2024:BHC-AS:1279

wp-9657-2022.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.9657 OF 2022

Satish Buba Shetty ...Petitioner

vs.
Inspector General of Registration and
Collector of Stamps and Others ...Respondents

Mr. Rishi Bhatt a/w. Mr. C.K. Mhatre i/b. Mr. Sameer Khedekar, for
the Petitioner.
Mr. S.H. Kankal, AGP for the Respondents-State.

CORAM : N. J. JAMADAR, J.
RESERVED ON : AUGUST 19, 2023
PRONOUNCED ON : JANUARY 11, 2024

JUDGMENT :

1. Rule. Rule made returnable forthwith. With the consent of the

parties, heard finally at the stage of admission.

2. By this petition under Article 227 of the Constitution of India,

the petitioner assails the legality, propriety and correctness of an

order dated 9th February, 2022 passed by the Chief Controlling

Revenue Authority, Maharashtra State, Pune in Appeal No. 111 of

2021 whereby the Chief Controlling Revenue Authority was

persuaded to dismiss the appeal under section 53(1A) of the

Maharashtra Stamp Act, 1958 (Stamp Act, 1958) by affirming the

order dated 27th April, 2021 passed by the Collector of Stamps,

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Borivali declining refund of the stamp duty under section 48 of the

Stamp Act, 1958.

3. Shorn of superfluities, the background facts can be stated in

brief as under:-

A] The petitioner, who is a retired bank official, had on 10 th

November, 2014 entered into an Agreement to Purchase a flat

in a building known as “ERA” with M/s. Vijaykamal Properties

Private Limited (the Developer). The said agreement was duly

registered on 19th November, 2014 with the Registrar of

Assurances, stamp duty of Rs. 4,76,000/- was paid vide

receipt number 7271 dated 19 th November, 2014 along with

registration charges of Rs. 30,000/-. Under the terms of the

agreement, the developer had agreed to deliver possession of

the flat by 30th June, 2017.

B] The Developer neither developed the building nor

refunded the consideration parted with by the petitioner.

Hence, the petitioner was constrained to approach the Real

Estate Regulatory Authority (RERA). By an order dated 26 th

December, 2017 RERA directed the Developer to refund the

consideration and also execute a Deed of Cancellation. On

account of the breach on the part of the Developer to comply

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with the aforesaid order, the petitioner was constrained to file

an Execution Application under section 63 of Real Estate

(Regulation and Development) Act, 2016. Thereupon by an

order dated 13th March, 2018 RERA imposed penalty of Rs.

5,000/- per day till the compliance of the order, on the

Developer.

C] Being aggrieved, the Developer preferred an appeal

before RERA Appellate Tribunal. By an order dated 21 st

August, 2018 the Appellate Tribunal stayed the order passed

by RERA subject to payment of 50% due amount along with

interest by the Developer.

D] In view of the default on the part of the Developer to

comply with the order of Appellate Tribunal as well, the

appeal preferred by the Developer came to be dismissed for

want of compliance by an order dated 16th October, 2018. The

petitioner laid execution before the RERA Appellate Tribunal.

E] In the said proceeding, the Developer and the petitioner

arrived at a settlement and consent terms were executed. In

accordance with the consent terms, the Developer agreed to

refund the amount in four installments. The last installment

was released on 22nd February, 2021. Consequently, a Deed of

Cancellation was came to be executed by the petitioner on 9 th

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March, 2021. Thereupon the Execution Application came to

be disposed of by the RERA Appellate Tribunal on 19 th March,

2021.

F] On 31st March, 2021 the petitioner applied for refund of

stamp duty paid on the Agreement for Sale registered on 19 th

November, 2014.

G] By an order dated 27th April, 2021, the Collector of

Stamps rejected the claim for refund holding that as

Agreement for Sale was not cancelled within the five years of

the execution thereof, the claim for refund was not

sustainable in view of the proviso to section 48(1) of the

Stamp Act, 1958.

H] Being aggrieved, the petitioner preferred a revision

before the Chief Controlling Revenue Authority. By an order

dated 9th February, 2022, the Chief Controlling Revenue

Authority was also persuaded to dismiss the appeal holding

that the interdict contained in the proviso to section 48(1) of

the Stamp Act came into play as the registered instrument

was cancelled beyond five years of its execution.

4. Being further aggrieved, the petitioner has invoked the writ

jurisdiction of this Court.

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5. I have heard Mr. Rishi Bhatt, learned counsel for the

petitioner, and Mr. S.H. Kankal, the learned AGP for the

respondents-State.

6. Mr. Bhatt, learned counsel for the petitioner submitted that

the authorities under the Stamp Act have committed a manifest

error in refusing to grant refund. Taking the Court through the

copies of the orders passed by the authorities under the RERA Act

and the impugned orders, Mr. Bhat submitted that the fact that the

applicant had applied within weeks of the execution of Cancellation

Deed was completely lost sight of. The petitioner had approached

the authorities under RERA and despite the orders passed by the

RERA and Appellate Tribunal, the Developer did not execute the

Deed of Conveyance. In the circumstances, it was impossible for the

petitioner to have the Deed of Cancellation executed within five

years of the execution of Agreement for Sale. The impossibility of

performance of the condition within the period stipulated by the

proviso was not properly appreciated by the authorities under the

Stamp Act, 1958. It was submitted that a genuine claim of a

bonafide home buyer who is in his late 60s, was unjustifiably

rejected by the authorities below.

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7. To lend support to the aforesaid submissions, Mr. Bhatt

placed a strong reliance on the judgments of the Supreme Court in

the cases of Shaikh Salim Haji Abdul Khayumsab v/s. Kumar and

Others1; Committee GFIL vs. Libra Buildtech Private Limited and

Others2; and Rajeev Nohwar vs. Chief Controlling Revenue,

Authority Maharashtra State, Pune and Others3

8. Mr. Kankal, learned AGP, countered the submissions on behalf

of the petitioner. Mr. Kankal urged that the petitioner had obtained

the entire benefit under the Agreement for Sale. The petitioner had

never sought the cancellation of the agreement for sale within the

period prescribed under the proviso to section 48(1) of the Stamp

Act, 1958. It was further submitted that the Stamp Act, 1958 being

a fiscal statute is required to be construed strictly. The authorities

under the Act, 1958 have thus committed no error in declining to

refund the stamp duty on the Agreement for Sale which was

cancelled beyond the prescribed period as the claim was made after

six year and four months.

9. Section 47 is subsumed in Chapter V of the Stamp Act, 1958

under the title, “Allowances For Stamps In Certain Cases”. Section

1 (2006) 1 Supreme Court Cases 46.

2 (2015) 16 Supreme Court Cases 31.
3 2021 SCC OnLine SC 863.

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47 reads as under :-

S.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

undersignedly 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 1[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 mistake therein, for the purpose originally
intended ;
(3) by reason of the death of any person by whom it is
necessary that is 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 ;

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(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 undersignedly spoiled, and in
lieu whereof another instrument made between the
same parties andfor the same purpose is executed and
duly stamped :
Provided that, in the case of an executed instrument,
1[except that falling under sub-clause (1A)], 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 2[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.

10. Evidently, section 47 is subject to the rules as may be framed

by the State Government. Secondly, an application for refund has to

be made within the period stipulated in section 48. Thirdly, it

enumerates the contingencies in which, upon being satisfied, the

Collector of Stamps can make allowance for impressed stamps. One

of the category specified in sub clause (c) is the stamp used for an

instrument executed by the party thereto which 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.

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11. It would be advantageous to immediately notice the time

stipulated by section 48, to make an application for relief under

section 47. Section 48 reads as under:-

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
the following period, that is to say,—
(1) in the cases mentioned in clause (c)(5), within 3
[six months] of the date of the instruments :

[Provided that, where an agreement to sale of

immovable property on which stamp duty is paid
under Article 25 of the SCHEDULE I, is registered
under the provisions of the Registration Act, 1908
and thereafter such agreement is cancelled by a
registered cancellation deed for whatsoever reasons
before taking the possession of the property which is
the subject matter of such agreement, within a period
of five years from the date of execution of the
agreement to sale, then the application for relief may
be made within a period of six months from the date of
registration of cancellation deed.]

[(2) in the case when for unavoidable circumstances

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

(3) in any other case, within 6[six months] from the

date of purchase of stamps]

12. The controversy at hand, is governed by the proviso to sub

section (1) of section 48. Indisputably, the stamp used for execution

of the Agreement for Sale has not been used for the intended

purpose as by reason of the default on the part of the Developer to

convey the property, the transaction did not materialize.

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Undoubtedly, the proviso to sub section (1) of section 48 envisages

a condition that the Agreement to Sale of immovable property on

which stamp duty is paid under Article 25 of the Schedule I, should

be cancelled by registered Cancellation Deed before taking

possession of the subject property within a period of five years from

the date of execution of Agreement to Sale and, thereupon, the

application for refund under section 47 can be made within a period

of six months from the date of registration of Cancellation of Deed.

The proviso to sub section (1) of section 48 thus envisages two time

limits. One, the registered Agreement for Sale must have been

cancelled by another registered instrument within a period of five

years of the execution of the Agreement for Sale. Two, the

application for relief under section 47 be made within a period of

six months from the date of registration of the Cancellation Deed.

13. In the case at hand, the authorities under the Act, 1958 have

declined to grant the relief on the premise that there was non-

fulfilment of the first condition of cancellation of the Agreement for

Sale within five years of its execution.

14. The learned counsel for the petitioner made a painstaking

effort to draw home the point that the aforesaid approach of the

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authorities under the Stamp Act, 1958 is not in consonance with

law and, in any event, betrays a complete disregard to the equitable

considerations and the bonafide of the petitioner. The fact that there

was, in a sense, an enforced impossibility of fulfillment of said

stipulation was not properly appreciated by the authorities under

the Stamp Act, 1958, urged Mr. Bhatt.

15. The aforesaid submission if considered in the light of the facts

which have transpired and noted above, cannot be said to be

unworthy of consideration. In the evening of their life, the

petitioner and his wife had booked a flat with the Developer. An

Agreement for sale was duly registered on 19 th November, 2014.

They had parted with 25% of the total consideration of Rs. 95 lakhs.

On account of default on the part of the Developer, the petitioner

was required to work out his remedies before the RERA Authority.

Despite the order of RERA Authority to refund the consideration

and execute a Deed of Cancellation, the Developer did not execute

such Deed of Cancellation. The petitioner was made to take out

Execution Application. The order passed in the Execution

Application was challenged by the Developer in an appeal before

RERA Appellate Tribunal. Even the order passed by the RERA

Appellate Tribunal was not complied with. The petitioner was

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constrained to file an Execution Application before RERA Appellate

Tribunal to purportedly to execute the interim order. Only

thereafter, the Developer turned up for the resolution of the

dispute. Eventually, the Deed of Cancellation came to be executed

on 9th March, 2021. The petitioner lodged the claim for refund on

31st March, 2021.

16. The aforesaid facts would indicate that there was no indolence

or other blameworthy conduct attributable to the petitioner. The

petitioner promptly approached the Authorities under RERA. The

remedies before the Authorities under RERA were diligently

pursued. The delay in execution of the Cancellation Deed surely

could not have been attributed to the petitioner.

17. The question that wrenches to the fore is, in such a situation,

can a party who does all that which is in its control, be saddled with

the consequence of non-compliance of a statutory prescription ? In

my considered view, the answer has to be in the negative. The law

recognizes impossibility of performance as a ground to relieve a

person from forfeiture and penalty.

18. In the case of Shaikh Salim Khayumsab (supra) wherein the

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question arose in the context of the extension of time to file written

statement beyond 90 days, the Supreme Court, inter alia, adverted

to two maxims, “actus curiae neminem gravabit”; an act of Court

shall prejudice no man. And “lex non cogit ad impossibilia”; the law

does not compel a man to do what he cannot possibly perform. And

found that, in the facts of the said case, the petitioner therein

deserved the extension of time beyond 90 days. The observations in

paragraph 20 read as under:-

20] In the facts and circumstances of the case, the

maxim of equity, namely, actus curiae neminem
gravabit , an act of court shall prejudice no man, shall
be applicable. This maxim is founded upon justice and
good sense which serves a safe and certain guide for
the administration of law. The other maxim is, lex non
cogit ad impossibilia, the law does not compel a man to
do what he cannot possibly perform. The law itself and
its administration is understood to disclaim as it does
in its general aphorisms, all intention of compelling
impossibilities, and the administration of law must
adopt that general exception in the consideration of
particular cases. The applicability of the aforesaid
maxims has been approved by this Court in Raj
Kumar Dey v. Tarapada Dey (1987 (4) SCC 398),
Gursharan Singh v. New Delhi Municipal Committee
(1996 (2) SCC 459) and Mohammod Gazi v. State of
M.P. and others (2000(4) SCC 342).
(emphasis supplied)

19. In the facts of the case, the first of aforesaid maxims may have

an application in the context of the time which was consumed in

prosecuting the remedies before the authorities under RERA. The

petitioner could have compelled the Developer to execute the Deed

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of Cancellation if the transaction was not to materialize, only by

invoking the remedies under the law. The time spent in pursuing

legitimate remedies, in the absence of any bad faith or want of due

diligence, can not be arrayed against the petitioner.

20. Secondly, the petitioner could not have lodged a claim for

refund of the stamp duty without there being a registered

instrument to cancel the registered Agreement to Sale. Cancellation

of earlier registered Agreement to Sale by another registered

instrument is a prerequisite for the applicability of the proviso to

sub section (1) of section 48, which provides an enhanced period

for making a claim for relief under section 47. Thus non cancellation

of the Agreement for Sale within the stipulated period of five years

cannot be construed as a default on the part of the petitioner. To

insist for the compliance of the said stipulation in the

circumstances of the case, would amount to compelling a party to

perform the impossible.

21. The aforesaid principle was reiterated by the Supreme Court

in the case of Committee- GFIL (supra). In the said case, the

question of refund of the stamp duty on the transaction which failed

on account of reasons beyond the control of the parties, arose for

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consideration. The Supreme Court observed, inter alia, as under:-

26] In our considered opinion, while deciding a case of

this nature, we have to also bear in mind one maxim
of equity, which is well settled namely "actus curiae
neminem gravabit" meaning - an act of the Court shall
prejudice no man. In Broom’s Legal Maxims 10th
edition, 1939 at page 73 this maxim is explained
saying that it is founded upon justice and good sense
and afforded a safe and certain guide for the
administration of law. This maxim is also explained in
the same words in (Jenk. Cent.118. This principle is
fundamental to any system of justice and applies to
our jurisprudence. (See: Busching Schmitz Pvt. Ltd.
vs. P.T. Menghani & Anr.(1977) 2 SCC 835 and Raj
Kumar Dey & Ors. vs. Tarapada Dey & Ors. (1987) 4
SCC 398).

27] It is thus a settled principle of law based on

principle of equity that a person cannot be penalized
for no fault of his and the act of the court would cause
no prejudice to any of his right.
…… ……

32] In our considered opinion, even if we find that

applications for claiming refund of stamp duty amount
were rightly dismissed by the SDM on the ground of
limitation prescribed under Section 50 of the Act yet
keeping in view the settled principle of law that the
expiry of period of limitation prescribed under any
law may bar the remedy but not the right, the
applicants are still held entitled to claim the refund of
stamp duty amount on the basis of the grounds
mentioned above. In other words, notwithstanding
dismissal of the applications on the ground of
limitation, we are of the view that the applicants are
entitled to claim the refund of stamp duty amount
from the State in the light of the grounds mentioned
above.

22. Rajeev Nohwar (supra) was a case for refund of stamp duty

which was purchased but no Agreement to Sale was executed. The

Supreme Court found that the provisions of section 47 had no

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application to the facts of the said case. Yet, the Supreme Court

allowed the application for claim for refund observing, inter alia,

that 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. The observations of the Supreme Court in

paragraph Nos. 30 to 33 are material and, hence, extracted below.

30] 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, cannot oust the citizen of an
entitlement to refund which otherwise follows in
terms of a statutory provision.

31] 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.

32] 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,

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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 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.

33] 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.
Therefore, if a statute prescribes a limitation period,
this Court must be slow to interfere with the delay
under Article 142. 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

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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.
(emphasis supplied)

23. I am mindful the Supreme Court has resorted to the plenary

power under Article 142 of the Constitution. However, in my

considered view the principle enunciated by the Supreme Court

that where a party would suffer consequences of judicial delay or

would be prejudiced for non-compliance of the condition which was

impossible for it to perform, such course would violate equity,

justice and fairness, deserves to be followed.

24. The authorities under the Stamp Act, 1958 may be justified in

rejecting the application in strict adherence to the letter of the law.

The statutory provision does not vest any discretion in the

authorities. It is trite, refund of the amount paid under any

enactment is a matter of a statutory right. Reading down the

proviso to sub section (1) of section 48 of the Stamp Act, 1958 as

directory may have serious repercussions on the revenue. But, the

High Court in exercise of the extraordinary writ jurisdiction cannot

be denuded of the power to delve into the question as to whether the

non-compliance of the stipulation as to time was brought about by

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factors which were beyond the control of the affected party and to

insist performance would have amounted to compelling such party

to do impossible and, thus, relieve such party of the hardship in

deserving cases, where injustice is writ large.

25. In the backdrop of the circumstances which are adverted to

above, refusal to grant refund would be wholly unjust and

unconscionable.

26. For the foregoing reasons, I am inclined to allow the claim for

refund of the stamp duty on the Agreement for Sale which came to

be subsequently cancelled by a registered instrument.

Hence, the following order.

ORDER

1] The petition stands allowed.

2] The order dated 9th February, 2022 passed by the Chief

Controlling Revenue Authority, Maharashtra State, Pune and the

order dated 27th April, 2021 passed by the Collector of Stamps,

Borivali are quashed and set aside.

3] The claim for relief under section 47 of the Stamp Act, 1958

stands allowed.

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4] The petitioner shall be entitled to refund of the stamp duty paid

on Agreement for Sale dated 19 th November, 2014, in accordance

with rules.

5] The claim for refund be processed within a period of two months

of the communication of this order.

6] In the circumstances of the case, there shall be no order as to

costs.

7] Rule made absolute in the aforesaid terms.

(N. J. JAMADAR, J.)

Vishal Parekar ...20

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