( 1 ) THE petitioner had taken a loan from the Punjab National Bank. The case of the petitioners is that the loan secured by a mortgage by deposit of title deeds on 18-11-2004 and to evidence this transaction the petitioner executed a document titled as memorandum of Mortgage by way of deposit of title deed on 12-1-2005. The question in this case is whether this instrument dated 12-1-2005 is a mortgage deed covered under Art. 40 (b) of Schedule 1b of the Indian Stamp Act or is it an agreement relating to the deposit of title deeds covered under Art. 6 of Sch. 1-B. The revenue authorities treating the instrument as a mortgage deed have found that there is a deficiency of Rs. 4,90,000/- in stamp duty and have also imposed penalty of like amount and interest of Rs. 14,700/ -.

( 2 ) SECTION 2 (17) of the Indian Stamp Act defines a mortgage-deed. It is quoted here under :"2. Definitions. In this Act, unless there is something repugnant in the subject or context (17) "mortgage-deed", "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 specified property. "

( 3 ) ARTICLE 6 of Schedule 1b is quoted hereunder :"6. AGREEMENT RELATING TO DEPOSIT of TITLE-DEEDS. PAWN OR PLEDGE, that is to say, any instrument evidencing an agreement relating to (1) the deposit of title deeds or instruments constituting or being evidence of the title to any property whatever (other than a marketable security); or (2) the pawn or pledge of movable property, where such deposit, pawn or pledge has been made by way of security, for the repayment of money advanced or to be advanced by way of loan or an existing or future debt (a) if such loan or debt is repayable on demand or more than three months from the date of the instrument evidencing the agreement; and for every additional Rs. 10,000/- or part thereof in excess of Rs. 30,000/ -. (b) if such loan or debt is repayable not more than three months from the date of such instrument. Exemption. Instrument of pawn or pledge of agricultural produce, if unattested. "

( 4 ) ARTICLE 40 of Schedule 1-B is extracted below"6. MORTGAGE DEED, not being an agreement RELATING TO deposit to Title deeds, Pawn or Pledge (No. 6), Bottomry bond (No. 16), Mortgage of a Crop (No. 41), respondentia Bond (No. 56) or Security bond (No. 57) (a) when possession of the property or any part of the property comprised in such deed is given by the mortgagor or agreed to be given; (b) when possession is not given or agreed to be given as aforesaid. Explanation a mortgagor who gives to the mortgagee a power of attorney to collect rents or a lease of the property mortgaged or part thereof, is deemed to give possession within the meaning of this article. (c) when a collateral or auxiliary or additional or substituted security or by way of further assurance from the above-mentioned purpose where the principal or primary security is duly stamped for every sum secured not exceeding Rs. 1,000. 00, and for every Rs. 1,000. 00, or part thereof secured in excess of Rs. 1,0000. 00. Exemptions. (1) Instruments executed by person taking advances under the Land Improvement loans Act, 1883, or the Agriculturists Loans act, 1884 or by their sureties as security for the repayment of such advances. (2) Letter of hypothecation accompanying a bill of exchange. It is clear from the terms of Art. 40 that an agreement relating to deposit of title deeds cannot be a mortgage deed. Before referring to the material terms of the instrument it is necessary to state the distinction between a mortgage by deposit of title deeds; an agreement relating to deposit of title deeds and a mortgage deed. A mortgage by deposit of title deeds envisaged in Section 58 (f) Transfer of Property Act is created when the debtor deposits with the creditor ti

Click Here to Read the rest of this document