Case Note & Summary
The petitioner, Chhatrapati Sambhaji Maharaj Sahakari Patsanstha Maryadit, a credit society registered under the Maharashtra Cooperative Societies Act, 1960, obtained a Recovery Certificate under Section 101 of the Act against a borrower. In execution, the borrower's property was attached, and on 26th October 2009, the Assistant Registrar of Cooperative Societies passed an order under Section 100 read with Rule 85(5) of the Maharashtra Cooperative Societies Rules, 1961, transferring the attached property to the petitioner. Subsequently, on 9th November 2011, the Collector, Satara, passed an order purportedly under Section 100, directing the Assistant Registrar to execute a registered document of transfer and recover stamp duty under Article 25 of the Bombay Stamps Act, 1958, based on the market value of the property or the amount due under the Recovery Certificate, whichever was higher. The petitioner challenged this order. The petitioner argued that a transfer under Section 100 does not amount to a sale or conveyance, relying on the decision in Balkisan Manekchand Zaver v. Jalgaon People's Cooperative Bank Ltd., and that the Collector had no power to impose stamp duty under Section 100. The respondent argued that the transfer effectively constitutes a sale. The court examined Section 100 of the Maharashtra Cooperative Societies Act, which provides for transfer of property that cannot be sold, and noted that the transferee holds the property as a trustee. The court held that such a transfer is not a sale or conveyance and does not attract Article 25 of the Bombay Stamps Act. The Collector's order was quashed and set aside, and the petition was allowed.
Headnote
A) Cooperative Societies Act - Transfer of Property - Section 100 Maharashtra Cooperative Societies Act, 1960 - Stamp Duty - The transfer of property under Section 100 of the Maharashtra Cooperative Societies Act, 1960 does not amount to a sale or conveyance; therefore, Article 25 of Schedule I of the Bombay Stamps Act, 1958 is not attracted. The Collector has no power under Section 100 to direct payment of stamp duty. The transferee holds the property as a trustee. (Paras 3-8) B) Stamp Act - Conveyance - Article 25 Bombay Stamps Act, 1958 - Applicability - Article 25 of the Bombay Stamps Act, 1958 applies only to a 'conveyance' as defined in the Act. A transfer under Section 100 of the Maharashtra Cooperative Societies Act, 1960 is not a conveyance but a statutory transfer in execution of a recovery certificate, and hence no stamp duty is leviable. (Paras 5-8)
Issue of Consideration
Whether a transfer of property under Section 100 of the Maharashtra Cooperative Societies Act, 1960 amounts to a sale or conveyance attracting stamp duty under Article 25 of the Bombay Stamps Act, 1958, and whether the Collector has the power to direct payment of stamp duty under Section 100.
Final Decision
The impugned order dated 9th November 2011 passed by the Collector, Satara, is quashed and set aside. The Writ Petition is allowed.
Law Points
- Transfer under Section 100 of Maharashtra Cooperative Societies Act is not a sale or conveyance
- Article 25 of Bombay Stamps Act not attracted
- Collector has no power to impose stamp duty under Section 100
- Property held as trustee by credit society
