S. Talapatra, J.:— Heard Mr. Somik Deb, learned counsel appearing for the petitioner as well as Mr. D. Sharma, learned Addl. GA appearing for the respondents.
2. The facts are mostly admitted. The petitioner being attracted by the notice of auction for sale of some land (immovable property) published by Tripura Gramin Bank had participated in the auction for purchasing the land measuring 0.370 acre comprised in Khatian No. 1197 of Mouja-Kanchanpur plots NO. 1481, 1483 [the records will preval on any circumstances]. The petitioner was successful in the auction which was designed within section 13(4) of the Securitisation And Reconstruction of Financial Assets And Enforcement of Security Interest Act, 2002 (SARFAESI Act, in short). As the predecessor of the said land who converted the same as the secured asset failed to repay the loan, its possession was taken over on exhausting the procedure under section 13 of the said Act. The borrower failed to discharge the obligation before the land was taken in the possession by the authorized officer of Tripura Gramin Bank. The outstanding on the loan account since remained unliquidated, the land was put on auction on the course of time. After the auction was conducted, the petitioner purchased the said land on call of Rs. 2,40,00,255/-. Thereafter, the confirmation advice (Annexure-3 to the writ petition) was issued in his favour on payment of initial amount of Rs. 60,01,000/- on condition to deposit the remainder of the amount within 15 days i.e. by 12.04.2019. Since the petitioner had deposited the said remaining amount in time, the sale certificate in terms of Rule 9(6) of Security Interest (Enforcement Rules) 2002 was issued. Sub-Rule 6 of Rule 9 of the Security Interest (Enforcement Rules) provides as follows:
“(6) On confirmation of sale by the secured creditor and if the terms of payment have been complied with, the authorised officer exercising the power of sale shall issue a certificate of sale of the immovable property in favour of the purchaser in the form given in Appendix V to these rules.”
3. The said certificate has been issued in the form prescribed under Appendix V in favour of the petitioner acknowledging the receipt of the sale price of Rs. 2,40,00255/- only. In the sale certificate, it has been acknowledged that the secured creditor had delivered the possession of the scheduled property as noted before. It has been also recited in the sale certificate that the sale of the secured property was made free from all encumbrances. When, on the basis of the said certificate, the petitioner approached the revenue officer to mutate the land in his favour, it has been stated in the writ petition that the revenue officer, even thought the said sale certificate evidenced outright sale, denied to act on the said certificate under Section 46 of the TLR & LR Act. It has been stated by the petitioner that the said revenue officer demanded the registered sale deed/sale certificate. This fact has been admitted by the respondents in their reply particularly in Para 10 of the reply, where it has been stated that the petitioner submitted an application under Section 46 of the TLR & LR Act for entering his name in column No. 6 of the Khatian No. 1197 (the khatian as opened in the name of the former owner) and for deleting the name of Biswajit Ghosh, the former owner. But as he has not submitted any registered sale deed regarding purchase of the land in question, the petition for the said purpose was dishonoured and rejected by the respondents. Thereafter, in the reply, a reference has been made to Section 46 of the TLR & LR Act. A particular reference has been made to sub-section 2 of Section 46 of the TLR & LR Act where it has been provided that any person acquiring by succession, survivorship, inheritance, partition, purchase, gift, mortgage, lease or otherwise any right in land or, where such person acquiring the right is a minor or otherwise disqualified, his guardian or other person having charge of his property, shall report his acquisition of such right to the village accountant within three months from the date of such acquisition and the village accountant shall give at once a written acknowledgement in the prescribed form for such report to the person making it.
4. It may be pertinent to mention that sub-section 3 of Section 46 of the TLR & LR Act further provides that the village accountant shall enter the substance of every report made to him under sub-section (2) in the register of mutation and also make an entry therein respecting the acquisition of any right of the kind mentioned in sub-section (2) which he has reason to believe to have taken place and of which a report has not been made under the said sub-section and, at the same time, shall post a complete copy of the entry in a conspicuous place in the village and shall give written intimation to all persons appearing from the record of rights or the register of mutations to be interested in the mutations and to any other person whom he has reason to believe to be interested with.
5. Sub-section 4 of Section 46 of the TLR & LR Act provides that if there is any objection from any person having interest of the land that shall be also entered in the register and thereafter, on hearing on the right of the person, the action as regards the mutation be taken.
6. Mr. D. Sharma, learned Addl. GA has fairly submitted that besides this objection, the respondents did not have any other objection on any other ground for denying the mutation in favour of the petitioner. Thus, it appears to this court that the solitary question which emerges for consideration in this proceeding is whether a sale certificate requires registration for purpose of mutation and whether the sale certificate as issued by the authorized officer can be treated as the sale certificate issued by the revenue officer in terms of Section 17(2)(xii) of the Registration Act which provides that nothing provided in clauses (b) and (c) of sub-section 1, would apply to
“(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue-Officer.”
7. Mr. Somik Deb, learned counsel appearing for the petitioner has submitted that if the authorized officer is treated or deemed to be revenue officer it is obvious that no registration under Section 17 is called for. Thus, the final question that appears is whether the authorized officer of Tripura Grameen Bank can be treated as the revenue officer for purpose of sale as carried out under Section 13(4) of the SARFAESI Act. Mr. Deb, learned counsel has categorically submitted that precedents would support his contention that the authorized bank officer being authorized by the statute can be treated as the revenue officer. He has relied on sub-rule 2 of Rule 7 of the Security Interest (Enforcement Rules) 2002 as the preface to his submission. Sub-rule 2 of Rule 7 provides that:
(2) On payment of sale price, the authorized officer shall issue a certificate of sale in the prescribed form as given in Appendix III to these rules specifying the movable secured assets sold, price paid and the name of the purchaser and thereafter the sale shall become absolute. The certificate of sale so issued shall be prima facie evidence of title of the purchaser.
8. But according to this court, the appropriate provision for this purpose would be Rule 8 of the Security Interest (Enforcement Rules) 2002 by which it has been provided that where the secured asset is an immovable property, the authorized officer shall take or cause to be taken possession, by delivering a possession notice prepared as nearly as possible in Appendix IV to those rules, to the borrower and by affixing the possession notice on the outer door or at a conspicuous place of the property. Thereafter, the possession notice as referred to in sub-rule (1) shall also be published in two leading newspapers, one in vernacular language having sufficient circulation in that locality, by the authorized officer. Even the notice can be served directly on the borrower. The said properly shall be kept in his custody and no access shall be made to the said property till the sale is affected for purpose of realizing the amount for the secured creditor. The authorized officer in terms of sub-rule 5 of Rule 8 would hold the public auction including through e-auction mode. The details of the procedure have been provided in Rule 8 of the said Rules. Rule 9(6) has already been reproduced. That provides how on confirmation of sale of the immovable property in favour of the purchaser the sale certificate shall be issued in Appendix V to those rules. Such certificate (Annexure-4 to the writ petition) has been issued by the authorized officer and the auction sale has not been disputed by any person.
9. Mr. Deb, learned counsel has also referred to the prayer made to the Sub-Divisional Magistrate, Ambassa, Dhalai under Section 46 for purpose of mutation but as stated earlier the that mutation has been denied on the purported ground as stated before. The said action of the Sub-Divisional Magistrate (the respondent No. 3 herein) has been challenged by means of this writ petition. Mr. Deb, learned counsel has contended that the said action is wholly arbitrary and in contravention of land and hence, is unsustainable inasmuch as the sale certificate evidences the sale under Section 13(4) of the SARFAESI Act. The authorized officer is the revenue officer for the purpose of the said transaction. Therefore, no registration of the sale certificate is called for in law.
10. Mr. Deb, learned counsel has relied on a decision of the Madras High Court in K. Chidambara Manickam reported in (2008) 1 CTC 660 where a Division Bench of that High Court while dealing with the sale of the secured asset in public auction in terms of section 13(4) of the SARFAESI Act has reversed the decision of the single Judge who had held that the sale certificate issued in the auction carried out for purpose of Section 13(4) of the SARFAESI Act required registration to evidence transfer of the title.
11. In K. Chidambara Manickam, the Madra High Court had formulated the question in the following manner.
Whether the sale of secured asset in public auction as per Section 13(4) of the SARFAESI Act, which ended in issuance of a sale certificate as per Rule 9(7) of the Security Interest (Enforcement Rules) 2003, (the rules, in short) is in complete and absolute sale for purpose of SARFAESI Act or whether the sale would become final only when on the registration of the sale certificate.
12. There cannot be any amount of doubt that in this proceeding, we are confronted with the similar question. While answering the said question, the Madras High Court has observed inter alia as follows:
10.13 Part-III of the Registration Act speaks of the Registration of documents. Section 17(1) of the Registration Act enumerates the documents which require compulsory Registration. However, Section Sub-Section (2) of Section 17 sets out the documents to which clauses (b) and (c) of sub-section 1 of Section 17 do not apply. Clause (xii) of sub-section 17 of the Registration Act reads as under; …..
“Section : 17(2)(xii) - any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue Officer.
“10.14. A Division Bench of this Court in Arumugham, S. v. C.K. Venugopal Chetty, (1994) 1 LW 491 held that the property transferred by Official Assignee, under order of court, does not require registration under Section 17 of the Registration Act. The Division Bench has held as follows:
“Under Ex.D-7, the Court permitted the Official Assignee to transfer to the guarantor the assets of the insolvent that are in excess. Being a transfer by order of Court, the document does not require registration under S.54 of the Transfer of Property Act, since S.2(d) of the Transfer of Property Act says that nothing in the Act (except S.57 and Chapter IV) applies to transfers by orders of Court. The document in question does not require registration and there was a valid conveyance of the 2nd defendant's 1/4th share to G.”
10.15. When the effect and validity of the sale certificate issued to a purchaser of a property sold in public auction came up for consideration before the Supreme Court in the recent decision in B. Arvind Kumar v. Government of India, (2007) 5 SCC 745, the Supreme Court, after referring to Section 17(2)(xii) of the Registration Act, held that when a property is sold in public auction in pursuance of an order of the court and the bid is accepted and the court confirms the sale in favour of the purchaser, the sale becomes absolute and the title vests in the purchaser. The relevant portion of the judgment of the Supreme Court is as under:
“10. … When a property is sold by public auction in pursuance of an order of the court and the bid is accepted and the sale is confirmed by the court in favour of the purchaser, the sale becomes absolute and the title vests in the purchaser. A sale certificate is issued to the purchaser only when the sale becomes absolute. The sale certificate is merely the evidence of such title. It is well settled that when an auction purchaser derives title on confirmation of sale in his favour, and a sale certificate is issued evidencing such sale and title, no further deed of transfer from the court is contemplated or required. In this case, the sale certificate itself was registered, though such a sale certificate issued by a court or an officer authorized by the court, does not require registration. Section 17(2)(xii) of the Registration Act, 1908 specifically provides that a certificate of sale granted to any purchaser of any property sold by a public auction by a civil or revenue officer does not fall under the category of non testamentary documents which require registration under Sub-section (b) and (c) of Section 17(1) of the said Act. We therefore hold that the High Court committed a serious error in holding that the sale certificate did not convey any right, title or interest to plaintiff's father for want of a registered deed of transfer.”
(emphasis supplied)
10.16. In this case, the authorised officer of the secured creditor, exercising the power conferred on him by SARFAESI Act, pursuant to the proceedings initiated by him brought the secured assets of the borrowers for sale in public auction, and, in view of the default in repayment of the loan, confirmed the sale in favour of the highest bidder, the appellant herein and issued the sale certificate on 06.01.2006.
10.17. The ratio laid down by the Division Bench of this Court in Arumugham, S. v. C.K. Venugopal Chetty and the Supreme Court in B. Arvind Kumar v. Government of India, referred supra, squarely applies to the case on hand and we, therefore, have no incertitude to hold that the sale which took place on 19.12.2005 has become final when it is confirmed in favour of the auction purchaser and the auction purchaser is vested with rights in relation to the property purchased in auction on issuance of the sale certificate and he has become the absolute owner of the property. Further, as held by the Division Bench of this Court in Arumugham, S. v. C.K. Venugopal Chetty and the Supreme Court in B. Arvind Kumar v. Government of India, referred supra, the sale certificate issued in favour of the appellant does not require any registration in view of Section 17(2)(xii) of the Registration Act as the same has been granted pursuant to the sale held in public auction by the authorised officer under SARFAESI Act.
[Emphasis added]
13. Mr. Deb, learned counsel has also referred another decision of the Madras High Court in Hussain v. Chief Revenue Controlling (judgment dated 27.02.2014 delivered in Civil. Misc. Appeal No. 2089 of 2013. Being faced with the similar question, Madras High Court having referred K. Chidambara Manickam (supra) had observed that the effect and status of sale certificate issued by Recovery officers in pursuance to the proceedings of the SARFAESI Act has been under judicial scrutiny on several times. It is now well settled that the sale certificate cannot be termed as an instrument of sale, not only evidencing a sale effected under the operation of an Act. It has been also observed that Section 17 of the Registration Act deals with documents of which registration is compulsory. Sub clause (1) gives an exhaustive list of such document. However, sub clause (2) exempts certain document and Section 17(2)(xii) would state that any certificate of sale granted to the purchaser of any property sold by public auction by a Civil of Revenue Officer will not require registration.
14. Restating the law as enunciated in K. Chidambara Manickam, it has been also observed in Hussain that the sale certificate issued in favour of the appellant does not require any registration in view of section 17(2)(xii) of the Registration Act as the same has been granted pursuant to the sale held in the public auction by the authorized officer under SARFAESI Act. The Recovery officer under RDBI Act is to be treated as Revenue officer. However, they have referred to the provision of Section 89(2) of the Registration Act which provides that every court granting a certificate of sale of immovable property under the Code of Civil Procedure, 1908, shall send a copy of such certificate to the registering officer within the local limits of whose jurisdiction the whole or any part of the immovable property comprised in such certificate is situate and such officer shall file the copy in his Book No. 1.
15. Even though the Madras High Court has referred to Section 89(2) of the Registration Act but the said provision does not bind the revenue officer to follow the same process. Therefore, any exploration to that aspect is not at all called for the present purpose.
16. Mr. Deb, learned counsel has in sequel referred to another decision of apex court in Shanty Devi L. Singh v. Tax Recovery Officer reported in (1990) 3 SCC 605. The apex court in Shanty Devi L. Singh (supra) has observed inter alia that a doubt may arise whether the expression ‘revenue officer’ in Section 84(4) of the Registration Act includes a Tax Recovery Revenue Officer (TRO) and if not whether without an appropriate amendment of Section 89(2) of the Registration Act, mere framing of a rule by Central Board of Direct Taxes (CBDT) under the Income Tax, 1961 will be sufficient to oblige the registration officer to place a copy of the certificate of sale sent to him by the TRO in his book No. 1?
17. The apex court has observed thereafter as follows:
In our opinion, there is no need to read the term ‘revenue officer’ in any restricted sense and that it is wide and comprehensive enough to include the T.R.O. who effects a compulsory sale for the recovery of an income-tax demand. We are therefore clear that, in the present case, the registration officer has to act in terms of S. 89(4) of the Indian Registration Act read with rule 21 of the ITCP rules. This is to file the copy of the certificate of sale received by him from the T.R.O. in his Book No. 1.
[Emphasis added]
18. In Shanty Devi L. Singh (supra), it is also observed that though the processes are different, the purchaser at a court or in a revenue sale is under no disadvantage because of the lack of registration. The certificate of sale itself not being a compulsorily registrable document under Section 17(2)(xii) of the Registration Act, the transfer of title in his favour is not vitiated by the non-registration of the certificate. The copy of the certificate filed in Book No. 1 contains all the relevant details.
19. Thus, the apex court in no certain words has stated that a copy of the sale certificate be sent to the registering authority for keeping the same in book 1 which is the register for sale. The apex court has further observed in Shanty Devi L. Singh (supra) even if the certificate of registration is sought to be presented for registration by the petitioners, the Sub-Registrar had no jurisdiction to refuse registration on the ground that the document is insufficiently stamped. As already pointed out under section 17(2)(xii) of the Registration Act makes it clear that the certificate of sale issued by a court sale or by a revenue officer does not require registration. For the same reason, as has been set out by the apex court, the certificate issued by the TRO is also covered by the said provision. Therefore, it has been clearly held that It is, therefore, clear that it is not obligatory for the purchaser of property in a tax recovery sale to get the certificate of sale registered in order to perfect his title.
20. Mr. Deb, learned counsel has thereafter, made reference to Gurbax Singh v. Financial Commissioner reported in 1991 Supp (1) SCC 167 where the apex court had occasion to observe that Section 20 of the Displaced Person Compensation and Rehabilitation Act, 1954 empowers the Managing Officer or managing corporation to transfer any property within the compensation pool (a) by sale of such property to a displaced person or any association of displaced persons whether incorporated or not, or to any other person, whether the property sold by public auction or otherwise. Under sub-section (2) of that section every Managing Officer or managing corporation selling any immovable property by public auction under sub-section (1) shall be deemed to be a Revenue Officer within the meaning of sub-section (4) of section 89 of the Indian Registration Act, 1908.
21. Finally, reliance has been placed on another decision of the apex court, as referred in K. Chidambara Manickam (supra), in B. Arvind Kumar v. Govt. of India reported in (2007) 5 SCC 745 where the apex court in the similar nature of controversy had formulated the following question:
“Whether the plaintiff's father did not secure any manner of right, title or interest in the suit property, as the sale certificate in his favour was not followed by a registered deed of transfer?”
22. While giving answer to that question, the apex court has observed as follows:
“The sale certificate is merely the evidence of such title. It is well settled that when an auction purchaser derives title on confirmation of sale in his favour, and a sale certificate is issued evidencing such sale and title, no further deed of transfer from the court is contemplated or required. In that case, the sale certificate itself was registered, though such a sale certificate issued by a court or an officer authorized by the court, does not require registration. Section 17(2)(xii) of the Registration Act, 1908 specifically provides that a certificate of sale granted to any purchaser of any property sold by a public auction by a civil or revenue officer does not fall under the category of non testamentary documents which require registration under sub-section (b) and (c) of section 17(1) of the said Act.”
[Emphasis added]
23. The decision of the High Court, contrary to the above proposition was reversed by the apex court in B. Arvind Kumar holding that no registration is required for sale certificate issued by the revenue officer or the civil officer.
24. Having appreciated the submission made by the learned counsel for the parties, this court does not have any hesitation to hold that in view of the precedents as placed before this court, the recovery officer or the authorized officer under the SARFAESI Act can be termed as the revenue officer for purpose of attracting the exemption as provided by Section 17(2)(xii) of the Registration Act. Therefore, the sale certificate as issued by the authorized officer/recovery officer of Tripura Gramin Bank in favour of the petitioner (Annexure-4 to the writ petition) is a document evidencing the transfer of perfect and no further registration of the sale certificate or by any other means is required. Hence, the respondent No. 3 having denied to act upon it for purpose of mutation as provided under Section 46 of the TLR & LR Act has acted illegally. As such, the respondent No. 3 is directed by this court to mutate the name of the petitioner in the records of right following the procedure under Section 46 of the TLR & LR Act without further delay. But the respondent No. 3 or any other revenue officer shall not be entitled to question the sale certificate as the deed of title or ask further for its registration. The said certificate shall be accepted as the deed of title for all purposes.
25. In view of the discussion made above, this writ petition stands allowed.
26. There shall be no order as to costs.