Madras High Court
L. Sangeetha vs The Sub Registrar on 19 September, 2022
Author: M.Dhandapani
Bench: M.Dhandapani
W.P.No.25139 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :19 .09.2022
CORAM
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
W.P.No.25139 and W.M.P.No.24090 of 2022
and W.P.No. 25140 of 2022
L. Sangeetha ...Petitioner in W.P.No.25139 of 2022
S. Ranjith Kumar .. Petitioner in W.P.No.25140 of 2022
Vs.
1. The Sub Registrar,
Pollachi,
Coimbatore District.
2. The Authorized Officer,
India Resurgence ARC Private Limited (India RF)
3rd Floor, Unit 304, Piramal Tower,
Peninsula Corporate Park, Lower Parel,
Mumbai 400 13. ... Respondents in W.P.No.25139 of 2022
1. The Sub Registrar,
Kinathukadavu,
Coimbatore District.
2. The Authorized Officer,
India Resurgence ARC Private Limited (India RF)
3rd Floor, Unit 304, Piramal Tower,
Peninsula Corporate Park, Lower Parel,
Mumbai 400 13.
... Respondents in W.P.No.25140 of 2022
1
https://www.mhc.tn.gov.in/judis
W.P.No.25139 of 2022
Prayer in W.P.No.25139 of 2022: Petition filed under Article 226 of the
Constitution of India, for issuance of Writ of certiorarifed Mandamus
calling for the records of the first Respondent in Na.Ka.No.473/2022 dated
13.09.2022 quash the same and further direct the 1st Respondent to file the
sale certificate dated 24.08.2022 in Book No.1 and pass orders.
Prayer in W.P.No.25140 of 2022: tition filed under Article 226 of the
Constitution of India, for issuance of Writ of certiorarifed Mandamus
calling for the records of the first Respondent in Na.Ka.No.274/2022 dated
07.09.2022 quash the same and further direct the 1st Respondent to file the
sale certificate dated 24.08.2022 in Book No.1 and pass orders.
For Petitioner : Mr.Labrar MD Abdullah
For Respondents : Mr.C. Kathiravan
Special Government Pleader
CO MMON O R D E R
The issue arises in both the writ petitions are one and the same and both the writ petitions are disposed of by way of a common order.
2. These writ petition are filed seeking for a issuance of Writ of certiorarifed Mandamus calling for the records of the first Respondent in Na.Ka.No.473/2022 dated 13.09.2022 and Na.Ka.No.274/2022 dated 07.09.2022 quash the same and further direct the 1st Respondent to file the sale certificate dated 01.09.2022 and 24.08.2022 in Book No.1.
2https://www.mhc.tn.gov.in/judis W.P.No.25139 of 2022
3. The facts of the case is that the petitioners in both the writ petitions are successful bidders in the auction that was conducted by the 2 nd Respondent wherein the 2nd Respondent had brought certain properties for sale in exercise of the powers conferred to it under Section 13 (12) of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 read with Rules 8 and 9 of the Security Interest (Enforcement) Rules 2002. Subsequently the petitioner in W.P.No.25139 of 2022 remitted a sum of Rupees One Croe Eighty Four Lakhs(1,84,00,000) and the petitioner in W.P.No.25140 of 2022 remitted an amount of Rupees One Crore Fifty Lakhs Twelve Thousand Eight Hundred and Forty Two ( 1,50,12,842) on various dates, Thereafter the second respondent forwarded the sale certificate to the first respondent for the purpose of filing the copy of the same in Book I as per Section 89(4) of the Registration Act, 1908 and the same was rejected vide impugned orders in Na.Ka.No.473/2022 dated 13.09.2022 and Na.Ka.No.274/2022 dated 07.09.2022 on the ground that the said sale certificate can be filed only after the payment of stamp duty and Registration charges. Aggrieved over the same the petitioners have filed this writ petition.
3https://www.mhc.tn.gov.in/judis W.P.No.25139 of 2022
4. The learned counsel for the petitioner submits that a Sale Certificate issued by an Officer authorised by a Bank under the provisions of the SARFAESI Act, would be akin to a sale by a Revenue Officer which would fall within Section 89(4) of the Registration Act. Therefore, the registration of such document is not mandatory in view of the provisions of Section 17(2)(xii) of the Registration Act. He further submits that the issue arises in this writ petition is covered by the decision of this Court in W.P.No.25237 of 2018 dated 12.09.2022.
5. The learned Government Pleader would submit that the sale certificate issued by a Collector or a Revenue officer does not attract Section 89(4) of the Registration Act.
6. Heard both sides and perused the materials available on record.
7. Before proceeding further it would be relevant to consider the provisions of the Registration Act and the stamp Duty which would stand attracted in the case on hand.
4https://www.mhc.tn.gov.in/judis W.P.No.25139 of 2022 Section 17(2) (xii) of the Registration Act, reads as follows:
“17. Documents of which registration is compulsory :
(2) Nothing in clauses (b) and (c) of sub-section (1) applies to--- (xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue Officer.” Section 89 (4) of the Registration Act, reads as follows:
“89. Copies of certain orders, certificates and instruments to be sent to registering officers and filed.-
(4) Every Revenue Officer granting a certificate of the sale to the purchaser of immovable property sold by public auction shall send a copy of the certificate to the registering officer within the local limits of whose jurisdiction the whole or any part of the property comprised in the certificate is situate, and such officer shall file the copy in his Book No. 1.5
https://www.mhc.tn.gov.in/judis W.P.No.25139 of 2022
8. A reading of Section 17(2)(xii) would show that a certificate of sale issued by a Civil or a Revenue Officer in evidence of a sale conducted by way of public auction is not compulsorily registrable. Section 89(4) imposes an obligation on the Revenue Officer, who conducts an auction sale to forward the certificate to the Registering Authority to enable him to file the same in Book-I maintained by him. Therefore, the second respondent in order to comply with Section 89(4) had forwarded the sale certificate to the first respondent who rejected the same vide impugned orders in Na.Ka.No.473/2022 dated 13.09.2022 and Na.Ka.No.274/2022 dated 07.09.2022 on the ground that the said sale certificate can be filed only after the payment of stamp duty and Registration charges.
9.In this regard it would be relevant to consider the decision pointed out by the learned counsel for the petitioner wherein this Court while dealing with the identical issue in W.P.No.25237 of 2018 dated 12.09.2022 and the relevant portion is extracted hereunder:
24. Recently a Division Bench of this Court in Tripower Properties Limited v. The Inspector General of Registration, reported in 2021 SCC Online Mad 15097, G.Madhurambal v. The Inspector General of Registration and V.Krsihnamoorthy v. The Inspector General of 6 https://www.mhc.tn.gov.in/judis W.P.No.25139 of 2022 Registration, had held that a sale by an officer appointed under the SARFAESI Act, would be exempt from registration and the Authorised Officer of a Bank would be a Revenue Officer. The Division Bench went a step ahead and held that a sale held by a Commissioner pursuant to a direction of this Court would also fall within ambit of Section 89(2) of the Registration Act. Of course it does not appear from the reports that the dictum of the Full Bench and other Division Benches of this Court were brought to the notice of the Hon’ble Division Bench which decided in Tripower Properties Limited v. The Inspector General of Registration,
25. From the above discussion, it could be seen that in view of the pronouncement of the Hon’ble Supreme Court in Esjaypee Impex Pvt Ltd v. Assistant General Manager and Authorised Officer, Canara Bank, the law as it stands today is that an Authorised Officer, who conducts a sale under the provisions of the SARFAESI Act, would be a Revenue Officer and the certificate issued by him in evidence of such sale, would be a document which is not compulsorily registrable under Section 17(2)(xii) of the Registration Act. It would be sufficient, if the document is lodged with the Registrar under Section 89(4) to be filed by him in the Book-I maintained by him. The decisions of this Court in the Inspector General of Registration v.
K.K.Thirumurugan, (Division Bench,) The Inspector General of Registration v. Kanagalakshmi Ganaguru, (Division Bench), Dr.R..Thiagarajan v. Inspector General of Registration, (Full Bench) and The Inspector General of Registration v. Prakash Chand Jain, (Division Bench) are no longer good law, in view of the pronouncement of the Hon’ble Supreme Court in Esjaypee Impex Pvt Ltd v. Assistant General Manager and Authorised Officer, Canara Bank
27. Insofar as the registration charges are 7 https://www.mhc.tn.gov.in/judis W.P.No.25139 of 2022 concerned, the State Government has fixed the registration charges at 1% under Section 78 of the Registration Act and the same has been published in the Tamil Nadu Government Gazette, as required under Section 79 of the Registration Act. By G.O.Ms.No.49 dated 08.06.2017, the following proviso was added to Article 1 of the table of the fees: “Provided further that notwithstanding anything contained in this Table, in case of deeds of conveyance, exchange, gift and settlement among non family members, the Registration Fee shall be levied at the rate of Rupees four per Rupees hundred or part thereof on the value or amount on which stamp duty under the Indian Stamp Act, 1899 (Central Act II of 1899) is payable”.
28. It is the contention of Mr.Sharath Chandran, learned counsel 28. It is the contention of Mr.Sharath Chandran, learned counsel for the petitioner that the proviso would apply only in cases of deeds of conveyance, exchange, gift and settlement among non-family members. Inasmuch as a sale certificate would not amount to a conveyance, the registration fee payable would be as provided under Article 1 that is at 1% and nothing more. The judgment of this Court in Sakthi Foundations Pvt. Ltd., v The Inspector General of Registration, supports the contention of the learned counsel for the petitioner on this point. This Court after examining the language of the proviso had held that it would not apply to a sale certificate issued under SARFAESI Act. This renders the collection of registration charges at 4% from the petitioner also illegal.
29. In the upshot of the above discussions, the Writ Petition has to be necessarily allowed and the excess fee and the stamp duty collected will have to be refunded by the respondents. The Writ Petition stands allowed, a Writ of Mandamus will issue directing the respondents to refund the excess stamp duty and registration fee to the tune of Rs.19,72,620/- with interest at 9% per annum from the date of filing of this Writ Petition till date of payment. There 8 https://www.mhc.tn.gov.in/judis W.P.No.25139 of 2022 shall be no order as to costs.
10. On a fair reading of the above decision rendered by this Court and the provisions relating to this issue under Section 17(2)(xii) would show that a certificate of sale issued by a Civil or a Revenue Officer in evidence of a sale conducted by way of public auction is not compulsorily registrable and Section 89(4) imposes an obligation on the Revenue Officer, who conducts an auction sale to forward the certificate to the Registering Authority to enable him to file the same in Book-I maintained by him. .
11. In view of the above discussions and taking note of the Judgments rendered by this Court, this Court is of the considered view that the said sale certificate should be entered in Book I as per Section 89(4) of the Registration Act. Accordingly these writ petitions are allowed. No costs. Consequently the connected miscellaneous petition is closed.
19.09.2022 smn Speaking Order/ Non Speaking Order Index: Yes/ No Internet: Yes/ No 9 https://www.mhc.tn.gov.in/judis W.P.No.25139 of 2022 To
1. The Sub Registrar, Pollachi, Coimbatore District.
2. The Authorized Officer, India Resurgence ARC Private Limited (India RF) 3rd Floor, Unit 304, Piramal Tower, Peninsula Corporate Park, Lower Parel, Mumbai 400 13. .
3. The Sub Registrar, Kinathukadavu, Coimbatore District.
| 10 https://www.mhc.tn.gov.in/judis W.P.No.25139 of 2022 M.DHANDAPANI,J.
smn W.P.No.25139 and W.M.P.No.24090 of 2022 and W.P.No. 25140 of 2022 19.09.2022 11 https://www.mhc.tn.gov.in/judis