RSA No.2199 of 2009 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2199 of 2009 (O & M) Date of Decision: 07.10.2010. Krishan Kumar Aggarwal .……Appellant Versus State of Haryana and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Raj Kumar Gupta, Advocate for the appellant. L. N. MITTAL, J (ORAL) Krishan Kumar Aggarwal-plaintiff has filed the instant second appeal, having remained unsuccessful in both the Courts below. Appellant-plaintiff filed suit against respondents- defendants i.e State of Haryana, Collector, Hissar and Sub-Registrar, Hissar. The plaintiff's case is that Punjab National Bank sanctioned loan/credit facilities in favour of M/s Delhi Assam Roadways Corporation Ltd., Hissar. The plaintiff furnished security bond for the same on behalf of the loanee in favour of Punjab National Bank. The said security bond was registered with Sub-Registrar, Hissar- defendant No.3. The bond was executed on Stamp Paper of Rs.15/- only. After registration, the security bond was returned by defendant No.3 to the plaintiff, who deposited the same with the Bank. Defendant No.3 gave notice dated 16.10.2001 to the plaintiff alleging that audit party of Accountant General had raised objection that Stamp duty of Rs.12.73 lakhs chargeable on the RSA No.2199 of 2009 (O & M) -2- aforesaid bond has not been affixed. Accordingly, plaintiff was required to show cause why he should not deposit the said amount in Government Treasury. It appears that pursuant to the said notice, the plaintiff furnished reply thereto. Sub-Registrar-defendant No.3, however, observed that the reply was not satisfactory and the objection raised by the audit party was justified. Sub-Registrar also observed that recovery of the aforesaid amount was to be made, but the same cannot be effected in ordinary course and the recovery could, therefore, be effected as arrears of land revenue. On receipt of said note from the Sub-Registrar, Deputy Commissioner, Hissar (Collector-defendant No.2) sent communication dated 19.06.2002 to the Executive Officer of District Revenue Accounts Branch in his own office directing that order for recovery of stamp duty amount of Rs.12,72,735/- as arrears of land revenue be passed. This communication was signed by District Revenue Officer on behalf of Deputy Commissioner. The plaintiff filed suit for permanent injunction seeking to restrain the defendant from recovering the aforesaid amount. The plaintiff inter alia pleaded that security bond was typed on proper stamp paper of Rs.15/- and the same was not impounded. No order for recovery of deficient stamp duty could be passed after the document had been returned to the plaintiff after registration. Order dated 19.06.2002 passed by the Deputy Commissioner was alleged to be illegal and invalid, having been passed without giving opportunity of hearing. The defendants inter alia pleaded that the plaintiff being executant of the document was liable to pay appropriate stamp duty. RSA No.2199 of 2009 (O & M) -3- No question of giving opportunity of hearing to the plaintiff arose. Order of the Deputy Commissioner is legal and valid. The document in question was mortgaged deed and not a security bond and, therefore, the disputed amount has been rightly demanded. Various other pleas were also raised. Learned Civil Judge (Senior Division), Hissar vide judgment and decree dated 19.02.2007 dismissed the plaintiff's suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Hissar vide judgment and decree dated 10.04.2009. Feeling aggrieved, plaintiff has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant contended that under Section 47A of the Indian Stamp Act (in short, the Act), Collector is empowered to determine the stamp duty chargeable on a document and to order payment of deficient amount of duty, if any, but in the instant case, no order has been passed by the Collector. It was also contended that no opportunity of hearing was either afforded to the plaintiff before ordering recovery of the disputed amount from him. It was accordingly contended that the disputed amount, therefore, cannot be recovered from the plaintiff-appellant as procedure provided in Section 47-A of the Act has not been followed. On the other hand, learned counsel for defendants- respondents contended that show cause notice was issued to the plaintiff and after considering his reply, Collector passed order dated 19.06.2002 for recovery of the disputed amount and the same could RSA No.2199 of 2009 (O & M) -4- be challenged only by way of appeal before the Commissioner as provided by Sub-Section (4) of Section 47-A of the Act and the same could not be challenged in Civil Court. I have carefully considered the rival contentions. Perusal of show cause notice dated 16.10.2001 and note of the Sub- Registrar thereon and communication dated 19.06.2002 issued by District Revenue Officer on behalf of Deputy Commissioner reveals that no order under Section 47-A of the Act has been passed by Collector in the instant case nor any opportunity of hearing was given to the plaintiff by the Collector and consequently, there was no occasion for the plaintiff to file appeal under Section 47A(4) of the Act against alleged order of the Collector. Perusal of the aforesaid documents reveals that Sub-Registrar issued show cause notice dated 16.10.2001 to the plaintiff on the basis of objection of audit party regarding deficient stamp duty. From the note of the Sub- Registrar below the copy of the said notice, it appears that the plaintiff sent reply to the said notice, but the Sub-Registrar found the reply to be unsatisfactory. The Sub-Registrar also observed that objection of the audit party was justified and, therefore, the aforesaid amount was liable to be recovered from the plaintiff, but the same could not be recovered in ordinary course and, therefore, the same was required to be recovered as arrears of land revenue. Thus all these proceedings were conducted by Sub-Registrar and not by the Collector. It was the Sub-Registrar, who issued show cause notice and it was the Sub-Registrar to whom reply was submitted by the plaintiff and it was the Sub-Registrar, who observed that the aforesaid amount is liable to be recovered as arrears of land RSA No.2199 of 2009 (O & M) -5- revenue. The Collector did not come into picture at all during all these proceedings. On the contrary, on the basis of aforesaid note of Sub-Registrar, the Deputy Commissioner straight away sent communication dated 19.06.2002 broadly reiterating the observations of the Sub-Registrar and directing the concerned officer of his office to pass order for recovery of the amount as arrears of land revenue. It is thus manifest that the Deputy Commissioner or the Collector did not provide any opportunity of hearing to the plaintiff nor the Collector passed any order under Section 47A of the Act. No such order has been pleaded or produced in evidence. Communication dated 19.06.2002 is emphatically alleged to be the order of the Collector, by counsel for the respondents. However, bare perusal of contents of the said communication reveals that it is not an order by the Collector or Deputy Commissioner. On the other hand, it is only a communication on behalf of Deputy Commissioner to executive officer of a Branch in the same office that order for recovery of the amount as arrears of land revenue be passed. However, there is no determination by the Collector within the purview of Section 47A (1) or (3) of the Act regarding the disputed amount being due or recoverable from the plaintiff as deficient duty. Since there is no such order passed by the Collector, the question of any appeal being filed against the same by the plaintiff under Section 47A(4) of the Act did not arise. On the contrary, the defendants started recovering the disputed amount from the plaintiff without there being any order of the Collector within the purview of Section 47A of the Act and, therefore, the plaintiff was left with no remedy except to approach the Civil Court by way of instant suit for injunction. RSA No.2199 of 2009 (O & M) -6- For the reasons aforesaid, I find that following substantial question of law arises for determination in the instant second appeal:- “ Whether there is any order passed by the Collector within the meaning of Section 47A of the Indian Stamp Act determining the amount of deficient stamp duty allegedly recoverable from the plaintiff and whether in the absence of any such order, the disputed amount can be recovered from the plaintiff? In view of the discussion hereinbefore, the aforesaid substantial question of law is answered in favour of the plaintiff- appellant. It is held that no order determining the amount of deficient stamp duty has been passed by the Collector within the meaning of Section 47A of the Act nor any opportunity of hearing was afforded by the Collector to the plaintiff before sending communication dated 19.06.2002 for passing order for recovery of the disputed amount as arrears of land revenue. Consequently, the defendants are not entitled to recover the disputed amount from the plaintiff. However, at the same time, liberty has to be given to the Collector to pass appropriate orders under Section 47A of the Act in accordance with law. Obviously the plaintiff shall be entitled to raise all objections permissible to him under the law, when any such proceedings are taken by the Collector. For the reasons recorded hereinabove, the instant second appeal is allowed. Judgments and decrees of both the Courts below are set aside. Suit filed by the plaintiff-appellant is decreed for permanent injunction restraining the defendants from recovering the disputed amount of Rs.12,72,735/- from the plaintiff RSA No.2199 of 2009 (O & M) -7- on the basis of communications dated 16.10.2001 and 19.06.2002 referred to hereinbefore, but the Collector shall be at liberty to proceed in accordance with the law for determining the deficient stamp duty amount if any recoverable from the plaintiff-appellant and if any such proceedings are carried by the Collector, the plaintiff shall be at liberty to raise all objections as may be permissible under the law. ( L. N. MITTAL ) JUDGE 07.10.2010. A. Kaundal