The legal principle established is that a claim for refund of stamp duty may not be sustainable during the currency of the order passed by the competent authority under the Indian Stamp Act, and there may be no legal obligation to refund the stamp duty.

K.K. SASIDHARAN, J

1. This writ appeal is directed against the order dated 27 April, 2010 in W.P.No.41808 of 2002 dismissing the writ petition filed by the appellant for issuance of a writ of Mandamus directing the third respondent to refund the excess stamp duty collected in respect of sale deed bearing No.1117 of 2002 dated 16 May, 2002.

Background Facts:

2. The appellant purchased a house property bearing Door No.5, Balaji Avenue I Street, T. Nagar, Chennai-17 in a public auction conducted to recover the mortgage amount due to M/s. Park Town Benefit Fund Ltd. The auction was conducted by a private auctioneer. Since the petitioner was the highest bidder, her bid was confirmed. Thereafter the document executed by the mortgagee was presented before the Sub Registrar. The Sub Registrar called upon the appellant to pay a sum of Rs.4,48,981/- by way of stamp duty on the basis of guideline value. Later she was asked to pay a sum of Rs.3,05,407/-. The appellant paid the stamp duty and thereafter filed a writ petition claiming refund.

3. The District Registrar filed a counter affidavit in answer to the contentions raised in the writ petition. According to the registration authority, the Sub Registrar entertained a doubt about the value of property shown in the document and based on the value shown in the guideline register maintained by the department, a demand was made to pay additional stamp duty. The appellant requested the Registration Officer by way of her letter dated 16 May 2002 to refer the matter to the Collector under Section 47-A (1) of the Indian Stamp Act. Accordingly the matter was referred to the Deputy Collector (Stamps), Chennai.

4. The Competent Authority after issuing notice to the appellant fixed the market value and called upon her to pay deficit stamp duty. The order was passed on 25 June, 2002. The appellant immediately remitted the deficit stamp duty.

5. The learned Single Judge found that the Deputy Collector exercising the power under Section 47-A has already passed an order determining the market value and so long as the said order is in force, the appellant cannot maintain a writ petition seeking direction to refund the stamp duty. Accordingly, the writ petition was dismissed. It is the said order which is impugned in this writ appeal.

Submissions:

6. The learned counsel for the appellant vehemently contended that by demanding the stamp duty on market value, the Registration Department has challenged the very sale and virtually the department made a challenge to the title itself. According to the learned counsel, though it was a private sale it has all the characteristics of a Court sale and as such the Registration Authority is bound to accept the amount shown in the document as the correct market value. It was further contended that the concept of "guideline rate" has no application in the matter of auction sale.

7. The learned Additional Government Pleader justified the order passed by the learned Single Judge.

The core issue:

8. The only question which arises for consideration in this writ appeal is whether the appellant has made out a case for issuance of a writ of Mandamus directing the respondents to refund the stamp duty not withstanding the currency of the order passed by the competent authority under Section 47-A of the Indian Stamp Act.

Discussion:

9. There is no dispute that the sale in question was a private sale. The bid submitted by the appellant was accepted by the auctioneer and accordingly the sale was confirmed in her name. The document was registered by the Sub Registrar and ultimately at the request of the appellant the matter was referred to the authority to determine the proper stamp duty under the Stamp Act. The competent authority fixed the market value and the said order was duly complied with by the appellant.

10. It is true that the auction was conducted by a private auctioneer. The fact that the sale was through a private auctioneer would not make it a court sale.

11. The p