9911796707
TMI Blog2016 (1) TMI 1524X X X X Extracts X X X X X X X X Extracts X X X X ..... nability of the Writ Petition - HELD THAT:- There is no necessity for the petitioner to file a civil suit. Similarly, the issue involved before the Apex Court in S.L.P.(Crl) No. 838 of 2015 dated 27.2.2015 is totally different. The Law is quite settled that an issue, which is not consciously considered and decided, would not partake the character of a binding decision. The mere fact an application for impleadment has been filed in a suit by a third party, also for the aforesaid reasons, would not dis-entitle the petitioner from filing the writ petition, more so, when the official respondents herein are not parties in the said proceedings, In any case, these issues cannot be raised by the petitioner in the said suit, being at best, it only becomes a party defendant. Furthermore, even as per the submissions of the learned counsel for respondents, the application filed for impleadment has been returned. Indian Evidence Act - HELD THAT:- When once the record of the 2nd respondent pertaining to a document registered becomes a public document coupled with the presumption attached to it, then in a given case, the writ petition would be maintainable, especially, when only legal issues are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... themselves to be, apart from admitting the execution of document. When the presentation on the face of it is unauthorised, it can never be any registration giving an iota of recognition through the official act. Rule 22 of the Registration Rules under Chapter VII deals with presentation and examination of documents - The source, being a power deed, such an examination would not be construed as one of title. It is only to check as to whether the document, which forms the basis of execution of the sale deed, empowers the executant to do so or not. After all, there is no dispute since the title and execution are not denied as the executant seeks registration based upon that document alone. When there is no valid execution, the deed becomes void as there is no executant. Thus, registration of such a deed also would become void. Standing Order No. 533 - HELD THAT:- Much reliance has been made in the counter affidavit filed by respondent No. 2 on the Standing Order No. 533 of the Tamil Nadu Registration Manual. It is the stand of the said respondent that there is no need to verify the power deed prior to the Circular dated 29.10.2009 issued by the 1st respondent. Such a stand can never ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /guarantors did not repay the loan. 4. Original Applications have been filed in the year 1996 for recovery of money under RDDB Act including sale of mortgaged assets. Thereafter, notice under Section 13(2) of the SARFAESI Act was issued by M/s. Indian Bank on 15.12.2004. It was followed by a demand notice dated 27.1.2005. The possession notice was issued on 30.3.2005. The procedure contemplated under the SARFAESI Act has been followed for the above said action. 5. At that point of time, respondents No. 3 and 4 (not appearing before this Court despite the notice having been served) executed a registered power of attorney in document No. 2115 of 2006 dated 23.8.2006 in favour of respondent No. 5. The said power deed does not assign right of alienation or encumbrance without the written consent of the principal. The relevant portion of Clause 7 of the power deed is extracted hereunder for better appreciation. "7. To negotiate with any third party/s claimant/s including broker/s and also the Banks and other financial institutions claimant/s if any in the schedule mentioned properties and to settle such claims and on this behalf our attorney is empowered to do all acts, deeds and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent No. 4 sworn in the month of January, 2015. This document is disputed by the petitioner. The registered power deed dated 23.8.2006, though admittedly did not assign the power of alienation or encumbrance, a sale deed dated 5.7.2007 was executed in document No. 2179 of 2007 by respondent No. 5, purportedly being the agent of respondents No. 3 and 4 in favour of respondent No. 6. 8. It is pertinent to note that though it is alleged by respondent No. 5 that there exists an unregistered power deed dated 7.6.2007 to get over the anomalies/mistakes in the earlier one dated 23.8.2006, the sale deed dated 5.7.2007 only makes a reference to the first power deed duly registered. 9. It is not in dispute that respondent No. 5 is the father of respondent No. 6. For the properties governed in the document dated 5.7.2007, any one with the common knowledge living in the city of Chennai would know that they would throw huge amount of money. However, a valuation of Rs. 5 Crores, being the consideration, was mentioned in the sale deed. It appears that thereafter a stamp duty of Rs. 20 Crores has been paid on the market value of the said properties. 10. On 7.12.2007, a deed of assignment was ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf of the Purchaser, all such original documents, deeds and/or writings including but not limited to the Financing Documents, and produce the same promptly upon any request by the Purchaser." 11. The sale notice was issued by the petitioner under SARFAESI Act on 5.8.2008 to the mortgagors/borrowers. Thereafter, the 6th respondent, being the son of the 5th respondent, executed a settlement deed for the very same properties by a registered document dated 13.10.2008. 12. A Complaint was given and registered against respondent No. 3 and others in Crime No. 41 of 2009 dated 18.4.2009 on the file of Chennai Sub Urban Police Station Central Crime Branch, which was followed by another complaint dated 13.11.2009. The proceedings under Section 145 of the Criminal Procedure Code was also initiated. Number of proceedings on the Criminal Side were initiated, pending and apart from some being concluded between the parties. The petitioner challenged the proceedings under Section 145 of the Criminal Procedure code. The Apex Court in S.L.P.(Crl) No. 838 of 2015 dated 27.2.2015 passed an Order after hearing the petitioner and respondent No. 5, the relevant portion of which reads as under: " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us by their absence. Submissions of Petitioner:-- 16. The learned Senior Counsel appearing for the petitioner submitted that it is a case of lack of jurisdiction on the part of respondent No. 2. When admittedly the document relied upon by respondent No. 5 did not have the valid authorisation, respondent No. 2 ought not to have registered the document. Such a registration is void ab initio and thus non est in the eye of law. The petitioner, having got the right in pursuant to the deed of assignment dated 7.12.2007, is a person interested and has locus. Sections 32 to 34 of the Registration Act have to be read together along with Rules 22 and 55. The Standing Order No. 533 of the Tamil Nadu Registration Manual will not apply to the case on hand. Even as per the Counter Affidavit filed by respondent No. 2, it is clear that there is no verification of the power deed. A power deed has to be construed strictly. Therefore, the writ petition will have to be allowed. In support of his contentions, the learned Senior Counsel made reliance upon the following decisions: "1. Konda Anthiah v. Madan Rao and another, (AIR 1969 AP 211); 2. Sekar Mudaliar v. Shajathi Bi and another, (AIR 1987 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 15 SCC 207; and 5. M/s. Latif Estate Line India Ltd. v. Mrs. Hadeeja Ammal and others, (2011-1-L.W. 673) - Full Bench decision of Madras High Court." Discussion:-- (i) Locus Standi: 18. Before going to the merits of the case, it is imperative to decide the question of locus standi of the petitioner. The facts, as narrated above, are not disputed except qua the introduction of unregistered power deed dated 7.6.2007 in favour of the 5th respondent. While considering the issue of locus standi, this Court is concerned with the existence of a right as against the extent. Thus, what is required to be seen by this Court is, the availability of right. A writ proceeding cannot be treated like a Civil Suit. The petitioner has acquired the right to take action in pursuant to the assignment deed dated 7.12.2007. Clauses 2.1.1 and 2.1.2 of the said assignment deed would make the position of the petitioner very clear. It is to be seen that the petitioner has given complaints subsequently and there were litigations between the petitioner on the one hand and the private respondents on the other hand. Whether a right acquired subsequently would enable the party to challenge an order passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t himself, who complains of infraction of such right and approaches the Court for relief as regards the same. (Vide : State of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12; Saghir Ahmad & Anr. v. State of U.P., AIR 1954 SC 728; Calcutta Gas Company (Proprietary) Ltd. v. State of West Bengal & Ors., AIR 1962 SC 1044; Rajendra Singh v. State of Madhya Pradesh, AIR 1996 SC 2736; and Tamilnad Mercantile Bank Shareholders Welfare Association (2) v. S.C. Sekar & Ors., (2009) 2 SCC 784). 10. A "legal right", means an entitlement arising out of legal rules. Thus, it may be defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression, "person aggrieved" does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must therefore, necessarily be one, whose right or interest has been adversely affected or jeopardised. (Vide: Shanti Kumar R. Chanji v. Home Insurance Co. of New York, AIR 1974 SC 1719; and State of Rajasthan & Ors. v. Union of India & Ors., AIR 1977 SC 1361). 11. In Anand Sharadchandra Oka v. University of Mumbai, AIR 2008 SC 1289, a similar view was taken by this Court, observing that, if a person c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the cause of Scheduled Tribes candidates who might have been deprived of their legitimate right to be considered for the post, must be considered by this Court in order to determine whether respondent No. 5, is in fact, in a legitimate position to lay any claim before any forum, whatsoever. 19. This Court in Ravi Yashwant Bhoir v. District Collector, Raigad & Ors., (2012) 4 SCC 407, held as under: "58. Shri Chintaman Raghunath Gharat, ex-President was the complainant, thus, at the most, he could lead evidence as a witness. He could not claim the status of an adversarial litigant. The complainant cannot be the party to the lis. A legal right is an averment of entitlement arising out of law. In fact, it is a benefit conferred upon a person by the rule of law. Thus, a person who suffers from legal injury can only challenge the act or omission. There may be some harm or loss that may not be wrongful in the eye of the law because it may not result in injury to a legal right or legally protected interest of the complainant but juridically harm of this description is called damnum sine injuria. 59. The complainant has to establish that he has been deprived of or denied of a lega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .L.P.(Crl) No. 838 of 2015 dated 27.2.2015 is totally different. The Law is quite settled that an issue, which is not consciously considered and decided, would not partake the character of a binding decision. The mere fact an application for impleadment has been filed in a suit by a third party, also for the aforesaid reasons, would not dis-entitle the petitioner from filing the writ petition, more so, when the official respondents herein are not parties in the said proceedings, In any case, these issues cannot be raised by the petitioner in the said suit, being at best, it only becomes a party defendant. Furthermore, even as per the submissions of the learned counsel for respondents, the application filed for impleadment has been returned. (iii) Indian Evidence Act:-- 20. Yet another submission has been made by the learned Senior Counsel for respondents that a writ petition would not lie to set aside the sale deed. This contention also cannot be accepted for the reason the petitioner is more concerned with the role of respondent No. 2. When once it has come to know that the 2nd respondent has no jurisdiction or exceeded the same, then the registration would be bad in law. In ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t an instrument of transfer qua right, title or interest in an immovable property Therefore, the agent is meant to act only within the deed and not beyond. Thus, an immovable property can only be legally transferred/conveyed through a proper power deed. Resultantly a deed of conveyance registered without authority would become void. Such a deed of conveyance would neither convey any title nor crate any interest in immovable property. As the registration is mandatory under Sections 17 and 49 of the Indian Registration Act, the very act of Registration without being a valid power would become void. 22. Considering the scope of power deed, it has been held by the Supreme Court in Suraj Lamp and Industries Private Limited (2) through Director v. State of Haryana and another, ((2012) 1 SCC 656) in the following manner: "Scope of power of attorney 20. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch it is written, as the testator can at any time revoke it. If the testator, who is not married, marries after making the will, by operation of law, the will stands revoked. (see sections 69 and 70 of Indian Succession Act, 1925). Registration of a will does not make it any more effective. Conclusion 23. Therefore, a SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M. Jain v. Canara Bank - 94 (2001) DLT 841, that the "concept of power of attorney sales have been recognized as a mode of transaction" when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/WILL transactions are some kind of a recognized or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognize or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law. 24. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntor, which when executed will be binding on the grantor as if done by him (see Section 1-A and Section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. 21. In State of Rajasthan v. Basant Nahata, (2005) 12 SCC 77. this Court held: (SCC pp. 90 & 101, paras 13 & 52) "13. A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience. * * * 52. Execution of a power of attorney in terms of the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the registered power deed dated 23.8.2006 in specific terms did not authorize respondent No. 5 to indulge in such an act. Thus, while it is expressed in not extending the authorisation by implication also, the consequential act cannot be approved. Accordingly, this Court holds that there is no power deed at all in the eye of law for the purpose of executing the sale on behalf of respondents No. 3 and 4 by respondent No. 5 in favour of respondent No. 6 and hence non-verification of the power deed would vitiate official act of respondent No. 2. (v) Registration Act:-- 25. The object of the registration is not merely meant to collect revenue. There will not be valid transfer in the eye of law without due registration qua an immovable property. It is also meant to avoid fraud in transactions. Thus, it becomes part of a public policy. A title would not pass without due registration, as mandated by law. A party to the deed also cannot seek a right based upon unregistered document over immovable property requiring registration. 26. Section 32 of the Registration Act speaks of presentation of the document for registration. It speaks of two different categories of persons for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y no stretch of imagination it can be said that by a wrong or invalid power deed without authorisation, a sale deed an be executed and thereafter presented for registration. Therefore, Sections 32, 33 and 34 of the Registration Act, 1908 are to be read in consonance with each other. The enquiry in such a case need not be exhaustive but only in the realm of a verification or check up. In other words, what the registering authority is required to do so is, to verify the power deed that authorises an executant to sign the sale deed on behalf of the principal. What is required is only a cursory glance or look on the relevant documents. That is the object of the appearance of the parties before the Registering Officer. If one see Section 35 of the Act, it provides for a procedure for admission or denial of execution. The Registering Officer has to satisfy that the persons are personally known to him and they are the persons they represent themselves to be, apart from admitting the execution of document. Considering the scope of Sections 32 and 33, it has been held by the Apex Court in Rajni Tandon v. Dulal Ranjan Ghosh Dastidar and another, (2009) 14 SCC 782) in the following manner: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation and get it registered. ....... 34. In the instant case, Indra Kumar Halani executed the document on behalf of Shri N.L. Tantia under the terms of this power of attorney. He then presented it for registration at the Registration Office and it was registered. The plea taken by the Respondents that in order to enable him to present the document it was necessary that he should hold a power of attorney authenticated before the Sub-Registrar under the provisions of Section 33 is thus not supported by the language of Section 32. The provisions of Section 33 therefore only apply where the person presenting a document is the general attorney of the person executing it, and not where it is presented for registration by the actual executant, even though he may have executed it as agent for some one else. In this case, the presentation is by the actual executant himself and is hence is entitled under Section 32 (a) to present it for registration and to get it registered..... " 28. It is to be noted that in paragraph No. 26 of the above decision, it has been specifically held that ''a person holding a power of attorney, which authorise him to execute a document is an agent fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er presentation is not a mere defect in procedure falling under Section 18 of the Act, but this error is of more radical in nature. The provisions of the Act are very carefully designed to prevent forgeries and the procurement of conveyance by fraud or undue influence and though it may be somewhat technical, the Registering authority has to insist upon exact compliance with the provisions of the Act. It is necessary to do so. 9. In Jambu Prasad v. M.A. Ali khan reported in (28 IC 422), their Lordships of the Privy Council observed that executants of a deed who attend the Registrar's Office or Sub Registrar's Office are not merely to admit the execution and it cannot be treated as presentation for the purpose of Section 32 of the Act as presenting the deed for registration as they would exist to the registration but that could not be sufficient to come to the Registrar's jurisdiction. When the presentation itself is unauthorized, there cannot be any registration. It is also a case of the power of attorney holder presenting the document for registration." 30. Thus, when the presentation on the face of it is unauthorised, it can never be any registration giving an iota ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
