Madras High Court
Tripower Enterprises (Private) ... vs The Sub Registrar on 8 November, 2021
W.P.No.34249 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
W.P.No.34249 of 2018
and W.M.P.No.39796 of 2018
Tripower Enterprises (Private) Limited,
Represented by its Chief Executive
Officer No.2/569, "Sandy Nook",
Singaravelan First Main Street,
China Neelangarai,
Chennai 600 115. ... Petitioner
Vs
1.The Sub Registrar,
Neelangarai,
Chennai - 600 008.
2.The Authorised Officer,
State Bank of India,
Stressed Assets Management Branch,
Chennai. ... Respondents
Prayer : Writ Petition has been filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorarified Mandamus to call for the records on
1/13
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W.P.No.34249 of 2018
the file of the 1st respondent in notification No.142/2018, dated 07.08.2018
and quash the same as illegal, incompetent and without jurisdiction and
further direct the 1st respondent to file the sale certificate dated 21.08.2017,
sent by the 2nd respondent under Section 89(4) of the Registration Act, 1908.
For Petitioner : Mr.V.Raghavachari
for M/s.P.Krishnan
For Respondent 1 : Mr.Yogesh Kannadasan,
Government Advocate
For Respondent 2 : Mr.S.Sethuraman
**********
ORDER
This writ petition has been filed to issue a Writ of Certiorarified
Mandamus to call for the records on the file of the 1st respondent in
notification No.142/2018, dated 07.08.2018 and quash the same as illegal,
incompetent and without jurisdiction and further direct the 1st respondent to
file the sale certificate dated 21.08.2017, sent by the 2nd respondent under
Section 89(4) of the Registration Act, 1908.
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W.P.No.34249 of 2018
2. In pursuance of the sale notice under SARFAESI Act, the second
respondent sold the subject property to the petitioner, as the petitioner being
the highest bidder. The said sale was confirmed and the sale certificate was
issued on 21.08.2017 in favour of the petitioner. The second respondent
requested the first respondent to file the sale certificate under Section 89(4)
of the Registration Act, 1908 in Book No.I.
3. However, the first respondent rejected the request made by the
second respondent and passed the impugned order dated 07.08.2018, thereby
directing to pay the stamp duty of Rs.25,56,050/- and a sum of Rs.14,60,600/-
as registration fees.
4. Mr.V.Raghavachari for Mr.P.Krishnan, learned counsel for the
petitioner would submit that the sale certificate was presented before the first
respondent only for the purpose of filing it in his office records as
contemplated under Section 89(4) of the Registration Act, 1908. It does not
require the payment of stamp duty and the registration fees on the auction
purchase value of the property subject matter of the sale certificate.
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W.P.No.34249 of 2018
5. The requirement for the payment of stamp duty under Article 18
of the Stamp Act and the payment of registration fees would arise only if
presented the original sale certificate for registration under Section 23 or 25
of the Registration Act.
6. In support of his contention, he relied upon the Judgment
reported in 2007(5) SCC 745 the Hon'ble Supreme Court of India held 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 and that
Sale certificate issued by the 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 the Act."
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W.P.No.34249 of 2018
7. He also relied upon the Judgment reported in 2018(3) TNCJ 541
MB N.Naresh Kumar -vs- The Inspector General of Registration, Chennai
28 and another, the Hon'ble Division Bench of this Court held as follows:
"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.
16.In B.Arvind Kumar Vs.Government
of India and others reported in JT 2007 (8) SC
602, it is held that a property sold in public
auction pursuant to an order of the Court and
once the sale is confirmed it becomes absolute
and the title vests with the auction purchaser. The
subsequent sale certificate issued to the purchaser
is the evidence of such title which does not
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W.P.No.34249 of 2018
require registration under Section 17(2) (xii) of
the Registration Act. In the case on hand also the
property was purchased in public auction on
16.05.2008 and the sale certificate was issued on
31.08.2008. Therefore, the appellant/purchaser
automatically becomes title holder of the property
by virtue of the sale certificate. The payment of
stamp duty on the sale certificate is not warranted
as it is only a sale certificate issued which has to
be filed or scanned in Book No.1 as per Section
89(4) of the Registration Act.
17.The payment of stamp duty perhaps
may arise only when the appellant wants to deal
with the property by selling it. As long as the sale
certificate remains as it is, it is not compulsorily
registrable. If the appellant uses the document for
any other purpose, then the requirement of stamp
duty etc., would arise. Hence, the plea of the
appellant is well within the statutory
powers. Section 89(4) contemplates only filing of
the sale certificates and therefore, the question of
delay or laches on the part of the appellant does
not arise. The dismissal of the writ petition on the
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W.P.No.34249 of 2018
ground of delay and payment of stamp duty
therefor does not arise and therefore, cannot be
sustained. Accordingly, the order passed in the
writ petition is set aside and the appeal is
allowed. No costs."
8. The Hon'ble Division Bench of this Court concluded that as long
as the sale certificate remains as it is, it is not compulsorily registrable. If the
documents uses for any other purpose, it requires stamp duty. The Section
89(4) contemplates only filing of the sale certificates and therefore, the
question of stamp duty does not arise. In this regard, it is also relevant to rely
upon the orders passed in S.L.P.Nos.29752-29754 of 2019 dated 05.01.2021
Esjaypee Impex Pvt. Ltd., -vs- Asst. General Manager and Authorized
Officer, Canara Bank, the Hon'ble Supreme Court of India held as follows:
"14. We are 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 Authorized Officer of the Bank under the
SARFAESI Act to hand over the duly validated Sale
Certificate to the Auction Purchaser with a copy
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W.P.No.34249 of 2018
forwarded to the Registering Authorities to be filed
in Book I as per Section 89 of the Registration
Act."
9. The provision under Section 89(4) is clear that "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 his Book No. 1. State Amendments Andhra
Pradesh: For sub-section (5) of section 89 substitute as under: “(5) An
officer empowered to grant a certificate of sale of immovable property under
the Andhra Pradesh Co-operative Societies Act, 1964 or the rules made
thereunder shall send a copy of such certificate to the registering officer
within the local limits of whose jurisdiction the whole or any part of the
immovable property comprised in such certificate is situate, and such
registering officer shall file the copy in his Book No. 1."
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W.P.No.34249 of 2018
10. Therefore, the sale certificate do not operate as a conveyance of
the property. It is also relevant to extract the Rule 200(1) of the Civil Rules
of Practice and Circular Orders:
"200(1). Section 89(2) of the Indian
Registration Act, 1908 (Central Act XVI of 1908)
provides that the every Court granting a certificate
under Rule 94 of Order XXI of the Code, shall send a
copy of such certificate to the registering officer
within the local limits of whose jurisdiction the
whole or any part of the immovable property
comprised in such certificate is situate and such
officer shall file the copy in his Book No.1. The law,
therefore now provides, through the direct action of
the Civil Court and of the Registering Officer for the
registration of a copy of the certificate of sale. It is
no longer necessary to register the certificate itself.
Such certificates do not operate as a conveyance of
the property to which they relate."
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W.P.No.34249 of 2018
11. It is also relevant to rely upon the order dated 29.10.2021
passed in Miscellaneous Application Diary No.19262 of 2021 in S.L.P.(C)
No.29752 of 2019 in the case of Realty Associates -vs- The Asst. General
Manager and Authorized Officer and another, in which the Hon'ble
Supreme Court of India held that the effect of filing of the copies under the
said Section 89 of the Registration Act has the same effect as registration and
obviates the requirement of any further action.
12. As such when the purchaser goes for the registration of the
original sale certificate issued by the Court Officer, Article 18 of the Indian
Stamp Act would be attracted and stamp duty is to be paid as per Article 23 of
the Registration Act treating it as conveyance namely auction purchase value
of the property. But when a copy of the sale certificate presented before the
first respondent not for the purpose of registration but only for purpose of
filing it by the first respondent in his office as contemplated under Section
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W.P.No.34249 of 2018
89(4) of the Registration Act. Therefore, the first respondent cannot refuse to
file a copy of the sale certificate by demanding payment of stamp duty and
registration fees to file the same in Book No.1, as contemplated under
Section 89(4) of the Registration Act, 1908.
13. In view of the above discussion, the impugned order dated
07.08.2018 in Notification No.142/2018 on the file of the first respondent is
set aside. The first respondent is directed to file the sale certificate dated
21.08.2017 presented by the second respondent under Section 89(4) of the
Registration Act, 1908 within a period of two weeks from the date of receipt
of a copy of this order. If the sale certificate presented to file is not available
with the records of the first respondent, the second respondent is directed to
present one more copy of the sale certificate issued in favour of the petitioner
herein before the first respondent.
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W.P.No.34249 of 2018
14. Accordingly, this writ petition is allowed. No order as to costs.
Consequently, the connected W.M.P.No.39796 of 2018 is closed.
08.11.2021
Index:Yes/No
Speaking Order: Yes/No
rna
To
1.The Sub Registrar,
Neelangarai,
Chennai - 600 008.
2.The Authorised Officer,
State Bank of India,
Stressed Assets Management Branch,
Chennai.
https://www.mhc.tn.gov.in/judis
W.P.No.34249 of 2018
G.K.ILANTHIRAIYAN,J.
rna
W.P.No.34249 of 2018
and W.M.P.No.39796 of 2018
08.11.2021
https://www.mhc.tn.gov.in/judis
