Dr. Vichitra Narayan Pathak Vs. Suraksha Realty Ltd. & Anr. - That is to say when the debtor deposits with the creditor the title deeds of his property with 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 as in other forms of mortgage.

 NCLAT (2025.05.30) in Dr. Vichitra Narayan Pathak Vs. Suraksha Realty Ltd. & Anr. [(2025) ibclaw.in 420 NCLAT, Company Appeal (AT) (Insolvency) No. 1017, 1018, 1060, 1061,1085, 1096, 1309 & 1310 of 2024] held that;

• That is to say when the debtor deposits with the creditor the title deeds of his property with 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 as in other forms of mortgage.

• As the deposit alone is not intended to create the charge and the document, which constitutes the bargain regarding the security, is also necessary and operates to create the charge in conjunction with the deposit, it requires registration under Section 17 of the Registration Act, 1908, as a non-testamentary instrument creating an interest in immovable property,

• Whereas in India under the Act, 1882, more particularly under Section 58 sub-section (f) a statutory recognition has been given to the mode of creation of mortgage by deposit of title deeds. Such a mortgage by deposit of title deeds is for all purposes a ‘legal mortgage’ and not an equitable mort- gage

• The banks, normally, maintain register of securities called Equitable Mortgage Register; wherein the entry of title deeds is taken in the form of memorandum signed by the Branch Manager alone, as a person accepting delivery of the documents as security. These formalities are done to establish three essential requisites of equitable mortgage, viz. (1) debit, (2) deposit of title deed and (iii) the intention that deed shall operate as security for the present or future debt.

• But if the parties choose to reduce the contract to writing, this implication of law is excluded by their express bargain, and the document will be the sole evidence of its terms. In such a case the deposit and the document both form integral parts of the transaction and are essential ingredients in the creation of the mortgage.

Excerpts of the Order;

# 34. Judgment of the Hon’ble Supreme Court in “Rachpal Mahraj vs. Bhagwandas Daruka and Others- 1950 SCC 195” has been relied by Arrow Engineering Ltd. In the above case, the Hon’ble Supreme Court had occasion to consider Section 58(f) and Section 59 of the Transfer of Property Act, 1882. In paragraph 5 of the judgment, the Hon’ble Supreme Court held that when the debtor deposits with the creditor the title deeds of his property with 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 as in other forms of mortgage. Paragraph 5 of the judgment is as follows:-

• “5. 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 in certain towns (including Calcutta) 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 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 as in other forms of mortgage. But if the parties choose to reduce the contract to writing, the implication is excluded by their express bargain, and the document will be the sole evidence of its terms. In such a case the deposit and the document both form integral parts of the transaction and are essential ingredients in the creation of the mortgage. As the deposit alone is not intended to create the charge and the document, which constitutes the bargain regarding the security, is also necessary and operates to create the charge in conjunction with the deposit, it requires registration under Section 17 of the Registration Act, 1908, as a non-testamentary instrument creating an interest in immovable property, where the value of such property is one hundred rupees and upwards. The time factor is not decisive. The document may be handed over to the creditor along with the title deeds and yet may not be registrable, as in Obla Sundarachariar v. Narayanna Ayyar [Obla Sundarachariar v. Narayanna Ayyar, (1930-31) 58 IA 68 : 1931 SCC OnLine PC 2] or, it may be delivered at a later date and nevertheless be registrable, as in Sir Hari Sankar Paul v. Kedar Nath Saha [Sir Hari Sankar Paul v. Kedar Nath Saha, (1938-39) 66 IA 184 : 1939 SCC OnLine PC 25]”.

# 35. It was further held in paragraph 6 of the judgment that the crucial question is did the parties intend to reduce their bargain regarding the deposit of the title deeds to the form of a document. It was further held that if the bargain has been reduced in writing, the document requires registration. In paragraph 6 of the judgment, following has been held:-

• “6. The crucial question is: did the parties intend to reduce their bargain regarding the deposit of the title deeds to the form of a document? If so, the document requires registration. If, on the other hand, its proper construction and the surrounding circumstances lead to the conclusion that the parties did not intend to do so, then, there being no express bargain, the contract to create the mortgage arises by implication of the law from the deposit itself with the requisite intention, and the document, being merely evidential does not require registration.”

# 36. In the case before the Hon’ble Supreme Court, the document had only recorded transaction in which case party did not intent to reduce the bargain to writing, hence, it was held that agreement did not require registration and could have been admitted in evidence to prove the creation of charge. When we apply the above ratio of the above judgment in the facts of the present case, it is clear that following two conclusions are irresistible:

• (i) Corporate Debtor did not intend to create mortgage on the assets by deposit of title. Corporate Debtor only intended to keep the title deeds with escrow agent which was clear by the letter dated 26.12.2009.

• (ii) The document contained the bargain. Both the parties reduced the bargain into writing i.e. MoU dated 26.12.2009, for creating any charge on the assets on the strength of the MoU, the said MoU requires restriction under Section 17 of the Registration Act, 1908.

# 37. Counsel for the Suraksha Realty Limited has placed reliance on “Cosmos Co. Operative Bank Ltd. vs. Central Bank of India and Others- 2025 SCC OnLine SC 352” where the Hon’ble Supreme Court held that mortgage by deposit of title deeds is accepted as mortgage under the Transfer of Property Act, 1882. In the above case before the Hon’ble Supreme Court, original borrower while availing the loan facility from the Central Bank of India had deposited the sale deed and another unregistered agreement to sell. In the above context, the Hon’ble Supreme Court had occasion to consider the provisions of the Transfer of Property Act, 1882. In paragraphs 48 and 49, the Hon’ble Supreme Court held:-

• “48. At this stage we must also address ourselves on one another important aspect where the High Court grossly erred whilst passing the impugned judgment and order. As discussed in the foregoing paragraphs of this judgment, the original borrower whilst availing the loan facility from the respondent no. 1 and appellant, had deposited with them two unregistered agreement to sale, and another unregistered agreement to sale along with the share certificate of ownership, respectively. Although both of the aforesaid transactions seek to create mortgage by deposit of documents or title, yet there lies a very fine but pertinent distinction between the two transactions. In respect of the loan advanced by the respondent no. 1 bank, only two unregistered agreements to sale were deposited which as discussed earlier do not purport any title as held in Suraj Lamps (supra) while with the appellant bank herein apart from one unregistered agreement to sale the share certificate of ownership had also been deposited which has the effect of conveyance of title.

• 49. Under the English Law, whether the documents so deposited actually purport or transfer any title is immaterial for the purpose of creating an ‘equitable mortgage’ as long as the intention to do so is clearly discernible. The position in India however is quite different. This is because under the English Law, a mortgage created by deposit of title or documents is not construed as a legal mortgage and is only treated as an equitable mortgage. Whereas in India under the Act, 1882, more particularly under Section 58 sub-section (f) a statutory recognition has been given to the mode of creation of mortgage by deposit of title deeds. Such a mortgage by deposit of title deeds is for all purposes a ‘legal mortgage’ and not an equitable mort- gage.…………….” 

# 38. In paragraph 51, the Hon’ble Supreme Court has noticed the requisite for valid mortgage. Paragraph 51 is as follows:-

• “51. Deposit of title deeds is one of the many forms of mortgages whereunder there is a transfer of interest in specific immovable property for the purpose of securing payment of money advanced or to be advanced by way of loan. The three requisites for a valid mortgage are, (i) debt; (ii) deposit of title deed; and (iii) an intention that the deed shall operate as security for the debt. In other words, when the debtor deposits with the creditor title deeds of his property with an 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 Act, 1882 as in other classes of mortgage. It is essential to bear in mind that the essence of a mortgage by deposit of title deeds is the actual handing over by a borrower to the lender of documents of title to immovable property with the intention that those documents shall constitute a security which will enable the creditor ultimately to recover the money which he has lent. Whether there is an intention that the deed shall be security for the debt is a question of fact to be decided in each case on its own merits. The said fact will have to be decided just like any other fact based on legal presumptions, oral, documentary and/or circumstantial evidence. Normally, title deeds are delivered to the bank along with a covering letter indicating therein an intention of delivering title deed i.e. to create security for the present or future liability. In turn, bank gives a letter to the person delivering title deeds indicating acceptance of the documents and/or title deeds by way of security either for the outstanding dues or for the loan to be advanced. The banks, normally, maintain register of securities called Equitable Mortgage Register; wherein the entry of title deeds is taken in the form of memorandum signed by the Branch Manager alone, as a person accepting delivery of the documents as security. These formalities are done to establish three essential requisites of equitable mortgage, viz. (1) debit, (2) deposit of title deed and (iii) the intention that deed shall operate as security for the present or future debt. But if the parties choose to reduce the contract to writing, this implication of law is excluded by their express bargain, and the document will be the sole evidence of its terms. In such a case the deposit and the document both form integral parts of the transaction and are essential ingredients in the creation of the mortgage.”

# 39. There can be no quarrel to the proposition laid down by the Hon’ble Supreme Court in the above case. The question to be considered is as to whether essential ingredients requisite as noticed above are fulfilled in the present case or not. We have already noticed that the deposit of title deeds by the debtor was not with intent to create a mortgage rights in the Corporate Debtor assets rather than the title documents were deposited with the escrow agent to keep with escrow agent till the obligation under MoU is fulfilled. The transaction when look into all attended circumstances and intent of the parties clearly indicate that there was no intent for creating mortgage.

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Landmark Cases on Burden of Proof in India

 Advocate Sunita Sharma  

Landmark  Cases on  Burden of  Proof in India

The principle of burden of proof is a  cornerstone of criminal and civil litigation,  ensuring that justice is served by determining  which party is responsible for proving facts in  a legal dispute. In India, the burden of proof is  primarily governed by the Indian Evidence  Act, 1872 (IEA), which has been succeeded by  the Bharatiya Sakshya Adhiniyam, 2023  (BSA). The principle is rooted in the maxim  that an accused is presumed innocent until  proven guilty, and the prosecution must  establish the accused’s guilt beyond  reasonable doubt. However, there are  circumstances where the burden of proof  shifts to the accused under specific statutory  provisions. This article discusses key  landmark cases on burden of proof in India.

Case Name	Year	Issue Discussed	Detailed Key Observations
Kali Ram v. State of Himachal Pradesh	1973	Presumption of Innocence in murder cases based on Circumstantial evidence	The Supreme Court overturned the conviction due to the benefit of the doubt.- It emphasized that the accused is presumed innocent until proven guilty beyond reasonable doubt.- If two reasonable interpretations of evidence arise, the one favorable to the accused must be adopted.- The Court acknowledged that though wrongful acquittals may undermine confidence in the judicial system, convicting an innocent is a far greater injustice.
KM Nanavati v. State of Maharashtra	1962	Burden of proof when General exceptions under IPC are claimed	Nanavati claimed grave and sudden provocation as a defense to a murder charge.- The Supreme Court held that while the prosecution bears the initial legal burden to prove guilt, the burden shifts to the accused under Section 105 of the Indian Evidence Act when an exception is claimed.- The accused must prove the existence of circumstances bringing the case under the claimed exception.- Since Nanavati failed to discharge this burden satisfactorily, he was convicted
State of West Bengal v. Mohd. Omar	2002	Reverse onus clause in Cases involving heinous crimes	The Court observed that the rigid application of the traditional presumption of innocence might impede justice in grave offences.- Once the Prosecution establishes a facie case, the burden may shift to the accused to rebut the inference.- The concept of a reverse onus was discussed, wherein the accused must provide a credible explanation when certain incriminating facts are established.
Ram Gulam Chaudhary & Ors. v. State of Bihar	2001	Facts within exclusive Knowledge and Section 106 of IEA	- This case elaborated on Section 106 of the Indian Evidence Act, which applies when facts are especially within the knowledge of the accused.- The Court held that the prosecution must prove positive facts, but it is not responsible for proving negative facts beyond its knowledge.- If the accused alone possesses information on certain aspects, such as their presence or actions during the crime, they must provide an explanation.- This does not violate the principle of presumption of innocence.
Uma & Anr. v. The State Rep. By The Deputy Superintendent of Police	20 23	Application of Section 106 (now Section 109 of BSA, 2023) in crimes committed in private spaces	The case involved the alleged murder of a person by the accused within a private domestic setting.- The Madras High Court had reversed an acquittal, emphasizing the lack of explanation by the accused for the deceased's death.- The Supreme Court held that since the crime occurred in the private space of the accused’s home, the circumstances were within their exclusive knowledge.- Under Section 106 (now Section 109 of the Bharatiya Sakshya Adhiniyam, 2023), the burden was on the accused to explain these facts, which they failed to do.- Their silence and failure to inform the deceased’s family raised suspicions and strengthened the prosecution’s case.
Nagendra Shah v. State of Bihar	2021	Silence of accused in circumstantial evidence cases	The Court emphasized that in cases based on circumstantial evidence, the accused’s failure to provide a reasonable explanation can serve as an additional link in the evidentiary chain.- Although the prosecution retains the primary burden to prove guilt, the accused cannot remain silent in the face of compelling evidence.- Silence or evasive answers can bolster the prosecution’s narrative.
Shambhu Nath Mehra v. The State of Ajmer	19 56	Scope and limits of Section 106 of IEA	The case clarified the interpretation of Section 106, focusing on facts especially within the accused’s knowledge.- The Court stated that Section 106 does not shift the overall burden of proof onto the accused.- Instead, it is a procedural rule that applies in narrow contexts where only the accused can explain certain facts (like alibi or specific behavior).- The prosecution still holds the primary burden to establish guilt beyond a reasonable doubt.

The burden of proof remains a fundamental principle of  criminal and civil law in India. The judicial approach, as  seen through landmark cases, balances the presumption of  innocence with the necessity of ensuring justice. While the  prosecution carries the primary burden to prove guilt  beyond a reasonable doubt, there are scenarios— especially in cases involving circumstantial evidence and  exclusive knowledge—where the burden shifts to the  accused to provide explanations. 

Key principles derived from these cases include: 

• Presumption of innocence: The accused remains  innocent until proven guilty. 

• Burden shifts in exceptional cases: Under Sections 105  and 106 of the IEA (now Sections 108 and 109 of BSA,  2023), the accused must explain facts within their  exclusive knowledge. 

• Circumstantial evidence consideration: Failure to  explain crucial circumstances can act as an additional  link in the chain of evidence. 

In conclusion, while the Indian legal system continues to  uphold the doctrine of “innocent until proven guilty,” these  landmark cases demonstrate the evolving balance  between protecting the rights of the accused and  delivering justice effectively

Advocate Sunita Sharma , +91-7011960109

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Mallikarjuna Kondapaneni and Ors. Vs. The State of AP and Ors - Similarly the deliberate and mala fide conduct of not following the law laid down in the previous decision undermines the constitutional authority and respect of the High Court. Indeed, while the former conduct has repercussions on an individual case and on a limited number of persons, the latter conduct has a much wider and more disastrous impact.

 HC Andhra Pradesh (2025.01.28) in Mallikarjuna Kondapaneni and Ors. Vs. The State of AP and Ors. [Writ Petition No: 298/2025] held that.-  

• The conduct of the appellant in not following the previous decision of the High Court is calculated to create confusion in the administration of law. It will undermine respect for law laid down by the High Court and impair the constitutional authority of the High Court. His conduct is therefore comprehended by the principles underlying the law of contempt. 

• The analogy of the inferior court's disobedience to the specific order of a superior court also suggests that his conduct falls within the purview of the law of contempt. Just as the disobedience to a specific order of the Court undermines the authority and dignity of the court in a particular case, 

• Similarly the deliberate and mala fide conduct of not following the law laid down in the previous decision undermines the constitutional authority and respect of the High Court. Indeed, while the former conduct has repercussions on an individual case and on a limited number of persons, the latter conduct has a much wider and more disastrous impact. 

• It is calculated not only to undermine the constitutional authority and respect of the High Court, generally, but is also likely to subvert the Rule of Law and engender harassing uncertainty and confusion in the administration of law."

Excerpts of the Order;

Heard Sri P. Sai Surya Teja, learned Counsel for the Writ Petitioners and Sri K. Arjun Chowdhary, learned Assistant Government for Stamps & Registration appearing for all the Respondents

# 2. The prayer sought in the present Writ Petition is as under:

"It is prayed that this Hon‟ble Court may be pleased to issue a writ, order or a direction, more particularly one in the nature of Writ of Mandamus, declaring the action of the 4threspondent, Sub-Registrar, Tirupathi RO, in directing the petitioners to pay the stamp duty (@6.5%) and registration fee (@1%) on market value of the property instead of the Value of the Sale Certificate/Auction Value of Rs.2,17,50,000/- as the same is contrary to law, illegal, arbitrary and violative of law laid down by this Hon‟ble Court and seeking a consequential direction to the 4threspondent Sub-Registrar, Tirupathi RO to receive, register and release the Sale Certificate/Deed of Sale executed by the Canara Bank in favour of the petitioners in respect of the property bearing Shop Nos.001 Part, 308, 309, 310, 311, 312, 313, 313A, 314 and 501 of Central Park Commercial Complex together with undivided share of land admeasuring 247.46 Sq Yards along with 35% of Parking situated in Tirupathi Town, Municipal 13thward, Reddy and Reddy Colony area, No.29 Village Accounts, Tirupathi Urban Mandal,Tiruapthi Sub-District, Sri Balaji Registration District [hereinafter referred to as the „subject property], without insisting payment of stamp duty (@6.5%) and registration fee (@1%) on market value of the property and by accepting the stamp duty on the Value of the Sale Certificate which is Rs.2,17,50,000/- and to pass such other and further orders."

# 3. The facts, as stated in the Affidavit filed in support of the Writ Petition, are that the Specialized Asset Recovery and Management Branch of Canara Bank, Tirupati initiated the Proceedings under the provisions of Securitization and Re-construction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) for recovery of the dues from the borrower and issued e-Auction Notice for the sale of subject property on 05.12.2024 indicating that the e-Auction would be conducted on 23.12.2024; that on the scheduled date of e-Auction i.e., on 23.12.2024, the Writ Petitioners herein have participated and were declared as successful bidders for an amount of Rs.2,17,50,000/- (upset price was fixed as Rs.2,17,00,000/-); that the Writ Petitioners have paid the EMD as well as 25% of the sale amount of a sum of Rs.54,37,500/- on the same date; that the Writ Petitioners have also complied with all the other conditions and have thereafter paid the entire auction amount to Canara Bank, Tirupati and have obtained the Sale Certificate on 30.12.2024; that the Writ Petitioners approached the Sub-Registrar, Tirupati (Respondent No.4) for registration of the Sale Certificate; whereas, the Respondent No.4 directed the Writ Petitioners to pay the stamp duty and registration fee on the market value of the subject property; that the Respondent No.4 had stated that the registration will not be permissible unless the stamp duty and the registration fee is paid on the market value of the property and not on the auction value; that the Respondent No.4 had also issued Market Value Certificate of the subject property indicating that the total value of the subject property is Rs.3,65,76,500/- (Three crores sixty five lakhs seventy six thousand five hundred).

# 4. Having been aggrieved of the stand taken by the Respondent No.4 to the effect that the registration would be permitted only if the Stamp Duty and Registration Fee is paid on the market value as indicated in the Market Value Certificate (i.e., ₹ 3,65,76,500/-) but not as per the Sale Certificate issued by the Canara Bank (i.e., on ₹ 2,17,50,000/-), the present Writ Petition is filed.

# 5. Learned Counsel for the Writ Petitioners would submit that though the law is well settled on this issue, it is legally untenable on the part of the Respondent No.4 to insist for the payment of stamp duty and registration fee on the market value instead of the amount fetched in the auction sale.

# 6. Learned Counsel for the Writ Petitioners has placed reliance on a Judgment rendered by the Division Bench of this Hon‟ble Court in State of Andhra Pradesh, rep. by its Principal Secretary and Ors.Vs. Marvel Financial Services Ltd., rep. by its Director Mr. P. Srinivas Chowdary and Anr. : 2022 SCC Online AP 3328.

6(a). A Division Bench of this Hon‟ble Court was once again compelled to deal with the batch of Writ Petitions involving the very same issue in Atkuri Venkata Krishna Vs. State of Andhra Pradesh and Ors. (W.P.No.24898 of 2024 and batch). The Division Bench of this Hon‟ble Court in its Final Order dated 06.12.2024 had also referred to a recent Memo issued by the Government of Andhra Pradesh thereby, giving a directive to all the Officers in the Department of Registration to comply with the law declared by this Hon‟ble Court. The relevant portion of this Memo No.REV08-12022/11/2023-CCRA SEC-IGRS dated 29.04.2024 is usefully extracted hereunder:

• "2. After careful examination of the proposals of the Commissioner and Inspector General, Registration and Stamps, Andhra Pradesh in the reference cited and in compliance to the orders passed by the Hon‟ble High Court, the Government hereby directed that the auction value/value indicated in instruments to be taken into consideration for the proposed pending documents in the reference cited while determining the Deficit Stamp Duty and Registration Fee on the sale certificate issued under SARFEASI Act, 2002 instead of market value.

• 3. The Commissioner and Inspector General, Registration and Stamps, Andhra Pradesh is requested to take necessary action in the matter accordingly."

# 7. Having regard to the above facts, the following issue arises for determination:

Issues:-

i. In cases where property is purchased in an auction sale in recovery proceedings initiated under the SARFAESI Act, whether the Stamp Duty and Registration Fee is payable on the value fetched in the auction sale or on the market value as fixed by the Registrar?

ii. Whether there is an indispensable constitutional „duty‟ cast upon the executive to follow the law (ratio decidendi) that is declared by the Hon‟ble Supreme Court of India under Article 141 read with Article 144 of the Constitution of India?

iii. What is the legal consequence if the Executive violates a binding precedent?

Issue No.1:

In cases where property is purchased in an auction sale in recovery proceedings initiated under the SARFAESI Act, whether the Stamp Duty and Registration Fee is payable on the value fetched in the auction sale or on the market value as fixed by the Registrar?

# 8. This Court has noticed that even though the law is well settled by the Hon‟ble Apex Court in the year 2009 itself in V.N. Devadoss Vs. Chief Revenue Control Officer-cum-Inspector and Ors: (2009) 7 SCC 438 in para Nos.16 to 18, the cases involving similar facts and circumstances, are being brought before this Court almost on a regular basis. This Court, by citing V.N. Devadoss's case, as a binding precedent, had already decided several similar cases. A learned Single Judge has already decided cases on similar facts by placing reliance on V.N. Devadoss's case. Even when the State has preferred an Intra-Court Appeal, a Division Bench of this Hon‟ble Court has also confirmed the Order of the learned Single Judge inasmuch as the reliance was placed on the precedent rendered by the Hon‟ble Apex Court. Article 141 of the Constitution stipulates that the law rendered/declared by the Hon‟ble Apex Court would bind all the Subordinate Courts and the Executive across the Country. It would be the incumbent duty on the part of the Executive to keep track of the „march of law‟ and „follow the binding precedent‟ only to ensure that a citizen shall not be compelled to knock at the doors of the Writ Court once again. Unfortunately, the Officers who are of the rank of Sub-Registrar and Registrar, have been constantly violating this principle of stare decisis. This doctrine mandates everyone including the subordinate courts and the executive to follow the law declared by the Hon‟ble Supreme Court as a binding precedent without having to apply their discretion once again. Once the law is settled by the Hon‟ble Apex Court, it would be the incumbent duty, not only on the Subordinate Courts, but also the Executive across the country to scrupulously follow the said dictum in all cases of similar nature.

# 9. Article 300A is a constitutional right that guarantees to its citizens the right to property. Sale and purchase of immovable and movable properties by the citizens of the Country is a continuous process. In matters where properties are brought for sale under various circumstances like an attached property being sold for recovery of a debt in a Money Suit, or properties of the defaulting borrowers are brought for sale by the respective lending institutions or the properties brought for sale for recovery of statutory taxes/statutory dues, the general rules and procedures with regard to Stamp Duty and Registration Fee do not apply.

# 10. In Shanti Devi L Singh Vs. Tax Recovery Officer and Ors :(1990) 3 SCC 605, the Hon‟ble Apex Court had explained the difference between the process of registration and process of filing documents like Sale Certificate issued by Tax Recovery Officers for the purchase of immovable property sold in a Court auction. It is laid down by the Hon‟ble Apex Court that a property which is purchased in a Court auction, is not compulsorily registrable and that such Sale Certificate shall merely be filed in Book No.1 in the Registrar‟s Office.

# 11. In V.N. Devadoss Vs. Chief Revenue Control Officer-cum-Inspector and Ors: (2009) 7 SCC 438, while dealing specifically with regard to the issue which is framed in the present case i.e., whether the Stamp Duty and Registration Fee should be paid on market value or on the value fetched on the property in an auction sale, the Hon‟ble Apex Court has clearly and firmly laid down the law to the effect that the Registration Authorities cannot demand payment of Stamp Duty and Registration Fee based on market value. The Hon‟ble Apex Court has explained the difference between market value and amount fetched in an auction and also the process involved in bringing a property for auction where the lending institution would obtain Market Value Certificate before notifying the property for auction. Para Nos.16 to 18 of the said Judgment of the Hon‟ble Apex Court are usefully extracted hereunder:

• "16. Market value is a changing concept. The Explanation to sub-rule (5) makes the position clear that (sic market) value would be such as would have fetched or would fetch if sold in the open market on the date of execution of the instrument of conveyance. Here, the property was offered for sale in the open market and bids were invited. That being so, there is no question of any intention to defraud the revenue or non-disclosure of the correct price. The factual scenario as indicated above goes to show that the properties were disposed of by the orders of BIFR and AAIFR and that too on the basis of value fixed by Assets Sales Committee. The view was expressed by the Assets Sales Committee which consisted of members such as representatives of IDBI, debenture-holders, Government of West Bengal and Special Director of BIFR. That being so, there is no possibility of any undervaluation and therefore, Section 47-A of the Act has no application. It is not correct as observed by the High Court that BIFR was only a mediator.

• 17. Sale has been defined under Section 54 of the Transfer of Property Act, 1882 (in short "the TP Act"). Although the Act has not included the definition of sale, Section 2(10) of the Act defines "conveyance" as including a conveyance on sale, every instrument and every decree or final order of any civil court by which property whether immovable or movable or any estate or interest in any property is transferred to, or vested in or declared to be of any other person, inter vivos, and which is not otherwise specifically provided for by Schedule I or Schedule 1-A, as the case may be.

• 18. On the facts of the case it cannot be said that Section 47-A has any application because there is no scope for entertaining a doubt that there was any undervaluation. That being so, the High Court's order is clearly unsustainable and is set aside. The registration shall be done at the price disclosed in the document of conveyance. There is no scope for exercising power under Section 47-A of the Act as there is no basis for even entertaining a belief that the market value of the property which is the subject-matter of conveyance has not been truly set forth with a view to fraudulently evade payment of proper stamp duty."

# 12. As the law has been clearly laid down in V.N. Devadoss's case (supra), Single Benches of this Court, following the said case as a precedent, have consistently allowed several Writ Petitions brought by the successful auction purchasers. The Intra-Court Appeals filed by the State were dismissed thereby confirming the Orders of the Single Benches since the said Orders were passed by placing reliance on V.N. Devadoss's case. There are already several reported Judgments on the very same issue in the law journals.

# 13. This discussion is being made by this Court out of sheer concern that such well settled legal issues are again being raked-up by the Executive, again and again compelling the citizens to approach this Court. In the case of State of Andhra Pradesh, rep. by its Principal Secretary and Ors. Vs. Marvel Financial Services Ltd., rep. by its Director Mr. P. Srinivas Chowdary and Anr. : 2022 SCC Online AP 3328, the Division Bench of this Hon‟ble Court, having discussed elaborately, had upheld the Order passed by the learned Single Judge, directing the Registration Authorities to collect the Stamp Duty and Registration Fee only on the value that is fetched in the auction sale with a clear caveat that the Official Respondents cannot charge Stamp Duty and Registration Fee on the market value.

14. The Hon‟ble Supreme Court, as recently as in the year 2024, in State of Punjab and Anr. Vs. Ferrous Alloy Forgings Private Limited and Ors :2024 SCC Online SC 3372,in para 20 of the said Judgment, has held as under:

• "20. The position of law discussed above makes it clear that sale certificate issued by the authorised officer is not compulsorily registrable. Mere filing under Section 89(4) of the Registration Act itself is sufficient when a copy of the sale certificate is forwarded by the authorised officer to the registering authority. However, a perusal of Articles 18 and 23 respectively of the first schedule to the Stamp Act respectively makes it clear that when the auction purchaser presents the original sale certificate for registration, it would attract stamp duty in accordance with the said Articles. As long as the sale certificate remains as it is, it is not compulsorily registrable. It is only when the auction purchaser uses the certificate for some other purpose that the requirement of payment of stamp duty, etc. would arise."

# 15. After having considered the judgments rendered by the Hon‟ble Supreme Court and the Division Bench of this Hon‟ble Court, the Issue No.1 is answered by this Court holding that the Respondent Authorities (Department of Registration and Stamps) shall collect Stamp Duty and Court Fee on the value of the property as mentioned in the Sale Certificate in the present case.

Issue No.2:

Whether there is an indispensable constitutional „duty‟ cast upon the executive to follow the law (ratio decidendi) that is declared by the Hon‟ble Supreme Court of India under Article 141 read with Article 144 of the Constitution of India?

# 16. The Article 141 of Constitution of India reads as under:

• "141. Law declared by Supreme Court to be binding on all courts - The law declared by the Supreme Court shall be binding on all courts within the territory of India."

# 17. The Article 144 of Constitution of India reads as under:

• "Civil and judicial authorities to act in aid of the Supreme Court - All authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court."

# 18. The Article 141 r/w 144 would lead to a categorical conclusion that the law declared by the Hon‟ble Apex Court binds not only the Courts within the territory of India but would also bind all the authorities, civil and judicial in the territory of India and all the authorities shall act in aid of the Supreme Court. This goes without saying that the law declared by the Supreme Court, which is final by its very nature, binds the executive and the executive cannot take a view different from the law that is laid down by the Hon‟ble Apex Court. Therefore the law declared by the Hon‟ble Supreme Court in V.N. Devadoss Vs. Chief Revenue Control Officer-cum-Inspector and Ors: (2009) 7 SCC 438 shall be adhered to by the executive namely the Department of Registration in the present case. They cannot insist on the auction purchaser to pay Stamp Duty and Registration Charges on the market value in respect of a property which has been purchased in an auction sale, if such auction is held by the Court or the Financer under the SARFAESI Act or by a Tax Recovery Officer.

# 19. The binding nature of the law declared by the Supreme Court under Article 141 read with Article 144 of the Constitution of India has been spelt out by the Hon‟ble Apex Court in Paragraph No.16 in E.T.Sunup Vs. C.A.N.S.S.Employees Association and Another: (2004) 8 SCC 683, which reads as under:

• "16. It has become a tendency with the government officers to somehow or the other circumvent the orders of court and try to take recourse to one justification or other. This shows complete lack of grace in accepting the orders of the Court. This tendency of undermining the Court's order cannot be countenanced. This Court time and again has emphasised that in a democracy the role of the court cannot be subservient to administrative fiat. The executive and legislature have to work within the constitutional framework and the judiciary has been given the role of watchdog to keep the legislature and executive within check. In the present case, we fail to understand the counter filed by the appellant before the Court. On one hand they say that all the cases of GPF have been processed and on the other hand they are not prepared to revoke the administrative order. This only shows a deliberate attempt on the part of the bureaucracy to circumvent the order of the Court and stick to their stand. This is clear violation of the Court's order and the appellant is guilty of flouting the Court's order."

Issue No.3:

What is the legal consequence if the Executive violates a binding precedent?

# 20. Before parting with this case, having regard to the frequent of recurrence of a situation of the present nature where the executive is frequently demanding payment of Stamp Duty and Registration Fee based on the market value in cases where the property has been purchased in an auction sale held either by the Court or by the Financer under the SARFAESI Act or by a Tax Recovery Officer, this Court has noticed that there is a flood of litigation in respect of the present issues which are involved. This Court is coming across such cases almost on a daily basis. When the law has been clearly laid down, there is a duty cast upon the executive to follow the said law for the reason that if the said law is not followed, it compels the aggrieved party to invoke the jurisdiction of the Writ Court which is plainly avoidable. When once the law has attained finality by virtue of its declaration by the Hon‟ble Apex Court under Article 141, the executive shall dutifully abide by such law as per Article 144 of the Constitution of India. The Principle of „stare decisis' is a jurisprudential concept which is founded to ensure avoidance of multiplicity of litigation by compelling everyone to follow the precedent. When the Hon‟ble Supreme Court declares the law, the executive „shall‟ implement the said law without any deviation or dilution or by raising any objection. The executive can only look upon the „precedent‟ which is laid down by the Apex Court which is deemed to have attained finality and simply follow it. Taking a different view would only render misery to the common man compelling him to invoke the jurisdiction of the Writ Court which is plainly avoidable.

# 21. The Hon‟ble Apex Court, in Maninderjit Singh Bitta Vs. Union of India: (2012) 1 SCC 273, while exercising the Contempt jurisdiction, the Hon‟ble Supreme Court has laid down the inescapable mandamus that is cast upon the executive and as an inescapable duty to comply with the law declared by the Hon‟ble Apex Court. In Paragraph No.20 of the said judgment, the Hon‟ble Apex Court has held as under:

• "20. In exercise of its contempt jurisdiction, the courts are primarily concerned with enquiring whether the contemnor is guilty of intentional and wilful violation of the orders of the court, even to constitute a civil contempt. Every party to lis before the court, and even otherwise, is expected to obey the orders of the court in its true spirit and substance. Every person is required to respect and obey the orders of the court with due dignity for the institution. The government departments are no exception to it. The departments or instrumentalities of the State must act expeditiously as per orders of the court and if such orders postulate any schedule, then it must be adhered to. Whenever there are obstructions or difficulties in compliance with the orders of the court, least that is expected of the government department or its functionaries is to approach the court for extension of time or clarifications, if called for. But, where the party neither obeys the orders of the court nor approaches the court making appropriate prayers for extension of time or variation of order, the only possible inference in law is that such party disobeys the orders of the court. In other words, it is intentionally not carrying out the orders of the court. Flagrant violation of the court's orders would reflect the attitude of the party concerned to undermine the authority of the courts, its dignity and the administration of justice."

22. In State of Bihar Vs. Rani Sonabati Kumari : (1961) 1 SCR 728, the Constitution Bench of the Apex Court in the said Judgment held at para 31 as under:

• "34. Before concluding, we consider it proper to draw attention to one aspect of the case. It is of the essence of the rule of law that every authority within the State including the executive Government should consider itself bound by and obey the Law. It is fundamental to the system of polity that India has adopted and which is embodied in the Constitution that the Courts of the land are vested with the powers of interpreting the law and of applying it to the facts of the cases which are properly brought before them. If any party to the proceedings considers that any Court has committed any error, in the understanding of the law or in its application, resort must be had to such review or appeals as the law provides. When once an order has been passed which the Court has jurisdiction to pass, it is the duty of all persons bound by it to obey the order so long as it stands, and it would tend to the subversion of orderly administration and civil Government, if parties could disobey orders with impunity. If such is the position as regard private parties, the duty to obey is all the more imperative in the case of Governmental authorities, otherwise there would be a conflict between one branch of the State polity viz. the executive and another branch -- the Judicial. If disobedience could go unchecked, it would result in orders of Courts ceasing to have any meaning and judicial power itself becoming a mockery. When the State Government obeys a law, or gives effect to an order of a Court passed against it, it is not doing anything which detracts from its dignity, but rather, invests the law and the Courts with the dignity which are their due, which enhances the prestige of the executive Government itself, in a democratic set-up .............................................."

# 23. In Shri Baradakanta Mishra Ex-Commissioner of Endowments Vs. Shri Bhimsen Dixit : 1973 1 SCC 446, the Hon‟ble Apex Court at para 15 of the said Judgment had held as under:

• "15. The conduct of the appellant in not following the previous decision of the High Court is calculated to create confusion in the administration of law. It will undermine respect for law laid down by the High Court and impair the constitutional authority of the High Court. His conduct is therefore comprehended by the principles underlying the law of contempt. The analogy of the inferior court's disobedience to the specific order of a superior court also suggests that his conduct falls within the purview of the law of contempt. Just as the disobedience to a specific order of the Court undermines the authority and dignity of the court in a particular case, similarly the deliberate and mala fide conduct of not following the law laid down in the previous decision undermines the constitutional authority and respect of the High Court. Indeed, while the former conduct has repercussions on an individual case and on a limited number of persons, the latter conduct has a much wider and more disastrous impact. It is calculated not only to undermine the constitutional authority and respect of the High Court, generally, but is also likely to subvert the Rule of Law and engender harassing uncertainty and confusion in the administration of law."

24. In Priya Gupta Vs. Ministry of Health and Family Welfare : 2013 11 SCC 404, the Hon‟ble Apex Court, had the occasion to explain the consequences of willful disobedience of the Orders of the Court by the Executive. Para Nos.12 & 13 of the said Judgment are usefully extracted hereunder:

• "12. The government departments are no exception to the consequences of wilful disobedience of the orders of the Court. Violation of the orders of the Court would be its disobedience and would invite action in accordance with law. The orders passed by this Court are the law of the land in terms of Article 141 of the Constitution of India. No court or tribunal and for that matter any other authority can ignore the law stated by this Court. Such obedience would also be conducive to their smooth working, otherwise there would be confusion in the administration of law and the respect for law would irretrievably suffer. There can be no hesitation in holding that the law declared by the higher court in the State is binding on authorities and tribunals under its superintendence and they cannot ignore it. This Court also expressed the view that it had become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have a grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty are important hallmarks of judicial jurisprudence developed in this country, as discipline is sine qua non for effective and efficient functioning of the judicial system. If the Courts command others to act in accordance with the provisions of the Constitution and to abide by the rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law. (Ref. East India Commercial Co. Ltd. v. Collector of Customs [AIR 1962 SC 1893] and Official Liquidator v. Dayanand [(2008) 10 SCC 1 :(2009) 1 SCC (L&S) 943] .) (SCC p. 57, paras 90-91)

• 13. These very principles have to be strictly adhered to by the executive and instrumentalities of the State. It is expected that none of these institutions should fall out of line with the requirements of the standard of discipline in order to maintain the dignity of institution and ensure proper administration of justice."

# 25. In the above premise, this Writ Petition is allowed. The Official Respondent No.4 is directed to register the Sale Certificate of the Writ Petitioners in accordance with law by fixing Stamp Duty and Registration Fee on the value shown in the Sale Certificate i.e., Rs.2,17,50,000/-. No order as to costs.

Directions:

# 26. Since this Court has been encountering a flood of cases of this nature, this Court is of the view that these instances are occurring on account of ignorance of law by the Officers who are of the rank of Sub-Registrars and Registrars. This anomaly can be cured by enlightening the concerned Officials about the development and „march of law‟ in the relevant subject. It is the opinion of this Court that this requirement can be met by organizing periodical workshops or training sessions to the concerned Officials for keeping them abreast of the changes occurring in the law from time to time.

# 27. For achieving the above objective it would be necessary to firstly formulate a „Legal-Module‟ which incorporates the necessary case-law dealing with the subject of Registration and holding symposiums or workshops or training sessions in any form for all the Officers who are involved in the Registration of Instruments by making them aware of the contents of such module. As the current era is earmarked by the explosion of „Information- Technology‟, the training sessions can be conducted effortlessly through Online classes (by video-conferencing). One can easily avoid wastage of time and resources by conducting Online classes for the Officers, while achieving the desired results effectively and efficiently.

# 28. In order to give effect to the above observations, there shall be a direction to the Principal Secretary, Revenue to prepare a „Legal-Module‟ in consultation with the learned Advocate General for the State of Andhra Pradesh and impart the contents of such „module‟ to all the Officers involved in the Department of Registration in the State in the manner indicated above. There shall be a further direction to prepare a „Legal-Module‟ within four weeks from the date of uploading of this Order. Thereafter, the training sessions shall be conducted.

# 29. Post after eight weeks to enable the Official Respondents to submit a Report as regards the progress in implementing the above directions.

Interlocutory Applications, if any, stand closed in terms of this order.

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