IMPORTANT POINT
The judgment established that the sale conducted by the AO under the SARFAESI Act is equivalent to a sale in the open market and exempt from scrutiny under Section 47A of the 1899 Act.

JUDGMENT :

Tapabrata Chakraborty, J.

1. The present appeal has been preferred challenging an order dated 12th March, 2019 passed in a writ petition being WP No. 2600 (W) of 2019.

2. Shorn of unnecessary details, the facts are that one Sujit Dutta along with one Subhajit Dutta mortgaged all that part and parcel of the property consisting of entire commercial land & building on Burdwan Kalna Road covering land area of 9.00 decimal and building area of 5689 square feet (hereinafter referred to as the said property) with the United Bank of India, Burdwan Branch (hereinafter referred to as the bank) for obtaining financial facility of Rs.40,38,106/-. As they subsequently failed to repay the loan, the bank took possession of the said property by invoking the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the SARFAESI Act). The writ petitioner/appellant herein, namely, Atanu Mondal (in short, Atanu) participated in the auction conducted by the bank and emerged to be highest bidder. Upon payment of the bid amount of Rs.39,00,000/-, sale certificate was issued by the Authorised Officer (hereinafter referred to as the AO) of the bank and possession of the property was handed over to Atanu, who thereafter applied for online query on 8th August, 2018 being query no. 023-00011280728/2018 and in response thereto, the valuation of the said property was assessed to be Rs.1,71,19,140/- and 6% of the valuation, i.e., Rs.10,27,158/- was quantified to be the stamp duty. Atanu thereafter submitted several representations praying for cancellation of the impugned assessment done by the registering authority contending inter alia that stamp duty ought to have been quantified on the basis of the sale price indicated in the sale certificate but in vain and as such Atanu was constrained to prefer the writ application.

3. By the order impugned in the present appeal the writ petition was dismissed observing inter alia that following the judgment delivered in the case of Anil Kamal Singh vs. The State of West Bengal & Ors., reported in 2017(1) Cal LJ (Cal) 609, wherein it was held that the market price will be as determined by the registering authority, no interference is called for.

4. Ms. Jhuma Sen, learned advocate appearing for the appellant argues that the issue involved in the writ petition was considered earlier in the cases of Anil Kamal Singh (supra), Vitarich Agro Food India Ltd. vs. State of West Bengal and Glovi Infracon LLP vs. Inspector General of Registration and C.S.R, reported in 2017 OnLine Cal 9368 and it was decided that AO, acting under the provisions of the SARFAESI Act, cannot be said to be a Court and as such stamp duty is chargeable on assessment under Section 47A of the Indian Stamp Act, 1899 (hereinafter referred to as the 1899 Act) and that the judgments delivered in the cases of State of West Bengal vs. Sati Enclave, reported in 2010 (3) CHN 651 and V.N. Devadoss vs. Chief Revenue Control Officer-cum-Inspector, reported in (2009) 7 SCC 438 are distinguishable. The said decisions were not agreed to by a learned Single Judge in the case of Ballyfabs International Limited & another vs. State of West Bengal and Ors., reported in 2021 SCC OnLine Cal 421 and the matter was referred for placement before a larger Bench for deciding as to ‘whether a sale conducted by an Authorized Officer under the SARFAESI Act, 2002 is an open market sale and is thus excluded from the scrutiny contemplated in Section 47A of the Indian Stamp Act, 1899 (as amended in West Bengal)’. The matter was, accordingly, placed before a Division Bench and upon contested hearing the said Hon’ble Division Bench was pleased to deliver a judgement on 22nd April, 2022 answering the reference as follows : -

‘The sale conducted by the authorized officer in exercise of the powers conferred under Rule 8 of the Security Interest (Enforcement) Rule, 2002 by public auction or by invit