SABHAJEET YADAV, J. - (1.) HEARD Sri U.K. Saxena, learned counsel for the petitioners and learned Standing Counsel for State-respondents.
(2.) THE brief facts leading to the case are that Punjab National Bank advanced some loan to one M/s M.L. Pharm and to advance the said loan the bank obtained security document as well as guarantee and Smt. Vimla Tyagi created an equitable mortgage of property of Khasra Plot No. 327 area 2 bighas, 13 biswas and 6 biswansis situated in village Shahpur, District Ghaziabad as security by depositing the original title deed. It appears that the borrower defaulted in repayment of financial facility provided by the said bank hence an Original application No. 14 of 2000 was filed by the Bank before the Debt Recovery Tribunal which was ultimately allowed and Recovery Certificate was issued. In pursuance of the said Recovery Certificate the Recovery Officer held an auction of the aforesaid property of borrower in which the petitioners offered highest bid to the tune of Rs.2,60,000/-, which was accepted by Recovery Officer vide his order dated 3.7.2003 and a sale certificate was issued by Recovery Officer of the Debt Recovery Tribunal-II, Delhi on 5.8.2003. Photostat copy of sale certificate dated 5.8.2003 is on record as Annexure-1 to the writ petition. In pursuance of aforesaid sale certificate the petitioners paid a sum of Rs.26,000/- as Stamp duty. It is stated that the respondent no.3-Sub-Registrar-II, Ghaziabad has submitted a report on Ist October, 2003 to the respondent no.2-Addl. Collector (F & R), Ghaziabad to the effect that the Stamp Duty paid by the petitioners is not in accordance with law and there is a shortage of stamp to a tune of Rs. 4,03,500/-. On the basis of aforesaid report a proceeding under Section-33 read with Section 47A of Indian Stamp Act 1899, herein after referred to as the Stamp Act, was initiated against the petitioners before Addl. Collector (F&R) Ghaziabad/ the respondent no.2 wherein he has held that since auction of the said property was neither held by civil court nor revenue court, therefore, auction sale and sale certificate issued by the Recovery Officer of the Tribunal is not covered by Article-18 of Schedule I-B of Stamp Act, rather on the sale certificate issued by the Recovery Officer of the Debt Recovery Tribunal, stamp duty is chargeable under Article-23 of Schedule I-B of Stamp Act on the market value of the property determined/prescribed by the Collector under Stamp Act, thus stamp duty paid by the petitioners is not sufficient as such, directed the petitioners to pay Deficient stamp duty to the tune of Rs.4,03,500/- and a fine of Rs. 21,500/- vide his judgement and order dated 17.3.2004. THE aforesaid amount was directed to be recovered from the petitioners alongwith interest at a rate of 1.5% per month from the date of issuance of sale certificate till actual payment of aforesaid amount. Photostat copy of the order dated 17.3.2004 passed by the respondent no.2 is on record as Annexure-2 to the writ petition. Aggrieved by the judgement and order passed by respondent no.2 the petitioners preferred an appeal before the respondent no.1-Commissioner, Meerut Division, Meerut, which too was dismissed vide order dated 11.2.2005 passed by the respondent no.1. Photostat copies of memo of appeal and the order dated 11.3.2005 passed by respondent no.1 are on record as Annexures-3 and 4 respectively to the writ petition. THE petitioners have challenged the aforesaid orders of the respondents no. 1 and 2 by instant writ petition. Learned counsel for the petitioners has submitted that the Debts Recovery Tribunal, which issued recovery certificate in exercise of power under Section 19 of the Recovery of Debts Due to the Banks and Financial Institutions Act, 1993, herein after referred to as the Act, 1993, to the Recovery Officer for recovery of the amount due to the Bank is an authority or body empowered under law for time being in force to sell the property secured by the bank as security for loan and the Recovery Officer is entitled to recover the amount of debt specified in the recovery certificate by one or more of the modes enumerated under Section-25 of the said Act, which includes attachment and sale of the movable and immovable property of the defendant before the Tribunal, therefore, sale certificate issued by Recovery Officer to the purchaser of the property sold by public auction, is referable to Article 18 of Schedule I-B of the Stamp Act. It is immaterial that such public auction was held by civil or revenue court or Collector or other Revenue Officer or not. Article-18 of Schedule I-B of Stamp Act as amended upto date in its application in Uttar Pradesh is not restricted to a certificate of sale granted to the purchaser of any property sold by public auction merely by a civil or Revenue court or Collector or other Revenue Officer, rather by U.P. Act No. 19 of 1981 and U.P. Act No. 22 of 1998, the scope of said Article is extended to include the certificate of sale granted to the purchaser of any property sold by public auction, by a court or by an officer, authority or body empowered under any law for time being in force to sell such property by public auction and to grant such certificate. Since Debt Recovery Tribunal is an authority or body empowered under Act 1993 to sell such property by public auction and Recovery Officer of the Tribunal is authorised to grant such sale certificate after holding public auction of the property secured by the bank to advance the loan, therefore, the stamp duty on such sale certificate of property is chargeable for a consideration equal to amount of the purchase money specified in the sale certificate only as envisaged by Article-18 of Schedule I- B of the Stamp Act and same cannot be charged on the basis of market value of the property constituting the subject matter of sale certificate according to Article-23 of said Schedule. Thus, view taken by respondents no.1 and 2 in holding that the stamp duty on such sale certificate is chargeable under Article 23 of Schedule I-B of Stamp Act on the market value of the property, specified in the sale certificate, is wholly erroneous, illegal and is not sustainable under law. Accordingly the impugned orders passed by respondents no.1 and 2 asking the petitioners to deposit the deficiency of stamp duty to the tune of Rs.4,03,500/- and penalty of Rs.21,500/- total Rs. ,25,000/- and further 1.5% per month interest thereon from the date of sale certificate till actual payment is wholly illegal and is not sustainable in the eye of law. 4. The submission of learned counsel for the petitioners appears to have substance and deserves to be accepted. Article 18 of Schedule I-B of Indian Stamp Act as amended upto date in its application to Uttar Pradesh is quoted as under:- Article-18 of Schedule I-B Description of Instrument Proper Stamp duty 18. Certificate of sale (in respect of each {The same duty as a Conveyance property put up as a separate lot and sold), {No.23 clause (a)}, for a granted to the purchaser of any property consideration equal to the amount sold by public auction by a Court or by of the purchase money only}. an officer, authority or body empowered under any law for the time being in force to sell such property by public auction and to grant such certificate}. ------------------------------------------------------------------------------------------------
(3.) FROM a plain reading of Article 18 of Schedule 1-B as substituted by U.P. Act No.19 of 1981 and U.P. Act No.22 of 1998 it is clear that in respect of property put up for auction and sale a sale certificate is granted to the purchaser of such property sold by public auction by a court or by an officer, authority or body empowered under any law for time being in force to sell such property by public auction and to grant such certificate. The stamp duty payable on such certificate is described as same duty as on conveyance ( No.23 Clause (a)) for consideration equal to the amount of the purchase money only. Now question arises for consideration as to whether the recovery officer appointed u/s 7 (1) of the Act, 1993 who has granted sale certificate to the petitioners is an officer or authority and Debt Recovery Tribunal is body empowered under any law for time being in force to sell such property by public auction and to grant such certificate as referable to Article 18 of schedule 1-B of the Stamp Act?;