The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) NO. 32993 OF 2023 Shree Ambica Agro Industries Pvt. Ltd., Balangir …. Petitioner Mr. Mohendra Kumar Mohapatro, Advocate State of Odisha and others -versus- …. Opp. Parties Mr. A.K. Mishra, Additional Government Advocate CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 20.05.2024 5. 1. This matter is taken up through hybrid mode. 2. The Petitioner in this writ petition prays for a direction to set aside the Letter No.663 dated 9th May, 2023 (Annexure-6) issued by the District Sub-Registrar, Balangir refusing to refund the stamp duty of Rs.6,94,238/-. 3. Mr. Mohapatro, learned counsel submits that the Petitioner purchased the aforesaid stamp for execution of the sale deed in its favour. Although the sale deed was signed by both the parties, but the vendor did not turn up for registration of the document for which the sale deed could not be registered. Accordingly, the Petitioner moved the Collector, Balangir- Opposite Party No.2 under the provisions of the Odisha Stamp (Payment of Duty by means of e-Stamping) Rules, 2015 (for short ‘the Rules) on 6th August, 2021 for refund of the stamp duty as registration fee had already been returned to the Petitioner by that time for non-registration of the sale deed. But no action was taken on the same. Being aggrieved, the Petitioner filed W.P.(C) No.31482 of 2022 before this Court, which was Page 1 of 5 disposed of on 4th January, 2023 with a direction that in the event the Petitioner makes an application in Form-7 under Rule 30 of the Rules within a period of two weeks from the date of the said order along certified copy of the order enclosing relevant documents, the same should be considered and disposed of by the competent authority as expeditiously as possible preferably within a period of one month therefrom. Accordingly, the District Sub-Registrar, Balangir considered the application of the Petitioner for refund of stamp duty and by rejecting such application, communicated the order to the Petitioner vide Letter No.663 dated 9th May, 2023 (Annexure-6). Hence, this writ petition has been filed. 3.1 Mr. Mohapatro, learned counsel for the Petitioner further submits that the District Sub-Registrar, Balangir-Opposite Party No.3 is not competent to entertain the application for refund of stamp duty. It is the Collector, Balangir-Opposite Party No.2, who is competent to take a decision in the matter. Further, the District Sub-Registrar, Balangir applying the provision under Clause-(b) of Section 49 of the Indian Stamp Act, 1899 (for short ‘the Act’) rejected its application. The said provision is not applicable to the instant case. The provision under Section 49(d)(5) of the Act is applicable to the instant case and the application of the Petitioner should have been considered by the Collector, Balangir in the light of the aforesaid provision. He, therefore, prays for setting aside the impugned order under Annexure-6 and to remit the matter to the Collector, Balangir for consideration of its application for refund of the stamp duty. 4. Mr. Mishra, learned Additional Government Advocate referring to the counter affidavit submits that since both the Page 2 of 5 parties have executed and presented the sale deed before the District Sub-Registrar, Balangir, the Petitioner is not entitled to refund of the stamp duty. However, registration fee has already been refunded to the Petitioner. The allegation that the sale deed was never presented for registration before the District Sub- Registrar, Balangir, is not correct. The sale deed was, in fact, presented and registration fee was assessed and paid by the Petitioner. Thus, once registration process commenced and parties did not cooperate for the same, the Petitioner is not entitled to refund of the stamp duty. He, therefore, prays for dismissal of the writ petition. 5. Taking note of the submissions made by learned counsel for the parties, this Court finds that although the sale deed was executed by both the parties, but due to non-cooperation of the vendor, registration could not be made. Section 49(d)(5) of the Act reads as under: “49. Allowance for spoiled stamps: Subject to such rules as may be made by [the [State Government] [Substituted by A.O.1937, for "the L.G."]] as to the evidence to be required or, the enquiry to be made, the Collector may, on application made within the period prescribed in section 50, and if he is satisfied as to the facts, make allowance for impressed stamps spoiled in the cases hereinafter mentioned, namely: (a)(b)(c) xxx xxx xxx (d) the stamp used for an instrument executed by any party thereto which- (1)(2)(3)(4) xxx xxx xxx (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;” Page 3 of 5 6. It provides that subject to the provisions of the Rules as may be made and the period prescribed under Section 50 of the Act, the Collector if satisfied as to the facts may direct refund the stamp duty where by reason of the refusal of any party to act under the same. 7. In the instant case, it is submitted by Mr. Mohapatro, learned counsel for the Petitioner that the vendor after executing the sale deed refused to cooperate for registration of the same. Thus, the Petitioner having purchased the stamp may be entitled to refund of the stamp duty. 8. It appears that the matter was never presented before the Collector, Balangir. The District Sub-Registrar, Balangir took the decision on behalf of the Collector, Balangir. In that view of the matter, the impugned order under Annexure-6 is without jurisdiction. 9. Accordingly, the impugned order under Annexure-6 is set aside and the Collector, Balangir-Opposite Party No.2 is directed to take a decision on the application filed by the Petitioner for refund of the stamp duty, as aforesaid, keeping in mind the provision under Section 49(d)(5) of the Act. 10. The entire exercise shall be completed within a period of six weeks from the date of production of certified copy of this order, giving opportunity of hearing to the parties concerned and the result thereof shall be communicated to the Petitioner forthwith. 11. It is made clear that this Court has not expressed any opinion on the merits of the case of the Petitioner. Page 4 of 5 12. With the aforesaid observation and direction, the writ petition is disposed of. 13. As requested, a copy of this order shall be made over to Mr. Mishra, learned Additional Government Advocate for communication and compliance. bks (K.R. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 21-May-2024 16:22:15 Page 5 of 5