Sunday 13 April 2014

Whether landlord is bound to pay stamp duty for security deposit given by tenant,


 Clause 3 will show that an amount of  50,000/- is

paid as security deposit for granting the lease and Clause 4

provides for repayment of the same on the termination of the



lease. Clause 5 clearly provides that the lessee shall not be

entitled to ask for set off the monthly rent from the security

deposit paid and it shall be entitled to refund only after the

expiry of the period of lease. Obviously, Clause 6 was relied upon

by the court below, which provides for settlement of the entire

claim by the lessor against the lessee if any found due from the

above said sum of security deposit. The view taken by the Rent

Control Court is that the same can be treated as money

advanced. We are definitely of the view that, it cannot be as

the character of the term "money advanced" in Article 33(c) of

the Schedule is different. It is not a consideration which has

passed irrevocably from the tenant to the landlord over and

above the consideration for the lease, which is the payment of

rent. Even if it is adjustable towards rent, the character is not

changed.     It is for due performance of the obligations of the

lease. On termination of lease and on vacating the room, it is

refundable.     What is paid being the security deposit, it is

refundable. Such an amount which is refundable will not get the


character of money advanced under Article 33(c).
Property - Payment of stamp duty - Whether order passed holding view that Petitioner/landlord was bound to pay stamp duty for security deposit given by tenant, as per Article 33(c) of Kerala Stamp Act was sustainable or not - Held, in present case, Court was of view that, it could not be as character of term "money advanced" in Article 33(c) of the Schedule was different - It was not a consideration which had passed irrevocably from tenant to landlord over and above consideration for lease, which was payment of rent - Even if it was adjustable towards rent, character was not changed - It was for due performance of obligations of lease - On termination of lease and on vacating room, it was refundable - What was paid being security deposit, it was refundable - Such an amount which is refundable will not get character of money advanced under Article 33(c) of Kerala Stamp Act - Petition allowed.
     IN THE HIGH COURT OF KERALA AT ERNAKULAM

                        PRESENT:

    THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR
                            &
   THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI

  TUESDAY, THE 23RD DAY OF JULY 2013
              OP (RC).No. 506 of 2013 (O)
            

  MOIDEEN KOYA, 
V

    1. K.GIRISH KUMAR, 
        
T.R. Ramachandran Nair, J.
Citation: 2013 (3) KHC 396, 2013(3)KLJ702, 2013(3)KLT616,AIR 2014 kerala 30



      An order passed by the Rent Control Court holding the

view that the petitioner/landlord is bound to pay stamp duty for

security deposit given by the tenant, as per Article 33(c) of the

Kerala Stamp Act, is under challenge in this original petition.

      2.   The petitioner had filed RCP No.13 of 2012 before

the Rent Control Court, Kozhikode. Eviction was sought under

Section 11 (4) (v) of the Act. Ext.P2 is the copy of the RCP

filed by the petitioner. A lease agreement was executed

between the landlord and the tenant on 29.9.2010, in which

the monthly rent payable was fixed as  3,500/-. An amount of

 50,000/- was given by the tenant as security deposit which

was refundable on termination of the lease. The tenant was set

as ex-parte and the case was posted for ex-parte evidence and


the petitioner filed the chief affidavit also. The Rent Control

Court refused to mark the lease agreement for the reason that

the same is under stamped and the court ordered to pay deficit

of the stamp duty along with penalty for security and the rent

payable as per the lease agreement. The said order is dated

4.1.2013. The petitioner filed I.A.No.278 of 2013 to review the

said order and the present impugned order is passed on the said

I.A.

      3.    We heard learned counsel for the petitioner Sri.

S.Nirmal and learned Government Pleader Sri.R.Padmaraj. The

first respondent tenant has not entered appearance.

      4.    A reading of the order shows that the Rent Control

Court relied upon Article 33(c) of the Kerala Stamp Act, 1959

and held that the stamp duty has to be paid for a consideration

equal to the amount for money advanced in addition to the rent

reserved. The court was also of the view that when there is a

clause providing for adjustment of security towards the defaulted

rent, the payment of balance amount has to be regarded as


money advanced.

      5.    The legal question therefore raised is whether Article

33(c) will cover a refundable security provided in a lease

agreement, even though the same is adjustable towards the

defaulted rent.

      6.    The learned counsel for the petitioner relying upon a

Full Bench decision of the Delhi High Court in Chief Controlling

Revenue Authority, Delhi, Petitioner Vs. Marshall Produce

Brokers Co. Pvt. Ltd, Delhi, Respondent [AIR 1980 Delhi

249], submitted that on an interpretation of a similar provision

to that under the Kerala Stamp Act, 1959, the Full Bench took

the view that the amount of security deposit paid for the due

performance of the contract of lease is chargeable under Article

57 of the Schedule read with section 5 of the Act. The learned

counsel also submitted that the Full Bench was also of the view

that even if there is a clause for adjustment of the security

deposit towards rent, it will not make any difference.

      7.    We are also told by the learned Government Pleader



that the Government of Kerala through the Tax (E) Department

by a letter dated 24.2.1983 addressed to the Inspector General

of Registration, Trivandrum, had informed that duty is not

chargeable under Article 35(c) of schedule IA of the Indian

Stamp Act, 1899 and the amount of security deposit paid for the

due performance of the contract of lease is chargeable under

Article 57 of the Schedule read with section 5 of the Act.

Government letter dated 24.2.1983 addressed to the Inspector

General of Registration reads as follows:

              "In supersession of the instruction issued in

        Government Letter No.18769/E2/75/TD dated 15.12.1975

        and in accordance with the decision of the Delhi High

        Court in A.I.R. 1980, Delhi 249, the following principles

        may be observed while classifying lease deeds.

              (1)    Duty is not chargeable under Art, 35(c) of

        schedule IA of the Indian Stamp Act, 1899 on the

        amounts of security/deposit/advance, which is refundable

        on determination of the lease, in addition to the duty paid

        on the rent reserved under Article 35(a) of the Schedule.

              (2)    It will not make any difference in the

        changeability  of   duty,  if such    deposit/advance    is

        adjustable in rent/other charges/dues payable under the

        lease.



               (3)   The amount of security deposit paid for the

        due performance of the contract of lease is chargeable

        under Art. 57 of the Schedule read with section 5 of Act.

               I am to request you to issue necessary instructions

        to all Sub Registrars to classify lease deeds in accordance

        with the principle mentioned above."

      This is based on the decision of the Delhi High Court quoted

earlier.

      8.     We therefore proceed to consider the matter since it

requires an interpretation of Article 33(c) of the Kerala Stamp

Act. Corresponding to Article 57 of the Indian Stamp Act, the

provision herein is Article 50.           For easy reference, it is also

necessary to quote Articles 33(a) (i) & (c) and 50:

 "33.        Lease-    including    an
underlease or sub-lease and any
agreement to let or sublet -

 (a) where by such lease the
rent is fixed and no premium is
paid or delivered -

  (i) where the lease purports to         The same duty as a Bottomry
be for a term of less than one            Bond (No.14) for the whole
year:                                     amount payable or deliverable
                                          under such lease.

O.P.(RC) No.506/2013

                                   6

33(c):   where the lease is granted    The same duty as a conveyance
for a fine or premium or for money (No.21 or 22, as the case may be)
advanced     in   addition to   rent for a consideration equal to the
reserved:                            amount or value of such fine or
                                     premium or advance as set forth in
                                     the lease in addition to the duty
                                     which would have been payable on
                                     such lease if no fine or premium or
                                     advance had been paid or delivered:
                                           Provided that in any case
                                     where an agreement to lease is
                                     stamped with ad valorem stamp
                                     required for a lease and a lease in
                                     pursuance of such agreement is
                                     subsequently executed, the duty on
                                     such lease shall not exceed on
                                     rupee ninety-five paise."



       Article 50 reads as follows:

"Security bond or mortgage deed, executed

by way of security for the due execution of

an office or to account for money or other

property received by virtue thereof or

executed by a surety to secure the due

performance of a contract-

     (a)   When the amount secured

     does not exceed Rs.1,000.             (Five    rupees    for  every
                                           Rs.100 or part thereof of the
                                           amount secured.]
     (b) in any other case:                [One hundred rupees.]

             Exemptions

Bond or other instruments, when executed-

O.P.(RC) No.506/2013

                                        7



   (a)   by any person for the purpose of

   guaranteeing that the local income derived

   from private subscriptions to a charitable

   dispensary or hospital, or any other object of

   public utility, shall not be less than a specified

   sum per mensem;

   (b)    executed by persons taking advances

   from Government for agricultural purposes or

   by   their    sureties   as   security   for  the

   repayment of such advances;

   (c)    executed by officers of Government or

   their sureties to secure the due execution of

   an office or the due accounting for money or

   other property received by virtue thereof."


      9.      A reading of Article 33(a), will show that it takes in

cases where the rent is fixed and no premium is paid or

delivered. Going by Article 33(c), the provision is attracted

where the lease is granted for a fine or premium or for money

advanced and the same will be in addition to rent reserved.

Apparently, the Rent Control Court has treated the security

deposit as money advanced for attracting 33(c) in addition to

the rent.



      10. The entire concepts under Section 105 of the T.P.Act,

1882 have been discussed by the Full Bench of the Delhi High

Court in the above case. We find from paragraph 3 that three

questions were referred for opinion of the Delhi High Court by

the Chief Controlling Revenue Authority, Delhi and the questions

Nos.1, 2 and 3 read as follows:

           "(1)  Whether any duty is chargeable under Art. 35(c) of

     Sch. 1-A of the Indian Stamp Act, 1899 on the amount of

     security/deposit/advance, which is refundable on determination

     of the lease, in addition to the duty paid on the rent reserved

     under Art. 35(a) of the Schedule;

           (2)   Will it make any difference in the changeability of

     duty, if such deposit/advance is adjustable in rent/other

     charges/dues payable under the lease?

           (3)   Whether such amount of security deposit paid for

     the due performance      of the contract of the lease can be

     charged under Article    57 of the Schedule appended to the

     Act?".

      11. A discussion of the principles stated therein, will be

complete only by reference to the facts of the said case also.

Paragraph 1 of the judgment shows that the monthly rent fixed

was  4,455/- and a sum of ` 53,460/- had been paid as advance



rent adjustable in twenty four equal instalments. In addition to

the monthly rent, the lessees had agreed to deposit and always

keep in deposit six months' rent towards security for due

performance of the obligations of the lease and this amount was

to be dealt with in the manner provided ( 26,730/-).                    We

hereinafter extract the relevant clauses, which governed the said

case:

              "4(3):  In case the rent hereby reserved or any part

      thereof, or any other outgoing be in arrears for twenty one days

      after becoming payable (whether legally demanded or not) or if

      any covenant on the lessees part herein contained shall not be

      performed or observed, the landlords, notwithstanding any

      right herein contained will be entitled to absolutely appropriate

      the deposit mentioned in the provisions contained in Cl. 1(2)

      herein above, and not liable to pay the interest thereon without

      prejudice to their any other right to take legal action.

            4(6): The deposit kept by the lessees as mentioned in

      the provisions contained in Cl.1(2) herein above shall be

      refunded to the lessees within seven days after the lessees

      have handed over the vacant possession with all its fixtures

      and fittings therein belonging to the landlords with the interest

      due against the receipt issued and signed by a person duly

      authorised in this behalf by the lessee, unless under Cl.4(3)

      herein above the said deposit has priorly been appropriated."

      12. The Full Bench in paragraph 5 of the judgment has



elaborately explained the legal position under Section 105 of the

T.P.Act, which is extracted below for easy reference:

                 "5.    Under S.105 of the T.P.Act, 1882, a lease

          of immovable property is a transfer of a right to enjoy

          such property, made for a certain time, express or

          implied, or in perpetuity in consideration of a price paid

          or promised or of money, a share of crops, service or

          any other thing of value, to be rendered periodically or

          on specified occasions to the transferor by the

          transferee, who accepts the transfer on such terms.

          The transferor is called the lessor, the transferee is

          called the lessee, the price is called the premium, and

          the money, share, service or other thing to be so

          rendered is called the rent. The consideration for the

          lease is thus of two types. First one is the price paid or

          promised. The price paid may be cash or may be an

          adjustment of an outstanding debt or its payment may

          be deferred or made payable       in instalments.    It is

          always in the nature of a capital income when the

          interest of the lessor is parted with for a price. This

          price is called premium.          The second type of

          consideration is of recurring character on specified

          occasions, which is the indication of rent. The liability

          to pay rent arises at stated periods or specific

          occasions. When such a liability is met in advance,

          it will still be 'rent' and not advance in addition to

          rent reserved.       For this reason    the payment of



          Rs.53,460 as advance rent under the lease of

          instrument is rent for which there is both a liability and

          covenant to pay. The revenue has treated this payment

          of Rs.53,460 as rent and rightly so in view of the Full

          Bench judgment in Union of India v. M/s. Caltex (India)

          reported in AIR 1966 Punj 488.         The deposit of

          Rs.26,730 is not rent or advance rent. Its payment or

          liability is not of a recurring character on specified

          occasions and thus not a revenue receipt.               It

          cannot assume the character of price paid,

          because under the instrument of lease it is liable

          to be refunded to the lessees within seven days

          after the lessees have handed over the vacant

          possession." (emphasis supplied by us)

      13. It was held in paragraph 6 that 'the consideration of

lease is only two fold 'premium' and 'rent'. There is no third type

of consideration when the interest of the lessor is parted with.

None is provided in S.105 of the T.P. Act, 1882.'

      14. We        also   notice    that   Article   33(c)      herein, is

corresponding to Article 35(c) therein.          While interpreting the

said provision, the Full Bench in the same paragraph has

explained the matter as below:

            "6. The Legislature, therefore, was providing under Art.

     35(a) for instruments of lease, including an underlease or sub-



     lease and any agreement to let or sublet, whereby such lease

     the rent is fixed and no premium is paid or delivered according

     to the period of lease. Under Art. 35(b) proper stamp duty is

     provided where the lease is granted for a fine or premium or for

     money advanced and where no rent is reserved. Under Art. 35

     (c) it provided where the lease is granted for a fine or premium

     or for money advanced in addition to rent reserved. Fine is not

     defined in either T.P. Act, 1882 or in the Indian Stamp Act, Fine

     in relation to leases is something which is to go irrevocably into

     the pocket of the landlord who requires it as a condition of

     consenting to a transfer of right to enjoy property.      Fine is

     indistinguishable from premium and is         money payment in

     consideration of a demise. Money paid as fine is money paid

     with the    intention  of passing over the property in it to the

     landlord so that it should become his. Fine is also given the

     name of "Salami" in some parts of this country. Such money

     payments are known by several        other names, e.g, Nasrana,

     Pugree etc. The legislature must be aware of money payments

     in consideration of the lease, when it sought to cover "fine or

     premium or for money advanced" in Art. 35 (b) and (c). The

     words used here "for money advanced" do not connote

     any idea of repayment. Money advanced here is a

     condition for creation of an interest in the enjoyment of

     the property. Money advanced here is money which is not

     to revert to the lessee. If the advance is repayable, then it is

     a loan or deposit which word would have been used by the

     legislature in Art. 35(b) and ) instead of "for money advance", if

     it was intended to cover such payments.         Money advanced

     here by the lessees to the landlords is with the intention


     expressed by the parties that the landlords should keep

     the money till appropriated or refunded. Such transaction

     is a deposit. In my opinion, when the legislature used the word

     "for money advanced" after "fine or premium" it was intended

     that it is a sum of money in the nature of fine or premium

     which goes irrevocably in the pocket of the landlord. It is a rule

     of legal construction that general words following enumeration

     of particulars are to have their generality limited by reference to

     the preceding particular enumeration and to be construed as

     including all other things of the like nature and quality. Where

     general words immediately follow or are closely associated with

     specific words, their meaning has to be limited by reference to

     the preceding words and has to be presumed to be restricted to

     the same genus as those specific words.        This is the rule of

     construction known as Ejusdem Generis and gives aid to the

     ascertainment of the true meaning of the statute." (emphasis

     supplied).

      15. It is in paragraph 9, it          was held that the security

cannot be treated as money advanced. In fact, going by the

above Full Bench decision, it can be seen that when there is a

provision for advance, it implies that it is not refundable and it is

a price which is fixed in terms of the provisions under Section

105 of the T.P.Act. Therefore, it will take the character as a

premium. What is envisaged for the purpose of Article 33(c) is a



payment which is not refundable. Herein what is provided under

the relevant clauses of the lease deed as far as the transaction is

concerned are Clauses 3, 4, 5 and 6 of Ext.P1, which are

extracted below:

            "3.  The Lessee has hereby paid an amount of

     Rs.50,000/- (Rupees fifty thousand only) to the Lessor as

     security deposit for granting lease of the above said premises,

     the receipt of which is hereby confirmed and acknowledged by

     the Lessor.

            4.   It is hereby agreed that the amount of security

     deposit paid to the Lessor by the Lessee shall be repaid to the

     Lessee on the termination of the lease and the Lessee vacating

     the shop room demised to him.

            5.   It is further agreed that the Lessee shall not be

     entitled to ask for set off the monthly rent from the security

     deposit paid which shall be entitled to refund only after the

     expiry of the period of lease and the Lessee vacating the shop

     room.

            6.   The Lessor shall be entitled to settle their entire

     claim against the Lessee if any found due from the above said

     sum of security deposit and the balance amount alone shall be

     repaid to the Lessee at the time of termination of the lease."

      16. Clause 3 will show that an amount of  50,000/- is

paid as security deposit for granting the lease and Clause 4

provides for repayment of the same on the termination of the



lease. Clause 5 clearly provides that the lessee shall not be

entitled to ask for set off the monthly rent from the security

deposit paid and it shall be entitled to refund only after the

expiry of the period of lease. Obviously, Clause 6 was relied upon

by the court below, which provides for settlement of the entire

claim by the lessor against the lessee if any found due from the

above said sum of security deposit. The view taken by the Rent

Control Court is that the same can be treated as money

advanced. We are definitely of the view that, it cannot be as

the character of the term "money advanced" in Article 33(c) of

the Schedule is different. It is not a consideration which has

passed irrevocably from the tenant to the landlord over and

above the consideration for the lease, which is the payment of

rent. Even if it is adjustable towards rent, the character is not

changed.     It is for due performance of the obligations of the

lease. On termination of lease and on vacating the room, it is

refundable.     What is paid being the security deposit, it is

refundable. Such an amount which is refundable will not get the


character of money advanced under Article 33(c).

      We respectfully agree with the view taken by the Full Bench

of the Delhi High Court in that regard. In the light of the above,

this original petition is allowed and the impugned order is set

aside. We direct the Rent Control Court to pass a fresh order in

the light of the legal position explained above. No costs.



                                        Sd/-
                          T.R. RAMACHANDRAN NAIR
                                       JUDGE


                                       Sd/-
                            A.V.RAMAKRISHNA PILLAI
                                      JUDGE




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