## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 28[TH] DAY OF JULY 2021 / 6TH SRAVANA, 1943**
## **WP(C) NO. 8636 OF 2010**
## **PETITIONER:**
KERALA STATE CO-OPERATIVE CONSUMERS FEDERATION LTD., GANDHI NAGAR, COCHIN,, REPRESENTED BY ITS MANAGING DIRECTOR. BY ADVS. SRI.M.SASINDRAN SRI.JOY GEORGESCSTATE CO-OP.CONSUMERS SRI.V.VENUGOPAL
## **RESPONDENTS/RESPONDENTS:**
1 SUB REGISTRAR, ALAPPUZHA. 2 THE LAND REVENUE COMMISSIONER, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM. 3 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF CO-OPERATION, SECRETARIAT, THIRUVANANTHAPURAM.
ADV.SMT.MABLE.C.KURIAN, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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## **P.V.KUNHIKRISHNAN, J**
**------------------------------W.P.(C)No.8636 of 2010 -------------------------------Dated this the 28[th ] day of July 2021**
## **JUDGMENT**
## **The above Writ petition is filed with following**
## **prayers:**
_“i) to issue a writ of mandamus any other writ order or direction commanding the 1[st] respondent to register the Exhibit-P4 Sale Deed without insisting for payment of stamp duty;_
_ii) to declare that the petitioner is eligible and entitled to get exemption from payment of stamp duty in respect of registration Exhibit-P4 Sale Deed by virtue of Exhibit-P1 notification;_
_iii) to issue such other writ or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.”_
## **2. The short facts are like this:**
## **The petitioner is Kerala State Co-operative**
**Consumer Federation Limited, a registered Society, the Apex body of the consumer co-operative societies**
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**owned and controlled by the Government of Kerala to meet various marketing intervention activities. The petitioner Federation is engaged in marketing activities and the bye-law of the petitioner Federation is Ext.P2. It is stated in the writ petition that the petitioner Federation decided to purchase 33 cents of property for constructing Triveni Tower to accommodate Neethi Medical Warehouse, Neethi Medical Stores and Triveni Mega Mart, Regional Office (Triveni Godown). As per Ext.P3 order the Registrar of Co-operative Societies granted sanction for purchasing the property. As per Ext.P4 sale deed, the property was purchased. According to the petitioner the property was purchased by the petitioner for its business purpose and the same has been mentioned in Ext.P4 sale deed itself. It is stated in the writ petition that when the petitioner approached Sub Registrar, Alappzha for registration of the sale deed, the Sub Registrar, Alappuzha declined to grant exemption from paying stamp duty and asked the petitioner to**
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**pay stamp duty for registering the document. According to the petitioner, the petitioner is entitled to stamp exemption in the light of Ext.P1 notification and under Section 40 of the Cooperative Societies Act. At this stage, the petitioner filed this writ petition. Pending this writ petition, the petitioner paid the stamp duty and the document is already registered. Now the prayer of the petitioner is to refund the amount paid towards stamp duty.**
**3. Heard the learned counsel for the petitioner and the learned Government Pleader.**
**4. The learned counsel for the petitioner submitted that the petitioner is a Society and the Society is entitled stamp duty exemption in the light of Section 40 of the Co-operative Societies Act and as per Ext.P1 Government Order. The learned counsel submitted that a mere reading of Section 40 of the Co-operative Societies Act, the intention of the legislature is clear. The learned counsel take me through the heading of Section 40 which is stated**
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**as** _**“Exemption from certain taxes, fees and duties”.**_ **According to the petitioner, the property is purchased for the business of the Society. Therefore the petitioner is entitled for stamp duty exemption. The learned counsel relied on the judgment of this Court in** _**District Registrar v. Peringandoor Service Co operative Bank Ltd. [2019(4)KLT265]**_ **and the judgment of the Full Bench of this Court in** _**Sub Registrar v. Kerala State Co operative Consumers Federation Ltd.[2015(1)KLT 443(F.B.)]**_ **The learned counsel also take me through Sections 2(d) and (f) of the Stamp Act. The learned counsel contended that, in the light of the decision of this Court in** _**District Registrar's case (supra)**_ **, the petitioner is entitled stamp duty exemption.**
**5. The learned Government Pleader submitted that in the light of the Full Bench decision of this Court in** _**Sub Registrar's case(supra)**_ **the point raised is covered against the petitioner and the petitioner is not entitled for stamp duty exemption. The learned Government Pleader submitted that, since**
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**the petitioner purchased a property, there is no execution of a document by the Society. The learned Government Pleader submitted that when a property is purchased, the buyer will not put signature in the document. Section 55(1)(d) of the Transfer of Property Act is also relied by the learned Government Pleader. The learned Government Pleader submitted that the execution is defined in the Stamp Act as “signed” and “signature”. The learned Government Pleader submitted that admittedly there is no signature of the petitioner in the document because it is a property purchased by the petitioner federation. Therefore, in such situation the petitioner is not entitled for stamp duty exemption. The learned Government Pleader also relied on the judgment of this Court dated 28.06.2018 in W.A.No.1835/2016.**
**6. The short point to be decided in this case is whether the petitioner is liable to pay stamp duty for the registration of original of Ext.P4 document or whether the petitioner is entitled to**
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**the benefit of Ext.P1 Government Order and Section 40 of the Co-operative Societies Act. According to me this point is squarely covered by the decision of the Full Bench in** _**Sub Registrar's case(supra)**_ **. The**
## **relevant paragraph is extracted hereunder:**
_“21. However, both under S.40(1) of the Kerala Act and clause 1(a) of S.R.O.No.75/60, the benefit of remission is allowed only in respect of documents executed by or on behalf of the society or by its officer or member. In cases where societies purchase properties, in view of S.55 of the Transfer of Property Act, since the executant of the instrument is not the society but the vendor of the property, the requirement of execution of the instrument by or on behalf of the society as provided in S.40(1)(a) of the Kerala Act and clause 1(a) of SRO.No.75/60 is not satisfied._
_22. It was argued that in view of S.30 of the Kerala Stamp Act, if, by an agreement, a society undertakes the liability to bear the stamp duty, it should be entitled to the benefit of exemption. It may be possible for a society to undertake the liability to bear the stamp duty. But such a society can get the benefit of exemption only if S.40(1)(a) of the Kerala Act is attracted. Therefore, by a mere agreement between the society and another, the stamp duty due to be paid to the Government cannot be avoided.”_
## **7. Thereafter the Full Bench answered the**
## **question referred in the following manner:**
_“26. For the aforesaid reasons, we answer the_
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_question referred to the Full Bench thus:_
_(1) SRO No.75/60 issued under S.35 of the TC Act and S.30 of the Madras Act is saved by virtue of S.110(2) of the Kerala Act only to the extent it is not inconsistent with the provisions of the Kerala Act._
_(2) SRO No.75/60 should be understood within the limitations of S.110(2) and 40(1)(a) of the Kerala Act._
_(3) The benefit of remission of stamp duty is available only in respect of instruments executed by or on behalf of a society or by an officer or member thereof and instrument so executed should be relating to the business of the society._
_(4) The benefit of remission can be claimed by the society only if, but for such remission, the society, an officer or the member as the case may be, would have been liable to pay such stamp duty.”_
**8. The learned counsel for the petitioner relied 3[rd] answer given by the Full Bench in which it is stated that the benefit of remission of stamp duty is available only in respect of instruments executed by or on behalf of a Society or by an officer or member thereof and instrument so executed**
**should be relating to business of the society. According to the learned counsel the document is executed by the petitioner and the document executed**
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## **is relating to the business of the Society.**
**9. The learned counsel for the petitioner also relied the answer No.4 in paragraph No.26 of the Full Bench decision. The answer No.4 in paragraph No.26 says that the benefit of remission can be claimed by the Society only if, but for such remission, the society, an officer or the member as the case may be would have been liable to pay such stamp duty.**
**10. According to me this is connected to answer No.3 in paragraph No.26 of the Full Bench decision. Only if the conditions in answer No.3 is complied, the answer No.4 will come into play. Admittedly, the petitioner purchased the property. If a property is purchased by the petitioner, the petitioner need not put signature. Execution is defined in Section 2(f) of the Stamp Act which reads like this:**
_**“** (f) "executed" and "execution" used with reference to instruments, means "signed" and "signature";_ _**”**_
## **11. Admittedly no signature of the petitioner**
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**is necessary in a document in which the petitioner purchase a property. That is clear from Section 55(1)(d) of the Transfer of Property Act, 1882 also. Moreover, this point is considered by the Full Bench in detail in paragraph Nos.21 and 22 of the judgment which is extracted above. In a similar situation this Court in W.A.No.1835/2016 declined the request for Stamp Act exemption by another Society after setting aside a judgment of the learned single judge.**
**In the light of the above facts and in the light of the decision of the Full Bench of this Court I am not in a position to accept the contentions of the petitioner.**
**Therefore the writ petition fails and dismissed.**
Sd/-
## **P.V.KUNHIKRISHNAN JUDGE**
**DM**
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## **APPENDIX OF WP(C) 8636/2010**
PETITIONERS' EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE NOTIFICATION G.O.(MS) NO.795/1960 DATED 8-10-1960.
EXHIBIT P2 A TRUE COPY OF THE RELEVANT EXTRACY OF THE BYE-LAW OF THE FEDERATION.
EXHIBIT P3 A TRUE COPY OF THE ORDER ISSUED BY THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM BY ITS PROCEEDINGS NO.CS(1) 27004 OF 2004 DATED 19-102009.
EXHIBIT P4 A TRUE COPY OF THE SALE DEED DATED 19- 10-2009.
EXHIBIT P5 A TRUE COPY OF THE COMMUNICATION ISSUED BY THE GOVERNMENT OF KERALADATED 18-10-1990 NO.12151/B2/87/TD TO THE MANAGING DIRECTOR, KERALA STATE CO-OPERATIVE CONSUMERS' FEDERATION LTD.
RESPONDENTS EXHIBITS : NIL
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