Sushma Goyal vs State Of West Bengal And Others

Sabyasachi Bhattacharyya, J

Three affidavits of service filed in Court today be kept on record. It appears that, despite having been served thrice, none appears on behalf of the respondents.

Learned senior counsel appearing for the petitioner argues that the registering authority acted de hors the law and contrary to the principle laid down by a Special Bench judgment of this Court reported at 2010 (3) CHN (Cal) 651 (State of West Bengal Vs. Sati Enclave Pvt. Ltd. & Ors) with ALS Vyapar PVt. Ltd. vs. Registrar of Assurance, Kolkata & Ors.), wherein it was held that, on a correct interpretation of the provisions of Section 47A read with Section 2 (16A) of the Indian Stamp Act, 1899, as applicable to the State of West Bengal, and the West Bengal Stamp (Prevention of Under-valuation Instruments) Rules, 2001, the sale conducted by the Court or conducted by the Court through its officers which qualifies to be an open market sale as contemplated in Section 2 (16B) of the Act cannot be the subject-matter of exercise of powers by the registering authority under sub-sections (1) and (2) of Section 47A of the Act.

Learned senior counsel for the petitioner submits that the property-in-question, which is the subject-matter of such impugned registration, was purchased by the petitioner pursuant to an auction sale held by the Debts Recovery Tribunal and as such, is on a similar footing as a Court sale.

Learned counsel, by placing reliance on an order dated April 8, 2015, annexed as annexure P/1 at page 22 of the present writ petition, passed by the Kolkata Debts Recovery Tribunal No.2, points out that advertisement was duly published in connection with the sale in two newspapers, one in English and one in Bengali vernacular, having wide circulation in the concerned area, thereby giving sufficient publicity of the said sale. However, by virtue of the impugned valuation at page 37 (annexure p/9) of the writ petition, despite the consideration of such public sale being Rs.57,10,000/-, the market value was assessed at Rs.4,02,19,464/-, which is in gross violation of the principle laid down in the said Special Bench judgment.

A perusal of the cited Special Bench judgment shows that the said Bench proceeded on a premise of distinction between a private sale and a public sale. In case of a private sale, it was held that the registering officer may have reason to believe that the actual consideration was not truly set forth in the instrument and, therefore, the officer had been given power to determine the actual value of the property.

However, in case of a public sale, such occasion could not arise.

In paragraph no.29 of the said reported judgment, it was held that for a Court sale to satisfy the requirements of an open market sale, certain conditions shall have to be satisfied, including the wide publicity of the proposed sale, particularly by publication of advertisement in at least one newspaper having wide circulation in the concerned city/town/district, that the purchaser of the property must not be connected with or related to the authority/officer conducting the sale and that the said conclusions would equally be applicable to sale conducted by the Company Court after publication of advertisement in a widely circulated newspaper.

Since the Debts Recovery Tribunal adjudicates disputes on a similar footing as Civil Courts and Company Courts, pertaining to debts due to bank and financial institutions, the ratio laid down in the reported judgment is squarely applicable to the present case.

As such, the respondent nos.2 and 3 acted palpably de hors the law in overvaluing the property purchased by the petitioner, instead of going by the consideration amount as mentioned in the purchase deed itself.

Accordingly, W.P. No.18873(W) of 2019 is allowed, thereby setting aside the valuation in the property-in-question, as reflected from annexure P/9 at page 37 of the instant writ petition and directing the registering authorities, being the respondent nos.2 and 3 to re-evaluate the market value of the property-in-question in consonance with the consideration mentioned in the purchase deed, that is, Rs.57,10,000/- and take steps for registration of the said purchase deed in terms of such valuation at the earliest.

There will be no order as to costs.

Urgent certified website copies of this order, if applied for, be given to the parties upon compliance with all requisite formalities.