Kerala High Court
Sree Gokulam Chits & Finance Company ... vs State Of Kerala on 5 January, 2011
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
WEDNESDAY, THE 26TH DAY OF FEBRUARY 2014/7TH PHALGUNA, 1935
WP(C).No. 4181 of 2014 (W)
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PETITIONER :
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SREE GOKULAM CHITS & FINANCE COMPANY PVT. LTD,
REPRESENTED BY ITS DIRECTOR, A.M.MOHAN BABU.
BY ADV. SRI.K.B.GANGESH
RESPONDENT(S):
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1. STATE OF KERALA,
REP. BY ITS SECRETARY, DEPARTMENT OF REVENUE,
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2. THE SUB REGISTRAR,
KOTTAPPADY, THRISSUR DISTRICT.
3. THE DISTRICT COLLECTOR,
COLLECTORATE, AYYANTHOLE, THRISSUR.
R1 TO R3 BY SR GOVERNMENT PLEADER SMT. ANITHA RAVINDRAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 26-02-2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
sts
WP(C).No. 4181 of 2014 (W)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1. COPY OF THE SALE DEED DATED 5/1/2011 EXECUTED BY RAMLA AND
4 OTHERS IN FAVOUR OF THE PETITIONER
EXHIBIT P2. COPY OF THE SALE DEED DATED 7/1/201 EXECUTED BY VAHEEDA IN
FAVOUR OF THE PETITIONER
EXHIBIT P3. COPY OF THE LETTER DATED 7/1/2011 ISSUED BY THE DETECTIVE
INSPECTOR, CRIME BRANCH, CID-EOW-III, SUB UNIT, KANNUR TO THE
2ND RESPONDENT
EXHIBIT 4. COPY OF THE REPORT DATED 5/2/2011 SUBMITTED BY DETECTIVE
INSPECTOR, CRIME BRANCH, CID.
EXHIBIT P5. COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN CRL.MC
NO.1925/2011 DATED 5/11/2013.
EXHIBIT P6. COPY OF THE OBJECTION NO.1/2014 ISSUED BY THE 2ND
RESPONDENT IN RESPECT OF EXT.P1 SALE DEED.
EXHIBIT P7. COPY OF THE OBJECTION NO.1/2014 ISSUED BY THE 2ND
RESPONDENT IN RESPECT OF EXT.P2 SALE DEED.
RESPONDENT(S)' EXHIBITS: NIL
/TRUE COPY/
P.A.TO.JUDGE
sts
"C.R."
P.N.RAVINDRAN, J.
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W.P.(C)No.4181 of 2014
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Dated this the 26th day of February, 2014
JUDGMENT
The petitioner is a private limited company incorporated under the Companies Act, 1956. It had entered into an agreement with Smt.Ramla and others on 15.12.2010 for the purchase of 16.97 ares of land situate in R.S.No.174/11A of Iringapram Village, Chavakkad Taluk, Thrissur District. On the very same day the petitioner had entered into an agreement with Smt.Vaheeda for the purchase of her undivided share in 15.78 ares of land situate in R.S.No.174/11A of Iringapram Village, Chavakkad Taluk, Thrissur District. On the basis of the aforesaid agreements Smt.Ramla and others executed the original of Ext.P1 sale deed dated 5.1.2011 on stamp papers of the aggregate value of Rs.10,78,000/-. Smt. Vaheeda had likewise executed the original of Ext.P2 sale deed dated 7.1.2011 on stamp papers of the aggregate value of Rs.1,64,500/-. The aforesaid documents were presented for registration before the Sub Registrar, Kottappady on 14.1.2011 but they were returned without being registered in view of Ext.P3 letter dated 7.1.2011 sent by the Detective Inspector, Crime Branch, CID W.P.(C)No.4181 of 2014 2 EOW-III, Sub Unit, Kannur to the Sub Registrar, Kottappady whereby the Sub Registrar was requested not to register instruments in relation to the lands described therein which include the lands covered by Exts.P1 and P2 sale deeds, without first obtaining his clearance. It is stated that the petitioner thereupon made enquiries and came to know that criminal cases had been registered against the predecessors-in-interest of his vendors and it was in view of the aforesaid fact that Ext.P3 letter was sent to the Sub Registrar concerned and Ext.P4 report dated 5.2.2011 submitted in the Court of the Judicial Magistrate of First Class, Ponnani. The petitioner has also averred that when the Sub Registrar declined to register the originals of Exts.P1 and P2 sale deeds, the vendors moved the Court of the Judicial Magistrate of First Class, Ponnani by filing Crl.M.P.No.748 of 2011 and other applications and prayed for an order rejecting Ext.P4 report, that the said applications were dismissed by order passed on 28.5.2011, that they thereupon filed Crl.M.C.No.1925 of 2011 in this Court and that by Ext.P5 judgment delivered on 5.11.2013, a learned single Judge of this Court held that the investigating officer or the learned Magistrate had no jurisdiction to attach the properties in exercise of the powers under section 102 of the Code of Criminal Procedure and quashed the order of attachment. The petitioner has further W.P.(C)No.4181 of 2014 3 averred that though thereafter the originals of Exts.P1 and P2 sale deeds were presented for registration on 4.2.2014, the Sub Registrar declined to register the sale deeds on the ground that they were not presented for registration within the period of four months from the date of execution or within the period of eight months from the date of execution after paying the prescribed fine. It is stated that Exts.P6 and P7 memos styled as objections were also issued on the same day setting out the above reasons. In this writ petition the petitioner challenges Exts.P6 and P7 memos issued by the second respondent Sub Registrar and seeks the following reliefs:-
"i) writ of certiorari or any other appropriate writ, order or direction to quash Exhibits P6 and P7 objections passed by the 2nd respondent;
ii) writ of mandamus or any other appropriate writ, order or direction commanding the 2nd respondent to accept Exhibits P1 & P2 sale deeds for registration and to register the same forthwith;
iii) a declaration that the petitioner is entitled for refund of the stamp duty paid by it in respect of Exts.P1 & P2 sale deeds by virtue of proviso (b) to Section 48(3) of the Kerala Stamp Act, 1959 in case the petitioner is compelled to substitute Exts.P1 & P2 deeds with fresh sale deeds for the purpose of registration."
2. The principal contention raised in the instant writ petition is that where the registration of a document could not be effected within the time limit stipulated in sections 23 and 25 of the W.P.(C)No.4181 of 2014 4 Registration Act, 1908 on account of an order of attachment which was passed by the criminal court which was later found to be without jurisdiction, the period during the judicial proceedings which culminated in Ext.P5 judgment of this Court was pending, is liable to be excluded while computing the period stipulated in sections 23 and 25 of the Registration Act, 1908. Reliance is placed on the decision of the Apex Court in Raj Kumar Dey & Others v. Tarapada Dey & Others [1987 (4) SCC 398] in support of the said contention.
3. I heard Sri.K.B.Gangesh, learned counsel appearing for the petitioner and Smt.Anitha Ravindran, learned Senior Government Pleader appearing for the respondents. It is not in dispute that the lands sought to be conveyed to the petitioner as per the originals of Exts.P1 and P2 sale deeds were attached under section 102 of the Code of Criminal Procedure by the investigating officer who had issued Ext.P3 letter dated 7.1.2011 to the second respondent Sub Registrar inter alia informing him that without his clearance sale deeds executed in respect of the lands described therein should not be registered. Later, on his report, a copy of which is produced as Ext.P4, an order of attachment was also passed by the criminal court. The sale deeds in question were executed on 5.1.2011 and 7.1.2011 respectively. They ought to have been presented for W.P.(C)No.4181 of 2014 5 registration within the period of four months stipulated in section 23 of the Registration Act. They could have been registered within a further period of four months on payment of ten times the registration fee as fine. The period of four months stipulated in section 23 of the Registration Act expired on 5.5.2011 in respect of Ext.P1 sale deed and on 7.5.2011 in respect of Ext.P2 sale deed. The further period of four months expired on 5.9.2011 in respect of Ext.P1 sale deed and on 7.9.2011 in respect of Ext.P2 sale deed. During the said period, the documents could not be registered in view of the order of attachment passed by the investigating officer and later by the criminal court. Though the vendors who had executed Exts.P1 and P2 sale deeds moved the Court of the Judicial Magistrate of First Class, Ponnani to have the order of attachment vacated, by filing an application in that regard on 4.3.2011, the said applications were dismissed by order passed on 28.5.2011. The vendors thereupon filed Crl.M.C.No.1925 of 2011 in this Court. It was heard and allowed by Ext.P5 judgment delivered on 5.11.2013. By that judgment this Court held that the investigating officer or the learned Magistrate had no jurisdiction to attach the properties in exercise of the power under section 102 of the Code of Criminal Procedure. The order of attachment was accordingly quashed. Though the vendors thereupon presented the originals of the W.P.(C)No.4181 of 2014 6 documents for registration on 4.2.2014, the Sub Registrar declined to register the documents on the grounds stated in Exts.P6 and P7 namely that they were not presented for registration within the period of four months stipulated in section 23 of the Registration Act or within a further period of four months after payment of fine, as stipulated in section 25 of the Registration Act.
4. It is evident from the pleadings and the materials on record that during the period from 7.1.2011 to 5.11.2013, an order of attachment passed by the investigating officer and the Court of the Judicial Magistrate of First Class, Ponnani was in force. As a result thereof, the vendors were disabled from getting the sale deeds registered. The fact that the documents were originally presented for registration in time and were not registered on account of the order of attachment is not in dispute. If the period during which the order of attachment was in force namely the period from 7.1.2011 to 5.11.2013 is excluded while computing the period of four months stipulated in section 23 of the Act, it cannot be said that the documents were not presented for registration within the period of four months from the date of their execution. If the aforesaid period is excluded, the period of four months computed from 5.1.2011 when Ext.P1 sale deed was executed will expire only on 5.3.2014 and in respect of Ext.P2 sale deed dated W.P.(C)No.4181 of 2014 7 7.1.2011 will expire only on 7.3.2014.
5. A similar issue came up for consideration before the Apex Court in Raj Kumar Dey & Others v. Tarapada Dey & Others [supra]. The parties before the Apex Court had entered into an agreement regarding partition of their joint assets and pursuant to the said agreement the dispute was referred to three arbitrators. The arbitrators met and signed the award on 28.11.1977. Shortly thereafter one among the parties filed an application under section 11 of the Arbitration Act, 1940 before the Court of the Munsiff of Arambagh. Appellants 1 to 4 before the Apex Court filed an application under section 14 of the Arbitration Act, 1940 before the Court of the Subordinate Judge of Hooghly praying for a direction to the arbitrators to file the award in the court. The arbitrators accordingly filed the award before the Court of the Subordinate Judge of Hooghly on 28.1.1978. Thereafter, the Court of the Munsiff of Arambagh passed an interim order of injunction directing the parties including the arbitrators to maintain the status quo till the disposal of the application filed under section 11 of the Arbitration Act, 1940. Shortly thereafter, the arbitrators moved an application before the Sub Judge for returning the award so as to enable them to present it before the Sub Registrar for registration. The learned Sub Judge allowed the application and ordered return of the award W.P.(C)No.4181 of 2014 8 to the arbitrators to enable them to present it for registration. Such an order was passed in January, 1980. That order was set aside by the High Court of Calcutta which held that during the subsistence of the interim order of injunction passed by the Munsiff Court directing the parties including the arbitrators to maintain status quo, the award cannot be taken back for presenting it for registration. The High Court directed that the arbitrators' application for return of the award be kept pending and be heard and disposed of after the order of injunction is vacated. The learned Munsiff thereafter heard and dismissed the application filed under section 11 of the Arbitration Act, 1940. The arbitrators thereupon renewed their prayer before the learned Sub Judge to return the award. The learned Sub Judge dismissed the arbitrators' application by order passed on 25.2.1983 on the ground that the period prescribed for presenting the award for registration has expired. The High Court set aside that order and directed the award to be returned holding that it was for the Registrar and not the Sub Judge to determine whether the period prescribed for presenting the award for registration has expired. The learned Sub Judge thereupon passed an order on 23.11.1983 directing the award to be returned. The award was returned on 24.11.1983 and it was presented for registration before the Sub Registrar on 25.11.1983. The Sub Registrar registered the award. W.P.(C)No.4181 of 2014 9 Later the High Court quashed the registration of the award in exercise of its jurisdiction under Article 227 of the Constitution of India on the ground that it was presented for registration beyond the stipulated time. The validity of the said order was challenged in appeal before the Apex Court. Allowing the appeal and restoring the order of the Sub Registrar, the Apex Court held as follows:-
"5. The limitation period for registration is four months from the date of its execution. The award was made on 28th of November, 1977 and it was presented for registration to the Sub Registrar on 25th of November, 1983. S.23 of the Registration Act, 1908 (hereinafter called 'the Registration Act') stipulates that the time for registration is four months from the date of its execution. S.25(1) of the Registration Act provides that if, owing to urgent necessity or unavoidable accident, any document executed, or copy of a decree or order made is not presented for registration till after the expiration of the time hereinbefore prescribed, the Registrar, in cases where the delay in presentation does not exceed four months may direct that, on payment of a fine not exceeding ten times the amount of the proper registration fee, such document shall be accepted for registration. Sub-s.(2) of S.25 provides that any application for such direction may be lodged with a Sub Registrar, who shall forward the same to the Registrar. Therefore the cumulative effect of S.23 and 25 read together is that total period of eight months is available for registration if the conditions are fulfilled. The High Court had held that in this case the award has been registered after six years and as such was beyond time. It was held before the High Court that no registration was permissible beyond the period fixed under S.25 read with S.23 of the Registration Act and any registration beyond such period would W.P.(C)No.4181 of 2014 10 be void. But in this case admittedly the award was in the court of the learned Munsif from 28th of January, 1978 to 24th of November, 1983. Therefore, this period, that is to say, from 28th January, 1978 to 24th November, 1983 the award was in court and this was manifest from the order in Misc. Case No.28 of 1977. The arbitrators had made an application on or about 14th August, 1974 (1978?) for return of the award but that was not done. Furthermore, there was an injunction on 26th July, 1978 which was only vacated on 20th December, 1982.
6. We have to bear in mind two maxims of equity which are well settled, namely, "Actus Curiae Neminem Gravabit" An act of the Court shall prejudice no man. In Broom's Legal Maxims, 10th edition, 1939 at page 73 this maxim is explained that this maxim was founded upon justice and good sense; and afforded a safe and certain guide for the administration of the law. The above maxim should, however, be applied with caution. The other maxim is "Lex Non Cogit Ad Impossibilia" (Broom's Legal Maxims P. 162) The law does not compel a man to do that which he cannot possibly perform. The law itself and the administration of it, said Sir.W. Scott, with reference to an alleged infraction of the revenue laws, must yield to that to which everything must bend, to necessity; the law, in its most positive and peremptory injunctions is understood to disclaim, as it does in its general aphorisms, all intention of compelling impossibilities, and the administration of laws must adopt that general exception in the consideration of all particular cases. (emphasis supplied)
7. In this case indisputably during the period from 26th of July, 1978 to 20th December, 1982 there was subsisting injunction preventing the arbitrators from taking any steps. Furthermore, as noted before the award was in the custody of the court, that is to say, 28th of January, 1978 till the return of the award to the arbitrators on 24th of November, 1983, the W.P.(C)No.4181 of 2014 11 arbitrators or the parties could not have presented the award for its registration during that time. The award as we have noted before was made on 28th of November, 1977 and before the expiry of the four months from 28th November, 1977, the award was filed in the court pursuant to the order of the court. It was argued that the order made by the court directing the arbitrators to keep the award in the custody of the court was wrong and without jurisdiction, but no arbitrator could be compelled to disobey the order of the court and if in compliance or obedience with court of, doubtful jurisdiction, he could not take back the award from the custody of the court to take any further steps for its registration then it cannot be said that he has failed to get the award registered as the law required. The aforesaid two legal maxims - the law does not compel a man to do that which he cannot possibly perform and an act of the Court shall prejudice no man would apply with full vigour in the facts of this case and if that is the position then the award as we have noted before was presented before the Sub Registrar, Arambagh on 25th November 1983 the very next one day of getting possession of the award from the court. The Sub Registrar pursuant to the order of the High Court on 24th of June, 1985 found that the award was presented within time as the period during which the judicial proceedings were pending that is to say, from 28th of January, 1978 to 24th of November, 1983 should be excluded in view of the principle laid down in S. 15 of the Limitation Act, 1963. The High Court, therefore, in our opinion, was wrong in holding that the only period which should be excluded was from 26th July, 1978 till 20th December, 1982. We are unable to accept this position. 26th July, 1978 was the date of the order of the learned Munsif directing maintenance of status quo and 20th of December, 1982 was the date when the interim injunction was vacated, but still the award was in the custody of the court and there is ample evidence as it W.P.(C)No.4181 of 2014 12 would appear from the narration of events hereinbefore made that the arbitrators had tried to obtain the custody of the award which the court declined to give to them. The principles enunciated by this Court in Nityananda M. Joshi v. Life Insurance Corporation of India, (1970 (1) SCR 396 : AIR 1970 SC 209) would have no application to the facts of this case."
6. The principles laid down by the Apex Court apply on all fours to the case on hand. By reason of an order of attachment passed by the investigating officer/criminal court under section 102 of the Code of Criminal Procedure, which attachment was later found to be without jurisdiction, the vendors were prevented from getting the sale deeds registered. The order of attachment was in force till 5.11.2013 when it was quashed by this Court by Ext.P5 judgment delivered on 5.11.2013. If the period during which the order of attachment was in force namely the period from 7.1.2011 to 5.11.2013 is excluded in computing the period of four months stipulated in section 23 of the Registration Act, it has to be necessarily held that the action of the Sub Registrar in declining to register the documents on the ground that the period of four months had expired cannot be sustained. If the aforesaid period is excluded, as on 4.2.2014 the period of four months stipulated in section 23 of the Act had not expired. During the period when the order of attachment was in force, neither the petitioner nor the W.P.(C)No.4181 of 2014 13 petitioner's vendors could have got the sale deeds registered. In view of the order of attachment it was impossible for them to get the documents registered within the period of four months from the date of execution or the extended period of four months within which documents can be presented and got registered on payment of fine. The maxim "Lex Non Cogit Ad Impossibilia" applies to the facts of the case and therefore, the stipulations in sections 23 and 25 of the Registration Act, 1908 cannot operate with full force. The Sub Registrar should have in such circumstances registered the documents if they were otherwise in order. It is evident from Exts.P6 and P7 objections that except the fact that they were not presented for registration within four months as stipulated in section 23 of the Registration Act or within a further period of four months as stipulated in section 25 of the Registration Act, no other objection had been raised to the registration of the documents. The petitioner is therefore entitled to have the documents registered without payment of fine.
For the reasons stated above, I allow the writ petition, set aside Exts.P6 and P7 objections and direct the second respondent to receive the originals of Exts.P1 and P2 sale deeds if presented for registration and to register them forthwith on payment of the W.P.(C)No.4181 of 2014 14 registration fees. No costs.
Sd/-
P.N.RAVINDRAN JUDGE vpv