K.Kumar v. The Sub Registrar

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 22.04.2022

CORAM

THE HONOURABLE MR.JUSTICE M.DHANDAPANI W.P.No.10021 of 2022 W.M.P.No.9719 of 2022 K.Kumar ... Petitioner Vs.

1.The Sub Registrar, Mettur Sub Registrar's Office, Mettur Dam, Salem District.

2.The Deputy Superintendent of Police, Economic Offence Wing-II, Erode, Erode District.

3.The Inspector of Police, Economic Offence Wing - II, Erode, Erode District. ... Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus calling for the records relating to the Check Slip No.58/2021 dated 06.10.2021 issued by the first respondent, quash the same and direct the first respondent to register the Sale Agreement presented by the petitioner dated 06.10.2021. For petitioner : Mr.V.Elangovan For Respondents : Mr.Yogesh Kannadasan Special Government Pleader

ORDER

The petitioner has filed this petition to issue a writ of Certiorarified Mandamus, to call for the records relating to the Check Slip No.58/2021 dated 06.10.2021 issued by the first

respondent and quash the same and direct the first respondent to register the Sale Agreement, dated 06.10.2021 presented by the petitioner.

2. Mr.Yogesh Kannadasan, learned Special Government Pleader takes notice for the respondents. In view of the limited relief sought for in this petition and on the consent expressed by the learned counsel appearing on either side, this petition is taken up for final disposal.

3. The case of the petitioner is that the petitioner is the owner of the property comprised in S.No.966/2A2, measuring an extent of 9126.25 Sq.ft, along with the building, measuring an extent of 400 Sq.ft, situated at Sampalli Village, Mettur. The petitioner had acquired the said property by a registered Sale Deed dated 25.09.2017, in Doc.No.2288 of 2017 on the file of SRO, Mettur. However, the petitioner entered into a sale agreement with one Muthaiyan and presented the document before the first respondent. However, the first respondent refused to register the document and passed the impugned order dated 06.10.2021, stating that the document may be registered only after getting 'No Objection Certificate' from the second respondent. Challenging the same, the present Writ Petition has been filed by the petitioner for the above relief.

4. Though very many grounds have been raised, learned counsel for the petitioner submits that the issue involved in the present case is no more res-integra in view of the fact that the very same issue was already considered by this Court in the decision made in W.P.No.10647 of 2017 dated 13.12.2018. In fact, this Court, while passing the said order dated 13.12.2018, followed the order dated 13.12.2018 passed in W.P. (MD).No.2635/2012 dated 13.03.2013, in which, the decision of the Apex Court reported in 1985(2) SCC 167 (Balakrishna Gupta Vs. Swadeshi Polytex Limited) was followed. Paragraph Nos.7 & 8 of the said order dated 13.12.2018 reads as follows: "7.

The point for consideration in this writ petition is whether the respondent is entitled to refuse registration of the sale deed on the ground that the subject matter properties of the sale deed are under Court attachment. The very same issue was considered by this Court in W.P.No.36079 of 2015 reported in 2016 (3) CTC 493 (S.Praveen Bohra vs. Joint-I Sub- Registrar) and the learned Judge found that the order of attachment cannot be a bar to register the document. In order to arrive at such conclusion, the learned Judge relied on several decisions of this Court as well as Apex Court. At paragraph Nos.

9 of the said decision, the learned Judge has observed as follows:

6. It is relevant to refer to the unreported judgment of the Madurai Bench of Madras High Court in W.P.(MD) No. 2635 of 2012, dated 13.03.2013, in the case of K.D.P. Properties Private Limited v. The Sub~Registrar, relied on by the learned counsel for the petitioner, wherein, in paragraph No. 18, a reference was made to the decision of the Hon-ble Apex Court reported in (1985) 2 SCC 167, Balkrishan Gupta v. Swadeshi Polytex Limited, and it was held as follows:

18. In (1985) 2 SCC 167 (supra), the Hon-ble Supreme Court has held as under:

30. The consequence of attachment of certain shares of a company held by a shareholder for purposes of sale in a proceeding under section 149 of the Land Revenue Act is more or less the same. The effect of an order of attachment is what Section 149 of the Land Revenue Act itself says.Such attachment is made according to the law in force for the time being for the attachment and sale of movable property under the decree of a civil court.

Section 60 of the Code of Civil Procedure, 1908 says that except those items of property mentioned in its proviso, lands, houses or other buildings, goods, money, bank notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities of money, debts, shares in a corporation and all other saleable property, moveable or immovable, belonging to a judgment debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment debtor, or by another person in trust for him or on his behalf, is liable for attachment and sale in execution of a decree against him.

Section 64 of the Code of Civil Procedure, 1908, states that where an attachment of a property is made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment.

decree holder under the decree for realisation for which the attachment is effected. A private transfer under Section 64 of the Code of Civil Procedure is not absolutely void, that is, not void as against all the world but void only as against the claims enforceable under the attachment. Until the property is actually sold the judgment debtor retains title in the property attached. Under Rule 76 of Order 21 of the Code of Civil Procedure, 1908, the shares in a corporation which are attached may be sold through a broker. In the alternative such shares may be sold in public auction under Rule 77 thereof. On such sale either under Rule 76 or under Rule 77, the purchaser acquires title.

Until such sale is effected, all other rights of the judgment debtor remain unaffected even if the shares may have been seized by the officer of the court under Rule 43 of Order 21 of the Code of Civil Procedure, 1908 for the purpose of effecting the attachment, or through a Receiver or though an order in terms of Rule 46 of Order 21 of the Code of Civil Procedure may have been served on the judgment debtor or on the company concerned."

19. The dictum laid down in the above judgment (1985) 2 SCC 167 (supra), gives a fitting answer to the issue raised in this writ petition. So far as the order of attachment passed by the DRT is concerned, the transfer is not void generally but it is void only as against the claims enforceable under the said attachment. Therefore, I am of the opinion that the sale of the property attached cannot be construed as illegal sale. However, if the 2nd respondent bank exercises its right as against the property, the petitioner cannot raise any objection because the sale of the vendor in favour of the petitioner is void in respect of the order of attachment obtained by the 2nd respondent bank. So, even if the property is sold in favour of the petitioner, the 2nd respondent bank can always exercise its right as against the said property.

20. In view of the above finding, I am of the opinion that the sale of the subject property pending the order of attachment is void only as against the claims enforceable under the order of said attachment and not in respect of other claims. Therefore, the sale of the property, which is under attachment, cannot be said as illegal.

In the light of what is stated above, the writ petition is allowed and the 1st respondent/ Sub Registrar, Kochiadai, Madurai, is directed to

release the registered document in favour of the petitioner within a period of one week from the date of receipt of a copy of this order. No costs."

7. It is also worthwhile to refer to the unreported judgment of Madurai Bench of Madras High Court in W.P.(MD) No. 14388 of 2014, dated 01.09.2014, in the case of M. Chitra v. The Sub-Registrar, relied on by the learned counsel for the petitioner, wherein, in paragraph No. 5, it was held as follows:?

"5. In such circumstances, merely because there is an order of attachment passed by a Civil Court, the same cannot be a ground to refuse to register the Memorandum of Deposit of Title Deeds. If any deposit of title deeds is created in respect of the said property pursuant to the right acquired by the petitioner, vide settlement deed, dated 04.07.2011 it is always subject to further orders to be passed by the Civil Court. The petitioner-s case is that she acquired title by way of settlement deed dated 04.07.2011, much prior to the order of attachment. Further, the learned counsel appearing for the petitioner placed reliance on Order 38, Rule 10 C.P.C.

stating that attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not parties to the suit, nor bar any person holding a decree against the defendant from applying for the sale of the property under attachment in execution of such decree. The lending bank namely, Canara Bank, Vadamadurai if satisfies with the title of the petitioner over the property, can request the Registrar to register the document. In such circumstances, merely because an order has been passed by the Civil Court effecting attachment, cannot be a bar for entertaining a document for registration. Hence, the reasons assigned by the respondent refusing to register, vide his memo, dated 25.07.2014, is not in accordance with law beyond the scope of Section 71 of the Act."

8. Thus, it is crystal clear that it is well settled principle of law that the order of attachment cannot be a bar to register the document. Therefore, I am of the view that there is no need for this petitioner to file an appeal. I am of the opinion that the sale of the subject property, pending the order of attachment is void only as against the claims enforceable under the order of said attachment and not in respect of other claims.

Therefore, I am of the opinion that the sale of the property attached cannot be construed as illegal sale. 9.In the light of the decisions cited supra, the writ petition is allowed and the Respondent viz., Joint-I Sub Registrar, Coimbatore, is directed to register the document and release the registered document in favour of the petitioner, within a period of two weeks from the date of receipt of a copy of this Order. Consequently, connected Miscellaneous petition is closed. No costs.

5. The learned Special Government Pleader appearing for the respondents submits that the petitioner's representation dated 06.10.2021 will be considered by the first respondent within the time frame that may be fixed by this Court.

6. A perusal of the decision in Balakrishna Gupta's case clearly reveals that the case on hand is squarely covered by decision in the said case, merely because, there is an order passed by the Civil Court ordering attachment, the same cannot be a ground to refuse registration of the document. In such circumstances, this Court sets aside the impugned order dated 06.10.2021 passed by the first respondent and directs the first respondent to entertain the document dated 06.10.2021, presented by the petitioner to register the sale agreement, and pass appropriate orders within a period of twelve weeks from the date of receipt of a copy of this order, in line with the said order dated 13.12.2018 passed by this Court in W.P.No.10647 of 2017. 7.Accordingly, this writ petition is disposed of with the aforesaid direction. No costs.

SD/- ASSISTANT REGISTRAR // TRUE COPY // SUB ASSISTANT REGISTRAR tri To 1.The Sub Registrar, Mettur Sub Registrar's Office, Mettur Dam, Salem District.

2.The Deputy Superintendent of Police, Economic Offence Wing-II, Erode, Erode District.

3.The Inspector of Police, Economic Offence Wing - II, Erode, Erode District.

+1cc to the Government Pleader Sr.28617 +1cc to Mr.S.Doraisamy, Advocate Sr.28201 W.P.No.10021 of 2022 kv[co] srg 10/05/2022