2001 (10) TMI 1149 - HC - Indian Laws

Summary

Issues Involved:
1. Validity of power of attorney sale.
2. Applicability of Section 53A of the Transfer of Property Act, 1882.
3. Rights created by agreement to sell and accompanying documents.
4. Conduct of the respondent bank in execution proceedings.

Summary:

1. Validity of Power of Attorney Sale:
The appellant purchased property No. A-27/C, DDA Flat Munirka, New Delhi, through a power of attorney sale, which included documents such as an agreement to sell, General Power of Attorney, Special Power of Attorney, and a Will. The property was leasehold, and transfer required the Lesser's consent and payment of unearned increase. The appellant's objection to the attachment order dated 29.04.1989 was dismissed on the ground that an agreement to sell does not create any interest in immovable property as per Section 54 of the Transfer of Property Act, 1882.

2. Applicability of Section 53A of the Transfer of Property Act, 1882:
The appellant argued that Section 53A of the Transfer of Property Act, 1882, which deals with part performance, was ignored. The appellant had paid the full consideration, taken possession, and executed other documents, thus creating an interest in the property. The court acknowledged that the power of attorney sales are recognized as a mode of transaction and are different from mere agreements to sell, as they are accompanied by other documents and full consideration is paid.

3. Rights Created by Agreement to Sell and Accompanying Documents:
The court noted that the power of attorney sales in Delhi are a common mode of transaction to circumvent legislative restrictions on property transfer. Such transactions are accompanied by documents like General Power of Attorney, Special Power of Attorney, and Will, and full consideration is paid. The court held that these transactions create an interest in the property in favor of the appellant, and the provisions of Section 53A of the Transfer of Property Act would apply. The bank is debarred from enforcing any right qua the property other than the right conferred by the agreement to sell.

4. Conduct of the Respondent Bank in Execution Proceedings:
The court observed that the respondent bank did not seek interim protection during the pendency of the suit and delayed execution proceedings for almost two and a half years post the decree. The court concluded that the valuable rights of the appellant should not be jeopardized by the attachment order, as the property for all practical purposes vests in the appellant.

Conclusion:
The appeal was allowed, setting aside the impugned order dated 31.10.1990. The application (EA No. 239/1989) filed by the appellant was allowed, thereby revoking the order of attachment dated 29.4.1989 in respect of property No. A-27/C, DDA Flats, Munirka, New Delhi. No costs were awarded.