.O is the notification to be issued in the Gazette, which reads thus : "Under section 78 of the Registration Act, 1908 (Central Act XVI of 1908), the Governor of Tamil Nadu hereby makes the following amendment to the Table of Fees published with the erstwhile Judicial Department Notification No. 177, dated the 30th March 1909 at pages 316-319 of Part I of the Fort St. George Gazette, da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 28.03.2023 as quoted herein above, the Government has stated that the Inspector General of Registration has stated that, the Hon'ble Supreme Court of India has ordered to file the sale certificate issued by the authorised officer of the bank under Section 89 of the Registration Act, 1908 without insisting stamp duty and registration fee. Therefore the Inspector General of Registration has proposed to levy filing fee for the sale certificate which is sent for filing whether issued by the Civil Court or Revenue Officer or Authorised Officer of the Bank, under Section 78 of the Registration Act, 1908. 35. This proposal made by the Inspector General of Registration was accepted by the Government, therefore the aforesaid amendment has come and Article 4A has been inserted. 36. By making these amendment, what they could not achieve directly by demanding a stamp duty of 7% and registration fee of 4% totally 11% now could be achieved by collecting in the name of filing fee of 11%. 37. Whether this kind of amendment could be permissible in view of the series of decision which has come from the law courts including the latest decisions from the Hon'ble Supreme Court of India, i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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