TaxTMI 
TaxTMI 
2023 (8) TMI 1632
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....ion conducted by the Bank/Authorised Officer/ Resolution Professional etc. In all these cases, the original owner of the property had borrowed loan from banks or financial institutions which become Non-Performing Assets (in short "NPA"), with the result, the bank or financial institutions by invoking the provisions of SARFAESI Act, had brought the respective properties for sale by way of auction. (ii) In the auction, these petitioners having participated, they were declared successful bidders or auction purchasers and thereafter, on payment of the entire amount, i.e., the bid amount, the sale was completed and as a evidence to the said sale, sale certificate was issued under the relevant rule of the Security Interest (Enforcement) Rules, 2002. (iii) When these sale certificates were produced before the concerned Registering Authority by the petitioners or on their behalf, for filing the same in the book of the Registering Authority in Book No. 1, either the same has been refused to be filed or rejection orders have been passed refusing to file the same. (iv) In some of the cases in this batch, though the registration of these document is not compulsorily ....
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....s how with the aforestated prayers, these writ petitions have been filed. Even though such kind of different prayers have been sought for, the sum and substance of the issue raised in these writ petitions is one and the same, where as to whether these petitioners are entitled to get their sale certificate/document concerned issued by the authorised officer in this regard as a evidence of title should be filed in Book No. 1 under Section 89(4) of the Act without insisting any stamp duty or not. 3. If this question is answered, the prayer sought for by these petitioners seeking mandamus to file the document in Book No. 1 under Section 89(4) as well as the mandamus seeking for the refund of the excess amount paid by them for registering certain document all can be decided. 4. Heard the learned counsel appearing for the petitioners who would submit that, the issue raised in these writ petitions is no more res integra as many number of Judgments have come on the issue i.e., the sale certificates being filed before the Registering Authority for filing the same in Book No. 1 maintained by them, whether to be accepted and filed without demanding any stamp duty and even though it is n....
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....that the sale certificate issued by one, who is neither civil court nor revenue officer could not fall under Section 17(2)(xii) of the Registration Act. He would also submit that, the nomenclature given to the document issued by the authorised officer would be irrelevant for exemption from paying of stamp duty. Unstamped sale certificate is a void document and no right would vest upon the auction purchaser of the property. 9. He would also submit that, whatever name the instrument is called whether certificate of sale or sale deed, the instrument is chargeable with stamp duty under Article 18 r/w Article 23 of schedule 1 to the Indian Stamp Act. 10. The learned Additional Advocate General would further contend that, the auction purchaser to choose the title to or the nomenclature of the document, neither he nor the purchaser has any choice with regard to the liability to pay the stamp duty. If they do not pay stamp duty and do not choose to have the document registered, it may be impermissible in evidence in view of Section 35 of the Indian Stamp Act and Section 49 of the Registration Act. 11. He would also submit that, in a case where certificate is granted by the civil o....
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....e certificate would be considered as a revenue officer, therefore such a certificate issued by him is capable of being filed in Volume I of the Book of registers maintained by the Registering Authority. 17. In view of the said conflicting decisions made by two different Division Benches of this Court, it became necessitated to refer the matter to a Full Bench, which in Dr. R.Thiagarajan v. Inspector General of Registration reported in 2019 (4) CTC 839 had considered and decided. However, the Full Bench has approved the view taken by the Division Bench in Kanagalakshmi Ganaguru's case cited supra and disapproved the view taken in K.K.Thirumurugan's case cited supra. 18. Therefore, the respondents mainly relied upon these decisions, especially the Full Bench decision of this Court in Thiagarajan's case and stated that, when the law has been ultimately declared by this Court in a Full Bench decision, that alone should govern the field, therefore based on which, if we look at the issue raised in these writ petitions, the plea raised by them that, automatically if it is forwarded, the sale certificate shall be filed in Book No. 1 by the registering authority and the re....
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....istration Act and the Stamp Duty which would stand attracted in the case on hand. Section 17(2)(xii) of the Registration Act, reads as follows: ""17. Documents of which registration is compulsory : (2) Nothing in clauses (b) and (c) of sub-section (1) applies to- (xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue Officer."" Section 89 (4) of the Registration Act, reads as follows: ""89. Copies of certain orders, certificates and instruments to be sent to registering officers and filed.- (4) Every Revenue Officer granting a certificate of the sale to the purchaser of immovable property sold by public auction shall send a copy of the certificate to the registering officer within the local limits of whose jurisdiction the whole or any part of the property comprised in the certificate is situate, and such officer shall file the copy in his Book No. 1." 13. A reading of Section 17(2)(xii) would show that a certificate of sale issued by a Civil or a Revenue Officer in evidence of a sale conducted by way of public auction is not compulsorily registrable. Section ....
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....n 17(2)(xii) of the Registration Act was considered and the Hon'ble Supreme Court held that a sale certificate is merely an evidence of title and it does not convey title. The Hon'ble Supreme Court while dealing with the nature of the document namely a sale certificate observed as follows: "12. ...When a property is sold by public auction in pursuance of an order of the court and the bid is accepted and the sale is confirmed by the court in favour of the purchaser, the sale becomes absolute and the title vests in the purchaser. A sale certificate is issued to the purchaser only when the sale becomes absolute. The sale certificate is merely the evidence of such title. It is well settled that when an auction purchaser derives title on confirmation of sale in his favour, and a sale certificate is issued evidencing such sale and title, no further deed of transfer from the court is contemplated or required. In this case, the sale certificate itself was registered, though such a sale certificate issued by a court or an officer authorized by the court, does not require registration. Section 17(2)(xii) of the Registration Act, 1908 specifically provides that a certificate ....
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....y Interest (Enforcement) Rules 2002, does not amount to transfer of property and it is only a document evidencing factum of a statutory sale on the above conclusion, this Court held that there is no question of collection of surcharge under Section 116-A of the Tamil Nadu District Municipality Act 1920 or the Tamil Nadu Duty on Transfer of Property (In Municipal Areas) Act (32 of 2009). In doing so, this Court had followed the Judgment of the Single Judge in Dr. Meera Thinakaran v. State of Tamil Nadu & Others, and that of the Division Bench in K.Chidambara Manickam v. Shakeena & Others, referred to supra. 19. The very same question arose before another Division Bench of this Court in Inspector General of Registration v. Kanagalakshmi Ganaguru. This court had held that the authorised officer appointed by the Bank under the provisions of the SARFAESI Act, cannot be called a Civil or Revenue Court or Collector or Revenue Officer. However, the earlier decisions of this Court adverted to supra were not brought to the notice of the Hon'ble Division Bench which decided Inspector General of Registration v. Kanagalakshmi Ganaguru. Noting the apparent conflict between the Inspe....
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....r. R..Thiagarajan v. Inspector General of Registration's case that an authorised officer cannot be termed as a Civil or Revenue Officer and a certificate of sale issued by him under Rule 9 of the Security Interest (Enforcement) Rules 2002, needs to be compulsorily registered has been uprooted by the observations of the Hon'ble Supreme Court in paragraph 16 of Esjaypee Impex Pvt Ltd v. Assistant General Manager and Authorised Officer, Canara Bank, as a corollary, the judgment of the Division Bench in Inspector General of Registration v. Kanagalakshmi Ganaguru, would also stand impliedly over ruled, in view of the subsequent decision of the Hon'ble Supreme Court. 23. The learned Special Government Pleader in her effort to sustain the view of the Division Bench in Inspector General of Registration v. Kanagalakshmi Ganaguru, would submit that even as late as on 16.09.2021, a Division Bench of this Court in Inspector General of Registration v. Prakash Chand Jain, has followed the judgment in Inspector General of Registration v. Kanagalakshmi Ganaguru, and the judgment of the Full Bench in Dr. R..Thiagarajan v. Inspector General of Registration's case. No doubt t....
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....ctor General of Registration (Full Bench) and Inspector General of Registration v. Prakash Chand Jain (Division Bench) are no longer good law, in view of the pronouncement of the Hon'ble Supreme Court in Esjaypee Impex Pvt Ltd v. Assistant General Manager and Authorised Officer, Canara Bank. 26. The next question that would arise is to the amount of stamp duty and registration charges payable, if such certificate is presented for registration. Article 18 of the Stamp Act, provides for Stamp Duty payable on a certificate of sale granted by a Civil or Revenue Court or Collector or other Revenue Officer. Clause (c) of Article 18 makes the duty payable for a conveyance would apply to a sale certificate also. Under Article 23 of the Stamp Act, the Stamp Duty payable on a sale is 5% as per G.O.Ms. No. 46CT and All Department dated 27.03.2012. As already pointed out since the document would not be a conveyance there is no question of payment of any surcharge either under Section 116A of the Tamil Nadu District Municipality Act 1920 or under the Tamil Nadu Duty on Transfer of Property (In Municipal Areas) Act (32 of 2009). 27. Insofar as the registration charges are c....
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.... Court with an observation that, it is a time that authorities stop filing unnecessary Special Leave Petitions only with objective of attaining some kind of a final dismissal from the Hon'ble Supreme Court every time. To appreciate the said aspect, the order of the Hon'ble Supreme Court in entirety in Madhurambal's case is extracted hereunder. "Learned counsel for the petitioner(s) has made a valiant endeavor to persuade us to interfere with the impugned judgment(s) but not successfully. It is logically so as this issue has been repeatedly settled and if one may say, a consistent view followed for the last 150 years. We may refer to the judgments by the Madras High Court in the Board of Revenue No. 2 of 1875 (In Re: Case Referred) dated 19.10.1875 opining that a certificate of sale cannot be regarded as a conveyance subject to stamp duty, by the Allahabad High Court in Adit Ram v. Masarat-unNissa (MANU/UP/0089/1883) opining that a sale certificate is not an instrument of the kind mentioned in clause (b) of Section 17 of Act III of 1877 and is not compulsorily registrable and this Court's view in Esjaypee Impex Pvt. Ltd. v. Asst. General Manager and Authoris....
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....overnment Order in G.O.Ms. No. 28, Commercial Taxes and Registration (J2) Department, where the State has decided as follows : "The Inspector General of Registration has stated that the Hon'ble Supreme Court of India has ordered to file the sale certificate issued by authorised officer of the bank under section 89 of the Registration Act, 1908 and also without insisting Stamp duty and Registration fee. The Inspector General of Registration has proposed to levy filing fee for the sale certificate which is sent for filing whether issued by civil court or Revenue Officer or authorised officer of the bank under section 78 of the Registration Act, 1908. 2. The Government examined the proposal of the Inspector General of Registration and have decided to accept the same. Accordingly, the Government direct that the notification appended to this order will be published in an Extraordinary issue of the Tamil Nadu Government Gazette, dated the 23rd March 2023. The Works Manager, Government Central Press, Chennai-1 is requested to send 100 copies to the Government and 100 copies to the Inspector General of Registration, Chennai-28 of the Gazette Notification. (BY....
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....r filing the same in Book No. 1 under Section 89(4) of the Act. 33. The Hon'ble Supreme Court has already held that Section 89(4) enabling the holders of the sale certificate to produce or the person who issue such sale certificate to forward the copy of the same to the registering authority who on receipt of the same shall file it in Book No. 1 in their custody. Beyond which nothing has been stated in Section 89(4), that was the law held. 34. Therefore in the G.O. No. 28, dated 28.03.2023 as quoted herein above, the Government has stated that the Inspector General of Registration has stated that, the Hon'ble Supreme Court of India has ordered to file the sale certificate issued by the authorised officer of the bank under Section 89 of the Registration Act, 1908 without insisting stamp duty and registration fee. Therefore the Inspector General of Registration has proposed to levy filing fee for the sale certificate which is sent for filing whether issued by the Civil Court or Revenue Officer or Authorised Officer of the Bank, under Section 78 of the Registration Act, 1908. 35. This proposal made by the Inspector General of Registration was accepted by the Governmen....