CA 5970/2021

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No 5970 of 2021

(Arising out of SLP (C) No 699 of 2019)

Mr Rajeev Nohwar Appellant

Versus

Chief Controlling Revenue Authority Respondent(s)

Maharashtra State, Pune and Others

JUDGMENT

Dr Dhananjaya Y Chandrachud, J

1 Leave granted.

2 A citizen‟s claim for the refund of stamp duty has found a winding path to this

court. The appellant booked a residential apartment. There arose a dispute with

the builder. It led to a consumer complaint. The litigation consumed time. The

appellant was permitted to opt for a refund of the price. The claim for refund of

stamp duty has been rejected by the revenue arm of the state on the ground

that more than six months have elapsed. The Bombay High Court, agreeing with
Signature Not Verified

Digitally signed by
Chetan Kumar
the decision found the claim to be stale. A simple claim for refund leads us to
Date: 2021.10.05
17:04:04 IST
Reason:
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2

the complexities of a revenue sourcing law.

3 This appeal arises from a judgment dated 22 November 2018 of a Single Judge of

the High Court of Judicature at Bombay. The Deputy Inspector General of

Registration and Deputy Controller of Stamps, Pune rejected an application for

refund of stamp duty filed by the appellant. The order of the authority was

challenged in the exercise of the jurisdiction of the High Court under Article 226

of the Constitution. The petition has been dismissed.

4 On 24 April 2014, the appellant booked a residential flat, being Unit No 2001

admeasuring 1660 sq ft in Tower No 24 of a construction project called Lodha

Belmondo in Pune for a consideration of Rs 1,68,88,095. The appellant initially

paid an amount of Rs 33,91,795 by July 2014 representing 19.9% of the agreed

sale consideration, following which a confirmatory email was issued. This was

followed by a letter of allotment dated 15 July 2014. On 14 August 2014, the

appellant paid an amount of Rs 1,58,28,221 out of the agreed consideration. In

order to facilitate the execution of a conveyance, the appellant purchased an

e-SBTR stamp paper through a government challan bearing MTR GRN No

MH0023603832014155 for a total amount of Rs 8,44,500 from the IDBI bank,

Aundh, Pune for the execution of the agreement to sell.

5 Disputes arose between the appellant and the developer which led to the

appellant instituting a consumer complaint before the National Consumer

Disputes Redressal Commission1. During the pendency of the complaint, an

1 “NCDRC”
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interim order dated 25 September 2014 restrained the developer from creating

third party interests in the flat. Eventually by an order dated 6 May 2016, the

complaint was allowed. The appellant was given the option to either execute

the agreement with the developer, in which event the developer would pay

compensation in the amount of Rs 10 lakhs, or in the alternative, if the appellant

was not willing to execute an agreement, the developer was directed to refund

the entire consideration together with interest at the rate of 12% per annum from

the date of receipt of each installment until the date of refund along with

compensation of Rs.10,00,000. The appellant exercised the option of seeking a

refund of consideration together with interest.

6 The developer issued a cheque on 11 July 2016 for the refund of the

consideration in terms of the order of the NCDRC. The appellant thereupon

applied on 16 July 2016 for refund of the stamp duty of Rs 8,44,500 to the

Collector of Stamps. By a communication dated 5 August 2016, the Collector of

Stamps forwarded the file to the Deputy Inspector General of Registration with a

recommendation that the refund should be denied on the ground that the

appellant had not applied for refund within six months. By an order dated 27

September 2016, the Deputy Inspector General of Registration rejected the

application for refund of stamp duty on the ground that the application for

refund was not made within six months as mandated by Section 48(3) of the

Maharashtra Stamp Act 1958. The appellant filed an appeal before the Chief

Controlling Revenue Authority under Section 53(1A) of the Maharashtra Stamp

Act 1958. The appeal was dismissed on 2 April 2018 on the same ground. The
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appellant moved the High Court of Judicature at Bombay in a writ petition

under Article 226 of the Constitution challenging the orders dated 27 September

2016 and 2 April 2018 and for seeking an order directing the refund of the stamp

duty paid.

7 The High Court by its judgment dated 22 November 2018 dismissed the petition,

affirming the view of the revenue authorities that the application for refund was

barred by limitation, not having been preferred within a period of six months

from the date of the purchase of the e-stamp. The High Court rejected the

argument that the six month limitation period under Section 48(3) would not be

applicable since the appellant‟s case falls under Section 52A of the Act. It was

observed that Sections 47, 48, 52 and 52A of the Act will have to be interpreted

harmoniously, and an application under Section 52A will also have to be made

within six months from the date of purchase of the stamps. The matter has

accordingly travelled to this Court. Notice was issued on 18 January 2019.

8 Mr Varun Singh, counsel appearing on behalf of the appellant submits that in

order to appreciate the circumstances in which the application for refund was

filed, it is necessary to bear in mind the following events:

(i) The e-stamp paper was purchased on 16 August 2014;

(ii) Following the dispute with the developer, the appellant

moved the NCDRC which initially granted an interim stay on

the creation of third party rights on 25 September 2014 and

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eventually allowed the complaint on 6 May 2016; and

(iii) The application for refund was moved on 16 July 2016.

9 In this backdrop, counsel for the appellant submitted that for the following five

reasons, the application for refund was instituted within a reasonable period and

cannot be held to be barred either on laches or limitation:

(i) The dispute in relation to the agreement with the developer

was pending adjudication before the NCDRC;

(ii) The appellant had paid the stamp duty and purchased the e-

stamp paper bona fide in order to facilitate the completion of

the transaction pertaining to the residential flat;

(iii) In order to demonstrate the readiness and willingness of the

appellant before the NCDRC, it was necessary for the

appellant to continue to retain the e-stamp paper pending the

disposal of the proceedings;

(iv) The e-stamp paper, as a matter of fact, would have been used

if the adjudication by the NCDRC had resulted in a resolution of

the dispute by removing some of the offending provisions

insisted by the developer; and

(v) Following the order of the NCDRC, the appellant exercised the
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option to seek a refund in terms of a judicial order of the

competent forum.

10 In this backdrop, counsel has relied on the provisions of Sections 47, 48 and 52A

of the Maharashtra Stamp Act 1958. It has been submitted that the provisions of

Section 48(3) which prescribe a period of six months from the date of purchase

of stamp for filing an application for refund, would have no application where

the case is not covered by the provisions of Section 47. In such a situation, it was

urged that Section 52A would enure to the benefit of the appellant. In this

context, counsel for the appellant relied on a judgment of a two-Judge Bench

of this Court in Committee-GFIL vs Libra Buildtech Private Limited and Others.2

11 Opposing the submissions of the appellant, Mr Rahul Chitnis, Chief Standing

Counsel for the State of Maharashtra has urged that:

(i) The application filed by the appellant was specifically under

the provisions of Section 47 of the Maharashtra Stamp Act 1958;

(ii) Once the appellant has conceded that the application was

filed with reference to Section 47, the period of limitation

prescribed in Section 48 would squarely stand attracted;

(iii) As a matter of fact, the application for refund of stamp duty

would be relatable to the provisions of Section 47(a) of the Act;

and

2 (2015) 16 SCC 31
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(iv) In these circumstances, the appellate authority was justified in

coming to the conclusion that the application for refund was

barred by limitation.

The rival submissions fall for our analysis.

12 Chapter 5 of the Maharashtra Stamp Act 1958 is titled “allowances for stamps in

certain cases”. Section 47 which deals with “allowance for spoiled stamps”

provides as follows:

“47. Allowance for spoiled stamps.- Subject to such rules as

may be made by the State Government as to the evidence to
be required, or the inquiry to be made, the Collector may on
application, made within the period prescribed in section 48, and
if he is satisfied as to the facts, make allowance for impressed
stamps spoiled in the cases hereinafter mentioned, namely:

(a) the stamp on any paper inadvertently and undesignedly

spoiled, obliterated or by error in writing or any other means
rendered unfit for the purpose intended before any
instrument written thereon is executed by any person;

(b) the stamp on any document which is written out wholly or in

part, but which is not signed or executed by any party
thereto;

(c) the stamp used for an instrument executed by any party

thereto which-

(1) has been afterwards found by the party to be absolutely

void in law from the beginning;

(1A) has been afterwards found by the Court, to be

absolutely void from the beginning under section 31 of the
Specific Relief Act, 1963;

(2) has been afterwards found unfit by reason of any error or

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mistake therein, for the purpose originally intended;

(3) by reason of the death of any person by whom it is

necessary that it should be executed, without having
executed the same, or of the refusal of any such person to
execute the same, cannot be completed so as to effect
the intended transaction in the form proposed;

(4) for want of the execution thereof by some material

party, and his inability or refusal to sign the same, is in fact
incomplete and insufficient for the purpose for which it was
intended;

(5) by reason of the refusal of any person to act under the

same, or to advance any money intended to be thereby
secured, or by the refusal or non-acceptance of any office
thereby granted, totally fails of the intended purpose;

(6) becomes useless in consequence of the transaction

intended to be thereby effected by some other instrument
between the same parties and bearing a stamp of not less
value;

(7) is deficient in value and the transaction intended to be

thereby effected had been effected by some other
instrument between the same parties and bearing a stamp
of not less value;

(8) is inadvertently and undesignedly spoiled, and in lieu

whereof another instrument made between the same
parties and for the same purpose is executed and duly
stamped:

Provided that, in the case of an executed instrument,

except that falling under sub-clause (lA), no legal
proceeding has been commenced in which the instrument
could or would have been given or offered in evidence and
that the instrument is given up to be cancelled, or has been
already given up to the Court to be cancelled.

Explanation.- The certificate of the Collector under section 32

that the full duty with which an instrument is chargeable has
been paid is an impressed stamp within the meaning of this
section.”
(emphasis supplied)
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13 Section 47 is subject to the rules which are made by the State government in

regard to the evidence to be required or enquiry to be made. The provision

stipulates that the Collector may make allowance, on an application seeking an

allowance, for impressed stamps spoiled in the cases which are set out in

clauses (a) to (c). The opening words of Section 47 also indicate that the

application under Section 47 has to be made within the period which is

prescribed by Section 48. The prefatory words of Section 47 advert to “impressed

stamps spoiled in the cases” which are contained in clauses (a) to (c). Clause

(a) deals with a situation where the stamp on any paper is inadvertently or

undesignedly spoiled, obliterated or rendered unfit for the purpose intended

either by an error in writing or by any other means before the instrument written

on it is executed by any person. The object of clause (a) is to ensure that an

allowance is made for impressed stamps which are spoiled inadvertently or

unintentionally or where the stamp paper is rendered unfit for the purpose for

which it was intended. That is why the expressions which have been used in

clause (a) are spoiled, obliterated, or rendered unfit for the purpose.

14 Section 47 covers three classes of cases within it: (i) spoiled; (ii) obliterated; and

(iii) unfit for the purpose by an error in writing or „any other means‟. It is

contended by the State that the case of the appellant would fall within the

purview of the third category since it was rendered unfit for the purpose, i.e., the

purpose of purchase of the property. This submission thus places reliance on the

expression ‘purpose’ used in the provision. The submission does not accord with

a plain reading of the provision. The expression “any other means” must be read
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in the context of the words which immediately precede it, namely, “error in

writing”. The expression “by any other means” would indicate that the legislature

intended to refer to defacement of a stamp paper in any manner analogous to

an error in writing the instrument on the stamp paper. “Any other means” refers

to any other modality by which the stamp paper is rendered unfit for the

purpose for which it was purchased. Moreover, the prefatory words in Section

47 state that the collector must be satisfied that the stamp is „spoiled‟. Clauses

(a) to (c) lay down the cases that are covered within the ambit of the

expression „spoiled stamps‟. The emphasis of Section 47 is not on the purpose but

on unfit stamps. Therefore, a case where the stamp has not been utilized at all

because it is not needed subsequent to the purchase will not fall within the

purview of Section 47. Only those cases where the stamp is unfit for the purpose

by an error in writing or any other means would be covered by the provision. It

is not the case of the appellant that the stamp paper has been spoiled or

obliterated or rendered unfit for the purpose for which it was required. In the

present case, it is common ground that the stamp paper is not spoiled but the

purpose for which the stamp was purchased has become redundant in view of

the judgment of the NCDRC. Therefore, there would be no occasion to apply

the provisions of clause (a) of Section 47.

15 Clause (c) of Section 47 begins with the expression “stamp used for an

instrument executed by any party thereto” and is followed by eight sub clauses.

In other words, clause (c) of Section 47 applies only where a stamp paper has

been used for an instrument which has been executed by one of the parties to
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the instrument. That is why, for instance sub clause (2) refers to the instrument

being subsequently found unfit either by reason of an error or mistake for the

purpose for which it was originally intended. Sub clause (4) adverts to a situation

where the instrument has not been executed by a material party and by his

inability or refusal to sign it renders the instrument incomplete and insufficient for

the purpose for which it was intended. Clause (c) of Section 47 has no

application to the facts of the present case since it is common ground that the

stamp was not used for an instrument already executed by any party thereto.

16 Now it is in this backdrop that it becomes necessary to advert to Section 48 of

the Act. Section 48 provides as follows:

“48. Application for relief under section 47 when to be made. - The

application for relief under section 47 shall be made within the
following period, that is to say.-

(1) in the cases mentioned in clause (c) (5), within six months of
the date of the instruments:

Provided that where an Agreement to sell immovable property,

on which stamp duty is paid under Article 25 of the Schedule I, is
presented for registration under the provisions of the Registration
Act, 1908 and if the seller refuses to deliver possession of the
immovable property which is the subject matter of such
agreement the application may be made within two years of the
date of the instrument [or where such agreement is cancelled by
a registered cancellation deed on the grounds of, dispute
regarding the premises concerned, inadequate finance, financial
dispute in terms of agreed consideration, or afterwards found to
be illegal construction or suppression of any other material fact,
the application may be made within two years from the date of
such registered cancellation deed;

(2) in the case when for unavoidable circumstances any

instrument for which another instrument has been substituted
cannot be given up to be cancelled, the application may be
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made within six months after the date of execution of the

substituted instrument.

(3) in any other case, within six months from the date of purchase
of stamp.”

17 Section 48 begins with the statement that the application for relief under Section

47 shall be made within the periods which are indicated in clauses (1), (2) and

(3). In other words, the periods of limitation which are prescribed in clauses (1),

(2) and (3) are in respect of those cases which are governed by Section 47.

Clause (1) stipulates that for cases governed by clause (c)(5), the period within

which the application has to be filed will be six months of the date of the

instrument. Clause (2) specifies that in case where for unavoidable

circumstances, any instrument for which another instrument has been

substituted cannot be given up to be cancelled, in such an event, the

application may be made within six months after the date of execution of the

substituting instrument. Clause (3) which is a residuary provision provides for a

limitation of six months from the date of the purchase of stamp.

18 The revenue authorities rejected the application filed by the appellant on the

ground that the application was not filed within six months from the date of the

purchase of the stamp paper, treating the case to fall within the residuary

provision in Section 48 of the Act. This view has been accepted by the Single

Judge of the Bombay High Court. What this view misses is that Section 48 in its

entirety applies only to those cases where the application for relief is governed
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by Section 47. If the application for refund is not with reference to the provisions

of Section 47, the period of limitation in Section 48 clearly has no application.

Since the application of the appellant does not fall within the purview of any of

the clauses in Section 47, the 6 month limitation period prescribed in Section 48

would not be applicable to the application for allowance filed by the appellant.

19 Having observed that the application of the appellant for allowance is not

covered by the Section 47, it is imperative to determine if it falls within the

purview of any other provisions of the Act. Section 49 provides that allowance

can be made without any limit of time for stamp papers that are used as printed

forms of instruments by any banker or company, if the forms are not required by

the banks or the companies. Thus, the application of the appellant is not

covered by section 49. Section 50 states that allowance for misused stamps can

be made. The provision brings within the purview of the term „misused stamps‟,

the stamps of greater value than required or stamps of description other than

that prescribed by any rules or stamps that are useless since the instrument is

written in contravention of the provisions or where a stamp has been used when

the instrument is not charged with stamp duty. Section 50 only covers those

cases where inadvertent mistakes are made in the stamp paper. Therefore, the

case of the appellant is not covered by Section 50 since there is no mistake in

the e-stamp, be it with regard to the value or description. Section 51 lays down

the procedure for seeking allowance for cases that fall under Section 47, 49 and

50 and is thus of no application to the appellant‟s claim.

20 Now it is important to refer to Section 52 of the Act which provides as follows:

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“52. Allowance for stamps not required for use: When any person
is possessed of a stamp or stamps which have not been, spoiled
or rendered unfit or useless for the purpose intended, but for which
he has no immediate use, the Collector shall repay to such person
the value of such stamp or stamps in money, deducting
[thereform such amount as may be prescribed by rules made in
this behalf by the State Government] upon such person delivering
up the same to be cancelled, and proving to the Collector's
satisfaction,—
(a) that such stamp or stamps were purchased by such
person with a bona fide intention to use them ; and
(b) that he has paid the full price thereof ; and
(c) that they were so purchased within the period of 1[six
months] next preceding the date on which they were so
delivered :
Provided that, where the person is a licensed vendor of stamp,
the Collector may, if he thinks fit, make the repayment of the sum
actually paid by the vendor without any such deduction as
aforesaid.”
(emphasis supplied)

Section 52 deals with provision of allowance in case of stamps that are not

required for use. There are two kinds of stamps that are not required for use. The

first is where the stamp is spoiled, as covered by Section 47 of the Act. The

second is where the stamp is not spoiled but the stamp is not needed since the

purchaser has no use of it. Section 52 specifically excludes the first of category

since it is already covered by Section 47. The provision only applies to the class in

the second category. Thus, Section 52 covers stamps that are not spoiled but

which are of no use to the applicant by the occurrence of any subsequent

event that renders the purpose of purchase of stamp void or nugatory. For the

application of Section 52A, the applicant must have purchased the stamp on

the payment of full price, with a bona fide intention to use it. However, within six

months from the purchase of the stamp, the purpose of the purchase has not
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been fulfilled. Such a situation can arise in multiple circumstances. For example,

a person may have obtained a stamp paper for purchasing a building.

However, before the agreement of sale could be executed, the building turns to

shambles after an earthquake hits the area. In such a case, the stamp paper

has no use. This may also cover a case where the seller has taken back his

consent to sell the property after the purchase of the stamp paper. In such

cases, the stamp purchased will not have any use since the purpose for which it

was purchased could not materialize.

21 It could be argued that the use of the words, “for which he has no immediate

use” in Section 52 would only covers cases where the purpose for the purchase

of the stamp is still valid but the execution of the purpose if delayed and not

„immediate‟. Such an interpretation, however, is erroneous in view of the holistic

reading of the provision. The use of the phrase „immediate‟ must be read in the

context of the limitation period prescribed by the provision. Since a six month

limitation period has been imposed in Section 52 for the cases that fall within its

purview, the use of the phrase „no immediate use‟ should be interpreted to

mean either the permanent abandonment of the purpose or a delay (of more

than six months from the purchase of the stamp) in the execution of the

purpose.

22 However, Section 52 would only apply to those cases where the applicant had

knowledge that the stamp purchased was not be required for use within six

months from the date of purchase. The provision cannot be arbitrarily applied to

cases where the purchaser of the stamp had no knowledge that the stamp
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16

would not be required for use within six months from the purchase of the stamp.

In the instant case, the appellant had no knowledge of the fact that the stamp

was not needed within six months from the purchase of it. He was in a bona fide

contest over his rights with the builder. Therefore, the case of the appellant

would not fall under Section 52 of the Act as well.

23 It has been contended by the counsel for the appellant that the case of the

appellant falls within the purview of Section 52A of the Act. Now, it becomes

necessary to advert to the provisions of Section 52A which provides as follows:

“52A. Allowance for duty.- (1) Notwithstanding anything

contained in sections 47, 50, 51 and 52, when payment of duty is
made by stamps or in cash as provided for under sub-section (3)
of section 10 or section 10A or section 108, and when the amount
of duty paid exceeds rupees one lakh, the concerned Collector
shall not make allowance for the stamps, or the cash amount
paid under the Challans, which are spoilt or misused or not
required for use, but shall, after making necessary enquiries,
forward the application with his remarks thereon to,-

(a) the Additional Controller of stamps for the cases handled

by the Collectors working in the Mumbai City District and
Mumbai Suburban District; and

(b) the concerned Deputy Inspector General of Registration

and Deputy Controller of Stamps of the division for the cases
handled by the Collectors other than those mentioned in
clause (a).

(2) The Additional Controller of Stamps or, the concerned Deputy

Inspector General of Registration and Deputy Controller of Stamps
of the division, as the case, may, be, on receiving such
application consider the same and decide whether such
allowance shall be given or not, and accordingly shall, grant the
same, if the amount of allowance does not exceed rupees ten
lakh, and if, it exceeds rupees ten lakh, shall submit such
application, with his remarks thereon to the Chief Controlling
Revenue Authority for decision.
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(3) The Chief Controlling Revenue Authority on receiving such

application shall decide on merit whether such allowance shall
be given or not, and pass such order thereon as he thinks just and
proper, which shall be final and shall not be questioned in any
court or before any authority.”

24 Section 52A is prefaced with a non obstante clause which operates

notwithstanding anything contained in Sections 47, 50, 51 and 52. Section 52A

stipulates that when the amount of stamp duty paid exceeds Rs 5 lakhs, the

concerned Collector shall not make an allowance for the stamps or the cash

amount paid under the challans but shall after making necessary enquiries

forward the application with his remarks to the Additional Collector of Stamps

(for cases handled by the Collectors working in the Mumbai City District and

Mumbai Sub-Urban Districts) and the concerned Deputy Inspector General of

Registration and Deputy Controlling of Stamps for cases in other regions.

25 In view of Section 52A(2) of the Act, the Additional Collector of Stamps or the

DIG as the case may be, on assessing the application has to decide whether

allowance should be given or not and shall grant it if the amount of allowance

does not exceed Rs 20 lakhs. If the amount exceeds Rs 20 lakhs, the application

has to be submitted to the Chief Controlling Revenue Authority. The Chief

Controlling Revenue Authority on receiving the application is required to decide

on merits whether or not the allowance should be given. The provisions of

Section 52A were substituted with effect from 1 May 2006 by Maharashtra Act

12 of 2006. By an Amendment, the amount of Rs 5 lakhs which has been

specified in sub-Section (1) was enhanced from Rs 1 lakh by Maharashtra Act 20

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18

of 2015 with effect from 24 April 2015. Likewise in sub-Section (2), the amount of

Rs 20 lakhs stands enhanced from the earlier amount of Rs 10 lakhs by the same

amending provision.

26 The provisions of Section 52A as noticed above have overriding force and

effect, inter alia, on the provisions of Sections 47, 50, 51 and 52. It is pertinent to

note that the non obstante clause does not apply to Sections 48 and 49 of the

Act. While Section 48 is a limitation clause applicable to cases that are covered

by Section 47, Section 49 applies to a Corporation where no limitation period

has been prescribed. Section 52A can be applied to the appellant‟s case only if

the provision is interpreted to override the limitation period laid down in the

preceding provisions and if it is regarded as a residual substantive provision that

would cover all cases that are not covered by any of the provisions. We will now

consider the validity of such an interpretation.

27 If Section 52A was enacted with the intent to override the limitation prescribed

by Sections 50, 51 and 52 then Section 48 ought to have also been included

specifically since Section 48 is the limitation provision applicable to Section 47.

Section 48 is not incorporated in the non-obstante provision of section 52 A. This

is hence intrinsic material to indicate that the purpose of the non-obstante

clause in Section 52A was to override the jurisdiction of the adjudicating

authority (i.e the Collector) under Sections 47, 50, 51 and 52 to decide the

claims for allowances. Section 52A specifically divests the power of the Collector

to decide the claims of allowance falling within those provisions and vests the

power to other authorities if the payment of stamp duty exceeds Rupees five
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lakhs. In those cases, though the application is to be made to the Collector, he

will have no adjudicatory capacity. The Collector must forward the application

to the concerned authority as mentioned in Section 52A along with remarks and

such authority would have the power to decide the claim. The interpretation

that Section 52A only overrides the authority of the Collector in adjudicating the

case is evident since the provision does not override Section 49 where the

adjudicating officer is the Chief Controlling Revenue Authority. In such a case,

Section 52A cannot be considered as a residual clause by applying it to classes

of cases that do not fall within the purview of any other provisions. A contrary

interpretation would create an artificial class based on economic capacity, as

cases where the stamp duty paid exceeds Rupees five lakhs will alone be

adjudicated without application of any limitation period as a residual case,

while cases falling within the same class but where stamp duty paid is less than

Rupees five lakhs cannot take recourse to the provision. It is an established

principle of interpretation that an interpretation that furthers the constitutionality

of a provision will have to be undertaken. An interpretation which leads to an

invidious discrimination must be eschewed. Thus, the intendment of Section 52A

was neither to cover the applications that are not brought under any of the

preceding substantive clauses nor to override the limitation clauses.

28 Evidently, and for the reasons that we have indicated above, the application

filed by the appellant did not fall within the ambit of Sections 47, 52 and 52A. It

is true that the application for refund was titled with reference to the provisions

of Section 47. But, it is well settled that a reference of a wrong statutory provision,
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20

cannot oust the citizen of an entitlement to refund which otherwise follows in

terms of a statutory provision.

29 In the present case, the stamp paper was purchased bona fide in view of the

agreement to sell which was to be executed by the appellant with the

developer. There was a dispute with the developer which led to the institution of

the proceedings before the NCDRC. There was nothing untoward in the

conduct of the appellant and certainly no unreasonable delay on the part of

the appellant in awaiting the outcome of the proceedings. The NCDRC allowed

the complaint giving the option to the appellant of either going ahead with the

agreement along with an award of compensation or, in the alternative, to seek

a refund with interest. The appellant having exercised the latter option applied

within two months from the order of the NCDRC for the grant of refund. The

conduct of the appellant, therefore, cannot be held to be unreasonable nor

was there any intentional or wanton delay on the part of the appellant in

applying for a refund of stamp duty. Such an application must be filed within a

reasonable period.

30 In Committee-GFIL (supra), a two-judge Bench of this Court was dealing with the

issue of limitation prescribed in the Indian Stamp Act 1899. In this case, an

auction sale of immovable properties was held by a committee constituted by

this Court. Successful bidders deposited with the committee, the entire sale

consideration along with the stamp duty. However, the transaction failed due to

reasons beyond the control of the parties. The Court cancelled the transaction
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and directed the committee to refund the sale consideration with interest and

permitted the purchasers to approach the State Government for refund of the

stamp duty. The applications of the auction-purchasers seeking refund of stamp

duty was rejected on the ground that the applications were time-barred. An

application against the rejection of the refund applications was filed before this

Court. This Court allowed the application on three grounds: (i) the transaction

which was Court-monitored, could not be fulfilled for reasons beyond the

control of the auction-purchasers. No act of the Court should prejudice a

person; (ii) in view of the principle of restitution embodied in Section 65 of the

Contract Act, any advantage received by a person under a void contract or a

contract that becomes void is bound to be restored; and (iii) in light of equity

and justice, the six months limitation period prescribed in Section 50 of the Indian

Stamp Act 1899 must be read to mean six months from the date of the order of

this Court.

31 We are conscious of the fact that as a general rule of law, the right to refund is a

statutory creation. A refund can be sought in terms envisaged by statute. As

discussed above, the case of the appellant is not specifically barred by any

substantive provision. It is an established principle that this Court while exercising

its power under Article 142 of Constitution must not ignore and override statutory

provisions but must rather take note of the express statutory provisions and

exercise its discretion with caution.3 Therefore, if a statute prescribes a limitation

period, this Court must be slow to interfere with the delay under Article 142.

3AR Anthulay v. RS Nayak, (1988) 2 SCC 602; Union Carbide Corporation v. Union of India, (1991) 4 SCC 584;
Supreme Court Bar Association v. Union of India, (1998) 4 SCC 409.
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However, in the case of an eventuality such as the instant case where the facts

of the case are not covered by the statute, this Court under Article 142 will have

the power to do complete justice by condoning the delay. We are of the view

that since the delay in filling the application for refund in the instant case was

due to the prolonged proceedings before the NCDRC, the application cannot

be rejected on the ground of delay. A litigant has no control over judicial

delays. A rejection of the application for refund would violate equity, justice and

fairness where the applicant is made to suffer the brunt of judicial delay.

Therefore, this is a fit case for the exercise of the power under Article 142 of the

Constitution.

32 For the above reasons, we allow the appeal and set aside the impugned

judgment and order of the learned Single Judge of the Bombay High Court

dated 22 November 2018. As a consequence, we direct that the appellant

would be entitled to a refund of the stamp duty which was paid at the time of

the purchase of the e-stamp paper, conditional on the appellant returning the

e-stamp paper to the Collector of Stamps, Mumbai. The refund shall be

processed within a period of one month of the delivery of the e-stamp paper to

the Collector. The appellant would be entitled to interest at the rate of 6% per

annum from 16 July 2016 until the date of refund. In the circumstances of the

case, there shall be no order as to costs.

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33 Pending applications, if any, stand disposed of.

.........….....….......………………........J.
[Dr Dhananjaya Y Chandrachud]

….....….....….......………………........J.
[B V Nagarathna]

New Delhi;
September 24, 2021
CKB