REVIEW PETITIONER/3RD PARTY:
HILARY FELSON,
AGED 54 YEARS,
S/O FRANCIS, RESIDING AT HILARY HOUSE, KESTON TOWERS, A-5, KOWDIAR, THIRUVANANTHAPURAM, PIN - 695 003.
BY ADVS.
P.P.BIJU
SAFNA P.S.
RESPONDENT/PETITIONER AND RESPONDENTS:
1 M/S POWERLINK BUILDERS PVT. LTD,
REPRESENTED BY ITS MANAGING DIRECTOR, SRI.PRADEEP P.,
AGED 62 YEARS, S/O.LATE PRABHAKARA MENON, G-3,
AISWARYA, JAWAHAR NAGAR, KOWDIAR PO,
THIRUVANANTHAPURAM, PIN - 695 003.
2 STATE OF KERALA,
REPRESENTED BY THE SECRETARY, DEPARTMENT OF
REGISTRATION, SECRETARIAT, THIRUVANANTHAPURAM,
PIN - 695 001.
3 INSPECTOR GENERAL OF REGISTRATION,
DEPARTMENT OF REGISTRATION, VANCHIYOOR,
THIRUVANANTHAPURAM, PIN - 695 035.
4 THE SUB REGISTRAR,
SASTHAMANGALAM, THIRUVANANTHAPURAM, PIN - 695 010.
SRI.PIRAPPANCODE V S SUDHIR
THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 02.08.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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2
ORDER
This Review Petition is filed seeking a review of the judgment dated 17.08.2023 in W.P(C)No.17197 of 2023. As can be seen from a reading of the said judgment, the issue considered by this Court was whether the insistence on the part of the Sub Registrar, Sasthamangalam that the photograph and thumb impression of the donor in the power of attorney (produced as Ext.P2 before this Court) is also to be affixed on the documents to be executed by the petitioner in terms of the power granted under the power of attorney. On a consideration of the matter and on an analysis of the provisions contained in Section 32A of the Registration Act, 1908 and also of the provisions contained in Section 2 of the Powers-of-Attorney Act, 1882, this Court held as follows:-
"4. Having heard the learned counsel appearing for the petitioner and the learned Government Pleader, I am of the view that the petitioner is entitled to succeed. Section 32 A of the Act reads as follows:
"32A. Compulsory affixing of photograph, etc.-- Every person presenting any document at the proper registration office under section 32 shall affix his passport
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size photograph and fingerprints to the document:
Provided that where such document relates to the transfer of ownership of immovable property, the passport size photograph and fingerprints of each buyer and seller of such property mentioned in the document shall also be affixed to the document".
The first part of Section 32 A of the Act provides that every person presenting any document at the proper registration office under Section 32 of the Indian Registration Act, 1908, shall affix his passport size photograph and fingerprints to the document. The proviso which requires the passport size photograph and fingerprints of each buyer and seller obviously relates to the transfer of ownership immovable property. The terms of Section 32 A of the Act does not lead to the conclusion that where the document for registration is presented on the strength of a registered Power of Attorney by any person, the photograph and fingerprints of the original donor will also have to be affixed. Section 2 of the Powers of Attorney Act, 1882, reads as follows:-
2. Execution under power-of-attorney.— The donee of a power-ofattorney may, if he thinks fit, execute or do any instrument or thing in and with his own name and signature, and his own seal, where sealing is required, by the authority of the donor of the power; and every instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof.
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This section applies to powers- of-attorney created by instruments executed either before or after this Act comes into force".
It is clear from a reading of Section 2 of the Powers of Attorney Act, 1882, that any act done by the donee in terms of the power granted to him by the donor under a duly executed Power of Attorney will be treated as acts done by the donor. Therefore, the provisions of Section 32 A of the Act can only be interpreted to mean that when documents are presented by a Power of Attorney holder, the photograph and fingerprints of the Power of Attorney holder alone is sufficient and the 3rdrespondent cannot insist on photograph and fingerprints of the donor also. The provisions of Ext.R3 (a) - Circular appear to run counter to the provisions contained in Section 2 of the Powers of Attorney Act, 1882. The question of considering the provisions in the Indian Registration Act, 1908 as a special law vis-a-vis the provisions of the Powers of Attorney Act, 1882 does not arise for consideration, as I find no contradiction between the provisions contained in Section 32 A of the Act and the provisions contained in Section 2 of the Powers of Attorney Act, 1882. Therefore, this writ petition is allowed. The 3rdrespondent is directed to register any document that may be presented by the petitioner on the strength of Ext.P2 Power of Attorney, subject to compliance with usual formalities and without insisting that the
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photograph and fingerprints of the donor of the Power of Attorney should also be affixed on the document presented for registration."
This Review Petition is filed by the person who had executed the power of attorney in favour of the petitioner in the writ petition principally on the ground that there were certain disputes between him and the writ petitioner including regarding the powers granted in terms of the power of attorney and there was also a cancellation of the power of attorney at a subsequent stage. It is pointed out that the fact that there were disputes pending between the Review Petitioner and the writ petitioner including on the subject matter of the power of attorney in question, was not brought to the notice of this Court.
2. I have heard the learned counsel appearing for the review petitioner and the learned counsel appearing for the 1strespondent (writ petitioner).
3. A reading of the writ petition, namely W.P(C)No.17197 of 2023 does not indicate that the petitioner in the writ petition had brought to the notice of this Court that there were disputes pending with the Review petitioner
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who executed the power of attorney in favour of the writ petitioner. While the same has no bearing on the declaration of the law in the Judgment based on the provisions contained in Section 32A of the Registration Act, 1908 and the provisions of Section 2 of the Powers-of-Attorney Act, 1882, in my view, the failure to bring to the notice of this Court the fact that there were disputes pending with the Review petitioner who had executed the power of attorney in favour of the writ petitioner constitutes a suppression of material fact disentitling the writ petitioner to any relief from this Court in exercise of the discretionary jurisdiction of this Court under Article 226 of the Constitution of India. In the light of the above finding, the Review Petition is allowed. The judgment in W.P.(C)No.17197 of 2023 is recalled.
Sd/-
GOPINATH P.
JUDGE
DK
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APPENDIX OF RP 754/2024
PETITIONER ANNEXURES
Annexure I TRUE COPY OF THE ORDER DATED 18.11.2022 IN AR NO.162/2022 OF THIS HON'BLE COURT
Annexure II TRUE COPY OF THE ORDER DATED
08.02.2023 IN CMA (ARBITRATION)
NO.325/2022 OF THE ADDL. DISTRICT COURT-V, THIRUVANANTHAPURAM
Annexure III TRUE COPY OF THE ORDER DATED 28.02.2023 IN COMPLAINT NO.217/2022
OF KERALA REAL ESTATE REGULATORY
AUTHORITY, THIRUVANANTHAPURAM
Annexure IV TRUE COPY OF THE AWARD PASSED BY
ARBITRATOR DATED 07.08.2023 IN
ARBITRATION CASE NO.162/2022 Annexure V TRUE COPY OF THE PLAINT OF CS NO.87/2023 FILED BY THE PETITIONER BEFORE THE SUBORDINATE JUDGE'S
COURT (COMMERCIAL COURT),
THIRUVANATHAPURAM
Annexure VI TRUE COPY OF THE WRITTEN STATEMENT
FILED BY THE 4HT RESPONDENT IN CS
NO.87/2023 BEFORE THE SUBORDINATE JUDGE'S COURT (COMMERCIAL COURT),
THIRUVANATHAPURAM
Annexure VII TRUE COPY OF THE PETITION FILED BY
THE PETITIONER TO THE ARBITRATOR IN
ARB. CASE NO.162/2022, DATED 20/7/2023
Annexure VIII TRUE COPY OF THE SCREENSHOT OF THE
CASE STATUS DATED 22.05.2024 IN CS
NO.87/2023 ISSUED BY THE COMMERCIAL
COURT, THIRUVANANTHAPURAM
RESPONDENT ANNEXURES
Annexure R1(a) TRUE COPY OF THE JOINT DEVELOPMENT
AGREEMENT DATED 10.07.2014 EXECUTED
BETWEEN THE 1ST RESPONDENT AND THE
REVIEW PETITIONER
Annexure R1(b) TRUE COPY OF THE SUPPLEMENTARY
JOINT DEVELOPMENT AGREEMENT DATED
23.10.2020 EXECUTED BETWEEN THE
REVIEW PETITIONER AND THE 1ST
RESPONDENT
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Annexure R1(c) TRUE COPY OF THE DAILY STATUS, PERTAINING TO C.S.NO.87/2023 DATED
22.05.2024 OF THE LEARNED
COMMERCIAL COURT-2,
THIRUVANANTHAPURAM, CONTAINING THE
AFORESAID ORDER, DOWNLOADED FROM
THE OFFICIAL WEBSITE OF THE
DISTRICT COURT, THIRUVANANTHAPURAM
Annexure R1(d) TRUE COPY OF THE DAILY STATUS, PERTAINING TO C.S.NO.87/2023 DATED
27.05.2024 OF THE LEARNED
COMMERCIAL COURT-2,
THIRUVANANTHAPURAM, CONTAINING THE
AFORESAID ORDER, DOWNLOADED FROM
THE OFFICIAL WEBSITE OF THE
DISTRICT COURT, THIRUVANANTHAPURAM
Annexure R1(e) TRUE COPY OF THE DAILY STATUS, PERTAINING TO C.S.NO.87/2023 DATED
01.06.2024 OF THE LEARNED
COMMERCIAL COURT-2,
THIRUVANANTHAPURAM, CONTAINING THE
AFORESAID ORDER, DOWNLOADED FROM
THE OFFICIAL WEBSITE OF THE
DISTRICT COURT, THIRUVANANTHAPURAM
Annexure R1(f) TRUE COPY OF THE CASE STATUS, PERTAINING TO C.S.NO.87/2023 OF THE LEARNED COMMERCIAL COURT-2,
THIRUVANANTHAPURAM, RIGHT FROM THE
DATE OF REGISTRATION OF THE CASE ON
26.10.2023 TO 24.07.2024 DOWNLOADED
FROM THE OFFICIAL WEBSITE OF THE
DISTRICT COURT, THIRUVANANTHAPURAM
Annexure R1(g) TRUE COPY OF THE NOTICE DATED
26.06.2024 ISSUED BY THE REVIEW
PETITIONER TO THE 1ST RESPONDENT
Annexure R1(h) TRUE COPY OF THE REPLY DATED
27.06.2014 SENT BY THE 1ST
RESPONDENT TO ANNEX.R1(G) NOTICE
Annexure R1(i) TRUE COPY OF THE LETTER DATED
27.06.2024 ADDRESSED TO THE 4TH
RESPONDENT
Annexure R1(j) TRUE COPY OF THE JUDGMENT DATED
11.07.2019 OF THIS HONOURABLE COURT
IN W.P.(C)NO.9212/2019
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Annexure R1(k) TRUE COPY OF THE DAILY STATUS OF C.S.87/2023, COMMERCIAL COURT-2,
THIRUVANANTHAPURAM, DATED
26.07.2024, REOPENING THE INTERIM
APPLICATION AND POSTING THE CASE ON
30.07.2024, DOWNLOADED FROM THE
OFFICIAL WEBSITE OF THE DISTRICT
COURT, THIRUVANANTHAPURAM