CHIEF CONTROLLING REVENUE AUTHORITYversusCOSTAL GUJARAT POWER LTD. AND OTHERS

                        [2015) 9 S.C.R. 36


A         CHIEF CONTROLLING REVENUE AUTHORITY
                                 v.
         COSTAL GUJARAT POWER LTD. AND OTHERS
                 (Civil Appeal No. 6054 of2015)
B
                        AUGUST 11, 2015
             [M. Y. EQBALANDARUN MISHRA, JJ.)
        Gujarat Stamp Act, 1958- ss. 5 and 6- Respondent-
c company     took financial assistance - From 13 financial
  institutions - The 13 lenders formed a consortium as a trust
  and executed a security trustee agreement, appointing one
  of the banker-lender as a security trustee - The company
  executed a Mortgage Deed with the security trustee -
D Registration of the deed - Deman.d of additional stamp duty
  by the Revenue on the basis of s. 5 - Demand challenged -
  Revenue Authorities confirmed the demand - On Reference,
  High Court opined in favour of the company - On appeal,
  held: The Mortgage Deed came into existence only after
E separate loan agreements were executed by the borrower-
  Company with the 13 financial institutions-lenders with regard
  to separate loan advanced - On proper construction of the
  Mortgage Deed, it can safely be regarded as 13 distinct
  transactions which fall uls. 5 - Demand of additional stamp
F duty confirmed.

        Allowing the appeal, the Court

       HELD: 1. The High Court has committed serious
G error of law in interpreting the provisions of Sections 5
  and 6 of the Gujarat Stamp Act, 1958. Consequently, ·
  the answer given by the High Court on the Reference,
  cannot be sustained in law. [Para 36) [55-D]

        2. From bare reading of ss. 4, 5 and 6 of the Act, it is
H
                                36                                 ·-
 CHIEF CONTROLLING REVENUEAUTHORITYv. COSTAL               37
             GUJARAT POWER LTD.

  clear that Section 4 deals with single transaction A
· completed in several instruments, whereas Section 5
  deals only with the instrument which comprises more
  than one transaction and it is immaterial for the purpose
  whether those transactions are of the same category or
  of different categories. [Para 31) [52-F-G]               B

     3. From the facts of the case, it is manifest that the
instrument of mortgage came into existence only after
separate loan ·agreements were executed by the
borrower with the lenders with regard to separate loan C
advanced by those lenders to the respondent borrower.
[Para 28) [50-G]

     4. It appears from the trustee document that
altogether 13 banks lent money to the mortgagor, details o
of which have been described in the schedule and for
the repayment of money, the borrower entered into
separate loan agreements with 13 financial institutions.
Had the respondent-borrower entered into a separate
mortgage deed with these financial institutions in order E
to secure the loan, there would have been a separate
document for distinct transactions. On proper
construction of this indenture of mortgage, it can safely
be regarded as 13 distinct transactions whict"! falls under
Section 5 of the Act. [Para 32) _[52-G-H; 53-A-B]           F

   The Member, Board of Revenue vs. Arthur Paul
   Benthall 1955 SCR 842 - followed.

   Halsbury's ~aw of England 41h Edition volume 44 p.      G
   399 - referred to.

                    Case Law Reference

1955 SCR 842                     followed.      Para 16
                                                           H
38         SUPREME COURT REPORTS                   [2015] 9 S.C.R.


A        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
     6054 of2015

          From the Judgment and Order dated 03.12.2012 of the
     High Court of Gujarat atAhmedabad in Stamp Reference No.
B    1 of2011

         Preetesh Kapur, Hemantika Wahi, Jesal Wahi for the
     Appellant.

         C. A.· Sundaram, Ananya Kumar, Pragya Chauhan,
C    Dheeraj Nair, Rohini Musa, Abhishek Gupta, Sandeep Singh,
     Shamik Bhatta, Gaurav Mitra, K. R. Sasiprabhu, Vishnu
     Sharma, Reha Mitra, Deepali Dwivedi, Somiran Sharma, Biju
     Raman Deb for the Respondents.

D         The Judgment of the Court was delivered by

          M. Y. EQBAL, J. 1. Leave granted.

          2. The Full Bench of the Gujarat High Court on reference
  E made by the Chief Controlling Revenue Authority, State of
    Gujarat under Section 54(1A) of the Gujarat Stamp Act, 1958
    (in short, "the Act"), passed the impugned judgment and order
    dated 3.12.2012 in Stamp Reference No.1 /2011 answering
    the reference in favour of the respondent and against the
. F Revenue holding that the respondent was not required to pay
    the dues of deficit stamp ~uty of Rs. 50,41,600/-.

         3. The questions referred to the High Court for its opinion
     and decision arise as under:-
G      (A) The deed of "indenture the deed of mortgage for
       delayed after assets" which was registered on 6.10.2009
       vide Regn. No.3375 registered at office of Sub-Registrar,
       Mundra (District Kachchh) by the applicant has paid
       Rs.4,21,000/- whether as per provision of Sections 5,
H
CHIEF CONTROLLING REVENUE AUTHORITY v. COSTAL                    39
       GUJARAT POWER LTD. [M. Y. EQBAL, J]

  3(a), 3(B) and the Schedule-1 's Articles 6 and 36(b) the     ·A
  applicant is required to pay deficit stamp duty of
  Rs.50,41,600/- or not."

  (B) The deed of "indenture the deed of mortgage for
  delayed after assets" which was registered on 6.10.2009        B
  vide Regn.no.3375, at the office of the Sub-Registrar,
  Mundra (District Kachchh) by the applicant is required to
  be considered as per Schedule 1's Articles 6 and 36 as
  per simple mortgage and whether the applicant is
  required to pay Rs. 4,21,600 or not?"                          C

     4. The facts of the case lie in a narrow compass.

     5. The respondent is a Company named Coastal Gujarat
Power Ltd and it needed financial assistance for setting up an D
Ultra Mega Power Project in the area of Kutch-Bhuj and for
that purpose it secured assistance from few lenders. The
lenders i.e. financial institutions, which were thirteen in number,
formed a consortium as a trust and executed a security trustee
agreement (STA) inter se appointing one banker, viz. the State E
Bank of India as the lead trustee, called the security trustee.
The duties of the security trustee are carved out in the said
agreement of security trustees.

     6. The respondent executed an "Indenture of Mortgage F
for Delayed After Assets Deed' with the State Bank of India,
the said security trustee, mortgaging its assets as.mentioned
in the deed itself. The said document was presented for
registration before the Sub-Registrar, Mudra, by paying stamp
duty of Rs. 4,21,000/-and the deed was registered.            G

    7. According to the appellant, the respondent was liable
to pay Rs. 54,62,000/- on the said deed and, hence,
demanded the balance amount of Rs. 50,41,000/- from the
respondent by iss~ing show cause notice dated 5.11.2009.         H
40         SUPREME COURT REPORTS                   (2015] 9 S.C.R.


A · The issue was forwarded for consideration of the Deputy
    Collector, Stamp Duty Valuation Organisation, Bhuj-Kutch
    under Section 33 of the Act.

        · 8. The respondent was given an opportunity of hearing
B and vide order dated April, 3, 2010, the Qeputy Collector held
    that the respondent was liable to pay the deficit stamp duty
  · with the amount of penalty of Rs.250/-.

           9. The revision application filed by the respondent under
c     Section 53(1] oftheActwas dismissed vide order dated March,
      28, 2011. The respondentthereafter made an application under
      Section 54(1-A] of the Act thereby giving rise to the Reference
     ·Proceedings.

D         10. By way of the Reference, the opinion of the High Court
     was sought on the questions referred hereinabove.

           11. The High Court opined that the State of Gujarat is not
     entitled to recover any additional stamp duty based upon its
     perception of the legislative intendment behind Section 5 of
E    the Act. The Court noted that stamp du.ty is payable on
     instruments and not on transactions. Therefore, merely
     because the intended effect was achieved by executing one
     single document as against different sets of documents, such
F    fact would not enable the State authorities to justify the
     conclusion that the one single document falls under the purview
     of Section 5.oftheAct. It was SBI alone which had the power
     to enforce the document against the respondent. The High
     Court further opined that there being only one instrument
G    creating a mortgage by a borrower in favour of a security
     trustee, such relation between the borrower and security trustee
     is independent of the relationship between the borrower and
     the lending banks. The relationship between the borrower and
     the security trustee is that of a mortgagor and mortgagee. By
H    taking aid pf the provision of the Indian Trust Act and after
CHIEF CONTROLLING REVENUEAUTHORITYv. COSTAL                      41
       GUJARAT POWER LTD. [M. Y. EQBAL, J]

creation of a different valid trust deed and making payment of A
stamp-duty thereon in accordance with law, the State Bank of
India became the security trustee of the lending Banks and
held the mortgage for and on behalf of those beneficiaries.
Therefore, by the instrument in question, either fictionally or
otherwise, no separate or distinct matters or transactions are B
created. Thus, the applicant is the mortgagor and the S.B.I., in
the capacity of a trustee, is the mortgagee. The instrument
does not involve either "distinct matters" or "distinct
transactions" so as to attract Section 5 of the Act. The Court
found from the document in question that the State Bank of C
India is the only mortgagee under the instrument and no rights
in the mortgaged property had been created in favour of
secured parties or any other persons.

      12. The High Court further opined that the principles laid D
down in The Member, Board of Revenue vs. Arthur Paul
Benthall, 1955 SCR 84, can be of no assistance to the State
in this case. Indisputably, nobody disputed that the instrument
in question is a mortgage deed and that according to the
provisions of the Act, the same should be charged in E
accordance with the schedule 1. Thus, by no stretch of
imagination, the said mortgage deed is treated as a
combination of thirteen lenders by taking aid of the above
principles. Finally, the Full Bench held that on consideration of F
the entire materials on record, the reference was answered
as Point [A] No and Point [B] yes.

     13. Hence, the present appeal by special leave.

      14. Mr. Preetesh Kapur, learned counsel appearing for G
the appellant, Revenue Authority, assailed the impugned
judgment passed by the Full Bench of the Gujarat High Court
as being erroneous and contrary to the provisions of the Stamp
Act in the matter of Payment of Stamp Duty. Learned counsel
                                                               H
42         SUPREME COURT REPORTS                   [2015] 9 S.C.R.


A submitted that the High Court has failed to appreciate that the
  respondents had formed the consortium and had executed the
  present mortgage instead of several distinct instruments of
  mortgage with the sole purpose of evading Stamp Duty.
  Learned counsel submitted that admittedly the respondents
B had availed financial assistance from 13 lenders for its project
  and consequently, the respondent was required to execute
  mortgage deed in favour of the 13 lenders. However, in order
  to avoid payment of Stamp Duty on each mortgage deed, the
  respondent got the lenders to form a consortium and appointed
C State Bank of India as security trustee. Thus, in substance,
  the mortgage deed between the SBI on behalf of the lenders
  and respondent is a combination of 13 mortgages dealing with
  the respondents and such lenders, hence, the respondent
D cannot be allowed to evade payment of stamp duty by forming
  a consortium.

            15. Learned counsel further submitted that the instrument
     in question relates to several distinct matters or distinct
     transactions inasmuch as the respondent borrower availed
E    distinct loan from 13 different lenders, hence, the instrument
     falls under Section 5 of the Gujarat Stamp Act. Learned counsel
     also referred to the Government Circular dated 2.4.2007 and
     submitted that clause (ii) of the Circular specified that an
F    instrument like the present one would fall within the purview of
     Section 5 of the Act.

        16. Per contra, Mr. C.A. Sundaram, learned senior
  counsel appearing for the respondent, drew our attention to
  different clauses of mortgage deed and submitted that security
G created by the said mortgage in favour of the security trustee
  shall become enforceable only by security trustee upon the
  occurrence of event of default. According to the learned senior
  counsel since no independent right has been created in favour
H of the lenders under the mortgage deed it cannot be held to
CHIEF CONTROLLING REVENUE AUTHORITY v. COSTAL                         43
       GUJARAT POWER LTD. [M. Y. EQBAL, J]

be a separate and distinct transaction. According to Mr. A
Sundaram, Section 5 of the Act shall not have any application.
Learned senior counsel further referred to the relevant
paragraph of the judgment of this Court in The Member, Board
of Revenue vs. Arthur Paul Benthall, 1955 SCR 842 and
submitted that the ratio decided in the said Judgment fully B
applied in the present case.

      17. It was further contended what has to be looked into
for the purpose of stamp duty is the instrument, i.e., the
Mortgage Deed, to see whether it dealt with distinct matters. C
The Mortgage Deed dealt with only one single matter, i.e., the
mortgage of a single property with one mortgage;e. Merely
                                .
because there was beneficial interest for all the individual
banks forming the consortium, this would not amount to distinct
matters as per the ratio of the Benthall Case, since there were D
no distinct mortgages regarding distinct properties, but one
common mortgage for one property. Hence, even assuming
that the banks were seen to have an individual interest, there
was in fact a commonality of such interest with all the other
"secured lenders" and, therefore, the instrument did not deal E
with distinct matters.

      18. According to the learned counsel, to decide as to
whether and how such instrument is to be stamped it is that
instrument alone that is to be looked at and not other F
documents executed between the parties or inter se the banks
themselves or between the banks and a partY to the instrument,
since those are not the instruments being stamped. In fact,
                •
following such a course of action would amount to indirectly
stamping the loan agreements and STA twice, which is G
impermissible in law, since those instruments had already been
separately and individually stamped.

     19. Lastly, it was contended that in any event, in the instant
case, even if a doubt arises with regard to the interpretation of     H
44         SUPREME COURT REPORTS                    [2015] 9 S.C.R.


A the Mortgage Deed, and as to whether it comprises distinct
  matters or not, the benefit of such doubt must be given to the
  assessee, i.e. the Respondent No.1, since it is a settled
  principle of interpretation of fiscal statutes that in case of
  ambiguity, the interpretation favourable to the assessee must
B be adopted.

       20. In light of the aforesaid, it is submitted that the
  impugned judgment, which has rightly decided the matter in
  favour of the Respondent (assessee) and against the Appellant
C (revenue), does not suffer from any infirmity. Therefore, the
  present appeal ought to be dismissed by this Court. As a
  sequitor to the dismissal of the appeal, the appellant should
  also be directed to refund the excess stamp duty amount of
  Rs. 50,41,600/- that was deposited, under protest, by
D Respondent No.1.

           21. Before deciding the question first of all we shall deal
     with the relevant document to ascertain the nature of loan.

E       1. Security Trustee Agreement dated 15.9 .2008.

        The persons set out in Schedule II have been collectively
       referred to as the "Senior Lenders" which includes their
       successors, transferee and assigns. These senior
       dealers entered into an agreement with the respondent
F
       Mis. Costal Gujarat Power Limited, a company registered
       under the CompaniesAct and referred to as borrower.

        22. From the body of this agreement, it reveals that the
  borrower had requested the senior lenders i.e.'thirteen banks/
G financial institutions to make available to the borrower loan
  details of which is more fully set out in Schedule II. Pursuant to
  the loan agreement entered into by the borrower and the senior
  lenders, each of senior lenders inter alia agreed to provide to
H the borrower credit and loan facilities to finance part of the
CHIEF CONTROLLING REVENUE AUTHORITY v. COSTAL                               45
       GUJARAT POWER LTD. [M. Y. EQBAL, J]

project, costs of the project, more specifically set out in                 A .
Schedule II. At this stage, we would like to extract herein
Schedule II of the said SecurityTrusteeAgreement:-
                            SCHEDULE II
                                PART A                                      B
              LIST OF ECB FACILITY LENDERS


  s.   ECB Fa:ility    Q:rmitrrert l.erding Offioo
  No                   On Cbllars                                           c
                       nilliais)
  1    Asian           450          Psian l:elelcprrent Bank, 6
       Cevelcprrert                 PD3 Avaii.e, l\ll:ndauyaig City 1500,
       Bank                         Me1ro IV'arila, Phlii:Pines
                                    Fa::sinile: -+U3-2-63&-Z348
  2    lnemaional      450          lrternatiaial Finarce
                                                                            D
       Rnarce                     · C.Orµ>ratiai, 2121 Pemsylvaiia
       C.Orpaaion                   Alerue, NN, Wshin~ai, D.C. 20433,
                                    Lklited Stetes of Pmai ca
  3    BNP Pa'itas, 326.65          S:n.dLred Rnarce - f>s:l3. Rnarce -
       as a KBC                     Expert Fi narce, 37, A a::e dJ Ma'ere
       C.Overa:l                    S:lint-1-bnore
       Facility Lender              PCI Q-la:sAI 70031 Paris Cedex 01       E
                                    Frarce
                                    .Attertion: Cmnercial
                                    9..Jpp:>rt and Loan IITlJleralfatial
                                    Fa::sinile: +33( 0) 1 43 1681
                                    ffi, V\Ath refErenoo ta
                                    IVLIDRA                                 F
  4    The Expert- 000              f-ea:l Offioo in ~Ll, l<orea
       lrrµirt Bank d               The Expcrt-lrrpcrt Bank ofKcra
       Kcrea                        16-1, Yoouido-daig Ye:mgdamgfl}gu
                                    ~Ll, 150-006
                                    Reputji c of l<oree
                                    Fa::sinile: +82-2-37~747                G

                               PARTS
            LIST OF RUPEE FACILITY LENDERS

                                                                            H
46         SUPREME COURT REPORTS                                     [2015] 9 S.C.R.

A    S.         Details of Rupee Faciltty lender and Lending Office              Rupee
     No.                                                                     Commitment
                                                                              tin Crores\
      1      INDIA INFRASTRUCTURE FINANCE COMPANY                            1800
             LIMITED, having its Head Office at 1201-1207, Naurang
            House Kasb.Jrba Gandhi Marg, New Delhi - 11 O001
            Telephone No: 011-23736354 Fax No. 011-23736355
     2      ORIENTAL 66.NKOF COMMERCE,                                       550
B           having tts Head office at Harsha Bhavan,
            E-Block, Connaught Place, New Delhi 11O001,
            and having i1s Large Corporate Branch at 181-A,
            Maker T ewer 'E', 18th Floor. Cuffe Parade,
            Mumbai 400 005 Telephone No: 022-221542.437 22
             153836 Fax No. 022-22153533
     3      STATE 66.NK OF BIKANERANDJAIPUR,                                 200
c           having tts Head Office at5-A, Tilak Marg, Scheme, Jaipur-
            302 016 and having its Commercial Network Branch at 239,
            P.D.Mello Road, Fort. Mumbai -400001.
            Telephone No: 022-226557777 2262 1854
            Fax No. 022-22651324
     4.     State Bank of Hyderabad, having its Head Office At .             100
            Gunfoundry, Hyderabad and having i1s Overseas Branch at
           Ashok Mahal, 1204. Tuloch Marg, Colaba, Mumbai-400039.
D           Telephone No.022-22042586122820177.
            Fax No.022-22851321
     5.     State Bank of India with its Corporate Centre Al. State Bank     2000
            Bhavan, Madame Cam a road, Mumbai 400 021 and having
            its Project Finance SBU at :i"' Floor State Bank Bhavan.
            Madam Cama Road, Mumbai-400 021.Tel. No.022-
            2288415Ql22852538 Fax.022-22883021
E    6.     State Bank of Indore, having i1s head Offiee at 5, Y.N.Road,     100
            lndore-452 003 and having its Commercial Branch at Mittal
            Court 'B' Wng. Na rim an Point, Mumbai-400 021. Telephone
            No.022-228121557/22821558
            Fax No.022-22835735
     7      State Bank ofTravancore, having i1s Head Office Al.              100
            Poojappura, Thiruvananthapuram-695012 and having
            11s Corporate Finance Branch at 12-115, Tulsiani Chambers,
F           Nariman Point, Mumbai-400 021.
            Telephone No 022-30287007 Fax No.022-30287017.
     8     The Housing and Urban Development Corporation Ltd.                500
            Having its Head Office at HUDCO Bhawan. Cor~ 7A,
            India Habitat Centre Lodhi road, New Delhi-110003,
           And having i1s Mumbai Regional Office at Sh reyas
           Chambers, 2"" Floor, 175 Dr. D.N. Road, Fort
            Mumbai-400 001.
G          Telenhone No.022-690080.84 Fax No.022-22690086
     9.    'vljay bank, having i1s Head Office                               500
           Al. 41/2 Head Office Building Trintty
           Circle, Mahatma Gandhi Road Bangalore G.P.O.
            Bangalor~560001 and having its Industrial
           Finance Branch at New Excelsior Building, 2"'
           Floor, Fort Mubai-400 001. Telephone No.022-22079776
H          Fax No.022-22075994.
                                                                   Total -   5850
    CHIEF CONTROLLING REVENUEAUTHORITYv. COSTAL                      47
           GUJARAT POWER LTD. [M. Y. EQBAL, J]

          23. It further appears from the Security Trustee Agreement A
    that the entire financing of the project by Senior Lenders agreed
    to be secured by first ranking mortgage and pari passu charge/
    issuing of all the moveable properties of the borrower. Further
    a first ranking pari passu charge of all the borrowers account
    and each of the other accounts required to be created by B
    borrower under any transaction document.

          24. For the aforesaid purpose, the Senior Lenders and
    the issuing bank (SBI) desired that the borrowers settle a trust
    for the beneficial interest of the Senior Lenders and the issuing C
    bank (SBI) had to empower the security trustee to accept the
    lien created pursuant to the security document. At the request
    of the borrower, the Senior Lenders and the issuing bank
    agreed to act as security trustee for the secured parties on the
    terms and ,conditions contained in the agreement and in the D
    financing document. By the said agreement, the State Bank
    of India (project finance SBI Bombay) was appointed as a
    security trustee to act on behalf of the secured parties, pursuant
    to the trust created by the said agreement.
                                                                     E
          25. On 6th October, 2009, an indenture on mortgage was
    executed by and between the borrower, Mis. Costal Gujarat
    Power Limited and State Bank of India as in the capacity as
    security trustee for the Senior Lenders as set out in the
    schedule of this mortgage deed. In the said deed it is F
    mentioned inter alia that pursuant to the Senior Loan
    Agreement entered into between the borrower and senior
    lenders. each of the senior lenders have agreed to extend to
    the borrower the loan to the maximum extent set out in schedule-
    I. By this indenture. English Mortgage in respect of immovable G
    property was created. The relevant clauses of Mortgage deed
•   are set out herein below:-

                                                (Emphasis given) ·
                                                                     H
48        SUPREME COURT REPORTS                      (2015] 9 S.C.R.    '

A     "2. Benefit of Indenture. The Security Trustee, acting
      for the benefit of the secured parties shall hold the Security
      created by the borrower in its favour this indenture over
      the mortgaged properties including convents and
      mortgages given by the borrowers pursuant hereto, upon
B     trust for the benefit of the secured parties subject to the
      powers and provisions contained herein and in the
      Security Trustee Agreement, for the due payment of the
      mortgage Debt and performance of all obligations under
      the financing Documents.
c
       4. Grant and Transfers:-Forthe consideration aforesaid
       and as continuing security for the payment and discharge
       of the mortgage Debt and performance of all obligations
       under the Financing Documents by the Borrower hereby
D      secured or intended to be hereby secured, the Borrower
       both hereby grant, assign, convey assure, charge and
       transfer into the Security Trustee for the benefit of the
       secured Parties by was of a first mortgage and charge)
       all the rights title, interest and benefit in all and singular
E      the beneficial right title and interest of the Borrower in
       respect of the immovable property situated in situated in
       district Mundra in the State of Gujarat more particularly
       described in Schedule 2 hereinunderwritten (the "delayed
       After Acquired Assets") together with all buildings
F
       erections and constructions of every description which.
       are standing erected or attached or shall at any time
       hereafter during the continuance of the Security hereby
       lands and premises or any part thereof and all rights to
G      use common areas and facilities and incidentals attached
       hereto, together with all trees, fences, hedges, ditches,
       ways sewers, drains, waters, watercourses, liberties,
       privileges, easements and appurtenances whatsoever
     . to the said lands, hereditaments or premises or any part
H      thereof whether presently in existence or in the future
~

        CHIEF CONTROLLING REVENUEAUTHORITYv. COSTAL                     49
               GUJARAT POWER LTD. [M. Y. EQBAL, J]

          belonging to or in anyway appurtenant thereto and all the     A
    '
    '
          estate, right title, interest property claim and demand
          whatsoever of the Borrower~nto and upon the same which
          description shall include all properties of the above
          description whether presently in existence constructed
          or acquired hereafter (the "Mortgaged Properties"). To        B
          have and to hold all and singular the Mortgaged
          Properties into unto and to the use of the security Trustee
          Upon Trust and subject to the powers and provisions
          herein contained and subject also to the proviso for
          redemption hereinafter mentioned.                             c
          5. Pari Passu Ranking:- The mortgage and first charge
          created pursuant to security 4 hereto in favour of the
          Security Trustee for the benefit of the Secured parties
          shall rank pari passu inter-se and without and preference     D
          or priority over each other.

          The mortgage and first charge to be created in favour of
          the Security Trustee for the benefit of the Working Capital
          lenders and if approved in accordance with the Hedging        E
          Plan, the Hedge provides shall rank pari passu inter-se
          and with the Secured Parties and without any preference
          or priority over each other and the secured parties once
          such mortgage and charge in relation to the Mortgaged
          properties is created in their favour."                       F

             26. Clauses 18.1 and 18.3 are also. relevant and
        reproduced herein under:-

          "18.1 Section 67Aofthe Transfer of Property Act, 1882:-       G
          The provisions of Section 67-A of the Transfer of Property
    .     ct, 1882, shall not apply to these presents .
          Notwithstanding that the Security Trustee may hold two
          of more mortgages executed by the Borrower including
          these presents in respect of which the Security trustee       H
•
50         SUPREME COURT REPORTS                     [2015] 9 S.C.R.


A      has the right to obtain the kind of decrees under section
       67 of the Transfer of Property Act, 1882, the Security
       Trustee shall be entitled to sue and obtain such decree
       on any of such mortgages without being bound to sue on
       all such mortgages in respect of which the mortgage
B      money shall have become due."

         27. Clause 23.1, deals with the manner of payment of
     stamp duty. The said clause reads as under:-

c      "23.1. Stamp Duty and Other Fees on Execution,
       Registration, etc.:- The Borrower shall pay all stamp duty,
       other duties, taxes, fees, penalties or other charges
       payable on or in connection with the execution, issue,
       delivery, registration of this Indenture, the Security Trustee
D      Agreement and any document, act and registration
       performed pursuant hereto, if and when the Borrower may
       be required to pay the same according to any of the
       Financing Documents or according to the Applicable Law
       for the time being or at any time in orce in the State in
E      which its properties are situated. If the Bcrrowerfails to
       pay the stamp duty, other duties, Taxes, fees, penalties
       or other charges payable hereinabove, then the Security
       Trustee may (but is not obligated to) pay such amounts,
       on behalf of the Borrower. Any money paid by the
F      Security Trustee as aforesaid, shall constitute a part of
       the Mortgage Debt."

        28. From the facts discussed and narrated hereinabove,
  it is manifest that the instrument of mortgage came into
G existence only after separate loan agreements were executed
  by the borrower with the lenders with regard to separate loan
  advanced by those lenders to the respondent borrower. The             ..
  mortgage deed which recites at length as to how and under
  what circumstances property was mortgaged with the security
H trustee for and on behalf of lender bank.
                                                                        -
    CHIEF CONTROLLING REVENUEAUTHORITYv. COSTAL                        51
           GUJARAT POWER LTD. [M. Y. EQBAL, J]

        29. When several matters are contain.ed in one instrument,     A
    what stamp is payable thereon in England has been dealt with
    and Halsbury's Law of England 4t11 Edition volume 44 paragraph
    613 at page 399 is quoted herein below:-

      "613. Instrument relating to several matters. Except             B
      where there is statutory provision to the contrary, an
      instrument containing or relating to several distinct matters
      is to be separately charged, as if it were a separate
      instrument, with stamp duty in respect of each of the
      matters, and an instrument made for any consideration            c
      in respect of which it is chargeable with ad valorem duty,
      and also for any further or other valuable consideration,
      is separately chargeable, as if it were a separate
      instrument, in respect of each of the consideration."
                                                                       D·
          30. Coming to the provisions contained in the Stamp Act,
    we have to see as to whether the provision of Section 5 is
    ancillary to Section 4 or a separate and distinct provision. For
    better appreciation Sections 4, 5 and 6 of the Gujarat Stamp
    Act is reproduced herein below:-                                   E

      "Section 4- Several instruments used in single
      transaction of sale, mortgage or settlement.

      (1) Where, in the case of any sale, mortgage or
                                                                       F
      settlement, several instruments are employed for
      completing the transaction, the principle instrument only
      shall be chargeable with the duty prescribed in Schedule
      I for the conveyance, mortgage or settlement, and each .
      of the other instruments shall be chargeable with a duty         G
      of 1 [one hundred rupees] instead of the duty (if any)

-     prescribed for it in that Schedule.

      (2) The parties may determine for themselves which of
      the instruments so employed shall, for the purposes of
                                                                       H
      sub-section (1 ), be deemed to be the principal instrument.
52          SUPREME COURT REPORTS                    [2015] 9 S.C.R.


A       Provided that the. duty chargeable on the instrument so
        determined shall be the highest duty which would be
        chargeable in respect of any of the said instruments
        employed.

B       Section 5 - Instrument relating to several distinct
        matters or distinct transactions. Any instrument
        comprising or relating to several distinct matters shall
        be chargeable with the aggregate amount of the duties
        with which separate instrument, each comprising or
c       relating to one of such matters or distinct transactions,
        would be chargeable under this Act.

        6. Instruments coming within several descriptions
        in Schedule 1.-Subject to the provisions of the last
D       preceding section, an instrument so framed as to come
        within two or more of the descriptions in Schedule I, shall,
        where the duties chargeable thereunder are different, be
        chargeable only with the highest of such duties: Provided
        that nothing in this Act contained shall render chargeable
E       with duty exceeding one rupee a counterpart or duplicate
        of any instrument chargeable with duty and in respect of
        which the proper duty has-been paid."

           31. From bare reading of these provisions, it is clear that
F    Section 4 deals with single transaction completed in several
     instruments, whereas Section 5 deals only with the instrument
     which comprises more than one transaction and it is immaterial
     for the purpose whether those transactions are of the same
     category or of different categories.
G
       32. It appears from the trustee document that altogether
  13 banks lent money to the mortgagor, details of which have
  been described in the schedule and for the repayment of                ·-
  money, the borrower entered into separate loan agr~ements
H with 13 financial institutions. Had this borrower entered into a
CHIEF CONTROLLING REVENUEAUTHORITYv. COSTAL                       53
       GUJARAT POWER LTD. [M. Y. EQBAL, J]

se.parate mortgage deed with these financial institutions in A
order to secure the loan there would have been a separate
document for distinct transactions. On proper construction of
this indenture of mortgage it can safely be regarded as 13
distinct transactions which falls under Section 5 of the Act.
                                                                   B
      33. Both the learned counsel put reliance on the five
Judges Constitution Bench Judgment of this Court in the Case
of The Member, Board of Revenue vs. Arthur Paul
Benthall (supra). The said case originated from a reference
made to the High Court of Calcutta by the Revenue Authorities C
seeking opinion with regard to the stamp duty payable in the
instrument. The respondent in that case was at the material
time the Managing Director pf M/s. Bird and Co. Ltd. and
Messrs F.W. Heilgers and Com. Ltd which were acting
Managing Agents of several CompaniesAct under the Indian D
Companies Act. The respondents were also Director of a
number of other Companies, and had on occasions acted as
liquidator of some Companies, as executor or administrator
of estates of deceased persons and as trustee of various
estates. He proposed to execute power of attorney E
empowering the M/s. Douglas Chisholm Fairbairn and John
James Brims Southerland jointly and severally to act for him in
his individual capacity and also as executor administrator,
trustee, Managing Agents, liquidator, and all other capacities. F
The Collector referred the matter under Section 56(2) of the
Act to the decision of Chief Controller, Revenue Authority, who
eventually referred it to the High Court of Calcutta stating his
own opinion that stamp duty was payable on the power "for as
many respective capacities as the principal executes the G
power". The majority view of the Bench held that the different
capacities of the executants would not constitute the distinct
matter for the purpose of Section 5 of the Act and that the proper
duty and instrument was payable L!nder Article 48(d) of
Schedule 1(a) of the Stamp Act.                                    H
54         SUPREME COURT REPORTS                   (2015] 9 S.C.R.


A         34. Answering the Reference, the Constitution Bench of
     this Court elaborately discussed the scope and object of
     Sections 4,5, and 6 of the Stamp Act and finally allowed the
     appeal. Their Lordship held:-

B      "We are unable to accept the contention that the word
       "matter" in section §.was intended to convey the same
       meaning as the word "description" in section §. In its
       popular sense, the expression "distinct matters" would
       connote something different from distinct "categories".
c      Two transactions might be of same description, but all
       the same, they might be distinct. If A sells Black-acre to
       X and mortgages White-acre to Y, the transactions fall
       under different categories, and they are also distinct
       matters. But if A mortgages Black-acre to X and White-
D      acre to Y, the two transactions fall under the same
       category, but they would certainly be distinct matters. If
       the intention of the legislature was that the expression
       'distinct matter' in section§ should be understood not in
       its popular sense but narrowly as meaning different
E      categories in the Schedule, nothing would have been
       easier than to say so. When two words of different import
       are used in a statute in two consecutive provisions, it
       would be difficult to maintain that they are used in the
       same sense, and the conclusion must follow that th~
F
       expression "distinct matters" in section .§.and
       "description" in section 6 have different connotations."
                             / -
         35. Their Lordships further held that:-

G      "When a person possesses both a personal capacity and
       a representative capacity, such as trustee, and there is a
       delegation of power by him in both those capacities, the
       position in law is exactly the same as if different persons
       join in executing a power in respect of matters which are
H      unrelated. There being no community of interest between
CHIEF CONTROLLING REVENUEAUTHORITYv. COSTAL                             55
       GUJARAT POWER LTD. [M. Y. EQBAL, J]

   the personal estate belonging to the executant and the               A
   trust estate vested in him, they must be held to be distinct
   matters for purposes of section §.. The position is the
   same when a person is executor or administrator,
   because in that capacity he represents the estate of the
   deceased, whose persona is deemed to continue in him                 B
   for purposes of administration.

      36. We have also gone through the provisions contained
in Sections 33, 39, Article 6 and 6(b) of the Act as also Bombay
Stamp (Gujarat Second Amendment) Rules, 2007 and the C
Circular dated 2.4.2007. After giving out anxious consideration ·
to those provisions and also in the light of the ratio decided by
the Constitution Bench of this Court in The Benthall case
(supra), we are of the definite opinion that the High Court has
committed serious error of law in interpreting the provisions of D
Sections 5 and 6 of the Act. Consequently, the answer given
by the High Court on the Reference cannot be sustained in
Law.

      37. As a result, this appeal is allowed, the impugned order       E
is set aside. It is held that the respondent is liable to pay deficit
stamp duty together with interest as directed by the revenue
authorities. However, there shall be no order as to costs.

Kalpana K. Tripathy                                   Appeal allowed.   F