A. Harikrishnan v. Registrar and Others — 1990 DIGILAW 859 (MAD)

Judgment :- GOVINDASAMY J. The petitioner has filed the above writ petition for issue of a writ of certiorari to call for the records relating to the order dated February 15, 1989, in Application No. 686 of 1989 in Execution Petition No. 73 of 1981 on the file of the High Court, Madras, in C. S. No. 1291 of 1981 on the file of the High Court of Bombay, pending before the official referee in so far as it relates to the sale of immovable property by auction as it contravenes the provisions of section 269UC and sub-section (2) of section 269UL of Chapter XX-C of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), and to quash the same. The second respondent instituted a suit, C. S. No. 1291 of 1981 on the file of the High Court of Bombay against one A. B. Ananthakrishnan, the father of the petitioner herein, for a sum of Rs. 7.40 lakhs and obtained decree on September 7, 1981. For the purpose of execution of the said decree, the decree was transferred to the High Court at Madras and numbered as Execution Petition No. 73 of 1981 on the file of the High Court at Madras in C. S. No. 1291 of 1981 (High Court at Bombay). During the pendency of the said execution petition, the said Ananthakrishnan died on January 22, 1982, and, consequently, all his legal representatives were brought on record. The said legal representatives appeared to have filed claim applications raising legal contentions and having been unsuccessful, the matter is stated to be pending on appeal, viz., O. S. A. Nos. 166 and 167 of 1987 on the file of this court. As there was no impediment for the decree-holder from proceeding with the execution proceedings, the petitioner, in order to prevent the decree-holder from proceeding further, filed W. P. No. 5146 of 1988 challenging the jurisdiction of the Master to execute the decree and also sought a declaration that rule 10(xxix) of Order 1 and rule 4(3) of Order I of the Original Side Rules of the High Court of Madras are ultra vires and unconstitutional in view of sections 37, 38 and 128 of the Code of Civil Procedure as they were framed by the High Court of Madras without any authority under law. Learned single judge of this court, by order dated July 18, 1988, dismissed the said writ petition. Aggrieved by the said decision, the petitioner filed W. A. Nos. 970 and 1333 of 1988 against the order in W. M. P. No. 8779 of 1988 in W. P. No. 5146 of 1988 and in W. P. No. 5146 of 1988. The Division Bench of this court, by order dated January 19, 1989, granted permission as prayed for in C. M. P. No. 15549 of 1988 and observed that it would be open to the first respondent in the said C. M. P. (the petitioner herein) to raise all objections except as to jurisdiction with reference to the execution including settlement of proclamation, etc., in other words, the execution petition could be continued before the learned single judge on the original side from the stage at which the matter stood then. With these observations, the writ appeals were disposed of In the meantime, the decree-holder appears to have filed Application No. 686 of 1989 in Execution Petition No. 73 of 1981 to fix a date for the sale of the property in Execution Petition No. 73 of 1981 through M/s. Murray and Co., on Sale Proclamation NO. 4 of 1983. The learned single judge of this court, by order dated February 15, 1989, after considering all the contentions put forward by both sides, directed the official referee to advertise the sale by inserting advertisements in one issue of the "Indian Express" in all its editions throughout the country; one issue of the "Times of India" at Bombay and one issue of the "Statesman" at Calcutta, that the publication should be made between March 15, 1989, and March 19, 1989, that the official referee should contact the respective newspapers sufficiently in advance so that the advertisements may be published positively between the dates mentioned therein and also permitted persons interested in the sale to circulate hand-bills at their own expense, advertising such sale and that the proclamation, settled as Proclamation Sale No. 4 of 1983, should be suitably amended and the advertisements which were directed to be issued were sufficient proclamation, etc. Thereafter, the petitioner filed S. L P. (Civil) No. (S) 2008 of 1989 on the file of the Supreme Court of India against the judgment and order dated January 19, 1989 in W. A. No. 970 of 1988 on the file of this court and the Supreme Court of India, by order dated March 20, 1990, passed the following order "1. An amount of Rs. 16 lakhs (rupees sixteen lakhs only) would be paid by the petitioner to the second respondent in full and final settlement of the decree and judgment in C. S. No. 1291 of 1981 (High Court of Bombay) dated September 7, 1981 2. Of the aforesaid amount of Rs. 16 lakhs, a total amount of Rs. 8 lakhs has been deposited by the petitioner in this Hon'ble Court and in modification of the orders dated February 5, 1990, the said amount shall be handed over to the second respondent by the Registrar of this court by a crossed a/c. payee D. D. in favour of the second respondent within week from today. The condition regarding furnishing of a bank guarantee is deleted 3. The balance amount of Rs. 8 lakhs shall be paid by the petitioner to the second respondent in two instalments of Rs. 4 lakhs each on or before April 30, 1990, and June 30, 1990, respectively, by way of crossed a/c. payee D. D. in favour of the second respondent 4. In the event of any default, the special leave petition will be dismissed without reference to the court." * It appears that the petitioner has not complied with the directions of this order. It is in these circumstances that the petitioner has filed the above writ petition seeking the aforesaid reliefs. The petitioner has stated that Chapter XX-C was introduced in the Act in the year 1986 and, by the introduction of Chapter XX-C into the Act the right of private sale under the Transfer of Property Act was also abrogated. Sub-clause (a) of section 269UA defines the term 'agreement for transfer' as an agreement for the transfer of immovable property within the meaning of sub-clause (d) of section 269UA, whether registered or not. It is stated that the agreement of sale for transfer is an essential ingredient in the matter of the ultimate purchase of immovable properties. Sub-clause (a) of section 269UA defines the term 'agreement for transfer' as an agreement for the transfer of immovable property within the meaning of sub-clause (d) of section 269UA, whether registered or not. It is stated that the agreement of sale for transfer is an essential ingredient in the matter of the ultimate purchase of immovable properties. Sections 269UB and 269UC lay down the means of purchase of immovable property, with reference to the duties and liabilities of the transferor, departmental procedures and establishment of an appropriate authority and to the vesting of property in Government. Section 269UC of Chapter XX-C imposed certain restrictions relating to the transfer of immovable property of the types defined in section 269UA(d) where the value of the property exceeds the prescribed limit. In fact, section 269UC lays down the restrictions on transfer of immovable properties. It is stated that the decree-holder, notwithstanding the rights which he acquires under the Civil Procedure Code to direct attachment of property to sale in execution of the decree, yet the attached property cannot be brought to sale as there is a ban under section 269UC of Chapter XX-C of the Act. It is also stated that the immovable property of the judgment-debtor cannot be sold or transferred in execution of a decree without the intervention of the Central Government's option to buy such property in the event of exercising their option to purchase the propertyMr. It is also stated that the immovable property of the judgment-debtor cannot be sold or transferred in execution of a decree without the intervention of the Central Government's option to buy such property in the event of exercising their option to purchase the propertyMr. R. Parthasarathy, learned counsel for the petitioner, contended that, in view of the restrictions contained in section 269UC and section 269UL in Chapter XX-C of the Act, the second respondent herein who is the decree-holder in E. P. No. 73 of 1981 cannot bring the immovable property belonging to the petitioner who is the judgment-debtor to sale by auction pursuant to the orders passed under the relevant provisions of Order 21 of the Civil Procedure Code relating to the execution of the decree as the same is prohibited under the provisions of section 269UC and section 269UL in Chapter XX-C of the Act, unless the appropriate authority had agreed to purchase the immovable property or had issued the certificate as required under section 269UL of the said Act to the effect that it had no objection to the sale or transfer of the immovable property and since, in the instant case, none of these have been complied with, the sale of immovable property is illegal and null and void. It is also contended that, if the decree-holder is allowed to proceed with the sale by auction, he shall be liable to be punished for contravening the provisions of section 276AB of the Act. On notice from the court, Mr. J. Jayaraman and Mr. N.V. Balasubramaniam, standing counsel for the Department, appeared on behalf of the third responded. Considering the above contentions and the relevant provisions of the Act, it is manifest from section 269UC of the Act that, notwithstanding anything contained in the Transfer of Property Act or in any other law for the time being in force, no transfer of any immovable property of value exceeding rupees ten lakhs shall be effected except after an agreement for transfer is entered into between the person who intends transferring the immovable property and the person to whom it is proposed to be transferred in accordance with the provisions of sub-section (2) at least three months before the intended date of transfer. Sub-section (2) of section 269UC of the Act provides that the agreement shall be reduced to writing in the form of a statement by each of the parties to such transfer or by any of the parties to such transfer acting on behalf of himself and on behalf of the other parties. It may be relevant to consider section 269UL of the Act which provides that, notwithstanding anything contained in any other law for the time being in force, no registering officer appointed under the Registration Act, 1908 (16 of 1908), shall register any document which purports to transfer immovable property exceeding the value prescribed under section 269UC unless a certificate from the appropriate authority that it has no objection to the transfer of such property for an amount equal to the apparent consideration, etc., is furnished. In so far as section 269UL of the Act is concerned, it may be stated that such provision cannot be made applicable to court auction sales, which does not require any registration at all. In so far as section 269UC of the Act is concerned, it is clear that no transfer of any immovable property the value of which exceed rupees ten lakhs shall be effected except after an agreement for transfer is entered into between the person who intends transferring the immovable property and the person to whom it is proposed to be transferred. In so far as this particular provision is concerned, the petitioner, being a judgment-debtor, cannot be construed as a person who intends transferring the immovable property ; nor is he a party to the agreement for transfer and further, unless the sale is confirmed in favour of the highest bidder, no one can contemplate as to who would be the proposed transfereeIt may also be considered that in a court auction sale, no one can contemplate that there would be an agreement of sale as contemplated under section 269UC of the Act. The judgment-debtor can never be an agreement holder by reason of the fact that his property is being compulsorily brought to sale by auction only at the instance of the decree-holder and that the judgment-debtor who is not a willing seller is not a party to any agreement and that there is no agreement at all in so far as the judgment debtor is concerned. While so, the petitioner cannot have any apprehension with reference to the non-compliance with the provisions contained in Chapter XX-C of the Act. On considering the provisions contained in section 269UC of the Act, it is hardly possible to follow the procedure prescribed in Chapter XX-C of the Act in so far as the court auction sale is concerned. While it is so, section 269UC of the Act, as it is, cannot be made applicable in so far as the court auction sale is concerned and section 269UL of the Act also will not apply in so far as the court auction sale is concerned. It is in these circumstances that the contention put forward by learned counsel for the petitioner cannot be said to be sustainable. Having regard to the chequered career of the case, it is manifest that the instant proceedings appear to have been instituted to prolong the proceedings so as to defeat the second respondent from obtaining the fruits of the decree. Even at the time when the petitioner filed W. P. No. 5146 of 1988, Chapter XX-C of the Act was in the statute book. The petitioner ought and might have raised and asked for similar reliefs in the above writ petition. Having failed to do so, the petitioner is not entitled to seek for the relief as prayed for in this writ petition. In these circumstances there are no merits in the above case warranting interference by this court with the impugned proceedingsIn the result, the writ petition fails and is dismissed. No costs.