2011 Supreme(Bom) 264

2011 (3) ALL MR 581
In the High Court of Bombay at Aurangabad
THE HONOURABLE MR. JUSTICE D.B. BHOSALE & THE HONOURABLE MR. JUSTICE R.M. BORDE
State of Maharashtra, Through Principal District Judge
Versus
Prashant s/o Pritamkumar Shegaonkar
REFERENCE CASE NO. 2 OF 2010
Decided on : 6-03-2011

Headnote:Civil Procedure Code, 1908 - Section 113, Order XLVI, Rule 1- Reference-Refund of stamp duty-Claim by auction purchaser on basis of judgments in 2007 AIR SCW 4080, AIR 1991 SC 410-Matter cannot be referred to High Court for interpreting decision of Apex Court-Reference not in consonance with provisions Section 113 of Code-Incompetent.-The District Judge in his statement has opined that the judgment of the Apex Court cited before him is not applicable to the matter at hand and cannot be made applicable for the purpose of interpreting he provisions of Bombay Stamps Act or Order XXI, Rule 85 of the Code of Civil Procedure. The District Judge, however, though that interpretation of the case of the Hon’ble Supreme Court can be made only by the High Court and as such referred the matter under Section 113 of the Code of Civil Procedure. It was for the District Judge to apply and interpret the law and proceed to decide the matter. The matter cannot be referred to the High Court for interpreting the decision of the Supreme Court in context of its applicability of the matter in hand. In view of the reason recorded above, of the considered opinion that the reference made by the Principal District Judge is incompetent and is not in consonance with the provisions of Section 113 of the Code of Civil Procedure.

       Civil Procedure Code, 1908 - Section 113, Order XLVI, Rule 1, Order XXI, Rule 84-Bombay Stamp Act, 1958, Section 2(1), Schedule 1, Clause 16-Reference-Refund of stamp duty-Claim by auction purchaser-Neither applicant nor District Judge challenged validity of any provisions of either of CPC or Stamps Act-Requirement under Section 113 of Code not satisfied-Reference made by District Judge incompetent-Not sustainable.-On consideration of the provisions of Section 113 of the Code of Civil Procedure as well as the statement forwarded by the District Judge in accordance with Order XLVI, Rule 1 of the Code of Civil Procedure, are of the considered opinion that the reference made by the District Judge is uncalled for. Neither the applicant before the District Court in an application has raised challenge to validity of any of the provisions either of the Code of Civil Procedure or the Stamps Act, nor the District Judge has expressed his opinion as regards invalidity of any of the provisions of the Bombay Stamps Act or Order XXI, Rule 85 of the Code of Civil Procedure in its applicability to the State of Maharashtra. The requirement laid down in proviso to Section 113 of the Code of Civil Procedure has not been satisfied and as such the reference made by the District Judge is incompetent.

       Civil Procedure Code, 1908 - Order XXI, Rules 85 and 94- Bombay Stamps Act, 1958, Section 2(1), Schedule 1, Clause 16-Registration Act, 1908, Section 17(1)(2)-Stamp duty-Refund of-Claimed by auction purchaser-Levy of Stamp duty payable on different categories of instruments provided by Bombay Stamps Act-Section 17(1) of Registration Act provide for categories of documents of which registration in necessary-Section 17(2) provide for document categories to which provisions 17(1)(b)(c) not applies-Both enactments operate in different fields-Claim of refund liable to be rejected.-Sub-section (2) of Section 17 provides of for categories of documents to which the provisions of clauses (b) and (c) of sub-section (1) of Section 17 do not have applicability. Both the enactment i.e. Bombay Stamps Act and Registration Act, 1908 operate in different fields.

       Civil Procedure Code, 1908 - Order XXI, Rules 85 and 94-Bombay Stamps Act, 1958, Section 2(1), Schedule 1, Clause 16-Stamp duty-Refund of-Claimed by auction purchaser-As sale certificate not "instrument" of sale-Sale certificate is instrument chargeable with stamp duty-Claim for refund not tenable -Liable to be rejected.-For the purpose of the Stamp Act, a sale certificate is an instrument chargeable with stamp duty as prescribed under Clause 16 of Schedule I of the Bombay Stamps Act, 1958. The provisions of Bombay Stamps Act provide for levy of stamp duty payable on different categories of instruments.

       Schedule I of the Bombay Stamps Act prescribes stamp duty payable on instruments and clause 16 of Schedule I provides for stamp duty payable on a certificates of sale.