"C.R."

1. Question raised for a decision in this revision is whether a document of sale executed pursuant to an agreement for sale and a decree for its specific performance passed before Section 28A of the Kerala Stamp Act, 1959 (for short, "the Act") as amended by the Kerala Finance Act, 2009 came into force is liable for stamp duty based on fair value of the land as on the date of registration if the document is presented for registration after Section 28A of the Act came into force?

2. Petitioner before me entered into an agreement to purchase the suit property from respondent No.1 as per an agreement dated 04.03.1995 for a total consideration of Rs.60,000/- and paid Rs.10,000/- as advance at the time of agreement. Though petitioner was ready and willing to perform his part of the contract and get the sale deed executed, respondent No.1 was not agreeable and that led to petitioner filing O.S. No.1243 of 1995 in the court of learned Principal Munsiff, Thrissur. That resulted in Annexure-III judgment dated 11.02.2000 and a decree for specific performance of the agreement for sale was granted permitting petitioner to get the sale deed executed on deposit of the balance sale consideration of Rs.50,000/- in court with notice to the respondents. It was also directed in the decree that respondent No.1 shall execute the sale deed in favour of petitioner on receipt/deposit of balance sale consideration within three months from the date of decree (11.02.2000) and in case respondent No.1 failed to do so, petitioner could get the sale deed executed through court. Respondent No.1 did not execute the sale deed and hence petitioner got the sale deed executed through court on 26.07.2010 (admittedly after Sec.28A relating to fair value of the land was introduced in the Act). That document was presented for registration before the Sub Registrar, Pazhayannor. The Sub Registrar as per Annexure-9, letter dated 07.08.2010 intimated the court that petitioner is liable to pay stamp duty in accordance with fair value for the land fixed as per Notification No.2435/2008 dated 17.11.2009. According to the Sub Registrar fair value of the land fixed as per the said Notification is Rs.3,61,900/- and hence petitioner is to pay stamp duty of Rs.25,333/-. Petitioner filed Annexure-A7, application before learned Sub Judge contending that he is liable to pay stamp duty only for the sum of Rs.60,000/-stated in the sale deed which is the real consideration since the sale deed was executed pursuant to the agreement for sale dated 04.03.1995. Learned Sub Judge directed petitioner to produce non-judicial stamp paper for the deficit amount. That order is under challenge in this revision. Learned counsel for petitioner contends that though the sale deed was executed through court on 26.07.2010 it was due to the failure of respondent No.1 to execute the sale deed pursuant to the agreement for sale dated 04.03.1995 and hence liability of petitioner to pay stamp duty has to be fixed as on the date fixed for performance of the agreement dated 04.03.1995.

3. On the above question I have heard learned Government Pleader to whom notice of this revision was given. I have also heard learned Senior Advocate, Shri T.Krishnanunni who appeared as Amicus curie. Learned Government Pleader and Learned Senior Advocate submitted that the liability to pay stamp duty has to be decided as on the day the document is presented for registration and in the present case since before that, Sec.28A was introduced in the Act petitioner is liable to pay stamp duty based on the fair value under the said provision. Reliance is placed on the decision in State of Rajasthan v. M/s.Khandaka Jain Jewellers (AIR 2008 SC 509), Abid v. Revenue Divisional Officer (2010 [3] KLT 419) and State Bank of Haryana v. Manoj Kumar (2010) 4 SCC 350).

4. Rule 34 of Order XXI of the Code of Civil Procedure (for short, "the Code") provides the procedure for execution of document as per a decree. Sub-rule(4)