- 1 - HC-KAR NC: 2025:KHC:44325 WP No. 5257 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE B M SHYAM PRASAD WRIT PETITION NO. 5257 OF 2020 (GM-ST/RN) BETWEEN: MANGALORE REFINERY AND PETROCHEMICALS LIMITED A GOVERNMENT COMPANY REGISTERED UNDER THE COMPANIES ACT 1956 HAVING ITS REGISTERED OFFICE AT MUDAPADAV, KUTHETHOOR P.O VIA KATIPALLA MANGALURU-573 030 REPRESENTED BY ITS CHIEF MANAGER - ADMINISTRATION MR VENKATAKRISHNA. …PETITIONER (BY SRI. UDAYA HOLLA., SENIOR ADVOCATE FOR SRI. M.S. RAJENDRA., ADVOCATE) AND: 1. THE DISTRICT REGISTRAR AND DEPUTY COMMISSIONER OF STAMPS DAKSHINA KANNADA DISTRICT OFFICE OF DEPUTY COMMISSIONER Digitally signed by VANAMALA N Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:44325 WP No. 5257 of 2020 D C OFFICE BUILDING MANGALURU-575 001. 2. THE SUB REGISTRAR MANGALURU TALUK MINI VIDHANA SOUDHA BUILDING 1ST FLOOR, HAMPANKATTA MANGALURU-575 001. …RESPONDENTS (BY SRI.V SHIVA REDDY., AGA) THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO-QUASH THE ORDER DATED 09.12.2019 PASSED BY THE DISTRICT REGISTRAR AND DEPUTY COMMISSIONER OF STAMPS, DAKSHINA KANNADA DISTRICT, MANGALURU, THE R-1 IN PROCEEDINGS AT ANNEXURE-L. THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE B M SHYAM PRASAD - 3 - HC-KAR NC: 2025:KHC:44325 WP No. 5257 of 2020 ORAL ORDER The petitioner is aggrieved by the first respondent's order dated 09.12.2019 [Annexure-L], and this order is under Section 39 of the Karnataka Stamp Act, 1957 [for short, 'the Stamp Act']. The first respondent has opined that the 'Memorandum of Entry Recording Mortgage by Deposit of Title Deeds by way of Constructive Delivery" dated 19.03.2019 [for short, "the Memorandum"] presented by the petitioner for registration with the jurisdictional Sub-Registrar must be charged under Article 34(b) of the Schedule appended to the Stamp Act and therefore the petitioner must pay 0.5% of the amount secured under this document as the stamp duty. The first respondent has called upon the petitioner to deposit a sum of Rs.23,76,44,200/- as the difference payable after allowing the amount offered by the petitioner. 2. This Court on 06.03.2020 has granted interim order staying the operation of the first - 4 - HC-KAR NC: 2025:KHC:44325 WP No. 5257 of 2020 respondent's impugned order dated 09.12.2019 while recording the objections by the learned Government Advocate on the availability of alternative remedy to the petitioner under Section 45-A(5) of the Stamp Act. This interim order is continued from time to time. Mr.Udaya Holla, the learned Senior Counsel for the petitioner, canvasses the following questions for consideration: [a] Whether the petitioner must be relegated to avail remedy under Section 45-A(5) of the Stamp Act; and [b] Whether the Memorandum is an agreement relating to Deposit of Title Deeds as contemplated under Article 6 of the Schedule appended to the Stamp Act or a Mortgage Deed as contemplated under Article 34(b) of the afore Schedule; 3. Mr Udaya Holla, on the first question, submits that this Court may consider the following to decide on whether the petitioner must be relegated to avail remedy under Section 45-A(5) of the Stamp Act - 5 - HC-KAR NC: 2025:KHC:44325 WP No. 5257 of 2020 leaving open all questions, and the learned Senior Counsel's submissions in this regard are as hereafter. [a] The petitioner could avail remedy under Section 45-A(5) of the Stamp Act if the Memorandum is one of those documents mentioned in Section 45-A of the Stamp Act. [b] Even if the Memorandum is a document that could be within the fold of the expression 'conveyance' as mentioned in this Section, the alternative remedy by itself will not be a condition against exercising this Court's plenary jurisdiction under Article 226 of the Constitution. [c] The petitioner, when first issued with the demand for stamp duty invoking Article 34(b) of the Schedule appended to the Stamp Act, has approached this Court in - 6 - HC-KAR NC: 2025:KHC:44325 WP No. 5257 of 2020 W.P.No.24735/2019 [GM-ST/RN]1. This Court, entertaining the writ petition, has directed the first respondent to afford an opportunity to the petitioner and then decide on the stamp duty that should be paid on the Memorandum. [d] The question whether the petitioner must be called upon to pay stamp duty under Article 6 or Article 34(b) of the Schedule appended to the Stamp Act is pending before this Court for more than 5 years and it may not be just to relegate the petitioner to avail alternative remedy as that will result in protraction of the proceedings. 4. Mr V. Shiva Reddy, the learned Additional Government Advocate, cannot dispute the proposition 1 This writ petition is disposed of vide order dated 19.08.2019. - 7 - HC-KAR NC: 2025:KHC:44325 WP No. 5257 of 2020 that this Court's jurisdiction under Article 226 of the Constitution of India is plenary and that alternative remedy by itself may not be a reason for this Court to refuse the exercise of such jurisdiction. The learned Additional Government Advocate also cannot dispute that the other circumstances emphasized by Mr Udaya Holla on why this Court, notwithstanding the provisions of 45-A(5) of the Stamp Act, must entertain the writ petition. 5. However, the learned Additional Government Advocate emphasizes the import of the expression 'instrument' as defined under Section 2(1)(j) of the Stamp Act and referred to in Section 2(1)(d) of the Stamp Act to answer the question whether disputes about the stamp duty payable on agreements relating to Deposit of Title Deeds or Mortgage Deeds must be outside the fold of the remedy available under Section 45-A(5) of the Stamp Act. - 8 - HC-KAR NC: 2025:KHC:44325 WP No. 5257 of 2020 6. The Section 45-A(1) of the Act indeed lists the documents with respect to which a Sub-Registrar may keep pending the process of registration and refer the question of valuation along with a copy of the document to the Deputy Commissioner for determination of the market value of the property and the proper stamp duty payable. The sub-sections in Section 45-A(1)(b) to (o) refer to specific documents, and sub-section 45-A(1)(a) refers to 'conveyance' as defined under Section 2(1)(d) of the Stamp Act. 7. The Section 2(1)(d) defines 'conveyance' to include [i] a conveyance on sale, [ii] every instrument, [iii] every decree or final order of any Civil Court; and [iv] every order made by the High Court under Section 394 of the Companies Act, 1956 in respect of amalgamation of companies as it stood at the time of promulgation of the Stamp Act by which any property, whether movable or immovable, is transferred or vested in another person and which - 9 - HC-KAR NC: 2025:KHC:44325 WP No. 5257 of 2020 is not otherwise specifically provided for in the schedule appended. 8. The Memorandum may not be any of the first or the third or the fourth category but would definitely be an instrument as is defined under Section 2(1)(j) of the Stamp Act. The definition of instrument under Section 2(1)(j) of the Stamp Act is as under: 2(1)(j) "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. In view of this definition, and because it cannot be disputed that certain interest is created under the Memorandum it will be a conveyance as contemplated under 45-A(1) of the Stamp Act and therefore a person aggrieved by a decision of the Deputy Commissioner under sub-section (2) on a - 10 - HC-KAR NC: 2025:KHC:44325 WP No. 5257 of 2020 reference under sub-Section (1) will have remedy under Section 45-A(5) of the Stamp Act. 9. The next aspect of the question is examined in the light of the undisputed proposition that the availability of an alternative remedy by itself cannot be a reason for this Court to refuse exercise of jurisdiction under Article 226 of the Constitution of India and the fact that the petition is pending, after an earlier petition before this Court for over 5 years and the question of the stamp duty payable could be resolved even in these proceedings examining the merits of the conclusion by the first respondent in the impugned order. The question on alternative remedy is thus answered. 10. Mr Udaya Holla, on the second question, submits, placing reliance upon Section 58(f) of the Transfer of Property Act, 18822 [for short, 'the TP 2 Mortgage by deposit of title-deeds: Where a person in any of the following towns, namely, the towns of Calcutta, - 11 - HC-KAR NC: 2025:KHC:44325 WP No. 5257 of 2020 Act'], that delivery of title documents of an immovable property to a creditor or its agent would indeed constitute a mortgage, but if it is only deposit of title deeds, the transaction for the purposes of levy of stamp duty under the Stamp Act would be an agreement relating to Deposit of Title Deeds as contemplated under Article 6 and cannot be a Mortgage Deed as contemplated under Article 34 of the Schedule appended to the Stamp Act. 11. On the merits of the first respondent's finding that the Memorandum is a Mortgage Deed chargeable to duty under Article 34(b) of the Stamp Act, Mr Udaya Holla submits that the first respondent is persuaded by the terms of the Madras and Bombay and in any other town which the State Government concerned may, by notification in the Official Gezzette, specify in this behalf, delivers to a creditor or his agent documents of title to immovable property, with intent to create a security thereon, the transaction is called a mortgage by deposit of title-deeds." - 12 - HC-KAR NC: 2025:KHC:44325 WP No. 5257 of 2020 document executed [ECB Facility Agreement dated 19.06.2018 – hereafter referred to as ‘the Facility Agreement’] with M/s. State Bank of India, Hong Kong branch ignoring the contents of the Memorandum. The learned Senior Counsel emphasizes the following. • The stamp duty payable under the Facility Agreement is independent of the stamp duty payable on the Memorandum, and the stamp- duty payable on the Memorandum must be examined on its own contents. • Even otherwise it can be demonstrated that possession has not been delivered to the creditors/ex-creditors either under the Facility Agreement or the Memorandum and the only right that is accrued under the Facility Agreement is the enforcement of the charge that is created by Deposit of Title Deeds. • The petitioner has executed the Memorandum in favour of the agent nominated under the - 13 - HC-KAR NC: 2025:KHC:44325 WP No. 5257 of 2020 Facility Agreement with the agent agreeing to hold the title documents mentioned in a schedule appended to the Memorandum dated 19.03.2019. 12. Mr V.Shiva Reddy is heard, and the merit of the afore canvass is examined on perusal of the terms of the Facility Agreement and the Memorandum and in the context of the first respondent's reasoning to hold that the Memorandum is not an Agreement relating to Deposit of Title Deeds but a Mortgage Deed. The first respondent's reasoning is as under: "DzÀÝjAzÀ Deposit of title Deeds £À ªÁåSÁå£À ªÀÄvÀÄÛSimple Mortgage £ÀªÁåSÁå£À, CªÉgÀqÀÄ zÀ¸ÁÛªÉÃdÄUÀ½AzÀ ¸ÉÆwÛ£À ªÉÄÃ¯É GAmÁUÀĪÀ Charge xx Right to Enforce Security ¥ÀjUÀt¹zÁUÀ ºÁUÀÆ ¥Àæ²ßvÀ zÀ¸ÁÛªÉÃdÄ Memorandum of Entry by way of Constructive delivery ªÀÄvÀÄÛ 19-06-2018 gÀ PÀgÁgÀÄ ¥ÀvÀæzÀ°è£À CA±ÀUÀ¼À£ÀÄß ¥ÀjUÀt¹zÁUÀ ¥Àæ²ßvÀ zÁ¸ÁÛªÉÃdÄ Memorandum of Entry by way of Constructive delivery zÀ¸ÁÛªÉÃf¤AzÀ ¸ÉÆwÛ£À ªÉÄÃ¯É EgÀĪÀ ¸Á®ªÀ£ÀÄß §jà Title Deed ªÀÄÆ®PÀ ªÀiÁvÀæªÀ®èzÉà ¸Áé¢Ã£À ¥ÀqÉzÀÄ PÉƼÀÄîªÀ ªÀÄvÀÄÛ ¸ÉÆwÛ£À ªÀUÁðªÀuÉ ªÀÄÆ®PÀ ¸ÀºÀ ªÀ¸ÀÆ®Ä ªÀiÁqÀ§ºÀÄzÉA§ CA±À ¸ÀàµÀÖªÁVgÀÄvÀÛzÉ. »ÃUÁV ¥Àæ²ßvÀ CA±ÀUÀ¼À£ÀÄß ºÉÆA¢gÀĪÀ Memorandum of Entry by way of Constructive delivery - 14 - HC-KAR NC: 2025:KHC:44325 WP No. 5257 of 2020 zÀ¸ÁÛªÉÃfUÉ PÀ£ÁðlPÀ ªÀÄÄzÁæAPÀ1957 gÀ PÀ®A 34 (§) gÀAvÉ ªÀÄÄzÁæAPÀ ±ÀÄ®Ì «¢ü¸À¨ÉÃPÁVgÀÄvÀÛzÉ. ªÉÄïÁÌt¹zÀAvÉ AiÀiÁªÀÅzÉÃzÀ¸ÁÛªÉÃfUÉCzÀgÀ°ègÀªÀ CA±ÀUÀ¼À DzsÁgÀ¢AzÀ ªÀÄÄzÁæAPÀ ±ÀÄ®Ì «¢ü¸À¨ÉÃPÁUÀÄvÀÛzÉAiÉÄà «£ÀB ²Ãó¶ðPÉ DzsÁgÀ¢AzÀ C®è. ¥Àæ²ßvÀ ¥ÀæPÀgÀtzÀ°èzÀ¸ÁÛªÉÃdÄMemorandum of Entry by way of Constructive delivery ²Ã¶ðPÉAiÀÄ£ÀÄß ºÉÆA¢zÀÝgÀÆ ¸ÀºÀ ¸ÀzÀj zÀ¸ÁÛªÉÃdÄ ¢: 19/6/2019 gÀ ECB Facility Agreement £À ¨ÁUÀªÁVzÀÄÝ, ªÉÄïÁÌt¹zÀAvÉ ¸ÀzÀj zÀ¸ÁÛªÉÃdÄ£À ªÀÄÆ®PÀ ¸ÉÆwÛ£À ªÉÄÃ¯É charge GAmÁUÀÄwÛzÀÄÝ, »ÃUÁV ¸Á®zÀ ªÀÄgÀÄ ¥ÁªÀwUÉ «¥sÀ®gÁzÀ ¸ÀAzÀ¨sÀðzÀ°èPÀgÁgÀÄ ¥ÀvÀæzÀ CA±À 21.16gÀAvÉ ¸ÉÆvÀÛ£ÀÄߪÀUÁð¬Ä¸À®Ä ºÀPÀÌ£ÀÄß ºÉÆA¢vÁÛgÉ. ªÉÄïÁÌt¹zÀAvÉ Memorandum of Entry by way of Constructive delivery zÀ¸ÁÛªÉÃf£À°è £ÀªÀÄÆzÁVgÀĪÀ charge over the immovable property CA±ÀªÀÅ ¢£ÁAPÀ:19/06/2018gÀPÀgÁgÀÄ ¥ÀvÀæzÀ°ègÀĪÀAvÉ Simple Mortgage Deed ªÁåSÁå£ÀzÀr §gÀÄvÀÛzÉAiÉÄà «£ÀBDTD JA§ ªÁåSÁå£ÀzÀr §gÀĪÀÅ¢®è". 13. There cannot be any dispute that a person in depositing title deeds is creating an interest [a charge] in an immovable property by a mortgage as envisaged under Section 58(f) of the TP Act but what requires to be examined is: does the Stamp Act contemplate a levy under Article 34(b) even if such charge [mortgage] is by Deposit of Title Deeds. - 15 - HC-KAR NC: 2025:KHC:44325 WP No. 5257 of 2020 14. The provisions of Article 6 and Article 34 must be read together in conjunction, and these provisions are as under: Article 6: Art.6.Agreement relating to deposit of title deeds, pawn or pledge, that is to say, any instrument evidencing an agreement relating to- (1) The deposit of title deeds or instruments constituting or being evidence of the title to any property whatever (other than a marketable security, where such deposit, has been made by security for the repayment of money advanced or to be advanced by loan or an existing or future debt: If such loan or debt is repayable on demand from the date of instrument evidencing the agreement- (i) where the loan or debt amount does not exceed rupees ten lakhs. 0.1 percent on the loan or debt amount subject to a minimum of rupees five hundred. - 16 - HC-KAR NC: 2025:KHC:44325 WP No. 5257 of 2020 [Explanation: For the purpose of clause (1), notwithstanding anything in any law for the time being in force or order of any authority, any letter, note memorandum or writing relating to the deposit of title deeds whether written or mad either before or at the time when or after the deposit of title deeds is effected and whether it is in respect of the security for the first loan or any additional loan or loans taken subsequently, such letter, note, memorandum or writing shall, in the absence of any separate agreement or memorandum of agreement relating to deposit of such title deeds, be deemed to be an instrument evidencing an agreement relating to the deposit of title deeds.] (2) xxxxx" Article 34 Art. 34: Mortgage deed, not being an agreement relating to Deposit of title-deeds, pawn or pledge (No.6), Indemnity Bond (ii) where the loan or debt amount exceeds rupees ten lakhs 0.2 percent on the loan or debt amount subject to a maximum of rupees ten lakhs. - 17 - HC-KAR NC: 2025:KHC:44325 WP No. 5257 of 2020 (No.13), Mortgage of a Crop (No.35), Respondentia Bond (No.46), or Security Bond (No.47) - (a) when possession of the property or any part of the property comprised in such deed is given by mortgagor or agreed to be given; (b) when possession is not given or agreed to be given as aforesaid and not being a hypothecation. The same duty as Conveyance (No.20(1) for a market value equal to the amount secured by such deed. [Fifty paise for every hundred rupees or part thereof for the amount secured by such deed. Explanation: A mortgagor who gives to the mortgage a power of attorney to collect rents, or a lease of the propertymortgaged or part thereof is deemed to give possession thereof within the meaning of this Article. (c) xxxxx. (d) xxxxxx." - 18 - HC-KAR NC: 2025:KHC:44325 WP No. 5257 of 2020 15. The Article 34 of the Stamp Act prescribes a levy for a Mortgage Deed which is not an agreement for Deposit of Title Deeds or a Pawn or a Pledge [amongst other documents] as these are chargeable to stamp duty under Article 6 of the schedule appended to the Stamp Act. The Agreements of Deposit of Title Deeds, as contemplated under Article 6 of the Stamp Act,: [i] must relate to the deposit of title deeds or instruments, which constitute or are evidence of title to any property other than a marketable security and [ii] such deposit must be as security for the repayment of money advanced or to be advanced as a loan or an existing or a future debt. The Explanation appended to Article 6.1 of the Stamp Act deems an agreement to be an Instrument evidencing a deposit of title deeds even when such - 19 - HC-KAR NC: 2025:KHC:44325 WP No. 5257 of 2020 agreement is as a letter or a note or a Memorandum, and when such is as a security for the first loan or any additional loan or loans taken subsequently. 16. The test to decide whether an instrument/an agreement is chargeable to duty under Article 6 or under Article 34 is not whether a charge is created by a mortgage but is whether the agreement is to deposit those documents which are title documents or documents constituting or evidencing title to any property to secure the repayment of money advanced or to be advanced. This Court must in the present case observe that the first respondent in reasoning as aforesaid has applied a wrong test and therefore has arrived at a wrong conclusion. 17. The primary transaction is between the petitioner and the different lenders as mentioned in second schedule to the Memorandum stipulating that they will have Second Ranking Pari passu over the - 20 - HC-KAR NC: 2025:KHC:44325 WP No. 5257 of 2020 petitioner's fixed assets, and the next transaction is with State Bank of India, Hong Kong branch under the Facility Agreement. This Bank is appointed as the ECB Facility Agent with certain rights and consequences, including the First Ranking pari passu charge over the petitioner's fixed assets. The petitioner has executed the Memorandum in favour of SBICAP Trustee Company Limited identified as a Security Trustee in terms of its obligations to deposit the title deed for the benefit of the different lenders who have the advantage of Pari passu charge against its fixed assets. 18. The Memorandum is categorical in stipulating that the Security Trustee, acting for the benefit of the ECB lenders, has agreed to hold the title deeds and that the petitioner is depositing such title deeds by constructive delivery. The core of the transaction between the petitioner and the Security Trustee is this, and the first respondent has - 21 - HC-KAR NC: 2025:KHC:44325 WP No. 5257 of 2020 completely overlooked this aspect. This Court is of the opinion that this core transaction is determinative and that the Memorandum is an Agreement of Deposit of Title Deeds as contemplated under Article 6 of the schedule appended to the Stamp Act. Therefore, the first respondent's order cannot be sustained and must be quashed. Hence, the following: ORDER [i] The petition is allowed. [ii] The first respondent's order dated 09.12.2019 under Section 39 of the Stamp Act [Annexure-L] is quashed and the jurisdictional Sub-Registrar is directed to verify the stamp duty payable on the Memorandum under Article 6 of the schedule appended to the Stamp Act and release the Memorandum. Sd/- (B M SHYAM PRASAD) JUDGE SA ct:sr