20.As stated in the earlier order, it is imperative that the teachers are sensitized on this issue and once they get a proper understanding as to what is undergone by a child who belongs to this community, they will be in a better position to give proper guidance.  In view of the same, this Court expects the 17th and 18th respondents to take up this issue seriously and to  start the process of sensitizing teachers in the school.  T

 

 

 

 

IN THE HIGH COURT OF JUDICATURE AT MADRAS

ORDERS RESERVED ON :  25.07.2022

  ORDERS PRONOUNCED ON :  01.09.2022 CORAM:

THE HON’BLE MR.MUNISHWAR NATH BHANDARI,CHIEF

JUSTICE AND

THE HON’BLE MRS.JUSTICE.N.MALA

W.A.Nos.633, 1503 of 2022

C.M.P.Nos.4455 and 9846 of 2022

W.A.No.633 of 2022

The Sub Registrar,

Neelangarai, Chennai – 600 008. …  Appellant

vs.

1.Tripower Enterprises (Private) Limited

Represented by its Chief Executive,

Officer No.2/569, “Sandy Nook”,

Singaravelan First Main Road,    China Neelangarai,    Chennai – 600 115.

2.The Authorised Officer,

State Bank of India,

Stressed Assets Management Branch,

Chennai.       … Respondents

Prayer: Writ Appeal is filed under Clause 15 of the Letters Patent, to allow the Writ Appeal by setting aside the order dated 08.11.2021 made in W.P.No.34249 of 2018.

W.A.No.1503 of 2022

The Sub Registrar,

Alandur, Chennai – 600 061. …  Appellant

vs.

1.Tripower Enterprises (Private) Limited

Represented by its Chief Executive,

Officer No.2/569, “Sandy Nook”,

Singaravelan First Main Road,    China Neelangarai,    Chennai – 600 115.

2.The Authorised Officer,

State Bank of India,

Stressed Assets Management Branch,

112, Raja Plaza, Avinashi Road,

Coimbatore – 641 037.          … Respondents

Prayer: Writ Appeal is filed under Clause 15 of the Letters Patent, to allow the Writ Appeal by setting aside the order dated 19.11.2021 made in W.P.No.6657 of 2018.

For Appellants                      :  Mr.R.Neelakandan,

(in both Writ Appeals)    Additional Advocate General        assisted by

Mr.Yogesh Kannadasan

Special Government Pleader

For R1

(in W.A.No.633 of 2022)                 :  Mr.P.Krishnan

For R1      :  Mr.Shreyas Udai Lalith &

(in W.A.No.1503 of 2022)    Mr.N.Manogaran for    Mr.P.Krishnan

* * * * *

COMMON JUDGMENT

[Order of the Court was made by N.MALA,J.]

These Writ Appeals are filed challenging the orders dated 08.11.2021 and 19.11.2021 passed by the learned Single Judge allowing the writ petitions in W.P.Nos.34249 and 6657 of 2018.  The said writ petitions were filed for a Writ of Certiorarified Mandamus to call for the records on the file of the first respondent in Notification No.142/2018 and 253/2017 dated 07.08.2018 and 06.03.2018 respectively and quash the same as illegal, incompetent and without jurisdiction and further direct the first respondent to file the sale certificates dated 21.08.2017 and 29.04.2017, sent by the second respondent under Section 89 of the Registration Act, 1908.

2.The short background of facts leading to the present writ appeals are as follows:

2(i) The first respondent in W.A.No.633 of 2022 is the successful bidder of the sale notice scheduled properties, which were brought to sale by the second respondent.  The first respondent’s bid was confirmed for Rs.3,41,00,000/- (Three Crore Forty One Lakhs) by the sale confirmation order dated 26.07.2017.  After due completion of all the formalities a sale certificate was issued to the first respondent under Section 9(6) of the SARFAESI Act, confirming the sale in its favour.  Thereafter, the second respondent  requested the appellant to file the sale certificate under Section 89(4) of the Registration Act, 1908 in Book I.  The appellant issued the impugned order dated 07.08.2018 rejecting the second respondent’s request for filing the sale certificate under Section 89(4) of the Registration Act, 1908 by directing the first respondent to pay stamp duty of Rs.25,56,050/and Registration fee of Rs.14,60,600/-.  Aggrieved by the rejection order dated 07.08.2018, the first respondent filed the writ petition for a Writ of Certiorarified Mandamus to quash the impugned order dated 07.08.2018 and consequently to direct the appellant to file the sale certificate dated

21.08.2017 sent by the second respondent under Section 89(4) of the Registration Act, 1908.

2(ii) The first respondent in W.A.No.1503 of 2022 is the successful bidder of the sale notice scheduled properties, which were brought to sale by the second respondent.  The first respondent was the highest bidder having bid for Rs.60,25,00,000/- (Rupees sixty crore twenty five lakh only) and hence the sale was confirmed in its favour and the sale certificate was issued under Section 9(6) of the SARFAESI Act, confirming the sale in favour of the first respondent.  Thereafter the second respondent requested the appellant to file the sale certificate under Section 89(4) of the Registration Act, 1908 in Book I.  The appellant issued the impugned order dated 02.06.2017 rejecting the second respondent’s request for filing the sale certificate.  Aggrieved by the rejection order dated 02.06.2017, the first respondent filed the writ petition for a Writ of Certiorarified Mandamus to call for the records on the file of the first respondent in notification No.253/2017 dated 06.03.2018 and quash the same as illegal, incompetent and without jurisdiction and further direct the first respondent to file the sale certificate dated 29.04.2017, sent by the second respondent under Section

89(4) of the Registration Act, 1908.

2(iii) The learned Single Judge after hearing the cases allowed the writ petitions.  Aggrieved by the orders of the learned Single Judge, the Revenue Department has filed the above appeals.

3.The facts of the case are undisputed.  The legal issue that is raised in the present appeals is whether the sale certificate which was presented for filing under Section 89(4) in Book I of the Registration Act, 1908 needs to be stamped and registered.

4.Mr.R.Neelakandan, learned Additional Advocate General assisted by Mr.Yogesh Kannadasan, learned Special Government Pleader appearing for the appellants vehemently argued that sale certificates issued by the Authorised Officer of the bank is not exempted under Section 17(2)(xii) of the Registration Act, as he is neither a civil nor a revenue officer.  The learned Additional Advocate General has relied on the judgments of this Court as well as the judgments of the Supreme Court in support of his case.

5.In reply, the counsel for the first respondent submitted that the Authorised Officer, the second respondent herein sent the sale certificate for filing in Book I under Section 89(4) of the Registration Act 1908 and for filing the sale certificate, it was not necessary to remit the stamp duty and registration fees.  The learned counsel for respondents also relied on several judgments to fortify his arguments.

6.We have heard the learned counsel for both sides and perused the records.

7.The short legal issue to be addressed in this writ appeal is whether the sale certificate presented for filing in Book-I under Section 89(4) of the Registration Act needs to be stamped/registered.  Though several judgements have been referred to by both sides, we would confine the discussion to those judgements only which in our opinion are most appropriate to answer the

issue.

8.When the second respondent presented the sale certificates’ for filing in Book I under Section 89(4), the appellants rejected the same by the impugned orders dated 07.08.2018 and 06.03.2018 for better appreciation we extract here the material portion of the impugned orders’ dated 07.08.2018 and 06.03.2018.

PROCEEDINGS OF THE SUB REGISTRAR, NEELANGARAI, CHENNAI DATED 07.08.2018:

“With regard to the subject matter with reference to above cited, of your representation, as per the order made in O.S.No.122/2020 dated 19.01.2017 by the Hon’ble High Court, Madras, the property situated at

Uthandi Village, R.R.Niketan comprised in Survey No.3/1A, 2/1B, Ward No.199 measuring an extent 50 cent the Sale Certificate issued by the State bank of India to register the same has sought for exemption from remitting the stamp duty and registration charges.  As there is no provision to grant exemption of stamp duty and registration charges, you are hereby called upon to pay the required stamp duty of Rs.25,56,050/- and

registration charges of Rs.14,60,600/- in this office only on such remittance your Sale certificate will be taken up for registration which is hereby informed.”

PROCEEDINGS OF THE SUB REGISTRAR,

ALANDUR, CHENNAI DATED 06.03.2018:

“In the light of the above reasons, it is quite obvious that the following condition mandated in Section 89(4) of the Registration Act, 1908 has not been

fulfilled:-

The Authorized Officer of State Bank of India is not a Revenue Officer. 

In view of the decision of the Hon’ble Madurai Bench of High Court of Madras cited supra, the copy of sale certificate issued by the Authorized Officer cannot be filed by the Sub Registrar as provided under Section 89(4) of the Registration Act, 1908.

In the circumstances stated above, the copy of Sale

Certificate dated 29.04.2017 forwarded by the Authorized

Officer, State Bank of India, Stressed Assets Management

Branch, Coimbatore could not be filed as provided under Section 89(4) and hence the copy of Sale Certificate received along the letter cited in the reference is returned without filing.”

9.The appellant in W.A.No.633 of 2022 rejected the second respondent’s request on the premise that the sale certificate was to be stamped and registration charges had to be paid for registration of the sale certificate.  So also in W.A.No.1503 of 2022 the appellant rejected the second respondent’s request on the ground that the Authorised Officer of the Bank was not a Revenue Officer and so the sale certificate issued by him could not be filed under Section 89(4) of the Registration Act, 1908.  In this regard, it will be pertinent to note here the pleading of the first respondent’s in the writ affidavits.  In para Nos.14 and 16 the following is averred.

“As to whether the petitioner thereafter gets the sale certificate stamped or not would be responsibility of the petitioner.  The document undoubtedly is not compulsorily registrable.  If the petitioner seeks to use the document for any purpose and that forum is of the view that it is not stamped which it ought to be, the question of impounding it and referring it to Collector of stamps could arise.  This is not the responsibility of the Authorised Officer which was only required to issue a sale certificate and the rest had to be left to the

petitioner.”

10.From the above pleading it is clear that all that the first respondent’s sought was filing of the sale certificate in Book I.  The appellants contend that even for filing stamping and registration is compulsory.  We will therefore examine if the appellants contention is sustainable or not.

11.Chapter III of the Registration Act, 1908 dealing with Registration of Documents contains 6 Sections (i.e.) Sections 17 to 22.  Section 17(1) deals with documents which need compulsory registration.  Section 17(2) deals with documents of which registration is exempted.  In this case we are concerned particularly with Section 17 (2) (xii) which reads as follows:-

“17 (2) (xii) any certificate of sale granted to the purchaser of any property sold by public auction by a

Civil or Revenue Officer.”

12.The contention of the Additional Advocate General is that the second respondent, the Authorised officer of the bank is not a civil or revenue officer.  The counsel relies heavily on the Full Bench Judgment of this Hon’ble Court in the case of Dr.R.Thiagarajan Vs. Inspector General of Registration and Others reported in 2019(4) CTC 839.  From the brief facts of the case extracted in the judgment, it is seen that it was a case where the sale certificate was received by the Sub-Registrar for Registration and the same was registered as Document No.2675 of 2012 dated 15.03.2012.  The Sub-Registrar insisted for payment of stamp duty at the market value of the property.  The petitioners therein insisted that the stamp duty was payable only in terms of the sale consideration set out in the sale certificate which was declined by the registrar and that led to the filing of the writ petition.  In the context of undervaluation of the property covered by the sale certificate which was presented for registration, the Hon’ble Full Bench held as follows:

 

 “23. If proper stamp duty is not paid for the said Sale Certificate and registered as required under law, then it is only a still born child and does not confer any right to the petitioner whatsoever.  When the Sale Certificate is not properly stamped and registered, it is a

void document and no right would vest upon the

petitioner based on the same.”

13.In our considered opinion the Full Bench Judgment is not applicable to the present case because the respondents have not sought for registration of the document but have sought for filing of the document only.

In this respect we deem it fit to refer here to the Judgment of the Hon’ble Supreme Court in the case of B.Arvind Kumar Vs. Government of India reported in JT 2007 (8) SC 602 and the relevant paragraph is extracted hereunder:

“A sale certificate is issued to the purchaser only when the sale becomes absolute. The sale certificate is merely the evidence of such title. It is well settled that when an auction purchaser derives title on confirmation of sale in his favour, and a sale certificate is issued evidencing such sale and title, no further deed of transfer from the court is contemplated or required. In this case, the sale certificate itself was registered, though such a sale certificate issued by a court or an officer authorized by the court, does not require registration. Section 17(2)(xii) of the Registration Act, 1908 specifically provides that a certificate of sale granted to any purchaser of any property sold by a public auction by a civil or revenue officer does not fall under the category of non testamentary documents which require registration under sub-section (b) and (c) of section 17(1) of the said Act.”

14.The above said Judgment in B.Arvind Kumar’s case was followed by the Division Bench (MB) of this Hon’ble Court in the case of N.Naresh Kumar Vs. The Inspector General of Registration reported in 2018 (3) TNCJ 541 MB.  The Hon’ble Division Bench after referring to the provisions of the Indian Stamp Act and Registration Act held as follows:

“14.So far as the certificate of sale itself is not compulsorily registrable document in view of Section 17(2)(xii) of the Indian Stamp Act, transfer of title in favour of the purchaser is not vitiated by non registration of the certificate. All that is required is to file a copy of the sale certificate as per Section 89(4) of the Registration Act. Section 89(4) lists out certain orders and certificates or instruments to be sent to the registering officers to be filed or scanned. 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 Book No.1 or get itself scanned. The copy of the sale certificate thus sent to the Sub Registrar should be entered in Book No.1 by the Registering Officer. 

15.Therefore, the refusal by the Sub Registrar to file sale certificate issued by the Recovery Officer by making necessary entries in the Book in accordance with sub-section (4) of Section 89 of the Registration Act is not justified. The copy of the sale certificate thus filed in Book No.1 which contains all the relevant details and all that is the Sub Registrar is required to do is to file a copy of the certificate in Book No.1 and nothing more.”

15.It is therefore clear that there is a distinction between a sale certificate presented for registration and those presented for filing under Section 89(4) in Book-I of the Registration Act.  As far as the former is concerned, the revenue would be justified in demanding the stamp duty.  The Hon’ble Supreme Court has categorically held that on issuance of sale certificate, the auction purchaser automatically becomes the title holder of the property and that payment of stamp duty on the sale certificate is not warranted as it is only a sale certificate issued which required to be filed and scanned in Book I as per Section 89(4) of the Registration Act, 1908.  As long as the sale certificate remains as it is in Book-I without further dealing of the property, nothing is to be done.

16.The Hon’ble Supreme Court in the case of Esjaypee Impex Private

Limited Vs. Assistant General Manager and Authorised Officer, Canara Bank reported in 2021 (11) SCC 537,  held as follows:

“16.We are of the view that the mandate of law in terms of Section 17(2)(xii) read with Section 89(4) of the Registration Act, 1908 only required the authorised officer of the Bank under the SARFAESI Act to hand over the duly validated sale certificate to the auction-purchaser with a copy forwarded to the registering authorities to be filed in

Book I as per Section 89 of the Registration Act.”

17.It is pertinent to note that the said judgment is later to the Full Bench Judgment.  In fine, we hold that the learned single Judge is right in his view that the original sale certificate will need stamping and registration only when the auction purchaser presents it for registration.  But when the copy of sale certificate is forwarded for filing in Book I under Section 89 (4) of the Registration Act, the appellant cannot refuse to file a copy and demand payment of stamp duty and registration fee.

18.At this stage we have to consider the argument of learned counsel for the appellant in reference to Section 89(2) and 89(4) of the Registration Act.

19.A copy of the sale certificate has to be kept in Book No.1 when forwarded by the court as per Section 89(2) or by the Revenue Officer as per Section 89(4) of the Registration Act.

20.It is submitted that the certificate of sale of immovable property was not sent by the court and otherwise the “Authorised Officer” would not fall within the definition of “Civil or Revenue Officer”.  The argument aforesaid has been raised in reference to Section 17(2)(xii) of the Registration Act giving out that the certificate of sale need not be registered if the property is sold in public auction by a Civil or Revenue Officer.

21.The word “Civil or Revenue Officer” has not been defined under the Registration Act.   The issue aforesaid was discussed by a Full Bench of this court in the case of Dr.R.Thiagarajan, supra, in reference to a judgment of the Apex Court in the case of Shanti Devi L.Singh v. Tax Recovery Officer and others, (1990) 3 SCC 605, wherein it has been held that the Tax

Recovery Officer of the Income Tax Department would fall under the definition of the term “Revenue Officer” inasmuch as he is collecting revenue due to the government by selling the property of the assessee in public

auction.

22.With regard to the definition of the term “Civil Officer”, the Full

Bench in Dr.R.Thiagarajan, supra, made a reference to an earlier Division

Bench judgment in In Re The Official Liquidator, High Court, Madras, 2010 (2) CTC 113, wherein after referring to “Advanced Law Lexicon by P.Ramanatha Iyer”,  it was held that any officer holding appointment under the government, except in the Military or Naval Service, would be a “Civil Officer”.

23.In common parlance, if anyone is holding the responsibility of civil nature, other than any officer in Military or Naval service, then he would be reckoned to be a “Civil Officer”.  In the light of the aforesaid, the Authorised Officer of the bank would fall within the definition of “Civil Officer”, especially when he is an officer of the nationalized bank.  In that view of the matter, Section 17(2)(xii) of the Registration Act would be applicable to the facts of the case and thereby the sale certificate issued by the Authorised Officer is not one of the documents that requires compulsory registration.

24.In the light of the aforesaid, we have to give interpretation to Sections 89(2) and 89(4) of the Registration Act, because if the sale certificate issued by the Authorised Officer, being a “Civil Officer” is not required to be registered compulsorily, then there would be no reason for insisting on registration and payment of stamp duty.  Rather, the sale certificate should be filed in Book No.1.

25.Before parting with the case we think it apt to refer to the Judgment of this Hon’ble Court in the case of Shree Vijayalakshmi Charitable Trust,

Registered Trust, represented by its Trustee Vs. The Sub-Registrar,

Mettupalayam Taluk, Erode District reported in 2009 (5) CTC 15.  The Judgment was delivered in the context of the registration of sale certificate issued by the official liquidator and the Hon’ble Court after referring to the provisions of the Stamp Act and Registration Act held that Article 18 of the Stamp Act would apply on registration of sale certificate only and not to filing of sale certificate.  The learned Judge felt that registration of documents on collection of stamp duty is a source of revenue to the Government and considering that both the Acts were enacted during the colonial regime, it would be advisable to have a relook into the legislations as by the growth of economy, trade and commerce, new legislations like the SARFAESI ACT have been enacted and people are no more shy of

purchasing distressed properties.  Under the situation, the Government would be better advised to tap this vital source of revenue. The learned Judge therefore hoped that the legislature/parliament would bring suitable amendments to Section 17 and 89 of the Registration Act.  We find that an Amendment Bill was presented before the Lok Sabha and Rajya Sabha on

08.05.2015, wherein the following Amendment was suggested.

“In Section 89 of the Principal Act,—

• in sub-section (1), after the words and figure “Book No.1”, the words “or get is scanned” shall be

inserted;

• sub-section (2) shall be omitted;
• in sub-section 93), after the words and figure “Book No.1”, the words “or get it scanned” shall be

inserted;

• sub-section (4) shall be omitted;
• after sub-section (4), the following sub-section shall be inserted, namely:—

(5) All banks and financial institutions, granting loans on the basis of equitable mortgage whereby immovable property is mortgaged by deposit of title deeds for the purpose of securing repayment of the loan, may send the copy of the same online to the registering officer within the local limits of whose jurisdiction the whole or any part of the property so mortgaged is situated either directly or through an agency appointed by the Central Government or the State Government and such registering officer shall keep the copy or copies in computer diskettes or in any electronic form, as the case may be, in his Book

No.1.”

 

26.The Government of Kerala sent its suggestion on the Amendment which was placed before the committee and the same was also accepted.  But even after a lapse of seven years, the Amendment is yet to see the light of the day.  We would only hope that the legislation is expedited and the concerns of the Revenue are suitably addressed at the earliest.

27.With the above observations we dismiss the writ appeals.  There shall be no order as to costs.  Consequently, the connected miscellaneous petitions are dismissed.

 (M.N.B., CJ)          (N.M.,J.)

           01.09.2022

Index : Yes / No

Internet : Yes / No ah

To

1.The Sub Registrar,    Neelangarai,    Chennai – 600 008.

2.The Sub Registrar,

Alandur,

Chennai – 600 061.

3.The Authorised Officer,

State Bank of India,

Stressed Assets Management Branch,    Chennai.

4.The Authorised Officer,

State Bank of India,

Stressed Assets Management Branch,

112, Raja Plaza, Avinashi Road,

Coimbatore – 641 037.

 

MUNISHWAR NATH BHANDARI, C.J. and N.MALA, J.

ah

PRE-DELIVERY JUDGMENT IN

W.A.Nos.633 and 1503 of 2022 and C.M.P.Nos.4455 and 9846 of 2022

 

01.09.2022

25/25

https://www.mhc.tn.gov.in/judis

hee

 

 

 

 

 

steps taken by the 17th and 18th respondents in this regard shall also be informed to this Court by way of filing a status report during the next date of hearing. 21.Post this writ petition for hearing on  09.12.2022 at 2.15 pm. 02.09.2022 Internet: Yes KP N.ANAND VENKATESH.,J KP WP No.7284 of  2021 02.09.2022 https://sekarreporter.com/20-as-stated-in-the-earlier-order-it-is-imperative-that-the-teachers-are-sensitized-on-this-issue-and-once-they-get-a-proper-understanding-as-to-what-is-undergone-by-a-child-who-belongs-to-this-commu/