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IN THE HIGH COURT OF BOMBAY
S.P. Kurdukar K. Sukumaran, JJ.
State of Maharashtra and others... Appellants.
Versus
M.S. Builders (Private) Limited and another... Respondents.
Appeal No. 224 of 1991 in Writ Petition No. 1568 of 1984, Appeal No. 238 of 1991 in Writ Petition No. 198 of 1985 with Writ Petition No. 2134 of 1986, Appeal No. 275 of 1991 in Writ Petition No. 2215 of 1985. Appeal No. 276 of 1991 in Writ Petition No. 2240 of 1985, Appeal No. 551 of 1991 in Writ Petition No. 1025 of 1986, Writ Petition No. 1031 of 1990, Writ Petition No. 1720 of 1985, Writ Petition No. 332 of 1986, Writ Petition No. 1860 of 1986, Writ Petition No. 2945 of 1986, Writ Petition No. 3082 of 1986, Writ Petition No. 3326 of 1986, Writ Petition No. 3351 of 1986, Writ Petition No. 3423 of 1986, Writ Petition No. 39 of 1987, Writ Petition No. 1180 of 1987, Writ Petition No. 2333 of 1987, Writ Petition No. 1865 of 1988, Writ Petition No. 1867 of 1988, Writ Petition No. 2792 of 1989, Writ Petition No. 3031 of 1989, writ Petition No. 3255 of 1989 Writ Petition No. 3623 of 1989, decided on 13-2-1992.
Advocates appeared :
Miss P.D. Anklesaria, L.C. Chogle, Govt.Pld., for appellants in A.No. 224/1991.
D.J. Khambata, G.S. Patel i/b. D.N. Nanavati, for respondents in A. No. 224/1991.
Miss P.D. Anklesaria, L.C. Chogle, G.P., for the appellants, in A. No. 238 of 91.
D.J. Khambata, G.S. Patel i/b N.C. Dalal and Co., for respondent in A. No. 238 of 91, in W.P. No. 198 of 1985 with W.P. No. 2134 of 1986.
Miss P.D. Anklesaria with A.R. Kini, for the appellants, in A. No. 275 of 91.
S.T. Tijoriwala, with S.N. Vimadalal, for the respondents, in Appeal No. 275 of 91.
Miss P.D. Anklesaria, with A.R. Kini for the appellants, in A. No. 551 of 91.
S.T. Tijoriwala, S.N. Vimadalal for the respondents, in Appeal No. 276 of 1991.
Miss P.D. Ankalesaria, A.K. Chawla forappellants, in W.P. No. 1031 of 1990.
M.M. Bhandari, for respondent in Appl. No. 551 of 1991 in W. P. No. 1025 of 1986.
Dr. Y. Chandrachud i/b Ambubhai Diwanji for petitioners, in W.P. No. 1031 of90.
Miss P.D. Anklesaria, with A.K. Chawla for the respondents, in Writ Petition No. 1031 of 1990.
M.V. Patel i/b Estley Lam Co. for the petitioners, in W. P. No. 1720 of 91.
Miss P.D. Anklesaria, C.U. Bora for respondents, in Writ Petition No. 1720 of 1985.
M.P.S. Rao, H.K. Shroff i/b Rustamji and Ginwala for the petitioners, in W.P. No. 332 of 1986.
Miss P.D. Anklesaria with C.U. Bors, for respondents, in W.P. No. 332 of 1986.
Shah and Sanghvi, for the petitioners, in Writ Petition No. 1860 of 1986.
Miss P.D. Anklesaria, A.K. Chawla for respondents, in W.P. No. 1860 of 1986.
Mahesh N. Vepari, for the petitioners, in Writ Petition No. 2945 of 1986.
Miss P.D. Anklesaria, C.U. Bora for respondents, in Writ Petition No. 2945 of 1986.
M.P.S. Rao, H.K.Shroff i/b Rustomji and Ginwala, for petitioners, in W.P. No. 3082 of 1986.
Miss P.D. Anklesaria, S.A. Kirtikar for respondents, Writ Petition No. 3082 of 1986.
Vinod Mistry and Company for the petitioners, in Writ Petition No. 3326 of 1986.
Miss P.D. Anklesaria with L.C. Chogle, for respondents, in W.P. No. 3326 of 1986.
Mahesh N. Vepari, for the petitioners, in Writ Petition No. 3351 of 1986.
Miss P.D. Anklesaria, A.K. Chawla for respondents, in W.P. No. 3351 of 1986.
M.P. Savla and Co., for the petitioners, in Writ Petition No. 3423 of 1986.
Miss P.D. Anklesaria with S.M. Shah, for respondents, in W.P. No. 3423 of 1986.
D.H. Nanavati, for petitioners, in Writ Petition No. 39 of 1987.
Miss P.D. Anklesaria with S.M. Shah, for respondents, in W.P. No. 39 of 1987.
Miss Mirashi i/b. Shah and Sanghavi, for petitioners, in W.P. No. 1180 of 1987.
Miss. P.D. Anklesaria with S.M. Shah for respondents, in Writ.P. No. 1180 of 1987.
Mulla Mulla, Craigie Blunt and Caroe, for petitioners, in W.P. No. 2333 of 1987.
Miss P.D. Anklesaria with S.M. Shah, for respondents, in W.P. No. 2333 of 1987.
M.L. Chaturvedi, for the petitioners, in Writ Petition No. 1865 of 1988.
Miss P.D.Anklesaria with S.M. Shah, for respondents, in W.P. No. 1865 of 1988.
M.L. Chaturvedi, for the petitioners, in Writ Petition No. 1867 of 1988.
Miss P.D. Anklesaria with S.M. Shah, for respondents, in W.P. No. 1867 of 1988.
S.N. Vimadalal i/b Vinod Solanki, for petitioners, in Writ Petition No. 2792 of 1989.
Miss P.D. Anklesaria with A.K. Chawla, for respondents, in W.P. No. 2792 of 1989.
Kapadia and Co., for the petitioners, in Writ Petition No. 3031 of 1989.
Miss P.D. Anklesaria with A.K. Chawla, for respondents, in W.P. No. 3031 of 1989.
D.D. Madon, with H.N. Vakil i/b. Mulla and Mulla Craigie Blunt and Caroe , for the petitioners, in Writ Petition No. 3255 of 1989.
Miss P.D. Anklesaria with N.T. Saraf, for respondents, in W.P. No. 3255 of 1989.
N.A. Shah i/b Bhatt and Co., for the petitioners, in W.P. No. 3623 of 89.
Miss P.D. Anklesaria with N.T. Saraf, for respondents, in W. P. No. 3623 of 1989.
Section 2 (2) and Order 23 Rule 1-Consent decree-It is document Consent decree in question creates, transfers, extinguishes or records rights and liabilities of parties-Such a consent decree possessing every attribute of term instrument -Held-Such a consent decree is a document and instruments and well within inclusive definition of convey and for purpose of stamp duty.
INTERPRETATION OF STATUTE
Precedents- Doctrine of stare devises- Whether not to be applied in view of fact that earlier Full Bench decision clearly distinguishable from subsequent decision is of Supreme Court.
Held- The decision of Full Bench (AIR 1935 Bom 256) is clearly distinguishable and the ratio of the said judgment does not hold the field in view of the various decisions of the Supreme Court giving different angles to the property rights under Article 311 of the Constitution. If the doctrine of stare devises is accepted the result is grave, in a sense that the transactions involving transfer of immoveable properties of lacs and lacs of rupees covered by such consent decrees would fall outside the purview of the Stamp Act and consequently the State would lose a substantial revenue. It is therefore, not in the public interest to apply the doctrine of stare devises.
STAMP ACT, 1958
Sections 2 (1) & 2 (8)-Schedule I, Entry 25 (a) (as amended by Act No. 27 of 1985)-Instrument-Consent decree-Parties agreeing that consent decree would operate as a conveyance.
In such a case consent decree is an instrument liable for stamp duty.
Section 2 (g) (as amended by Act 27 of 1985) - Whether amendment not to cover consent decree prior to 10th December, 1955.
Held-Amendment not remedial one. It is by way of classification. Hence it cannot be said that it will be applicable prospectively and will not cover consent decree prior to date of 10th of December, 1955.
S.P. KURDUKAR, J.:---These two appeals and other connected matters which were heard together raise common question of law under the Bombay Stamp Act, 1958. We heard advocates for parties in all these matters and we propose to dispose of them by this common judgment.
2. The common question of law raised in all these matters is as to whether a consent decree whereunder title to immovable property is conveyed falls under the definition of `conveyance' under section 2(g) of the Bombay Stamp Act, 1958 - hereinafter referred to as "the Act", or an `instrument' under section 2(1) of the Act or such consent decree falls outside the ambit and scope of the definition of `conveyance' or `instrument' under the Act. According to the appellants (State of Maharashtra and Others) consent decree is clearly covered by the definition of "conveyance" under the Act or at any rate an `instrument' falling under the definition of section 2(1) of the Act. According to the respondents 1 and 2 - the writ petitioners, the consent decree does not fall either in the definition of `conveyance' or `instrument' under the Act. This is the main controversy which requires to be considered in these matters.
3. The consent decrees in all these matters are almost identical and for the purpose of this judgment, we will set out the relevant facts in Appeal No. 238 of 1991. This appeal arises out of a decision dated 10-12-1990 rendered by a learned Single Judge in Writ Petition No. 198 of 1985. The learned Single Judge while construing the definition of `conveyance' under section 2(g) and `instrument' under section 2(1) of the Act, held that the consent decree does not fall in any of these definitions and therefore, such a consent decree is not liable for payment of stamp duty. Learned Single Judge drew support to his interpretation from the decision of this Court in (Sharanbasappa Tippanna Indi v. Sanganbasappa Sridramappa Sahapur and others)1, A.I.R. 1935 Bom. 256 : 37 Bom.L.R. 246. Consequently the learned Single Judge allowed the writ petition. It is this judgment of the learned Single Judge which is sought to be challenged in this appeal.
4. M/s. Ruby Sales and Services Private Limited 1st respondent-writ petitioners (plaintiffs) on 17th April, 1984 obtained a consent decree in Suit No. 321 of 1984 against Mukesh Dehyabhai Patel and others. It was a suit filed by the plaintiffs against the defendants for specific performance of the agreement for sale dated 18th October, 1982. On the basis of the consent terms filed by the parties in Court, the Court on 17.4.1984 passed a decree (consent decree). We may reproduce some of the recitals in the consent decree which have got bearing upon the controversy raised before us. Consent decree is at pages 19 to 25 of the compliation, and it recites, "...and the suit being this day called on for hearing and final disposal and the plaintiffs and the defendants appearing by their respective advocates and at this stage the parties hereto through their advocates consenting to the following order and decree, this Court by and with such consent both order and decree that sale dated 18th day of October, 1982 being Exhibit `B' to the plaint and do grant, sell, convey, assign, transfer, release and assure in favour of the plaintiffs, the immovable property comprising of the pieces or parcels of land..." "...And this Court by and with such consent both record that on or before execution of the consent terms herein, the plaintiffs have paid to the defendants and the defendants have received from the plaintiffs the sum of Rs. 9,55,000/- (Rupees Nine Lakhs Fifty Five Thousand) being the full amount of the agreed purchase price of the said property and the defendants do and each of them both hereby admit and acknowledge receipt of the said agreed purchase price of the said property more particularly described in Exhibit `A' to the plaint being the same property as described in the Schedule hereto and do hereby acquit, release and disch
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