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HIGH COURT OF CALCUTTA
M.S. SHAH, SOUMITRA PAL, SANJIB BANERJEE, JJ.
State Of West Bengal - Appellant
Versus
Sati Enclave Pvt. Ltd - Respondent
G.A. No.1660 of 2008
Decided on : May 13, 2010
STAMP DUTY - Court sale - Whether provisions of Section 47A of the Indian Stamp Act read with Rule 3 of the West Bengal Stamp (Prevention of Under-valuation of Instruments) Rules, 2001 are applicable to an instrument executed pursuant to an order of sale passed by a Civil Court in a suit for partition which is conducted by a Receiver appointed by the Civil Court, by auction, after publication in newspapers.
Fact of the Case:
In a suit for partition, a learned Single Judge of this Court passed order for sale of the land in question. On 8th March, 2006 the Joint Receivers appointed by the Court issued an advertisement in the leading daily newspaper for sale of the plots above mentioned. At the auction several parties participated and by order dated 5th September, 2006 the learned Single Judge noted that as per the report of the Joint Receivers, the offer made by one Priya Dutta at the rate of Rs.1,88,500/- per cottah was the highest, but she had not paid the entire earnest money stipulated at the rate of 10% of the bid amount- the earnest money accordingly required to be deposited was Rs.7,86,995/-. Respondent No.3 in the suit (respondent No.1 in the appeal), another bidder, also offered to match the bid amount at the same rate of Rs.1,88,500/- and to pay the entire earnest money within 3 days. The Court directed that if respondent No.3 did not pay the earnest money within 3 days, the Joint Receivers shall proceed for conveying the property to the next highest bidder whose bid was for Rs.1,88,000/- per cottah. In the event the earnest money was paid by respondent No.3 by demand draft within 3 days as directed above, respondent No.3 shall be given further two week’s time to pay the balance bid amount. Respondent No.3 paid the earnest money within the stipulated time and also paid the consideration money by matching the highest offer of Rs. 1,88,500/-. BY order dated 4th December, 2006 the learned Single Judge accepted the offer of respondent No. 3 in the suit (respondent No.1 in the appeal) and confirmed the sale in favour of the said party. The learned Single Judge further directed by the said order that the aforesaid consideration being the actual consideration for the property would be treated as value of the property for the purpose of registration and stamp duty. - ACCORDINGLY, the Joint Receivers executed the conveyance in favour of respondent No.3 in the suit and presented the same for registration on 16th May, 2007 for conveying the property in question for sale consideration of Rs.78,69,875/-. Stamp duty of Rs.5,48,810/- and registration-fee of Rs.86,650/- were also paid. However, on 14th December, 2007 the Registrar of Assurances issued notice under Section 47A(2) of the Indian Stamp Act, 1899 calling upon the Joint Receivers and the other parties to the conveyance intimating that the market value of the above property was assessed by the registering officer at Rs. 7,76,69,838/- on which deficit stamp duty of Rs.48,85,888/- and deficit registration fee of Rs.7,67,800/- were required to be paid.
Finding of the Court:
The Court held that the provisions of Section 47A of the Indian Stamp Act, 1899 as applicable to West Bengal read with Rule 3 of the West Bengal Stamp (Prevention of Under-valuation of Instruments) Rules, 2001 are not applicable to an instrument executed by a Receiver pursuant to an order of sale passed by a Civil Court after publication in the newspapers.
Issues: Whether the provisions contained in Section 47A of the Indian Stamp (West Bengal Amendment) Act read with Rule 3 of the West Bengal Stamp (Prevention of Under-valuation of Instruments) Rules, 2001 are applicable to an instrument executed pursuant to an order of sale passed by a Civil Court in a suit for partition which is conducted by a Receiver appointed by the Civil Court, by auction, after publication in newspapers.
Ratio Decidendi: 1. Section 47A of the Indian Stamp Act, 1899 as applicable to the State of West Bengal and the West Bengal Stamp (Prevention of Under-valuation Instruments) Rules, 2001 are enacted/made to deal with cases where the property is not sold in open market. 2. A Court sale after newspaper advertisement is an open market sale.
Final Decision: The matter shall go back to the concerned Courts for hearing in light of the answers given by the Court.
Shah, C.J :
1. THE judgment of the Court was as follows:-
THE question referred by the Division Bench for our opinion is:-
"Whether the provisions contained in Section 47A of the Indian Stamp (West Bengal Amendment) Act read with Rule 3 of the West Bengal Stamp (Prevention of Under-valuation of Instruments) Rules, 2001 are applicable to an instrument executed pursuant to an order of sale passed by a Civil Court in a suit for partition which is conducted by a Receiver appointed by the Civil Court, by auction, after publication in newspapers."
2. FOLLOWING the above reference, a learned Single Judge of this Court has also referred the following question for our consideration:-
"Whether the consideration money fetched for sale of a property in course of liquidation proceedings before the Company Court upon re-advertisement, falling short of the reserve price mentioned in the initial advertisement, or the price so fetched although higher than the reserve price but in the opinion of the registering authority is lower than the market value determinable under Rule 3 of the West Bengal Stamp (Prevention of Undervaluation of Instruments) Rules, 2001, should be treated to be the market value for the purpose of registration and stamp duty and thus provisions of Section 47A of the Stamp Act (West Bengal Amendment) read with Rule 3 framed thereunder would have no application to such Court sale ?"
The facts giving rise to the appeal being A.P.O.T. No. 196 of 2008, broadly stated, are as under:
3. IN a partition suit, being Extraordinary Suit No.32 of 1987, a learned Single Judge of this Court passed order dated 15th September, 1987 for sale of the land in question, being Premises No.20 to 20/14 (Except 20/10) Chetla Flat Road, Kolkata-700027. The land measures 41 cottahs and 21 chittacks, that is, approximately 2800 square meters.
4. ON 8th March, 2006 the Joint Receivers appointed by the Court issued an advertisement in the leading daily newspaper (The Telegraph) for sale of the plots above mentioned. At the auction several parties participated and by order dated 5th September, 2006 the learned Single Judge noted that as per the report of the Joint Receivers, the offer made by one Priya Dutta at the rate of Rs.1,88,500/- per cottah was the highest, but she had not paid the entire earnest money stipulated at the rate of 10% of the bid amount- the earnest money accordingly required to be deposited was Rs.7,86,995/-. Respondent No.3 in the suit (respondent No.1 in the appeal), another bidder, also offered to match the bid amount at the same rate of Rs.1,88,500/- and to pay the entire earnest money within 3 days. The Court directed that if respondent No.3 did not pay the earnest money within 3 days, the Joint Receivers shall proceed for conveying the property to the next highest bidder whose bid was for Rs.1,88,000/- per cottah. In the event the earnest money was paid by respondent No.3 by demand draft within 3 days as directed above, respondent No.3 shall be given further two week
Respondent No.3 paid the earnest money within the stipulated time and also paid the consideration money by matching the highest offer of Rs. 1,88,500/-.
5. BY order dated 4th December, 2006 the learned Single Judge accepted the offer of respondent No. 3 in the suit (respondent No.1 in the appeal) and confirmed the sale in favour of the said party. The learned Single Judge further directed by the said order that the aforesaid consideration being the actual consideration for the property would be treated as value of the property for the purpose of registration and stamp duty. -
6. ACCORDINGLY, the Joint Receivers executed the conveyance in favour of respondent No.3 in the suit and presented the same for registration on 16th May, 2007 for conveying the property in question for sale consideration of Rs.78,69,875/-. Stamp duty of Rs.5,48,810/- and registration-fee of Rs.86,650/- were also paid. However, on 14th December, 2007 the Registrar of Assurances issued notic
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