Madras High Court
S.P.Velayutham vs Asset Reconstruction Company on 28 September, 2021
W.A.Nos.59 & 60 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 31.08.2021
DATE OF DECISION : 28.09.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
AND
THE HONOURABLE MRS.JUSTICE T.V.THAMILSELVI
W.A.Nos.59 & 60 of 2016
S.P.Velayutham .. Appellant in W.A.No.59 of 2016
V.Amar .. Appellant in W.A.No.60 of 2016
-vs-
1. Asset Reconstruction Company
(India) Limited rep.by its Manager
Mr.Nirav Parek
The Ruby, 10th Floor
Senapati Bapat Marg
Dadar (West), Mumabi 400 028
2. The Inspector General of Registration
No.100, Santhome High Road
Chennai 600 028
3. The Sub Registrar-Alandur
12, 1st Main Road
Nanganallur Co-operative Society Limited
Nanganallur, Chennai 600 061
1/35
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4. K.S.Deenadayalu Reddy
5. K.Venkatakrishnan .. Respondents 1 to 5 in both Appeals
6. V.Amar .. Respondent No.6 in W.A.No.59 of 2016
7. S.P.Velayutham .. Respondent No.6 in W.A.No.60 of 2016
Appeals filed under Clause 15 of the Letters Patent against the order
dated 04.01.2016 made in W.P.No.33462 of 2014.
For Appellants :: Mr.V.Raghavachari for
M/s M.Jeeva in W.A.No.59 of
2016
Mr.T.Mohan for
Mr.Avinash Wadhwani
in W.A.No.60 of 2016
For Respondents :: Mr.AR.L.Sundaresan
Senior Counsel for
Mr.Anirudh Krishnan for R1
Mr.T.Arunkumar
Government Advocate for
R2 & R3
Mr.M.L.Ramesh for R5
Mr.A.Jenasenan for R6
R4-Died
JUDGMENT
T.RAJA, J. & T.V.THAMILSELVI, J.
These writ appeals have been filed by the appellants, the respondents
5 & 6 in the writ petition, challenging the impugned order dated 4.1.2016
passed by the learned single Judge in Writ Petition No.33462 of 2014,
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allowing the writ petition as prayed for, resultantly, quashing the sale deed
registered on 5.7.2007 by the Sub Registrar, Alandur and further directing
him to remove the revenue entries made therein.
2. Mr.V.Raghavachari, learned counsel appearing for the appellant in
Writ Appeal No.59 of 2016, assailing the impugned order, heavily argued
that the writ petition filed by Asset Reconstruction Company (India)
Limited represented by its Manager seeking cancellation of the sale deed
dated 5.7.2007 bearing Document No.2179 of 2007 registered in the office
of the Sub Registrar, Alandur, Chennai in the name of the appellant in Writ
Appeal No.60 of 2016, is not legally maintainable under Article 226 of the
Constitution of India, inasmuch as the writ petitioner cannot seek to
establish any right before the writ Court under Article 226 on the basis of
the alleged assignment of debt/loan, because when the right, title and
interest of the writ petitioner to claim or enforce the debt itself is in dispute,
the proper legal course would be to file a civil suit to establish its rights,
claim, interest or status as contemplated under Section 34 of the Specific
Relief Act seeking declaratory and other consequential reliefs, as already
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three forums have repeatedly reiterated that the writ petitioner should
approach only the competent civil Court. When the respondents 4 & 5
herein had already conveyed the property in favour of the sixth respondent
herein through the appellant as their power of attorney agent and the sixth
respondent herein had valid right, title and interest to the property, if there is
any dispute with regard to the title, the writ petitioner should have
approached the competent civil Court. When the predecessors-in-title
Loganatha Reddiyar had exercised the right of ownership over the property
under Patta No.7 and executed a registered mortgage deed dated 20.9.1929
vide Document No.1631 of 1929 in favour of Sriramulu Reddiyar, thereafter
the said Loganatha Reddiyar executed a registered sale deed dated
22.12.1937 bearing Document No.2061 of 1937 in favour of Sriramulu
Reddiyar, who is the father of the fourth respondent herein and
subsequently in the year 1943, the said Sriramulu Reddiyar settled the
property in favour of Lalithakumari alias Lalitha Manohari and
K.S.Deenadayalu Reddy, which was subsequently revoked by him in the
year 1949, however, after the demise of Sriramulu Reddiyar, the property
devolved upon his son and grandson, the respondents 4 & 5 herein. As a
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matter of fact, K.S.Deenadayalu Reddy had been exercising the right of
ownership over the property and paying the urban land tax and patta was
also issued in his favour and subsequently, the respondents 4 & 5 herein had
executed a power of attorney dated 23.8.2006 in favour of the appellant
Mr.S.P.Velayutham and also an unregistered power of attorney on 7.6.2007,
based on which the appellant executed a sale deed dated 5.7.2007 bearing
Document No.2179 of 2007 in favour of the sixth respondent. The revenue
authorities also have recognised the right, title and interest over the property
and the possession thereof and mutation of the names also have been
recorded and effected in the revenue records in favour of the sixth
respondent and based on the title deeds and the revenue records, the sixth
respondent has been in uninterrupted possession and enjoyment of the
property. While so, the writ petitioner till date has not questioned or
challenged the title or ownership of the property in question before the
competent civil Court by filing a civil suit. Mr.V.Raghavachari also
contended that when the writ petitioner has not challenged the title of the
appellant's predecessors from whom the sixth respondent has derived valid
title to the property before a competent civil Court, it is not known how they
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can come to this Court invoking Article 226 of the Constitution of India to
set aside the sale deed.
3. Continuing his arguments, Mr.V.Raghavachari submitted that
when 'A' party, 'B' party, 'C' party and 'D' party have raised a land dispute,
since tension prevailed in the case land, First Information Report was filed
by the Inspector of Police, S-1, St.Thomas Mount Police Station on
24.10.2009 and he requested the Sub Divisional Magistrate and Revenue
Divisional Officer, Tambaram to resolve the dispute after verifying the
documents, as there was an apprehension that the parties may indulge in
untoward activities and the Revenue Divisional Officer, Tambaram issued
notices to all the parties viz., A,B,C,D asking them to appear on 24.11.2009
at 11.00 AM. Pursuant thereto, considering the fact that the appellant
Mr.S.P.Velayutham 'B' party produced the registered power deed dated
28.8.2006 and notary power deed dated 7.6.2007 executed in favour of 'B'
party, the registered sale deed dated 5.7.2007 executed by 'B' party in favour
of V.Amar, patta issued in the name of V.Amar, urban land tax of
Rs.1,06,180/- paid on 30.3.2009 in the name of 'B' party, the Revenue
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Divisional Officer, Tambaram, finding that there was no other title deed
produced by any party, except 'B' party, came to the conclusion that the 'A'
party, 'C' party and 'D' party may establish their right over the property
through the civil Court and the possession and enjoyment of 'B' party should
not be interfered with till the order passed by the Revenue Divisional
Officer is set aside by the competent civil Court, by her order dated
1.4.2010. Against the said order, M/s Infovision Private Limited represented
by its Power of Attorney filed Criminal Revision Case No.760 of 2010 and
the learned single Judge, finding that there was a civil dispute involved,
confirming the order passed by the Revenue Divisional Officer, dismissed
the criminal revision case by his order dated 4.7.2012 directing the parties
to approach only the competent civil Court to establish their right. Again
aggrieved by the same, M/s Infovision Private Limted filed S.L.P.(Crl.)
Nos.7548-7549 of 2012 and the same were also dismissed as withdrawn by
order dated 15.10.2012. Thereafter, Asset Reconstruction Company (India)
Limited also filed Criminal Original Petition No.26339 of 2014 under
Section 482 of the Code of Criminal Procedure to direct the Central Bureau
of Investigation (CBI) to receive the complaint dated 19.9.2013 from the
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respondents 1 to 3 therein for registration of a case and for proper
investigation and to file a final report before the appropriate Court. That
petition was also dismissed as withdrawn. Once again, the same Asset
Reconstruction Company (India) Limited filed another Criminal Original
Petition No.27317 of 2010 under Section 482 of the Code of Criminal
Procedure to set aside the order dated 1.4.2010 passed by the Executive
Magistrate. The learned single Judge of this Court, by order dated
6.11.2014, confirming the order passed by the Revenue Divisional Officer
directing the parties to approach the civil Court to establish their right, title
and ownership of the land in question, dismissed the said petition.
Aggrieved thereby, another S.L.P.(Crl.) No.838 of 2015 was filed. The
Hon'ble Apex Court also, confirming the order passed by the learned single
Judge, disposing the S.L.P. in its order dated 27.2.2015, clarifying that the
observations recorded by the Magistrate in the order dated 1.4.2010 will
not be treated as a binding determination on the issues pertaining to
possession and title, directed the writ petitioner to approach the civil Court
to establish their title and ownership of the property in question. Without
respecting the order passed by the Apex Court, the orders passed by the
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learned single Judge(s) and the order passed by the Revenue Divisional
Officer, again the present writ petition has been filed concealing all these
facts to set aside the sale deed. Therefore, for coming to this Court with
unclean hands, the learned single Judge ought to have dismissed the writ
petition, because initiation of proceedings before this Court under Article
226 of the Constitution of India is nothing but sheer abuse of the process of
Court as well as process of law. Hence the writ petition is not at all
maintainable. Overlooking this fact, the learned single Judge, usurping the
jurisdiction to decide the civil dispute, without even verifying whether the
writ petitioner has got any iota of right or title or ownership to the property,
has wrongly allowed the writ petition concealing the sale deed dated
5.7.2007. Such an order passed by the learned single Judge is directly
running contra to the specific direction issued by the Hon'ble Apex Court in
its order dated 27.2.2015 passed in S.L.P.(Crl.) No.838 of 2015 directing
the parties to approach the competent civil Court.
4. Contending further, Mr.V.Raghavachari submitted that when the
writ petitioner has not challenged the title of the appellant's predecessors in
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title, they are not entitled to challenge the appellant's title to the property.
Moreover, the order passed by this Court in Crl.O.P.No.27317 of 2010
directing the writ petitioner to seek redressal of its grievance before a
competent civil Court would squarely be governed by the principle of
constructive res judicata and in such circumstances, the writ petition filed
by the writ petitioner ought to have been dismissed. Again drawing our
attention to the counter affidavit filed by the appellant before the learned
single Judge, it was contended that when the Directors of MVR Group of
Companies including Mr.M.Varadarajulu alias M.V.Raja were convicted
and sentenced to imprisonment by the CBI Court, for the reason that they
have committed an offence of forgery, the writ Court ought to have refused
the prayer by directing the parties to approach the civil Court, as ordered by
the Apex Court. Again when one T.P.Ravikumar filed a frivolous and
vexatious suit in O.S.No.704 of 2009 on the file of the District Munsif
Court, Alandur as if he was in possession of the property, it was heavily
contested by the appellant, as a result the plaint itself was struck off. Even
this crucial aspect has been overlooked by the learned single Judge.
Concluding his arguments, he submitted that when the law is well settled
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by the Apex Court and also by the Full Bench of our High Court that any
sale deed can be cancelled at the instance of the transferor only by taking
recourse to the civil Court by obtaining a decree of cancellation of sale deed
on the ground inter alia of fraud or any other valid reasons, the impugned
order passed by the writ Court cancelling the sale deed exercising
jurisdiction under Article 226 is liable to be set aside. In support of his
submissions, he has relied upon yet another judgment of the Apex Court in
the case of Sathya Pal Anand v. State of M.P. and others, (2016) 10 SCC
767 for the same proposition that the party aggrieved by the registration of
any document is free to challenge its validity only before a competent civil
Court. Since the impugned order is running contra to the judgment of the
Apex Court and also the Full Bench judgment of this Court, the writ appeal
may be allowed by setting aside the impugned order, he pleaded.
5. Mr.T.Mohan, learned counsel appearing for the appellant in Writ
Appeal No.60 of 2016, adopting the arguments of Mr.V.Raghavachari, also
contended that the writ petitioner, who has disobeyed the order of the Apex
Court directing the parties to the dispute to approach the competent civil
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Court, while confirming the order passed by the learned single Judge and
clarifying the order passed by the Magistrate dated 1.4.2010, is not entitled
to get any relief, as the writ petitioner has come to the Court with unclean
hands. After pronouncement of the order by the Hon'ble Apex Court in
S.L.P(Crl.) No.838 of 2015 dated 27.2.2015 directing the Asset
Reconstruction Company (India) Limited to seek redressal of its grievances
before a competent civil Court, the learned single Judge, while taking up the
writ petition, ought to have relegated the parties to the competent civil
Court, contrary thereto, allowing the writ petition would amount to setting
aside the order of the Apex Court made in S.L.P.(Crl.) No.838 of 2015
dated 27.2.2015. When the Hon'ble Apex Court was conscious about the
rival claims put forth by the appellant as well as the first respondent in
respect of the subject property and has also dealt with the claims and
counter claims made by the respective parties and thereupon clarified the
legal position that the observations recorded by the Revenue Divisional
Officer in the order dated 1.4.2010 will not be treated as a binding
determination on the issues pertaining to possession and title of the subject
property and thereby relegated the first respondent to seek redressal of its
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grievances before a competent civil Court, to establish its title to the
disputed property, the conclusion reached by the learned single Judge,
which is running contra to the direction issued by the Apex Court, is liable
to be set aside. When the appellants have established their title and
ownership before all the Courts, the first respondent is purported to have
acquired the rights by virtue of an alleged assignment said to have been
made by Indian Bank by virtue of a deed of assignment dated 7.12.2007,
which is later in point of time and admittedly after the execution of the sale
deed in favour of the appellant, therefore, as rightly ordered by the Hon'ble
Apex Court relegating the parties to approach the civil Court to establish
their right, the learned single Judge also should have directed the writ
petitioner to approach the civil Court, which has not been done. Moreover,
it appears that M/s Infovision Limited (MVR Group of Companies) through
its power agent had already filed a civil suit in O.S.No.33 of 2009 on the
file of District Munsif Court, Alandur against the respondents 4 to 6 and in
that pending suit, the first respondent has also filed an impleading
application and the same is pending. Therefore, on the basis of the well
settled legal position that the writ petitioner ought not to have pursued two
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parallel proceedings, one before the civil Court and another before the writ
Court, the writ petition ought to have been dismissed, which has not been
done. Hence, the impugned order is liable to be set aside.
6. Mr.AR.L.Sundaresan, learned Senior Counsel appearing for the
first respondent/writ petitioner, supporting the impugned order, pleaded that
the Asset Reconstruction Company (India) Limited, incorporated under the
Companies Act, 1956, is registered with the Reserve Bank of India being a
financial institution. The respondents 4 & 5 and the appellants conspired
and colluded with each other for setting up of false claim of title over the
properties mortgaged with the writ petitioner. Since the fourth and fifth
respondents allegedly executed a power of attorney in favour of the
appellant in W.A.No.59 of 2016 to manage 9.92 acres of land in Alandur
Village, Chennai South, the said alleged power of attorney failed to grant
the rights to alienate/sell the property. However, the appellant in W.A.No.59
of 2016 fraudulently using the power of attorney executed a sale deed in
favour of his son Amar, the appellant in W.A.No.60 of 2016. Even the third
respondent/Sub Registrar, Alandur, in contravention of the provisions of the
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Indian Registration Act, 1908, registered the same as Document No.2179 of
2007 without even checking the provisions of the Act. When the appellant
in W.A.No.59 of 2016 had no valid power of attorney, the sale of the land in
favour of his son, Amar, the appellant in W.A.No.60 of 2016 will not
convey any right upon him. Sections 32 and 34 of the Registration Act
stipulates as to who can present the document and Rule 22 prescribes the
procedure to be followed by the Registering Officer before accepting a
document for registration. When Section 34 of the Registration Act makes it
mandatory for the Registrar to check if the power of attorney empowers the
execution of the document presented for registration, the Registrar failed to
note that the power of attorney dated 23.8.2006 did not empower the
appellant in W.A.No.59 of 2016 to execute the sale deed. As the Sub
Registrar has erred in registering the document, the said sale deed and the
subsequent settlement deed are non est in law and they are liable to be set
aside, therefore, the writ petition was rightly filed and the learned single
Judge, after thoroughly appreciating the fact that the sale deed dated
5.7.2007 registered as Document No.2179 of 2007 in the office of the Sub
Registrar, Alandur is contrary to law and totally unsustainable, rightly set
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aside the same by exercising the extraordinary jurisdiction under Article
226, which cannot be questioned.
7. Refuting the arguments made by Mr.AR.L.Sundaresan, learned
Senior Counsel appearing for the first respondent, Mr.T.Arunkumar, learned
Government Advocate appearing for the respondents 2 & 3, heavily relying
upon the judgment of the Apex Court in the case of Sathya Pal Anand v.
State of M.P., and others, (2016) 10 SCC 767, submitted that the Apex
Court has answered the said argument holding that if a document is required
to be compulsorily registered, but while doing so some irregularity creeps
in, that, by itself, cannot result in a fraudulent action of the State Authority.
Some irregularity in the procedure committed during the registration
process would not lead to a fraudulent execution and registration of the
document, but a case of mere irregularity. Therefore, in either case, the
party aggrieved by such registration of document is free to challenge its
validity only before the civil Court. Again placing reliance on the Full
Bench judgment of this Court in the case of M/s Latif Estate Line India Ltd.,
represented by its Managing Director Mr.Habib Abdul Latif v.
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Mrs.Hadeeja Ammal and others, 2011 (2) CTC 1, heavily contended that
any sale deed can be cancelled at the instance of the transferor only by
taking recourse to the civil Court by obtaining a decree of cancellation of
sale deed on the ground inter alia of fraud or any other valid reasons. Since
the first respondent has approached this Court wrongly without disclosing
the pendency of the civil suits, in which matters the first respondent has also
filed impleading applications to implead them as one of the parties and the
same are pending, and the law is well settled that any party having
grievance over the sale deed or settlement deed should approach the
competent civil Court with oral and documentary evidences to set aside the
sale, the writ petition ought not to have been entertained. Therefore, the
writ appeals may be allowed by setting aside the impugned order.
8. We also find full force on the submissions made by the learned
Government Advocate for the respondents 2 & 3. It has been the claim of
the appellants that the predecessors-in-title Loganatha Reddiyar, exercising
his right of ownership on the property in question bearing Patta No.7,
executed a registered mortgage deed dated 20.9.1929 bearing Document
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No.1631 of 1929 in the name of Sriramulu Reddiyar. Later on, the said
Loganatha Reddiyar executed a registered sale deed dated 22.12.1937
bearing Document No.2061 of 1937 in the name of Sriramulu Reddiyar, the
father of the fourth respondent herein. Subsequently in the year 1943, the
said Sriramulu Reddiyar settled the property in favour of Lalithakumari
alias Lalitha Manohari and K.S.Deenadayalu Reddy, that was subsequently
revoked by him in the year 1949. However, after the death of Sriramulu
Reddiyar, when the property devolved upon his son and grandson, the
respondents 4 & 5 herein, they have executed a power of attorney dated
23.8.2006 in favour of the appellant Mr.S.P.Velayutham and another
unregistered power of attorney dated 7.6.2007, based on which the
appellant-S.P.Velayutham executed a sale deed dated 5.7.2007 bearing
Document No.2179 of 2007 in favour of his son, the sixth respondent. The
revenue authorities also, accepting the right, title and interest over the
property and also the possession thereof, effected the mutation of the names
in the revenue records in favour of the sixth respondent. Therefore, based on
the title deeds and the revenue records, the sixth respondent has been in
uninterrupted possession and enjoyment of the property. When a civil
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dispute arose amongst 'A' party, 'B' party, 'C' party and 'D' party claiming a
right over the same property causing tension in the case land, First
Information Report was filed by the Inspector of Police, S-1, St.Thomas
Mount Police Station on 24.10.2009 and he has also requested the Sub
Divisional Magistrate and Revenue Divisional Officer, Tambaram to
resolve the dispute after verifying the documents to avoid further untoward
incidents. Therefore, the Sub Divisional Magistrate and Revenue
Divisional Officer, Tambaram, while passing orders under Section 145 of
the Code of Criminal Procedure on 1.4.2010 in M.C.Na.Ka.No.4761/2009-
C, after hearing all the parties and also perusing the file of the Tahsildar in
respect of transfer of patta in RPT NO.13358/2008 that the Tahsildar had
already issued Town Survey Patta in the name of S.P.Velayutham, who has
also made two deep bore wells in the land and got electricity service
connection, came to the conclusion that the said S.P.Velayutham has been in
possession and enjoyment of the property supported by title deed, patta and
other revenue records in respect of the entire land including the disputed
land. Therefore, the Sub Divisional Magistrate and Revenue Divisional
Officer, Tambaram directed the 'A' party, 'C' party and 'D' party to establish
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their right over the property through the competent civil Court with a further
direction that till the competent civil Court decides the issue, the possession
and enjoyment of 'B' party-S.P.Velayutham shall not be interfered with. The
relevant portion of the order passed by the Sub Divisional Magistrate and
Revenue Divisional Officer, Tambaram reads as under:-
“21. The file of the Tahsildar in respect of
Patta in RPT No.13358/2008 was perused. The
new survey number of the old Survey Numbers
16/5B, 6, 7, 8, 17, 18(u), 20, 17/16, 18/1 and 2(u)
mentioned in Adangal is Survey No.6 and the
Extent is 092090. Initially it was mentioned as
V.Devareddy Subbu Reddy and thereafter it was
circled and mentioned as Deenadayala Reddiar,
S/o Sriramulu Reddiar and that too was circled and
mentioned as V.Amar, S/o S.P.Velayutham and
then that was circled and it was mentioned as
S.P.Velayutham, S/o Sabapathy.
As the property is situated within the
jurisdiction of Alandur Municipality, new Town
Survey number was given and the Patta was issued
by the Tahsildar and the Alandur Municipality.
The Tahsildar, Tambaram, has issued Town
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Survey Patta in the name of S.P.Velayutham.
S.P.Velayutham has made two deep bore wells in
the land and got Electricity Service Connection.
22. The property is now find a place in
Alandur Town Survey Accounts in the name of
S.P.Velayutham and is in his possession and
enjoyment.
23. Considering the present situation and the
documents carefully, it is decided that as the
Tahsildar has issued Patta in the name of B-Party
viz., S.P.Velayutham in respect of the entire land
including the disputed land, A-Party, C-Party and
D-Party may establish their right over the property
through Court and I decide this case accordingly.
24. The possession and enjoyment of B-
Party should not be interfered till this Order is set
aside by a Court of Law.”
10.Aggrieved by the above order, M/s Infovision Private Limited
represented by its power of attorney challenged the said order in Criminal
Revision Case No.760 of 2010 under Section 397 read with Section 401 of
Cr.P.C., in which Asset Reconstruction Company (India) Limited, the
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writ petitioner also filed an impleading petition in M.P.No.1 of 2012. The
learned single Judge, finding no merits, dismissing the criminal revision
case and also the impleading petition filed by the writ petitioner, reiterating
the order passed by the Sub Divisional Magistrate and Revenue Divisional
Officer, Tambaram dated 1.4.2010, directed them to approach the competent
civil Court to establish their case. Aggrieved thereby, M/s Infovision
Private Limited filed S.L.P.(Crl.) Nos.7548-7549 of 2012 before the Apex
Court, which came to be dismissed as withdrawn by order dated 15.10.2012.
Again Asset Reconstruction Company (India) Limited represented by its
Manager Mr.Nirav Parekh filed Criminal Original Petition No.26339 of
2014 under Section 482 of the Code of Criminal Procedure to direct the
Central Bureau of Investigation to receive their complaint dated 19.9.2013
for registration of a case, that was also dismissed as withdrawn by the order
dated 15.10.2014. Yet again, Asset Reconstruction Company (India)
Limited, the first respondent herein filed Criminal Original Petition
No.27317 of 2010 under Section 482 of the Code of Criminal Procedure to
set aside the order dated 1.4.2010 passed by the Sub Divisional Magistrate
and Revenue Divisional Officer, Tambaram. The learned single Judge,
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dismissing the said criminal original petition by the order dated 6.11.2014,
observed as follows:-
“6. In my considered opinion, this petition
deserves only to be dismissed, in view of the order
passed by this Court in Crl.R.C.No.760 of 2010.
The learned counsel appearing for the petitioner
would submit that because of the order passed by
the Revenue Divisional Officer, the petitioner is
not in a position to make any developmental
activities in the property. In this regard, I may refer
to paragraph 26(ix) of the order of this Court in the
Crl.R.C.No.760 of 2010, which reads as follows:
“(ix) The impleading petitioner viz.,
Asset Reconstruction Company
(India) Ltd., had financed the Indian
Bank, Chennai, who is the mortgagee
of the property, to an extent of 120
grounds including the disputed
property. The impleading petitioner's
civil rights and physical possession of
the property can be established only
before a civil Court. This impugned
order has been made only to maintain
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law and order and had been passed
according to criminal procedure code.
As such the rights of the impleading
petitioner will not be in any away
affected by the impugned order.”
7. This Court has already clarified that the
order of the Revenue Divisional Officer is not final
and the petitioner has to workout his remedies
before the Civil Court. Therefore, it is not proper
for the petitioner to approach this Court seeking to
quash the very same order. The remedy for the
petitioner as has been clarified by this Court in the
Criminal Revision petition is before the Civil
Court.
8. In such view of the matter, this petition is
not maintainable and the same is accordingly
dismissed. Consequently, the connected
miscellaneous petitions are closed.”
11. Again aggrieved by the above order, the matter was taken up to
the Apex Court by the first respondent in S.L.P.(Crl.)No.838 of 2015. The
Hon'ble Apex Court, appreciating the order passed by the High Court,
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clarifying the order passed by the Sub Divisional Magistrate dated 1.4.2010,
relegated the first respondent to seek redressal of its grievance before a
competent civil Court. The relevant portion of the order passed by the Apex
Court reads as follows:-
“We have given our thoughtful consideration to
the submissions advanced at the hands of the
learned counsel for the petitioner. We have also
heard the learned counsel for respondent no.3, who
has entered appearance on caveat.
According to the learned counsel for the
petitioner, findings on title and possession have
been recorded in the order passed by the Magistrate
on 1.4.2010, and they would prejudice the
petitioner in all judicial proceedings. Having given
our thoughtful consideration, and keeping in mind
the mandate contained in Section 145(4) of the
Cr.P.C., it is apparent, that the determination of the
Magistrate is without reference to merits of the
claims of any of the parties. Even, learned counsel
representing the caveator states, that he has no
objection if an order is passed to the effect, that the
order passed by the Magistrate on 1.4.2010 would
not be treated to be an order on merits either on the
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W.A.Nos.59 & 60 of 2016
question of possession or on the question of title.
We affirm the aforesaid legal position by clarifying,
that the observations recorded by the Magistrate in
the order dated 1.4.2010, will not be treated as a
binding determination on the issues pertaining to
possession and title.
In view of the above, we are satisfied that the
interests of the petitioner were fully protected by
the High Court by relegating the petitioner to seek
the redressal of its grievance, before a competent
civil Court.
Disposed of in the above terms.”
In spite of the above orders, the first respondent, till date, has not
questioned or challenged the title or ownership of the property in question
by filing a civil suit before the competent civil Court.
12. Now coming to the core question raised in these appeals as to
whether the registered sale deed on the ground of fraudulent execution can
be cancelled by the writ Court exercising jurisdiction under Article 226 of
the Constitution of India, the said issue is no longer res integra, as the Full
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W.A.Nos.59 & 60 of 2016
Bench judgment of this Court in the case of M/s Latif Estate Line India Ltd.,
represented by its Managing Director Mr.Habib Abdul Latif v.
Mrs.Hadeeja Ammal and others, 2011 (2) CTC 1, has succinctly held as
follows:-
“57. There is no dispute that a third party can
claim title to the property against the purchaser
who purchased the property for valuable
consideration and came into possession of the
same. But it is the Civil Court of competent
jurisdiction to give such declaration in favour of
the third party or a stranger.
58. It can also not be overlooked or ignored that
a unilateral cancellation of a sale deed by
registered instrument at the instance of the vendor
only encourages fraud and is against public policy.
But there are circumstances where a deed of
cancellation presented by both the vendor and the
purchaser for registration has to be accepted by the
Registrar if other mandatory requirements are
complied with. Hence, the vendor by the unilateral
execution of the cancellation deed cannot annul a
registered document duly executed by him as such
an act of the vendor is opposed to public policy.
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59. After giving our anxious consideration
on the questions raised in the instant case, we
come to the following conclusion: -
(i) A deed of cancellation of a sale
unilaterally executed by the transferor does
not create, assign, limit or extinguish any
right, title or interest in the property and is of
no effect. Such a document does not create
any encumbrance in the property already
transferred. Hence such a deed of
cancellation cannot be accepted for
registration.
(ii) Once title to the property is vested in
the transferee by the sale of the property, it
cannot be divested unto the transferor by
execution and registration of a deed of
cancellation even with the consent of the
parties. The proper course would be to re-
convey the property by a deed of conveyance
by the transferee in favour of the transferor.
(iii) Where a transfer is effected by way of
sale with the condition that title will pass on
payment of consideration, and such intention
is clear from the recital in the deed, then
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such instrument or sale can be cancelled by a
deed of cancellation with the consent of both
the parties on the ground of non-payment of
consideration. The reason is that in such a
sale deed, admittedly, the title remained with
the transferor.
(iv) In other cases, a complete and absolute
sale can be cancelled at the instance of the
transferor only by taking recourse to the
Civil Court by obtaining a decree of
cancellation of sale deed on the ground inter
alia of fraud or any other valid reasons.
(emphasis supplied)
60. Having regard to the conclusions arrived
at as aforesaid, the questions referred are answered
accordingly. The appeals are referred back to the
concerned Court for deciding the case on merits.”
13. When the above Full Bench of our High Court has settled the
legal position ruling clearly that an absolute sale deed can be cancelled at
the instance of the transferor only by taking recourse to the competent civil
Court for cancellation of the sale deed on the ground of fraud or any other
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valid reasons, the first respondent/writ petitioner, alleging fraud, cannot
maintain the writ petition, because the allegations of fraud,
misrepresentation etc., are to be tried by the trial Court, namely, the
competent civil Court on consideration of both the oral and documentary
evidence to be produced to establish the fraud, misrepresentation etc.
Besides, a three-Judge Bench of the Hon'ble Apex Court in the case of
Sathya Pal Anand v. State of M.P., and others, (2016) 10 SCC 767, has also
held that once the document is registered, it is not open to the Registering
Officer to cancel that registration, even if his attention is invited to some
irregularity, unless the aggrieved party challenges the registration and
validity of the document before the civil Court. The relevant portion of the
Apex Court judgment reads as follows:-
“33. In our considered view, the decision in the
case of Thota Ganga Laxmi, (2010) 15 SCC 207
was dealing with an express provision, as
applicable to the State of Andra Pradesh and in
particular with regard to the registration of an
Extinguishment Deed. In absence of such an
express provision, in other State legislations, the
Registering Officer would be governed by the
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W.A.Nos.59 & 60 of 2016
provisions in the Act of 1908. Going by the said
provisions, there is nothing to indicate that the
Registering Officer is required to undertake a
quasi judicial enquiry regarding the veracity of the
factual position stated in the document presented
for registration or its legality, if the tenor of the
document suggests that it requires to be registered.
The validity of such registered document can,
indeed, be put in issue before a Court of competent
jurisdiction.” (emphasis supplied)
Since the above legal position has been settled by the Apex Court after
considering the Full Bench judgment of the Andhra Pradesh High Court in
Yanala Malleshwari, AIR 2007 AP 57 (FB) holding that if any person is
aggrieved by the Extinguishment Deed or its registration, his remedy is to
seek appropriate relief in the civil Court and the writ petition is not a proper
remedy, the entertaining of the writ petition and the consequent passing of
the impugned order by the learned single Judge are legally unsustainable in
law.
14. Mr.AR.L.Sundaresan also advanced an argument that the
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W.A.Nos.59 & 60 of 2016
procedural irregularity committed by the Registrar while registering the sale
deed or any deed, can be questioned under Article 226, simultaneously,
challenging the validity of the same before the civil Court. In our view,
such an argument is farfetched, in the light of the aforementioned two
decisions, one by the Full Bench of this Court in the case of M/s Latif
Estate Line India Ltd., represented by its Managing Director Mr.Habib
Abdul Latif v. Mrs.Hadeeja Ammal and others, 2011 (2) CTC 1 and another
by the Hon'ble Apex Court in the case of Sathya Pal Anand v. State of
M.P., and others, (2016) 10 SCC 767 holding clearly that the aggrieved
party has to challenge the registration and validity of the disputed document
only before a competent civil Court. Further, this argument will pave way
for the multiplicity of proceedings opposed to public policy.
15. In the light of the above, when there was an order passed by the
Sub Divisional Magistrate and Revenue Divisional Officer, Tambaram
dated 1.4.2010 directing the parties to approach the civil Court, that was
also confirmed by this Court in two separate proceedings, namely, in the
criminal revision case and in the criminal original petition and finally, the
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W.A.Nos.59 & 60 of 2016
Apex Court also, as highlighted above, directed the parties to approach the
civil Court, the first respondent, for the reasons best known, has not chosen
to file any civil suit before the competent civil Court for redressal of the
grievances. Even a mere perusal of Volume-3 of the paperbook filed by the
appellant in W.A.No.59 of 2016 shows that the Asset Reconstruction
Company (India) Limited, the first respondent herein has only chosen to file
impleading petitions in the pending civil suits in O.S.Nos.33, 35 & 45 of
2009 filed by M/s Infovision Private Limited and others etc., before the
District Munsif Court, Alandur. Moreover, concealing all these facts and
judicial proceedings, the first respondent has resorted to file the writ
petition under Article 226 of the Constitution of India and has obtained an
order that is impugned in these appeals. Since the orders passed by this
Court and the Hon'ble Apex Court giving liberty to the first respondent to
file a civil suit for redressal of its grievance have not been complied with
and contrary thereto, has chosen to pursue a wrong remedy through writ
proceedings under Article 226 and thereby wrongfully wasted the precious
time of this Court, while setting aside the order passed in the writ petition,
we are inclined to impose costs on the first respondent.
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W.A.Nos.59 & 60 of 2016
16. For all the aforementioned reasons, the writ appeals are allowed
and the order passed in the writ petition is set aside with costs of
Rs.10,000/- payable by the first respondent/writ petitioner to the Madras
High Court Advocate Clerks Welfare Association within a period of four
weeks from the date of receipt of a copy of this order. Consequently,
C.M.P.Nos.654, 662, 7095, 7096 of 2016 are closed.
Speaking order (T.R.,J.) (T.V.T.S.,J.)
Index : yes 28.09.2021
rri/ss
To
1. The Inspector General of Registration
No.100, Santhome High Road
Chennai 600 028
2. The Sub Registrar-Alandur
12, 1st Main Road
Nanganallur Co-operative Society Limited
Nanganallur
Chennai 600 061
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W.A.Nos.59 & 60 of 2016
T.RAJA, J.
and
T.V.THAMILSELVI, J.
rri/ss
Judgment in
W.A.Nos.59 & 60 of 2016
28.09.2021
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