IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 27TH MARCH 2009 / 6TH CHAITHRA 1931 WP(C).No. 5317 of 2007(G) ------------------------------------ PETITIONER(S): ----------------------- K.T.ABDUL SALAM, S/O.ABDUL KAREEM, AGED 31 YEARS, RESIDING AT KARALIKKATTIL THANDUPURAMKKAL HOUSE, WANDOOR AMSOM, MALAPPURAM DISTRICT. BY ADVS. MR.SURAJ.S MR.RAHEESH BABU MR.S.NITHIN MR.K.S.SARATH KUMAR RESPONDENT(S): ----------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY,DEPARTMENT OF REVENUE, SECRETARIT, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, MALAPPURAM. 3. THAHASILDAR, ERNAD TALUK OFFICE,MANJERI. BY GOVT. PLEADER MR.V.TEKCHAND THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.5317/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER DT. 19.3.05 IN EA. 283/04 IN EP. 18/02 OF THE HONOURABLE SUB COURT, MANJERI. P2:- COPY OF THE ORDER NO.D.2.8021/05 DT. 5.2.06 OF THE 3RD RESPONDENT. P3:- COPY OF THE REPRESENTATION DT. 4.8.06 SUBMITTED TO THE IST RESPONDENT. TRUE COPY P.S. TO JUDGE TSS P.R. RAMACHANDRA MENON J. (CR) ~~~~~~~~~~~~~~~~~~~~~~~ W.P. (C) No. 5317 Of 2007 ~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 27th day of March, 2009 JUDGMENT Petitioner challenges Ext.P2 order passed by the third respondent whereby the application submitted by him for refund of the stamp value was rejected, stating it as belated. 2. The petitioner purchased 10 ¼ cents of property situated in R.S. No. 31/20 in Perinthalmanna, which was auctioned by the Sub Court, Manjeri on 14.1.2004 in E.P. 18 of 2002 in O.S. 175 of 1996. The petitioner/successful bidder in the auction deposited the prescribed sale consideration of Rs.8,50,000/- and another sum of Rs. 40,005/- for the purchase of the stamp papers. 3. Subsequently, the petitioner came to know that the judgment debtor was not having exclusive title or ownership over the property and that he had only 1/3rd right over the same; which made the petitioner to approach the Execution Court with a petition (E.A. 283/2004) seeking to set aside the sale on the ground of fraud and material irregularity in conducting the sale, as a result of the collusion pursued between the decree holder and the judgment debtor. 4. After considering the relevant facts and figures, the Sub Court allowed the petition filed by the petitioner as per Ext.P1 order dated 19.3.2005 setting aside the sale and ordering repayment of the WPC No. 5317 of 2007 : 2 : purchase money together with interest @ 6 % p.a. and cost enabling to have it realized from the decree holder who concealed the material facts in publishing the proclamation and conducting the sale. Then the petitioner filed an application dated 27.7.2005 before the Sub Court, Manjery for returning the amount deposited towards the sale consideration and also for refund of the sum of Rs.40,005/- paid as cost for the stamp papers. It is submitted that the learned Sub Judge forwarded the application for refunding the stamp value in respect of the stamp papers bearing No. 737 – 739 dated 9.8.2004 to the third respondent, who considered the matter and passed Ext.P2 order stating that the request could not be accepted because it was belated, sustainability of which is in dispute in the present writ petition. 5. The learned counsel for the petitioner submits that the sale was set aside only on 19.3.2005 and as such, the application dated 27.7.2005 claiming refund of the stamp value should have been entertained and granted by the third respondent as the prescribed period of 'six months' is liable to be reckoned only with due regard to the date of cancellation of the sale and the date of application for refund. The date of set asiding the sale (19.3.2005) and the date of application (27.7.2005), obviously since are within a span of 6 months, the third respondent was not at all right in rejecting the claim for refund WPC No. 5317 of 2007 : 3 : as per Ext.P2, submits the learned counsel. 6. The refund of stamp value is clearly dealt with under Section 52 of Kerala Stamp Act 1959 which is extracted below: 52. Allowance for stamps not required for use – when any person is possessed of a stamp or stamps which have not been spoiled or rendered unfit or useless for the purpose intended but for which he has no immediate use, the Collector shall repay to such person the value of stamp or stamps in money, deducting six paise for each rupee or portion of a rupee, upon such person delivering up the same to be cancelled, and proving to the Collector's satisfaction - (a) that such stamp or stamps were purchased by such person with a bona fide intention to use them; and (b) that he has paid the full price thereof; and (c) that they were so purchased within the period of six months next preceding the date on which they were so delivered. Provided that, where the person is a licensed vendor of stamps, the Collector may, if he thinks fit, make the repayment of the sum actually paid by the vendor without any such deduction as aforesaid. Section 52 (c) of the Act clearly stipulates that, for enabling the party to obtain refund of stamp value, it should have been purchased within a period of six months next preceding to the date on which they WPC No. 5317 of 2007 : 4 : were so delivered. In the instant case, admittedly the date of purchase of the stamp papers was on 9.8.2004; whereas the date of application for refund was made on 27.7.2005. Obviously, it is much beyond the prescribed period of six months and hence, there is absolutely no merit in the contention put forth by the petitioner against the finding and reasoning given in Ext.P2. 7. The writ petition fails, accordingly it is dismissed. However, it is made clear that, this is without prejudice to the right of the petitioner, if any, to proceed against the decree holder or judgment debtor as the case may be, in accordance with law. P. R. RAMACHANDRA MENON, JUDGE kmd