Bom HC | Does a Registering Officer has right to decide whether person presenting document for registration has marketable title or not? Court answers

Bombay High Court: The Division Bench of A.S. Chandurkar and Amit B. Borkar, JJ., addressees the present matter while explaining the existence or non-existence of the provisions for registration under Registration Act, 1908.

Petitioner sought a direction against respondent 5 – Sub-Registrar (Class-I) to register sale certificate on receipt of stamp duty and registration charges.

Further, the petitioner also sought a direction against respondent 7 – Government of Maharashtra, through Sales Tax Department to take action against the defaulters for evading taxes and attaching their movable properties and not to obstruct the sale of the properties by the petitioner – Bank for recovery of its dues.

Adding to the above, petitioner sought a declaration that respondents 1 and 2 are not entitled to recover the dues in view of the mandate of Section 26-E of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.

Petitioner—Bank had initiated proceedings under the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. Certificate of sale was issued in favour of the proprietor in the exercise of power under the Security Interest (Enforcement) Rules, 2002.

Main Grievance

The refusal to register the above-stated sale certificate by respondent 5 was the main grievance in the instant petition.

Analysis, Law and Decision

Bench noted that Sub-Section (1) of Section 22-A clearly provided that only if notification is published in the Official Gazette declaring that registration of any document or class of document is opposed to any public policy, only then the question of refusal of registration of the document will arise.

Court added that, even otherwise, since Section 22-A is no longer on the statute book, registration of the sale certificate could not have been refused on the ground of the same being in contravention of Section 22-A of the Act of 1908.

The ground of encumbrance to refuse registration of a document is in relation to marketable title of the property.

Bench referred to the decision of Supreme Court in Satyapal Anand v. State of Madhya Pradesh, (2016) 10 SCC 767, wherein it was held that:

“41. Section 35 of the Act does not confer a quasi-judicial power on the Registering Authority. The Registering Officer is expected to reassure that the document to be registered is accompanied by supporting documents. He is not expected to evaluate the title or irregularity in the document as such. The examination to be done by him is incidental, to ascertain that there is no violation of provisions of the 1908 Act. In the case of Park View Enterprises, it has been observed that the function of the Registering Officer is purely administrative and not quasi-judicial. He cannot decide as to whether a document presented for registration is executed by person having title, as mentioned in the instrument. We agree with that exposition.”

Purported source of power for rejection of sale certificate id under Clause (i) of Rule 44 of the Rules of 1961, which reads as follows:

“44(1). Before accepting any document for registration, a registering officer may not concern himself with its validity, but shall ascertain –
(a) …..

(b)…..
(c)…..
(d)…..
(e)…..
(f)…..
(g)…..
(h)…..
(i) that, if the transaction which is intended by the document, is prohibited by any existing act of Central or State Government, then the true copy of requisite permission or No Objection Certificate from the Competent Authority under the said act, has been attached along with the document, and that, the document  is not written in contradiction with any vital term or condition mentioned in that permission or No Objection Certificate.”

Bench opined that respondent 5 could not have purportedly invoked Clause (i).  Sub-Rule (1) of Rule 44 of the Rules of 1961 provides that before accepting any document for registration, the Registering Officer is concerned with its validity, but he should ascertain the various factors set out in Clauses (a) to (i).

Further, it was stated that Clause (i) of Rule 44 of the Rules of 1961 will apply only when the transaction is covered by the document which is prohibited by a Central or State Statute. There is an encumbrance of the Department of Sales Tax.

In view of the Supreme Court decision in Satyapal Anand v. State of Madhya Pradesh, (2016) 10 SCC 767, the Registering Officer under the Act of 1908 has no power to adjudicate upon the issue of marketable title to the property.

The power of the Registering Officer is purely administrative and is not quasi-judicial power. The Registering Officer has no right to decide whether a person who has presented the document for registration has marketable title or not.

 Non-Testamentary Document?

 Section 17(2)(xii) of the Act of 1908 specifically provides that a certificate of sale granted to any purchaser of any property sold by public auction by a Civil or Revenue Officer does not fall under the category of non-testamentary document which requires registration under Sub-Sections (b) & (c) of Section 17(1) of the Act of 1908.

It is well settled that when a property is sold by public auction, in pursuance of an order of the Court and the sale is confirmed by the Court in favour of the purchaser, the said becomes absolute and the title vests in the purchaser. A sale certificate is issued to the purchaser only when the sale becomes absolute.

“…when an auction purchaser derives title on confirmation of sale in his favour, no further deed of transfer from the Court is required.”

Hence, High Court held that respondent 5 ought to have taken into consideration the above-stated position of law before refusing the sale certificate issued by the Authorized Officer.

Priority of the secured creditor to recover its debt over liability to pay tax under MVAT Act

Court while stating that the issue was no longer res-integra, expressed that, if any Central Statute creates priority of a charge in favour of the secured creditor, the same will rank above the charge in favour of the State for a tax due under the Value Added Tax of the State. 

Therefore, it is the duty of respondent 5 to register the sale certificate issued in favour of the auction purchaser by the Authorized Officer under the provisions of the Rules of 2002.

Adding to the above, Bench stated that respondent 7 is duty-bound to take action against the defaulter for evading taxes and recovering its dues by attaching their movable properties.

“…the priority of charge created under Section 26-E of the Act of 2002 in favour of the secured creditor will rank above the charge in favour of a State for a tax due under Value Added Tax of the State.”

In view of the above, the Rule was made partly absolute and pending applications if any disposed of. [State Bank of India v. State of Maharashtra, 2021 SCC OnLine Bom 1544, decided on 4-08-2021]


Advocates before the Court:

 Shri M. Anilkumar, Advocate for the petitioner

Ms. S.S. Jachak, AGP for the respondents 1 to 4 & 6

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