Madras High Court
N.Jeyalakshmi vs The Inspector General Of ... on 29 August, 2023
W.P.No.21882 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.08.2023
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
W.P.No.21882 of 2023
and
W.M.P.No.21209 of 2023
N.Jeyalakshmi ... Petitioner
Vs.
1. The Inspector General of Registration,
No.100, Santhome High Road,
Mullima Nagar, Mandavelipakkam,
Raja Annamalaipuram, Chennai-28.
2. The Deputy Inspector General Of Registration(Dig)
Chennai Zone, 26FJ + GV8, Integrated Building For Offices of
The Commercial Taxes and Registration Department,
Fanepet, Nandanam, Chennai, Tamil Nadu-35.
3. The Registrar,
Chennai Central Registration District,
268, Bharathi Salai, Express Estate,
Royapettah, Chennai-14.
4. The Sub Registrar,
Kodambakkam, KPK Towers,
No.63, 100 Feet, Jawaharlal Nehru Salai,
Arumbakkam, Chennai-106 ... Respondents
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1/13
W.P.No.21882 of 2023
Prayer:- Writ petition filed under Article 226 of the Constitution of India
praying for issuance of a writ of Mandamus, directing them to take the Sale
Certificate in A No.8677 of 2018 in CS No.475 of 1998 on the file of this
Honourable Court issued on 27.09.2022 by this Honourable Court on the
file of the Book I maintained by the 4th respondent.
For Petitioner : Mr.R.Subramanian for
Ms.T.Sugirtha
For Respondents
(for R1 to R4) : Mr.R.Ramanlaal
Additional Advocate General,
assisted by
Mr.T.Arun Kumar
Additional Government Pleader
ORDER
The Writ on hand had been instituted to direct the respondents to
take the Sale Certificate in A No.8677 of 2018 in CS No.475 of 1998 on
the file of this Honourable Court issued on 27.09.2022 by this Honourable
Court on the file of the Book I maintained by the 4th respondent.
2. Detailed adjudication of facts may not be required since the issue
raised in this writ petition is whether the sale certificate issued by the
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W.P.No.21882 of 2023
authorised officer under the SARFAESI Act is to be entered in the Book
No.1 by the Registering Authority under the Registration Act.
3. The secured creditor holding first charge over the property
initiated auction to recover the dues. The properties were sold through
public auction. The highest bidder who purchased the property was issued
with a Sale Certificate by the Authorised Officer. Under Section 89(4) of
the Registration Act, the Authorised Officer issued a communication to the
Registering Authority concerned to make entries in Book No.1 by following
the procedures as contemplated under Section 89(4) of the Registration
Act. Since, the said exercise was not done by the Registering Authority, the
petitioner is constrained to move the present Writ Petition.
4. The learned Senior Counsel appearing on behalf of the writ
petitioner mainly contended that the issue in this regard is no more res
intregra and repeatedly affirmed by the Hon'ble Supreme Court of India. In
this context, the learned Senior Counsel appearing on behalf of the Writ
petitioner drew the attention of this Court with reference to the judgment of
the Apex Court in the case of Esjaypee Impex Private Limited Vs.
Assistant General Manager and Authorised Officer, Canara Bank,
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W.P.No.21882 of 2023
reported in 2021 (11) SCC 537, wherein the Hon'ble Supreme Court 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 wit a copy forwarded to the registering
authorities to be filed in Book I as per Section 89 of the
Registration Act.”
5. The findings in paragraph 16 of Esjaypee Impex Private Limited
case, the Hon'ble Supreme Court issued clarifications in the case Reality
Associates Vs. The Assistant General Manager and Authorized Officer
in SLP(C) No.29752/2019 dated 29.10.2021. The clarification reads as
under:
“The direction has already been passed on
05.01.2021 for the duly validated certificate to be issued 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. We may note that the effect of
filing of the copies under the said Section 89 has the same
effect as registration and obviates the requirement of any
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W.P.No.21882 of 2023
further action. The compliance of our direction already
made on 05.01.2021 will not be impeded by any High
Court judgment. Our order to be duly complied by the
registering authority.
The applications stand disposed of.”
6. Subsequently, the Apex Court in SLP(C) No.16949/2022 in the
case of Inspector General of Registration versus G. Madhurampal
passed an order on 11.11.2022 as under:
“It is logically so as this issue has been repeatedly
settled and if one may say, a consistent view followed for
the last 150 years. We may refer to the judgments by the
Madras High Court in the Board of Revenue No.2 of 1875
(In Re: Case Referred) dated 19.10.1875 opining that a
certificate of sale cannot be regarded as a conveyance
subject to stamp duty, by the Allahabad High Court in Adit
Ram V. Masarat-un-Nissa opining that a sale certificate is
not an instrument of the kind mentioned in clause (b) of
Section 17 of the Act III of 1877 and is not compulsorily
registrable and this Court's view in Esjaypee Impex Pvt.
Ltd. V. Asst. General Manager and Authorised Officer,
Canara Bank opining 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
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W.P.No.21882 of 2023
Officer of the Bank under the SARFAESI Act to hand over
the duly validated Sale Certificate to the Auction Purchase
with a copy forwarded to the Registering Authorities to be
filed in Book I as per Section 89 of the Registration Act
and order of this Court in M.A.No.19262/2021 in SLP(C)
No.29752/2019 dated 29.10.2021 opining that once a
direction is issued for the duly validated certificate to be
issued 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, it has the same effect as
registration and obviates the requirement of any further
Action.
It is time that the authorities stop filing unnecessary
special leave petitions only with the objective of attaining
some kind of a final dismissal from this Court every time.
Costs this time has been spared but will not be spared the
next time.
The needful be done in terms of the impugned
judgment(s) within 15 days from today.
The special leave petitions are dismissed.”
7. The learned Additional Advocate General, appearing on behalf of
the State made a submission that the Government suffered revenue loss on
account of such registration of Sale Certificates made without recovering
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W.P.No.21882 of 2023
the stamp duty. The auction purchasers, mostly private individuals, are not
entitled to file the benefit under Section 89(4) of the Act since the transfer
of property was made in favour of individual persons in the case of an
auction sale under the SARFASI Act. However, the amendments made in
this regard are already under challenge before this Court and an Interim
stay was granted.
8. The learned Additional Advocate General drew the attention of
this Court with reference to the Writ Appeal Nos.1271, 1134 & 1270 of
2023 filed against the orders passed by the learned Single Judges. In yet
another Writ Appeal No.2162/2022, the Hon'ble Division Bench granted an
Interim Stay and the Writ Appeal is pending. However, those Writ Appeals
may not be a ground for keeping the present Writ Petition pending or to
follow the judgement of the Hon'ble Division Bench of this Court. More so,
the three judges Bench of the Hon'ble Supreme Court of India in the case of
2021 (11) SCC 537 reiterated the principles in the case of Esjaypee Impex
Pvt. Ltd., cited supra. Thus, this Court has to follow the said precedents for
the purpose of considering the present writ petition.
9. Section 17 of the Registration Act speaks about documents of
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W.P.No.21882 of 2023
which registration is compulsory. Therefore, if any person is presenting a
sale certificate for registration under Section 17 of the Registration Act, the
Registering Authority is empowered to recover the Stamp Duty as
applicable and register the Sale Certificate by following the procedures as
contemplated. But, if the Sale Certificate issued under the SARFAESI Act
by the Authorised Officer has been communicated to the Registering
Authority under Section 89(4) of the Registration Act, then the Registering
Authority shall file the copy of the sale certificate in his Book No.1 or get it
scanned. In such circumstances, the Registering Authority shall not recover
the Stamp Duty since, the process of Registration under Section 17 has not
undergone.
10. The procedure to be followed under Section 17 and under
Section 89(4) are distinct and different. Section 89(4) was intended in
respect of the recovery of public dues and thus, the process contemplated
under Section 17 of the Registration Act has been waived. Thus, the
Authorised Officer is at liberty to communicate the sale certificate to the
Registering Authority by specifically quoting the provision under Section
89(4) of the Registration Act and in the event of any such preceding any
such communication from the Authorised Officer under the SARFAESI
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W.P.No.21882 of 2023
Act, the Registering Authority has to make entries in his Book No.1 or get
it scanned as contemplated under Section 89(4) of the Registration Act.
The entry of Sale Certificate in Book No.1 under Section 89(4) of the
Registration Act has the same effect as registration and obviates
requirement of no further action. In the case of G.Madhurampal cited
supra, the Hon'ble Apex Court reiterated the above position.
11. The interpretation, as offered by the learned Additional Advocate
General with reference to the purpose, object and the context of Section
89(4) of the Registration Act, deserves no further consideration in the
present writ petition in view of the fact that the Hon'ble Supreme Court has
reiterated the legal position in more than one occasion and thus, the said
position is to the followed.
12. The present writ petition is falling under Section 89(4) of the
Registration Act and therefore, there is no other impediment for the
purpose of proceeding with the registration in the manner contemplated.
Thus, the following orders are passed:
(i) The Authorised Officer, under the SARFAESI Act, shall
communicate the copy of the Sale Certificate to the Registering Authority
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W.P.No.21882 of 2023
under Section 89(4) of the Registration Act.
(ii) On receipt of any such communication along with the sale
certificate from the Authorised Officer, the Registering Authority shall
make entry in his Book No.1 or get it scanned.
(iii) In the event of any person, presenting the sale certificate for
registration under Section 17 of the Registration Act, the Registering
Authority shall receive and register the same by following the procedures as
contemplated under the Registration Act by recovering the required Stamp
Duty as contemplated.
(iv) The registering authority, on receipt of the Sale Certificate is
empowered to ascertain whether there is any impediment for registration
with reference to Section 22A or 22B of the Registration Act. If the Sale
Certificate is hit by any of the provisions of the Registration Act, then the
registering authority shall refuse to make entries in the relevant register.
(v) The said exercise is directed to be completed by the Registering
Authority within a period of four (4) weeks from the date of receipt of copy
of this order if the sale certificate has been already communicated by the
Authorised Officer under Section 89(4) of the Registration Act.
(vi) The respondents are directed to follow the above directions
based on the individual facts involved in the this Writ Petition.
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W.P.No.21882 of 2023
13. Accordingly, with the above directions, the writ petition stands
disposed of. No costs. Consequently, connected miscellaneous petition is
closed.
29.08.2023
Index : Yes
Speaking Order
Neutral Citation : Yes
(sha)
To
1. The Inspector General of Registration,
No.100, Santhome High Road,
Mullima Nagar, Mandavelipakkam,
Raja Annamalaipuram, Chennai-28.
2. The Deputy Inspector General Of Registration(Dig)
Chennai Zone, 26FJ + GV8, Integrated Building For Offices of
The Commercial Taxes and Registration Department,
Fanepet, Nandanam, Chennai, Tamil Nadu-35.
3. The Registrar,
Chennai Central Registration District,
268, Bharathi Salai, Express Estate,
Royapettah, Chennai-14.
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W.P.No.21882 of 2023
4. The Sub Registrar,
Kodambakkam, KPK Towers,
No.63, 100 Feet, Jawaharlal Nehru Salai,
Arumbakkam, Chennai-106
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W.P.No.21882 of 2023
S.M.SUBRAMANIAM. J.,
(sha)
W.P.No.21882 of 2023
29.08.2023
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