As per case facts, petitioners entered into a development agreement, paid stamp duty, but the agreement was canceled as possession was not handed over and the transaction did not materialize. ...
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AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.14348 OF 2016
1.Ludhani Estate Private Limited,
503, Business Point, M.V. Road,
Western Express Highway,
Andheri, Mumbai 400 069
2.CJR Realty Private Limited,
a company incorporated and registered
under the Companies Act, 1956 and
having its office at 503, Business Point,
M.V. Road, Western Express Highway,
Andheri, Mumbai 400 069… Petitioners
Vs.
1.The Chief Controlling Revenue
Authority, State of Maharashtra,
Pune
2.The Deputy Inspector General of
Registration and Deputy Collector
of Stamps, Konkan Coordinate, Thane
3.The Collector of Stamps,
Thane … Respondents
Mr. Amrut Joshi with Ms. Radhika Kulkarni i/by Ms.
Deepa Kamath for the petitioners.
Mrs. Mamta S. Srivastava, AGP for respondent Nos.1 to
3-State.
CORAM :AMIT BORKAR, J.
RESERVED ON :AUGUST 3, 2026.
PRONOUNCED ON:AUGUST 4, 2026
1
ATUL
GANESH
KULKARNI
Digitally signed
by ATUL GANESH
KULKARNI
Date: 2026.08.04
11:45:02 +0530
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JUDGMENT:
1.By this writ petition filed under Articles 226 and 227 of the
Constitution of India, the petitioners have challenged the order
dated 4 April 2016 passed by respondent No.1 in Appeal No.108 of
2015 (District Court Rural). By the said order, respondent No.1
dismissed the appeal as not maintainable by holding that the
petitioners had no legal right or locus to file the appeal.
2.According to the petitioners, the facts leading to the present
writ petition are as follows. On 27 December 2012, Enigma and
Evershine, being the joint owners of the property, granted
development rights to Evershine CJR Joint Venture, which was a
joint venture of the petitioners. An undated Development
Agreement was executed for development of Avenue A 5 having an
area of 2,11,295 square feet. The agreement was submitted before
respondent No.3 for adjudication. The stamp duty was assessed at
Rs.1,36,53,600/-, and the petitioners paid the said amount.
However, possession of the property was never handed over, and
the Development Agreement was not presented for registration.
Thereafter, on 20 February 2013, the parties executed a Deed of
Cancellation cancelling the first Development Agreement because
of uncertainty in the real estate market and delay in starting the
project. Subsequently, on 26 February 2013, the petitioners applied
for refund of the stamp duty under Section 48(i) of the Stamp Act
before respondent No.3. The application was registered as Refund
Case No. R/42/13. According to the petitioners, the stamps used
for the first Development Agreement had become "spoiled stamps"
within the meaning of Section 47 of the Stamp Act. The refund
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application was forwarded to respondent No.2 and then to the
Inspector General of Registration, Pune.
3.On 12 April 2013, after cancellation of the first Development
Agreement, Enigma and Evershine executed another Development
Agreement in favour of M/s. Sumit Pragati Shelters LLP by
granting development rights in respect of the same property. In
this agreement, the petitioners were shown only as confirming
parties. The document was submitted for adjudication, stamp duty
of Rs.1,44,75,000/- was assessed and paid, and the agreement was
registered as Document No.3337 of 2013. On 18 May 2015,
respondent No.3 rejected the petitioners' refund application dated
26 February 2013. The reason given was that the petitioners had
allegedly received consideration twice, once under the Deed of
Cancellation and again under the second Development Agreement.
4.In February 2016, the petitioners filed an appeal before
respondent No.1 under Section 53(1A) of the Stamp Act against
the order rejecting the refund. They filed their written submissions
in support of the appeal. By order dated 4 April 2016, respondent
No.1 upheld the decision of respondent No.3. Respondent No.1
held that the petitioners had no locus standi to file the appeal.
Aggrieved by the said order, the petitioners have filed the present
writ petition.
5.Mr. Joshi, learned Advocate appearing for the petitioners,
submitted that respondent No.1 failed to properly consider the
provisions of Section 47 of the Stamp Act, which permits refund in
cases of spoiled stamps. He submitted that after execution of the
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Deed of Cancellation, the original Development Agreement never
came into effect and the transaction between the petitioners and
Enigma did not materialise. Therefore, according to him, the
stamp purchased for the undated Development Agreement dated
27 December 2012 became a spoiled stamp under Section 47 of
the Stamp Act. In such circumstances, the petitioners became
entitled to seek refund of the stamp duty paid. He submitted that
respondent No.1 committed an error in refusing to accept this
legal position.
6.Mr. Joshi further submitted that under the undated
Development Agreement, Enigma, and Evershine, as joint owners
of the property, had agreed to grant development rights in respect
of Avenue A 5 to the petitioners through their joint venture,
namely Evershine CJR Joint Venture. As per the agreement, the
petitioners paid the agreed consideration to Enigma. He pointed
out that the Deed of Cancellation dated 20 February 2013 does not
contain any clause showing receipt or return of consideration.
According to him, after cancellation of the first agreement, Enigma
and Evershine entered into a fresh Development Agreement with
Sumit Pragati Shelters LLP on 12 April 2013, in which the
petitioners were merely confirming parties. Therefore, there was
no question of the petitioners receiving payment twice. He
submitted that, in fact, the petitioners received consideration only
once, and this is reflected from their bank statements.
7.He further submitted that respondent No.1 ought to have
appreciated that none of the parties had disputed the validity of
the cancellation of the first Development Agreement. According to
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him, respondent No.1 could not question or replace the decision
taken by the parties to terminate their agreement. He further
argued that no development rights under the first agreement had
ever been transferred to the petitioners. Therefore, the stamp used
for that agreement had become a spoiled stamp, making the
petitioners entitled to refund of the stamp duty.
8.Mr. Joshi submitted that even if, for the sake of argument
and without admitting it, it is assumed that the petitioners
received consideration twice, the conclusion reached by
respondent No.1 would still be incorrect. According to him, the
transactions related to development of property and were not
financial transactions. It is not disputed that no development rights
were transferred under the first agreement. He submitted that
even if any amount was received under the second agreement, it
would not create or validate any rights under the first agreement.
At the highest, such payment could only be for the petitioners
acting as confirming parties in the second agreement. He pointed
out that the second Development Agreement was adjudicated for
stamp duty and respondent No.1 has never held that such
adjudication was incorrect. Therefore, even assuming that the
petitioners had received consideration under both transactions,
that circumstance would not affect the nature of the first
instrument or their right to claim refund of the stamp duty paid on
it. According to him, the finding recorded by respondent No.1
refusing refund is wholly unreasonable.
9.In support of his submissions, Mr. Joshi relied upon the
decisions in
Bano Saiyed Parwaz vs. Chief Controlling Revenue
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Authority and Others, (2025) 2 SCC 201; Sanman Trade Impex
Private Limited vs. State of Maharashtra and Others,
2004 SCC
OnLine Bom 747;
Satyam Construction vs. Chief Controlling
Revenue Authority and Others,
Writ Petition No.241 of 2015
decided on 3 September 2025;
and Qwick Supply Chain Private
Limited vs. Chief Controlling Revenue Authority and Others,
Writ
Petition No.9140 of 2018 and Writ Petition No.10255 of 2018
decided on 3 September 2025.
10.On the other hand, Mrs. Srivastava, learned AGP appearing
for the respondents, submitted that the petitioners have placed on
record an endorsement or certificate dated 12 April 2013. She
pointed out that at internal page 19 of the document there is a
reference to a Memorandum of Understanding dated 16 April
2012. According to her, under the said MOU, petitioner Nos.1 and
2 had received certain development rights in respect of the
property covered by the undated Development Agreement. She
further submitted that by the endorsement or certificate, those
very rights were assigned in favour of Sumit Developers. She
therefore submitted that the petitioners should be directed to
produce the MOU dated 16 April 2012 on record so that the
respondents can deal with its contents.
11.She further submitted that petitioner Nos.1 and 2 had
initially entered into a development arrangement relating to the
very same property which later became the subject matter of the
registered Development Agreement dated 12 April 2013 bearing
Registration No.3337 of 2013 in the office of the Joint Sub
Registrar, Vasai No.3. According to her, there are several important
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differences between the undated Development Agreement
submitted for adjudication under Section 31 of the Stamp Act and
the registered Development Agreement dated 12 April 2013. She
pointed out that the parties to the two documents are different, as
the petitioners were developers in the first document but only
confirming parties in the second document. She submitted that the
first document was presented for adjudication under Section 31 by
petitioner No.1, whereas the second document was registered
without seeking adjudication. She further pointed out that
although both documents relate to the same property, the
consideration mentioned in the second agreement is higher. She
submitted that while the first agreement makes no reference to
any document or loan transaction, the second agreement refers to
the MOU dated 16 April 2012 and mentions the loan obtained by
the owners from HDFC Bank. Lastly, she submitted that the first
agreement was followed by a notarised Deed of Cancellation dated
20 February 2013, whereas no such cancellation document exists
in relation to the second Development Agreement.
12.Relying upon these documents, Mrs. Srivastava submitted
that although the petitioners cancelled the undated Development
Agreement and are claiming refund of the stamp duty paid on it,
they had acquired development rights from the original owners
under the arrangement. According to her, those very rights were
transferred in favour of Sumit Pragati Shelters LLP under the
Development Agreement dated 12 April 2013 in which the
petitioners were confirming parties. She relied upon paragraph
(xvi) of the registered Development Agreement, which states that
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under the Memorandum of Understanding dated 16 April 2012,
the owners agreed to grant development rights over FSI of
2,11,295 square feet to the confirming parties for a total
consideration of Rs.27,30,72,000. It further records that the
confirming parties paid Rs.20 crores before execution of the MOU
and the balance amount of Rs.7,30,72,000/- through two post
dated cheques dated 7 December 2012. The paragraph records
that the parties had approved a draft Development Agreement,
agreed to execute it after adjudication and payment of stamp duty,
and that the owners had handed over vacant and peaceful
possession of Avenue A 5 to the confirming parties with authority
to carry out development and sell flats and shops under the
Maharashtra Ownership Flats Act, 1963.
13.Mrs. Srivastava, therefore, submitted that the above recital
shows that under the MOU dated 16 April 2012 the parties had
agreed to first obtain adjudication of the draft Development
Agreement for payment of stamp duty. According to her, instead of
following that agreed procedure, the parties proceeded to register
the Development Agreement dated 12 April 2013.
14.She lastly submitted that the conduct of the parties is
inconsistent with the terms contained in the various documents.
According to her, the Development Agreement dated 12 April
2013, the MOU, the undated Development Agreement certified by
respondent No.3 on 27 December 2012 and the Deed of
Cancellation contain contradictory recitals. She further submitted
that neither petitioner Nos.1 and 2 nor Sumit Pragati Shelters LLP
or the original owners ever sought adjudication of the
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Development Agreement dated 12 April 2013 or of the MOU.
According to her, these circumstances support the stand taken by
the respondents in rejecting the petitioners' claim for refund.
REASONS AND ANALYSIS:
15.After hearing both sides and after going through record,
dispute is whether stamp duty paid on first Development
Agreement became refundable because transaction did not happen
within meaning of Sections 47 and 48 of the Maharashtra Stamp
Act. Another issue arises whether respondent authorities were
justified in refusing refund by saying that petitioners had no locus
and that they had received consideration two times.
16.Petitioners have taken stand that first Development
Agreement never came into working in manner intended between
parties. According to them, though adjudication was completed
and stamp duty was paid, actual possession of property never
came to them. Afterwards, parties executed Deed of Cancellation.
Therefore, according to petitioners, instrument became a "spoiled
stamp" within meaning of Section 47(c)(5). On other side,
respondents submitted that petitioners had received valuable
rights under arrangements including Memorandum of
Understanding dated 16 April 2012. According to respondents,
those rights were later transferred in favour of subsequent
developer. Therefore, according to them, first transaction cannot
be said to have failed.
17.This Court is unable to accept finding recorded by
respondent No.1 that appeal was not maintainable because
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petitioners had no locus. It is admitted position that petitioners
approached authority for adjudication, paid stamp duty and sought
refund of same amount. Rejection of refund application affected
their legal rights. Therefore, they cannot be said to be strangers to
proceedings. In these circumstances, finding that petitioners had
no locus standi does not appear to be sustainable.
18.Next question which requires consideration is whether first
Development Agreement can be treated as an instrument which
failed of its intended purpose. For deciding this issue, admitted
facts become important. There is no dispute that first Development
Agreement was cancelled by execution of registered Deed of
Cancellation. There is no dispute that parties entered into
altogether another Development Agreement in favour of different
developer. Therefore, first Development Agreement admittedly was
not carried further after its cancellation.
19.Petitioners have asserted that possession of property was
never handed over under first Development Agreement.
Respondents could not place any material before this Court
showing that possession was delivered under that agreement.
Though respondents relied upon recitals contained in subsequent
Development Agreement and Memorandum of Understanding,
those recitals by do not establish that rights contemplated under
first Development Agreement had come into existence and were
worked out.
20.The Coordinate Bench of this Court in Sanman Trade Impex
Pvt. Ltd.
has explained scope of Section 47(c)(5). In paragraph 8,
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it held that where instrument "fails of the intended purpose", such
case would come within clause (c)(5). Thereafter, in paragraph 10,
the Coordinate Bench observed:
"The term 'Spoiled stamps' has not been defined either under
the said Act or in the said Rules. However, section 47
describes the instances under which the stamps can be said
to have been spoiled…"
21.The Coordinate Bench further observed:
"...in case the person agreeing to sell the property executes
an instrument in that regard, on acceptance of consideration
and after the execution of the instrument in that regard, fails
to deliver the possession of the property agreed to be sold
the stamp paper on which the instrument is drawn can be
considered to have been rendered spoiled…"
22.The above observations make legal position clear. Merely
because document was executed, it cannot decide issue. Real
matter which needs examination is whether purpose for which
document was executed was ever achieved. If intended transaction
could not move ahead and remained incomplete, then provisions
of Section 47(c)(5) may become applicable depending upon facts
of that case.
23.Again, in paragraph 12, the Coordinate Bench observed:
"Once the transferor fails to comply with the conditions in
the agreement for sale and to deliver the possession of the
property, obviously the instrument is rendered ineffective
and useless…"
24.This principle gives reply to objection raised by respondents.
If agreement could not reach its intended object because important
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obligations under agreement remained unperformed, instrument
may become useless even though parties had executed it.
Therefore, while deciding petitioners' claim for refund, authorities
were required to examine whether first transaction had achieved
purpose for which it was executed or whether it became ineffective
because essential obligations under that agreement remained
unperformed.
25.Respondents relied upon Development Agreement dated 12
April 2013 and on recital contained in Memorandum of
Understanding dated 16 April 2012. According to respondents,
petitioners had received development rights under arrangement
and afterwards those very rights were assigned in favour of Sumit
Pragati Shelters LLP. Therefore, according to respondents, first
transaction cannot be treated as failed one and because of that
petitioners are not entitled to get refund of stamp duty.
26.Recital relied upon by respondents records that development
rights were agreed to be granted and that possession was allegedly
delivered under Memorandum of Understanding. At first reading,
these recitals may create some doubt about exact factual position.
However, merely because such recitals are found in document,
entire controversy cannot come to end. Their legal effect is still
required to be examined on basis of surrounding facts and
applicable provisions of law. At the same time, this Court notices
that respondents have not passed any order examining legal effect
of Memorandum of Understanding. Impugned order proceeds on
assumption that petitioners received consideration twice and
therefore refund was not permissible. Authorities have not
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recorded any finding that first Development Agreement had been
acted upon so as to exclude applicability of Section 47(c)(5).
Therefore, basis of impugned order appears to be different from
submissions now advanced before this Court.
27.According to petitioners, Deed of Cancellation does not
contain any recital showing return of consideration. Petitioners
further submitted that second Development Agreement was
adjudicated and registered. According to them, whatever amount
was received under second transaction was only because they were
shown as confirming parties. Petitioners have relied upon their
bank statements to contend that there was no double receipt of
consideration. On the other hand, respondents submitted that all
transactions should not be seen separately. According to them,
entire chain of transactions is required to be looked together and if
background is considered, petitioners had in fact derived benefit
under both arrangements.
28.In opinion of this Court, even if it is assumed only for
purpose of argument, that petitioners received some financial
benefit under later transaction, still that circumstance does not
satisfy requirement under Section 47(c)(5). Provision nowhere
speaks whether consideration was received once or twice. What
provision requires examination is whether instrument "fails of the
intended purpose."
29.The Coordinate Bench has held in paragraph 14 of Sanman
Trade Impex Pvt. Ltd.
as under:
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"Clause (c)(5) of section 47 nowhere distinguishes between
agreement of sale and the deed of sale. It applies to all
instruments... What it provides is that the instruments should
be rendered ineffective and unenforceable in the sense that
the purpose for which it was executed should 'fail'."
30.Thus, enquiry is not directed towards accounting entries
between parties or financial adjustment made by them. Real
enquiry under law is whether instrument became ineffective
because purpose for which it was executed never came into
existence. Respondents pointed out various differences between
first Development Agreement and second Development
Agreement. It is true that parties shown in both agreements are
not identical. Amount of consideration is different. References to
documents and loan arrangements are not same. However, these
differences, instead of supporting respondents, prima facie indicate
that arrangement was given up and parties entered into altogether
fresh arrangement. Such circumstances cannot be said to be
inconsistent with case of petitioners that original transaction had
failed before achieving its intended object. This Court finds
support from judgment in
M/s. Satyam Construction. In paragraph
6, this Court observed:
"There is no dispute to the position that the transaction of
Development Agreement dated 2 June 2011 has failed."
31.Again, paragraph 8 records:
"under Section 47(c)(5), refund of stamp duty can be sought
if the transaction fails the intended purpose…"
32.Thereafter, paragraphs 10 and 11 of the said judgment
explain that right to claim refund flows from Section 47 itself,
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whereas Section 48 merely prescribes period of limitation within
which such right is required to be exercised. Therefore, once
ingredients of Section 47 are satisfied, Section 48 only regulates
period within which remedy can be claimed. It neither creates the
right nor takes away that right. Therefore, submissions advanced
by respondents regarding subsequent Development Agreement,
alleged transfer of rights and allegation of double consideration
deserve consideration. However, these circumstances do not
answer principal requirement, namely, whether first Development
Agreement had achieved purpose for which it was executed or
whether it had failed and become ineffective within meaning of
Section 47(c)(5). That issue still remains central and requires
determination while examining legality of the impugned order.
33.Respondents have not disputed that Deed of Cancellation
was in fact executed. Their main objection is that petitioners had
obtained certain rights under arrangements and had allegedly
received consideration. Therefore, according to respondents,
refund cannot now be granted. In opinion of this Court, these
circumstances by are not enough to avoid requirement of
examining whether first instrument had achieved purpose for
which it was executed. Real enquiry under Section 47(c)(5) is not
whether some later arrangement came into existence. Real enquiry
is whether intended purpose of first instrument failed. The
judgment of the Supreme Court in
Bano Saiyed Parwaz paragraph
12 holds that High Court committed error in rejecting refund
application only because it was filed before execution of
cancellation deed and observed that such view was:
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"contrary to the requirements stipulated by Sections 47 and
48"
34.Therefore, Supreme Court did not approve technical
interpretation of refund provisions. Instead, it preferred
interpretation which gives effect to Sections 47 and 48 rather than
defeating object of those provisions only on technical grounds.
Again, paragraph 15 of the judgment states:
"The legal position is thus settled in Libra Buildtech... that
when the State deals with a citizen it should not rely on
technicalities…"
35.Further, while reproducing paragraph 29 of Libra Buildtech
in paragraph 14, the Supreme Court approved following
observation:
"...when the State deals with a citizen it should not rely on
technicalities…"
36.In the opinion of this Court, above observations apply with
full force to present matter. Once State has received stamp duty on
an instrument which afterwards became ineffective because
intended transaction could not be completed, authorities are
expected to examine real substance of transaction. Refund cannot
be refused merely by taking technical objections if requirements of
statute are otherwise satisfied.
37.Respondents argued that petitioners ought to have produced
Memorandum of Understanding dated 16 April 2012. Such
submission may have some relevance while understanding factual
background. However, impugned order does not contain any
detailed adjudication regarding legal effect of said Memorandum
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of Understanding. Validity of administrative or quasi judicial order
has to be examined on reasons recorded in that order. Fresh
reasons advanced before this Court cannot improve validity of
impugned order.
38.This Court notices that second Development Agreement was
adjudicated, and separate stamp duty was admittedly paid on that
document. This circumstance shows that subsequent Development
Agreement was treated by authorities as an independent
instrument for purposes of stamp duty. Once authorities accepted
separate adjudication and separate payment of stamp duty on later
agreement, refusal of refund relating to instrument only because
another agreement came into existence becomes difficult to sustain
unless it is shown that provisions of Section 47 are not attracted.
39.Petitioners have prayed for grant of interest on refund
amount. The Supreme Court in
Poornima Advani explained
concept of interest. In paragraph 14, while quoting
Karnataka
Bank v. RMS Granites (P) Ltd.
, the Supreme Court observed:
"Interest is not a penalty or punishment at all, but it is the
normal accretion on capital."
40.Further, paragraph 15 states:
"when a person is deprived of the use of his money to which
he is legitimately entitled, he has a right to be
compensated…"
41.Again, paragraph 18 reiterates that a person deprived of use
of money:
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"has a right to be compensated for the deprivation, call it by
any name."
42.Above principles make legal position clear. If money
belonging to one person remains with another without lawful
justification, payment of interest is not by way of punishment. It is
only compensation because person could not use his own money
during that period. After considering entire material available on
record, provisions and binding precedents together, this Court is of
opinion that principal reasoning adopted by respondent No.1
cannot be sustained. Finding that petitioners had no locus standi is
not legally sustainable because petitioners had paid stamp duty
and sought refund. Finding regarding alleged receipt of
consideration twice cannot by decide applicability of Section 47(c)
(5). Admitted execution of Deed of Cancellation, non-performance
of first Development Agreement and subsequent execution of
another independent Development Agreement together indicate
that original instrument did not achieve purpose for which it had
been executed. Therefore, petitioners' claim required consideration
in light of Sections 47 and 48 as interpreted in
Sanman Trade
Impex Pvt. Ltd.
, Bano Saiyed Parwaz and M/s. Satyam
Construction
. However, impugned orders do not examine
controversy from that legal angle. They proceed on grounds of
alleged absence of locus standi and alleged receipt of consideration
twice. Those are not decisive tests under Section 47(c)(5).
Consequently, refusal of refund on reasons recorded in impugned
orders cannot be sustained in law.
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43.In view of the foregoing discussion, and upon overall
assessment of the material record, the following order is passed:
(i) The Writ Petition is allowed;
(ii) The order dated 4 April 2016 passed by respondent
No.1 in Appeal No.108 of 2015 (District Court Rural), as
well as the order dated 18 May 2015 passed by respondent
No.3 rejecting the petitioners' application for refund of stamp
duty, are quashed and set aside;
(iii) Respondent No.3 shall refund the stamp duty paid by
the petitioners in respect of the first Development Agreement
within a period of eight weeks from the date of receipt of a
copy of this judgment;
(iv) The petitioners shall be entitled to interest on the
refundable amount at the rate of 6% per annum from the
date of expiry of eight weeks after filing of the refund
application till the date of actual payment;
(v) If the amount is not refunded within the period
stipulated in clause (iv) above, the amount remaining unpaid
shall carry interest at the rate of 9% per annum from the
expiry of the said period until actual realization;
(vi) Rule is made absolute in the above terms.
(vii) There shall be no order as to costs.
(AMIT BORKAR, J.)
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