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2024 DIGILAW 369 (KER)

Muraleedharan S/o Karunakaran v. State of Kerala

2024-03-19

VIJU ABRAHAM

body2024
JUDGMENT : VIJU ABRAHAM, J. 1. The petitioner has approached this court challenging Exts.P7 and P8 whereby the request of the petitioner to receive back the stamp papers and to refund the value of the same was declined stating that the application has been made beyond the period prescribed under Section 48 of the Kerala Stamp Act, 1959. 2. Petitioner is the plaintiff in O.S. No. 597 of 2011 before the Additional Sub Court, North Paravur which was instituted for the realization of an amount of Rs. 16,85,500/-. The suit was decreed in favour of the petitioner as per Ext.P1 decree dated 01.06.2013. In execution of the decree, the property attached was put to sale and the petitioner participated in the auction and the same was fixed in his favour. Petitioner has also remitted the value for the stamp paper required for the issuance of the sale certificate as evident from Ext.P3 receipt dated 21.10.2016. After the said remittance, the Principle Sub Judge purchased the requisite stamp papers for a value of Rs. 2,80,000/- on 22.12.2016. An appeal was preferred by the defendant in the suit before this Court as F.A.O. No. 142 of 2018 and in the said appellate proceedings, the dispute was settled through mediation and the settlement was recorded and Ext.P5 judgment was passed on 22.03.2019. As per the terms of the settlement, the petitioner herein is entitled to receive back Rs. 2,80,000/- towards the value of stamp paper remitted by him. Towards the refund of the unused stamp papers, the petitioner submitted Ext.P8 application, E.A. No. 474 of 2019 in E.P. No. 195 of 2013 in O.S. No. 597 of 2011 on 07.11.2019 and the same was forwarded to the Collector on 10.12.2019 directly through the court staff. By Ext.P6 communication, the 3rd respondent addressed the 2nd respondent intimating the inability to consider the application for refund since an application in this regard was not filed within six months as mandated in Sections 47 and 48 of the Kerala Stamp Act. Thereafter, the 2nd respondent returned the unused stamp papers with Ext.P7 covering letter stating the very same reasons in Ext.P6. It is aggrieved by the same that the petitioner has approached this Court. 3. Thereafter, the 2nd respondent returned the unused stamp papers with Ext.P7 covering letter stating the very same reasons in Ext.P6. It is aggrieved by the same that the petitioner has approached this Court. 3. Petitioner contends that the matter has been settled outside the court as provided in Section 89 of the Code of Civil Procedure and the settlement arrived at is a judicial settlement and Ext.P5 is invariably a decree. Exts.P6 and P7 were issued without any application of mind and without taking into consideration the fact that the stamp paper in question was purchased by the court and was in possession of the court. Ext.P8 application was submitted by the petitioner in this regard and the court has passed Ext.P9 order wherein it was ordered to issue refund order. 4. Learned Government pleader would submit relying on Sections 47 and 48 of the Kerala Stamp Act, 1959 that since the application was filed beyond the time prescribed in the Act, the value of stamp papers cannot be refunded. In Ext.P7 it is stated that the case was compounded on 15.03.2019 and the application for refund was filed only on 09.12.2019, which is filed beyond the period of six months as stipulated in Section 48(2) of the Kerala Stamp Act. 5. Section 47 deals with allowance for spoiled stamps and Section 48 provides for when to make an application for relief under Section 47. Section 48 of the Kerala Stamp Act, 1959 reads as follows: “48. Application for relief under section 47 when to be made - The application for relief under section 47 shall be made within the following periods, that is to say: (1) in the cases mentioned in Clause (c) (5), within two months of the date of the instrument. (2) in the case of stamped paper on which no instrument has been executed by any of the parties thereto, within six months after the stamp has been spoiled. (2) in the case of stamped paper on which no instrument has been executed by any of the parties thereto, within six months after the stamp has been spoiled. (3) in the case of a stamped paper in which an instrument has been executed by any of the parties thereto, within six months after the date of the instrument or, if it is not dated, within six months after execution thereof by the person by whom it was first or alone executed: Provided that: (a) when the spoiled instrument has been for sufficient reasons sent out of the State the application may be made within six months after it has been received back in the State. (b) when, from unavoidable circumstances, any instrument for which another instrument has been substituted, cannot be given up to be cancelled within the aforesaid period, the application may be made within six months after the date of execution of the substituted instrument.” 6. Admittedly, in the execution proceedings petitioner participated in the auction and for preparation of the sale certificate, the value for the purchase of the stamp papers was remitted by the petitioner as evident from Ext.P3 and the Principal Sub Judge purchased the stamp papers. While so, an appeal was preferred by the defendant and in the said appeal, the entire matter was settled through mediation and Ext.P5 judgment was passed in the appeal on 22.03.2019 which is based on the settlement entered into on 15.03.2019. Admittedly, stamp papers were in possession of the Sub Judge. Ext.P8 refund application was submitted by the petitioner on 07.11.2019 and the court allowed the application as per Ext.P9 on 16.11.2019 whereby an order was issued to refund the stamp value. The respondents are taking a stand that since the settlement was on 15.03.2019, an application for refund ought to have been filed within six months from that date and an application filed on 09.12.2019 is beyond the said period of six months. But it is to be noted that the stamp papers were purchased by the Principal Sub Judge after the petitioner had remitted the requisite amount for the same and due to the above said factual situation after the issue was settled in mediation, Ext.P8 application was submitted before the Court on 07.11.2019 seeking for an order to refund the stamp value which was allowed as per Ext.P9 order dated 16.11.2019. A perusal of Exts.P6 and P7 would show that the application was submitted by the petitioner on 09.12.2019. Since Ext.P9 order was issued by the jurisdictional court on 16.11.2019 and within a period of one month, i.e. on 09.12.2019 necessary application was submitted before the authorities seeking refund of the stamp duty, I am of the view that application has been filed within the time prescribed as per Section 48(2) of the Kerala Stamp Act, 1959. 7. In view of the above, the stand taken by respondents 2 and 3 in Exts.P6 and P7 is unsustainable. Exts.P6 and P7 are accordingly set aside. Since the application was well within the time prescribed as per Section 48(2) of the Kerala Stamp Act, 1959, there will be a direction to respondents 2 and 3 to receive back Ext.P4 series of stamp papers and refund the value of stamp paper without any delay, at any rate within an outer limit of two months from the date of receipt of copy of the judgment. 8. The writ petition is allowed as above.