Kangra vs Court Is Contemplated Or ...
2021 Latest Caselaw 4356 HP

        IN   THE    HIGH   COURT OF   HIMACHAL            PRADESH,
                               SHIMLA
                 ON THE 6th DAY OF SEPTEMBER, 2021




                                                         .
                               BEFORE





                HON'BLE MR. JUSTICE AJAY MOHAN GOEL
                 CIVIL WRIT PETITION No.3447 of 2019





     Between:
     SUNIL KUMAR GROVER, SON
     OF SHRI JASWANT SINGH,
     RESIDENT     OF MOHTLI,
     TEHSIL INDORA, DISTRICT





     KANGRA, H.P.

                    r                                  ....PETITIONER.

     (BY SHRI B.C. NEGI, SENIOR ADVOCATE, WITH MR. NITIN
     THAKUR, ADVOCATE)

     AND

1.   THE    STATE      OF


     HIMACHAL   PRADESH,
     THROUGH    PRINCIPAL
     SECRETARY (REVENUE)
     TO THE GOVERNMENT




     OF         HIMACHAL
     PRADESH-2;





2.   THE        DISTRICT
     COLLECTOR   KANGRA,
     DISTRICT KANGRA AT





     DHARAMSHALA,
     HIMACHAL PRADESH;

3.   ADDITIONAL DISTRICT
     MAGISTRATE, KANGRA,
     DISTRICT KANGRA AT
     DHARAMSHALA,
     HIMACHAL PRADESH;

4.   TEHSILDAR-CUM-SUB
     REGISTRAR, NAGROTA
     BAGWAN,     DISTRICT
     KANGRA,    HIMACHAL
     PRADESH;




                                        ::: Downloaded on - 31/01/2022 23:01:13 :::CIS
                                             2



5.   STATE BANK OF INDIA,
     THE   MAIN   BRANCH
     KALIBARI, THE MALL
     SHIMLA, H.P.




                                                                     .

                                                              ....RESPONDENTS.

     (BY MR. ASHOK SHARMA, ADVOCATE GENERAL, WITH MR.





     ADARSH SHARMA, MR. SUMESH RAJ, MR. SANJEEV SOOD,
     ADDITIONAL ADVOCATES GENERAL, FOR RESPONDENTS
     NO.1 TO 4.

     MR. ARVIND SHARMA, ADVOCATE, FOR RESPONDENT NO.5)





     Whether approved for reporting?1 Yes
           This petition coming on for hearing this day, the Court passed the following:

                                    JUDGMENT

Brief facts necessary for the adjudication of the present

petition are as under:-

The case of the petitioner is that he is a businessman

and he participated in a bank auction conducted by respondent No.5

under the provisions of SARFAESI ACT 2002, in respect of land and

building, details of which are given in para-1 of the petition.

Respondent No.5 declared the account of one Shri Mohan Singh

Guleria, operating in the name and style of M/S Silvermoon Motors

Pvt. Ltd. as NPA and auctioned the above mentioned property under

the SARFAESI ACT. The sale certificate was issued in favour of

petitioner being the highest bidder in respect of the property

auctioned in issue. The grievance of the petitioner enumerates from

Annexure P-3, in terms whereof the petitioner has been called upon

to register the sale certificate with the Registration Authority.

2. Learned Senior Counsel, appearing for the petitioner has

.

drawn the attention of the Court to the judgment passed by Hon'ble

Supreme Court of India, in (2007) 5 Supreme Court Cases 745, titled

B. Arvind Kumar Versus Govt. of India and Others. He has referred to

question number-2, as stands framed in para-8 of said judgment

and answer thereto as stands contained in para-12 of the judgment

and by placing reliance upon the same, he has argued that the

Hon'ble Supreme Court has been pleased to settle the issue at hand

by holding that now 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 of the

Court is contemplated or required. On the strength of this judgment

of the Hon'ble Supreme Court, the petitioner submits that this writ

petition be allowed and respondents be directed not to give effect to

Annexure P-3 and to recognize the sale certificate, which has been

issued in his favour by respondent No.5.

3. Learned Additional Advocate General, while referring to

the response filed to the petition by the State, submits that

inconsonance with the provisions of Section 17 of the Indian

Registration Act, all non-testamentary documents which purport or

operate to create any right, title or interest, whether vested or

contingent, of the value of more than one hundred rupees, are to be

compulsorily registered and it is in this view of the statutory

provisions of the Registration Act that the petitioner is being called

upon to do the needful.

4. Having heard learned counsel for the parties and having

.

perused the pleadings as well as the judgment referred to by learned

Senior Counsel for the petitioner, this Court is of the view that as

the petitioner has purchased the property in issue through an

auction which was held under the provisions of the SARFAESI ACT,

his case is squarely covered by the judgment of Hon'ble Supreme

Court in

B. Arvind Kumar's case (supra) and he cannot be called

upon to register the sale certificate.

5.

Section 17 (1) of the Registration Act provides that the

documents have to be registered, if the property to which they relate,

is situated in a district in which the provisions of the Indian

Registration Act are applicable. Sub-section (2) of the said Section,

which starts with a non-obstetric clause, provides that nothing in

Clause 'B' and 'C' of sub-section (1) shall, inter alia, apply to any

certificate of sale granted to the purchaser of any property sold by a

public auction by a Civil or Revenue Officer. This is specifically

contained in sub-clause (xii) of sub-section (2) of Section 17 of the

Act. Hon'ble Supreme Court in B. Arvind Kumar's case (supra) has

taken into consideration the statutory provisions of Section 17 (1) as

also Section 17 (2) (xii) of the Registration Act,1908, while holding

that when an auction purchaser derives title on confirmation of sale

in his favour and as the sale certificate is issued, evidencing such

sale and title, then no further deed of transfer from the Court is

contemplated or required.

6. In this view of the matter, as the petitioner herein has

.

purchased the property in auction held by respondent No.5, under

the provisions of the SARFAESI ACT, he is clearly protected by the

provisions of Section 17 (2) (xii) of the Registration Act and the sale

certificate does not requires any registration. The act of the

respondent/State vide Annexure P-3 (Colly) and calling upon the

petitioner to have the sale certificate is illegal and contrary to the

provisions of Section 17 (2) (xii) of the Registration Act and therefore,

not sustainable in the eyes of law.

7. Accordingly, this writ petition is allowed, as prayed for

and Annexure P-3 (Colly) are quashed and set aside and the

respondent-authority is directed not to give effect in the same. The

petition stands disposed of. Pending miscellaneous applications, if

any, also stand disposed of. Interim order, if any, stands vacated.

    September 06, 2021                               (Ajay Mohan Goel)
         (rishi)                                            Judge