M/s. Godwin Construction Pvt. Ltd. vs Commissioner, Meerut Divi. and Others

Bharati Sapru, J.—Heard learned counsel for the petitioner Sri. Siddharth and learned standing counsel Sri. Nimai Das. This writ petition has been filed by the petitioner seeking writ of certiorari to quash the judgment and order dated 11.6.2012 passed by the respondent No. 1 and the order dated 15.9.2010 passed by the respondent No. 2 in a case executed against the petitioner in pursuance of security bond-cum-mortgage deed dated 19.12.2006.

The petitioner claims that the agreement made by it should be covered under the provisions of Article 57 of the Schedule 1-B of the Indian Stamp Act which reads as under:

Security bond or mortgage deed, executed by way of security for the due execution of an office, or to account for money or other property received by virtue thereof, or executed by a surety to secure the due performance of a contract or the due discharge of a liability-(a)...(b)...

However the deed itself has been brought on record by way of a supplementary affidavit and clearly states that it is a mortgage deed in favour of the Meerut Development Authority and the petitioner M/s. Godwin Construction Pvt. Ltd. The agreement itself is between two parties and therefore it is clear that it shall be chargeable to stamp duty under Article 40 of Schedule 1-B of the Indian Stamp Act which reads as under:

Mortgage deed -- Not being an agreement relating to deposit of title deeds, pawn or pledge (No. 6), Bottomry bond (No. 16), mortgage of crop (No. 41), respondential bond (No. 56) or security bond (No. 57) -- (a) When possession of the property or any part of the property comprised in such deed is given by the mortgagor or agreed to be given; (b) when possession is not given or agreed to be given as aforesaid...

It is the petitioner''s contention that the nature of security bond-cum-mortgage deed would be covered under Article 57 of Schedule 1-B but such a contention is not supported by the clear recital in the deed itself which stales that it is between the petitioner company and the Meerut Development Authority. There is no inclusion of a third party person in the lease deed i.e. to say that there is no surety at all in the recital of the deed in question.

Such being the case, the two authorities have rightly come to the conclusion that the petitioner is to be charged the stamp duty under Article 40 of Schedule 1-B. The decision taken is correct.

Learned standing counsel Sri. Nimai Das has also argued that Article 57 of Schedule 1-B contemplates that the transactions should be between three parties. He has placed reliance on para 4 of a old decision of this Court rendered in the case of Krishna Kattha Industries (Private) Ltd. Vs. Board of Revenue and Others, 1-12 in which this Court has recorded that the word ''surety'' occurring in Article 57 contemplates the inclusion of a third person hypothecating or mortgaging his property in the interest of others. Where the transaction is between two parties, the provisions of Article 57 cannot be said to be attracted.

The facts and circumstances as they spill out from the deed itself clearly reflect that the deed is between the petitioner and another single party, thereby the conclusion drawn by the authorities that the Article 40 shall have application, is therefore correct. The contention of the learned standing counsel is well founded and his submissions are accepted.

In view of the above, I see no reason to interfere in the order passed by the two authorities. The writ petition is dismissed. No costs.