V. P. Mariappan v. Inspector General of Registration, Chennai and Others
2007-08-16
K.CHANDRU
body2007
DigiLaw.ai
Judgment : The prayer in the writ petition is for quashing the letter dated 2.7.2004 issued by the first respondent, Inspector General of Registration, Chennai-28. 2. By the said communication dated 2.7.2004 the first respondent informed that the action taken by the Sub-Registrar, Tuticorin (the second respondent herein) was in terms of the Indian Registration Act and if the petitioner is aggrieved he can move the Civil Court for getting appropriate relief. The said order came to be passed on a representation made by the petitioner dated 19.1.2004. 3. The grievance of the petitioner is that the 3rd respondent had borrowed a sum of Rs. 1,45,000/-during the year 1997. Payments were made by way of Cheques. But when the amount was sought to be returned by a Cheque by the third respondent; the said cheque was returned by the Bankers on the ground of ‘insufficiency of funds‘. Thereafter, the petitioner had preferred a criminal complaint before the Judicial Magistrate Court No.-2, Thoothukudi in C.C. No. 463 of 1997 under Section 138 of Negotiable Instruments Act. 4. The trial Court found that the 3rd respondent the guilty and imposed a sentence of 6 months imprisonment and Rs.5,000/- as fine. After paying the fine amount, the 3rd respondent had filed an appeal before the District Court, Thoothukudi. During the pendency of the Criminal Appeal, the 3rd respondent came for a compromise and executed a mortgage deed in favour of the petitioner. The said mortgage was registered as Deed No. 2926 of 2002. On the basis of the said compromise, the criminal case was compounded and the 3rd respondent was let off. 5. However, without notice to the writ petitioner, the third respondent cancelled the mortgage deed by document No. 393 of 2003. It was the contention of the petitioner that without repaying the loan amount received from the petitioner, the third respondent cannot unilaterally cancel the mortgage deed and while registering the document No. 393 of 2003 the second respondent Sub-Registrar ought to have given notice to the petitioner. 6. In respect of a registered mortgage as the mortgaged amount had not been repaid, the mortgager cannot cancel the mortgage without getting appropriate Court orders.
6. In respect of a registered mortgage as the mortgaged amount had not been repaid, the mortgager cannot cancel the mortgage without getting appropriate Court orders. Therefore, he complained to the first respondent against the conduct of the second respondent in cancelling a registered mortgage unilaterally and that too, at the instance of the 3rd respondent who was found guilty by the criminal Court. 7. A document for which registration is compulsory is provided under Section 17 of the Registration Act, 1908. In that provision there is no requirement that in case of cancellation of a mortgage, the signature of the mortgagee also must also to be subscribed in the document. Therefore, when a document is presented to the Sub-Registrar (second respondent) he had registered the same and he is not responsible for the consequences of such a registration. 8. In fact, the 3rd respondent by cancelling the registration cannot get out of his liability to make payments if it is otherwise due to the writ is purely a dispute of Civil nature between the petitioner and the 3rd respondent and the Officer of the Registration Department do not come into the picture. 9. However, Mr. R. Subramanian, the learned counsel for the petitioner submitted that it is not as if the Registration Department is powerless and after introduction of Section 34-A to Registration Act, 1908, they have the power to seek for signature of the mortgagee in the documents to be registered, Section 34-A reads as follows: 34-A. A Person claiming under document for sale of property also to sign document- Subject to the provisions of this Act, no document for sale of property shall be registered under, this Act, unless the person claiming under the document has also signed such document. 10. The Provision of law which is referred to by the learned counsel for the petitioner talks about the deed of Sale of property to be signed by both sides and there is no reference to any mortgage. However, the learned counsel for the petitioner submitted that this Court must indulge in judicial engineering by giving wider definition of the word ‘Sale‘ so as to include mortgage within the meaning of the term ‘Sale‘. I am afraid that such a course of action is not open to the Court and the Court, cannot indulge in semantic luxuries. 11.
However, the learned counsel for the petitioner submitted that this Court must indulge in judicial engineering by giving wider definition of the word ‘Sale‘ so as to include mortgage within the meaning of the term ‘Sale‘. I am afraid that such a course of action is not open to the Court and the Court, cannot indulge in semantic luxuries. 11. The word sale‘ as stated under Section 34-A has got a definite connotation and by no stretch of, imagination it can be expanded to include all types of transactions including a mortgage. This Courts power to interpret in the name of Judicial review and introduce new texts into a legislation is impermissible. On a self-restraint, this Court is unable to accept the plea of the learned counsel for the petitioner. Once again it should, be emphasised that the Court is not a third Chamber to enact new laws and its role is limited to interpret the laws in accordance with the Constitution. 12. Under these circumstances, there is nothing wrong in the communication sent by the Inspector General of Registration, Chennai-28, the first respondent herein. Therefore, the writ petition is misconceived and will stand dismissed. No costs. However, this will not prevent the petitioner from instituting appropriate proceedings against the 3rd respondent.