Karnataka High Court
M/S Mgm Pooja Buildtech Pvt. Ltd vs The Chief Manager on 26 June, 2013
Equivalent citations: AIR 2014 KARNATAKA 13, 2013 (4) AIR KANT HCR 421, (2013) ILR (KANT) 5339, (2014) 1 ICC 797, (2013) 4 KCCR 2911
Author: Mohan .M.Shantanagoudar
Bench: Mohan .M. Shantanagoudar
1
R
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26th DAY OF JUNE 2013
BEFORE
THE HON'BLE MR. JUSTICE MOHAN .M. SHANTANAGOUDAR
WRIT PETITION No.14802 OF 2013 (GM-ST/RN)
BETWEEN:
M/s. MGM Pooja Buildtech
Private Limited
Registered office at No.17
4th Main, Jayalakshmipuram
Mysore-570 012
Rep by its Branch Manager
Sri Srinivas Murthy
Age 44 years. ..Petitioner
(By Sri K. Srikanth Patil, Adv.,)
AND :
1. The Chief Manager
Punjab National Bank
Recovery Department
Circle Office, 26-27
M.G. Road, Bangalore-560001.
2. The Sub-Registrar
Office of the Sub-Registrar
Mysore North
Mysore-570 012. ..Respondents
2
(By Sri Vijayakumar A. Patil, GA., for R2;
Sri K.V. Shyama Prasad, Adv., for R1)
This Writ Petition is filed under Articles 226 and 227 of
the Constitution of India praying to quash the Endorsement
dated 22.2.2013 issued by the R2 vide Annexure-G and
further direct the R2 herein to register the sale certificate
dated 27.4.2010 vide Annexure-A.
This Writ Petition coming on for preliminary hearing in
'B' group this day, the Court made the following :
ORDER
The Endorsement Annexure-G dated 22.2.2013 issued by the Sub-Registrar, Mysore North, Mysore is called in question in this writ petition. The said Endorsement mentions that the sale certificate presented under Section-89 of the Registration Act, 1908 ('the Act' for short is time barred and therefore the same cannot be accepted.
2. The records reveal that the petitioner purchased the property bearing Plot No.108 of Metagali, K.R.S. Road, Mysore measuring 39 meters x 104 meters (4,056 square 3 meters) in public auction conducted by Respondent No.1 - bank in terms of the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The purchase was made in the auction for Rs.80,91,000/-. Consequently, the first respondent - bank issued a sale certificate on 27.4.2010 in favour of the petitioner as per Annexure-A.
3. It is the case of the petitioner that the authorized officer of the bank forwarded a letter alongwith the sale certificate dated 27.4.2010 to the Sub-Registrar, Mysore for making necessary entry in Book No.I in terms of Section- 89(4) of the Act; though the sale certificate was sent by the first respondent, the same was not filed in Book No.I as per Section-89 of the Act. Copy of the letter addressed to the Sub-Registrar, Mysore by the first respondent - bank is also forwarded to the petitioner on 27.4.2010 itself; the petitioner was under the bonafide impression that the sale 4 certificate is duly filed in Book No.I as contemplated under Section-89(4) of the Act; but to his dismay, the petitioner found that the sale certificate issued in his favour sent by the first respondent to the second respondent is not filed in Book No.I maintained by the second respondent; thereafter the petitioner himself made attempt to submit copy of the sale certificate before the second respondent; but the second respondent has refused to receive the sale certificate and file the same in Book No.I on the ground that the time for presenting the document as contemplated under Section-23 of the Act has expired.
4. Sri Srikanth Patil, learned advocate for the petitioner taking the Court to the relevant provisions under the Registration Act and the Stamp Act, contends that it is the duty of the second respondent to file copy of the sale certificate in Book No.I maintained by the second respondent under Section-89(4) of the Act; since the sale 5 certificate in question is not compulsorily registrable document under Seciton-17 of the Act, it is not open for the Respondent No.2 to reject the prayer of the petitioner.
Learned advocate appearing for Respondent No.1 Sri Shyama Prasad supports the arguments of Sri Srikanth Patil.
On the other hand, Sri Vijayakumar Patil, learned Government Advocate opposes the writ petition by contending that the sale certificate ought to have been presented before the Sub-Registrar within four months from the date of its execution as per Section-23 of the Act; since the sale certificate was not sent by the first respondent to the second respondent till this date, it is not open for the petitioner or the first respondent to send the sale certificate belatedly in view of the bar under Section-23 of the Act. He further submits that the petitioner has to pay the stamp 6 duty for the purpose of getting the sale certificate registered in his favour.
5. Sri Srikanth Patil, learned advocate for the petitioner fairly submits that he is ready to pay even the stamp duty. The said submission is recorded.
6. For better understanding, it is relevant to quote the following provisions of the Registration Act:
"Section-17: Documents of which registration is compulsory:-
(1) xxx xxx
(2) Nothing in clauses (b) and (c) of sub-
section (1) applies to -
(i) to (xi) xxx xxxx
(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue Officer.7
Section-23: Time for presenting documents:
Subject to the provisions contained in sections 24, 25 and 26, no document other than a will shall be accepted for registration unless presented for that purpose to the proper officer within four months from the date of its execution;
Provided that a copy of a decree or order may be presented within four months from the day on which the decree or order was made, or, where it is appealable, within four months from the day on which it becomes final.
Section 89: Copies of certain orders, certificates and instruments to be sent to registering officers and filed:
(1) Every officer granting a loan under the Land Improvement Loans Act, 1883 (19 of 1883), shall send a copy of his order to the registering officer within the local limits of whose jurisdiction the whole or any part of the land to be improved or of the land to be granted as collateral 8 security, is situate, and such registering officer shall file the copy in his Book NO.I. (2) Every Court granting a certificate of sale of immovable property under the Code of Civil Procedure, 1908 (5 of 1908), shall send a copy of such certificate to the registering officer within the local limits of whose jurisdiction the whole or any part of the immovable prperty comprised in such certificate is situated, and such officer shall file the copy in his Book No.1.
(3) xxx xxx
(4) Every Revenue Officer granting a
certificate of 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 immovable property comprised in the certificate is situate, and such officer shall file the copy in his Book NO.I. 9
7. Section-32 of the Act specifies the persons who are empowered to present the documents for registration. The said section excludes Section-89 of the Act. Section-89 of the Act states about copies of certain orders, certificates and instruments to be sent to Registering Officers for the purpose of filing. Section-89(4) of the Act makes it clear that every Revenue Officer granting a certificate of 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 immovable property comprised in the sale certificate is situate, and such Officer shall file the copy in his Book No.I. Thus what is required under sub-section (4) of Section-89 is that the Revenue Officer who grants certificate of sale shall send the copy of the sale certificate to the Registering Officer for getting it filed in Book No.I maintained in registration office by the Sub-Registrar. 10
8. Section-17 of the Act specifies the documents which are compulsorily registrable. Sub-section (2) of Section-17 excludes certain documents from registration. It is relevant to note that Section 17(2)(xii) of the Act exempts the certificate of sale granted to the purchaser of any property sold by public auction by a civil or Revenue Officer, from registration. Hence it is clear that the sale certificate in question is not compulsorily registrable document. The petitioner need not be present personally for getting the sale certificate filed in Book No.I under Section-89(4) of the Act. As aforementioned, what is required to be done is only to send copy of the sale certificate by the Revenue Officer to the Sub-Registrar Office for getting it filed in Book No.I maintained by Sub- Registrar. Such a procedure is done in the matter on hand.
9. Even assuming that the said certificate is not sent by the Revenue Officer till this date to the Sub-Registrar for 11 getting it filed in Book No.I as contemplated under Section- 89(4) of the Act, there is no bar for the bank to send one more copy of the sale certificate to the Sub-Registrar for the purpose of filing in Book No.I now. Section-23 of the Act does not debar the first respondent for sending the sale certificate for getting it filed in Book No.I maintained by the first respondent. Section-23 of the Act is applicable to the documents which are presented for registration. Here is a case wherein the sale certificate is not being registered. On the contrary, the sale certificate is being presented under Section-89(4) of the Act for filing in Book NO.I of the Registering Authority. Therefore Section-23 of the Act may not be applicable to the matter on hand.
10. The procedure for registration is different from procedure for filing of documents under Section-89(4) of the Act. For the purpose of registration, the original of the document is presented for registration and the same is 12 to be registered, whereas the copy of the sale certificate is filed under Section-89(4) of the Act. The original of the sale certificate need not be sent by the Revenue Officer to the Sub-Registrar for getting it filed under Section-89(4) of the Act. The executants of the document, which is required to be registered shall be present for registration and he will have to undergo certain procedures for getting the deed registered as contemplated under the provisions of the Registration Act and the rules framed thereunder. Whereas under Section-89(4) of the Act, only a copy to be filed is to be transmitted to the concerned Sub-Registrar for being filed. The procedure of presentation in person is dispensed with regard to the sale certificate under Section- 89(4) of the Act because sale certificate is issued by the public authority discharging his official duties. When document is registered, the entirety of the document shall be copied out into the relevant book and the original document would be returned to the person who presents 13 the document with necessary endorsement. Such requirement is dispensed in case of copy of sale certificate, which is simply filed.
11. The certificate of sale itself being not compulsorily registrable document as is clear from Section 17(2)(xii) of the Act, the transfer of title in his favour is not vitiated by non-registration of the certificate. The copy of the certificate filed in Book No.I contains all the relevant details. The index has to be maintained under Section-55 of the Act. It would be open to inspection for all persons. Looking to the relevant provisions of the Act, it would be sufficient to say for the purpose of this case that all that the Sub-Registrar is required to do is to file copy of the sale certificate in Book No.I and no more.
12. Since the second respondent - Sub-Registrar contends that he has not received the sale certificate sent 14 by the first respondent - bank, the first respondent shall be directed to present/send the sale certificate once again for getting it filed under Section-89(4) of the Act. By the said process, no prejudice would be caused to any of the parties.
13. On getting the sale certificate, the Sub-Registrar shall file the same in Book No.I maintained by him as per law. It is needless to observe that if the petitioner wants to get the sale certificate registered, it is open for him to do so thereafter by submitting necessary stamp duty and the registration charges.
Accordingly, the following order is made:
(a) The impugned Endorsement Annexure-G stands quashed.
(b) The first respondent - bank is directed to send another copy of the Sale Certificate as contemplated under Section-89(4) of the Registration Act, 1908 15 within 90 days from this day to the second respondent
- Sub Registrar, who in turn after receipt of the sale certificate shall file the same in Book No.I maintained by him.
(c) It is open for the petitioner to get the sale certificate registered thereafter by paying the requisite stamp duty, if he so chooses.
Writ Petition is allowed accordingly.
Sd/-
JUDGE Gss/-