# Rakesh Tekariwal v. Addl. Commissioner Admin-I Devipatan Division Gonda & Ors

- **Citation:** (2025) 1 ILRA 519
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-01-02
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-tekariwal-v-addl-commissioner-admin-i-devipatan-division-gonda-ors-54893
- **Pages:** 7

## Headnote

Civil Law-The Indian Stamp Act, 1899Sections 2(10), 2(14), 14 & 15 - Article 18
r/w Article 23 of The Schedule 1(B) -
Clause 18 & 34(A) of The Appendix 1(B)-
520 INDIAN LAW REPORTS ALLAHABAD SERIES
For a deed to be termed as a deed of
conveyance, the same should indicate provisions
in terms of a sale as indicated in Section 54 of
the Transfer of Property Act as per which a sale
is transfer of ownership in exchange for price
paid or promised or part paid and part
promised--- That for a deed to come within
definition of conveyance, transfer of rights and
liabilities and interest upon the property
indicated in the instrument is necessary--- That
only effect of the deed is deletion or ignoring
the gata No. 215/1289 against the plot defined
in the sale deed---Evident from the wordings of
the deed that there is no concomitant change
either in the area of property or even in the
boundaries---The deed dated 17th October,
2015 by any stretch of imagination can not be
construed to be a second instrument chargeable
with duty upon a piece of stamped paper on
which duty has already been written since it is
primarily a corrigendum issued for correcting a
mistake
indicated
in
the
first
deed
of
conveyance--- Opp. parties to ensure payment
of 8% per annum simple interest to petitioner
on the amount of deposit made by petitioner in
pursuance of impugned orders from the date of
deposit till the date of refund. (Para 15, 16, 17,
18 & 20)

Petition allowed. (E-15)

List of Cases cited:

## Text

1 All. Rakesh Tekariwal Vs. Addl. Commissioner Admin-I Devipatan Division Gonda & Ors.
519
contains an ordainment that on mutual
agreement, the time for making deposit of
the balance amount of sale price can be
extended for a period not exceeding ninety
days; however, extension beyond ninety
days would not be permissible in any case.

34. The decision in the case of GM,
Sri Siddeshwara Cooperative Bank Ltd.
(supra),
followed
in
the
subsequent
decision of Gaurav Garg (supra), which
are sought to be relied on behalf of the
petitioners, were rendered in the context of
the unamended Rule 9 (4) of the Rules,
2002, wherein there was no outer limit
provided for extension of the time period
for depositing of the balance amount of
75% of the purchase price. The said
authorities cannot be relied upon by the
petitioners to claim further extension of
time beyond the outer limit prescribed
under sub-rule (4) of Rule 9 of the Rules,
2002, as it now exists.

35. The secured creditor is entitled in
law to enforce the security interest and in
the process, to initiate all such steps and
take all such measures for the protection of
public interest by recovering public money
lent to a borrower, who has defaulted in its
repayment.
The
petitioners
(auction
purchasers), having participated in the
auction, would be presumed to be fully
aware of the requirements under the law
with regard to deposit of the purchase price
and also that in case of any default or
failure on their part to make the payment of
the sale price within the permissible time
period under the relevant statutory rules,
would entail forfeiture of the deposit
already made by them.

36. Looking to the objectives for
which, the SARFAESI Act, 2002 has been
enacted, Courts have taken a consistent
view that in such a situation, where a
bidder has failed to deposit the entire sale
price within the stipulated period of ninety
days, the tribunal/court would be extremely
reluctant to interfere, unless of course, a
very exceptional case for interference is
made out. The underlying principle of least
intervention by the tribunal/courts and the
overriding objective of the SARFAESI Act
and the Rules made thereunder, which are
for speedy recovery of debt, cannot be lost
sight of.

37. We do not see any patent
arbitrariness or unreasonableness on the
part of the respondent-Bank, which may
persuade us to entertain the writ petition in
respect of the reliefs sought.

38. The writ petition lacks merit and
is, accordingly, dismissed.
----------
(2025) 1 ILRA 519
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW0 02.01.2025

BEFORE

THE HON'BLE MANISH MATHUR, J.

Writ CNo. 3700 of 2019

Rakesh Tekariwal ...Petitioner
Versus
Addl. Commissioner Admin-I Devipatan
Division Gonda & Ors. ...Respondents

Counsel for the Petitioner:
Mayank Sinha, Girish Chandra Sinha

Counsel for the Respondents:
C.S.C.

Civil Law-The Indian Stamp Act, 1899Sections 2(10), 2(14), 14 & 15 - Article 18
r/w Article 23 of The Schedule 1(B) -
Clause 18 & 34(A) of The Appendix 1(B)-
520 INDIAN LAW REPORTS ALLAHABAD SERIES
For a deed to be termed as a deed of
conveyance, the same should indicate provisions
in terms of a sale as indicated in Section 54 of
the Transfer of Property Act as per which a sale
is transfer of ownership in exchange for price
paid or promised or part paid and part
promised--- That for a deed to come within
definition of conveyance, transfer of rights and
liabilities and interest upon the property
indicated in the instrument is necessary--- That
only effect of the deed is deletion or ignoring
the gata No. 215/1289 against the plot defined
in the sale deed---Evident from the wordings of
the deed that there is no concomitant change
either in the area of property or even in the
boundaries---The deed dated 17th October,
2015 by any stretch of imagination can not be
construed to be a second instrument chargeable
with duty upon a piece of stamped paper on
which duty has already been written since it is
primarily a corrigendum issued for correcting a
mistake
indicated
in
the
first
deed
of
conveyance--- Opp. parties to ensure payment
of 8% per annum simple interest to petitioner
on the amount of deposit made by petitioner in
pursuance of impugned orders from the date of
deposit till the date of refund. (Para 15, 16, 17,
18 & 20)

Petition allowed. (E-15)

List of Cases cited:

1. M/s Kailash Mansarover Build Con. Pvt. Ltd.
Vs St. of U.P. reported in AIR Online 2018
Allahabad 5175

2. Meenu Pathak Vs Revisional Authority/Dy.
Commissioner, Stamp & ors. reported in AIR
2017 Allahabad 132

(Delivered by Hon'ble Manish Mathur, J.)

1. Head Mr. G.C. Sinha learned
counsel for petitioner and learned State
Counsel for opposite parties.

2. Petition has been filed challenging
order dated 5th August, 2016 passed under
Section 33 of the Indian Stamp Act 1899
indicating deficiency in stamp duty and
imposing
penalty
alongwith
interest
thereupon. Also under challenge is the
revisional order dated 15th January, 2019
rejecting
revision
preferred
by
the
petitioners.

3. Learned counsel for petitioner
submits that the property in question
alongwith three other properties were
purchased by petitioner in an auction held
by Allahabad Bank on 4th July, 2015
whereunder petitioner's bid being highest,
was accepted whereafter a single sale deed
dated 13th July, 2015 was executed in
respect of all the four properties indicating
the location, boundaries and area of all the
four properties. It is submitted that with
regard to property No.4, the sale deed
indicated it as being located in gata No.
215/1289.
It
is
also
submitted
that
subsequent to execution of the aforesaid
sale deed, the Allahabad Bank issued a
notice dated 9th October, 2015 to the
petitioner specifically indicating that due to
a clerical mistake, the gata number was
inadvertently indicated with regard to plot
No.4 in the sale deed for which correction
would be required. It is submitted that in
pursuance of the aforesaid, a correction
deed dated 17th October, 2015 was
thereafter executed between the bank and
the petitioner, which however is being
taken by the opposite parties as a fresh sale
deed instead of correction deed and has
therefore been made chargeable to stamp
duty as a fresh deed of conveyance.

4. Learned counsel submits that even
in the memorandum of revision, a specific
ground had been taken that since the
subsequent deed dated 17th October, 2015
merely sought to delete the plot number
without any amendment in the area or
boundaries of the plot in question, the said
deed would clearly come within definition
1 All. Rakesh Tekariwal Vs. Addl. Commissioner Admin-I Devipatan Division Gonda & Ors.
521
of correction of a clerical mistake and can
not be treated to be a fresh deed of
conveyance and therefore deficiency in
stamp duty has been wrongly imposed
upon petitioner. Learned counsel has
adverted judgments rendered by Coordinate Benches of this Court in the cases
of M/s Kailash Mansarover Build Con.
Pvt. Ltd. versus State of U.P. reported in
AIR Online 2018 Allahabad 5175 and
Meenu
Pathak
versus
Revisional
Authority/Dy. Commissioner, Stamp and
others reported in AIR 2017 Allahabad
132.

5. Learned State Counsel has refuted
submissions advanced by learned counsel
for petitioner with submission that it would
be evident from a perusal of the impugned
orders that the deed dated 17th October,
2015 has correctly been indicated as a fresh
deed of conveyance on which insufficient
stamp duty has been indicated and
therefore imposed. It is submitted that with
regard to plot No.4 indicated in the sale
deed dated 13th July, 2015, the gata
number has been specifically indicated in
the sale deed not for the first time but the
same was also indicated in the auction
notice and the sale certificate issued in
favour of petitioner. It is further submitted
that a complete deletion of the gata number
in the earlier sale deed can not be deemed
to be a mere correction since it would
indicate rights having been created over the
property in question due to deletion of such
gata
number,
particularly
when
the
aforesaid gata number had earlier also been
indicated not only in the auction notice but
also in the sale certificate duly signed and
issued by the Allahabad Bank. It has been
submitted that due to the said fact, the
execution of subsequent deed terming it to
be a correction deed is against provisions of
Section 14 and 15 of the Stamp Act as well
as Clause 18 of the Appendix 1(B) of the
Schedule to the Act and therefore also it
would not come within category of a
corrigendum under Clause 34(A) of the
Appendix 1(B) of the Act.

6. It has also been submitted that the
aforesaid gata No. 215/1289 is in fact in the
name of guarantor Mr. Samay Prasad
Mishra who is the progeny of the
mortgagors towards the guarantee of loan
and therefore it is submitted that by virtue
of deletion of the gata number, the property
would in fact revert to the guarantors,
which therefore would indicate fresh
transfer of interest on the property and
therefore has been rightly adjudicated as
fresh deed of conveyance and not deed of
correction.

7. Upon consideration of submissions
advanced by learned counsel for parties and
perusal of material on record the following
question requires adjudication:-

Whether the deed dated 17th
October, 2015 can be considered to be a
corrigendum
or
a
fresh
deed
of
conveyance?

8. With regard to aforesaid question, it
is evident from the record that after
execution of the sale deed dated 13th July,
2015 in pursuance of public auction in
favour of petitioner, the bank issued a letter
dated 9th October, 2015 to the petitioner
indicating the fact that with regard to plot
No.4, the gata No. 215/1289 against the
said plot was inadvertently indicated and
requires correction. In pursuance of the
aforesaid letter, the deed dated 17th
October, 2015 has been executed between
the bank and the petitioner indicating it to
be
a
corrigendum.
The
said
deed
specifically states that with regard to plot
522 INDIAN LAW REPORTS ALLAHABAD SERIES
No.4 as indicated in the sale deed dated
13th July, 2015, the gata number has been
inadvertently mentioned and would require
to be ignored. The deed further states that
the corrigendum would not have any effect
on the valuation of property since the area
and boundaries of the plot have been
correctly indicated in the sale deed dated
13th July, 2015.

9. A perusal of the impugned orders
would make it evident that subsequent deed
dated 17th October, 2015 has been
considered as a fresh deed of conveyance
on the ground that deletion of a gata
number can not be construed as a mistake
particularly
when
the
aforesaid
gata
number was clearly mentioned in the sale
certificate issued by the bank earlier. The
orders impugned also indicate the fact that
there is no provision under the Indian
Stamp Act for deletion or addition of gata
numbers of plots which are the basis of the
instrument of transfer and furthermore that
by means of the deed dated 17th October,
2015, the effect thereof would be that the
aforesaid gata number indicated in various
documents would also required to be
ignored, which is against provisions of
Indian Stamp Act.

10. Apart from the reasons indicated in
the impugned order, the counter affidavit
filed by opposite parties have also adverted
to provisions of Sections 14 and 15 of the
Act as well as Clause 18 of the Appendix
1-B of the Act.

11. With regard to aforesaid, it is
evident that the term conveyance has been
defined in Section 2(10) of the Act in the
following manner:-

"2(10)
"Conveyance".-"
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, Schedule I-A or Schedule I-B],
[as the case may be];"

12. Furthermore the term instrument
has been defined under Section 2(14) of the
Act in the following manner:-

"2(14) Instrument.- "instrument"
includes every document and record
created or maintained in or by an
electronic storage and retrieval device or
media by which any right or liability is, or
purports
to
be,
created,
transferred,
limited,
extended,
extinguished
or
recorded;"

13. A conjoint appreciation of the
aforesaid two provisions would clearly give
the meaning of word 'an instrument of
conveyance' and would include all such
deeds which purport to create, transfer,
limit, extend or extinguish any right or
liability over the property whether movable
or immovable and which is not otherwise
specifically provided for.

14. Article 18 read with Article 23 of
the Schedule 1(B) of the Act indicates
certificate of sale and conveyance and
proper stamp duty imposable thereupon.
The aforesaid Articles are clearly relatable
to Sections 2(10) and 2(14) of the Act.

15. Upon appreciation of the aforesaid
provisions, it can clearly be culled out
that for a deed to be termed as a deed of
conveyance, the same should indicate
provisions in terms of a sale as indicated in
Section 54 of the Transfer of Property Act
as per which a sale is transfer of ownership
1 All. Rakesh Tekariwal Vs. Addl. Commissioner Admin-I Devipatan Division Gonda & Ors.
523
in exchange for price paid or promised or
part paid and part promised.

16. The aforesaid conspectus of
provisions of the Transfer of Property Act
read with relevant provisions of Stamp Act
would make it evident that for a deed to
come within definition of conveyance,
transfer of rights and liabilities and interest
upon
the
property
indicated
in
the
instrument is necessary.

17. Upon applicability of aforesaid
provisions of the two Acts, it is evident
from a perusal of the deed dated 17th
October, 2015 that only effect of the deed
is deletion or ignoring the gata No.
215/1289 against the plot No.4 defined in
the sale deed dated 13th July, 2015.

18. It is also evident from the
wordings of the deed that there is no
concomitant change either in the area of
property or even in the boundaries thereof.
In such circumstances, it can not be held
that the deed dated 17th October, 2015
would create any fresh interest or liability
upon a new plot of land which would be
separate from the earlier deed dated 13th
July, 2015.

19. The provisions of Sections 14 and
15 of the Stamp Act pertain to the aspect
that no second instrument chargeable with
duty shall be written upon a piece of stamp
paper upon which an instrument chargeable
with duty has already been written and
every
such
instrument
written
in
contravention of Sections 13 and 14 of the
Act would be deemed to be unstamped.

20. Section 14 of the Act by its very
definition is inapplicable in the present
facts and circumstances since the deed
dated 17th October, 2015 by any stretch of
imagination can not be construed to be a
second instrument chargeable with duty
upon a piece of stamped paper on which
duty has already been written since it is
primarily
a
corrigendum
issued
for
correcting a mistake indicated in the first
deed of conveyance.

21. In view of aforesaid facts and
circumstances and provisions of the Act, it
is quite evident that the deed dated 17th
October,2015 can not be construed to be
a fresh deed of conveyance since it does
not
change
either
the
description,
boundaries or area of the plot in question
nor does it create a fresh right, interest or
liability over new plot.

22. The aforesaid aspects have also
been considered by a Division Bench of
this Court in Basdeo Singh versus State of
U.P. and others 2004 All.L.J. 831 in which
following has been held:-

"We are further of the view that
an arithmetical mistake has to be taken to
be a mistake of calculation and a clerical
mistake has to be taken to be a mistake in
writing or typing. A mistake requiring
elaborate arguments on question of fact or
law cannot be categorized as clerical or
arithmetical mistake. The petitioner has
sought to claim a right asserting that there
was an error of decision. Such grievance
could be raised only in a proceeding
challenging
the
award
after
getting
reference made as contemplated under
section 18 of the Act and not in the
proceedings under Section 13-A of the Act.
The question of enhancement of the
compensation as sought for in the present
case has to be determined in the
appropriate proceeding after the reference
is made as contemplated under section 18
of the Land Acquisition Act."
524 INDIAN LAW REPORTS ALLAHABAD SERIES

23. Similarly in the case of Meenu
Pathak (supra) a Co-ordinate Bench of
this Court has placed reliance on another
judgment rendered this Court in the case of
Vineeta
Agarwal
versus
Additional
Commissioner (Administration) in the
following manner:-

"7. The mistake in mentioning the
plot number in the lease deed is purely a
clerical error which has arisen due to
inadvertence of the parties, specially the
office of the Allahabad Development
Authority. The said correction deed does
not create any new rights in favour of the
petitioner. The petitioner by the said two
documents read together only gets right in
plot no.D-393 and, therefore, is liable for
payment of stamp duty only once.
Xxxxxxxxxxxxxxx

9. In view of the above, the
aforesaid deed dated 7.2.2006 is a deed of
correction and since it was necessitated on
account of clerical mistake it would be
chargeable to stamp duty under Article 34A of Schedule 1-B of the Indian Stamp Act,
1899 and stamp duty of Rs.10/- alone shall
be payable on it. The petitioner has already
paid a stamp duty of Rs.100/- on the said
deed."

It has thereafter been held that
since the deed in question in the aforesaid
writ petition did not create any new right, it
was therefore construed to be a correction
deed chargeable under Article 34-A of
Schedule 1-B of the Act and therefore
stamp duty of Rs.10/- only would be
payable.

24. This Court is in respectful
agreement with aforesaid proposition of
law as enunciated.

25. So far as the aspect that the gata
number had earlier also been indicated in
the auction and sale certificate and
therefore can not be construed as a mistake
is concerned, the said aspect also has been
delineated in the deed dated 17th October,
2015 in which it has been specifically
indicated that even in the e-auction notice,
there was no mention of gata number with
regard to the plot in question. This aspect
takes care of the reasoning indicated in the
impugned orders which clearly are against
material on records.

26. In view of aforesaid, the impugned
orders dated 5th August, 2016 and 15th
January,2019 being against the provisions
of law are hereby quashed by issuance a
writ in the nature of Certiorari. Further a
writ in the nature of Mandamus is issued
commanding the opposite parties to refund
any amount deposited by petitioner in
pursuance of impugned orders forthwith to
the petitioner.

27. Learned counsel for petitioner has
emphasized that since an illegal recovery
has been made from petitioner, he is
entitled to interest thereupon. He has placed
reliance on judgment of Co-ordinate Bench
of this Court in the case of M/s Kailash
Mansarover Build Con. Pvt. Ltd.(supra).

28. Upon perusal of the aforesaid
judgment, it is evident that Co-ordinate
Bench of this Court has issued a general
Mandamus to the State Government and all
concerned authorities to pay simple interest
at the rate of 8% per annum on all amounts
of refund of stamp duty etc. under the Act
to the concerned person for the period from
the date of deposit till the date of refund. A
copy of the order was also sent to the Chief
Secretary, Principal Secretary, Law and
Principal Secretary, Tax and Registration
for compliance. The relevant portion is as
follows:-
1 All. Surendra Mani Vs. State of U.P. & Ors.
525

"28. Hon'ble Supreme Court has
also held in the case of Sandvic Asia Ltd.
(Supra)
that
such
a
situation
is
discriminatory in nature and causes great
prejudice to the lacs and lacs of the
assessees. In the case of Tata Chemicals
Ltd. (Supra) Hon'ble Supreme Court
observed that the Government, there being
no express statutory provision for payment
of interest on the refund of excess amount/
tax collected by the revenue; cannot shrug
off its apparent obligation to reimburse the
deductors lawful money with accrued
interest for the period of undue retention of
such monies. The State having received the
money without right and having retained
and used it, is bound to make the party
good, just as an individual would be under
the like circumstances. The obligation to
refund money received and retained
without right implies and carries with it the
right to interest. In the case of Hari
Chandra (Supra), this Court held in similar
circumstances
in
stamp
matter
that
payment of interest on the money retained
by the State Government is necessary when
the money is to be returned under the
orders of the appellate or the revisional
authority. It has not been shown by the
respondents that the law laid down in this
judgement has been reversed or modified.
In this judgement, this Court directed for
payment of interest @ 8 per cent per
annum from the date of deposit of money
till the date of actual payment.

29.
In
view
of
the
above
discussions, a general mandmus is also
issued to the State Government and all
concerned authorities to pay within three
months simple interest @ 8 per cent annum
on all amounts of refund of stamp duty etc.
under the Act to the concerned person, for
the period from the date of deposit till the
date of refund.

30.
In
result,
writ
petition
succeeds and is allowed as indicated
above.

31. Let a copy of this order be
sent by the Registrar General of this Court
to the Chief Secretary, Principal Secretary
Law and Principal Secretary, Tax and
Registration for compliance. "

29. In view of aforesaid judgment, a
further writ in the nature of Mandamus is
issued commanding the opposite parties to
ensure payment of 8% per annum simple
interest to petitioner on the amount of
deposit made by petitioner in pursuance of
impugned orders from the date of deposit
till the date of refund. Such payment of
interest and refund shall be ensured within
a period of three months from the date a
certified copy of this order is served upon
the said authorities.

30. Resultantly the petition succeeds
and is allowed. Parties to bear their own
cost.
----------
(2025) 1 ILRA 525
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.01.2025

BEFORE

THE HON'BLE MANISH KUMAR NIGAM, J.

Writ C No. 22636 of 2024

Surendra Mani ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Anil Kumar Tiwari

Counsel for the Respondents:
C.S.C.