IMPORTANT POINT
Refund of stamp duty – When State deals with a citizen it should not ordinarily rely on technicalities even though such defences may be open to it – Period of expiry of limitation prescribed under any law may bar remedy but not right.

1. Leave granted.

2. The instant appeal is directed against the judgment and order impugned dated 02.08.2019 passed by the High Court of Judicature at Bombay in Writ Petition No. 281 of 2019 whereby the High Court, dismissed the appellant’s demand for refund of Stamp Duty paid towards an un-executed conveyance deed. In effect, the impugned order has upheld the orders of respondent nos. 1 and 2 dated 09.06.2015 and 25.02.2016 rejecting the aforesaid demand of the appellant.

3. Briefly stated, the facts of the matter are that the appellant agreed to purchase the property bearing C.T.S. No. 340.340/1 to 340/14 of Kurla-1 Division situated lying and being Fitwalla Cottage, Fitwalla Compound Bazaar Ward, Old Agra Road, Kurla (West), Mumbai-400070 from the Vendor - Mohammed Hanif Ahmed Fitwala and to that effect, they prepared a deed of conveyance which was sent for adjudication to respondent no. 1 on 07.05.2014 for payment of stamp duty, which was assessed at Rs. 25,34,350 (Rupees Twenty-Five Lakhs Thirty-Four Thousand Three Hundred Fifty Only). Accordingly, the appellant paid this sum and purchased the stamp duty on 13.05.2014 for registration of conveyance deed.

4. Albeit, the stamp duty was paid by the appellant to respondent no. 1 on 13.05.2014, said conveyance deed was not lodged for registration as the vendor of the appellant by playing fraud on the appellant had earlier sold the said property to a third party in 1992. However, before executing the said conveyance deed, the appellant had given a public notice but nobody objected to the said transaction. Thereafter, in view of these facts, the appellant decided to cancel the said transaction, for which he tried to contact the said vendor but he was not available, compelling the appellant to file a complaint with the Police Authority. Thereafter, the Vendor executed the cancellation deed on 13.11.2014. However, the appellant had on 22.10.2014 already applied online for refund of the said amount as per Section 48 of the Maharashtra Stamp Act, 1958¹ [‘Act’] and had filed written application on 06.12.2014 along with the documents. The appellant’s case was rejected by respondent nos. 1 & 2 on the ground that the application filed by her was beyond the limitation period as per Section 48 of the Act.

5. The learned counsel for the appellant submits that the appellant’s case is squarely covered within the circumstances laid down in Section 47 (c) (1) and (5) of the Act and Rules 21 and 22A of the Bombay Stamp Rules, 1939² [‘Rules’] which read as under:

“47. (c) the stamp used for an instrument executed by any party thereto which:

(1) has been afterwards found (by the party) to be absolutely void in law from the beginning; 2(1A) has been afterwards found by the Court, to be absolutely void from the beginning under section 31 of the Specific Relief Act, 1963.

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(5) by reason of the refusal of any person to act under the same, or to advance any money intended to be thereby secured, or by the refusal or non-acceptance of any office thereby granted, totally fails of the intended purpose.”

“21. Evidence as to circumstances of claim to refund or renewal.

The collector may require any person claiming a refund or renewal under chapter v of the Act, or his duly authorized agent, to make oral deposition oath or affirmation, or to file an affidavit, setting forth the circumstances under which the claim has arisen, and may also' if he thinks fit, call for the evidence of witnesses in support of the statement set forth in any such deposition or affidavit.

NOTES

Claim for refund of stamp duty.

Under rule 21 where a claim for refund of stamp duty is made, the procedure laid down under the rule to take evidence by the Collector. Accordingly, the Collector may direct any person claiming a refund under Chapter v to make an oral deposition on oath or affirmation or to file an affidavit, setting forth the circumstances under which the claim has arisen and if he thinks fit call all evidence of witnesses in su