As per case facts, the Petitioner challenged an order rejecting their application for stamp duty refund paid on a cancelled registered document. The Petitioner had initially paid stamp duty on ...
wp948-2021-J.doc
AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.948 OF 2021
Solanki Tea Company Private Limited … Petitioner
Vs.
1.The State of Maharashtra
2.Revenue Minister,
State of Maharashtra (deleted)
3.Inspector General of Registration and
Stamp Collector, State of Maharashtra… Respondents
Ms. Leela D. Malu i/by Leela D. Malu & Associates for
the Petitioner.
Ms. S.D. Chipade, AGP for Respondent Nos.1 & 3-State.
CORAM :AMIT BORKAR, J.
RESERVED ON :SEPTEMBER 28, 2026.
PRONOUNCED ON:SEPTEMBER 29, 2026
JUDGMENT:
1.By filing the present Writ Petition under Articles 226 and 227
of the Constitution of India, the Petitioner has challenged the
legality and validity of the order dated 11 September 2019, which
was received by the Petitioner on 6 January 2020. The said order
was passed by Respondent No.3 on the application dated 29
October 2018 filed by the Petitioner for return or refund of the
stamp duty paid on the cancelled registered document bearing
1
ATUL
GANESH
KULKARNI
Digitally signed
by ATUL
GANESH
KULKARNI
Date: 2026.09.29
11:16:14 +0530
wp948-2021-J.doc
No.5929/2018.
2.The property in question was mortgaged with a Bank. The
Bank initiated auction proceedings and the Petitioner was required
to purchase the property through the said auction. Because of this
subsequent auction transaction, the earlier registered document
had to be cancelled. Accordingly, the Petitioner executed a Deed of
Cancellation on 18 October 2018, which was registered as
Document No.14517/2018. In the meantime, in the auction
proceedings conducted by the Bank, the Petitioner became the
successful bidder. The Bank sold the property to the Petitioner by a
Sale Deed dated 26 June 2018, registered as Document
No.9114/2018. The Petitioner again paid the entire stamp duty
payable on the said Sale Deed. The Petitioner filed an application
for return of the stamp duty paid on the earlier document.
According to the Petitioner, the said application was rejected
without considering the facts and without proper application of
mind. The Petitioner contends that the impugned order is illegal
and is liable to be set aside. According to the Petitioner,
Respondent No.2 rejected the application dated 29 October 2018
without considering the case. It is submitted that the said order
has caused serious injustice to the Petitioner and deserves to be
declared illegal and bad in law.
3.The Petitioner submits that he came to know that the owner
or seller under the first document and agreement was not in a
position to sell or transfer the property in favour of the Petitioner.
The property was mortgaged with the Bank, which was the
subsequent seller, and the Bank had initiated auction proceedings
2
wp948-2021-J.doc
in respect of the property. The Petitioner had no effective option
except to participate in the auction conducted by the Bank and
purchase the property from the Bank. For this reason, the
Petitioner executed the second Sale Deed and again paid the stamp
duty on the value of the property. Thereafter, the Petitioner
cancelled Document No.5929 dated 19 April 2018 by executing
the Deed of Cancellation dated 18 October 2018. The Petitioner
then applied for refund of the stamp duty paid on the cancelled
document.
4.The Petitioner filed an application dated 29 October 2018
before the Assistant Registrar, Class-I and Stamp Collector, Thane,
seeking return or refund of stamp duty of Rs.29,75,000/-. The said
amount had been paid as stamp duty on registered Document
No.5929/2018 dated 19 April 2018 under Article 25(B) of
Schedule I to the Maharashtra Stamp Act at the office of the
Registrar, Class-II, Thane.
5.Ms. Malu, learned Advocate for the Petitioner, submits that
Respondent No.3 ought to have considered that the stamp duty
paid under Article 25(B) of Schedule I to the Maharashtra Stamp
Act on registered Deed No.5929 dated 19 April 2018 was liable to
be refunded under Sections 47 and 48 of the Maharashtra Stamp
Act after cancellation of the registered deed. She submits that the
Petitioner came to know that the document was void in law from
the very beginning. She submits that Respondent No.3 ought to
have considered that the word “Assignment” means allotment or
transfer and is used in the sense of sale. According to her, the
document was covered by Article 25(B) of the Maharashtra Stamp
3
wp948-2021-J.doc
Act and the stamp duty was paid under Article 25(B). The Sub
Registrar had accordingly collected the entire stamp duty
applicable to the sale transaction. It is submitted that, after
cancellation of the deed, the authorities were bound to return the
stamp duty in accordance with law. She submits that Respondent
No.3 ought to have considered that the first vendor was not in a
position to execute the agreement because the property had been
attached by the Bank. Therefore, the agreement was void in law
from the beginning. She submits that though the document was
described as a “Deed of Assignment”, in substance it was a sale
deed relating to the same property. According to the Petitioner,
Respondent No.3 ought to have examined the nature of the
transaction and directed return of the stamp duty. It is submitted
that a person cannot be required to pay stamp duty twice in
respect of the same transaction concerning the same property.
Once the earlier document was cancelled and the Petitioner was
required to purchase the same property from the Bank by another
registered Sale Deed, the stamp duty paid on the cancelled deed
ought to have been refunded.
6.Ms. Chipade, learned AGP, on the other hand, submits that
the Petitioner intended to acquire the leasehold rights of M/s.
Vision Apparel Private Limited in respect of the land bearing MIDC
Plot No.A-755, situated at Trans Thane Creek Industrial Area,
within the limits of Village Khairne, District Thane, admeasuring
about 1250 sq. mtrs., together with the factory building having an
area of 1229.88 sq. mtrs. For this purpose, the Petitioner entered
into a document described as an “Agreement for Assignment”. M/s.
4
wp948-2021-J.doc
Vision Apparel Private Limited was described as the “Assignor” of
the First Part and the Petitioner was described as the “Assignee” of
the Other Part. The said Agreement for Assignment was executed
on 19 April 2018. For the said document, the Petitioner purchased
stamp duty of Rs.29,75,000/- through e-challan GRN
No.MH000648584201819R dated 18 April 2018 from Punjab
National Bank. The Petitioner presented the document for
registration before the Joint Sub Registrar, Thane No.3, and the
document was registered on the same day as Sr. No.TNN-3-
5929/2018. Under the agreement, the Petitioner had agreed to pay
consideration of Rs.5,75,00,000/-, out of which an amount of
Rs.50,50,000/- was paid as token amount. It is the contention of
the Petitioner that he was unable to pay the balance amount of
Rs.4,54,500/- to the Assignor and, therefore, the transaction was
cancelled. The Petitioner accordingly executed a Cancellation Deed
on non-judicial stamp paper of Rs.500/- on 18 October 2018. The
said Cancellation Deed was registered in the same registration
office on the same day as Sr. No.TNN-3-14517/2018.
7.The Petitioner filed an online application on 23 October
2018 seeking refund of the stamp duty of Rs.29,75,000/-. He filed
the physical application on 29 October 2018 before the Joint
District Registrar, Class-I and Collector of Stamps, Thane City,
Thane, under Section 48(1) of the Maharashtra Stamp Act,
hereinafter referred to as “the said Act”. The said authority
forwarded the application to the office of the Deputy Inspector
General of Registration and Deputy Controller of Stamps, Kokan
Division, Thane, with a remark that refund ought not to be
5
wp948-2021-J.doc
granted. The reason given was that the Agreement for Assignment
was covered by Article 60 of Schedule I to the said Act and,
therefore, the provisions of Sections 47 and 48(1) were not
applicable. It was noted that the amount of refund claimed was
more than Rs.5,00,000/-. The refund proceedings were registered
as Pra. Kra.1200900/82/19. It is submitted on behalf of the
Respondents that the Petitioner has failed to establish a case for
refund of Rs.29,75,000/- paid as stamp duty on the Agreement for
Assignment. According to the Respondents, the Petitioner is
seeking to treat the Agreement for Assignment as if it were an
Agreement to Sale. In support of this submission, Respondent No.3
relies upon the judgment of this Court in
Sanman Trade Impex v.
State of Maharashtra
, reported in AIR 2005 Bom 94. It is
submitted that, for applying the proviso to sub-section (1) of
Section 48 of the said Act, certain conditions are required to be
satisfied. They are: (i) there must be an Agreement to Sale relating
to immovable property; (ii) the Agreement to Sale must have been
stamped under Article 25 of Schedule I to the said Act; (iii) the
Agreement to Sale must have been registered under the
Registration Act, 1908; and (iv) the Agreement must have been
cancelled before possession of the immovable property was taken
and the Deed of Cancellation must have been registered.
8.It is submitted that an Agreement to Sale satisfying the
above requirements may become eligible for refund. However,
according to the Respondents, merely because the requirements
mentioned in Section 48 are stated to have been complied with,
the Petitioner does not automatically become entitled to refund. It
6
wp948-2021-J.doc
is submitted that the document executed by the Petitioner is
admittedly an Agreement for Assignment falling under Article 60
of Schedule I to the said Act. Though the stamp duty prescribed
under Article 60 is equivalent to the stamp duty prescribed under
Article 25, that does not mean that the document becomes a
document covered by Article 25. Therefore, the Agreement for
Assignment executed by the Petitioner cannot be treated as an
Agreement to Sale under Article 25. The learned AGP submits that
the present Petition deserves to be dismissed.
REASONS AND FINDINGS:
9.I have considered the submissions made by the learned
Advocates for both sides. There is no dispute that the Petitioner
first entered into an Agreement for Assignment dated 19 April
2018 concerning the property in question. It is not disputed by the
Respondents that stamp duty of Rs.29,75,000/- was paid on this
document and the document was presented for registration and
was registered on 19 April 2018. It is not disputed that the
transaction under the said document did not take place and a
registered Cancellation Deed was executed on 18 October 2018.
The Petitioner made the online application for refund on 23
October 2018 and submitted the physical application on 29
October 2018.
10.The main case of the Respondents is that the document
executed by the Petitioner was an “Agreement for Assignment”
covered by Article 60 of Schedule I and was not an Agreement to
Sale covered by Article 25. According to the Respondents, because
7
wp948-2021-J.doc
the document is covered by Article 60, the Petitioner cannot claim
benefit under Sections 47 and 48 of the Maharashtra Stamp Act.
This is the main question which has to be considered.
11.Section 47 deals with allowance in respect of spoiled stamps
and the refund which can be claimed in such cases. For the present
matter, clause (c) is relevant. It deals with an instrument executed
by a party which afterwards comes within any of the cases
mentioned in that clause. Clause (c)(5) is relevant here. It
provides as under:
“(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;”
12.The words used in this provision are important. Section
47(c) does not say that only an Agreement to Sale covered by
Article 25 can come under this provision. It refers to “the stamp
used for an instrument executed by any party thereto”. Therefore,
what is required to be seen first is whether the instrument has
totally failed for the purpose for which it was made. The name or
title given to the document cannot decide the claim.
13.The Respondents have placed strong reliance on Article 60.
According to them, when the document is an Agreement for
Assignment and the stamp duty under Article 60 is the same as
that under Article 25, the document cannot be treated as an
Agreement to Sale under Article 25. To this limited extent, this
submission can be accepted. Article 60 and Article 25 are separate
entries. A document cannot be treated as falling under Article 25
8
wp948-2021-J.doc
merely because the stamp duty under both the Articles is the same.
The separate question still remains whether the stamp used on the
document became spoiled within the meaning of Section 47(c)(5).
14.This difference has been considered by this Court in Sanman
Trade Impex
. In paragraph 12 of that judgment, this Court
observed:
“12. The expressions “the stamp used for an instrument
executed” and “totally fails of the intended purpose” disclose
that the “purpose” spoken of in sub-clause (5) of clause (c)
of section 47 of the said Act relates to the utility of the
stamps for the matter for which the same was required to be
used.”15.Thus, what is important is the purpose for which the
instrument was made and whether that purpose has totally failed.
Merely giving a particular name to the document cannot finish the
matter. The same paragraph says:
“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, unless of course, the transferee seeks for specific
performance of such agreement.”
16.In the present case, the position from the documents is clear.
The Petitioner did not get the property under the first document.
The first transaction was cancelled by a registered Cancellation
Deed. Thereafter, the same property was purchased by the
Petitioner through the auction proceedings conducted by the Bank
and a separate Sale Deed was executed in his favour. Therefore,
the result which was intended to be achieved through the first
9
wp948-2021-J.doc
document was not achieved.
17.The Respondents submit that the Petitioner had stated that
he could not pay the balance consideration and the transaction
was cancelled. In my view, this fact cannot be sufficient to reject
the claim of the Petitioner. Section 47(c)(5) uses the expression
“totally fails of the intended purpose”. This expression was
considered by this Court in
Sanman Trade Impex in paragraph 14
as follows:
“14. Considering the provisions of law referred to above,
the contention on behalf of the respondent that payment of
entire consideration price under the deed dated 27th March,
2003 would render the instrument to be a deed of
conveyance and not an agreement and, therefore, would not
be entitled to claim refund under section 48(1) read with
47(c)(5) is totally, devoid of substance. Clause (c)(5) of
section 47 nowhere distinguishes between agreement of sale
and the deed of sale. It applies to all instruments irrespective
of the fact whether it is a deed of sale or a mere agreement
for sale. 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 “totally fail”.”
18.These observations deal with the main objection of the
Respondents. The right to seek relief under Section 47(c)(5) does
not depend only upon whether the document is called an
Agreement to Sale, a Sale Deed or an Agreement for Assignment.
The important thing is whether the document has become
ineffective for the purpose for which it was made. Here, the first
document was cancelled. The Petitioner did not acquire the
property under that document. The same property was transferred
10
wp948-2021-J.doc
under another document after the Bank's auction. Thus, the first
transaction came to an end without giving the Petitioner the
transaction for which the stamp duty had been paid. It is true that
paragraph 14 of
Sanman Trade Impex dealt with an instrument
described as an agreement for sale. But the principle stated by the
Court cannot be restricted only to that description of document.
The Court has clearly stated that clause (c)(5) “applies to all
instruments”. Therefore, merely because the present document is
described as an “Agreement for Assignment”, it cannot be said that
Section 47(c)(5) will not apply.
19.The Respondents have relied upon the proviso to Section
48(1). It is submitted that the extended period under that proviso
is available only where there is an Agreement to Sale on which
stamp duty is paid under Article 25. So far as this special proviso is
concerned, the submission of the Respondents can be accepted.
But this does not mean that every claim under Section 47(c)(5)
must necessarily relate to an Article 25 document. This difference
is clear from paragraph 7 of
Sanman Trade Impex, which states:
“7. Section 48 deals with the subject of applications for
reliefs under section 47 of the said Act. Sub-section (1)
thereof provides that application for relief under section 47
shall be made within a period of six months from the date of
the instrument, when a case falls under clause (c)(5) of
section 47. Proviso to the said sub-section provides that in
case of an agreement to sale of immovable property on
which stamp duty is paid under Article 25 of Schedule I, is
presented for registration under the provisions of
Registration Act, 1908 and if the seller refuses to deliver
possession of the immovable property which is the subject
11
wp948-2021-J.doc
matter of such agreement the application may be made
within two years of the date of the instrument. In other
words in cases where the instrument is covered by Article 25
of the Schedule I of the said Act, the period of limitation
prescribed for refund is of two years from the date of the
instrument whereas when the instrument happens to be the
one referred to under clause (c)(5) of section 47, and other
than the agreement covered by the provisions of the proviso
to Article 25 of Schedule I of the said Act the period
prescribed is of six months.”
20.The period referred to in Sanman Trade Impex was the
period which was applicable at that time. The provision placed
before this Court in the present case provides one year under
Section 48(1) for a case falling under clause (c)(5). It provides one
year in the case covered by the proviso relating to cancellation of
an Agreement to Sale under Article 25. Therefore, for the present
case the important point is that the application under Section
47(c)(5) was required to be made within one year from the date of
the instrument. The Petitioner executed the instrument on 19 April
2018. He made the online application on 23 October 2018 and the
physical application on 29 October 2018. Thus, the application
was made well within the prescribed period.
21.The Respondents cannot reject the claim of the Petitioner
merely because the document is not an Agreement to Sale under
Article 25. The special proviso to Section 48 may not be available
to the Petitioner. But the main provision of Section 48 read with
Section 47(c)(5) can still apply if the other conditions of law are
satisfied.
12
wp948-2021-J.doc
22.The Respondents have submitted that because the amount of
refund claimed is more than Rs.5,00,000/-, Sections 47 and 48(1)
cannot be applied. This submission cannot be accepted from the
statutory provision placed before this Court. There is no such
exclusion in the provision merely on the basis of the amount of
stamp duty claimed for refund. The amount may have some
relevance for deciding which authority has to deal with the
application. But it cannot create a substantive bar when the statute
itself has not provided such a bar.
23.The submission of the Petitioner that he was required to
purchase the property from the Bank by a separate Sale Deed and
again pay stamp duty on that document is important. It shows that
the first document did not result in transfer of the property to the
Petitioner. The first document was expressly cancelled. Thereafter,
the property was acquired by the Petitioner through the Bank's
auction. Therefore, the Petitioner did not receive the benefit which
the first stamped document was intended to give.
24.The submission of the learned Advocate for the Petitioner
that the first vendor was not in a position to complete the
transaction because the property was mortgaged and subjected to
Bank auction is supported, at least in its result, by the subsequent
registered Sale Deed executed by the Bank. The Respondents have
not disputed that the Bank conducted the auction or that the
Petitioner became the successful bidder and acquired the property
under another registered Sale Deed. Therefore, whatever may have
been the exact reason for failure of the first transaction, the fact
remains that the first transaction came to an end and another
13
wp948-2021-J.doc
transaction through the Bank took its place.
25.I am unable to accept the submission of the Respondents that
merely because the Petitioner was described as “Assignee” and the
other party was described as “Assignor”, the refund must be
refused. This Court in
Sanman Trade Impex has cautioned against
deciding such question merely from the name given to the
document. Paragraph 11 records:
“11. Similarly, even in case where an instrument in relation
to such an agreement is recorded with the nomenclature of
deed of sale and purchase of property but after execution
thereof the transferor thereunder is rendered helpless in the
matter of giving effect to the sale of the property agreed
upon in the sense that he fails to deliver actual possession of
the property to the purchaser, certainly in such cases, it
would amount to total failure of intended purpose within the
meaning of the said expression under clause (c)(5) of section
47 unless, the evidence produced before the Collector
discloses that the claim for refund is either bogus or is made
with sole intention to defraud the Government in relation to
revenue or for any other purposes.”
26.In the present case, there is no finding by the Respondents
that the claim made by the Petitioner is false or made with any
intention to defraud the Government. The existence of the two
registered transactions and the registered Cancellation Deed is not
disputed. The claim of the Petitioner is supported by this sequence
of registered documents. Paragraph 17 of
Sanman Trade Impex is
relevant. The Court there held:
“17. In the case in hand undoubtedly the instrument dated
27th March, 2003 disclosed the condition relating to delivery
of possession of the flat after expiry of one month from the
14
wp948-2021-J.doc
date of execution of instrument. The instrument disclosed
the purpose of purchase of the flat being in the occupation of
the customer of the petitioner company. Undoubtedly, the
occupant of the flat refused to vacate the same and the
transferor company, therefore, could not deliver the
possession of the flat to the petitioner company. It is not the
case of the respondent that the claim for refund is bogus or
false or there has been any misrepresentation of facts by the
petitioner in relation to the claim for refund. Under these
circumstances, the application having been made within the
prescribed time, the petitioners are entitled for refund of the
stamp duty in accordance with the provisions of law."
27.The principle which comes from the above discussion is that
stamp duty is paid for an instrument and for the transaction which
is intended to be carried out through that instrument. If that
transaction totally fails and the instrument becomes ineffective for
the purpose for which it was made, the statute provides a remedy
for seeking relief. The Legislature has not provided that the relief
will disappear merely because a different name is given to the
document.
28.Therefore, in my view, the Respondents have considered the
claim of the Petitioner mainly from the point of view of Article 60
and have stopped there. They have not considered the separate
operation of Section 47(c)(5). The questions were whether the
first instrument had totally failed for the purpose for which it was
made and whether the application for relief was made within the
period prescribed by law. On the material before this Court, both
these questions have to be answered in favour of the Petitioner.
15
wp948-2021-J.doc
29.I have considered the alternative submission of the Petitioner
under Section 47(c)(1), namely, that the first document was found
to be void in law from the beginning. However, there is no specific
adjudication before this Court declaring the particular Agreement
for Assignment to be void ab initio. Therefore, it is not necessary to
decide the claim for refund on this ground. The case of the
Petitioner succeeds independently under Section 47(c)(5). For the
same reason, it is not necessary to give any final finding as to the
exact legal effect of the mortgage upon the first agreement or
whether the first vendor had legal capacity to enter into the
transaction. The Respondents have not pointed out any material
fact which would take the present case outside the statutory relief.
There is a registered Cancellation Deed. The first transaction was
not completed. Possession was not delivered under that
transaction. Thereafter, the Petitioner purchased the property
through the Bank's auction and a separate Sale Deed was executed
in his favour. Stamp duty was again paid on that subsequent Sale
Deed. All these facts, when considered together, show that the first
stamped document did not result in the transaction for which it
was executed. It is necessary to keep in mind that merely
cancelling a document does not automatically give a right to
refund. Section 47 requires the conditions mentioned in the
section to be satisfied. Therefore, cancellation is not sufficient. But
in the present case, cancellation is not an isolated fact. It forms
part of the whole sequence of events. The first instrument was
executed. It did not result in the Petitioner acquiring the property.
It was cancelled by a registered Cancellation Deed. The same
16
wp948-2021-J.doc
property was later acquired from the Bank under another
registered Sale Deed. The application for refund was made within
the prescribed period. Therefore, the facts satisfy the requirement
that the intended purpose of the first instrument had totally failed.
30.In these circumstances, the order rejecting the application
cannot be sustained merely because the document falls under
Article 60 and not under Article 25. The special proviso to Section
48(1) may not be available to the Petitioner because the document
is not an Agreement to Sale under Article 25. But that does not
take away the main entitlement under Section 47(c)(5) read with
Section 48(1).
31.I hold that the Petitioner has established a case for relief
under Section 47(c)(5) of the Maharashtra Stamp Act. The
application for refund was made within the period prescribed
under Section 48(1). The instrument had totally failed for the
purpose for which it was made, and it was cancelled. The
Respondents were required to consider and grant the statutory
relief, subject to any lawful deduction or other condition which
may be permissible under the Act and the Rules. The relevant
documents and dates are before this Court. The dispute between
the parties is mainly regarding the interpretation and application
of the statutory provisions. In such circumstances, no useful
purpose would be served by sending the matter back to the
authority for taking another decision on the same material. The
Petitioner has gone through the process before the authorities. The
statutory question can be decided by this Court while exercising
jurisdiction under Articles 226 and 227 of the Constitution of
17
wp948-2021-J.doc
India.
32.The impugned order dated 11 September 2019, received by
the Petitioner on 6 January 2020, cannot be allowed to remain.
The rejection of the Petitioner's application merely on the ground
that Sections 47 and 48 do not apply because the document is
described as an Agreement for Assignment under Article 60 is not
sustainable in law. The Petitioner is entitled to refund of the stamp
duty of Rs.29,75,000/- paid on registered Document
No.5929/2018 dated 19 April 2018, subject to any deduction or
condition which is expressly permitted under the Maharashtra
Stamp Act and the Rules framed thereunder. The refund shall
accordingly be processed and paid by the competent authority in
accordance with this judgment.
33.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 impugned order dated 11 September 2019,
received by the Petitioner on 6 January 2020, is quashed and
set aside;
iii) The Respondents are directed to refund to the
Petitioner the stamp duty of Rs.29,75,000/- paid on
registered Document No.5929/2018 dated 19 April 2018,
subject to such lawful deduction, if any, as is permissible
under the Maharashtra Stamp Act and the Rules framed
thereunder;
18
wp948-2021-J.doc
iv) The aforesaid refund shall be processed and paid to the
Petitioner within a period of six weeks from the date of
uploading of the present order;
v) The Petition stands disposed of in the above terms.
(AMIT BORKAR, J.)
19
Legal Notes
Add a Note....