NOWFAL SALAM Vs. PRINCIPAL SUB REGISTRAR, KOLLAM

JUDGEMENT

(1.) These writ petitions are filed challenging the refusal on the part of the respective Sub-Registrars, who have been impleaded as respondents, to enter the details of sale certificates issued to the petitioners by various banks and financial institutions in Book No.1, as required under Sec. 89(4) of the Registration Act, 1908.

(2.) The petitioners contend that when a certificate of sale of immovable property is issued by the Recovery Officer of the Debts Recovery Tribunal or by banks and financial institutions, it cannot be treated as a conveyance liable to stamp duty, nor is it an instrument which is compulsorily registrable. It is contended that, as per Sec. 89(4) of the Registration Act, 1908, the copy of the sale certificate is liable to be filed in Book No.1 maintained by the Sub-Registrar, within whose jurisdiction the property is situated. In terms of Sec. 17(2)(xii) read with Sec. 89(4) of the Registration Act, 1908, the Recovery Officer/authorized officer of the banks and financial institutions is only required to hand over the duly validated sale certificate to the auction purchaser, with a copy forwarded to the registering authority for filing in Book No.1. Once a copy of the sale certificate is received by the concerned SubRegistrar, he is obligated to file it in Book No.1, as mandated by Sec. 89 of the Registration Act, 1908. This process has the effect of registration and obviates the need for any further action. The petitioners submit that the aforesaid procedure does not contemplate a document being presented for registration, but merely requires a copy to be filed or entered in Book No.1, which does not attract any stamp duty.

(3.) A counter affidavit has been filed by the Inspector General of Registration in W.P (C) No.1930 of 2023 and adopted in other cases. It is stated that, in exercise of powers conferred by Entry 63 of List II and Entry 44 of List III of the Seventh Schedule to the Constitution of India, the State of Kerala has enacted the Kerala Stamp Act, 1959. Sec. 3 thereof provides, inter alia, that instruments executed in the territory of State of Kerala shall be chargeable with duty as specified in the Schedule to the Act. Sec. 17 of the Act mandatorily provides that all instruments chargeable with duty executed in the State of Kerala "shall be stamped before or at the time of execution". It is stated that Entry 16 of the Schedule to the Kerala Stamp Act, 1959 specifically refers to 'sale certificate' and the duty payable thereof is the same as applicable to conveyance chargeable under entry 21 or 22 of the Schedule. Therefore, sale certificate is an instrument liable to be charged with stamp duty and for non-payment of stamp duty, the sale certificate is liable to be impounded. It is further contended that the General Stamp Act (Act: No. XXVIII of 1869) and the Kerala Stamp Act, 1959 are not in pari materia and therefore any decision rendered in the context of the former has no application in the context of the present cases. The counter affidavit states that, it is true that a Certificate of sale is not a compulsorily registrable document as per the Registration Act, 1908. However, filing of sale certificate in Book No.1 has the same effect of registration. Since both processes involve similar services by the registering authority, the State is entitled to levy registration charges in exercise of powers conferred by Entry 47 of List III of the Seventh Schedule to the Constitution of India.