IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on         :      24.02.2023

Pronounced on     :      14.08.2023

CORAM:

THE HON’BLE MR. JUSTICE R.SURESH KUMAR

W.P.Nos.32749, 32861, 33019, 33020 & 34897 of 2022 and 1862 & 3195 of 2023

and W.M.P.Nos.32141 and 32268 of 2022

& W.M.P.No.3263 of 2023

W.P.No.32749 of 2022

N.C.Suresh Kumar            ….. Petitioner

Vs.

1. The Inspector General of Registration Registration Department,

Santhome High Road, Foreshore Estate,     Chennai.

2. The Sub Registrar

Pammal,

Office of the Sub Registrar, Pammal,     Chennai.

3. The Authorised Officer

Orix Leasing and Financial Services India Limited,

SP4, Industrial Estate, Behind Olympia Tech Park,

Guindy, Chennai – 600 032.                    ….. Respondents seeking for issuance of a writ of mandamus, directing the second respondent to register the sale certificate, dated 16.09.2022 by the fourth respondent with respect to the immovable property situated at Plot No.64, Door No.3, 9th Street, Shri Shankar Nagar, Stage III, Pammal, Pallavaram Taluk, Kanchipuram District in Survey No.143/2, Pammal Village, measuring an extent of 2400 Sq.ft.

W.P.No.32861 of 2022

S.Santosh Kumar          ….. Petitioner

Vs.

1. The District Registrar

Tindivanam Registration District,     Tindivanam – 604 001,     Villupuram District.

2. The Sub-Registrar

Sub-Registrar Office,

Marakkanam,

Villupuram District.

3. The Special Deputy Collector (Stamps)

Collectorate Buildings,

Cuddalore.                                                                                         ….. Respondents

Prayer : Writ Petition filed under Article 226 of the Constitution of India, seeking for issuance of a writ of certiorarified mandamus, calling for the records of the second respondent in his Notice, dated 10.10.2022 and quash the same and consequently direct the second respondent to register the sale certificate in Book No.1 in terms of Section 89(4) of Registration Act and refund the registration charges collected with interest.

W.P.No.33019 of 2022

E.Ravichandran          ….. Petitioner

Vs.

1. The Sub-Registrar

Oothukottai,

Thiruvallur District.

2. The Inspector General of Registration

Office of the Inspector General of Registration,

100, Santhome High Road,

Santhome, Chennai – 600 004.                   ….. Respondents Prayer : Writ Petition filed under Article 226 of the Constitution of India, seeking for issuance of a writ of mandamus, to direct the respondents herein to consider the representation made by the petitioner, dated 25.10.2022 in accordance with law.

W.P.No.33020 of 2022

N.Kotteeswaran                                        …. Petitioner

Vs.

1. The Sub-Registrar

Oothukottai,

Thiruvallur District.

2. The Inspector General of Registration

Office of the Inspector General of Registration,

100, Santhome High Road,

Santhome, Chennai – 600 004.                                                           ….. Respondents

seeking for issuance of a writ of mandamus, to direct the respondents herein to consider the representation made by the petitioner, dated 25.10.2022 in accordance with law.

W.P.No.34897 of 2022

Dr.S.Sekar Sathiyavelu              ….. Petitioner

Vs.

1. The State of Tamil Nadu

Rep. by its Secretary to Government,

Commercial Taxes and Registration Department,     Secretariat, Fort St. George,     Chennai – 600 005.

2. Inspector General of Registration

Office of the Inspector General of Registration,

100, Santhome High Road,     Pattinapakkam,     Chennai – 600 028. .

3. The Competent Authority and District Revenue Officer

Greater Chennai Corporation (Land & Estate Department)     Ripon Building,     Chennai – 600 003.

4. The Sub-Registrar

Mylapore Sub-Registrar Office,

No.9, Kavingnar Bharathidasan Road,

Seetammal Colony, MIG Colony,

Alwarpet, Chennai – 600 018.                                                            ….. Respondents

 

seeking for issuance of a writ of mandamus, directing the Respondent Nos.1,2 & 4 to refund the Stamp Duty and Registration charges amounting to Rs.5,66,511/- (Rupees Five Lakhs Sixty Six Thousand Five Hundred and Eleven) collected from the petitioner while registering the Sale Certificate issued by the 3rd Respondent under Orders of the Special Court constituted under the Tamil Nadu Protection of Interests of Depositors (In Financial Establishments) Act, 1997, bearing Document No.1940 of 2022, dated

16.05.2022 of Book-I recorded by the 4th Respondent, with interest.

W.P.No.1862 of 2023

AIC Specialities

Rep. by its Partner & Authorised Signatory

Mr.Shashank Kapil,

No.125 (Old No.56), Langs Garden Road,

Pudupet, Chennai – 600 002.       ….. Petitioner

Vs.

1. The Inspector General of Registration 100, Santhome High Road,     Chennai – 600 028. .
2. The Sub Registrar

Poonamallee Sub Registrar Office,     Poonamallee, Chennai – 600 056.

3. The Authorized Officer

Kotak Mahindra Bank Ltd.,

Branch Office at

No.402 L, Pantheon Road, Samson Tower,

Egmore, Chennai – 600 008.                                                             ….. Respondents

seeking for issuance of a writ of mandamus, directing the 2nd Respondent to file the sale certificate, dated 12/12/2022 forwarded by the 3rd Respondent in Book No.1 in terms of Section 89(4) of the Registration Act, 1908 without insisting any stamp duty and registration charges.

W.P.No.3195 of 2023

Kovai Medical Centre and Hospital Limited,

Rep. by its Chief Operating Officer,

Mr.J.Sivakumaran,

99, Avinashi Road,

Coimbatore – 641 014.                ….. Petitioner

Vs.

1. The Inspector General of Registration

Office of the I.G. of Registration,     100, Santhome High Road,     Chennai.

2. The Sub-Registrar

Sulur Sub-Registrar Office,

New No.423, Trichy Road,

Sulur – 641 402,     Coimbatore District.

3. The Authorized Officer

Karur Vysya Bank,

Asset Recovery Branch Madurai,

170/9, Mattuthavani-Melur Road,

Near Mattuthavani Bus Stand,

Madurai – 625 107.                ….. Respondents

seeking for issuance of a writ of certiorarified mandamus, to call for the records of the proceedings in Na.Ka.En.No.675/2022, dated 30.12.2022 on the file of the 2nd respondent and to quash the same as one without jurisdiction and to consequently direct the 2nd respondent to file the sale certificate, dated 14.10.2022 issued by the 3rd respondent in Book I in terms of Sections 17(2)(xii) and 89(4) of the Registration Act, 1908.

For Petitioner        : Mr.Vijay Narayan, Senior Counsel  for Mr.P.Dinesh Kumar

in W.P.No.32861 of 2022

Mr.M.L.Ramesh in W.P.No.32749 of 2022

Mr.V.Balasubramani

in W.P.Nos.33019 and 33020 of 2022  Mr.S.P.Vijayaraghavan  in W.P.No.34897 of 2022

Mr.T.V.Suresh Kumar    for M/s. Genicon and Associates  in W.P.No.1862 of 2023  Mr.Sarath Chandran  and Ms.Gopika Nambiar  in W.P.No.3195 of 2023

For Respondents  : Mr.R.Neelakandan, AAG assisted by

Mr.Yogesh Kannadasan, Spl.G.P in W.P.Nos.32861, 33019, 33020 and 34897 of 2022 and for R1 and R2 in W.P.No.32749 of 2022 & W.P.Nos.1862 & 3195 of 2023

 

COMMON ORDER

Since the issue raised in this batch of writ petitions is one and the same, by the consent of the learned counsel appearing for both sides, these writ petitions were heard together and are disposed of by this common order.

2. The brief facts which are required to be noticed for the purpose of disposal of these writ petitions are as follows :

• That the petitioners herein had purchased immovable properties through public auction 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.
• 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.
• When these sale certificates were produced before the concernedRegistering 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.
• In some of the cases in this batch, though the registration of these document is not compulsorily in nature in view of Section 17(2)(xii) of the Registration Act, 1908 (herein after to be referred to as “the Act”), since they desired to register those documents, i.e., sale certificates, that was accepted for registration only on payment of the stamp duty as well as the registration charge, which is otherwise chargeable for all other documents.
• In those cases, having realised the legal position that for registering such documents, i.e., sale certificates, if excess rate of stamp duty as well as registration charges had been collected by the Registering Authority and the same since has already been paid by these petitioners under protest, in order to get the refund of the excess amount paid by them, they seek for writ of mandamus.
• In some cases, even though the amount demanded by way ofstamp duty as well as registration charges having been paid, subsequently communication has been sent by the Registering Authority stating that, the amount paid by them is not on the basis of the calculation incommensurate with the market value of the property, therefore in this regard reference would be made under Section 47(A) of the Registration Act. Therefore the difference of the amount calculated and mentioned in such communication also to be paid by the writ petitioners.
• In respect of the first set of cases, mere mandamus had been sought for to file the respective document / sale certificate under Section 89(4) of the Act in Book No.1.
• In some cases, certiorarified mandamus sought for to quash the orders refused to file the same in Book No.1 and consequential mandamus and in some cases, since they have given representation to file the document in Book No.1 which has not been considered and acted upon, therefore seeking mandamus to consider the request of the respective petitioners and to file the same in Book No.1 and in one case, such a sale certificate since issued pursuant to the Court order under The Tamil Nadu Protection of Interests of Depositors (In Financial Establishments) Act, 1997 also had been registered by claiming excess stamp duty, therefore the excess amount sought to be refunded and in one case, the resolution professional issued sale certificate, which was refused to be filed, therefore, that order was sought to be quashed, hence, certiorarified mandamus was sought for.
• This is 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 wouldsubmit 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 not a compulsorily registerable document within the meaning of Section 17(2)(xii), even then if registration is sought for by the document holder, whether he has to pay the stamp duty on par with other documents, where the title is transferred or the title is conveyed.
5. In order to answer these questions, already Judgments have come for and against. Ultimately, the Hon’ble Supreme Court in Esjaypee Impex

Pvt. Ltd. v. Asst. General Manager and Authorised Officer, Canara Bank  reported in 2021 (2) CTC 493 (SC), has given quietus to the issue which is the law still governing the field and therefore, as per the law declared in the said Esjaypee’s case, the document, i.e., the sale certificate produced by these petitioners shall be filed in Book No.1 maintained by the Registering Authority and if they want to register the document at their will, as the document is not compulsorily registerable document, such document shall be registered by the Registering Authority by claiming the lesser stamp duty, i.e., 5% instead of 7% and registration charge only 1% instead of 4% and accordingly, such document shall be registered.

6. In both the count, i.e., filing the said document, i.e., sale certificate in Book No.1 under Section 89(4) of the Act and also registering the document by collecting only 5% stamp duty and 1% registration charge since the registration has not been done and it has not been filed in Book No.1 or they collected higher charges and registered the documents, these kind of prayers sought for in these writ petitions should be allowed, they contended.
7. On the contrary, Mr.R.Neelakandan, learned Additional Advocate

General assisted by Mr.Yogesh Kannadasan, learned Special Government Pleader appearing for the respondents would contend that, it is not that much simply this issue can be crossed, because, the proposition of law by various citations has made it clear that, the contention raised by the petitioners side cannot be accepted.

8. In this context, the learned Additional Advocate General would contend that, the sale certificate issued by the authorised officer of the Bank is liable for stamp duty under Article 18(c) r/w Article 23 of schedule 1 of the Indian Stamp Act, 1899. He would further submit that, if proper stamp duty is not paid for the sale certificate, it does not confer any right to the purchaser. He would also submit 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 calledwhether 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 officer, apart from the revenue officer, registration would not be compulsory, thus till it is not presented for registration, the question of stamp duty would not arise. It would be true that as per Section 35 of the Indian Stamp Act, 1899, such document would not be admissible in evidence.
12. In support of his contention, the learned Additional Advocate

General would rely upon the following decisions :

1. Dr.R.Thiagarajan v. Inspector General of Registration and others, 2019 SCC Online Mad 9085 :

(2019) 4 CTC 839

2. M/s. Cenney Hotels Pvt., Ltd., through its

Managing Director v. State of Tamil Nadu rep. by I.G.of Registration and others [Judgment in W.A.No.2132 of 2010, dated 18.09.2019]

3. In Re. The Official Liquidator, High Court,

Madras, 2010 (2) CTC 113

4. The Inspector General of Registration and others v. M/s. Tripower Properties Limited, Rep. by its Director and another [Judgment in W.A.Nos.589, 681 and 746 of 2022, dated 20.07.2022]
5. I have given my anxious consideration to the rival submissions made as stated supra and have perused the materials placed before this

Court.

14. In fact the issue, though appears to be in a larger connotation to be decided afresh, the fact remains that, it is in very narrow compass. The reason being that, it is not the first time the issue has been raised before the Court of law. Several decades this issue have engaged the law courts and consistently the courts have taken the view with upholding the right of the parties who purchased the property by way of auction sale, especially the court auction sale, to seek for filing of such sale document or sale certificate in Book No.1 maintained by the Registering Authority. However, at one point of time, there has been conflicting views taken by two Division Benches of this Court.
15. In the matter of Inspector General of Registration v. Kanagalakshmi Ganaguru, reported in 2017 (2) CWC 780, a Division Bench of this Court has 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.
16. However in an earlier decision in Inspector General of

Registration v. K.K.Thirumurugan reported in 2015 (1) CTC 526, a Division Bench of this Court taken a different view to the extent that the officer who issued such sale 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 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 registration shall be undertaken by the registering authority by collecting only the lesser stamp duty as fixed already for this kind of documents, but not demanding the 7% and 4% stamp duty and registration charge respectively being collected for other documents is not countenanced. This was the argument advanced on behalf of the State / respondents by the learned Additional Advocate General.
19. However, the learned counsels appearing for the petitioners heavily relied upon the Esjaypee Impex Pvt., Ltd., case cited supra.
20. In Esjaypee Impex Pvt., Ltd., which was the case that also arose from our High Court, where the Hon’ble Supreme Court has made it clear that, the authorised officer of the bank under the SARFAESI Act would be a Revenue Officer in terms of Section 17(2)(xii) r/w Section 89(4) of the

Registration Act.

21. In para 16 of the said Judgment, their Lordships held that “we are of the view that the mandate of law in terms of Section 17(2)(xii) r/w Section 89(4) of the Registration Act, 1908, only requires the authorised officer of the bank under the SARFAESI Act to hand over the duly validated sale certificate to the auction purchaser with a copy forwarded to the Registering Authorities to be filed in Book No.1 as per Section 89 of the Registration Act”.
22. Since this Judgment has come, which is the latest one of the Hon’ble Supreme Court, whereby, whatever the view that has been taken by a Division Bench of this Court in conflicting with the earlier Division Bench Judgment and the view taken by the Division Bench Judgment in this regard in Kanagalakshmi Ganaguru’s case since has been accepted and supported by the Full Bench decision in Dr.R.Thiyagarajan’s case, have all been impliedly overruled by the decision of the Hon’ble Supreme Court in

Esjaypee Impex Pvt., Ltd., case.

23. The development of law in this regard has been completely traced by a learned Judge in a subsequent decision in Bell Tower Enterprises LLP v. State of Tamil Nadu reported in 2022 (5) CTC 454. It has explained the law so far has been developed in this area and exhaustively decided the issue by citing all these decisions. The relevant portion of the order in Bell Tower Enterprises LLP’s case of the learned Judge can usefully be pressed into service. Therefore it reads thus :

“12. Let me now consider the provisions of the Registration 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 89(4) imposes an obligation on the Revenue Officer, who conducts an auction sale to forward the certificate to the Registering Authority to enable him to file the same in Book-I maintained by him. Article 18 of the Stamp Act, deals with payment of duty on a certificate of sale and Article 23 of the Stamp Act, deals with payment of duty on a conveyance.  If a direct question is to be posed, as to whether, a certificate of sale issued by a Court or a Revenue Officer, if evidence of a sale conducted by public auction requires  registration or not, the answer has to be a firm ‘no’. This would be the natural inference from a reading of the provisions extracted above.
14. The other question that may arise is who is a Civil or a Revenue Officer, the term Civil or a Revenue Officer has not been defined either under the Stamp Act or under the Registration Act. We have to necessarily fall back upon the precedents available in order to ascertain, as to whether an officer authorised by a Bank to conduct a sale under the provisions of the SARFAESI Act, could be termed as a Civil or a Revenue Officer. It is pointed out that the bar that this question is no longer res integra. The earliest decision of the Hon’ble Supreme Court on this issue could be found in Shanti Deevi L. Singh v. Tax Recovery Officer, 1990 (3) SCC 605, wherein the Hon’ble Supreme Court pointed out the procedure for filing of a certificate of sale issued by a Tax Recovery Officer and the Court after considering the provisions of Section 89(4) held that a Tax Recovery Officer under the Income Tax Act would be a Revenue Officer and the certificate of sale issued by him is not compulsorily registrable.  In doing so, the Hon’ble Supreme Court held as follows:

“6. …..In our opinion, there is no need to read the

term -revenue officer- in any restricted sense and that it is wide and comprehensive enough to include the T.R.O. who effects a compulsory sale for the recovery of an income~tax demand. We are therefore clear that, in the present case, the registration officer has to act in terms of S. 89(4) of the Indian Registration Act read with rule 21 of the ITCP rules. This is to file the copy of the certificate of sale received by him from the T.R.O. in his Book No. 1.”

15. In Arvind Kumar v. Govt. of India and others, reported in 2007 (5) SCC 745, the scope of Section 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 of sale granted to any purchaser of any property sold by a public auction by a civil or revenue officer does not fall under the category of non testamentary documents which require registration under sub-section (b) and (c) of Section 17(1) of the said Act. We therefore hold that the High Court committed a serious error in holding that the sale certificate did not convey any right, title or interest to plaintiff’s father for want of a registered deed of transfer.”

16. A Division Bench of this Court in Chidambara Manickam v. Shakeena & Others, 2008 (1) CTC 660 (DB) :

AIR 2008 Madras 108, held that a sale certificate issued under Rule 9(7) of the Security Interest (Enforcement) Rules 2002, is a complete and absolute sale and it does not require anything to be done in furtherance of it.  In doing so, the Division Bench observed as follows:

“10.20. In view of our finding on this point, we hold that the sale of the secured asset in public auction as per Section 13(4) of SARFAESI Act, which ended in issuance of a sale certificate as per Rule 9(7) of the Rules is a complete and absolute sale for the purpose of SARFAESI Act and same need not be registered under the provisions of the Registration Act.”

17. The effect of a sale certificate issued by a Recovery Officer under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, was considered by this Court in Meera Thinakaran v. The State of Tamil Nadu & Others, 2012 (2) CTC 759 : AIR 2013 Mad 73, wherein it was held that a sale certificate issued under Rule 65 of the Income Tax Rules, is only a document evidencing the conveyance that had already taken place and the same does not require registration. It was also held that no surcharge could be levied under Section 116-A of the Tamil Nadu District Municipality Act on such an instrument. A Division Bench of this Court in

P.M.Associates, Udhagamandalam v. IFCI Limited,  2013 (5) CTC 337, while concluding that the sale certificate is absolute and the same cannot be cancelled by the authorised officer pointed out that the document has to be registered, since the second respondent namely the Authorised Officer could not be termed as a Revenue Officer.

18. In Pandian v. Inspector General of Registration, AIR 2016 Mad 81, this Court had held that a sale certificate issued by an Authorised Officer under the Security 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 Inspector General of Registration v. K.K.Thirumurugan, 2015 (1) CTC 526 (DB), which had taken the view that Section 47-A could not be invoked in a sale conducted under the SARFAESI Act, since there has no question of intentional under valuation of the property at a public auction and the judgment in Inspector General of Registration v. Kanagalakshmi Ganaguru, a reference was made to a Larger Bench in Dr.R..Thiagarajan v. Inspector General of Registration.

20. The Hon’ble Full Bench after an analysis of the law and the relevant provisions of the enactments involved upheld the judgment in Inspector General of Registration v.

Kanagalakshmi Ganaguru, while over ruling the judgment in the Inspector General of Registration v.

K.K.Thirumurugan. The conclusion of the Full Bench in Dr.R..Thiagarajan v. Inspector General of Registration, as follows:

“26. To summarize, our answer to the question referred to the Full Bench is as follows:

“We are of the considered view that the Sale Certificate issued by the Authorized Officer of the bank is liable for stamp duty under Article 18~C read with Article 23 of Schedule 1 of the Indian Stamp Act. In the event of under~valuation of the property, which is the subject matter of the Sale Certificate, the Registering Officer is entitled to proceed in accordance with Section 47~A of the Indian Stamp Act. Hence, we agree with the proposition laid down by the Division Bench of this Court W.P.(MD) No.3989 of 2017 in the unreported judgment of this Court dated 21.08.2017 made in W.A.(MD) No.3 of 2017

[cited supra] and, with respect, we are not agreeing with the view taken in the judgment reported in

2015(1) CTC 526 [cited supra].”

21. However in Esjaypee Impex Pvt Ltd v. Assistant General Manager and Authorised Officer, Canara Bank, which also went from this Court, the Hon’ble Supreme Court held that an Authorised Officer of the Bank under the SARFAESI Act, would be a Revenue Officer in terms of Section 17(2)(xii) read with Section 89(4) of the Registration Act. I have already extracted the relevant portion of the judgment of the Hon’ble Supreme Court in Esjaypee Impex Pvt Ltd v. Assistant General Manager and Authorised Officer, Canara Bank, which in my considered opinion effectively sets at naught the judgment of the Full Bench of this Court.
22. The conclusion of the Full Bench in

Dr.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 the Division Bench in Inspector General of Registration v.

Prakash Chand Jain, had followed the decision of the Full

Bench in Dr.R..Thiagarajan v. Inspector General of

Registration’s case.  Unfortunately the decision of the Hon’ble

Supreme Court in Esjaypee Impex Pvt Ltd v. Assistant General Manager and Authorised Officer, Canara Bank’s case which came to be delivered on 05.01.2021 was not brought to the notice of the Hon’ble Division Bench which decided in  Inspector General of Registration v.Prakash Chand Jain’s case.

24. Recently a Division Bench of this Court in Tripower

Properties Limited v. The Inspector General of Registration, 2021 SCC Online Mad 15097, G.Madhurambal v. Inspector General of Registration, W.P.No.24821 of 2021, dated 21.11.2021 and V.Krsihnamoorthy v.  Inspector General of Registration, W.P.No.20639 of 2021, dated 17.11.2021, had held that a sale by an officer appointed under the SARFAESI Act, would be exempt from registration and the Authorised Officer of a Bank would be a Revenue Officer. The Division Bench went a step ahead and held that a sale held by a Commissioner pursuant to a direction of this Court would also fall within ambit of Section 89(2) of the Registration Act. Of course it does not appear from the reports that the dictum of the Full Bench and other Division Benches of this Court were brought to the notice of the Hon’ble Division Bench which decided in Tripower Properties Limited v. Inspector General of Registration.

25. From the above discussion, it could be seen that 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, the law as it stands today is that an Authorised Officer, who conducts a sale under the provisions of the SARFAESI Act, would be a Revenue Officer and the certificate issued by him in evidence of such sale, would be a document which is not compulsorily registrable under Section 17(2)(xii) of the Registration Act. It would be sufficient, if the document is lodged with the Registrar under Section 89(4) to be filed by him in the Book-I maintained by him. The decisions of this Court in the Inspector General of Registration v. K.K.Thirumurugan, (Division Bench),

Inspector General of Registration v. Kanagalakshmi Ganaguru (Division Bench), Dr.R..Thiagarajan v. Inspector 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.46~CT 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 116~A 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 concerned, the State Government has fixed the registration charges at 1% under Section 78 of the Registration Act and the same has been published in the Tamil Nadu Government Gazette, as required under Section 79 of the Registration Act. By G.O.Ms.No.49 dated 08.06.2017, the following proviso was added to Article 1 of the table of the fees:

“Provided further that notwithstanding anything contained in this Table, in case of deeds of conveyance, exchange, gift and settlement among non-family members, the Registration Fee shall be levied at the rate of Rupees four per Rupees hundred or part thereof on the value or amount on which stamp duty under the Indian Stamp Act,

1899 (Central Act II of 1899) is payable.”

28. It is the contention of Mr.Sharath Chandran, learned counsel for the petitioner that the proviso would apply only in cases of deeds of conveyance, exchange, gift and settlement among non-family members. Inasmuch as a sale certificate would not amount to a conveyance, the registration fee payable would be as provided under Article 1 that is at 1% and nothing more. The judgment of this Court in Sakthi Foundations Pvt. Ltd., v Inspector General of Registration, W.P.Nos.18701 & 18702 of 2018, dated 22.03.2021, supports the contention of the learned counsel for the petitioner on this point. This Court after examining the language of the proviso had held that it would not apply to a sale certificate issued under SARFAESI Act. This renders the collection of registration charges at 4% from the petitioner also illegal.”
29. The said Judgment of the learned Judge has given a complete answer to all the queries that has arisen in this batch of cases, I am in complete agreement with the said view expressed by the learned Judge.
30. That apart after those Judgments still not satisfied with the said issue, the State preferred Special Leave to Appeal Civil No.16949 of 2022 in the matter of Inspector General of Registration and another v. G.Madhurambal and another. This SLP also arose out of the Judgment of a Division Bench made in Writ Appeal No.681 of 2022, dated 20.07.2022. While dealing with the said SLP, in a short order, the Hon’ble Supreme Court has reiterated their earlier stand where the law having been declared in  Esjaypee Impex Pvt., Ltd., case is In fact a note of caution has been made by the Hon’ble Supreme 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. MasaratunNissa (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 Authorised Officer, Canara Bank [(2021) 11 SCC 537)] opining that the mandate of law in terms of Section 17(2)(xii) read with Section 89(4) of the Registration Act, 1908 only required the Authorised Officer of the Bank under the SARFAESI Act to hand over the duly validated Sale Certificate to the Auction Purchase with a copy forwarded to the Registering

Authorities to be filed in Book I as per Section 89 of the Registration Act and order of this Court in M.A. No.19262/2021 in SLP(C) No.29752/2019 dated 29.10.2021 opining that once a direction is issued for the duly validated certificate to be issued to the auction purchaser with a copy forwarded to the registering authorities to be filed in Book I as per Section 89 of the Registration Act, it has the same effect as registration and obviates the requirement of any further action.

It is time that the authorities stop filing unnecessary special leave petitions only with the objective of attaining some kind of a final dismissal from this Court every time. Costs this time has been spared but will not be spared the next time.

The needful be done in terms of the impugned judgment(s) within 15 days from today.

The special leave petitions are dismissed.

Pending applications stand disposed of.”

26. Therefore it is not first time the Hon’ble Supreme Court has held so in respect of the law on Section 89(4) viz-a-viz Section 17(2)(xii) of the Registration Act, it has been reiterated again and again and last such order in Madurambal’s case, where the Hon’ble Supreme Court has gone to the extent of warning the State from filing any such Special Leave Petitions hereafter on the same issue.
27. Therefore as has been rightly pointed out by the learned counsel appearing for the petitioners, the issue raised herein has already been given a quietus by more number of decisions by the Hon’ble Apex Court. Therefore absolutely there can be any further room to get inroad in the issue to reopen the same once again. Hence the attempt made now even in this batch of cases by the State as argued by the learned Additional Advocate General is nothing but a vain attempt.
28. After this batch of writ petitions were heard and orders were reserved, it has been brought to the notice of this Court by the learned Special Government Pleader that, the Government of Tamil Nadu on

23.03.2023 had issued a Government 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 23^rd 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 ORDER OF THE GOVERNOR)”

The Appendix to this G.O is the notification to be issued in the Gazette, which reads thus :

“Under section 78 of the Registration Act, 1908 (Central Act XVI of 1908), the Governor of Tamil Nadu hereby makes the following amendment to the Table of Fees published with the erstwhile Judicial Department Notification No.177, dated the 30^th March 1909 at pages 316-319 of Part I of the Fort St. George Gazette, dated the 30^th March 1909, as subsequently amended.

2. The amendment hereby made shall come into force on the 23^rd March 2023.

AMENDMENT

In the said Table of Fees, after Article 4, the following

Article shall be inserted, namely : –

“4A Filing a Sale Certificate   Rupees eleven for every under sub-section (2) or  Rupees hundred or part sub-section (4) of section  thereof on the market 89 of the Act.   value of the property.”         B.JOTHI NIRMALASAMY

SECRETARY TO GOVERNMENT ”

29. By the said notification issued by the State Government, an amendment has been made, by which Article 4A has been inserted after Article 4 in the table of fees prepared under Section 78 of the Registration

Act, 1908.

30. Section 78 of the Act empowering the State Government toprepare a table of fees on various items like for the registration of documents, for searching the Registers etc. Accordingly in respect of registration of documents in Books 1 and 4, i.e., under Section 89(4) of the Act, the revised table of fees prepared under Section 78 of the Act and approved by the State Government was published for general information in accordance with the provisions of Section 79 of the Act, where there are several schedules given, now after schedule 4, a new schedule, i.e., 4A has been inserted by virtue of the said amendment as stated supra.

 

31. Under this new schedule 4A, filing a sale certificate under subsection (2) or sub-section (4) of Section 89 of the Act requires a fee, i.e., Rs.11/- for every rupees hundred or part thereof on the market value of the property. That means, 11% of fee to be paid by every sale certificate holder who seeks for filing of the same either under Section 89(2) or under Section

89(4).

32. If we look at the impact of these amendment in the context of thepresent cases, in all these cases, they have the sale certificate which they have filed before the Registering Authority for 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 Government, therefore the aforesaid amendment has come and Article 4A has been inserted.
36. By making these amendment, what they could not achieve directly by demanding a stamp duty of 7% and registration fee of 4% totally 11% now could be achieved by collecting in the name of filing fee of 11%.
37. Whether this kind of amendment could be permissible in view of the series of decision which has come from the law courts including the latest decisions from the Hon’ble Supreme Court of India, is altogether a different question which cannot be answered in this batch of cases, where, the validity of the said amendment has not been questioned herein, as the amendment has come only after hearing the arguments of this batch of cases.
38. But one thing can be noted here that, in the notification annexedto the G.O as stated supra, it has been made clear that, the amendment hereby made shall come into force on 23^rd March 2023. Therefore only from the date of issuance of the G.O.No.28, this amendment would come into

effect i.e., prospectively.

39. However, as far as these cases are concerned, in all these cases, the sale certificate had been issued earlier and those sale certificates have already been forwarded by the issuing authority or produced by the holders of the sale certificate for filing the same in Book No.1 under Section 89(4) of the Act and registration also though not compulsory, however sought for by the holders of the certificate and which was either refused or registered with demand of stamp duty and registration fee as discussed herein above.
40. Therefore all these things had happened well prior to the cut off date, i.e., 23.03.2023, ergo in my considered opinion, this amendment would not any way alter the situation in respect of this batch of cases.
41. However in future, i.e., from 23.03.2023 what shall be the effectof this amendment cannot be decided at this juncture for the reasons I have mentioned herein above as there has been no challenge to this amendment. Therefore that could be decided at the latter point of time in an appropriate

lis.

42. As far as this batch of cases are concerned, since this amendment would not have impact and the law already settled by the Hon’ble Supreme Court in the judgment cited supra would squarely govern the field and the decision of the learned Judge in Bell Tower Enterprises LLP’s case also would squarely cover this issue, these writ petitioners are entitled to succeed for their respective prayer sought for in this batch of cases.
43. In the result, all these writ petitions therefore are succeeded and the impugned orders in the respective writ petitions are set aside. As a sequel, there shall be a direction to the respective registering authorities to file the sale certificate in Book No.1 of the Registering Authority under Section 89(4) of the Registration Act and also the excess stamp duty or registration fee beyond what has been discussed herein above received from the respective petitioners shall be refunded to them with 6% interest from the date of receipt of the said amount till the date of payment.
44. With these directions, all these writ petitions are allowed. Consequently, connected miscellaneous petitions are closed. However, there shall be no order as to costs.

14.08.2023

Index : Yes

Speaking Order Neutral Citation : Yes tsvn

To

1. The Secretary to Government

State of Tamil Nadu

Commercial Taxes and Registration Department,     Secretariat, Fort St. George,     Chennai – 600 005.

2. The Inspector General of Registration

Office of the Inspector General of Registration,     100, Santhome High Road,     Santhome, Chennai – 600 004.

3. The Sub Registrar

Pammal,

Office of the Sub Registrar, Pammal,     Chennai.

4. The District Registrar

Tindivanam Registration District,     Tindivanam – 604 001,     Villupuram District.

5. The Sub-Registrar

Sub-Registrar Office,

Marakkanam,

Villupuram District.

6. The Special Deputy Collector (Stamps) Collectorate Buildings,   
7. The Sub-Registrar

Oothukottai,

Thiruvallur District.

8. The Competent Authority and District Revenue Officer

Greater Chennai Corporation (Land & Estate Department)     Ripon Building,     Chennai – 600 003.

9. The Sub-Registrar

Mylapore Sub-Registrar Office,

No.9, Kavingnar Bharathidasan Road,       Seetammal Colony, MIG Colony,       Alwarpet, Chennai – 600 018.

10. The Sub Registrar

Poonamallee Sub Registrar Office,       Poonamallee, Chennai – 600 056.

R.SURESH KUMAR, J.

tsvn

  Common order in

        W.P.Nos.32749, 32861, 33019, 33020 & 34897 of 2022       and 1862 & 3195 of 2023

                        14.08.2023