BANO SAIYED PARWAZversusCHIEF CONTROLLING REVENUE AUTHORITY AND INSPECTOR GENERAL OF REGISTRATION AND CONTROLLER OF STAMPS & ORS.

                  [2024] 5 S.C.R. 730 : 2024 INSC 443

                   Bano Saiyed Parwaz
                             v.
    Chief Controlling Revenue Authority and Inspector
  General of Registration and Controller of Stamps & Ors.
                       (Civil Appeal No. 6533 of 2024)
                                  17 May 2024
           [B.R. Gavai and Prashant Kumar Mishra,* JJ.]

                            Issue for Consideration
       The High Court dismissed the appellant’s demand for refund of
       Stamp Duty paid towards an un-executed conveyance deed.

                                   Headnotes†
       Maharashtra Stamp Act, 1958 – s.47 and s.48 – Bombay
       Stamp Rules, 1939 – Rules 21 and 22A – Stamp Duty – Refund
       of – Appellant agreed to purchase a property from vendor –
       To that effect, a deed of conveyance was prepared and it
       was sent for payment of stamp duty, which was assessed
       at Rs.25,34,350/- – Accordingly, the appellant paid this sum
       and purchased the stamp duty on 13.05.2014 – However, the
       said conveyance deed was not lodged for registration as the
       vendor was playing fraud on the appellant – Appellant applied
       for refund on 22.10.2014 – Thereafter, the appellant decided
       to cancel the said transaction and executed cancellation deed
       on 13.11.2014 – Appellant’s case for refund was rejected by
       respondent nos. 1 & 2 on the ground that the application was
       filed beyond the limitation period – The High Court upheld the
       orders of respondent nos. 1 and 2 – Correctness:
       Held: Admittedly, the appellant being a bonafide purchaser is a
       victim of fraud played upon her by the vendor – She has paid
       a sum of Rs.25,34,400/- towards stamp duty for registration of
       conveyance deed – However, the conveyance deed was not
       lodged for registration as she become aware of the fraud played
       by the vendor and thereafter, she immediately applied online on
       22.10.2014 for refund of the stamp duty – Her effort to contact the
       vendor to execute a cancellation deed did not fructify immediately
       because of unavailability of the vendor which led to a police
       complaint and it is only at this point of time, due to intervention of

* Author
[2024] 5 S.C.R.                                                               731

   Bano Saiyed Parwaz v. Chief Controlling Revenue Authority and
  Inspector General of Registration and Controller of Stamps & Ors.

     the Police, the vendor could be traced, and a cancellation deed
     was executed on 13.11.2014 – From the above admitted facts,
     prima facie it appears that the appellant herein was pursuing her
     remedies in law and she was not lax in her approach towards
     seeking refund of the said stamp duty paid by her and she has
     been denied the same only on the ground of limitation – While
     submitting the online application there was no caution to the
     appellant that all of the documents and materials for the satisfaction
     of the Collector should be filed with the application- either online or
     hard copy- itself and the finding of the High Court is contrary to the
     requirements stipulated by Sections 47 & 48 which envisages only
     the application for relief under Section 47 of the Act to be made
     within six months of the date of the instrument which prima facie
     is appeared to have been done by the appellant in the present
     case – The case of the appellant is fit for refund of stamp duty
     in so far as it is settled law that the period of expiry of limitation
     prescribed under any law may bar the remedy but not the right
     and the appellant is held entitled to claim the refund of stamp
     duty amount on the basis of the fact that the appellant has been
     pursuing her case as per remedies available to her in law and
     she should not be denied the said refund merely on technicalities.
     [Paras 10, 11, 12, 16]

                               Case Law Cited
     In Committee-GFIL v. Libra Buildtech Private Limited & Ors. [2015]
     11 SCR 420 : (2015) 16 SCC 31 – relied on.

                                 List of Acts
     Maharashtra Stamp Act, 1958; Bombay Stamp Rules, 1939.

                              List of Keywords
     Stamp duty; Unexecuted conveyance deed; Fraud by vendor;
     Refund of stamp duty; Limitation; Expiry of limitation; Pursuance
     of legal remedies; Denial of refund on basis of technicalities;
     Cancellation deed; Bonafide purchaser.

                             Case Arising From
     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6533 of 2024
     From the Judgment and Order dated 02.08.2019 of the High Court
     of Judicature at Bombay in WP No. 281 of 2019
732                                                        [2024] 5 S.C.R.

                        Digital Supreme Court Reports


                          Appearances for Parties
       Subodh Markandeya, Sr. Adv., Sahil, Rahul Aggarwal, Amit Pratap
       Singh, Narender Kumar Verma, Advs. for the Appellant.
       Aaditya Aniruddha Pande, Siddharth Dharmadhikari, Bharat Bagla,
       Sourav Singh, Aditya Krishna, Ms. Preet S. Phanse, Adarsh Dubey,
       Advs. for the Respondents.
                 Judgment / Order of the Supreme Court
                                 Judgment
       Prashant Kumar Mishra, J.
       Leave granted.
2.     The instant appeal is directed against the judgment and order
       impugned dated 02.08.2019 passed by the High Court of Judicature
       at Bombay in Writ Petition No. 281 of 2019 whereby the High Court,
       dismissed the appellant’s demand for refund of Stamp Duty paid
       towards an un-executed conveyance deed. In effect, the impugned
       order has upheld the orders of respondent nos. 1 and 2 dated
       09.06.2015 & 25.02.2016 rejecting the aforesaid demand of the
       appellant.
3.     Briefly stated, the facts of the matter are that the appellant agreed
       to purchase the property bearing C.T.S. No.340.340/1 to 340/14
       of Kurla-1 Division situated lying and being Fitwalla Cottage,
       Fitwalla Compound Bazaar Ward, Old Agra Road, Kurla (West),
       Mumbai-400070 from the Vendor - Mohammed Hanif Ahmed Fitwala
       and to that effect, they prepared a deed of conveyance which was
       sent for adjudication to respondent no.1 on 07.05.2014 for payment
       of stamp duty, which was assessed at Rs.25,34,350 (Rupees
       Twenty-Five Lakhs Thirty-Four Thousand Three Hundred Fifty Only).
       Accordingly, the appellant paid this sum and purchased the stamp
       duty on 13.05.2014 for registration of conveyance deed.
4.     Albeit, the stamp duty was paid by the appellant to respondent
       no.1 on 13.05.2014, said conveyance deed was not lodged for
       registration as the vendor of the appellant by playing fraud on
       the appellant had earlier sold the said property to a third party in
       1992. However, before executing the said conveyance deed, the
       appellant had given a public notice but nobody objected to the said
[2024] 5 S.C.R.                                                          733

      Bano Saiyed Parwaz v. Chief Controlling Revenue Authority and
     Inspector General of Registration and Controller of Stamps & Ors.

        transaction. Thereafter, in view of these facts, the appellant decided
        to cancel the said transaction, for which he tried to contact the said
        vendor but he was not available, compelling the appellant to file a
        complaint with the Police Authority. Thereafter, the Vendor executed
        the cancellation deed on 13.11.2014. However, the appellant had
        on 22.10.2014 already applied online for refund of the said amount
        as per Section 48 of the Maharashtra Stamp Act, 19581 and had
        filed written application on 06.12.2014 along with the documents.
        The appellant’s case was rejected by respondent nos.1 & 2 on the
        ground that the application filed by her was beyond the limitation
        period as per Section 48 of the Act.
5.      The learned counsel for the appellant submits that the appellant’s
        case is squarely covered within the circumstances laid down in
        Section 47 (c) [1] and [5] of the Act and Rules 21 and 22A of the
        Bombay Stamp Rules, 19392 which read as under:
                “47. (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;
                    2[1A] has been afterwards found by the Court,
                    to be absolutely void from the beginning under
                    section 31 of the Specific Relief Act, 1963;
                    ***
                    (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;”
                “21. Evidence as to circumstances of claim to refund
                or renewal.
                    The collector may require any person claiming
                    a refund or renewal under chapter v of the
                    Act, or his duly authorized agent, to make


1.    ‘Act’
2.    ‘Rules’
734                                                      [2024] 5 S.C.R.

                Digital Supreme Court Reports


           oral deposition oath or affirmation, or to file an
           affidavit, setting forth the circumstances under
           which the claim has arisen, and may also’ if he
           thinks fit, call for the evidence of witnesses in
           support of the statement set forth in any such
           deposition or affidavit.
                                NOTES
       Claim for refund of stamp duty.
           Under rule 21 where a claim for refund of
           stamp duty is made, the procedure laid down
           under the rule to take evidence by the Collector.
           Accordingly, the Collector may direct any person
           claiming a refund under Chapter v to make an
           oral deposition on oath or affirmation or to file an
           affidavit, setting forth the circumstances under
           which the claim has arisen and if he thinks fit
           call all evidence of witnesses in support of the
           statement set forth in any such deposition or
           affidavit. Rule 22A deals with matters relating
           deducting to deduction to be made from the
           amount of spoiled or misused or unused stamps.
           The word “spoiled stamps” is not expressly
           defined either in the Act or in the Rules but
           Section 47 describe instances of such spoiled
           stamps for the purpose of claiming refund.
       22A, Rule of deduction from the amount of stamps,
       allowance for spoiled, misused or unused etc.
           When any person is in possession of –
           (a) spoiled stamps, under section 47, misused
           stamps under section 50, or printed forms on-
           stamped paper no longer required under section
           49 and he applies to the collector for making
           allowance in respect or the same.
           (b) 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 and he delivers up the same to
[2024] 5 S.C.R.                                                            735

      Bano Saiyed Parwaz v. Chief Controlling Revenue Authority and
     Inspector General of Registration and Controller of Stamps & Ors.

                  the collector for cancellation, then the collector
                  may, give in lieu thereof may repay to such
                  person, the same, value in money of such stamp
                  or stamps or printed forms on stamped papers,
                  after deducting rupees ten for each stamp or
                  printed form on stamped paper or amount equal
                  to (ten per cent) of the value of such stamp or
                  such printed form, whichever is more”.
6.     The learned counsel for the appellant further submitted that the law
       of refund embodied in Sections 47 and 48 of the Act and Rules 21
       and 22A of the Rules, envisages two separate and distinct stages
       for refund of stamp duty i.e., i) making of application for refund within
       six months and ii) holding of enquiry and leading of evidence as per
       Rules made by the State Government, to satisfy the Collector that
       case of refund is covered by one or more of the circumstances (a)
       (b) and (c) [1] to [8] set out in Section 47 of the Act.
7.     The learned counsel for the appellant would further submit that
       the respondent no. 2 and the High Court as well misconstrued the
       provisions of Sections 47 & 48 of the Act and has also overlooked
       Rules 21 and 22A of the Rules. In as much as, the appellant’s
       application was within time and the same could not have been
       rejected as barred by limitation.
8.     Per contra, the learned counsel for the respondents vehemently
       opposed the present appeal and submitted that in the present
       proceeding though the appellant filed application for refund of stamp
       duty on 22.10.2014, but the cancellation deed executed between the
       appellant and the seller of the said property was dated 13.11.2014
       i.e., beyond the limitation period of six months from the date of
       purchase of stamp duty, after cancellation of those documents, as
       prescribed under Section 48 of the Act. As per Section 48 of the Act,
       the last date for applying for the refund was 12.11.2014, therefore, the
       application filed by the appellant was beyond the period of limitation.
9.     We have heard both the counsel for the parties and perused the
       pleadings.
10. Admittedly, the appellant being a bonafide purchaser is a victim
    of fraud played upon her by the vendor. She has paid a sum of
    Rs.25,34,400/- towards stamp duty for registration of conveyance
736                                                         [2024] 5 S.C.R.

                           Digital Supreme Court Reports


       deed. However, the conveyance deed was not lodged for registration
       as she become aware of the fraud played by the Vendor and thereafter,
       she immediately applied online on 22.10.2014 for refund of the stamp
       duty. Her effort to contact the vendor to execute a cancellation deed
       did not fructify immediately because of unavailability of the Vendor
       which Led to a police complaint and it is only at this point of time,
       due to intervention of the Police, the vendor could be traced, and a
       cancellation deed was executed on 13.11.2014.
11. From the above admitted facts, prima facie it appears that the
    appellant herein was pursuing her remedies in law and she was
    not lax in her approach towards seeking refund of the said stamp
    duty paid by her and she has been denied the same only on the
    ground of limitation.
12. The finding returned by the High Court in the impugned order that the
    appellant’s application for refund dated 22.10.2014 is not maintainable
    in law as it has been filed before the cancellation of the conveyance
    deed dated 13.11.2014 is misplaced in so far as while submitting the
    online application there was no caution to the appellant that all of the
    documents and materials for the satisfaction of the Collector should
    be filed with the application- either online or hard copy- itself and the
    finding of the learned single judge is contrary to the requirements
    stipulated by Sections 47 & 48 which envisages only the application
    for relief under Section 47 of the Act to be made within six months
    of the date of the instrument which prima facie is appeared to have
    been done by the appellant in the present case.
13. The evidence required and enquiry to be made in terms of Section 47
    of the Act is a separate process altogether and apropos circumstances
    for refund under Section 47 (c) [1] & [5] of the Act, evidence is not
    required to be filed along with the application- either the online
    application or separately on the same day by way of hard copy.
14. In Committee-GFIL v. Libra Buildtech Private Limited & Ors.3,
    wherein the issue of refund of stamp duty under the same Act was
    in question, this Court has observed and held inter alia as under:
            “29. This case reminds us of the observations made by
            M.C. Chagla, C.J. in Firm Kaluram Sitaram v. Dominion


3   [2015] 11 SCR 420 : (2015) 16 SCC 31
[2024] 5 S.C.R.                                                            737

   Bano Saiyed Parwaz v. Chief Controlling Revenue Authority and
  Inspector General of Registration and Controller of Stamps & Ors.

           of India [1953 SCC OnLine Bom 39 : AIR 1954 Bom 50] .
           The learned Chief Justice in his distinctive style of writing
           observed as under in para 19: (Firm Kaluram case, SCC
           OnLine Bom)
           “19. … we have often had occasion to say that when the
           State deals with a citizen it should not ordinarily rely on
           technicalities, and if the State is satisfied that the case of
           the citizen is a just one, even though legal defences may
           be open to it, it must act, as has been said by eminent
           Judges, as an honest person.”
           We are in respectful agreement with the aforementioned
           observations, as in our considered opinion these
           observations apply fully to the case in hand against the
           State because except the plea of limitation, the State has
           no case to defend their action.
                                   xxx xxx xxx
           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.”
15. The legal position is thus settled in Libra Buildtech (supra) that
    when the State deals with a citizen it should not ordinarily rely on
    technicalities, even though such defences may be open to it.
16. We draw weight from the aforesaid judgment and are of the opinion
    that the case of the appellant is fit for refund of stamp duty in so far
    as it is settled law that the period of expiry of limitation prescribed
    under any law may bar the remedy but not the right and the appellant
    is held entitled to claim the refund of stamp duty amount on the
738                                                        [2024] 5 S.C.R.

                          Digital Supreme Court Reports


       basis of the fact that the appellant has been pursuing her case as
       per remedies available to her in law and she should not be denied
       the said refund merely on technicalities as the case of the appellant
       is a just one wherein she had in bonafide paid the stamp duty for
       registration but fraud was played on her by the Vendor which led to
       the cancellation of the conveyance deed.
17. For the foregoing reasons, the appeal is allowed, and we set aside
    the impugned order dated 02.08.2019 as well as orders of respondent
    nos.1 and 2 dated 09.06.2015 and 25.02.2016 and direct the State
    to refund the said stamp duty amount of Rs. 25,34,400/- deposited
    by the appellant.

       Result of the case: Appeal allowed.



       †
           Headnotes prepared by: Ankit Gyan