IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 13TH AUGUST 2010 / 22ND SRAVANA 1932 WP(C).No. 18538 of 2005(F) ----------------------------------------- PETITIONER(S): ------------------------ PONANI CO-OPERATIVE AGRICULTURAL & RURAL DEVELOPMENT BANK, REPRESENTED BY ITS SECRETARY, PONANI. BY SRI.T.KRISHNANUNNI, SENIOR ADVOCATE, BY ADV. SRIC.M.MOHAMMED IQUABAL RESPONDENT(S): --------------------------- 1. THE DISTRICT REGISTRAR (GENERAL), MALAPPURAM. 2. THE SUB REGISTRAR, EDAPPAL. 3. UPPUKOOTTUNGAL MOHAMMED, S/O.BEERAN, VATTAMKULAM AMSOM, THAYIKKATTU DESOM, POST VATTAKULAM, MALAPPURAM DISTRICT. R1 & R2 BY GOVERNMENT PLEADER SRI. V. MANU R3 BY ADV. SRI.P.CHANDRASEKHAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.18538/2005 F APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE DOCUMENT PREPARED AND EXECUTED BY THE SECRETARY OF THE PETITIONER BANK DTD. 09/05/2005. P2: COPY OF THE MEMO ISSUED BY THE 2ND RESPONDENT RETURNING THE DOCUMENT PRESENTED FOR REGISTRATION. P3: COPY OF THE NOTICE SENT BY THE 3RD RESPONDENT TO THE PETITIONER DTD. 25/01/2005. P4: COPY OF THE REPLY BY THE BANK DTD. 01/02/2005. P5: COPY OF THE PLAINT IN O.S.24/05 BEFORE THE SUB COURT, TIRUR DTD. 15/02/2005. P6: COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. P7: COPY OF THE ORDER OF THE 1ST RESPONDENT DTD. 23/04/2005. P8: COPY OF THE REPRESENTATION SUBMITTED BY THE BANK BEFORE THE 2ND RESPONDENT DTD. 09/05/2005. P9: COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DTD. 24/05/2005. RESPONDENT'S EXHIBITS: R2 (A):COPY OF THE CIRCULAR ISSUED BY THE INSPECTOR GENERAL OF REGISTRATION KERALA AS ORDER NO.RR3- 4050/2001 DTD.12.12.2001. R2(B): COPY OF THE ORDER OF ATTACHMENT. R2(C): COPY OF G.O.(MS) 795/60 AGRI. DTD. 08/10/1960. R2(D): COPY OF G.O.(P) 1276/98/TD DTD. 28/09/08. R2(E): COPY OF ORDER OF THE INSPECTOR GENERAL OF REGISTRATION KERALA. R2(F): COPY OF THE GOVT.ORDER SRV.NO.1241 DTD. 22/11/2004. /TRUE COPY/ P.A.TO JUDGE Kss S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 18538 of 2005 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of August, 2010 J U D G M E N T The petitioner is a Co-operative Society registered under the Kerala Co-operative Societies Act. The Society sanctioned a loan to one Saidalavi. By an inadvertent mistake, as security for the loan amounts given to Saidalavi, 30 cents of land which was sold by the said Saidalavi long before the sanction of the loan amount was also included in the documents deposited as security for due repayment of the loan amounts. The petitioner Society wanted to rectify that mistake and to release that property from the mortgage. Accordingly the petitioner Society executed a release deed in respect of that property and presented the same for registration before the 2nd respondent. Initially by Ext.P2, the registration was refused on the ground that, in O.S. No.90/2001 of the Sub Court, Tirur there is an injunction order pending in respect of that property. W.P.(C)No. 18538 of 2005 -2- Second is that, the person in whose favour the release deed is executed is not a member of the petitioner Society. Subsequently the petitioner filed Ext.P6 appeal before the District Registrar (General), who rejected the same, by Ext.P7 order upholding the order of the 2nd respondent. The petitioner filed another representation before the Sub Registrar, Ext.P8. In answer, by Ext.P9, while reiterating the first objection, the Sub Registrar stated that only a release deed executed after payment of the entire loan amounts would be eligible for remission of stamp duty as per the exemption notification issued by the Government and therefore the documents should be re-presented after paying appropriate stamp duty. The petitioner is challenging Ext.P2, P7 & P9 orders in this writ petition. 2. The petitioner contends that the first objection no longer survives in so far as the suit itself has been dismissed subsequently. Regarding the second objection contained in Ext.P2 he would submit that Kerala Stamp Act does not stipulate that in respect of release deeds in favour W.P.(C)No. 18538 of 2005 -3- of a non-member of the Society exemption from stamp duty is not available. Regarding the last objection, he would submit that, release deed need not necessarily be after payment of entire loan amount and it is up to the mortgagee to decide as to whether a release deed should be executed releasing the mortgage and on what conditions. Therefore according to the petitioner, in so far as SRO No. 75/60 issued by the Government of Kerala exempts Co-operative Societies from payment of stamp duty in respect of instruments executed by Co-operative Societies no stamp duty is payable in respect of the release deed sought to be registered. 3. I have heard the learned Government Pleader also. The learned Government Pleader does not now dispute the fact that O.S. No.90/2001 has been dismissed and therefore the first objection does not survive. To consider the sustainability of the other two contentions we have to look into the notification exempting Co-operative Societies from payment of stamp duty for instruments W.P.(C)No. 18538 of 2005 -4- executed by them itself. The relevant portion of SRO 75/60 which is the exemption notification issued by the Government under the Kerala Stamp Act, reads thus: x x x x x x x x x x x “1. The stamp duty, registration fees and fees for encumbrance certificate payable under the Stamp Act and the Registration Act, in force in the State shall be remitted to the Co-operative Societies, in the following cases to the extent indicated in each case. (a) The whole stamp duty with which under the Kerala Stamp Act, 1959 (Act 17 of 1959) instruments executed by or on behalf of any registered Co-operative Society or instruments executed by “any officer of a Guardian of minor” and relating to the business thereof and decisions, awards or orders of the Registrar or the Arbitrator under the said Co-operative Societies Act.” x x x x x x x x x x x 4. As rightly pointed out by the learned counsel for the petitioner, there is no law lays down that a release deed would be a release deed only when the same is executed after receiving the entire mortgage money. The notification also does not say that if the person in whose favour the release deed is executed is a non-member of the Society, the exemption would not be available. The notification exempts Co-operative Societies from paying stamp duty on W.P.(C)No. 18538 of 2005 -5- instruments executed by or on behalf of a registered Co- operative Society. The particular release deed in question squarely comes within the purview of the said notification. As such the 2nd respondent was not justified in insisting on payment of stamp duty on this particular instrument and refusing to register it on the ground that the release deed executed in favour of a non-member attracts stamp duty and only a release deed executed after paying off the entire mortgage money would qualify for exemption. Therefore the impugned orders are quashed. The 2nd respondent is directed to register the original of Ext.P1 release deed when presented again. The writ petition is allowed as above. S. SIRI JAGAN JUDGE shg/