Case: Antifriction Bearings Corporation Limited &amp; Others Vs. State of Maharashtra &amp; Others

and subsequently received in the State. What is significant that these provisions take note of the duty already paid on the instrument in other State and seeks to recover only difference between duty chargeable in this State and duty already paid when registered in some other State. Doing something pursuant to the instrument in this State is a chargeable transaction and what is recoverable is additional duty payable according to rates prevailing in this State. Receipt of the copy could only be a chargeable event. It however, could not be construed that Sec.7 attempts simpliciter to levy a stamp duty on the copy of the instrument.8. To read, that the receipt of original instrument alone is a chargeable event, would certainly frustrate the entire legislative scheme under Section 7 read with Section 19 of the Act of 1958. Certainly such construction would fertilise the design of executor to evade Stamp Duty. At this stage, we refer to the Amending Act of 1993 which has added Sub-section 3 to Section 7 and term copies of the instrument at various places in Section 19. The learned Govt. Pleader invited attention to the ratio led down in 1992 (2) BCR, page 29, which has been affirmed by the Supreme Court in the case of Ruby Sales and Services (P) Ltd. and another Versus State of Maharashtra and others reported in (1994) 1 Supreme Court Cases 531 . They dealt with definition of term "Conveyance" under Maharashtra Amending Act No.27 of 1985 and a question whether a Consent decree was included in the unamended definition or not It is contended that amendment of 1993 is by way of clarification of what was already comprehended by a Legislative provisions. However, in view of our discussion, we do not propose to express on the nature or effect of these amendments.9. Learned Counsel for the petitioners, submitted that copy received in the State need to be only in terms of Sub-section 2 of Section 7 of the Act 1958. Any other mode is not contemplated by Section 7 and, therefore, filing of the copy under Section 125 of the Act of 1956 would not be a chargeable event. The submission does not hold any merit. Sub-section 1 & 2 of Section 7 of Act 1958 as reproduced, referred to distinctly the copy of instrument received in the State and received in evidence. Both of them are different contingencies.10. Mere receipt of the copy of an instrument, it is then contended, could not be a chargeable event. Filing copy under Section 125 of the Act of 1956 is merely a formality. It is optional and not obligatory. Bringing copy thereof, could not be of any legal implication so as to be chargeable as envisaged by Section 7 of the Act of 1958. Submission is erroneous.The Act of 1956 (Part V) deals with the registration of charges which includes mortgage. Section 125 reads thus:-"125 (1) Subject to the provisions of this part, every charge created on or after the 1st day of April, 1914, by a company and being a charge to which this section applies shall, so far as any security on the companys property or undertaking is conferred thereby, be void against the liquidator and any creditor of the company, unless the prescribed particulars of the charge, together with the instrument, if any, by which the charge is created or evidenced, or a copy thereof verified in the prescribed manner, are filed with the Registrar for registration in the manner required by this Act ......(3) When a charge becomes void under this section, the money secured thereby shall immediately become payable."(Emphasis supplied)11. What is explicit that the Instrument or copy thereof duly verified if not filed with the Registrar of Companies, the charge would become void against liquidator and creditor of the company. Statutory presumption (Section 126) of the notice of charge is also provided Certificate of registration (Section 132) further becomes conclusive proof of the charge. The company (Section 133) is obliged to cause endorsement of the certificate on the debentures. As such filing of copy could not be a formality but a definite legal requirement and non filing creates certain legal impediments. The petitioner companies, undisputedly, at Bombay issued debentures duly endorsed with the certificate envisaged by Section 132. The charge registered at Bombay (Section 125) was certainly to promote sale of debentures. The Instruments registered in Gujrat have therefore, relation with the matter or thing done by the company in the State of Maharashtra, as envisaged by Section 19 of the Act 1958.12. Section 125 of the Act of 1956 emphasises on filing of instrument or copy thereof duly verified in a prescribed manner. Rule 6 of Companies (Central Govt.s) Generale Rules & Forms has prescribed the manner of verification, which reads thus:-"Section 125, 127 and 128 - A copy of every instrument or deed creating or evidencing any charge and required to be filed with the Registrar in pursuance of Section 125, 127 or 128 shall be verified as follows:(i) ....................................(ii)where the instrument or deed relates, whether wholly or partly, to property situate in India, the copy shall be verified by a certificate of a responsible officer of the company stating that it is a true copy or by a certificate of a public officer given under and in accordance with the provisions of section 76 of the Indian Evidence Act, 1872 (1 of 1872)"(Emphasis supplied)The copy of the instrument duly verified as per the statutory dictate, evidencing or creating the charge has the character of an instrument.13. Mr. Chinoy, learned Counsel appearing for the petitioners fairly conceded before us, that the certified copy of the original instrument is an instrument. In view of this and discussion here-in-before, we do not propose to deal with the submission that the copy of the instrument is not a document as envisaged by Section 2(1) of the Act of 1958. The petitioners are, therefore, liable to pay duties as ordered by the Superintendent of Stamp, Maharashtra.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 0

Reasoning from the judgment:
0[ds]8. To read, that the receipt of original instrument alone is a chargeable event, would certainly frustrate the entire legislative scheme under Section 7 read with Section 19 of the Act of 1958. Certainly such construction would fertilise the design of executor to evade Stamp Duty. At this stage, we refer to the Amending Act of 1993 which has added3 to Section 7 and term copies of the instrument at various places in Section 19. The learned Govt. Pleader invited attention to the ratio led down in 1992 (2) BCR, page 29, which has been affirmed by the Supreme Court in the case of Ruby Sales and Services (P) Ltd. and another Versus State of Maharashtra and others reported in (1994) 1 Supreme Court Cases 531 . They dealt with definition of term "Conveyance" under Maharashtra Amending Act No.27 of 1985 and a question whether a Consent decree was included in the unamended definition or not It is contended that amendment of 1993 is by way of clarification of what was already comprehended by a Legislative provisions. However, in view of our discussion, we do not propose to express on the nature or effect of thesesubmission does not hold any merit.2 of Section 7 of Act 1958 as reproduced, referred to distinctly the copy of instrument received in the State and received in evidence. Both of them are differentcopy thereof, could not be of any legal implication so as to be chargeable as envisaged by Section 7 of the Act of 1958. Submission is erroneous.The Act of 1956 (Part V) deals with the registration of charges which includes mortgage. Section 125 reads(1) Subject to the provisions of this part, every charge created on or after the 1st day of April, 1914, by a company and being a charge to which this section applies shall, so far as any security on the companys property or undertaking is conferred thereby, be void against the liquidator and any creditor of the company, unless the prescribed particulars of the charge, together with the instrument, if any, by which the charge is created or evidenced, or a copy thereof verified in the prescribed manner, are filed with the Registrar for registration in the manner required by this Act ......(3) When a charge becomes void under this section, the money secured thereby shall immediately become payable."(Emphasis supplied)11. What is explicit that the Instrument or copy thereof duly verified if not filed with the Registrar of Companies, the charge would become void against liquidator and creditor of the company. Statutory presumption (Section 126) of the notice of charge is also provided Certificate of registration (Section 132) further becomes conclusive proof of the charge. The company (Section 133) is obliged to cause endorsement of the certificate on the debentures. As such filing of copy could not be a formality but a definite legal requirement and non filing creates certain legal impediments. The petitioner companies, undisputedly, at Bombay issued debentures duly endorsed with the certificate envisaged by Section 132. The charge registered at Bombay (Section 125) was certainly to promote sale of debentures. The Instruments registered in Gujrat have therefore, relation with the matter or thing done by the company in the State of Maharashtra, as envisaged by Section 19 of the Act 1958.Mr. Chinoy, learned Counsel appearing for the petitioners fairly conceded before us, that the certified copy of the original instrument is an instrument. In view of this and discussionwe do not propose to deal with the submission that the copy of the instrument is not a document as envisaged by Section 2(1) of the Act of 1958. The petitioners are, therefore, liable to pay duties as ordered by the Superintendent of Stamp, Maharashtra.