*THE HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY + WRIT PETITION No.18026 of 2010 % Dated: 07-09-2010 # Smt. Nirmala Baldwa & others. … Petitioners VERSUS $ Govt., of A.P., rep., by Inspector General of Stamps & Registration, Hyderabad and others. … Respondents ! Counsel for the petitioners : Smt. V. Dyumani ^ Counsel for respondents 1-3: AGP for Revenue <GIST: > HEAD NOTE: ? Cases referred 1. AIR 2007 Andhra Pradesh 196 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE SEVENTH DAY OF SEPTEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.18026 of 2010 Between: Smt. Nirmala Baldwa & others. … Petitioners And Govt., of A.P., rep., by Inspector General of Stamps & Registration, Hyderabad & others. … Respondents Counsel for the Petitioners: Smt. V. Dyumani Counsel for respondents 1-3: AGP for Revenue The Court made the following: THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.18026 of 2010 ORDER: This writ petition is filed for a Mandamus to set aside notices dated 16.06.2010 and 30.01.2010, whereby the petitioners are called upon to pay Rs.6,49,000/- towards deficit stamp duty and registration fees on the Memorandum confirming deposit of the title deeds dated 28.03.2008. The petitioners sought for a consequential direction to respondent Nos.2 and 3 to register the Memorandum of deposit of title deeds, dated 28.03.2008 by collecting the stamp duty as per the provisions of Article 7 of Schedule IA of the Indian Stamp Act, 1899 (for short, “the 1899 Act”) as amended by A.P. Stamp Act 19 of 2005. The petitioners have executed a deed in favour of respondent No.4 Bank in connection with a loan transaction. The said instrument is titled as “Memorandum confirming deposit of the title deeds”. When this instrument was presented for registration, respondent No.3 issued the abovementioned two notices calling upon the petitioners to deposit the deficit stamp duty by treating the instrument as a simple mortgage deed. Smt. V. Dyumani, learned counsel for the petitioners, submitted that the recitals of the instrument in question prove beyond any cavil of doubt that the said instrument is a document evidencing deposit of title deeds and not a simple mortgage, as defined under Section 58(b) of the Transfer of Property Act, 1882 (for short, “the 1882 Act”). In support of her contention, the learned counsel placed reliance on the judgment of this Court in M/s. Siddhi Vegetable Oil Products and another vs. Government of A.P., and others[1]. Learned Assistant Government Pleader for Revenue, while supporting the stand of the respondents taken in the impugned proceedings as well as their counter affidavit, placed reliance on clause 7 of the Instrument, which reads as under: “The properties mentioned in Second Schedule herein below are not subject to any prior encumbrances, charges or claims or attachments or any claims on any account whatsoever except the mortgage in favour of the Bank.” On the basis of the above recital of clause 7, the learned Assistant Government Pleader submitted that the Instrument presented by the petitioners falls under Article 35(b) of Schedule IA and not under Article 7(a) of the 1899 Act. In order to resolve this controversy, it is necessary to consider the recitals of the Instrument and also the relevant Articles of Schedule IA. As regards the Instrument, as noted above, it is styled as “Memorandum confirming deposit of title deeds as a security for repayment of money advanced or to be advanced”. The only ground on which the respondents have treated this document as a simple mortgage is clause 7, as reproduced above. The 1882 Act has classified ‘mortgage’ into six categories. ‘Simple mortgage’ falls under clause (b) while “Mortgage by deposit of title-deeds” falls under clause (f). Under ‘Simple Mortgage’, without delivering possession of the mortgaged property, the mortgager binds himself personally to pay the mortgage money and agrees, expressly or impliedly, that in the event of his failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary, in payment of the mortgage money. Under “Mortgage by deposit of title-deeds”, the mortgager delivers to the creditor or his agent documents of title to immovable property with intent to create a security thereon. A careful perusal of the recitals of the Instrument in question would reveal that the same was executed with intent to deposit the title deeds by the mortgager to enable the mortgagee to secure the amount proposed to be advanced. Mere mentioning of the word “Mortgage” would not change the character of the Instrument inasmuch as even the deposit of the title deeds also, as noted above, is one kind of mortgage. But, the Parliament in its wisdom has stipulated different sets of stamp duty for these two kinds of mortgages. If the Instrument pertains to deposit of title deeds, Article 7 of Schedule IA is attracted, while in case of other mortgages, Article 35(b) is applied. On a careful consideration of the nature of the document and the legal provisions, as discussed above, I am of the considered opinion that the Instrument in question attracts Article 7 of Schedule IA of the 1899 Act and therefore the petitioners are not liable to pay the stamp duty demanded by the respondents. My view of this stands fortified by the judgment of this Court in M/s. Siddhi Vegetable Oil Products and another (supra). For the abovementioned reasons, the writ petition is allowed and respondent Nos.2 and 3 are directed to register the Instrument in question by collecting the stamp duty as per the provisions of Article 7 of Schedule IA of the 1899 Act. As a sequel to disposal of the writ petition as in the manner indicated above, WPMP.Nos.22781 and 22782 of 2010 are disposed of as infructuous. __________________________ C.V.NAGARJUNA REDDY, J Date: 07.09.2010. ES LR copies to be marked. [1] AIR 2007 Andhra Pradesh 196