Case Note & Summary
The petitioner, Satish Buba Shetty, a retired bank official, entered into an Agreement to Purchase a flat with M/s. Vijaykamal Properties Private Limited on 10th November 2014. The agreement was registered on 19th November 2014, and stamp duty of Rs. 4,76,000/- along with registration charges of Rs. 30,000/- was paid. The developer agreed to deliver possession by 30th June 2017 but failed to do so. The petitioner approached the Real Estate Regulatory Authority (RERA), which on 26th December 2017 directed the developer to refund the consideration and execute a Deed of Cancellation. Due to non-compliance, the petitioner filed an Execution Application under Section 63 of the Real Estate (Regulation and Development) Act, 2016, and RERA imposed a penalty of Rs. 5,000/- per day on the developer. The petitioner then applied for refund of stamp duty under Section 48 of the Maharashtra Stamp Act, 1958, which was rejected by the Collector of Stamps, Borivali on 27th April 2021. The appeal before the Chief Controlling Revenue Authority, Maharashtra State, Pune was dismissed on 9th February 2022. The petitioner challenged these orders by way of a writ petition under Article 227 of the Constitution of India. The High Court allowed the petition, holding that since no conveyance deed was executed and the agreement was cancelled due to the developer's default, the petitioner is entitled to refund of stamp duty under Section 48 of the Maharashtra Stamp Act, 1958. The impugned orders were quashed and set aside, and the respondents were directed to refund the stamp duty of Rs. 4,76,000/- to the petitioner within eight weeks.
Headnote
A) Stamp Duty - Refund - Section 48 Maharashtra Stamp Act, 1958 - Cancellation of Agreement - The petitioner entered into an agreement to purchase a flat, paid stamp duty, but the developer failed to deliver possession. RERA ordered cancellation and refund. The petitioner sought refund of stamp duty under Section 48. The Collector and Chief Controlling Revenue Authority rejected the claim. The High Court held that since no conveyance deed was executed and the agreement was cancelled due to developer's default, the petitioner is entitled to refund of stamp duty under Section 48. (Paras 1-10)
Issue of Consideration
Whether the petitioner is entitled to refund of stamp duty under Section 48 of the Maharashtra Stamp Act, 1958 when the agreement to purchase was cancelled due to the developer's default and no conveyance deed was executed.
Final Decision
The High Court allowed the writ petition, quashed and set aside the impugned orders dated 27th April 2021 and 9th February 2022, and directed the respondents to refund the stamp duty of Rs. 4,76,000/- to the petitioner within eight weeks.
Law Points
- Refund of stamp duty
- Section 48 Maharashtra Stamp Act
- 1958
- Cancellation of agreement
- Developer default
- RERA order
- No conveyance deed executed
Case Details
2024 LawText (BOM) (01) 121
Writ Petition No.9657 of 2022
Mr. Rishi Bhatt a/w. Mr. C.K. Mhatre i/b. Mr. Sameer Khedekar, for the Petitioner. Mr. S.H. Kankal, AGP for the Respondents-State.
Inspector General of Registration and Collector of Stamps and Others
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Nature of Litigation
Writ petition under Article 227 of the Constitution of India challenging orders rejecting refund of stamp duty.
Remedy Sought
Refund of stamp duty of Rs. 4,76,000/- paid on an agreement to purchase a flat that was cancelled due to developer's default.
Filing Reason
The petitioner paid stamp duty on an agreement to purchase a flat, but the developer failed to deliver possession and the agreement was cancelled by RERA. The petitioner sought refund of stamp duty under Section 48 of the Maharashtra Stamp Act, 1958, which was rejected by the Collector and the Chief Controlling Revenue Authority.
Previous Decisions
The Collector of Stamps, Borivali rejected the refund claim on 27th April 2021. The Chief Controlling Revenue Authority, Maharashtra State, Pune dismissed the appeal on 9th February 2022.
Issues
Whether the petitioner is entitled to refund of stamp duty under Section 48 of the Maharashtra Stamp Act, 1958 when the agreement to purchase was cancelled due to developer's default and no conveyance deed was executed.
Submissions/Arguments
The petitioner argued that since no conveyance deed was executed and the agreement was cancelled due to the developer's default, he is entitled to refund of stamp duty under Section 48 of the Maharashtra Stamp Act, 1958.
The respondents opposed the refund, contending that the agreement was not cancelled but only the consideration was refunded, and the stamp duty was not refundable.
Ratio Decidendi
Under Section 48 of the Maharashtra Stamp Act, 1958, when an agreement to purchase is cancelled without execution of a conveyance deed, the stamp duty paid is refundable. The developer's default leading to cancellation does not disentitle the purchaser to refund.
Judgment Excerpts
By this petition under Article 227 of the Constitution of India, the petitioner assails the legality, propriety and correctness of an order dated 9th February, 2022 passed by the Chief Controlling Revenue Authority, Maharashtra State, Pune in Appeal No. 111 of 2021 whereby the Chief Controlling Revenue Authority was persuaded to dismiss the appeal under section 53(1A) of the Maharashtra Stamp Act, 1958 by affirming the order dated 27th April, 2021 passed by the Collector of Stamps, Borivali declining refund of the stamp duty under section 48 of the Stamp Act, 1958.
Procedural History
The petitioner entered into an agreement to purchase a flat on 10th November 2014, registered on 19th November 2014, paying stamp duty of Rs. 4,76,000/-. The developer failed to deliver possession. RERA ordered cancellation and refund on 26th December 2017. The petitioner applied for refund of stamp duty under Section 48 of the Maharashtra Stamp Act, 1958. The Collector rejected the claim on 27th April 2021. The appeal before the Chief Controlling Revenue Authority was dismissed on 9th February 2022. The petitioner then filed the present writ petition under Article 227 of the Constitution of India.
Acts & Sections
- Maharashtra Stamp Act, 1958: 48, 53(1A)
- Real Estate (Regulation and Development) Act, 2016: 63
- Constitution of India: 227
