1st Manipal Ranka National Moot Court Participation Memorial

MANIPAL RANKA NATIONAL MOOT COURT COMPETITION, 2016 JDC LTD. Vs RAMNATH

IN THE HON’BLE SUPREME COURT OF INDIA

APPEAL NO……/2016 (ARTICLE 136 OF THE CONSTITUTION)

JDC LTD. ………………………………………………………………………..APPELLANT V. RAMNATH………………………….……………………………………….RESPONDENT

MANIPAL RANKA NATIONAL MOOT COURT COMPETITION, 2016

1 MEMORIAL ON BEHALF OF APPELLANT

MANIPAL RANKA NATIONAL MOOT COURT COMPETITION, 2016 JDC LTD. Vs RAMNATH

INDEX 1. 2. 3. 4. 5. 6. 7.

LIST OF ABBREVIATIONS INDEX OF AUTHORITIES STATEMENT OF FACTS STATEMENT OF JURISDICTION SUMMARY OF ARGUMENTS ARGUMENTS ADVANCED PRAYER

LIST OF ABBREVIATIONS

A.I.R--------------------------------------------------------------------------- ALL INDIA REPORTERS Cal----------------------------------------------------------------------------------------------CALCUTTA Co. -------------------------------------------------------------------------------------------------COMPANY GPA----------------------------------------------------------------GENERAL POWER OF ATTORNEY Sec------------------------------------------------------------------------------------------SECTION 2 MEMORIAL ON BEHALF OF APPELLANT

MANIPAL RANKA NATIONAL MOOT COURT COMPETITION, 2016 JDC LTD. Vs RAMNATH

Ltd------------------------------------------------------------------------------------------LIMITED BC----------------------------------------------------------------------------------------BANKING CASES Proviso----------------------------------------------------------------------------PROVISION SCC---------------------------------------------------------------------------SUPREME COURT CASES Bom.-------------------------------------------------------------------------------------BOMBAY INDEX OF AUTHORITIES List of Statutes: I. II. III. IV. V. VI. VII. VIII. IX.

The Constitution of India,1950 The Transfer of Property Act, 1882 The Indian Contract Act, 1872 The Specific Relief Act, 1963 The Registration Act, 1908 Rajasthan Stamp Law (Adaptation) Act,1998 Indian Stamp Act,1899 The Income Tax Act, 1961 The Power Of Attorney Act, 1882

List of books referred:



JAIN, M. P., INDIAN CONSTITUTIONAL LAW,( WADHWA AND COMPANY, 6

  

NAGPUR) (REP. 2012) TIWARI, H.N., TRANSFER OF PROPERTY ACT, 1882 SHUKLA, TRANSFER OF PROPERTY, 1882 BANGIA, THE INDIAN CONTRACT ACT, 1872

Dictionaries



AIYAR, RAMANATHA P.: “THE LAW LEXICON”, WADHWA & COMPANY, 2ND EDN.

 

NAGPUR(2002). BLACK, HENRY CAMPBELL: ‘BLACKS LAW DICTIONARY’, 6 1991). CURZON. L. B: “DICTIONARY OF LAW”, PITMAN PUBLISHING, 4TH EDN. NEW DELHI (1994). 3 MEMORIAL ON BEHALF OF APPELLANT

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

GARNER, BRYAN A.: “A DICTIONARY OF MODERN LEGAL USAGE”, OXFORD



UNIVERSITY PRESS GREENBERG, DANIEL AND ALEXANDRA, MILLBROOK: “STROUD’S JUDICIAL DICTIONARY OF WORD S & PHRASES”, VOL. 2, 6 THEDN., CENTENNIAL ED. (1891-



ND EDN. OXFORD (1995). EDN., LONDON: SWEET & MAXWELL (2000). INTERNET SITES

 http://www.findlaw.com  http://www.indiankanoon.com  http://www.indlawinfo.org/  http://www.manupatra.com

STATEMENT OF FACTS

JDC Ltd. A company incorporated under the Companies Act, 2013, bought two and half acres of land in Jagatpura village, Jaipur, from one Ramnath and his family members by means of an agreement of sale, general power of attorney and a will, executed on 01.08.2013 for a consideration of Rs.50.00 lakhs. JDC Ltd. paid a sum of Rs.45.00 lakhs in cash against possession U/S 53-A of the Transfer of Property Act, 1882 and a balance of Ra 5.00 lakhs was payable before 02.01.2014. The balance amount of Rs. 5.00 lakhs was offered to Ramnath on 10.01.2014, but he refused to accept it. The agreement was signed and executed by the vendor i.e. Ramnath. JDC Ltd. then on 15.10.2013 verbally agreed to sell one acre of the said property to one Shri Yadav for Rs. 40.00 lakhs. However on 16.10.2013, Shri Yadav, got in touch with Ramnath and his family members and got a GPA in favour of Dharamvir Yadav, and sale agreement in regard to the entire two and half acres, was executed and registered and an additional Rs.50.00 lakhs was paid to Ramnath. The earlier GPA, in favour of the Plaintiff/JDC was cancelled illegally, and it was mentioned in the agreement that possession was to be taken over by Mr. Yadav from JDC Ltd. 4 MEMORIAL ON BEHALF OF APPELLANT

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STATEMENT OF JURISDICTION The Hon’ble Supreme Court has the jurisdiction to hear special appeal from decisions of the Hon’ble high Court of India. Under article 136 (1), the Hon’ble supreme court has the power to take into consideration the present case. It confers discretion on the Supreme Court to grant leave where justice, equity and good conscience requires intervention. The present case is of supreme need and hence to restore the grave injustice, the present Article is invoked.

5 MEMORIAL ON BEHALF OF APPELLANT

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In Bengal chemical and pharmaceutical works ltd v/s employees 1 and State of Bombay v/s Rusy2, it was held that the Supreme court has the power to interfere and allow special leave in expectional cases.

SUMMARY OF ARGUMENTS

I.WHETHER THE AGREEMENT OF SALE, GENERAL POWER OF ATTORNEY AND THE WILL EXECUTED IN THE FAVOR OF THE PLAINTIFF IS VALID? The Agreement to Sale, General Power of Attorney and the Will in favor of the plaintiff is a valid because-(i) sale has taken place between the two parties and (ii) the plaintiff has paid more than 90% of the total consideration and has taken possession of the property.

1 AIR 1959 SC 633 2 AIR 1960 SC 391 6 MEMORIAL ON BEHALF OF APPELLANT

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II.WHETHER WHEN A SUM OF Rs. 45 LAKHS HAVING BEEN PAID OUT OF Rs.50.00 LAKHS AND POSSESSION GIVEN U/S 53A OF THE TRANSFER OF PROPERTY ACT, RAMNATH AND HIS FAMILY MEMBERS HAD NO POWER, COMPETENCE AND AUTHORITY TO EXECUTE SECOND GENERAL POWER OF ATTORNEYIN FAVOUR OF Mr. YADAV AND CANCEL THE EARLIER GENERAL POWER OF ATTORNEY IN FAVOUR OF THE PLAINTIFF, IS VALID? The execution of the second GPA in favor of Mr. Yadav is invalid as the GPA of JDC Ltd. was canceled illegally. JDC had already taken possession of the property and the GPA that was earlier executed in the name of JDC was made in reference to the same property. Therefore making and execution of a second gpa is void-ab-initio.

III.WHETHER THE PLAINTIFF WAS READY, WILLING AND PREPARED AND TENDERED Rs. 5 LAKHS AFTER 2.01.2014 AND REQUESTED RAMNATH AND HIS FAMILY MEMBERS TO EXECUTE SALE DEED AND TO GET IT REGISTERED. WHAT WAS THE EFFECT OF NON-PAYMENT OF BALANCE AMOUNT ON 2.01.2014? The plaintiff/ JDC Ltd. was ready, willing and prepared to pay the balance amount on 10.01.2014 but Ramnath refused to accept the balance amount and rather sold the property to Mr. Yadav before the due date.

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IV.WHETHER THE STAMP DUTY REGISTRATION AUTHORITY WAS RIGHT IN DEMANDING STAMP DUTY ON THE FAIR MARKET VALUE OF Rs. 1 CRORE AND 50 LAKHS AS ON 01.08.2014 AND NOT AT RECORDED VALUE/FAIR MARKET VALUE ON 01.08.2013 i.e. Rs. 50 LAKHS? IF THE STAMP DUTY WOULD BE PAYABLE ON ADDITIONAL 1 CRORE, WHO WOULD BEAR SUCH AMOUNT? That the Stamp Duty Registration Authority was right in demanding stamp duty on the fair market value of Rs. 1 Crore and 50 Lakhs as on 01.08.2014 and not recorded value on 01.08.2013 i.e. 50 lakhs. As given in the facts, the registering Authority stated that fair market value on the date of registration and not the fair market value on the date of agreement would be payable. So the stamp duty would rs 1.50 crore according to section 50C of the income tax act of 1861

ARGUMENTS ADVANCED ISSUE 1 I.WHETHER THE AGREEMENT OF SALE, GENERAL POWER OF ATTORNEY AND THE WILL EXECUTED IN FAVOUR OF THE PLAINTIFF IS VALID? The appellant humbly submits to this Honorable Moot Court that-“there was a delivery of possession as well as payment of more than half the consideration in the transaction that took place between JDC ltd and Mr Ramanath as such a proper sale took place according to the provisions of the Transfer of Property Act,1882’ Hereby reproducing Sec 54 of Transfer of Property Act1.1 8 MEMORIAL ON BEHALF OF APPELLANT

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"Sale" defined "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Sale how made: Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. Contract for sale: A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property.

According to the above mentioned section, a sale is transfer of ownership which occurs when one party to the sale pays or promises to pay or part-pays or partpromises to pay the agreed price or consideration. The plaintiff has already paid more than 90% of the total consideration ie Rs. 45 Lacs out of the total amount of 50 lacs, thereby inferring that a sale took place. Thus making the agreement of sale valid A sale of contract according to the above mentioned section is a contract between parties who have agreed to a set of terms as laid down in the Agreement of sale. Therefore by referring the facts we can say that the agreement was valid as both the parties in this case had agreed to the decided terms and condition which implies that there was free consent which is an essential element of a valid agreement under sec 10 of the Indian Contract Act, 1872.

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In Prem Rice Mill v/s State of Karnataka, 3it was held that Section 54 of the Transfer of Property Act, Section 4 of the Sale of Goods Act along with Section 10 of the Contract Act per se reveals that in the matter of sale also, the free consent of the parties should be there. We reproduce section 10 of Indian contract act as : What agreements are contracts All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Nothing herein contained shall affect any law in force in 1India, and not hereby expressly repealed, by which any contract is required to be made in writing 2or in the presence of witnesses, or any law relating to the registration of documents.

1.2 The plaintiff i.e. JDC Ltd. had taken possession of the property of land on the basis of Sec 53A of Transfer of Property Act We reproduce Sec 53A of Transfer of Property Act: Part performance Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract,

3 ILR 1995 KAR 1605 10 MEMORIAL ON BEHALF OF APPELLANT

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and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: PROVIDED that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof. According to the above section “part possession” which is also called protection of possession gives protection of possession to the transferee who has taken possession of the land and has exercised a part of the contract. The following conditions should be satisfied according to Sec 53A of the Transfer of Property Act(i) The contract should be in writing. (ii) The transferee should take possession in furtherance of the contract. (iii) If the transferee was in possession even prior to the contract, he should continue in possession and also do some act in furtherance of the contract. As we see that that plaintiff had fulfilled all the condition of sec-53A, therefore we could say that a valid agreement of sale was present. In Smt Saraladevi Widow of Kundanlal v/s Gourishankar Namdeo4, it was held that judgment on the basis of Sec-53A can be given only if there is possession of the property. 1.3 Registration

4 AIR 1996 Bom 98 11 MEMORIAL ON BEHALF OF APPELLANT

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Section 49 of the Registration Act,1908 says that non registration of any document does not take away its evidentiary value. In Chinnappareddigari Pedda Muthyalareddy v. Chinnappareddigari Venkatareddy5 and others and also in Roshan Singh v. Zile Singh6, it was held that unregistered document affecting immovable property and required to be registered, may be received as evidence of a contract in a suit for specific performance or as evidence of part performance of a contract. Even in Ram Krishnan and another Vs. Bijender mann Alias Vijender mann7, it was held that a suit for specific performance, based upon an unregistered contract/agreement to sell that contains a clause recording part performance of the contract by delivery of possession or has been executed with a person, who is already in possession shall not be dismissed for want of registration of the contract/agreement

Hereby reproducing Sec 49 of the Registration Act, 1908“Effect of non-registration of documents required to be registered.—No document required by section 17 1[or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall— (a) Affect any immovable property comprised therein, or (b) Confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered. Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 5 AIR 1969 AP 242 6 1988 AIR 881 7 2013 (169) PLR 195, 12 MEMORIAL ON BEHALF OF APPELLANT

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of 1877) [***] or as evidence of any collateral transaction not required to be effected by registered instrument.” In K.Panchapagesa Ayyar and Anr v/s K. Kalyanasundaram and Ors, 8the Honble court gave the judgement that a compulsorily registrable but unregistered document is admissible to refresh the memory of a witness

Thus according to the above

mentioned section an unregistered agreement can be treated as evidence in the court of law. And if it can be treated as evidence then the agreement is a valid one. Thus the Agreement of Sale, General Power of Attorney and will executed in favour of the plaintiff is valid.

ISSUE 2 8 O. S. No. 15 of 1947 13 MEMORIAL ON BEHALF OF APPELLANT

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II.WHETHER WHEN A SUM OF Rs. 45 LAKHS HAVING BEEN PAID OUT OF Rs.50.00 LAKHS AND POSSESSION GIVEN U/S 53A OF THE TRANSFER OF PROPERTY ACT, RAMNATH AND HIS FAMILY MEMBERS HAD NO POWER, COMPETENCE AND AUTHORITY TO EXECUTE SECOND GENERAL POWER OF ATTORNEY IN FAVOUR OF Mr. YADAV AND CANCEL THE EARLIER GENERAL POWER OF ATTORNEY IN FAVOUR OF THE PLAINTIFF, IS VALID? Sec 1 of the Power of Attorney Act, 1882 lays down the definition of Power of Attorney. Hereby reproducing Sec 1 of The Power of Attorney Act, 1882“In this Act, ‘Power of Attorney’ includes any instrument empowering a specified person to act for and in the name of the person executing it” The above section means that if a person is transferring his power of attorney to another person then the transferor is giving his rights to the transferee where the transferee can act for and in the name of the person executing it. Thus giving rise to a fiduciary principalagency relationship. This means that the GPA executed in the name of JDC gave it the full right to carry on the business with regards to the property. Therefore it was the plaintiff who had the right to sell the property to Mr Yadav and not Ramanath according to section 2 of the power of attorney act,1882. Hereby reproducing Sec 2 of the Power of Attorney Act,1882“The donee of a power-of-attorney may, if he thinks fit, execute or do any instrument or thing in and with his own name and signature, and his own seal, where sealing is required, by the authority of the donor of the power; and every instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof.”

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Though Principal has got discretionary powers to revoke the Power of Attorney, there are certain exceptions which restrain the Principal from revocation, which are explained below: 1. When the Power of Attorney Holder himself has an interest in the property, which forms the subject matter of the power of attorney. In such cases, the same cannot be revoked by the Principal alone without obtaining consent from the Power of Attorney Holder. 2. When the Power of Attorney Holder has partly exercised the act for which the Principal has authorized, authority as regards the acts already exercised cannot be revoked. 3. When the Power of attorney is given for due consideration and forms part of the transaction. Therefore, cancellation of GPA by ramanath was invalid as well as illegal as he did not have the right to do so.

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ISSUE 3 III.WHETHER THE PLAINTIFF WAS READY, WILLING AND PREPARED AND TENDERED Rs. 5 LAKHS AFTER 2.01.2014 AND REQUESTED RAMNATH AND HIS FAMILY MEMBERS TO EXECUTE SALE DEED AND TO GET IT REGISTERED. WHAT WAS THE EFFECT OF NON-PAYMENT OF BALANCE AMOUNT ON 2.01.2014?

The due date of JDC Ltd. given by Ramnath was 02.01.2014 to pay back the balance amount to Ramnath. Due to certain crisis JDC was unable to pay the remaining amount on the due date but repaid it just within just 8 days ie on 10.01.2014. however it was Ramanath who had refused to take the money. This shows that JDC was ready, willing and prepared to get the sale deed registered as well as executed. Ramanath had already sold the land to Mr Yadav before the due date of payment of the balance. Thus he had committed breach of contract. And therefore he is liable to pay compensation to the plaintiff as under Sec-73 of the Indian Contract Act,1872 Reproducing Section Sec-73 of the Indian Contract Act,1872 Compensation of loss or damage caused by breach of contract When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it. Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach. Compensation for failure to discharge obligation resembling those created by contract: When an obligation resembling those created by contract has been incurred and has not been discharged, 16 MEMORIAL ON BEHALF OF APPELLANT

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any person injured by the failure to discharge it is entitled to receive the same compensation from the party in default, as if such person had contracted to discharge it and had broken his contract. Explanation: In estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused by non-performance of the contract must be taken into account. Illustrations (c) A contracts to buy of B, at a stated price, 50 maunds of rice, no time being fixed for delivery. A afterwards informs B that he will not accept the rice if tendered to him. B is entitled to receive from A, by way of compensation, the amount, if any, by which the contract price exceeds that which B can obtain for the rice at the time when A informs B that he will not accept it. (d) A contracts to buy B's ship for 60,000 rupees, but breaks the promise. A must pay to B, by way of compensation, the excess, if any, of the contract price over the price which B can obtain for the ship at the time of breach of promise. (e) A, the owner of a boat, contracts with B to take a cargo of jute to Mirzapur, for sale at that place, starting on a specified day. The boat, owing to some unavoidable cause, does not start at the time appointed, whereby the arrival of the cargo at Mirzapur is delayed beyond the time when it would have arrived if the boat had sailed according to the contract. After that date, and before the arrival of the cargo, the price of jute falls. The measure of the compensation payable to B by A is the difference between the price which B could have obtained for the cargo at Mirzapur at the time when it would have arrived if forwarded in due course, and its market price at the time when it actually arrived. (f) A contracts to repair B's house in a certain manner, and receives payment in advance. A repairs the house, but not according to contract. B is entitled to recover from A the cost of making the repairs conforming to the contract.

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(g) A contracts to let his ship to B for a year, from first of January, for a certain price. Freights rise, and, on the first of January, the hire obtainable for the ship is higher than the contract price. A breaks his promise. He must pay to B, by way of compensation, a sum equal to the difference between the contract price and the price for which B could hire a similar ship for a year on and from the first of January. (l) A, a builder, contracts to erect and finish a house by the first of January, in order that B may give possession of it at that time to C, to whom B has contracted to let it. A is informed of the contract between B and C. A builds the house so badly that, before the first of January, it falls down and has to be rebuilt by B, who in consequence, loses the rent which he was to have received from C, and is obliged to make compensation to C for the breach of his contract. A must make compensation to B for the cost of rebuilding of the house, for the rent lost, and for the compensation made to C. (m) A sells certain merchandise to B, warranting it to be of a particular quality, and B, in reliance upon this warranty, sells it to C with a similar warranty. The goods prove to be not according to the warranty, and B becomes liable to pay C a sum of money by way of compensation. B is entitled to be reimbursed this sum by A. (n) A contracts to pay a sum of money to B on a day specified. A does not pay the money on that day. B, in consequence of not receiving the money on that day, is unable to pay his debts, and is totally ruined. A is not liable to make good to B anything except the principal sum he contracted to pay together with interest up to the day of payment. (o) A contracts to deliver 50 maunds of saltpetre to B on the first of January, at a certain price. B, afterwards, before the first of January, contracts to sell the saltpetre to C at a price higher than the market price of the first of January. A breaks his promise. In estimating the compensation payable by A to B, the market price of the first of January, and not the profit which would have arisen to B from the sale to C, is to be taken into account.

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(p) A contracts to sell and deliver 500 bales of cotton to B on a fixed day. A knows nothing of B's mode of conducting his business. A breaks his promise, and B, having no cotton, is obliged to close his mill. A is not responsible to B for the loss caused to B by closing of the mill. (q) A contracts to sell and deliver to B, on the first of January, certain cloth which B intends to manufacture into caps of a particular kind, for which there is no demand, except at that season. The cloth is not delivered till after the appointed time, and too late to be used that year in making caps. B is entitled to receive from A, by way of compensation, the difference between the contract price of the cloth and its market price at the time of delivery, but not the profits which he expected to obtain by making caps, nor the expenses which he has been put to in making preparation for the manufacture. There is no effect on the respondent for the non-payment of balance by the plaintiff because the respondent had already by then sold the property to a third party, Mr Yadav for full consideration. Thus no pecuniary loss had been caused to the respondent. Therefore its effect was null and void.

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ISSUE 4 IV.WHETHER THE STAMP DUTY REGISTRATION AUTHORITY WAS RIGHT IN DEMANDING STAMP DUTY ON THE FAIR MARKET VALUE OF Rs. 1 CRORE AND 50 LAKHS AS ON 01.08.2014 AND NOT AT RECORDED VALUE/FAIR MARKET VALUE ON 01.08.2013 i.e. Rs. 50 LAKHS? IF THE STAMP DUTY WOULD BE PAYABLE ON ADDITIONAL 1 CRORE, WHO WOULD BEAR SUCH AMOUNT? That the Stamp Duty Registration Authority was right in demanding stamp duty on the fair market value of Rs. 1 Crore and 50 Lakhs as on 01.08.2014 and not recorded value on 01.08.2013 i.e. 50 lakhs. As given in the facts, the registering Authority stated that fair market value on the date of registration and not the fair market value on the date of agreement would be payable. So the stamp duty would rs 1.50 crore according to section 50C of the income tax act of 1861 Reproducing section 50c of the income tax Act of 1861, 50C. Special provision for full value of consideration in certain cases.- (1) Where the consideration received or accruing as a result of the transfer by an assessee of a capital asset, being land or building or both, is less than the value adopted or assessed or assessable by any authority of a State Government (hereafter in this section referred to as the “stamp valuation authority”) for the purpose of payment of stamp duty in respect of such transfer, the value so adopted or assessed or assessable shall, for the purposes of section 48, be deemed to be the full value of the consideration received or accruing as a result of such transfer. (2) Without prejudice to the provisions of sub-section (1), where— (a) the assessee claims before any Assessing Officer that the value adopted or assessed or assessable by the stamp valuation authority under sub-section (1) exceeds the fair market value of the property as on the date of transfer; 20 MEMORIAL ON BEHALF OF APPELLANT

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(b) the value so adopted or assessed or assessable by the stamp valuation authority under subsection (1) has not been disputed in any appeal or revision or no reference has been made before any

other

authority,

court

or

the

High

Court,

the Assessing Officer may refer the valuation of the capital asset to a Valuation Officer and where any such reference is made, the provisions of sub-sections (2), (3), (4), (5) and (6) of section 16A, clause (i) of sub-section (1) and sub-sections (6) and (7) of section 23A, sub-section (5) of section 24, section 34AA, section 35 and section 37 of the Wealth-tax Act, 1957 (27 of 1957), shall, with necessary modi-fications, apply in relation to such reference as they apply in relation to a reference made by the Assessing Officer under sub-section (1) of section 16A of that Act. Explanation 1.—For the purposes of this section, “Valuation Officer” shall have the same meaning as in clause (r) of section 2 of the Wealth-tax Act, 1957 (27 of 1957). Explanation 2.—For the purposes of this section, the expression “assessable” means the price which the stamp valuation authority would have, notwithstanding anything to the contrary contained in any other law for the time being in force, adopted or assessed, if it were referred to such authority for the purposes of the payment of stamp duty. (3) Subject to the provisions contained in sub-section (2), where the value ascertained under subsection (2) exceeds the value adopted or assessed or assessable by the stamp valuation authority referred to in sub-section (1), the value so adopted or assessed or assessable by such authority shall be taken as the full value of the consideration received or accruing as a result of the transfer. Section 50C provides that if the value stated in the instrument of transfer is less than the valuation adopted, assessed or assessable by the stamp duty authorities, the valuation as adopted, assessed or assessable by the stamp duty authorities will be considered for the purpose of computation of capital gains arising on transfer of land or building or both. For example if in the agreement for sale, the value of the flat is stated at Rs. 24 lacs but according to the stamp duty authorities the valuation of the flat is Rs. 34 lacs, then it will be 21 MEMORIAL ON BEHALF OF APPELLANT

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considered that the flat has been sold for Rs. 34 lacs and capital gains will be computed on the basis of Rs. 34 lacs. Thus, the Stamp Duty Registering authority was right on demanding stamp duty on the fair market value of 1crore and 50 lacs. Moreover, if the stamp duty is to be paid on the additional 1 crore, then it should be borne by Mr Yadav because it was in his name that the instrument was executed as stated in sec-17 of the Rajasthan Stamp Act, 1998 and sec-17 of the Indian Stamp Act,1899 Reproducing sec-17 of the Rajasthan Stamp Act, 1998 17 - Instruments executed in the State All instruments chargeable with duty and executed by any person in the State shall be stamped before or at the time of execution or immediately thereafter on the next working day following the day of execution. Reproducing sec-17 of the Indian Stamp Act,1899 All instruments chargeable with duty and executed by any person in India shall be stamped before or at the time of execution. It is evident from the facts that all the documents were executed in the name of Mr Yadav on 16.10.2013. so it must be Mr.Yadav who should pay the additional stamp duty.

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PRAYER

In light of the issues raised, arguments advanced, cases cited in front of this Honorable Supreme Court of India, the appellant, on behalf of the Bar Association of India requests this Honorable Court for specific performance. And may grant any other reliefs as Hon’ble Court may deem fit in light of Justice, Equity and Good Conscience. For which the Counsels on behalf of the Appellant will be forever duty-bound and obliged

23 MEMORIAL ON BEHALF OF APPELLANT