OM PRAKASH JAGANNATH AGRAWAL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this writ petition under article 226 and 227 of Constitution of India the Petitioners are challenging the order dated 07-02-1994 of respondent No. 2/3 acting as collector of stamps. By said order, said authority has found that as the earlier hypothecation deed dated 05/02/1994 executed by petitioner No. two in favour of a Co-operative Bank was not sufficiently stamped, a subsequent Mortgage deed executed by petitioner No. 1 in favour of said bank as collateral security could not be treated as such under Article 40 (C) and was therefore liable to be charged with full stamp duty. As per interim order dated 12-04-1994 while issuing the rule in the matter, this court directed respondents to accept stamp duty of Rs. 8,000/- and to register mortgage deed.

(2.) Petitioner No. 1 is the husband while petitioner No. two is the wife. It is the allegation in petition that petitioner No. 2 is sole proprietor of business establishment under the name and style M/s. Agarwal Bicchayat kendra (a tent house) and supplies Articles and untensils on hire. Nagpur Nagarik Sahakari bank (for brevity - Co-operative Bank, hereafter) is a co-operative Bank registered and functioning as such under the provisions of maharashtra Co-operative Societies Act and petitioner No. two has availed loan facility of rs. 2 lakhs from it. It is against hypothecation of goods of her business and petitioner No. one is the guarantor for that loan. The deed of hypothecation is stamped at Rs. 30/- as per provisions of Article 5 (h) read with Article 48 of schedule I of Bombay Stamp Act, 1958; mentioned as Act hereafter. Latter on guarantor husband i. e. petitioner No. 1 executed a mortgage deed of his shop block consisting of two rooms with undivided 1/4th interest in the piece of land in favour of Co-operative bank. This mortgage deed has been executed by petitioner No. 1 by paying stamp duty of rs. 100/- as per provisions of Article 40 (C) of the Act. The Bank advised petitioner No. 1 to get proper stamp duty worked out and accordingly petitioner No. 1 moved respondent no. 2 Collector of stamps under section 31 (1) of the Act for his opinion/order as to under which Article of schedule I said mortgage deed is to be assessed to stamp duty. By the impugned order dated 7th February, 1994 said authority held that stamp duty on mortgage deed is Rs. 8,000/- as the principle document/security in the shape of hypothecation was not executed with adequate stamp duty of rs. 8,000/- under Article 6 (2) of Schedule I of the Act. The authority observed that exemption given to hypothecation deed was withdrawn by government notification dated 29-11-1990. It is this order, which has been challenged in present writ petition.

(3.) I have heard Advocate Shri. Gordey for the petitioners and Shri. Loney, agp for the respondents. It is here pointed out that respondent No. 3 has been joined as party in person and at the relevant time he was joint Sub Registrar working as Collector of stamps at Nagpur.