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The Oriental Bank of Commerce Ltd. Vs. Raj Kumar and Company and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberElection Appeal No. 130 of 1976 and Execution Appeal No. 53 of 1970
Judge
Reported inILR1977Delhi228
ActsDelhi Municipal Corporation Act, 1957 - Sections 147
AppellantThe Oriental Bank of Commerce Ltd.
RespondentRaj Kumar and Company and ors.
Advocates: Arun Mohan,; R.B. Datar and; Sanjeev Aggarwal, Advs
Excerpt:
.....of the delhi municipal corporation act. it shall have to be recovered by the registrar, when the sale certificate is presented to him for registration, and in the event of the auction purchaser omitting to present the sale certificate for registration, by the corporation itself by the adoption of such coercive process as may be available to it.; on the question, whether no transfer duty was livable on a sale certificate issued under order xxi, rule 94, c.p.c., because a sale certificate issued by a civil court is not compulsorily registrable, the court concluded that no decision was necessary for the purposes of the present application. - - (b) section 64 of the said act shall be read as if it referred to the corporation as well as the government. shri arun mohan as well as the..........to ascertain the amount of non-judicial stamp to be furnished by him for the preparation of a sale-certificate he was told that he would have to pay in addition to the duty at the rate of 3 per cent under the stamp act, 1899, surcharge imposed by the municipal corporation of delhi under section 147 of the delhi municipal corporation act, 1957, at the rate of 5 per cent. this application has now been made by the auction-purchaser under section 151 of the code of civil procedure submitting that when the sale is made under the orders of and confirmed by the court the transfer is complete, it is not to be brought about by the certificate of sale and no transfer duty is as such payable in respect of the said certificate. in any case it is not the function of the registry, it is further.....
Judgment:

M.S. Joshi, J.

(1) Gian Chand Jain purchased property built on plot No. 95, Block No. 5-C, Western Extension Area, Karol Bagh, New Delhi, at a public auction held in execution of a decree for Rs. 57,000.00 on 28th October, 1971 and the sale was confirmed by the High Court on 6th August, 1973. When he approached the Registry to ascertain the amount of non-judicial stamp to be furnished by him for the preparation of a sale-certificate he was told that he would have to pay in addition to the duty at the rate of 3 per cent under the Stamp Act, 1899, surcharge imposed by the Municipal Corporation of Delhi under Section 147 of the Delhi Municipal Corporation Act, 1957, at the rate of 5 per cent. This application has now been made by the auction-purchaser under section 151 of the Code of Civil Procedure submitting that when the sale is made under the orders of and confirmed by the Court the transfer is complete, it is not to be brought about by the certificate of sale and no transfer duty is as such payable in respect of the said certificate. In any case it is not the function of the Registry, it is further urged, to levy the aforesaid transfer duty and the sale certificate should be given to him on his providing stamps in accordance with the provisions of the Stamp Act.

(2) The learned counsel appearing for the Municipal Corporation contends on the other hand that the duty on sale of immovable property is payable under Section 147 of the Delhi Municipal Corporation Act which provision is in the following terms :

'147.(1) Save as otherwise provided in this Act, the Corporation shall levy a duty on transfers of immovable property situated within the limits of Delhi in accordance with the provisions hereafter in this section contained. (2) The said duty shall be levied (a) in the form of a surcharge on the duty imposed by the Indian Stamp Act, 1899, as in force for the time being in the Union territory of Delhi, on every instrument of the description specified below, and (b) at such rate as may be determined by the Corporation not exceeding five per cent, on the amount specified below against such instruments : Description of Amount on which duty should be levied. Instrument (1) Sale of The amount or value of the consi immovable deration for the sale, as set forth in property, the instrument. * * * *'

The rate referred to in clause (b) aforesaid has been fixed at 5 per cent vide Resolution No. 680 passed in the Adjourned Special Meeting of the Municipal Corporation of Delhi on 11th February, 1970.

(3) Section 148 then provides that 'on the introduction of the duty on transfer of property......

(A) section 27 of the Indian Stamp Act, 1899, as in force in Delhi shall be read as if it specifically required the particulars to be set forth separately in respect of property situated within and without Delhi;

(B) section 64 of the said Act shall be read as if it referred to the Corporation as well as the Government.'

(4) Section 27 of the Stamp Act stipulates setting forth in the instrument chargeable with ad valorem stamp duty, the consideration and all other facts and circumstances affecting the chargeability or the amount of duly with which it is chargeable. The amendment of this Section by Section 148 of the Delhi Municipal Corporation Act ensures detailing of the requisite particulars separately in respect of property situated within and without Delhi. Section 64 of the Stamp Act reads as under :

'64.Any person who, with intent to defraud the Government (a) execute any instrument in which all the facts and circumstances required by section 27 to be set forth in such instrument are not fully and truly set forth; or (b) being employed or concerned in or about the preparation of any instrument, neglects or omits fully and truly to set forth therein all such facts and circumstances; or (e) does any other act calculated to deprive the Government of any duty or penalty under this Act; shall be punishable with fine which may extend to five thousand rupees.'

(5) By virtue of its amendment by Section 148 of the Delhi Muniucipal Corporation Act Section 64 of the Stamp Act shall apply to a person who does any of the acts mentioned in it to defraud the Delhi Municipal Corporation. According to the counsel for the Delhi Municipal Corporation the Registry is bound under clause (b) of Section 64 to recover the transfer duty levied by the Corporation under Section 147 of the Delhi Municipal Corporation Act, 1957. I find this plea, however, to be wholly wide the mark. A person employed or concerned in or about the preparation of an instrument shall be punishable with fine which may extend to five thousand rupees if he neglects or omits fully and truly to set forth therein all such facts and circumstances as are required by Section 64 to be set forth in the instrument with intent to defraud the Delhi Municipal Corporation The Registry prepares the certificate of sale in the form prescribed by the Code of Civil Procedure and if the requirements of the said Code are duly complied with its omission to set out any particular detail in the certificate will not amount to something done with intent to defraud the Municipal Corporation. Even if it is assumed that section 64 of the Stamp Act enjoins upon the Registry to enter the consideration for the sale in the sale certificate (though there is no column provided thereforee in the prescribed form) and the Registry thus specifies the consideration in the sale certificate prepared by it, it would be under no obligation to collect the transfer duty on behalf of the Delhi Municipal Corporation.

(6) The counsel for the Municipal Corporation has relied on section 152 of the Delhi Municipal Corporation Act which stipulates that 'save as otherwise provided in this Act, any tax levied under this Act shall be payable on such dates, in such number of Installments and in such manner as may determine by bye-laws made in this behalf'. The Municipal Corporation has framed bye-laws under Section 481(1) of the Delhi Municipal Corporation Act bearing on the subject under consideration entitled 'The Delhi Municipal Corporation (Duty on Transfer of Property) Bye-laws, 1960'. In these bye-laws 'transfer duty' is defined as 'the duty on transfer of immovable property levied by the Corporation under Section 147. As per bye-law 3 the transfer duty shall be paid to the Registrar along with the duty imposed by the Indian Stamp Act, 1899, on the instrument relating to the transfer Bye-law 4 commands the Registrar to refuse to register any instrument in respect of which the transfer duty is not paid. As already stated the manner of recovery of the transfer duty was to be prescribed by the Corporation as contemplated by Section 152 of the Delhi Municipal Corporation Act, 1957 and its bye-laws framed for the specific purpose lay down that the said duty shall be paid to the Registrar along with the stamp duty imposed by the Indian Stamp Act. The function which has been assigned by the statutory bye-laws to the Registrar cannot be taken upon itself by the Registry of the High Court. If the auction-purchaser does not care to pay the transfer duty levied by the Corporation under Section 147 of the Delhi Municipal Corporation Act at the time of the preparation of the sale certificate, it shall have to be paid by him at the time he produces the sale certificate before the Registrar to get it registered. Moreover, it is provided by Section 89(2) of the Registration Act, 1908 that 'every Court granting a certificate of sale of immovable property under the Code of Civil Procedure, 1908, shall send a copy of such certificate to the registering officer within the local limits of whose jurisdiction the whole or any part of the immovable property comprised in such certificate is situate, and such officer shall file the copy in his Book No. 1.' So even if the auction purchaser fails to present the sale certificate to him for registration, the Registrar will get intimation of his acquisition of the property from the Court under the aforesaid provision and he may take such further action towards recovery of the transfer duty as is deemed proper.

(7) It has been pointed out by the counsel for the Corporation that the transfer duty is levied on transfer of properties under clause (e) of sub-section (1) of Section 113 of the Delhi Municipal Corporation Act. Under Section 128(1) of the Delhi Municipal Corporation Act, 'whenever the title of any person primarily liable for the payment of property taxes on any land or building is transferred, the person whose title is transferred and the person to whom the same is transferred shall within three months after the execution of the instrument of transfer or after its registration, if it is registered, or after the transfer is effected, if no instrument is executed, give notice of such transfer in writing to the Commissioner'. Omission to give the notice is an offence punishable under Section 461 read with Scheduled XII. It is submitted by the counsel for the auction purchaser that the notice contemplated by Section 128 has already been given to the Corporation and this fact is not denied by the Corporation's counsel. If any transfer duty is livable by the Corporation it can avail of the relevant provisions of the law to recover the same from the auction purchaser in pursuance of the notice received by it. When the duty is levied or assessed the auction purchaser may. if aggrieved by such levy or assessment, appeal to the District Judge under section 169. Should our Registry insist on issuing a certificate of sale only on the payment of the additional stamp duty the auction-purchaser would be left with no right of appeal.

(8) The conclusion to which I am led by the consideration of the various provisions of law is that the Registry cannot compel an auction purchaser to pay the transfer duty livable under Section 147 of the Delhi Municipal Corporation Act. It shall have to be recovered by the Registrar when the sale certificate is presented to him for registration and in the event of the auction purchaser omitting to present the sale certificate for registration by the Corporation itself by adoption of such coercive process as may be available to it. The application is, thereforee, granted and the Registry is directed to issue the sale certificate even if the auction purchaser chooses not to pay the transfer duty at this stage.

(9) It was urged by Shri Mohan, the auction purchaser's learned counsel, that no transfer duty under Section 147 of the Delhi Municipal Corporation Act is livable on a sale certificate issued under the provisions of Order 21 rule 94 of the Code of Civil Procedure because it is not an instrument of sale of immovable property within the meaning of the said section and that because a sale certificate issued by a civil court is not compulsorily registrable vide section 17(1)(xii) of the Registration Act as a necessary consequence no transfer duty can be recovered in respect of the transfer to which it relates. Shri Arun Mohan as well as the learned Advocate appearing for the Delhi Municipal Corporation, however, agreed that it is not necessary to give a decision on the said contention for the purposes of the present application and both those pleas have, thereforee, been left undisposed of.


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