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2020 Supreme(Mad) 1891
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
M. GOVINDARAJ, J.
M/s. A.G. Neuro Hospitals (P) Ltd. – Appellant
Versus
The Inspector General of Registration and Chief Controller of Revenue Authority, Chennai and Others – Respondents
C.M.A. No. 261 of 2009, M.P. Nos. 1, 2 of 2009
Decided On : 17-09-2020
Advocate Appeared:
For the Appellant : V. Bhiman for M/s. Sampathkumar.
For the Respondents: S.R. Rajagopal, A. Madhumathi.
The dominant purpose of the instrument is crucial in determining the chargeability of stamp duty under the Indian Stamp Act, and the right to recover debts over the mortgage deed falls under the exempted clause of Article 62(c)(ii) of Schedule-I of the Act.
Headnote:
Indian Stamp Act - Assignment of Mortgage - Article 23 of Schedule-I - Section 2(17) - Section 2(14) - Section 62(c) - The judgment discusses the distinction between assignment of debt and transfer of mortgage, the chargeability of stamp duty under Article 23 and Article 62(c) of the Indian Stamp Act, and the interpretation of the dominant purpose of the instrument in determining stamp duty. The court relied on various judgments to establish that the right to recover debts over the mortgage deed falls under the exempted clause of Article 62(c)(ii) and concluded that the excess stamp duty demanded was not sustainable.
Fact of the Case:
The appellant challenged the order of the Inspector General of Registration, which treated the document as one of 'Conveyance' chargeable to duty under Article 23 of Schedule-I to the Indian Stamp Act, 1899, for the assignment of a mortgage. The appellant argued that the assignment of debt is different from the transfer of mortgage and relied on various judgments to support the contention.
Finding of the Court:
The court found that the assignment of debt is different from the transfer of mortgage and concluded that the excess stamp duty demanded by the respondents was not sustainable. The court directed the respondents to release the document to the appellant and refund the excess stamp duty collected.
Issues: The main issue was the chargeability of stamp duty for the assignment of a mortgage under the Indian Stamp Act, specifically whether it falls under Article 23 or Article 62(c). The court also addressed the appellant's contention regarding the distinction between assignment of debt and transfer of mortgage.
Ratio Decidendi: The court relied on the judgment of the Full Bench of High Court of Allahabad to establish that the right to recover debts over the mortgage deed falls under the exempted clause of Article 62(c)(ii) of Schedule-I of the Act, and therefore, the excess stamp duty demanded by the respondents was not sustainable.
Final Decision: The Civil Miscellaneous Appeal was allowed, and the court directed the respondents to release the document to the appellant and refund the excess stamp duty collected. No costs were awarded, and connected miscellaneous petitions were closed.
JUDGMENT :
M. GOVINDARAJ, J.
Prayer: Civil Miscellaneous Appeal filed under Schedule 23 of the Indian Stamp Act, 1899, against the proceedings in Revision Petition D.Dis.57778/P1/2004 dated 25.04.2008 received on 04.05.2008 of the Inspector General of Registration, Chennai.
1. Challenging the order of the first respondent/Inspector General of Registration, in fixing the stamp duty for assignment of mortgage as per Article 23 of Schedule-I to Indian Stamp Act, 1899, dated 25.04.2008, the appellant has preferred the above appeal.
2. According to the appellant, one ASA John Diviyanathan borrowed a sum of Rs. 35,00,000/- from the Egmore Benefit Society Limited and executed a Mortgage Deed registered as Document No. 1005/1995 at the Office of the Sub Registrar, Sooramangalam, Salem. The creditor insisted for repayment of principal and interest to the tune of Rs. 1,37,70,033.15. It appears that the borrower had entered into an Understanding with the appellant and requested him to get the Mortgage assigned in his favour and also an agreement to sell the property to the appellant. Accordingly, the appellant got the Mortgage assigned in his favour by a Deed of Assignment of Mortgage dated 26.06.2003. When the said instrument was presented for registration, the second respondent demanded deficit stamp duty at Rs. 7,99,900/- and penalty of Rs. 50,000/-. He had referred the matter to the Deputy Inspector General of Registration for clarification wherein the document was directed to be treated as one of “Conveyance” chargeable to duty under Article 23 of Schedule I to the Indian Stamp Act, 1899 (8% on One Crore). Aggrieved over the order passed by the second respondent, the appellant has preferred an appeal to the first respondent. The contents of the order passed by the first respondent dated 25.04.2008 reads as under:
“(5) The file of the District Registrar, the contents of the revision petition and the written argument of the revision petitioner has been examined by me carefully. The argument of the revision petitioner is not acceptable. The judgment does not deal with transfer of debt. A letter authorizing a person to receive from a third party a sum of money due to the executant amount to a conveyance (Nandubai vs. Gau, 27 Bom 150). An order for payment of money out of a debt due to the person who executes the instrument may constitute an equitable assignment of the debt as a chose in action (Buck vs. Robson, 1878 (3) QBD). Section 2(17) of the Indian Stamp Act, 1899 defines “Mortgage deed” includes every instrument whereby, for the purpose of securing money advanced or to be advanced, by way of loan, or an existing or future debt, or the performance of an engagement, one person transfers, or creates to, or in favour of, another, a right over or in respect of a specified property is to be created to treat it as a Mortgage. Whereas in the case of the deeds relating to property is deposited as a security for the debt and no right or charge is created in the property, it cannot fall under the definition of section 2(17). To apply Article 62(c) it must be a transfer whether with or without consideration of any interest secured by mortgage deed. The word mortgage deed refers only to Article 40 and not Article 6 of schedule-I to the Indian Stamp Act, 1899. Assignment of debt is different from transfer of mortgage. As regards transfer of registered mortgage, duty is chargeable under article 62(c) and assignment of debt obtained by promissory note and deposit of title deed is chargeable as conveyance under article 23 of schedule-I to the Indian Stamp Act, 1899. In the instant case the assigned amount of Rs. 1 Crore does not have the break up details in the document in question. The deed is classified as “Conveyance” chargeable under Article 23 of Schedule-I of the Indian Stamp Act, 1899.”
3. According to the appellate authority, the assignment of debt is different from transfer of mortgage. As regards transfer of registered mortgage, duty is charge
