Madras High Court
M/S.Sundaram Home Finance ... vs Inspector General Of ... on 2 March, 2023
W.P.No.6336 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.03.2023
CORAM :
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
Writ Petition No.6336 of 2023
1.M/s.Sundaram Home Finance Limited
(formerly Sundaram BNP Paribas Home
Finance Limited), rep.by its Authorised
Officer, Y.Kishore Varma, No.23, 2nd Floor
Cathedral Garden Road, Nungambakkam
Chennai 600 034.
2.Samuel S. …. Petitioners
-Vs-
1.Inspector General of Registration
100, Santhome High Road
Chennai 600 039.
2.The Sub Registrar
Office of the Sub Registrar-Purasawalkam
Purasawalkam, Chennai 600 023. …. Respondents
Prayer : Writ Petition under Article 226 of the Constitution of India praying for
the issuance of a Writ of Certiorarified Mandamus calling for the records of the
2nd respondent herein vide RFL/Purasavakkam/2/2023 dated 09.01.2023, quash
the same and consequently direct the 2nd respondent to register the sale
certificate dated 30.12.2022 issued by the 1st petitioner in favour of the 2nd
petitioner Mr.Samuel S.
1/9
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W.P.No.6336 of 2023
For Petitioner : Mr.K.J.Parthasarathy
For Respondents : Mr.Yogesh Kannadasan
Special Government Pleader
ORDER
The prayer sought for herein is for a Writ of Certiorarified Mandamus
calling for the records of the 2nd respondent herein vide
RFL/Purasavakkam/2/2023 dated 09.01.2023, quash the same and consequently
direct the 2nd respondent to register the sale certificate dated 30.12.2022 issued
by the 1st petitioner in favour of the 2nd petitioner Mr.Samuel S.
2. The first petitioner / Finance Company has issued a sale certificate in
favour of the 2nd petitioner on 30.12.2022 and when this was presented by the
petitioners before the 2nd respondent SRO for registration, the same has been
refused for registration by the 2nd respondent through the refusal check slip
dated 09.01.2023, where, the reason cited by the 2nd respondent was that, there
was no document to prove that loan has been advanced by the 1st petitioner to
the 2nd petitioner without which the document ie., the sale certificate filed by the
petitioners cannot be registered.
3. Challenging the said order, the learned counsel for the petitioner has
submitted that, insofar as the sale certificate is concerned, the law has been well
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W.P.No.6336 of 2023
settled in number of cases that if the authority concerned has issued a sale
certificate the same when presented for registration, shall be registered. When
that being so, the present reason stated by the 2nd respondent in the impugned
refusal check slip would not be sustained, he contended.
4. Learned Special Government Pleader would submit that, in view of the
latest judgments that have been passed by this Court, the issue raised in this
writ petition would be looked into and the needful would be undertaken by the
2nd respondent on merits and in accordance with law.
5. Taking note of this development, especially the stand taken by the
learned Special Government Pleader, as many number of orders have been
passed by this Court following the judgment of the Hon'ble Supreme Court and
the recent order passed by this Court in a batch of writ petitions in
W.P.Nos.30320 of 2022 etc. batch dated 20.02.2023, in a similar matter where I
had an occasion to consider the similar issue, wherein I have passed the
following order.
“.... 21. By making all these reliance of the earlier judgments
of the Division Bench of this Court in Ramayee's case (cited
supra) and also various other orders passed by the Hon'ble
Supreme Court, the learned Judge has held that the first
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W.P.No.6336 of 2023
proviso to Rule 55-A(i) since been found to be invalid and
ultra vires the respondent (therein) cannot refuse to register
the documents placing reliance on the aforesaid proviso.
22. Thereby, the learned Judge not only has declared
that first proviso to Rule 55-A(i) is ultra vires, has further
declared that in view of the declaration having been made, the
Registering Authority cannot refuse to register the documents
placing reliance on the said proviso.
23. Though it was argued by the learned Special
Government Pleader that the State is preferring or taking steps
to prefer intra-court appeal against the said judgment of the
learned Judge, as on date the prevailing law would be that
first proviso to Rule 55-A(i) has been struck down as it has
been declared as ultravires and therefore, the reliance cannot
be placed by the respondents side on the said proviso i.e.,
first proviso to Rule 55-A(i) and that cannot be the reason for
refusing the registration of the sale certificates respectively
filed by these writ petitioners.
24. Insofar as the Bank of Baroda's case as stated supra
is concerned, it was rendered on 07.07.2021 and in this
context though argument was advanced by the learned Special
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W.P.No.6336 of 2023
Government Pleader that it was rendered prior to the
amendment made in this regard i.e., before the first proviso to
55-A(i) was brought into the statute book, the import of the
said order stated in paragraph 12 can be usefully referred
hereunder:
“12. In the said judgment, the learned Judge, having
considered the earlier decisions of this Court, has held in
unequivocal terms that, the issue raised therein was no longer
res integra. The learned Judge has further held that,
consistently it has been held by this Court that the order of
attachment is not a ground to refuse the registration of sale
certificate. The learned Judge has further stated that, the
Court need not once again undertake an exercise and it is
enough if the settled law is once again reiterated.”
25. Therefore, even prior to amendment made to the
Rule, the law has been settled to that extent for more than one
occasion, where it has been held that the attachment is not a
ground to refuse the registration of the sale certificate.
26. Exactly what has been held by this Court, now by
way of plugging the hole the State thought it to bring this
amendment to the Rule book by inserting the Rule 55-A(i)
with so many provisos including the first provisos, thereby,
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W.P.No.6336 of 2023
the law already been declared by this Court was sought to be
negated.
27. Even though making of such a scheme of
Registration Act is permissible to the Competent legislature
whether the authority, who is empowered to make sub-
ordinate legislation can make provisions of law taking away
the right or abrogating the same, which has already been
vested with the authority/citizen of this country, this in fact
has been dealt with by the learned Judge in Federal Bank's
case cited supra.
28. Such a right of the party to transfer the property by
issuance of sale certificate by the competent authority cannot
be denuded or taken away by merely bringing a sub-ordinate
legislation like Rule 55-A(i) and therefore, I am in agreement
with the learned Judge, who has declared that the first proviso
to Rule 55-A(i) is ultra vires to the Constitution. Following
the said judgment of the learned Judge, I have no hesitation to
hold that the reasons stated by the Registering Authority for
refusing to register the respective sale certificates are
concerned, is totally untenable and therefore, those reasons, in
the impugned order, in the eye of law would not be sustained.
In the result, the following orders are passed in these writ
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W.P.No.6336 of 2023
petitions:
That the impugned orders in these writ petitions are set
aside and as a sequel, there shall be a direction to the
respondents i.e., corresponding Registering Authority
in each of the cases, to accept the sale certificate
presented by the respective petitioners for registration
and in this context, without insisting upon any NOC or
clearance of attachment as provided under first proviso
to Rule 55-A(i) as stated supra, the respective
Registering Authority shall proceed to register the
documents if it is otherwise in order that too without
insisting any stamp duty in view of the law already
been declared by the Hon'ble Supreme Court as
discussed herein above.
The needful as indicated above shall be undertaken by
the respondents/Registering Authority in each of the
writ petitions within a period of six(6) weeks from the
date of receipt of a copy of this order.
With these directions and observations, these writ
petitions are ordered accordingly. No costs. Connected
miscellaneous petitions are closed.”
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W.P.No.6336 of 2023
6. The issue raised in this writ petition since is covered by the said
decision, I am inclined to dispose of this writ petition with the following order.
● That the impugned refusal check slip in RFL/Purasaivakkam / 2 /
2023 dated 09.01.2023 is liable to be set aside and it is
accordingly set aside.
● As a sequel, the matter is remitted back to the 2nd respondent
with a direction to accept the sale certificate submitted by the
petitioners and register the same if it is otherwise in order, within
a period of four weeks from the date of receipt of a copy of this
order.
7. With the above directions, this writ petition is disposed of. No costs.
02.03.2023
Index : Yes/No
Neutral Citation : Yes/No
Speaking Order / Non-speaking order
KST
To
1.Inspector General of Registration
100, Santhome High Road
Chennai 600 039.
2.The Sub Registrar
Office of the Sub Registrar-Purasawalkam
Purasawalkam, Chennai 600 023.
https://www.mhc.tn.gov.in/judis
W.P.No.6336 of 2023
R. SURESH KUMAR, J.
KST
W.P.No. 6336 of 2023
02.03.2023
https://www.mhc.tn.gov.in/judis
