Kerala High Court

Hilary Felson vs M/S Powerlink Builders Pvt. Ltd on 2 August, 2024

Author: P Gopinath

Bench: P Gopinath

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR. JUSTICE GOPINATH P.
        FRIDAY, THE 2ND DAY OF AUGUST 2024 / 11TH SRAVANA, 1946
                          RP NO. 754 OF 2024
  AGAINST JUDGMENT DATED 17.08.2023 IN WP(C) NO.17197 OF 2023 OF
                         HIGH COURT OF KERALA
REVIEW PETITIONER/3RD PARTY:

            HILARY FELSON,
            AGED 54 YEARS,
            S/O FRANCIS, RESIDING AT HILARY HOUSE, KESTON TOWERS,
            A-5, KOWDIAR, THIRUVANANTHAPURAM, PIN - 695 003.
            BY ADVS.
            P.P.BIJU
            SAFNA P.S.


RESPONDENT/PETITIONER AND RESPONDENTS:

    1       M/S POWERLINK BUILDERS PVT. LTD,
            REPRESENTED BY ITS MANAGING DIRECTOR, SRI.PRADEEP P.,
            AGED 62 YEARS, S/O.LATE PRABHAKARA MENON, G-3,
            AISWARYA, JAWAHAR NAGAR, KOWDIAR PO,
            THIRUVANANTHAPURAM, PIN - 695 003.
    2       STATE OF KERALA,
            REPRESENTED BY THE SECRETARY, DEPARTMENT OF
            REGISTRATION, SECRETARIAT, THIRUVANANTHAPURAM,
            PIN - 695 001.
    3       INSPECTOR GENERAL OF REGISTRATION,
            DEPARTMENT OF REGISTRATION, VANCHIYOOR,
            THIRUVANANTHAPURAM, PIN - 695 035.
    4       THE SUB REGISTRAR,
            SASTHAMANGALAM, THIRUVANANTHAPURAM, PIN - 695 010.

            SRI.PIRAPPANCODE V S SUDHIR
     THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 02.08.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 RP NO. 754 OF 2024 IN W.P(C)NO.17197/2023
                                     2

                              ORDER

This Review Petition is filed seeking a review of the

judgment dated 17.08.2023 in W.P(C)No.17197 of 2023. As

can be seen from a reading of the said judgment, the issue

considered by this Court was whether the insistence on the

part of the Sub Registrar, Sasthamangalam that the

photograph and thumb impression of the donor in the power

of attorney (produced as Ext.P2 before this Court) is also to

be affixed on the documents to be executed by the petitioner

in terms of the power granted under the power of attorney.

On a consideration of the matter and on an analysis of the

provisions contained in Section 32A of the Registration Act,

1908 and also of the provisions contained in Section 2 of the

Powers-of-Attorney Act, 1882, this Court held as follows:-

"4. Having heard the learned counsel appearing for the petitioner and the learned Government Pleader, I am of the view that the petitioner is entitled to succeed. Section 32 A of the Act reads as follows:

"32A. Compulsory affixing of photograph, etc.-- Every person presenting any document at the proper registration office under section 32 shall affix his passport RP NO. 754 OF 2024 IN W.P(C)NO.17197/2023

size photograph and fingerprints to the document:

Provided that where such document relates to the transfer of ownership of immovable property, the passport size photograph and fingerprints of each buyer and seller of such property mentioned in the document shall also be affixed to the document".

The first part of Section 32 A of the Act provides that every person presenting any document at the proper registration office under Section 32 of the Indian Registration Act, 1908, shall affix his passport size photograph and fingerprints to the document. The proviso which requires the passport size photograph and fingerprints of each buyer and seller obviously relates to the transfer of ownership immovable property. The terms of Section 32 A of the Act does not lead to the conclusion that where the document for registration is presented on the strength of a registered Power of Attorney by any person, the photograph and fingerprints of the original donor will also have to be affixed. Section 2 of the Powers of Attorney Act, 1882, reads as follows:-

2. Execution under power-of-attorney.--

The donee of a power-ofattorney may, if he thinks fit, execute or do any instrument or thing in and with his own name and signature, and his own seal, where sealing is required, by the authority of the donor of the power; and every instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof.

RP NO. 754 OF 2024 IN W.P(C)NO.17197/2023

This section applies to powers-

of-attorney created by instruments executed either before or after this Act comes into force".

It is clear from a reading of Section 2 of the Powers of Attorney Act, 1882, that any act done by the donee in terms of the power granted to him by the donor under a duly executed Power of Attorney will be treated as acts done by the donor. Therefore, the provisions of Section 32 A of the Act can only be interpreted to mean that when documents are presented by a Power of Attorney holder, the photograph and fingerprints of the Power of Attorney holder alone is sufficient and the 3rd respondent cannot insist on photograph and fingerprints of the donor also. The provisions of Ext.R3 (a) - Circular appear to run counter to the provisions contained in Section 2 of the Powers of Attorney Act, 1882. The question of considering the provisions in the Indian Registration Act, 1908 as a special law vis-a-vis the provisions of the Powers of Attorney Act, 1882 does not arise for consideration, as I find no contradiction between the provisions contained in Section 32 A of the Act and the provisions contained in Section 2 of the Powers of Attorney Act, 1882.

Therefore, this writ petition is allowed. The 3rd respondent is directed to register any document that may be presented by the petitioner on the strength of Ext.P2 Power of Attorney, subject to compliance with usual formalities and without insisting that the RP NO. 754 OF 2024 IN W.P(C)NO.17197/2023

photograph and fingerprints of the donor of the Power of Attorney should also be affixed on the document presented for registration."

This Review Petition is filed by the person who had executed

the power of attorney in favour of the petitioner in the writ

petition principally on the ground that there were certain

disputes between him and the writ petitioner including

regarding the powers granted in terms of the power of

attorney and there was also a cancellation of the power of

attorney at a subsequent stage. It is pointed out that the fact

that there were disputes pending between the Review

Petitioner and the writ petitioner including on the subject

matter of the power of attorney in question, was not brought

to the notice of this Court.

2. I have heard the learned counsel appearing for

the review petitioner and the learned counsel appearing for

the 1st respondent (writ petitioner).

3. A reading of the writ petition, namely

W.P(C)No.17197 of 2023 does not indicate that the petitioner

in the writ petition had brought to the notice of this Court

that there were disputes pending with the Review petitioner RP NO. 754 OF 2024 IN W.P(C)NO.17197/2023

who executed the power of attorney in favour of the writ

petitioner. While the same has no bearing on the declaration

of the law in the Judgment based on the provisions contained

in Section 32A of the Registration Act, 1908 and the

provisions of Section 2 of the Powers-of-Attorney Act, 1882,

in my view, the failure to bring to the notice of this Court the

fact that there were disputes pending with the Review

petitioner who had executed the power of attorney in favour

of the writ petitioner constitutes a suppression of material

fact disentitling the writ petitioner to any relief from this

Court in exercise of the discretionary jurisdiction of this

Court under Article 226 of the Constitution of India.

In the light of the above finding, the Review Petition is

allowed. The judgment in W.P.(C)No.17197 of 2023 is

recalled.

Sd/-

PETITIONER ANNEXURES Annexure I TRUE COPY OF THE ORDER DATED 18.11.2022 IN AR NO.162/2022 OF THIS HON'BLE COURT Annexure II TRUE COPY OF THE ORDER DATED 08.02.2023 IN CMA (ARBITRATION) NO.325/2022 OF THE ADDL. DISTRICT COURT-V, THIRUVANANTHAPURAM Annexure III TRUE COPY OF THE ORDER DATED 28.02.2023 IN COMPLAINT NO.217/2022 OF KERALA REAL ESTATE REGULATORY AUTHORITY, THIRUVANANTHAPURAM Annexure IV TRUE COPY OF THE AWARD PASSED BY ARBITRATOR DATED 07.08.2023 IN ARBITRATION CASE NO.162/2022 Annexure V TRUE COPY OF THE PLAINT OF CS NO.87/2023 FILED BY THE PETITIONER BEFORE THE SUBORDINATE JUDGE'S COURT (COMMERCIAL COURT), THIRUVANATHAPURAM Annexure VI TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 4HT RESPONDENT IN CS NO.87/2023 BEFORE THE SUBORDINATE JUDGE'S COURT (COMMERCIAL COURT), THIRUVANATHAPURAM Annexure VII TRUE COPY OF THE PETITION FILED BY THE PETITIONER TO THE ARBITRATOR IN ARB. CASE NO.162/2022, DATED 20/7/2023 Annexure VIII TRUE COPY OF THE SCREENSHOT OF THE CASE STATUS DATED 22.05.2024 IN CS NO.87/2023 ISSUED BY THE COMMERCIAL COURT, THIRUVANANTHAPURAM

RESPONDENT ANNEXURES Annexure R1(a) TRUE COPY OF THE JOINT DEVELOPMENT AGREEMENT DATED 10.07.2014 EXECUTED BETWEEN THE 1ST RESPONDENT AND THE REVIEW PETITIONER Annexure R1(b) TRUE COPY OF THE SUPPLEMENTARY JOINT DEVELOPMENT AGREEMENT DATED 23.10.2020 EXECUTED BETWEEN THE REVIEW PETITIONER AND THE 1ST RESPONDENT RP NO. 754 OF 2024 IN W.P(C)NO.17197/2023

Annexure R1(c) TRUE COPY OF THE DAILY STATUS, PERTAINING TO C.S.NO.87/2023 DATED 22.05.2024 OF THE LEARNED COMMERCIAL COURT-2, THIRUVANANTHAPURAM, CONTAINING THE AFORESAID ORDER, DOWNLOADED FROM THE OFFICIAL WEBSITE OF THE DISTRICT COURT, THIRUVANANTHAPURAM Annexure R1(d) TRUE COPY OF THE DAILY STATUS, PERTAINING TO C.S.NO.87/2023 DATED 27.05.2024 OF THE LEARNED COMMERCIAL COURT-2, THIRUVANANTHAPURAM, CONTAINING THE AFORESAID ORDER, DOWNLOADED FROM THE OFFICIAL WEBSITE OF THE DISTRICT COURT, THIRUVANANTHAPURAM Annexure R1(e) TRUE COPY OF THE DAILY STATUS, PERTAINING TO C.S.NO.87/2023 DATED 01.06.2024 OF THE LEARNED COMMERCIAL COURT-2, THIRUVANANTHAPURAM, CONTAINING THE AFORESAID ORDER, DOWNLOADED FROM THE OFFICIAL WEBSITE OF THE DISTRICT COURT, THIRUVANANTHAPURAM Annexure R1(f) TRUE COPY OF THE CASE STATUS, PERTAINING TO C.S.NO.87/2023 OF THE LEARNED COMMERCIAL COURT-2, THIRUVANANTHAPURAM, RIGHT FROM THE DATE OF REGISTRATION OF THE CASE ON 26.10.2023 TO 24.07.2024 DOWNLOADED FROM THE OFFICIAL WEBSITE OF THE DISTRICT COURT, THIRUVANANTHAPURAM Annexure R1(g) TRUE COPY OF THE NOTICE DATED 26.06.2024 ISSUED BY THE REVIEW PETITIONER TO THE 1ST RESPONDENT Annexure R1(h) TRUE COPY OF THE REPLY DATED 27.06.2014 SENT BY THE 1ST RESPONDENT TO ANNEX.R1(G) NOTICE Annexure R1(i) TRUE COPY OF THE LETTER DATED 27.06.2024 ADDRESSED TO THE 4TH RESPONDENT Annexure R1(j) TRUE COPY OF THE JUDGMENT DATED 11.07.2019 OF THIS HONOURABLE COURT

Annexure R1(k) TRUE COPY OF THE DAILY STATUS OF C.S.87/2023, COMMERCIAL COURT-2, THIRUVANANTHAPURAM, DATED 26.07.2024, REOPENING THE INTERIM APPLICATION AND POSTING THE CASE ON 30.07.2024, DOWNLOADED FROM THE OFFICIAL WEBSITE OF THE DISTRICT COURT, THIRUVANANTHAPURAM