TaxTMI 
TaxTMI 
2016 (1) TMI 1524
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....emove the entry made therein. Brief Facts:-- 2. As the issues involve apart from locus standi of the petitioner, several facts, a proper narration is imperative. 3. The Indian Bank, Chennai, in the year 1992, had extended financial facilities in favour of borrowers/guarantors known as MVR Group of Companies. In the years 1995 and 1996, the documents of mortgage were executed qua immovable properties for approximate extent of 120 grounds in favour of the Indian Bank. Needless to state that the borrowers/guarantors did not repay the loan. 4. Original Applications have been filed in the year 1996 for recovery of money under RDDB Act including sale of mortgaged assets. Thereafter, notice under Section 13(2) of the SARFAESI Act was issued by M/s. Indian Bank on 15.12.2004. It was followed by a demand notice dated 27.1.2005. The possession notice was issued on 30.3.2005. The procedure contemplated under the SARFAESI Act has been followed for the above said action. 5. At that point of time, respondents No. 3 and 4 (not appearing before this Court despite the notice having been served) executed a registered power of attorney in document No. 2115 of 2006 dated 23.8.2006 in fa....
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....he schedule mentioned properties as mentioned in Clauses (1) to (12) of the General Power of Attorney Deed dated 23.08.2006 registered as Document No. 2115/2006 at the Office of the Sub-Registrar, Velachery. 2. To sell the schedule mentioned properties either in one lot or in part or parts in favour of the Purchaser/Purchasers on receipt of sale consideration and issue receipt for the same....'' 7. This unregistered document has been placed before this Court for the first time along with the averment in the counter affidavit filed by respondent No. 4 sworn in the month of January, 2015. This document is disputed by the petitioner. The registered power deed dated 23.8.2006, though admittedly did not assign the power of alienation or encumbrance, a sale deed dated 5.7.2007 was executed in document No. 2179 of 2007 by respondent No. 5, purportedly being the agent of respondents No. 3 and 4 in favour of respondent No. 6. 8. It is pertinent to note that though it is alleged by respondent No. 5 that there exists an unregistered power deed dated 7.6.2007 to get over the anomalies/mistakes in the earlier one dated 23.8.2006, the sale deed dated 5.7.2007 only makes a ....
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....n the Financing Documents and all collateral and underlying Security Interests and/or pledges created to secure and/or guarantees issued in respect of the repayment of the Loans, which the Seller is entitled to. The Purchaser shall have the right to enforce such Security Interests pledges and/or guarantees and appropriate the amounts realized therefrom towards the repayment of the Loans and to exercise all other rights of the Seller in relation to such Security Interests, pledges and/or guarantees. The Seller shall transfer/deliver or cause to be transferred/delivered or hold for and on behalf of the Purchaser, all such original documents, deeds and/or writings including but not limited to the Financing Documents, and produce the same promptly upon any request by the Purchaser." 11. The sale notice was issued by the petitioner under SARFAESI Act on 5.8.2008 to the mortgagors/borrowers. Thereafter, the 6th respondent, being the son of the 5th respondent, executed a settlement deed for the very same properties by a registered document dated 13.10.2008. 12. A Complaint was given and registered against respondent No. 3 and others in Crime No. 41 of 2009 dated 18.4.2009 on the fil....
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.... have filed a suit against the private respondents herein. It is also stated that the petitioner has filed an impleading application in the suit and it was returned for certain compliance. 15. Heard Mr. AR.L. Sundaresan, learned Senior Counsel appearing for the petitioner, Mr. V. Subbiah, learned Special Government Pleader appearing for respondents No. 1 and 2 and Mr. R. Muthukumaraswamy, learned Senior Counsel appearing for respondents No. 5 and 6. Despite the notice having been served and names printed in the cause list, respondents No. 3 and 4, being the alleged vendors of respondent No. 6, are conspicuous by their absence. Submissions of Petitioner:-- 16. The learned Senior Counsel appearing for the petitioner submitted that it is a case of lack of jurisdiction on the part of respondent No. 2. When admittedly the document relied upon by respondent No. 5 did not have the valid authorisation, respondent No. 2 ought not to have registered the document. Such a registration is void ab initio and thus non est in the eye of law. The petitioner, having got the right in pursuant to the deed of assignment dated 7.12.2007, is a person interested and has locus. Sections 32 to 34 o....
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....es not have any application to the case on hand. The petitioner is trying to convert a civil dispute as a public law remedy before this Court. There is no error in the jurisdiction of respondent No. 2. Therefore, no interference is required. To buttress their arguments, learned Senior counsel made reliance upon the following decisions:-- "1. Yanala Malleshwari & Others v. Ananthula Sayamma and others, (2007 (1) CTC 97) (Full Bench decision of Andhra Pradesh High Court); 2. S. Ganesan v. Bharathirajan (2009(5) CTC 558); 3. Rajni Tandon v. Dulal Ranjan Ghosh Dastidar and another, (2009) 14 SCC 782); 4. Thota Ganga Laxmi and another v. Government of Andhra Pradesh and others, (2010) 15 SCC 207; and 5. M/s. Latif Estate Line India Ltd. v. Mrs. Hadeeja Ammal and others, (2011-1-L.W. 673) - Full Bench decision of Madras High Court." Discussion:-- (i) Locus Standi: 18. Before going to the merits of the case, it is imperative to decide the question of locus standi of the petitioner. The facts, as narrated above, are not disputed except qua the introduction of unregistered power deed dated 7.6.2007 in favour of the 5th respondent. ....
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.... right available for enforcement, on the basis of which writ jurisdiction is resorted to. The Court can of course, enforce the performance of a statutory duty by a public body, using its writ jurisdiction at the behest of a person, provided that such person satisfies the Court that he has a legal right to insist on such performance. The existence of such right is a condition precedent for invoking the writ jurisdiction of the courts. It is implicit in the exercise of such extraordinary jurisdiction that, the relief prayed for must be one to enforce a legal right. In fact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the Court. The legal right that can be enforced must ordinarily be the right of the appellant himself, who complains of infraction of such right and approaches the Court for relief as regards the same. (Vide : State of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12; Saghir Ahmad & Anr. v. State of U.P., AIR 1954 SC 728; Calcutta Gas Company (Proprietary) Ltd. v. State of West Bengal & Ors., AIR 1962 SC 1044; Rajendra Singh v. State of Madhya Pradesh, AIR 1996 SC 2736; and Tamilnad Mercantile Bank Shareholders Welfare Associati....
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....have been adopting a liberal approach in dealing with the cases or dislodging the claim of a litigant merely on hyper-technical grounds. ------- In other words, if the person is found to be not merely a stranger having no right whatsoever to any post or property, he cannot be non-suited on the ground of his not having the locus standi." (Emphasis added) 17. In view of the above, the law on the said point can be summarised to the effect that a person who raises a grievance, must show how he has suffered legal injury. Generally, a stranger having no right whatsoever to any post or property, cannot be permitted to intervene in the affairs of others. Locus standi of respondent No. 5 : 18. As respondent No. 5 does not belong to the Scheduled Tribes category, the garb adopted by him, of serving the cause of Scheduled Tribes candidates who might have been deprived of their legitimate right to be considered for the post, must be considered by this Court in order to determine whether respondent No. 5, is in fact, in a legitimate position to lay any claim before any forum, whatsoever. 19. This Court in Ravi Yashwant Bhoir v. District Collector, Ra....
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....e Writ Petition:-- 19. Learned counsel appearing for respondents also raised the question of maintainability in other aspects. According to them, the petitioner ought to have filed a Civil Suit. The Order passed by the Apex Court would debar the petitioner from filing this writ petition and having filed impleading petition in the civil suit, the petitioner cannot seek the relief in this writ petition. All the three submissions are liable to be rejected. The petitioner does not want to canvass any disputed questions of fact before this Court, though the unregistered power deed is disputed. On the contrary, the petitioner's case is qua the registration of the document based upon the power deed, which did not authorise such an act. Therefore, there is no necessity for the petitioner to file a civil suit. Similarly, the issue involved before the Apex Court in S.L.P.(Crl) No. 838 of 2015 dated 27.2.2015 is totally different. The Law is quite settled that an issue, which is not consciously considered and decided, would not partake the character of a binding decision. The mere fact an application for impleadment has been filed in a suit by a third party, also for the aforesaid reas....
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....any finding on the inter se dispute between the private parties. Therefore, this Court is unable to countenance the submissions made by the learned counsels for the respondents in this regard. (iv) Power of Attorney:-- 21. A power of attorney is governed by the Powers of Attorney Act, 1882. There are two parties involved in a power deed, being donor and donee. Under the deed, the donor gives authority to the donee, which will have the effect of the actions of the donee, being that of the donor. Thus, an action of the donee is the action done in the name and signature of the donor. The donor merely acts through agent. A power deed has to be construed strictly. What is to be taken is the confirmation of the power either expressly or by necessary implication. For that purpose, the recitals would become relevant. The power deed is nothing but an act of convenience. It is not an instrument of transfer qua right, title or interest in an immovable property Therefore, the agent is meant to act only within the deed and not beyond. Thus, an immovable property can only be legally transferred/conveyed through a proper power deed. Resultantly a deed of conveyance registered without ....
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....rney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee." An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor. Scope of Will 22. A will is the testament of the testator. It is a posthumous disposition of the estate of the testator directing distribution of his estate upon his death. It is not a transfer inter vivos. The two essential characteristics of a will are that it is intended to come into effect only after the death of the testator and is revocable at any time during the life time of the testator. It is said that so long as the testator is alive, a will is not be worth the paper on which it is written, as the testator can at any time revoke it. If the testator, who is not married, marries after making the will, by operation of law, the will stands revoked. (see sections 69 and 70 of Indian Succession Act, 1925). Registrat....
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....y a power of attorney, the power should also expressly authorize the power to agent to execute the sale agreement/sale deed i.e., (a) to present the document before the Registrar; and (b) to admit execution of the document before the Registrar. A perusal of the power of attorney, in the present case, only authorizes certain specified acts but not any act authorizing entering into an agreement of sale or to execute sale deed or admit execution before the Registrar. 20. In a recent decision of this Court in Suraj Lamp and Industries Pvt. Ltd. v. State of Haryana and Another (2012) 1 SCC 656 : (2012) 1 SCC (Civ) 351, the scope of power of attorney has been explained in the following words: (SCC pp. 666-67, paras 20-21) "20. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorises the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see Section 1-A and Section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unle....
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....and, even according to respondent No. 5, there was some mistake in the earlier power deed. As narrated earlier, though it is alleged in the counter affidavit filed that there was a subsequent unregistered deed, there is no explanation for mentioning only earlier power deed dated 23.8.2006 in the sale deed dated 5.7.2007, which admittedly did not authorise a sale by the agent. What is to be seen in this case is that before respondent No. 2 only the power deed dated 23.8.2006 must have been available. It was the only document mentioned in the sale deed. Even as per the counter affidavit filed by respondent No. 2, it was not verified. This would certainly go to the root of the matter. This Court is not concerned with the manner in which the subsequent unregistered power deed is sprouted before this Court. Suffice it is to state that respondent No. 2 has not performed his role by failing to verify the power deed mentioned in the sale deed dated 5.7.2007 authorising respondent No. 5 to execute the said document. It is further to be noted that the registered power deed dated 23.8.2006 in specific terms did not authorize respondent No. 5 to indulge in such an act. Thus, while it is expres....
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....e of enquiry. If we test the said provision with a case where a power deed does not authorise a person to execute, then he will not become a person executing the document of sale. To put it differently, when the person executing the document is not the agent of the principal for that purpose, then, his execution would become a nullity. In that case, there is neither principal nor an agent. Thus, there will not be any person executing the said document in the eye of law. When that is a position, such a person in the capacity of duly executing the document cannot seek registration also. Therefore, for registration, what is important is a valid execution when executed by the agent on behalf of the principal through appropriate power deed. This alone would entitle him to present the document for registration. Otherwise, Section 34 would lead to absurdity if one holds that enquiry has to be restricted only to the agent presenting the document for registration alone. When even for presenting document an authorisation by way of power deed is required, by no stretch of imagination it can be said that by a wrong or invalid power deed without authorisation, a sale deed an be executed and the....
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.... has been expressed earlier by the Bombay High Court in Ratilal Nathubhai and Anr. v. Rasiklal Maganlal and Ors., AIR 1950 Bombay 326. 26. It is important to bear in mind that one of the categories of persons who are eligible to present documents before the registration office in terms of Section 32 of the Act is the "person executing" the document. The expression "person executing" used in Section 32 of the Act, can only refer to the person who actually signs or marks the document in token of execution, whether for himself or on behalf of some other person. Thus, "person executing" as used in Section 32 (a) of the Act signifies the person actually executing the document and includes a principal who executes by means of an agent. Where a person hold a power of attorney which authorises him to execute a document as agent for some one else, and he executes a document under the terms of the power of attorney, he is, so far as the registration office is concerned, the actual executant of the document and is entitled under Section 32 (a) to present it for registration and get it registered. ....... 34. In the instant case, Indra Kumar Halani executed the docum....
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....t the property is situated partly in one jurisdiction and others in another jurisdiction. Section 32 of the Act deals with persons to present documents for registration. It means that every document should be presented by a person who is claiming the property or executing the document. The Registration Act has imposed several conditions regulating the presentation of documents for registration and it is of great importance that those conditions framed with a view to meet the legal circumstances, should not be weakened or strained on the ground that it appears to be strict. The power and jurisdiction of the Registrar will come to play only when they are invoked by a person having a direct relation to the deed. The Registrar, after hearing the parties and after satisfying himself, gets it right to register. The words in Sections 32 and 33 of the Act are imperative for presentation of document for registration by a person who is entitled to do so. If a document is presented for registration by a person who is not entitled to do so, under Section 32 of the Registration Act, it is invalid. Improper presentation is not a mere defect in procedure falling under Section 18 of the Act, but t....