ABDUL AZEEZ v. THE AUTHORIZED OFFICER,PHOENIX ARC. LTD

10. The counsel for the respondent submitted that the NCLT has passed Ext.P5 order dismissing a petition filed by the respondent. The said order is illegal and the respondent has challenged Ext.P5 order in appeal.

11. The counsel for the respondent further urged that no prejudice will be caused to the petitioner due to deficient stamp duty. The petitioner had filed SA No.66/2018. The Debts Recovery Tribunal granted a conditional stay on W.P.(C).33707/2023 & OP(DRT).453/2023 : 8 : payment of ₹25 lakhs on or before 28.02.2018 and ₹75 lakhs on or before 30.03.2018. The petitioner did not comply with the conditions in the order.

12. The counsel for the respondent further submitted that though the Advocate Commissioner attempted to take physical possession of the residential properties of the petitioner and another mortgagor, she was met with stiff resistance from the petitioner and others. The writ petition and the OP(DRT) are therefore liable to be dismissed, contended the counsel for the petitioners.

13. I have heard the learned counsel for the petitioners and the learned Standing Counsel for the respondents.

14. The petitioner alleged that Ext.P2 assignment deed is not seen stamped as per the Kerala Stamp Act,

1959. Ext.P2 assignment deed has been executed at Ernakulam. The stamp duty payable for assignment of debt is as conveyance mentioned in Article 22 of schedule of the Act. Therefore stamp duty payable on assignment of debt is W.P.(C).33707/2023 & OP(DRT).453/2023 : 9 : 8%. Section 34 of the Kerala Stamp Act provides that insufficiently stamped instruments cannot be used for any purpose unless the stamp duty and penalty is paid.

15. The answer of the Asset Reconstruction Company to the afore ground is that there is no provision under the Kerala Stamp Act, 1959 pertaining to assignment of debts. What is transferred under Ext.P1 is only the debt along with right to enforce the underline securities under law. Section 25 of the Kerala Stamp Act will come into operation only when property is transferred in consideration for debt due to the seller.

16. Section 25 of the Kerala Stamp Act, 1959 provides that where any property is transferred to any person in consideration, wholly or in part, of any debt due to him or subject either certainly or contingently to the payment or transfer of any money or stock, whether being or constituting a charge or encumbrance upon the property or not such debt, money or stock is to be deemed the whole or part, as the case may be of the consideration in respect whereof the W.P.(C).33707/2023 & OP(DRT).453/2023 : 10 : transfer is chargeable with ad valorem duty.

17. Article 22 in the Schedule to the Kerala Stamp Act deals with conveyance as defined in Section 2(d) not being a transfer charged or exempted under No.55 immovable property. The Article provides for the rates of stamp duty payable.

18. Section 2(d) of the Kerala Stamp Act, 1959 defines the term “conveyance” as follows:- “Conveyance” includes,- (i) a conveyance on sale; (ii) deed of amalgamation of two or more companies whether in pursuance of an order of the National Company Law Tribunal or not; (iii) deed of amalgamation in pursuance of the order under Section 44A of Banking Regulation Act, 1949; and (iv) every other instrument, by which property, whether movable or immovable or any interest in any property is transferred inter vivos and which is not otherwise specifically provided in the Schedule. Every document by which movable property is transferred is “conveyance”. W.P.(C).33707/2023 & OP(DRT).453/2023 : 11 :

19. The question arising is whether the transfer of loan account by a Bank / financial institution to an Asset Reconstruction Company would amount to “conveyance”. The Reserve Bank of India has issued Master Directions called the Reserve Bank of India (Transfer of Loan Exposures) Directions, 2021. Direction No.9(k) defines transfer in the context of transfer of loan exposures to mean as a transfer of economic interest in loan exposures by the transferor to the transferee, with or without the transfer of the underline loan contract, in the manner permitted.

20. Direction No.11 gives a general condition applicable for all loan transfers and provides that loan transfers should result in transfer of economic interest without being accompanied by any change in underlining terms and conditions of the loan contract usually. Direction 12 makes it clear that in loan participation transactions, by design, the legal ownership completely remains with the transferor even after economic interest has been transferred to the transferee. Proviso to Direction 5 mandates that in W.P.(C).33707/2023 & OP(DRT).453/2023 : 12 : cases of loan transfers other than loan participation, legal ownership of the loan shall be mandatorily transferred to the transferee to the extent of economic interest transferred only.

21. It is therefore evident that what is transferred by a Bank / financial institution to an Asset Reconstruction Company is only a transfer of economic interest and there is no conveyance of property or proprietary rights. The transfer of legal ownership of the loan is limited to the extent to the economic interest transferred.

22. Article 22 of the Kerala Stamp Act, 1959 takes within its ambit only those conveyances as defined in Section 2(d). Even assuming that transfer of loan interest by a financial institution involves transfer of any interest in the secured asset and therefore it amounts to conveyance, even then such conveyance will not fall in any of the categories mentioned in Article 22.

23. The respondents have not brought to the notice of this Court any other Article in the Schedule to the Kerala Stamp Act prescribing stamp duty for loan transfers by W.P.(C).33707/2023 & OP(DRT).453/2023 : 13 : financial institutions to the Asset Reconstruction Companies. Therefore, the arguments of the petitioner based on deficit stamp duty is only to be rejected.

24. The petitioner relied on Ext.P5 order of the National Company Law Tribunal in CP(IBC)/51/KOB/2022 wherein the Tribunal has held that insufficiently stamped instrument cannot be used for any purpose. The said finding of the Tribunal is doubtful. The NCLT has taken a contrary view in CP(IBC)/08/KOB/2023 wherein the Tribunal has held that the assignment deed in favour of the Asset Reconstruction Company is not a conveyance relating to immovable property.

25. Article 22 of the Kerala Stamp Act would apply only when there is a sale of immovable property. In the case of the respondent-Asset Reconstruction Company, the Bank has not conveyed any property. What is transferred is only the debt and right to recover the debt. Therefore, the contention of the petitioner that the conveyance itself is invalid, is unacceptable. W.P.(C).33707/2023 & OP(DRT).453/2023 : 14 :

26. The Kerala Stamp Act, 1959 is a fiscal measure enacted to secure revenue for the State on certain classes of instruments. It is not enacted to arm a litigant with a weapon of technicality to meet the case of his opponent. The stringent provisions of the Stamp Act are concealed in the interest of the revenue. Proceedings under the Securitisation Act are proceedings to enforce security interest, without intervention of the court. It is to be further noted that the registration of the agreement in question is pending consideration before the competent Sub Registrar's Office. In such circumstances, the petitioner cannot be permitted to take the defence of insufficient stamp duty to escape from his liability.

27. The further ground urged by the petitioner is that under Section 3 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, an Asset Reconstruction Company should be a Trust. The respondent has asserted that the respondent-Company is a Trust and necessary documents can be produced to W.P.(C).33707/2023 & OP(DRT).453/2023 : 15 : establish that the respondent will satisfy the requirements of Section 3 of the Securitisation Act. I find no reason to disbelieve the statement made by the respondent. In the afore facts of the case, I do not find any reason to interfere with the proceedings initiated by the respondent. The writ petition and the OP(DRT) are therefore dismissed. aks/09.01.2024 Sd/- N. NAGARESH, JUDGE W.P.(C).33707/2023 & OP(DRT).453/2023 : 16 : APPENDIX OF WP(C) 33707/2023 PETITIONER'S EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 Exhibit P5 COPY OF SEC.13(2) NOTICE ISSUED BY THE RESPONDENT, DATED 24/2/201 COPY OF ASSIGNMENT AGREEMENT DATED 17.3.2017 COPY OF ORDER OF CJM. THRISSUR DATED 13.6.23 COPY OF ORDER IN CMP 7575/2023 IN MC 441/2023 DATED 12.09.2023 COPY OF ORDER IN CP(IBC)/51/KOB/2022, NATIONAL COMPANY LAW TRIBUNAL KOCHI BENCH DATED 15.2.2023 RESPONDENT'S EXHIBITS Exhibit R1(a) Exhibit R1(b) Exhibit R1(c) Exhibit R1(e) Exhibit R1(f) True copy of the Assignment Agreement dated 17/03/2017 executed by South Indian Bank Ltd in favour of the Petitioner True copy of the order dated 13/10/2023 in CP(IBC)/08/KOB/2023 of the National Company Law Tribunal, Kochi True copy of the judgment dated 12/07/2018 in O.P(DRT) No.50 of 2018 of High Court of Kerala True copy of the Order dated 13/10/2022 in I.A No.2176 of 2022 in SA No.66 of 2018 of the Debts Recovery Tribunal -1, Ernakulam True copy of the judgment dated 02/11/2022 in O.P(DRT) No.407 of 2022 of High Court of Kerala W.P.(C).33707/2023 & OP(DRT).453/2023 : 17 : Exhibit R1(g) Exhibit R1(d) True copy of the Order dated 24.08.2023 in I.A No.2614 of 2023 in SA No.66 of 2018 of the Debts Recovery Tribunal -1, Ernakulam True copy of the Order dated 17/08/2018 in SLP No.20249/2018 of the Hon'ble Supreme Court W.P.(C).33707/2023 & OP(DRT).453/2023 : 18 : APPENDIX OF OP (DRT) 453/2023 PETITIONER'S EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 Exhibit P5 Exhibit P6 THE TRUE COPY OF THE SECTION 13(2) NOTICE DATED 24.02.2016 THE TRUE COPY OF THE NOTICE OF DISPOSSESSION DATED 26/7/2023 THE TRUE COPY OF ORDER IN IA. 2614/2023 IN SA NO.66/2018 DATED 24.8.2023 TRUE COPY OF SA. 66/2018 TRUE COPY OF IA. 2614/2023 TRUE COPY OF ORDER IN OP(DRT).407/2022 RESPONDENT'S EXHIBITS Exhibit R1(a) Exhibit R1(b) Exhibit R1(c) Exhibit R1(d) Exhibit R1(e) True copy of the judgment dated 12/07/2018 in O.P(DRT) No.50 of 2018 of High Court of Kerala True copy of the Order dated 17/08/2018 in SLP No.20249/2018 of the Hon'ble Supreme Court True copy of the Order dated 13/10/2022 in I.A No.2176 of 2022 in SA No.66 of 2018 of the Debts Recovery Tribunal -1, Ernakulam True copy of the judgment dated 02/11/2022 in O.P(DRT) No.407 of 2022 of High Court of Kerala True copy of the order dated 13/10/2023 in CP(IBC)/08/KOB/2023 of the National Company Law Tribunal, Kochi