TMI Blog2016 (6) TMI 242X X X X Extracts X X X X X X X X Extracts X X X X ..... f the document is forged, impersonation by the parties, if the executing party is a minor or a lunatice, etc. Therefore, in the absence of any interim order from the competent Court nor any of the grounds available under Rule 55, the Sub Registrar cannot deny the registration. Writ Petition is allowed and the 2nd respondent viz., Sub-Registrar, Puducherry, is directed to register the Sale Certificate dated 12.01.2016 issued by the petitioner and to release the registered document, within a period of two weeks from the date of receipt of a copy of this order. - W.P.No.6685 of 2016 and W.M.P.No.5921 of 2016 - - - Dated:- 12-4-2016 - MR.JUSTICE R.SUBBIAH For the Petitioner : Mr.E.Om Prakash for M/s.Ramalingam Associates For the Respondent : Mr.J.Narayanaswamy, Mr.M.Govindaraj GP (P) ORDER This writ petition has been filed by the petitioner, praying for issuance of a Writ of Mandamus, to direct the 2nd respondent to receive, register and return the Sale Certificate dated 12.01.2016 executed by the petitioner in favour of Mr.Abdul Kader in respect of the property at Plot No.39 FLOS CARMELI , Layout, Carmel Convent, Muthyalpet, Village No.40, Pondicherry Reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aki Steels, (3)Devaki Steels Cements, (4)Devaki Agencies and (5)Devaki Cement Agencies. On account of default in payment of the dues, the petitioner being the mortgagee initiated proceedings against the various mortgaged properties, including the subject property. The petitioner-Bank initiated the measures under SARFAESI Act. The subject property was brought for sale by the petitioner-Bank by publishing E-Auction Sale Notice dated 07.11.2015 under the provisions of the SARFAESI Act, scheduling the Auction Sale on 18.12.2015 and the reserve price for the said property was fixed as ₹ 1,36,00,000/-. Pursuant to the said E-Auction Sale Notice published by the petitioner-Bank in the newspapers, bids were submitted by prospective purchasers evincing interest in purchasing the said property. The Auction was accordingly conducted on 18.12.2015 and one Mr.Abdul Kader was the highest bidder for the said property at ₹ 1,38,00,000/- and the auction was confirmed in his favour. The said highest bidder being the successful auction purchaser had paid the entire bid amount by complying with the terms and conditions. Accordingly, the petitioner-Bank has issued a Sale Certificate dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since the effective date of attachment by the Income Tax Department precedes the date on which the property was mortgaged with the petitioner-Bank, the mortgage is void and the Income Tax Department has priority over the Bank. Thus, the learned counsel for the 1stst respondent sought for dismissal of the writ petition. 6. I have also heard the learned Government Pleader appearing for the 2nd respondent also and perused the materials available on record. 7.It is relevant to make a reference in the unreported judgment of the Madurai Bench of Madras High Court in W.P.(MD) No.2635 of 2012, dated 13.03.2013, in the case of M/s.K.D.P.Properties Private Limited vs. The Sub-Registrar and other, relied on by the learned counsel for the petitioner, wherein, in paragraph No.18, a reference was made to the decision of the Hon'ble Apex Court reported in (1985) 2 SCC 167, Balkrishan Gupta and others vs. Swadeshi Polytex Limited and another, and it was held as follows:- 18.In (1985) 2 SCC 167 (supra), the Hon'ble Supreme Court has held as under: 30.The consequence of attachment of certain shares of a company held by a shareholder for purposes of sale in a proceeding under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the officer of the court under Rule 43 of Order 21 of the Code of Civil Procedure, 1908 for the purpose of effecting the attachment, or through a Receiver or though an order in terms of Rule 46 of Order 21 of the Code of Civil Procedure may have been served on the judgment debtor or on the company concerned. 19.The dictum laid down in the above judgment (1985) 2 SCC 167 (supra), gives a fitting answer to the issue raised in this writ petition. So far as the order of attachment passed by the DRT is concerned, the transfer is not void generally but it is void only as against the claims enforceable under the said attachment. Therefore, I am of the opinion that the sale of the property attached cannot be construed as illegal sale. However, if the 2nd respondent bank exercises its right as against the property, the petitioner cannot raise any objection because the sale of the vendor in favour of the petitioner is void in respect of the order of attachment obtained by the 2nd respondent bank. So, even if the property is sold in favour of the petitioner, the 2nd respondent bank can always exercise its right as against the said property. 20. In view of the above finding, I am o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ettled principle of law that the order of attachment cannot be a bar to register the document. It is clear that the sale of any property, pending the order of attachment, is void only as against the claims enforceable under the order of said attachment and not in respect of other claims. Hence, if a document is presented for registration in compliance with the provisions under the Registration Act, the Sub Registrar cannot deny the registration of the same unless there is interim order from the competent Court restraining him from registering the document and he is empowered to deny the registration of the document within the frame of provisions of the Registration Act and Rules framed thereunder, particularly, on the grounds enunciated under Rule 55, viz., if the document is forged, impersonation by the parties, if the executing party is a minor or a lunatice, etc. Therefore, in the absence of any interim order from the competent Court nor any of the grounds available under Rule 55, the Sub Registrar cannot deny the registration. 10. In the light of the decisions cited supra, the Writ Petition is allowed and the 2nd respondent viz., Sub-Registrar, Puducherry, is directed to reg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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