JUDGMENT : The petitioner, Phoenix ARC Private Limited, is a company as defined in clause (ba) of Section 2 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as ‘the SARFAESI Act’ for short). It is an asset reconstruction company registered with the Reserve Bank of India. As per Section 5 of the SARFAESI Act, any asset reconstruction company may acquire financial assets of any Bank or financial institutions which are classified as Non-Performing Asset. The petitioner got assigned debts along with the right to proceed against the underlying security interest as envisaged under Section 5 of the SARFAESI Act from the State Bank of Travancore, the Federal Bank Ltd and the South Indian Bank Ltd. The petitioner sought to register the assignment deeds in favour of it [Exts. P2 to P4] with the Sub Registrar, Ernakulam (respondent No.5). The petitioner submitted before the Sub Registrar that in view of Section 5(1A) of the SARFAESI Act and 8F of the Indian Stamp Act,1899, no stamp duty is payable to assignment deeds. Respondent No.5 referred the matter to respondent No.3, the District Registrar (General)/District Collector, Ernakulam, for adjudication. Respondent No.3 passed Exts.P9, P10 and P11 orders holding that as the Kerala Stamp Act, 1959, does not fix stamp duty for assignment agreement, the deeds come under ‘conveyance’ as provided in Section 2(d) of the Kerala Stamp Act. Respondent No.3 further found that stamp duty, as provided in Article 21 of the Schedule to the Kerala Stamp Act, 1959, being 8% of the purchase money, is to be remitted. The petitioner challenges Exts.P9, P10 and P11 orders issued by respondent No.3. 2. The petitioner has prayed for the following reliefs in the Writ Petition. Respondent No.3 further found that stamp duty, as provided in Article 21 of the Schedule to the Kerala Stamp Act, 1959, being 8% of the purchase money, is to be remitted. The petitioner challenges Exts.P9, P10 and P11 orders issued by respondent No.3. 2. The petitioner has prayed for the following reliefs in the Writ Petition. “(a) call for records leading to the passing of Exts.P9, P10 and P11 and quash the same by a writ of certiorari or other appropriate writ, order or direction (b) declare that Exts.P2, P3 and P4 do not require any stamp duty in view of the coming into force of Enforcement of Security Interest and Recovery of Debts Laws and Miscellaneous Provisions (Amendment) Act 2016 (Act 44 of 2016) and as per the exemption from stamp duty provided under Section 8F of the Indian Stamp Act (c) issue a Writ of Mandamus directing the 5th respondent to register the Ext.P2, P3 and P4 as per Section 8F of the Indian Stamp Act read with Section 5(1A) of the SARFAESI Act, without applicability of any Stamp Duty “(c-i) or in the alternative issue a writ of mandamus directing the respondents to bestow the benefits of Ext.P6 notification on the petitioner”. “(c-ii) Declare that the provisions of Section 8F of the Indian Stamp Act are applicable to Malabar District which is the part of the Administrative District of the Madras Presedency, a part A state before 01-11-1956” “(c-iii)to issue a writ of mandamus directing the 4th respondent to consider and pass orders on Ext.P12.” 3. The learned Senior Counsel appearing for the petitioner Sri. A.V. Varghese submitted the following:- As there is no specific provision in respect of 'assignment agreements' in the Kerala Stamp Act, 1959, the ‘conveyances’ referred to in the writ petitions fall under the exemption mentioned in Article 21 of the Kerala Stamp Act, 1959. Therefore, the stamp duty payable for the assignment deeds in question is under Article 55(c)(ii) of the Kerala Stamp Act. Regarding the registration fee Article 1(v) of the Table of Fees notified by the Government of Kerala is applicable. In view of Article 55(c)(ii) of the Kerala Stamp Act r/w Article 1(v) of the Table of Fees, Exts.P9 to P11 are liable to be quashed, and respondent No.5 is bound to register the assignment deeds by capping the stamp duty at Rs.50/-and registration fee at Rs.210/-. In view of Article 55(c)(ii) of the Kerala Stamp Act r/w Article 1(v) of the Table of Fees, Exts.P9 to P11 are liable to be quashed, and respondent No.5 is bound to register the assignment deeds by capping the stamp duty at Rs.50/-and registration fee at Rs.210/-. 3.1 The learned Senior Counsel relied on Kotak Mahendra Bank Ltd. v. State of U.P. and others [ AIR 2018 All 182 ], M/s Easun Products of India Pvt. Ltd v. The Inspector General of Registration and Chief Controller of Revenue Authority and others [MANU/TN/3590/2020] Edelweiss Asset Reconstruction Company Ltd Vs. State Punjab and others [MANU/PH/2164/2021] and Kota Mahindra Bank Ltd v. Chief Controlling Revenue Authority & Inspector General of Registration Chennai and others [2022(6) MLJ 454] in support of his contentions. 4. The learned Special Government Pleader appearing for the State resisted the contentions and submitted the following:- Section 2(d)(iv) of the Kerala Stamp Act would take in the assignment deeds in question. Article 55(c) of the Kerala Stamp Act, 1959, has no application insofar as the assignment deeds are concerned. The said article relates to any interest secured by a bond, mortgage deed or policy of insurance. In the present case, there is no mortgage deed. The debt was created by way of deposit of title deeds wherein there is no mortgage deed. The decisions relied on by the Senior counsel are in the context of the Indian Stamp Act,1899, the relevant provisions of which are not in pari materia with the corresponding provisions in the Kerala Stamp Act, 1959. Discussion 6. The assignments in question are assignment agreements executed by various Banks in favour of the petitioner assigning the debt along with the right to proceed against the security interest under the provisions of the SARFAESI Act. By way of the instruments in question, the interest in the property has been transferred in favour of the petitioner. 7. In the Writ Petition, the petitioner, relying on Section 5(1A) of the SARFAESI Act and 8F of the Indian Stamp Act,1899, pleaded that the instruments are exempted from stamp duty. By way of the instruments in question, the interest in the property has been transferred in favour of the petitioner. 7. In the Writ Petition, the petitioner, relying on Section 5(1A) of the SARFAESI Act and 8F of the Indian Stamp Act,1899, pleaded that the instruments are exempted from stamp duty. As per Section 5(1A) of the SARFAESI Act, any document executed by any bank or any financial institution under sub-section (1) in favour of the asset reconstruction company acquiring financial assets for the purposes of asset reconstruction or securitisation shall be exempted from stamp duty in accordance with the provisions of section 8F of the Indian Stamp Act, 1899, provided that the provisions of this subsection shall not apply where the acquisition of the financial assets by the asset reconstruction company is for the purposes other than asset reconstruction or securitisation. The proviso to sub-section 1 of the Indian Stamp Act says that it shall not apply to the territories which, immediately before the 1st November, 1956, were comprised in Part B States except to the extent to which the provisions of this Act relate to rates of stamp-duty in respect of the documents specified in entry 91 of List I in the Seventh Schedule to the Constitution. 8. Entry 91 of List I in the Seventh Schedule of the Constitution of India reads as follows:- “91.Rates of Stamp duty in respect of bills of exchange, cheques, promissory notes, bills of lading, letters of credit, policies of insurance, transfer of shares, debentures, proxies and receipts.” 9. Since entry 91 of List I in the Seventh Schedule to the Constitution does not contain an item in 8F of the Indian Stamp Act, 1899, as amended by Act 44 of 2016, Section 8F does not apply to the State of Kerala. Therefore, by virtue of proviso to Section 1(2) of the Indian Stamp Act, 1899, provisions of the Kerala Stamp Act, 1959 are applicable for the instruments under consideration. 10. The short question is whether the instruments under consideration come under Article 55(c) of the Schedule to the Kerala Stamp Act, 1959. 11. The learned Senior Government Pleader submitted that there is a fundamental difference in the term 'conveyance' used in the Indian Stamp Act, 1899 and the Kerala Stamp Act, 1959. 12. 10. The short question is whether the instruments under consideration come under Article 55(c) of the Schedule to the Kerala Stamp Act, 1959. 11. The learned Senior Government Pleader submitted that there is a fundamental difference in the term 'conveyance' used in the Indian Stamp Act, 1899 and the Kerala Stamp Act, 1959. 12. For convenience of analysis, the relevant Sections and Articles in the Kerala Stamp Act and Indian Stamp Act are extracted below:- The Kerala Stamp Act , 1959 The Indian Stamp Act, 1899 2.... 2... (d) “conveyance” includes,-- (10) “Conveyance” includes a conveyance on sale and every instrument by which property, whether movable or immovable, is transferred inter vivos and which is not otherwise specifically provided for by Schedule I; (i) a conveyance on sale; (ii) every order made under Section 232 of the Companies Act, 2013, (Central Act 18 of 2013) in respect of amlagamation or reconstruction of companies ; (iii)every order made by the Reserve Bank of India under Section 44A of the Banking Regulation Act, 1949(Central Act 10 of 1949); and (iv)every other instrument, by which property, whether movable or immovable or any interest in any property is transferred inter vivos and which is not otherwise specifically provided for by the Schedule. The Schedule 21.(i) Conveyance as defined by section 2(d), other than a conveyance specified in No.22, not being a transfer charged or exempted under No.55 23.Conveyance as defined by section 2(10) not being a transfer charged or exempted under No.62 55. Transfer (whether with or without consideration 62, Transfer (whether with or without consideration) (a)xxxxxxxxxxx (a)xxxxxxxxxxx (b)xxxxxxxxxxx (b)xxxxxxxxxxx (c) of any interest secured by a bond, mortgage deed or policy of insurance (c)of any interest secured by a bond, mortgage deed or policy of insurance [Emphasis added] 13. The stamp duty payable to a conveyance, as defined in Section 2(d) is as per Article 21 of the Kerala Stamp Act. Article 21 of the Kerala Stamp Act excludes conveyances dealing with transfer of interest referred to in Article 55. The learned Senior Counsel submitted that as the instruments under consideration deal with transfer of any interest secured by a mortgage, they will come under Article 55. 14. The learned Special Government Pleader per contra, submitted that the transfer of any interest secured by a mortgage deed and other documents referred to therein will only come under Article 55. The learned Senior Counsel submitted that as the instruments under consideration deal with transfer of any interest secured by a mortgage, they will come under Article 55. 14. The learned Special Government Pleader per contra, submitted that the transfer of any interest secured by a mortgage deed and other documents referred to therein will only come under Article 55. It is the submission of the learned Special Government Pleader that the instruments under consideration do not deal with transfer of interest secured by a mortgage deed as it arose from the deposit of title deeds where there is no mortgage deed. The learned Special Government Pleader contended that in the decisions relied on by the learned Senior Counsel, the various High Courts considered the application of Article 62 of the Indian Stamp Act as per which transfer of any interest secured by a bond, mortgage deed or policy of insurance is only included. Article 62 of the Indian Stamp Act, which is pari materia with Article 55 of the Kerala Stamp Act, refers to transfer of any interest secured by a bond, mortgage deed or policy of insurance. In Kotak Mahendra Bank Ltd. v. State of U.P. and others (Supra), the Allahabad High Court considered the application of Articles 23 and 62 of the Indian Stamp Act,1899, which are pari materia with Articles 21 and 55 of the Kerala Stamp Act, 1959. Article 62(c) of the Indian Stamp Act deals with the chargeability of stamp duty on the transfer of interest secured by a bond or mortgage deed. In that context, the Full Bench of the Allahabad High Court held that transfer of debts along with underlying securities would be chargeable under Article 62(c). In Easun Products of India Pvt. Ltd (Supra) also, the Madras High Court considered a transfer of a right to recover the secured debt which arose from a mortgage deed, and the Court held that as per Article 62(c) of Schedule 1 of the Indian Stamp Act,1899, the duty payable is chargeable as provided therein. In Kota Mahindra Bank Ltd v. Chief Controlling Revenue Authority (supra), the Madras High Court considered the interest secured under a mortgage deed. In the case of Edelweiss Asset Reconstruction Company Ltd (supra), the Punjab and Haryana High Court considered the interest and rights possessed by the financial institution in the mortgaged properties described in a deed. 15. In Kota Mahindra Bank Ltd v. Chief Controlling Revenue Authority (supra), the Madras High Court considered the interest secured under a mortgage deed. In the case of Edelweiss Asset Reconstruction Company Ltd (supra), the Punjab and Haryana High Court considered the interest and rights possessed by the financial institution in the mortgaged properties described in a deed. 15. In the present case, the transfer of interest is not the one secured by a mortgage deed. The borrower and the bank entered into a contract on deposit of title deeds regarding the properties mortgaged. 16. The learned Government Pleader relied on Rachpal Mahraj v Bhagwandas Daruka and others [1950 SCC 195] and Obla Sundarachariar v. Narayanna Ayyar [MANU/MH/0032/1931] to contend that deposit of title deeds for the creation of an equitable mortgage cannot be treated as a mortgage deed within the meaning of the deed referred to in Article 55 of the Kerala Stamp Act, 1959. The learned Special Government Pleader submitted that to create a deed, there shall be a bargain, and therefore, transfer of right arising from the agreement relating to a deposit of title deeds cannot be termed as a mortgage deed. 17. A mortgage by deposit of title deeds is a form of mortgage recognised by Section 58(f) of the Transfer of Property Act, 1882, which provides that it may be effected by a person ‘delivering to his creditor or his agent documents of title to immovable property with intent to create a security thereon’. That is to say, when the debtor deposits with the creditor the title deeds of his property with the intent to create a security, the law implies a contract between the parties to create a mortgage, and no registered instrument is required under Section 59 of the Transfer of Property Act as in other forms of mortgage. 18. The memorandum prepared to evidence the deposit of title deeds is only a written record of particulars of deeds the subject of an agreement constituted by the Act of deposit and the payment of the money, and it neither purports nor operates to create or declare any right, title or interest in the property included in the deeds. 19. In Obla Sundarachariar v. Narayanna Ayyar a signed memorandum was delivered to the mortgagee along with the title deeds of certain properties deposited as security. 19. In Obla Sundarachariar v. Narayanna Ayyar a signed memorandum was delivered to the mortgagee along with the title deeds of certain properties deposited as security. The memorandum stated: “As agreed upon in person, I have delivered to you the undermentioned documents as security.” The Bombay Court held that the memorandum was no more than a mere record of the particulars of the deeds and did not require registration. The reasoning applied by the Court was that “... no such memorandum can be within the section [Section 17 of the Registration Act] unless on its face it embodies such terms and is signed and delivered at such time and place and in such circumstances as to lead legitimately to the conclusion that, so far as the deposit is concerned, it constitutes the agreement between the parties”. In Rajpal Maharaj the point for determination was whether the memorandum signed and delivered by the borrower and relied upon by the creditor as evidencing the creation of the mortgage was compulsorily registerable under Section 17 of the Registration Act, 1908. The Supreme Court considered the question : did the parties intend to reduce their bargain regarding the deposit of the title deeds to the form of a document? Following Obla Sundarachariar (Supra) the Supreme Court held thus:- “9.Turning now to the memorandum before us, it is clear, on the face of it, that the parties did not intend thereby to create the charge. The document purports only to record a transaction which had been concluded and under which the rights and liabilities had been orally agreed upon. No doubt it was taken by the respondents to show that the title deeds of the appellant's properties were deposited with them as security for the moneys advanced by them, and to obviate a possible plea that the deeds were left with them for other purposes, as indeed was contended by the appellant in his written statement, taking advantage of the non-registration of the memorandum in question. But that is far from intending to reduce the bargain to writing and make the document the basis of the rights and liabilities of the parties. But that is far from intending to reduce the bargain to writing and make the document the basis of the rights and liabilities of the parties. In agreement with the High Court, we are of opinion, that the memorandum delivered by the appellant along with the title deeds deposited with the respondents did not require registration and was properly admitted in evidence to prove the creation of the charge.” 20. In the case of mortgage by deposit of title deed, the parties do not intend to make the memorandum (document) describing the act of deposit of title deeds and the payment of money the basis of their rights and liabilities. Rather their rights and liabilities are created by operation of law. In such cases, there is no mortgage deed as referred to in Article 55 of the Kerala Stamp Act, 1959, or 62(c) of the Indian Stamp Act, 1899. 21. Admittedly, the assignments in question arose from mortgages by deposit of title deeds as provided under Section 58(f) of the Transfer of Property Act. The interest assigned was the interest created by operation of law and not the interest secured by a mortgage deed. 22. The result of the above discussion is that the instruments in question will not come under Article 55 of the Schedule to the Kerala Stamp Act. 23. The learned Senior Counsel pressed for an alternative relief if the Court finds that the instruments will not come under Article 55 of the Kerala Stamp Act. 24. The Executive Vice President, Asset Reconstruction Company (India) Ltd. ARCIL registered under the SARFAESI Act, submitted a proposal before the Government for capping stamp duty and registration fee payable on assignment of debts. The Inspector General of Registration made a recommendation on the request submitted by the ARCIL fixing the stamp duty as Rs.1/-for every thousand subject to a maximum of Rs.1,00,000/-and the registration fee as Rs.1/-for every thousand rupees subject to a maximum or Rs.25,000/-on securitization of assignment of debts. The Government constituted a high power committee to take a decision on the suggestion of the Inspector General for fixing stamp duty payable for assignments in favour of asset reconstruction companies registered in terms of the SARFAESI Act. The Government constituted a high power committee to take a decision on the suggestion of the Inspector General for fixing stamp duty payable for assignments in favour of asset reconstruction companies registered in terms of the SARFAESI Act. The decision of the Government as per Ext.P6 reads thus:- “Government have examined the matter in detail and are pleased to accept the proposal for capping the stamp duty and registration fee, to an amount not exceeding Rs.One Lakh only and Rupees Twenty Five Thousand only respectively, payable on securities/assignment of debt whether secure or insecure by a charge over movable or immovable properties, limiting the benefit to Asset Reconstruction Company (India) Ltd. (ARCIL). Sanction is also accorded to constitute an empowered committee with the Principal Secretary (Taxes) as convenor, Additional Chief Secretary (Finance), Principal Secretary (Industries) as members to consider the cases of ARCIL and make recommendation/suggestion thereof to Government.” 25. It is discernible from the decision of the Government that as no stamp duty is specifically fixed for the assignments in favour of asset reconstruction companies registered under the SARFAESI Act, the Government intends to incorporate necessary amendment under the Stamp Act to cover the transaction under consideration. The High Power Committee deliberated on the issue. However, no positive steps have been taken by the Government in this matter. The right of the petitioners to register the documents cannot be deferred until the steps initiated by the Government are materialised. In similar fact situations, this Court in W.P. (C) No. 22357 of 2015 and W.P.(C) No. 22551 of 2016, the assignment deeds relating to the assignment of the assets under the SARFAESI Act were ordered to be registered at the rate suggested in Ext.P6 as a tentative measure. 26. The petitioners are also entitled to the benefit extended to the petitioners in W.P.(C) No. 22357 of 2015 and W.P.(C) No. 22551 of 2016 on the principle of parity. No grounds have been canvassed to deny the benefit to the petitioners. Therefore, the petitioners have the legal right to get the benefits granted to similarly situated persons by this Court. 27. No grounds have been canvassed to deny the benefit to the petitioners. Therefore, the petitioners have the legal right to get the benefits granted to similarly situated persons by this Court. 27. The learned Special Government Pleader relied on Titaghur Paper Mills Co.Ltd and Another v. State of Orissa and Others [ (1983) 2 SCC 433 ] and Shanti Devi L. Singh v. Tax Recovery Officer and Another [ (1990) 3 SCC 605 ] to contend that the Writ Petition is not maintainable on the ground of alternate remedy. 28. The learned Special Government Pleader submitted that the remedy of the petitioner is to approach the Board of Revenue challenging Ext.P9 to P11. 29. However, as I have found that the petitioner has established a legal right to get the benefit extended to the petitioners in the Writ Petition Nos.22357 of 2015 and 22551 of 2016, I hold that the Writ Petition is maintainable. 30. The competent authority in the department of Registration is directed to register Exts.P2 to P4 assignment deeds at the rate suggested in Ext.P6 within one month from this day. It is made clear that this will be subject to any final determination of stamp duty based on the amendment to the Stamp Act. The Writ Petition is disposed of as above.