Reference Case No. 2 of 2010. Case: State of Maharashtra Vs Prashant Pritamkumar Shegaonkar. High Court of Bombay (India)

Case NumberReference Case No. 2 of 2010
CounselFor Appellant: N. B. Khandare, Govt. Pleader
JudgesD. B. Bhosale , J. and R. M. Borde, J.
IssueCivil Procedure Code (5 of 1908) - Section 113; Registration Act (16 of 1908) - Section 17
CitationAIR 2011 Bom 100
Judgement DateMarch 16, 2011
CourtHigh Court of Bombay (India)

Judgment:

R. M. Borde, J.

1. The learned Principal District Judge, Aurangabad has forwarded this reference under Section 113 of the Code of Civil Procedure. The points formulated by the learned District Judge in the statement submitted to High Court are as noted below:

  1. Whether the interpretation of term "instrument" used in Section 147 of Delhi Municipal Corporation Act, 1957 made in the case reported as AIR 1991 SC 401 (between Municipal Corporation of Delhi and Pramod Gupta) can be extended to the provisions of Bombay Stamp Act viz. for clause No. 16 from Schedule I annexed to Bombay Stamp Act.

  2. Whether in view of the interpretation of term, "instrument" made by Hon'ble Apex Court in aforesaid case law, said clause of Schedule I of Bombay Stamp Act needs to be treated as invalid.

  3. Whether due to interpretation of provisions of Order 21, Rule 94 of Code of Civil Procedure in relation to the provisions of Indian Registration Act made in 2007 AIR SCW 4080 (B. Arvindkumar v. Govt. of India) needs to be used at the time of recovering the Stamp Duty on Sale certificate issued by Civil Court.

  4. Whether in view of the interpretation made by Hon'ble Apex Court in aforesaid two cases, Bombay Amendment to Order 21, Rule 85 of Code of Civil Procedure with regard to recovery of Stamp duty in respect of Sale Certificate needs to be treated as invalid.

2. An application was tendered by auction purchaser in Regular Darkhast No. 60/2009 claiming refund of stamp duty deposited by the auction purchaser along with interest, if any. While considering the application, relying on the judgment of the Supreme Court in the matter of Municipal Corporation, Delhi v. Pramod Kumar Gupta reported in AIR 1991 SC 401, the learned District Judge was pleased to allow the application. It was further ordered by the District Judge that the amount be refunded only after hearing the District Government Pleader. Accordingly, the District Government Pleader was heard in the matter and, on consideration of the arguments, the learned Principal District Judge was pleased to recall the order passed earlier in respect of refund of stamp duty. It is also further directed that the payment shall not be released to the auction purchaser till the opinion of the High Court is received.

3. In the statement forwarded by the learned District Judge as contemplated by Order XLVI, Rule 7 of the Code of Civil Procedure, it is recorded as below:

In the humble opinion of this Court, the interpretation made by Hon'ble Apex Court can not be extended to the provisions of Bombay Stamp Act and Order 21, Rule 85 of C.P. Code (Bombay Amendment) in view of the special provision made in this regard in Maharashtra and the fact that surcharge on the stamp duty was under challenge, not the stamp duty. However the interpretation of the case of Hon'ble Apex Court can be made only by High Court and so the reference.

4. In an application tendered by the applicant - auction purchaser, reference is made to a judgment in the matter of B. Arvind Kumar v. Government of India and others reported in 2007 AIR SCW 4080. The learned District Judge has referred to a judgment of the Supreme Court in the matter of Municipal Corporation, Delhi v. Pramod Kumar Gupta (cited supra) wherein the Supreme Court while interpreting the provisions of Section 147 of the Delhi Municipal Corporation Act, 1957, has ruled that sale certificate issued under Order XXI, Rule 94 is not an instrument of sale and therefore, no...

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