Case Note & Summary
The petitioner, Deepti Kavit Ved, desired to purchase Flat No.707, 'B' Wing, Nishchy Building for a total consideration of Rs.74 Lakhs from M/s. Shreeraj Developers LLP. On 29th June 2020, she paid stamp duty of Rs.3,70,000/- and registration fees of Rs.30,000/- via e-challan. However, due to family constraints and the outbreak of the Covid-19 pandemic, she conveyed her inability to proceed with the purchase in November 2020, to which the developer agreed. Consequently, the proposed agreement of sale was never executed. In January 2021, the petitioner attempted to lodge an online claim for refund on the Collector's portal but the portal did not accept the claim. She then made a written application to the Collector of Stamps, Bombay Suburban District (Borivali) on 15th March 2021, requesting a refund of the stamp duty and registration fees. The Collector failed to take any decision on her application. The petitioner filed a writ petition seeking a direction to the Collector to consider and decide her application. The court noted that the Collector had not exercised jurisdiction under Section 52 read with 52A of the Maharashtra Stamp Act, 1958 and Rule 21 of the Bombay Stamp Act Rules, 1939. The court held that the Collector is obliged to consider the application and pass appropriate orders. Accordingly, the court directed the Collector to decide the petitioner's application within four weeks from the date of the order, after giving an opportunity of hearing to the petitioner and the developer. The petition was disposed of with no order as to costs.
Headnote
A) Stamp Duty - Refund - Unconsummated Agreement - Section 52 read with 52A of Maharashtra Stamp Act, 1958 and Rule 21 of Bombay Stamp Act Rules, 1939 - Petitioner paid stamp duty and registration fees for purchase of flat but transaction fell through due to family constraints and Covid-19 pandemic; no agreement was executed - Petitioner applied for refund but Collector failed to decide - Court held that Collector has jurisdiction to consider refund under Section 52/52A and directed Collector to decide application within four weeks after hearing parties (Paras 1-7).
Issue of Consideration
Whether the Collector of Stamps is obliged to consider and decide the petitioner's application for refund of stamp duty paid on a proposed sale agreement that was not executed due to family constraints and the Covid-19 pandemic.
Final Decision
The court directed the Collector of Stamps, Bombay Suburban District (Borivali) to decide the petitioner's application dated 15th March 2021 within four weeks from the date of the order, after giving an opportunity of hearing to the petitioner and the developer. The petition was disposed of with no order as to costs.
Law Points
- Refund of stamp duty
- Unconsummated agreement
- Section 52 Maharashtra Stamp Act
- 1958
- Section 52A Maharashtra Stamp Act
- Rule 21 Bombay Stamp Act Rules 1939
- Covid-19 pandemic
- Failure of consideration
- No instrument executed
Case Details
2023 LawText (BOM) (01) 186
WRIT PETITION NO.1280 OF 2022
Mr. Rajesh L. Shethia with Mr. Chetan R. Shah and Chetan Dharod for the Petitioner, Mr. S.B.Gore, Assistant Government Pleader for Respondent Nos.1 and 2
District Collector Borivali & Anr.
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Nature of Litigation
Writ petition seeking direction to Collector of Stamps to consider application for refund of stamp duty and registration fees paid on a proposed sale agreement that was not executed.
Remedy Sought
Petitioner sought a writ of mandamus directing the Collector to consider and decide her application for refund of stamp duty and registration fees.
Filing Reason
Collector failed to decide petitioner's application for refund of stamp duty and registration fees paid on a proposed sale agreement that fell through due to family constraints and Covid-19 pandemic.
Issues
Whether the Collector of Stamps is obliged to consider and decide the petitioner's application for refund of stamp duty paid on a proposed sale agreement that was not executed.
Submissions/Arguments
Petitioner argued that the Collector failed to exercise jurisdiction under Section 52 read with 52A of the Maharashtra Stamp Act, 1958 and Rule 21 of the Bombay Stamp Act Rules, 1939.
Respondents did not file any reply and the Assistant Government Pleader submitted that the Collector would consider the application.
Ratio Decidendi
The Collector of Stamps has jurisdiction under Section 52 read with 52A of the Maharashtra Stamp Act, 1958 and Rule 21 of the Bombay Stamp Act Rules, 1939 to consider an application for refund of stamp duty where no instrument has been executed and the transaction has not been completed. The Collector is obliged to consider such application and pass appropriate orders after hearing the parties.
Judgment Excerpts
The, Collector of Stamps, Bombay Suburban District (Borivali) having failed to exercise the jurisdiction under Section 52 read with 52A of the Maharashtra Stamp Act, 1958 read with Rule 21 of the Bombay Stamp Act Rules 1939, this Petition is filed.
Petitioner desired to purchase Flat No.707, ‘B’ Wing, Nishchy Building for total consideration of Rs.74 Lakhs.
Due to certain family constraints and the then out-break of Covid pandemic, petitioner conveyed, in the month of November, 2020 her inability to proceed with said purchase, to which said Shreeraj Developers LLP, agreed and as a result, proposed agreement of sale did not come to be executed.
The Collector is directed to decide the petitioner's application dated 15th March, 2021 within four weeks from today, after giving an opportunity of hearing to the petitioner and the developer.
Procedural History
Petitioner paid stamp duty and registration fees on 29th June 2020 for purchase of flat. Transaction fell through in November 2020. Petitioner applied for refund online in January 2021 but portal did not accept claim. Petitioner made written application to Collector on 15th March 2021. Collector failed to decide. Petitioner filed Writ Petition No.1280 of 2022 in Bombay High Court. Court reserved judgment on 2nd January 2023 and pronounced on 7th January 2023.
Acts & Sections
- Maharashtra Stamp Act, 1958: Section 52, Section 52A
- Bombay Stamp Act Rules, 1939: Rule 21
