Arun Mishra JUDGMENT
M.Y. Eqbal, J.
1. Leave granted.
2. The Full Bench of the Gujarat High Court on reference made by the Chief Controlling Revenue Authority, State of Gujarat Under Section 54(1A) of the Gujarat Stamp Act, 1958 (in short, "the Act"), passed the impugned judgment and order dated 3.12.2012 in Stamp Reference No. 1/2011 answering the reference in favour of the Respondent and against the Revenue holding that the Respondent was not required to pay the dues of deficit stamp duty of Rs. 50,41,600/-.
3. The questions referred to the High Court for its opinion and decision arise as under:
(A) The deed of "indenture the deed of mortgage for delayed after assets" which was registered on 6.10.2009 vide Regn. No. 3375 registered at office of Sub-Registrar, Mundra (District Kachchh) by the applicant has paid Rs. 4,21,000/- whether as per provision of Sections 5, 3(a), 3(B) and the Schedule-1's Articles 6 and 36(b) the applicant is required to pay deficit stamp duty of Rs. 50,41,600/- or not.
(B) The deed of "indenture the deed of mortgage for delayed after assets" which was registered on 6.10.2009 vide Regn. No. 3375, at the office of the Sub-Registrar, Mundra (District Kachchh) by the applicant is required to be considered as per Schedule 1's Articles 6 and 36 as per simple mortgage and whether the applicant is required to pay Rs. 4,21,600 or not?
4. The facts of the case lie in a narrow compass.
5. The Respondent is a Company named Coastal Gujarat Power Ltd. and it needed financial assistance for setting up an Ultra Mega Power Project in the area of Kutch-Bhuj and for that purpose it secured assistance from few lenders. The lenders i.e. financial institutions, which were thirteen in number, formed a consortium as a trust and executed a security trustee agreement (STA) inter se appointing one banker, viz. the State Bank of India as the lead trustee, called the security trustee. The duties of the security trustee are carved out in the said agreement of security trustees.
6. The Respondent executed an "Indenture of Mortgage for Delayed After Assets Deed' with the State Bank of India, the said security trustee, mortgaging its assets as mentioned in the deed itself. The said document was presented for registration before the Sub-Registrar, Mudra, by paying stamp duty of Rs. 4,21,000/- and the deed was registered.
7. According to the Appellant, the Respondent was liable to pay Rs. 54,62,000/- on the said deed and, hence, demanded the balance amount of Rs. 50,41,000/- from the Respondent by issuing show cause notice dated 5.11.2009. The issue was forwarded for consideration of the Deputy