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2016 Supreme(Guj) 2066
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
M.R. SHAH, J.B. PARDIWALA and N.V. ANJARIA, JJ.
O.P.G. POWER LTD. - Applicants
Versus
CHIEF CONTROLLING REVENUE AUTHORITY - Respondents
STAMP REFERENCE NO. 3 of 2012
Decided On : 22-08-2016
For the Applicants : MIHIR THAKORE, SANDEEP, SHAMIK BHATT, for SINGHI & CO,
For the Respondents: MANISHA LAVKUMAR, NISHA THAKORE
IMPORTANT POINT: When the other documents/agreements are referred to the instrument in question the same are also required to be considered while considering the intent and the purpose and object of the execution of the instrument in question and one cannot go by the title only.
Headnote:(A)Stamp Reference---The Bombay Stamp Act, 1958---Section4,5,6, 54(1a)---Section 4 deals with single transaction completed in several instruments, whereas Section 5 deals only with the instrument which comprises more than one transaction and it is immaterial for the purpose whether those transactions are of the same category or of different categories.
(B) Distinct Transactions---Altogether 13 banks lent money to the mortgagor----The borrower entered into separate loan agreements with 13 financial institutions---Had this borrower entered into a separate mortgage deed with financial institutions in order to secure the loan there would have been a separate document for distinct transactions---On proper construction of indenture of mortgage it can safely be regarded as 13 distinct transactions which falls under Section 5 of the Act.
(C)Nature of Document---To appreciate the nature of document/ instrument, one is required to consider the intent behind the same---When the other documents/agreements are referred to the instrument in question the same are also required to be considered while considering the intent and the purpose and object of the execution of the instrument in question and one cannot go by the title only.
M.R. SHAH, J.
1.0 Present Stamp Reference is made under Section 54(1a) of the Bombay Stamp Act, 1958 (hereinafter referred to as “Stamp Act”) by the Chief Controlling Revenue Authority, Gujarat State, Gandhinagar for the opinion of this Court on the following two questions.
(1) The deed of “Memorandum of Entry in the Title Deed” which was registered on dated 21.05.2009 vide registered No. 1778 registered at office of Sub-Registrar, Mundra (District Kutch). The applicant has paid Rs.3,00,000/-. Whether as per the provision of Sections 5, 3(a), 3(b) and Schedule-1’ s Article 36(b) the applicant is required to be paid deficit stamp duty of Rs.39,02,000/- or not?
(2) The deed of “Memorandum of Entry in the Title Deed” which was registered on dated 21.05.2009 vide registered No. 1778, registered at office of Sub-Registrar, Mundra (District Kutch) by the applicant is required to be considered as per Schedule-1’s Article 6 as per simple mortgage and whether the applicant is required to pay Rs.3,00,000/- or not?
2.0 The brief facts of the case leading to the presentation of this Reference may be summed up thus:-
2.1 That one M/s. OPG Power Gujarat Pvt. Limited (hereinafter referred to as “original applicant”) has obtained financial common/loans from Punjab National Bank and certain other financial institutions (hereinafter referred to as “Lenders”) under, inter alia (a) “Common Terms Schedule” containing the terms and conditions common to the borrowing from each of the Lenders.
2.2 That the said terms and conditions under the Common Terms Schedule, for disbursement of loans Rs.950 Crores by the Lenders, and also included creation of common security (based on terms and conditions) in favour of the Lenders over the movable and immovable assets of the applicant, pursuant to which applicant had executed intercreditor agreement (Memorandum of Entry in the Title Deed) for the appointment of trustee in favour of the Punjab National Bank, acting as the “Security Trustee” for the benefit of the Lenders on 12.11.2008, on which a stamp duty of Rs.3 lac was paid.
2.3 That the Punjab National Bank has been appointed as the Security Trustee under a Memorandum of Entry in the Title Deed dated 21.05.2009 executed between the Lenders and Punjab National Bank.
2.4 That the Lenders have settled the Trust for beneficial interest of the Lenders and appointed Punjab National Bank as the Security Trustee thereunder. That (a) “Common Loan Agreement” dated 12.11.2008 came to be executed which was signed by the original applicant as borrower and Punjab National Bank as Facility Agent as well as Security Trustee. Under the said Agreement the Lenders had agreed to extend to the borrower the facilities as stated to the maximum extent of Rs.950 Crores. That the said Agreement was signed by all the Lenders including the Punjab National Bank as well as the original applicant.
2.5 That on the very same day i.e. 12.11.2008, another document titled as “Security Trustee Agreement” came to be executed between the Lenders specified in Schedule I as 1st Part of the Agreement and original applicant as 2nd Part of the Agreement and Punjab National Bank “Security Trustee” as 3rd Part of the Agreement. It appears that the said Agreement was executed pursuant to the Common Loan Agreement and to appoint Punjab National Bank to act as the Security Trustee for the Lenders. That the said Agreement was also signed by all the Lenders along with the original applicant (borrowers) thereby accepting and authorizing the Punjab National Bank to act as Security Trustee on behalf of the Lenders.
2.6 It appears that pursuant to the execution of “Common Loan Agreement” and the “Security Trustee Agreement”, all the Lenders and the Punjab National Bank entered into another document titled as “Intermediate Credit Agreement”. The said document was also executed on the very same day i.e. 12.
