Hon’ble Krishna Murari, J.—Petitioner is a company incorporated under the Companies Act, 1956 having its registered office at Ramon House, H.T. Parekh Marg, 169, Backbay Reclamation, Church Gate, Mumbai with a branch office at Hindustan Times House, IInd Floor, 25, Ashok Marg, Lucknow. Petitioner-company is carrying out business of housing advance within the State of U.P. and is governed by the National Housing Bank Act, 1987.

2. The issue for adjudication is whether the instrument, namely, the loan agreement executed by the customer availing the loan from the petitioner-Bank falls under Article 6 of Schedule 1-B of Indian Stamp Act (hereinafter referred to as the ‘Act’) as applicable in State of U.P. or is only an agreement falling under Article 5 (c) of the Act.

3. State Government finding that loan facilities for house constructions/land-building purchase/house extension are being provided by some of the Banks functioning in the State of U.P. under which, at the time of obtaining signatures of the loanee on the loan agreement, his/her signatures are also obtained on a declaration separately in this regard that loanee is depositing his/her title deeds with the Bank as security against loan and, thus, the above declaration read with loan agreement executed in this manner separately, is covered under Article 6 (1) (A) (Agreement relating to deposit of title deeds, pawn or pledge) of Schedule 1-B of Indian Stamp Act and the stamp duty is payable accordingly, whereas the stamp duty at the prescribed rate is not being charged by several Banks functioning in the State at the time of giving loan to its customers, as such, the loan agreement is not covered under Article 5 (c) of the Act and stamp duty of Rs. 100/-, is not acceptable and the fact that the declaration is executed from the loanees, is also concealed by them in the body of the loan agreement. The order further provides that stamp duty will be payable on the agreement relating to deposit of title deed, pawn or pledge and all the Banks functioning in the State must pay the stamp duty as per the classification shown payable on the agreement relating to deposit of title deed, pawn or pledge.

4. In pursuance to the aforesaid order issued by the State Government, Assistant Commissioner, Stamp, Ghaziabad issued a letter dated 1st July, 2005 addressed to Executive Director of the petitioner-Bank mentioning that the Bank is legally bound to mention in the security document and other related document of the fact that title documents have been deposited with the Bank and non-compliance of the said requirement violates Article 27 of the Indian Stamp Act, which is also an offence under clause 64 of the said Act, for which both lender and borrower will be held responsible for being parties to conceal facts relating to payment of stamp duty and prosecution action may be considered and initiated. The petitioner was further directed to ensure payment of stamp charges on all such loan agreement and also ensure submission of details of all such loan agreement executed in its branch by any borrower for inspection within 15 days so that stamp charges payable in the document may be assessed.

5. An inspection of the office of the petitioner-company at Lucknow was carried out on 18.8.2004 by Deputy Commissioner, Stamp, Lucknow Division, who after inspecting 23 files relating to housing loan to different loanees, submitted the following report.

“INSPECTION REPORT

OFFICE

HOUSING DEVELOPMENT FINANCE CORPORATION LTD.

25 ASHOK MARG, LUCKNOW.

Date of Inspection : 18.8.2004.

No. of Cases related to indicated stamp duty deficiency : 23 Indicated Deficient Stamp Duty : Rs. 26,725.00

Today on 18.8.2004, inspection of office of H.D.F.C. Ltd., Second Floor, Hindustan Times, 25 Ashok Marg has been carried out. At the time of inspection, S/Shri Asim Vivek, Manager, HDFC and Shri Anil Joshi, Officer Legal, HDFC were present. Files shown in the enclosed list of loans sanctioned for House Construction