The Madras High Court has held that an instrument, whether a 'certificate of sale' or 'sale deed', issued in a public auction of properties, was chargeable with stamp duty under Article 18 read with Article 23 of Schedule I to the Indian Stamp Act, 1899.
Noting that there was an emerging trend among purchasers of properties in public auctions to seek issue of Certificates of Sale rather than Deeds of Sale, the High Court recalled that in Shree Vijayalakshmi Charitable Trust case [Shree Vijayalakshmi Charitable Trust vs Sub-Registrar, Erode Dt. (2009 (5) CTC 15] the view that a certificate of sale did not attract stamp duty had found acceptance. But the question as to whether stamp duty was payable on a certificate of sale was not examined in the said case on a comparative analysis of all provisions of the Transfer of Property Act, 1882, the Stamp Duty Act and the Registration act, 1908, and issues of repugnancy and the overriding effect of one act over the other, it was held.
Analyzing the Transfer of Property Act, the Hon'ble High Court recalled that the Apex Court made it clear in Raghunath vs Kedar Nath [1969 (1) SCC 497] that the documents of which registration was necessary, fell within the scope of Section 49 of the Registration Act and that if not registered, they were not admissible as evidence of any transaction affecting any immovable property comprised therein.
Under the Stamp Act irrespective of and de hors provisions of the Registration act, a certificate of sale issued to a purchaser of property sold in public auction, was required to be stamped as per Article 18 read with Article 23 if the purchase money exceeded Rs.100 of Schedule 1 of the Stamp Act. The provisions of the Stamp Act and the Registration Act operated on parallel lines.
Neither of them contains a non-abstante clause so as to exclude operation of the other. The option given under the Registration Act to makers of certain documents, to register them or not, was not to be construed as an exemption from payment of stamp duty. Therefore, the only conclusion that could be drawn by a combined reading of the three Acts was that by whatever name the instrument was called, it was chargeable with stamp duty, it was held.
In view of the above, the application was disposed of with a direction to the Official Liquidator to issue a certificate of sale or execute a sale deed in line with the choice of the auction purchaser.
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