Karnataka High Court
Zenith Credit Limited vs Mr Surendra Kumar Loyalka on 23 September, 2019
Author: Alok Aradhe
Bench: Alok Aradhe
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF SEPTEMBER 2019
BEFORE
THE HON'BLE MR. JUSTICE ALOK ARADHE
WRIT PETITION NO.54236 OF 2018
AND
WRIT PETITION NOS. 6451 OF 2019
& 6571 OF 2019 (GM-ST/RN)
BETWEEN:
ZENITH CREDIT LIMITED
GHAVING ITS REGISTERED OFFICE AT
NO.19 R N MUKHERJEE ROAD
KOLKATA - 700 001
REPRESENTED BY ITS AUTHORIZED SIGNATORY
MR DEBABRATE ROY
... PETITIONER
(By MR.H S DWARAKANATH, ADV.)
AND:
1. MR SURENDRA KUMAR LOYALKA
AGED ABOUT 67 YEARS
S/O LATE B R LOYALKA
R/A NO.539, 8TH MAIN
4th BLOCK, 1ST CROSS
KORAMANGALA
BENGALURU-560034
2. THE SUB REGISTRAR SHANTHINAGAR
SHANTHINAGAR BUS DEPOT
DOUBLE ROAD
BENGALURU-560027
3. SMT URMILA LOYALKA
AGED ABOUT 65 YEARS
W/O SURENDRA LOYALKA
R/A NO.539, 8th MAIN
4TH BLOCK, 1ST CROSS
KORAMANGALA BENGALURU-560034
2
4. MR VIKRAM KUMAR @ VIKRAM JAIN
AGED ABOUT 44 YEARS
S/O BHEEMRAJ JAIN
24, S S TEMPLE STREET
NEAR SAJJAN RAO CIRCLE
V V PURAM
BENGALURU-560004
5. THE SUB REGISTRAR
JAYANAGAR SUB REGISTRAR OFFICE
NO.623, NO.4 OLD NO.622
10TH C MAIN ROAD 4TH BLOCK
JAYANAGAR, BENGALURU-560011
... RESPONDENTS
(By MR.SRIDHAR N HEGDE, HCGP FOR R2 & R5,
NOTICE TO R1, R3 & R4 ARE SERVED
U/O DATED 10.07.2019)
---
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
THE DEED OF DECLARATIONS DTD:10.09.2008 BEARING
DOCUMENTS NO.SHR-1-00496-2008-09 IN BOOK NO.I, STORED
IN CD NO.SHRD-3 BEFORE THE SUB REGISTRAR,
SHANTHINAGARA, BANGALORE WITH RESPECT TO SCHEDULE A
PROPERTY AND DEED OF DECLARATION DTD:10.9.2008 BEARING
DOCUMENTS NO.SHR-1-00497-2008-09 IN BOOK NO.I, STORED
IN CD NO.SHRD-3 BEFORE THE SUB REGISTRAR,
SHANTHINAGARA, BANGALORE WITH RESPECT TO SCHEDULE B
PROPERTY VIDE ANNXRE-K & L RESPECTIVELY AND LEASE DEED
DTD:16.12.2017 REGISTERED AS DOCUMENT NO.SHR-1-02669-
2017-18 IN BOOK NO.I, STORED IN CD NO.SHRD104 BEFORE THE
SUB REGISTRAR, SHANTHINAGARA, BANGALORE VIDE
ANNEXURE-P; AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:-
3
ORDER
Mr.H.S.Dwarakanath, learned counsel for the petitioner.
Mr.Sridhar N Hegde, learned High Court Government Pleader for the respondent Nos.2 and 5.
2. The petitions are admitted for hearing. With consent of the learned counsel for the parties, the same are heard finally.
3. In these petitions, the petitioner inter alia seeks a writ of certiorari for quashment of deeds of declaration dated 10.09.2008 which has been registered in Book No.1 before the Sub-Registrar, Shanthinagar, Bengaluru in respect of the schedule property as well as lease deed dated 16.12.2017 registered in Book No.1 before Sub- Registrar, Jayanagar, Bengaluru.
4. Facts giving rise to the filing of the petitions briefly stated are that the petitioner claims to be the 4 absolute owner and in peaceful possession of two adjacent industrial sites measuring 644.92 square meters and 702.32 square meters situated at Krishnanagar Industrial Area, Bengaluru. The petitioner
- Company had purchased the Schedule A property under registered sale deed dated 25.06.1990. The petitioner purchased the Schedule B property on 09.02.1990. Thereafter, the name of the petitioner was mutated in the khata. The petitioner along with the writ petitions has also annexed the copy of the khata. It is averred in the writ petitions that one Mr.B.R.Loyalka and Smt.Narmada Devi Loyalka had four sons namely R.K.Loyalka, B.K. Loyalka, V.K. Loyalka and S.K. Loyalka. A memorandum of understanding dated 30.03.2003 was executed amongst the members of the family which was also called as scheme of partition. The respondent No.1 started interfering with the properties at Schedule A and B on the strength of memorandum of understanding. The petitioner thereafter filed a suit namely O.S.No.7418/2015 seeking 5 relief of permanent injunction. The respondent No.1 filed a written statement and contested the prayer of the petitioner. The petitioner thereafter entered into an agreement on 11.12.2017 for sale of suit properties with one Raghavappa Krishnamurthy who filed O.S.No.4817/2018 seeking relief of specific performance of the contract.
5. After going through the averments made in the plaint, the petitioner get to know that the respondent No.1 has two registered deeds of declaration dated 10.09.2008 with reference to Schedule A and B properties stating that he is the absolute owner of Schedule A and B properties. The respondent No.2 registered the aforesaid deeds without verifying the documents pertaining to title. On the basis of the aforesaid registration, the respondent Nos.1 and 3 have executed the registered lease deed in favour of respondent No.4. In the aforesaid background, the 6 petitioner has approached this Court seeking the reliefs as stated supra.
6. Learned counsel for the petitioner, while inviting the attention of this Court to the documents in question, submitted that the aforesaid documents ought to have been entered in Book No.4 instead of Book No.1. In this connection, learned counsel for the petitioner has invited the attention of this Court to Section 51 of the Registration Act, 1908 (hereinafter referred to as 'the Act' for short) and has submitted that the aforesaid Section provides different register books to be kept in several offices. Learned counsel for the petitioner also invited the attention of this Court to Section 57(3) of the Act as well as Rule 148 of the Karnataka Registration Rules, 1965 (hereinafter referred to as 'the Rules' for short) and Section 75 of the Act. It is further submitted that since the documents in question have been registered in infraction of the provisions prescribed under the Act and Rules framed thereunder, therefore, 7 no sanctity can been attached to the deeds of declaration and the aforesaid deeds of declaration and consequently, the lease deed are liable to be quashed.
7. Learned Additional Government Advocate who has entered appearance on behalf of the respondent Nos.2 and 5 submitted that by the aforesaid deeds of declaration, no transfer of property has been made in anyone's favour and aforesaid deeds of declaration have been executed on the basis of the registered partition deed. It is further submitted that infact the petitioner should have approached the Trial Court by filing a civil suit seeking the relief of declaration under Sections 13(1) to 13(4) of the Specific Relief Act, 1963. In support of his submissions, learned Additional Government Advocate has placed reliance on the decisions in the cases of 'YANALA MALLESHWARI Vs. SMT.ANANTHULA SAYAMMA' AIR 2007 AP 57, 'SATYA PAL ANAND Vs. STATE OF MADHYA PRADESH AND OTHERS' (2016) 10 SCC 767 and 8 'SMT.KUSUM LATA Vs. STATE OF U.P. AND ORS.' AIR 2018 ALLAHABAD 210.
8. I have considered the submissions made by learned counsel on both the sides and have perused the record. It is well settled in law that when the statute specifies the conditions in which the power is to be exercised then on fulfillment of such conditions alone, the power conferred becomes annexed with a duty to exercise the power in that manner. [SEE: 'THE OFFICIAL LIQUIDATOR VS. DHARTI DHAN (P) LTD.,', AIR 1977 SC 740]. It is equally well settled legal proposition that when the statute prescribes a power to do a certain thing in a certain way, that thing has to be done in that way or not at all. In this connection, reference may be made to the decisions of the Supreme Court in 'RAMACHANDRA KESHAV ADKE V/S GOVIND JOTI CHAVARE AND OTHERS', (1975) 1 SCC 559, 'COMMISSIONER OF INCOME TAX, MUMBAI V/S ANJUM M.H GHASWALA AND 9 OTHERS' (2002) 1 SCC 633, 'GUJARAT URLA VIKAS NIGAM LTD V/S ESSAR POWER LTD', (2008) 4 SCC 755.
9. Section 51(3) of the Registration Act, 1908 provides that in Book 4 shall be entered all documents registered under clauses (d) and (f) of Section 18 which do not relate to immovable property. In the instant case, the documents in question are not required to be questioned under Section 17 of the Act as no transfer of title is effected by execution of the aforesaid documents. Therefore, the aforesaid documents fall within the ambit and scope of Section 18(f) of the Act which provides that all other documents not required by Section 17 to be registered. In the instant case, the documents in question ought to have been registered in Book No.4. However, from perusal of deeds of declaration dated 10.09.2008, it is evident that the aforesaid documents have been registered in Book No.1 and not in Book No.4. Section 55(5) of the Act provides 10 that Index No.IV shall contain the names and additions of all the persons executing and of all persons claiming under every document entered in Book No.4. Similarly, Section 57(3) of the Act provides that subject to the same provisions, copies of entries in Book No.4 and in the Index relating thereto shall be given to any person executing or claiming under the documents to which such entries respectively refer, or to his agent or representative. In other words, if a document is registered in Book No.1, only the parties to the document have a right to apply for a copy. Rule 148 of the Karnataka Registration Rules, 1965 reads as under:
"Certificate of encumbrance - When an application is made for a search for encumbrances in respect of any immovable property or for a list of documents executed by or in favour of a single individual, and the applicant desires that a certificate of encumbrance or a list of documents found in the course of such search should be furnished to him by the Registering Officer, the request shall be complied with, the 11 certificates or list being in Form Numbers 15 to 17 of Schedule B, as the case may be."
10. Thus, from perusal of the aforesaid Rule, it is evident that if the document is registered in Book No.1, it shall not appear in the certificate of encumbrance. Section 75 of the Registration Act provides that if the Registrar finds that the document has been executed and that the said requirements have been complied with, he shall order the document shall be registered.
11. All the aforesaid statutory requirements are required to be complied with before the document is registered. In the instant case, the deeds of declaration have been executed in flagrant violation of aforesaid requirements which are prescribed in the Registration Act as well as Rules framed thereunder.
12. From perusal of the deeds of declaration, it is evident that the aforesaid documents have been registered in Book No.1 instead of Book No.4. 12 Therefore, it is evident that the procedural requirements for registration of deeds have not been fulfilled.
13. In view of the preceding analysis, the deeds of declaration are hereby quashed. In the result, lease deed loses consequence in law.
Accordingly, the petitions are disposed of.
Sd/-
JUDGE RV