AVDHESH TYAGI Vs. COMMISSIONER MEERUT DIVISION

JUDGEMENT

(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.

(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.