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2010 DIGILAW 894 (CAL)

M/s Hotel Sonar Bangla v. The State Bank of India

2010-07-30

SYAMAL KANTI CHAKRABARTI

body2010
Judgment :- Syamal Kanti Chakrabarti, J.: 1. The writ petitioner M/s. Hotel Sonar Bangla (Digha), a partnership firm claims in W.P. No. 25701(W) of 2007, inter alia, that the respondent no. 3 Amitava Basu was the owner of Hotel Omega at Barrister Colony, Digha. In terms of a letter dated 04.12.2006 the said respondent no. 3 agreed to sell the said hotel at a consideration of Rs. 70,00,000/- on condition that the petitioner firm will liquidate a loan of Rs. 50,00,000/-taken by the respondent no. 3 from the proforma respondent no. 4, Balagaria Central Cooperative Bank Limited, Digha Branch against mortgage of the said hotel and the balance amount of Rs. 20,00,000/- shall be paid to the said respondent no. 3 of which Rs. 10,00,000/- is to be paid in advance and the balance Rs. 10,00,000/- at or before registration of the said property. 2. Thereafter, the petitioner firm negotiated with the respondent no. 4 Balagaria Cooperative Bank Limited, Digha Branch for obtaining a fresh loan of Rs. 50,00,000/- in the name of the petitioner firm and in letter dated 10th December, 2006 has clearly stated that the said loan was sought for to purchase the said hotel on 11.12.2006. The petitioner firm also approached the Chairman of the said cooperative bank to issue a ‘no objection certificate’ from the said bank for disposal of the said hotel in their favour by the respondent no. 3. 3. Thereafter the petitioner firm entered into an agreement for sale with the respondent no. 3 and the agreement for sale dated 12.12.2006 was registered at the office of the Additional District Sub-Registrar, Ramnagar, Purba Medinipur. 4. In the mean time the proforma respondent no. 4 sanctioned the loan of Rs. 50,00,000/- in their communication dated 15.01.2007 and in their letter dated 08.02.2007 has further informed that the sanction was made by way of long term house building loan for purchase of the said hotel and requested the petitioner firm to arrange for execution of a sale deed in favour of the petitioner firm. 5. Thereafter the respondent no. 3 was reluctant to execute the sale deed and as such, the proforma respondent no. 4 in their letter dated 26.02.2007 directed the respondent no. 5. Thereafter the respondent no. 3 was reluctant to execute the sale deed and as such, the proforma respondent no. 4 in their letter dated 26.02.2007 directed the respondent no. 3 either to repay the loan or arrange registration in favour of the petitioner firm within 08.03.2007 in default the term deposit in lien to the interest of loan account was to be adjusted. Thereafter, the respondent no. 3 informed the proforma respondent no. 4 in his letter dated 26.02.2007 that he had already instructed Hotel Sonar Bangla (Digha) to take care of the said loan account by adjusting the entire loan amount against consideration for the said purchase by the partnership firm. Thereafter, the petitioner firm became owner, proprietor and occupier of the said Hotel Omega since renamed as “Hotel Songar Bangla (Digha)” by virtue of a registered sale deed dated 30.03.2007 which was registered on 05.04.2007 at the office of the Additional District Sub Registrar, Ramnagar, Purba Medinipur recorded in Book No. 1, Volume No. 18, Pages 76 to 93 being No. 506 for the year 2007. Accordingly the petitioner is running the said Hotel Sonar Bangla (Digha) being absolute owner and possessor of the same which is under mortgage to the proforma respondent no. 4 against their loan of Rs. 50,00,000/-. 6. Suddenly the petitioner firm came to know publication of notice of possession cum sale of immovable property by tender cum public auction issued by the authorised officer of the State Bank of India, defendant no. 1 published in The Statesman on 12.11.2007 purported to be a notice under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and the Security Interest (Enforcement) Rules, 2002. In the said notice the proposed sale has been shown as Hotel Omega (Digha) which is in fact the Hotel Sonar Bangla (Digha). In fact the petitioner did not take any loan from the State Bank of India in respect of the said Hotel Sonar Bangla comprising of land measuring 6 cottah 14 square feet with five storied building thereon within Mouza Gobindo Basan, Khatian No. 26/1, L. R. Plot No. 240/343 under Digha Police Station. So they issued a demand notice for justice dated 20.11.2007 addressed to the Deputy General Manager, Statessed Assets Resolution Centre, i.e., the respondent no. 2 herein, contending inter alia, that the respondent no. So they issued a demand notice for justice dated 20.11.2007 addressed to the Deputy General Manager, Statessed Assets Resolution Centre, i.e., the respondent no. 2 herein, contending inter alia, that the respondent no. 3 Amitava Basu had induced the State Bank of India to grant him a loan against the said property on the basis of forged documents/ misrepresentations and, therefore, the remedy of the State Bank of India against any such purported loan was against the person or property of the said Amitava Basu and not the property of the petitioner firm. It is further claimed therein that fraud vitiates everything and no enforceable right arises therefrom and the provisions of the said SRFAESI Act, 2002 is not at all applicable in this case. Similarly the proforma respondent no. 4 also addressed a letter dated 26.11.2007 to the respondent no. 2 requesting them to refrain from further proceeding with that tender cum public auction since the same property with building had been mortgaged to the proforma respondent no. 4 on the date of purchase thereof by the petitioner firm. But the respondent no. 2 have failed and/or neglected to consider their above representation and as such, have approached this Court with prayer for issuing a writ in the nature of Mandamus setting aside quashing their notice under Section 13(2)/ 13(4) of the SRFAESI Act, 2002 as published in The Statesman on 12.11.2007 (annexure P-9) and to issue a direction in the nature of Prohibition against the respondent no. 2 and from acting in any manner or any further manner on the basis of the said notice dated 12.11.2007 and to issue direction restraining the respondent bank authorities from interfering in any manner whatsoever, with the possession/occupation or business of the said hotel with the petitioner in any manner other than in accordance with law. 7. The defence case of pro-respondent no. 4, Balagaria Central Cooperative Bank Limited is the outcome of another writ petition being W. P. No. 7430(W) of 2008. In the said writ petition the Balagaria Central Cooperative Bank Limited being petitioner has claimed that the respondent no. 3, Sri Amitava Basu and Smt. Jhulan Basu, the respondent no. 4 herein, sought for financial assistance to the tune of Rs. 60,00,000/-before the Digha Branch on 4th September, 2004 for the purpose of purchasing Hotel Omega at Digha with land and standing structure. 3, Sri Amitava Basu and Smt. Jhulan Basu, the respondent no. 4 herein, sought for financial assistance to the tune of Rs. 60,00,000/-before the Digha Branch on 4th September, 2004 for the purpose of purchasing Hotel Omega at Digha with land and standing structure. After due enquiry a ‘No Due certificate’ was issued by the State Bank of India, Digha Branch and United Bank of India, Digha Branch and so they sanctioned primarily a sum of Rs. 45,00,000/- on 6th January, 2005 in favour of the respondent nos. 3 and 4. They subsequently applied for enhancement of the loan and at a meeting of the Loan Investment Committee of the petitioner bank held on 26.06.2005 further amount of Rs. 5,00,000/- was also sanctioned and communicated on 01.07.2005. With the said total sum of Rs. 50,00,000/- the respondent nos. 3 and 4 purchased M/s. Omega Resorts Private Limited by a sale deed executed and registered on 03.08.2005 at the office of Additional District Sub Registrar, Ramnagar, District Purba Medinipore. The said deed was mortgaged in favour of the petitioner Cooperative Bank on 03.08.2005 by mortgage deed No. 678 dated 03.08.2005 executed by Amitava Basu and thereafter the said loan of Rs. 50,00,000/- was released in favour of the respondent nos. 3 and 4 with the execution of Bandhaki Khat, Deed of Hypothecation, Letter of Guarantee, Promissory Note, Power of Attorney, Letter of Continuity, Letter of Lien, Security Delivery Letter, affidavit etc. 8. It is their further case that the respondent nos. 3 and 4 failed to repay the loan instalments in due time which was outstanding on 5th April, 2007. Thereafter, the respondent nos. 3 and 4 proposed to sell the said property to M/s. Hotel Sonar Bangla, the petitioner in the first writ petition. The partners of M/s. Hotel Sonar Bangla prayed for loan to the tune of Rs. 50,00,000/- to the Digha Branch of the petitioner on 10th December, 2006 for the purpose of purchasing the said Hotel Omega at Digha. The loan was sanctioned by the Bank in its Loan Committee meeting held on 15th December, 2007. On 5th April, 2007 the respondent nos. 3 and 4 executed a registered deed of sale being no. 506 of 2007 at the same office of Additional District Sub Registrar, Ramnagar, Purba Medinipore and transferred the said property in favour of M/s. Hotel Sonar Bangla. On 5th April, 2007 the respondent nos. 3 and 4 executed a registered deed of sale being no. 506 of 2007 at the same office of Additional District Sub Registrar, Ramnagar, Purba Medinipore and transferred the said property in favour of M/s. Hotel Sonar Bangla. Then the loan released by bank to M/s. Hotel Sonar Bangla on 5th April, 2007 and the said loan account was adjusted with the loan account of respondent nos. 3 and 4 by way of transfer on 05.04.2007 which will be reflected in their loan ledger book (P – 7). The said Ledger reflects that Loan Account No. 178863 of respondent Nos. 3 and 4 was closed on 05.04.2007 on payment of Rs. 50,00,000/-including interest. 9. It is their further case that M/s. Hotel Sonar Bangla again mortgaged the said land and building of Hotel Omega in favour of the petitioner Cooperative Bank on 5th April, 2007. 10. Further, the original sale deed being no. 2736 dated 03.08.2005 executed by Shri Pradip Kumar Tat on behalf of Omega Resorts Private Limited in favour of respondent nos. 3 and 4 and the mortgaged deed executed by the respondent nos. 3 in favour of the petitioner Balagaria Central Cooperative Bank Limited, and the original sale deed executed by respondent nos. 3 and 4 being no. 506 of 2007 in favour of M/s. Hotel Sonar Bangla, first original receipt etc. were in the custody of the petitioner from 03.08.2005 to 05.04.2007 and as such the property would be treated as mortgaged property subsisting with the petitioner during the period from 03.08.2005 to 05.04.2007. 11. It is further case of the petitioner bank that a hypothecation plate was affixed to the wall of the Hotel Omega from 3rd August, 2005 to 5th April, 2007 as per prevailing practice to show that the land and building of the Hotel Omega were mortgaged to the petitioner during the said period. 12. It is their further case that the State Bank of India advanced loan to the respondent no. 3, on mortgage of Hotel Omega without taking adequate precaution of inspecting the property in question where the hypothecation plate was displayed showing that the property was already mortgaged to Balagaria Central Cooperative Bank. 12. It is their further case that the State Bank of India advanced loan to the respondent no. 3, on mortgage of Hotel Omega without taking adequate precaution of inspecting the property in question where the hypothecation plate was displayed showing that the property was already mortgaged to Balagaria Central Cooperative Bank. On the contrary there was no display of hypothecation plate of the State Bank of India on the wall of Hotel Omega as required under Clause ‘P’ of the terms and conditions at Annexure (II) for obtaining loan and contrary to the doctrine of caveat emptor. Therefore, such loan transaction is a nodal factum and not enforceable against the petitioner cooperative bank. 13. It is further contended that the petitioner is a cooperative bank constituted and governed by the West Bengal Cooperative Societies Act, 1983 read with Banking Regulations Act, 1949 and as such it will not be governed and come under the purview of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 or by the Debt Recovery Act. Rather in accordance with provisions contained in Section 176 of the Contract Act in respect of secured property to the cooperative bank, the cooperative bank can sell the property for realisation of its loan. 14. It is their further case that the relationship between M/s. Hotel Sonar Bangla and the petitioner bank is one of borrower and creditor under the provisions of Cooperative Societies Act and if the State Bank of India is allowed to dispose of the said property for realisation of the loan amount the right of the petitioner cooperative bank will be defeated by operation of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and that Section 143 of the West Bengal Cooperative Societies Act, 1983 has an overriding effect upon all laws in the state of West Bengal. Therefore, the notice dated 12.11.2007 published by the respondent nos. 1 and 2 under Sections 13(2) and 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 is unlawful and the proceeding is liable to be quashed and the respondents should be restrained from giving any effect to such notice. 15. Therefore, the notice dated 12.11.2007 published by the respondent nos. 1 and 2 under Sections 13(2) and 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 is unlawful and the proceeding is liable to be quashed and the respondents should be restrained from giving any effect to such notice. 15. Cases relied upon by the petitioners, Balagaria Central Cooperative Bank Limited are noted below: i) AIR 1996 SC 2594 (Paragraph 20); ii) 2007(6) SCC 236 (Paragraphs 52 and 97); iii) 2008(1) SCC 560 ; iv) 2007(9) SCC 109 (Paragraphs 15 and 24); v) 2008(9) SCC 377 (Paragraphs 26 and 28); vi) 2005(5) SCC 632 (Paragraphs 21 and 22); vii) 2004(3) SCC 553 ; viii) 2009 CHN 551 ; ix) 1999(4) SCC 43 (Paragraph 6); x) 2007(7) SCC 120 (Paragraph 21); xi) 2009(1) SCC 193 ; xii) 2007(6) SCC 236 ; xiii) AIR 1998 (Rajasthan) 100; xiv) AIR 1998 (SC) 103; xv) 2005(12) SCC 77 (Paragraph 61); xvi) 2005(5) SCC 232. 16. Cases relied upon by the State Bank of India (Dhakuria Branch) are also furnished below: i) 2004(4) SCC 311 (Paragraphs 33, 80 and 81); ii) (2008) 1 SCC 125 (Paragraph 37 and 69); iii) AIR 2007 (Mad) 148 (Paragraph 9); iv) AIR 2007 (Kerala) 114 (Paragraphs 5 and 6); v) AIR 2007 (Karnataka) 125 (Paragraph 17); vi) AIR 2007 (Gujrat) 126 (Paragraph 6); vii) AIR 2008 (Kerala) 137 (Paragraph 7 and 8); viii) (2007) 6 SCC 236 (Paragraph ); ix) AIR 2008 SC 1339 (Paragraph 10); x) AIR 1962 SC 1044 (Paragraph 5); xi) 2006(4) SCC 501 (Paragraphs 12 and 13); xii) 2006(4) SCC 696 (Paragraph 42); xiii) 2003(8) SCC 639 (Paragraph 10 relied); xiv) 2007(6) SCC 44 (Paragraphs 11, 14, 15 and 16); xv) 2007(9) SCC 461 (Paragraph 9 and 10); xvi) AIR 1997 SC 1041 (Paragraph 14); xvii) 2007(10) SCC 635 (Paragraph 10 and 11); xviii) 2002(4) SCC 275 (Paragraph12, 13 and 14); xix) 2002(8) SCC 182 (Paragraphs 14, 16, 20, 30, 40 and 41). 17. Cases relied upon by Hotel Sonar Bangla are given below: i) AIR 2008 (Kerala) 114; ii) 2007(6) SCC 44 ; iii) 2007(6) SCC 236 (Paragraph 39); iv) AIR 1998 (Rajasthan) 100 (Paragraph 13); v) AIR 2007 (Mad) 148 ; vi) 2007(10) SCC 188 (Paragraph 12); vii) 2004(3) SCC 553 (Paragraphs 16, 19 and 51); viii) AIR 1967 SC 69; ix) 2010(1) SCC 135 . 18. On the backdrop of above factual matrix and averments made by the contending parties the following points need be considered by this Court: (a) Whether the writ petitions are maintainable in law? (b) Where the owner of an immovable property while transferring the same to the vendor on receipt of consideration executes two sale deeds for single transaction and obtains two registered sale deeds in respect of same property which sale deed shall be treated as valid and operative and from what point of time? (c) If such person using two such registered sale deeds in respect of same property obtains loan from two financial institutions by mortgaging such property by deposit of both the sale deeds, which financial institution will be entitled to sell such property, if needed, for realisation of all outstanding dues from the borrower? 19. Against the above factual matrix the question of maintainability of the writ petition is to be decided first. Learned lawyer for the State Bank of India has submitted that the alleged dispute raised in respect of the same disputed property claimed to have been mortgaged with the Cooperative Bank or the State Bank of India, as the case may be, is nothing but civil dispute in nature questioning the right, title and interest over the said property in question which cannot be decided by this Court in its writ jurisdiction. The second contention is that the deposit of the title deed made to the bank by way of security to obtain loan on a particular date is a pure question of fact which also cannot be decided by this Court in its writ jurisdiction. The third contention is that once the bank has taken possession of the security under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and took steps for recovery of the outstanding dues (NPA) by sale of the mortgaged property under Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 the Cooperative Bank cannot interfere by seeking remedy under Article 226 of the Constitution because alternative remedy to an aggrieved loanee is available before the specific authority, i.e., the Debts Recovery Tribunal under Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The fourth contention is that the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 has overriding effect upon local laws like the Cooperative Societies Act and as such no remedy is available under the writ jurisdiction. Learned lawyer representing the Cooperative Bank on the contrary has refuted such argument and claimed that though all disputed question of fact cannot be considered by the Writ Court yet in a given circumstance such question can also be looked into by the writ Court. He has relied upon the principle laid down in AIR 1962 SC 1044 (Calcutta Gas Company (Proprietor Limited), Appellant –Versus-State of West Bengal and Ors., Respondents). It has been postulated therein that Article 226 confers a very wide power of the High Court to issue directions and writs of the nature mentioned therein for the enforcement of any of the rights conferred by Part III or for any other purpose. It is, therefore, clear that persons other than those claiming fundamental rights can also approach the High Court seeking a relief thereunder. In the instant case the Cooperative Bank has advanced the loan against mortgage of the property by deposit of title deed and thereby has acquired a legally enforceable right to recover outstanding dues by sale of the mortgaged property and, therefore, the Writ Court can interfere if such right is affected by any authority without prima-facie legal right. It has also been set at rest in ABL International Limited and Anr. –Versus- Export Credit Guarantee Corporation of India Limited and Ors. (2004) 3 SCC 553 that in an appropriate case the Writ Court has jurisdiction to entertain writ petition involving disputed question of fact and there is no absolute bar in regard thereto. It is further held by the Hon’ble Apex Court that a writ petition involving serious disputed question of facts which requires consideration of evidence which is not on record will not normally be entertained under Article 226 of the Constitution. But whether question of fact pertaining to the interpretation/ meaning of documents or part(s) thereof are involved the Courts can very well go into the same and decide the objection if facts permit. Merely because one of the parties wants to dispute the meaning of a document or part thereof would not make it a disputed fact. But whether question of fact pertaining to the interpretation/ meaning of documents or part(s) thereof are involved the Courts can very well go into the same and decide the objection if facts permit. Merely because one of the parties wants to dispute the meaning of a document or part thereof would not make it a disputed fact. To be precise in the instant case the Balagaria Central Cooperative Bank is claiming that against deposit of title deed they have advanced the loan first and the property mortgaged cannot be sold by the State Bank of India who subsequently granted loan against deposit of so called void title deed. Both the original title deeds have been placed before this Court for perusal and the recital of those deeds, its execution etc. are all on record which requires interpretation to identify the genuineness of the document which confers legal right upon the borrower institution to acquire and dispose of such mortgaged property. Relying upon the above principles I can safely hold that in the instant case interpretation and meaning of the recital of two instruments placed before this Writ Court is now required to be made to hold which one has been acted upon at the first instance thereby making the other one a mere paper transaction at a subsequent stage of production of the same document whose registration is incomplete for securing loan by suppressing the material fact of prior mortgage. Therefore, there is no serious disputed question of fact involved in the contending claims of the parties which is beyond the jurisdiction of this Writ Court to decide. From this point of view I hold that the instant writ application is maintainable in law. 20. Two other grounds agitated before me by the contending parties relates to the maintainability of the suit which is palpably barred under Section 17 of the SARFAESI Act, 2002. Another ground is that the Balagaria Central Cooperative Bank has no legal basis since the said SARFAESI Act, 2002 is enacted by the Parliament on the specific matter incorporated in the Union List in the VIIth schedule of the Constitution and as such under provisions of the Article 252(2) of the Constitution of India the West Bengal Cooperative Societies Act, 1983 will not prevail upon the central act. I have carefully gone through the rulings cited by both the parties in support of the above contentions as mentioned above. The findings of the Hon’ble Court on this point rest on the presumption that there was deposit of valid title deed at the time of granting loan by mortgage of the property. In the instant case the dispute relates to the validity of the title deed which has been mortgaged by the same person taking loan from two different borrowers suppressing the fact of first mortgage. Therefore, I hold that these points are not relevant for the purpose of determining the merit of these writ petitions which in my opinion are maintainable on the ground already stated above. 21. The respondent no. 1, State Bank of India has contended in their affidavit that for the purpose of running its business under the name and style of M/s. Hotel Sonar Bangla at Digha, the respondent no. 3 submitted an application dated 8th November, 2005 to their Dhakuria Branch for sanction of credit facility under the scheme of Term Loan (Mortgage) to the extent of Rs.52,00,000/- only. The same was granted and communicated to him on 7th December, 2005 on the basis of security interest created in its favour by way of mortgage and/or charge in respect of immovable property being the land measuring 6 Cottas 14 Square feet together with a five storied building known as Hotel Omega under Gobinda Basan Mouza, P.S. Digha upon execution of several documents. The respondent no. 3 accepted the said credit facility by a letter dated 8th December, 2005 confirming the creation of such mortgage. Thereafter it failed and neglected to repay the outstanding dues of the said Dhakuria Branch and his wife the respondent no. 4 being guarantor also failed to make repayment of the outstanding dues and to regularise the said loan account. Therefore, the respondent no. 1 was compelled to classify the said loan account of the respondent no. 3 as non-performing assets on 28th February, 2007 as per Reserve Bank of India’s Guideline. On 3rd August, 2007 the authorised officer of respondent no. 1 issued a notice upon the respondent no. Therefore, the respondent no. 1 was compelled to classify the said loan account of the respondent no. 3 as non-performing assets on 28th February, 2007 as per Reserve Bank of India’s Guideline. On 3rd August, 2007 the authorised officer of respondent no. 1 issued a notice upon the respondent no. 3 and his wife demanding payment of the entire outstanding dues of the Dhakuria Branch under sub-Section (2) of Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 demanding a total sum of Rs. 54,27,992.86 with accrued interest thereon as on 20th February, 2007 within 60 days from the date of receipt of the said notice. The notice was duly received by the respondent no. 3 and his wife on 7th August, 2007 but they remained silent. Therefore, the authorised officer of the respondent no. 1 subsequently had taken possession of the secured assets and further issued a notice on 4th October, 2007 under sub-Section 4 of Section 3 of the said Act. He also issued a notice of possession/ claim of the said mortgaged property by tender/ public auction in the daily newspaper (Statesman, Kolkata Edition) on 12th November, 2007 inviting bids from intending buyers for the sale of aforesaid mortgaged property. The tender bids were required to be opened on 15th December, 2007 at 11 a.m. 22. It is further case of the State Bank of India, the respondent no. 1 that on or about 30th November, 2007 M/s. Hotel Sonar Bangla filed a writ petition being W. P. No. 25701(W) of 2007 challenging the said notice published by the respondent no. 1 on 12.11.2007. On 4th December, 2007 the respondent no. 1 was directed by the Hon’ble Court to refrain from selling away or encumbering the said property in question for a specific period. Against the said order the respondent no. 1 preferred an appeal with stay petition which was disposed of on 18.12.2007 and the Hon’ble Division Bench was pleased to modify the said order dated 4th December, 2007 to the extent that the writ petitioner will also be restrained from transferring and/or alternating and/or encumbering the property in question till disposal of the writ petition. 23. It is further contended that after expiry of the statutory period of limitation of 45 days provided in the Act of 2002 the respondent no. 23. It is further contended that after expiry of the statutory period of limitation of 45 days provided in the Act of 2002 the respondent no. 4, Balagaria Central Cooperative Limited filed another writ petition being W. P. No. 7430(W) of 2008 which has already been discussed above. 24. There is no denial that both the impugned registered sale deeds were executed on 03.08.2005 by and between the respondent no. 3 Amitava Basu and M/s. Omega Resorts Private Limited and presented for registration on the same date at 11:40 a.m. The genuineness of both the sale deeds relating to the same property against payment of single consideration has been called in question by the contending parties. Therefore, the recital and other features of both the deeds need be examined to determine the legal value of both the instruments relating to same property now claimed by the contending parties as mortgaged to them. Because both the banks have claimed that they released the loan against deposit of such title deed furnished by the borrower at the time of taking the loan. It is disputed how the same original deed can be deposited by the same person before two banks without liquidating the loans and getting back the original deeds so deposited by them to one bank at the time of first mortgage. 25. A comparative chart is prepared hereunder for the purpose of scrutinising the mode of execution and registration of both the instruments and use of the same for obtaining loan from two banks:- Sl. No. Features Deed furnished by State Bank of India Deed furnished by Balagaria Central Cooperative Bank Limited 1) Date of purchase of stamp paper 15.07.2005 20.07.2005 2) Name and address of the person who purchased the stamp paper Amitava Basu 19/1, Nabin Mukherjee Lane, P.S. Shibpur, Howrah 711102. Amitava Basu 19/1, Nabin Mukherjee Lane, Shibpur, Howrah 2. 3) Name of the stamp vendor Santosh Kumar Dey, Alipore Police Court, Kolkata 27. Santosh Kumar Dey, Alipore Police Court, Kolkata 27. 4) Serial No. of stamp papers sold 4228-4232 4959-4963 5) Nature of the deed executed Sale Deed Sale Deed 6) Name of the purchaser in whose favour the deed was executed Amitava Basu, son of Kalipada Basu, 19/1, Nabin Mukherjee Lane, P.S. Shibpur, Howrah 711102. Amitava Basu, son of Kalipada Basu, 19/1, Nabin Mukherjee Lane, P.S. Shibpur, Howrah 711102. 4) Serial No. of stamp papers sold 4228-4232 4959-4963 5) Nature of the deed executed Sale Deed Sale Deed 6) Name of the purchaser in whose favour the deed was executed Amitava Basu, son of Kalipada Basu, 19/1, Nabin Mukherjee Lane, P.S. Shibpur, Howrah 711102. Amitava Basu, son of Kalipada Basu, 19/1, Nabin Mukherjee Lane, P.S. Shibpur, Howrah 711102. 7) Name of vendor of the deed M/s. Omega Resorts Private Limited represented by its director Shri Pradip Kumar Tat. M/s. Omega Resorts Private Limited represented by its director Shri Pradip Kumar Tat. 8) Schedule of the property transferred All that piece and parcel of homested land measuring 6 cottah 14 square feet along with five storied building standing thereon along with the Hotel Omega. All that piece and parcel of homested land measuring 6 cottah 14 square feet along with five storied building standing thereon along with the Hotel Omega. 9) Date of execution of the deeds 3rd August, 2005 3rd August, 2005 10) Name of vendor who signed the deed Pradip Kumar Tat as director of Omega. Pradip Kumar Tat as director of Omega. 11) Printed number of the stamp papers on which the deed was written 391825, 391827 and 391832 of Rs. 1,000/-each. And 00AA329458 and 00AA329457 of Rs. 500/- each. 184750, 184751 and 185890 of Rs. 1,000/-each. And 00AA074923 and 00AA074929 of Rs. 500/- each. 12) Date and time of presentation of the deed for registration 3rd August, 2005 at 11:40 a.m. 3rd August, 2005 at 11:40 a.m. 13) Name of the person who presented the deed for registration Pradip Kumar Tat. Pradip Kumar Tat. 14) Deed No. 2736 of 05 2736 of 05 15) Book No. I I 16) Volume No. 94 94 17) Pages of the volume 55 to 70 55 to 70 18) The object of sale The Board of Directors decided to sell the land and building as also Hotel Omega with all its furniture, fixtures and fittings etc. at a consideration of Rs. 65,00,000/-. The Board of Directors decided to sell the land and building as also Hotel Omega with all its furniture, fixtures and fittings etc. at a consideration of Rs. 65,00,000/-. 19) Amount of earnest Rs. Rs. 27 money paid with date 15,00,000/- on 22.11.2004 by executing a indenture of agreement. 15,00,000/- on 22.11.2004 by executing a indenture of agreement. 20) Office of registration Additional District Sub-Registrar, Ramnagar. at a consideration of Rs. 65,00,000/-. 19) Amount of earnest Rs. Rs. 27 money paid with date 15,00,000/- on 22.11.2004 by executing a indenture of agreement. 15,00,000/- on 22.11.2004 by executing a indenture of agreement. 20) Office of registration Additional District Sub-Registrar, Ramnagar. Additional District Sub-Registrar, Ramnagar. 21) Name of witnesses who signed the deeds i) Girish Chandra Rout ii) Kalyan Chakraborty i) Girish Chandra Rout ii) Kalyan Chakraborty 22) Name of the Advocate who drafted the deed Mr. Amal Kumar Samanta (Enrollment No. WB1176 of 1981) Mr. Amal Kumar Samanta (Enrollment No. WB1176 of 1981) 23) Mode of payment of consideration Rs. 15,00,000/- by pay order dated 19.11.2004, Rs. 3,00,000/- by account payee cheque dated 02.12.2004, Rs. 2,00,000/-by account payee cheque dated 03.06.2005, Rs. 4,00,000/- by account payee cheque being no. 017874 dated Nil drawn upon United Bank of India, Canning Street Branch. Rs. 1,00,000/-by cash on 14.06.2005 and Rs. 40,00,000/- by pay order being nos. 619797 to 619800 and 152575 to 152576 and 694026 to 694027 dated 03.08.2005 (Total 8 pay orders of Rs. 5,00,000/- each drawn upon the West Bengal State Cooperative Bank Limited). Rs. 15,00,000/- by pay order dated 19.11.2004, Rs. 3,00,000/- by account payee cheque dated 02.12.2004, Rs. 2,00,000/-by account payee cheque dated 03.06.2005, Rs. 4,00,000/- by account payee cheque being no. 017874 dated Nil drawn upon United Bank of India, Canning Street Branch, Rs. 1,00,000/-by cash on 14.06.2005, Rs. 40,00,000/- by payment orders bearing nos. 619797 to 619800 and 044001 to 044004 dated 03.08.2005 (Total 8 pay orders of Rs. 5,00,000/-each drawn upon the West Bengal Cooperative Bank Limited). 24) Date of application for loan 08.11.2005 04.12.2004 25) Date of sanction of loan 07.12.2005 06.01.2005 26.06.2005 26) Date of deposit of this title deed for taking loan 08.12.2005 (confirmed the creation) 03.08.2005 26. What appears from the averments of the parties and the documents filed that both the State Bank of India and the Balagaria Central Cooperative Bank Limited have claimed that they have granted the loan to respondent no. What appears from the averments of the parties and the documents filed that both the State Bank of India and the Balagaria Central Cooperative Bank Limited have claimed that they have granted the loan to respondent no. 3 Amitava Basu against deposit of title deed in respect of the same property namely, Hotel Omega situated at Digha comprising an area of 6,714 square feet together with existing building in R. S. Plot No. 240 appertaining to R. S. Khatian No. 96 of Mouza Gobinda Basan , J. L. No. 89 under Padima – II Gram Panchayat which deed was executed by and between the same parties namely, Sree Amitava Basu and M/s. Omega Resorts Private Limited. Naturally the question arises how on the same date two sale deeds have been executed by the same parties in respect of the same property on payment of single consideration for the same purpose. 27. This had already received attention of the Hon’ble Division Bench comprising Hon’ble Justice Bhaskar Bhattacharya and the Hon’ble Justice Radrendra Nath Banerjee while their Lordships were disposing of Mandamus Appeal at the instance of the State Bank of India against order dated 04.12.2007 passed by a Learned Single Judge in A. S. T. 3149 of 2007 with A. S. T. 1056 of 2007. 28. While dealing with the matter their Lordships observed as follows: “ At the time of hearing of this mandamus appeal, both Mr. Routh and Mr. Basu, the learned counsel appearing on behalf of the appellants and the writ petitioner, respectively, produced before us the original Sale Deed executed by the vendor of the respondent no. 3 in favour of respondent no. 3. We are surprised to find that two identical original Sale Deeds executed on the self same date and registered with the same entry number and “being number” were placed before us. Mr. Bhuniya, the learned senior advocate, appearing on behalf of Co-operative Bank Ltd. supports Mr. Basu’s contention that his client had already returned back the title deed in favour of the writ petitioner after full payment of the mortgage money was made.” 29. But such argument cannot be accepted as gospel truth in view of production of two original sale deeds from the custody of the State Bank of India and the Balagaria Central Cooperative Bank Limited. But such argument cannot be accepted as gospel truth in view of production of two original sale deeds from the custody of the State Bank of India and the Balagaria Central Cooperative Bank Limited. So the genuineness of both the documents is virtually called in question in W. P. No. 7430(W) of 2008. It is admitted by the petitioner that by sale deed dated 30.07.2007 vendor Amitava Basu transferred the disputed property in favour of M/s. Hotel Sonar Bangla after payment of Rs. 50,00,000/- in his Loan Account No. 173863 by credit advice dated 05.04.2007 and his said loan account was closed. Thereafter Hotel Sonar Bangla took the loan of Rs. 50,00,000/- on 05.04.2007 by mortgaging the same property and a sum of Rs. 46,29,842/- was outstanding as on 28.12.2009 as per their Loan Ledger for which they are now opposing the sale of the said Hotel Omega since styled as Hotel Sonar Bangla. Thus, one such sale deed all along remained in custody of Balagaria Central Cooperative Bank since 03.08.2005. I have carefully gone through the two original sale deeds dated 3rd August, 2005 produced before this Court by the parties in support of their respective contentions. 30. In form and feature the same appears that one is the replica of the other as observed by the Hon’ble Division Bench cited above. But there are certain discrepancies. From the aforesaid comparative chart it may be noticed from item no. 1 that for the purpose of execution of two deeds stamp papers were purchased on different dates, i.e., 15.07.2005 and 20.07.2005 respectively from the same stamp vendor Santosh Kumar Dey of Alipore Police Court. Serial numbers of all the stamp papers are also different as would be evident from item no. 4, i.e., 4228-4232 and 49594963. From item no. 11 of the said list it will also appear that printed numbers of the stamp papers on which both the deeds were written relate to 391825, 391827 and 391832 of Rs. 1,000/- each and 00AA329458 and 00AA329457 of Rs. 500/- each in one deed and in the other deed the same was written on stamp papers bearing printed numbers 184750, 184751 and 185890 of Rs. 1,000/- each and 00AA074923 and 00AA074929 of Rs. 500/- each. From item nos. 1,000/- each and 00AA329458 and 00AA329457 of Rs. 500/- each in one deed and in the other deed the same was written on stamp papers bearing printed numbers 184750, 184751 and 185890 of Rs. 1,000/- each and 00AA074923 and 00AA074929 of Rs. 500/- each. From item nos. 12 to 17 it will also appear that both these original documents were presented for registration on 03.08.2005 at 11:40 a.m. by one Pradip Kr. Tat and both these deeds bear identical deed no. 2736 of 2005 in book no. 1, volume no. 94 under the same pages bearing no. 55 to 70. Therefore, from item no. 17 it will appear that on 03.08.2005 though two identical documents in respect of the same property were presented for registration only one has been entered into the volume in page nos. 55 to 70 and though the other was presented for registration the same page number has been assigned to it which is a matter of investigation but not the duty of the Writ Court to enquire into the same any further. 31. The consideration for both the deeds seem to be identical, i.e., Rs. 65,00,000/- but I have noticed some marked difference regarding mode of payment of consideration against item no. 23. Regarding denomination of the pay order issued by the West Bengal State Cooperative Bank Limited showing payment of Rs. 40,00,000/- on 03.08.2005 i.e., the date of execution and registration of the deed. In the one deed the denomination of such pay orders have been written as 619797 to 619800, 152575, 152576, 694026 and 694027 (8) and in the other deed it is shown that the said sum of Rs. 40,00,000/- was paid on 03.08.2005 by 8 pay orders namely, 619797 to 619800 and 044001 to 044004. In their averment both the parties have not denied execution and presentation for registration of the sale deeds by and between the parties in respect of the same property on the same date. The registration of a document is not complete unless it enters into the volume. 32. For the purposes of consideration the provisions laid down in Sections 60 and 61 of the Registration Act, 1908 are quoted below: “60. Certificate of registration. – (1) After such of the provisions of Secs. The registration of a document is not complete unless it enters into the volume. 32. For the purposes of consideration the provisions laid down in Sections 60 and 61 of the Registration Act, 1908 are quoted below: “60. Certificate of registration. – (1) After such of the provisions of Secs. 34, 35, 58 and 59 as apply to any document presented for registration have been complied with, the registering officer shall endorse thereon a certificate containing the word “registered”, together with the number and page of the book in which the document has been copies. (2) Such certificate shall be signed, sealed and dated by the registering officer, and shall then be admissible for the purpose of proving that the document has been duly registered in manner provided by this Act, and that the facts mentioned in the endorsements referred to in Sec. 59 have occurred as therein mentioned.” “61. Endorsement and certificate to be copied and document returned. – (1) The endorsements and certificate referred to and mentioned in Secs. 59 and 60 shall thereupon be copied into the margin of the register book and the copy of the map or plan (if any) mentioned in Sec. 21 shall be filed in Book No. 1. (2) The registration of the document shall thereupon be deemed complete, and the document shall then be returned to the person who presented the same for registration, or to such other person (if any) as he has nominated in writing in that behalf on the receipt mentioned in Sec. 52.” Therefore, under sub-Section (2) of Section 61 the registration of a document shall be deemed to be complete only when it will be copied in Book No. 1 and thereafter it will be returned to the person who presented the same for registration. The Division Bench of the Patna High Court in Mst. Momini Kuer Vs. Ramsaranlal (AIR 1957 P 545) observed after dealing with the provisions contained in Sections 34, 35, 52, 58 and 61 of the Act as follows” “From the above provisions of the Act, therefore, we gather that the registration of a document is deemed to be complete under Sec. 61(2) of the Act, only when the document has been copied into the margin of the Register Book as required under Section 61(1) of the Act. From the above scheme for the Act, therefore, there is no doubt that the registration of the document shall be deemed to be complete only when it is copied, and not otherwise.” 33. The same view has been taken by a Division Bench of the Mysore High Court in Sharnappa Vs. Pathru Saheb (AIR 1963 Mys. 335). It is observed therein that noncompliance with the provisions of Sections 60 and 61 could not be said to be merely defect in procedure but was a total violation of the provisions or requirements of the Act which made the registration of the document incomplete. Such a view is consistent with Article 97 of the Limitation Act which provides that in the case of a deed which is registered in the usual course, the date on which it is entered in the book is the date for which the limitation begins. ((AIR 1952 Pepsu 68) 34. So I hold that if two instruments are produced before a Court of law showing entry of only one document in the relevant volume of the registration office, the Court shall presume genuineness of the execution and registration of such document as complete which has entered into the volume. From the facts on record I find that of the two instruments one is incomplete inasmuch as entry of the same in relevant volume is concerned because two sale deeds cannot be recorded in the volume at same page nos. 55 to 70 as shown in Sl. No. 17 of the chart in paragraph 23 above. What appears to me is that those who have purchased the property intended to use two documents for the purpose of taking loan from different financial institutions suppressing the deposit of one of such title deeds by way of first mortgage. 35. Therefore, the next relevant question is to decide which bank granted the loan first and received the title deed in question as a guarantee for securing such loan by deposit of title deed. 36. From the comparative chart prepared under paragraph 22 above it will appear from item nos. 24 to 26 that on 04.12.2004 loan application was received from Amitava Basu by the Balagaria Central Cooperative Bank and they sanctioned the loan in two instalments on 06.01.2005 and 26.06.2005 respectively. The lonee deposited his title deed to this cooperative bank on 03.08.2005. 36. From the comparative chart prepared under paragraph 22 above it will appear from item nos. 24 to 26 that on 04.12.2004 loan application was received from Amitava Basu by the Balagaria Central Cooperative Bank and they sanctioned the loan in two instalments on 06.01.2005 and 26.06.2005 respectively. The lonee deposited his title deed to this cooperative bank on 03.08.2005. On the contrary the State Bank of India received loan application on 08.11.2005, sanctioned the same on 07.12.2005 and the second impression of the title deed in respect of the same property was deposited to them on 08.12.2005. From the averments of the contending parties it appears that they have furnished these dates in their averments and, therefore, it is apparently on the face of record that the Balagaria Central Cooperative Bank was first approached for sanction of the loan in respect of the Hotel Omega subsequently styled as Hotel Sonar Bangla. 37. From the above fact it will further appear that as soon as one of these title deeds has been deposited by way of security of the loan taken on 03.08.2005 from the Balagaria Central Cooperative Bank an encumbrance has been created upon the property in question and the sale deed has been acted upon. Needless to say that if one property is transferred by two different instruments by and between the same parties on the same date against single consideration and presented for registration the title to the suit property is transferred in favour of the purchaser by one deed only and creation of more than one instrument for such transaction cannot give any added benefit to the parties to such transaction in addition to the solitary passing of consideration and right, title and interest mentioned in the schedule to such instrument. Therefore, what matters most is to see how and which of such two instruments involving same property has been acted upon by the transferee after the date of such registration at what pint of time. 38. It appears that the title deed deposited to the Balagaria Central Cooperative Bank in respect of the disputed property was acted upon immediately after its execution and registration on 03.08.2005. 38. It appears that the title deed deposited to the Balagaria Central Cooperative Bank in respect of the disputed property was acted upon immediately after its execution and registration on 03.08.2005. As soon as one of such deeds is acted upon the other instrument relating to the transfer of the same property becomes a mere paper transaction on account of incomplete registration without transferring any right, title and interest in favour of any party because by virtue of acting upon one instrument such right, title and interest has been previously transferred in favour of one party. Therefore, unless the entire dues of Balagaria Central Cooperative Bank is paid in full and the mortgage of the property by deposit of title deed is released the owner cannot create any second charge upon the same property without the consent of the first mortgagee, i.e., Balagara Central Cooperative Bank and without liquidating the entire dues of the mortgagee. 39. The above view will be further fortified by subsequent event. Learned lawyer representing the Balagaria Central Cooperative Bank has drawn my attention to the certified copy of the deed deposited in their favour and issued from time to time by registering authority. It appears that whenever any application is made before the registering authority for issuing certified copy of the impugned deed dated 03.08.2005 the issuing authority is generating copy of the same from the deed no. 2736 which has been entered into their volume no. 94 from page nos. 55 to 70 and which was written on stamp paper nos. 184750, 184751, 185890, 00AA074923 and 00AA074929 which were purchased on 20.07.2005. This shows that after presentation of two identical sale deeds for registration, one was accepted by the registering authority for entering and recording in their volume as required under Section 60(2) of the Registration Act. 40. From the documents filed it also appears that in course of making the averment to the State Bank of India for loan on 8th November, 2005 under the scheme of Term Loan (Mortgage) to the extent of Rs. 52,00,000/-at the Dhakuria Branch of the State Bank of India the fact of the existing mortgage and encumbrance upon the disputed property was not disclosed by respondent Amitava Basu before the State Bank of India who sanctioned the credit facility on the basis of mortgage of the immovable property, i.e., Hotel Omega, Digha. The respondent no. 52,00,000/-at the Dhakuria Branch of the State Bank of India the fact of the existing mortgage and encumbrance upon the disputed property was not disclosed by respondent Amitava Basu before the State Bank of India who sanctioned the credit facility on the basis of mortgage of the immovable property, i.e., Hotel Omega, Digha. The respondent no. 3 confirmed the creation of such mortgage by deposit of the title deed on 08.12.2005 and such second title deed will be treated as incomplete registration since not entered into volume. Therefore, all such subsequent transactions were made suppressing the existence of first mortgage of the suit property with the Balagaria Central Cooperative Bank and the State Bank of India, Dhakuria Branch granted the loan without proper enquiry and spot verification at Digha. This is overstepping on their part to take the risk of granting loan at Dhakuria Branch ignoring their local branch at Digha. Be that as it may, the records and available material reveal that Amitava Basu took loan of Rs. 50,00,000/- on 03.08.2005 from Balagaria Central Cooperative Bank and without repayment of such loan took further loan of Rs. 52,00,000/- on 07.12.2005 from the State Bank of India, Dhakuria Branch by deposit of same title deed No. 2736 of 2005 by way of mortgaging Hotel Omega by means of two original title deeds over same property one of which is valid and the other is incomplete. Therefore, the second loan was granted against deposit of invalid title deed which does not confer/ convey any right, title and interest in favour of State Bank of India to sell such property. Therefore, I hold that such second mortgage of the same property with the State Bank of India on 07.12.2005 is void ab intio. Surprisingly Amitava Basu sold said hotel on 05.04.2007 to the proprietors of Hotel Sonar Bangla adjusting his first loan taken from Balagaria Cooperative Society without any reference of his subsisting loan with State Bank of India, Dhakuria Branch and without ‘no objection certificate’ from them. 41. Much argument has been advanced and plethora of cases have been cited by the contending parties in support of their contention that they have every legally enforceable right in their favour to dispose of the mortgaged property by virtue of a sale deed which was deposited by the borrower at the time of taking such loan. 41. Much argument has been advanced and plethora of cases have been cited by the contending parties in support of their contention that they have every legally enforceable right in their favour to dispose of the mortgaged property by virtue of a sale deed which was deposited by the borrower at the time of taking such loan. In this connection argument has also been canvassed before me that under sub-Section 4 of Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 if measures are undertaken by the secured creditor for realizing of NPA and if such action goes in conflict with the provision of the State law like the Cooperative Societies Act the provisions of sub-Section 4 of Section13 shall have overriding effect upon local law. Learned lawyer for the State Bank of India has relied upon the principle laid down in Shri Lakshmi Products, representatives by its partner – Versus- State Bank of India reported in AIR 2007 Madras 148 in support of such contention. But what appears to me is that a legally enforceable right has been created in favour of Balagaria Central Cooperative bank by deposit of the said title deed at the first instance and the second instrument relating to the same property was delivered by way of deposit of the incomplete title deed for securing the loan at a later stage by which no title to the property was ipso facto mortgaged to the State Bank of India, Dhakuria Branch. I have already pointed out that the second instrument though executed by and between the same parties against same consideration and presented for registration on the same date at the same time and endorsed by the registering authority in its office against payment of requisite fees such registration became complete in respect of one deed now in possession of Balagaria Central Cooperative Bank but the other is incomplete for its non-existence in the relevant register because two original documents cannot be entered in the volume I under one entry in such volume from pages 55 to 70 against one Deed No. 2736 of 2005. 42. 42. Both M/s. Hotel Sonar Bangla, petitioner in W. P. No. 25701(W) of 2007 and Balagaria Central Cooperative Bank Limited, petitioner in W. P. No. 7430(W) of 2008 have resisted sale of the mortgaged property measuring 6 cottah 14 square feet land with 5 storied building known as Hotel Omega since identified as Hotel Sonar Bangla on a plot of land at Gobinda Basan Mouza pertaining to LR Dag No. 240/343 under LR Khatian No. 26/1 of Police Station Digha in the District of Purba Medinipore. The common defence taken by the State Bank of India in their affidavit-in-opposition in both these writ petitions in a nutshell is that the respondent no. 3 made an application dated 08.11.2005 to the State Bank of India, Dhakuria Branch for sanction of a credit facility under the scheme of term loan to the extent of Rs. 52,00,000/- which was sanctioned by a letter dated 7th December, 2005 for running the aforesaid hotel business on the basis of security interest created by deposit of title deed in respect of the said immovable property which was accepted by the respondent no. 3 on 8th December, 2005 confirming the creation of mortgage and/or charge by deposit of the title deed in original of the said property in question. But thereafter the respondent no. 3 being borrower and his wife being guarantor neglected to repay the outstanding dues and to regularize the said loan account. Thus their right to sell the property arises out of such creation of mortgage by deposit of title deed. As a consequence the State Bank of India was compelled to classify the said loan account of respondent no. 3 as ‘Non-Performing Assets’ (NPA) on 28th February, 2007. Thereafter, on 3rd August, 2007 the authorised officer of respondent no. 1 enforced the secured debt by a notice upon the respondent no. 3 and his wife as guarantor demanding payment of the entire dues of the Dhakuria Branch under sub-Section 2 of Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 demanding payment of a sum of Rs. 54,27,992.86 + accrued interest thereon as on 28.02.2007 within 60 days from the date of receipt of the said notice which was received by the borrower on 7th August, 2007. 54,27,992.86 + accrued interest thereon as on 28.02.2007 within 60 days from the date of receipt of the said notice which was received by the borrower on 7th August, 2007. But they deliberately neglected and/or failed to pay the outstanding dues for which the authorised officer of the respondent no. 1 took possession of the said secured asset in question and further issued a notice on 4th October, 2007 under sub-Section 4 of Section 13 of the said Act. After observing all such necessary formalities the authorised officer of the Bank published a notice of possession/ sale of the mortgaged property by tender/ public auction in the daily newspaper “The Statesman, Kolkata Edition” on 12th November, 2007 which was required to be open on 15th December, 2007 at the zonal office. In the meantime the petitioner, M/s. Hotel Sonar Bangla in W. P. No. 2570(W) of 2007 challenged the said notice dated 12.11.2007 being the proprietor of M/s. Hotel Sonar Bangla while on 4th December, 2007 this Court issued an interim order restraining the respondent no. 1 from selling away and/or encumbering the property in question for a specified period and directed the parties to file their respective affidavits keeping the point of maintainability as open which shall be decided at the time of final hearing. In AST No. 1056 of 2007 the said interim order dated 04.12.2007 was modified by the Hon’ble Division Bench to the extent that the writ petitioner, i.e., M/s. Hotel Sonar Bangla also was restrained from transferring and/or alienating and/or encumbering the property in question till disposal of the writ petition. 43. From the averments of the parties it is also on record that the respondent no. 4 of W. P. No. 25701(W) of 2007 filed another writ petition being W. P. No. 7430(W) of 2008 before this Hon’ble Court on 22.04.2008 challenging the said notice of possession/ sale published by the State Bank of India in The Statesman, Kolkata Edition on 12.11.2007. Since the said property in question was mortgaged by M/s. Hotel Sonar Bangla with them and they obtained credit facilities from the said Cooperative Bank with further claim that the relevant provisions of the Cooperative Societies Act, 1983 would prevail upon the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. 44. Since the said property in question was mortgaged by M/s. Hotel Sonar Bangla with them and they obtained credit facilities from the said Cooperative Bank with further claim that the relevant provisions of the Cooperative Societies Act, 1983 would prevail upon the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. 44. It is the averment of the State Bank of India that M/s. Hotel Sonar Bangla is a subsequent purchaser of the disputed property and subsequent mortgage of the property in question to the Balagaria Central Cooperative Bank Limited cannot give rise to any claim/ right or interest over the said property in question and as such their resistance to the action taken by the authorised officer of the Bank has no legal foundation whatsoever. The Bank, however, has also taken the defence that the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 was enacted by the Parliament on the specified matter being incorporated in the VIIIth Schedule to the Constitution under Union List and as such it will prevail over the West Bengal Cooperative Societies Act under Article 225(2) of the Constitution of India. In fact the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and the West Bengal Cooperative Societies Act, 1983 are different and distinct in nature and in their application respective fields and as such the same cannot be said to be repugnant to each other in terms of Article 254(2) of the Constitution of India. Therefore, from such contention the only point for my consideration is to decide who is the first mortgagee in the instant transaction. Without repeating the unnecessary details it is held that from the recital of both the original instruments and the mode of acting upon such instruments as on record and placed before me, it is crystal clear that the sale deed was executed and registered on 3rd August, 2005 and was delivered to the Balagaria Central Cooperative Bank Limited at the time of mortgage of the property against total loan of Rs. 50,00,000/-. On 7th September, 2005 a sale deed was executed by and between the respondent no. 3 and M/s. Omega Resorts Private Limited. 45. 50,00,000/-. On 7th September, 2005 a sale deed was executed by and between the respondent no. 3 and M/s. Omega Resorts Private Limited. 45. Argument has been advanced on behalf of the State Bank of India that the sale deed which was registered on 03.08.2005 cannot be forthwith delivered to the Balagaria Central Cooperative Bank and in fact from Annexure P-4 to the W. P. No. 7430(W) of 2008 it will appear that the respondent no. 3 and his wife submitted one ‘Bandhaki Khat’ along with several other documents with the Cooperative Bank and not the aforesaid sale deed which was first mortgaged to the State Bank of India, Dhakuria Branch confirming such mortgage on 8th December, 2005 as per Annexure R-2 to the affidavit-in-opposition against W. P. No. 25701(W) of 2007. In the relevant application dated 01.02.2005 (Annexure P-1) to the W. P. No. 7430(W) of 2008 the purpose of obtaining such loan has been clearly stated as repayment of housing loan taken for purchase of a building and the security was the mortgage of Hotel Omega, now renamed as Hotel Sonar Bangla. In the sanction order of such loan dated 01.02.2005 (P-2 to the writ petition) it is also stipulated that mortgage of the said property was a primary security at its purchase value and wife of the applicant Amitava Basu was a guarantor and borrower by way of collateral security on the condition that they will have to mortgage the property which was further enhanced on 01.07.2005 (P-3). In the aforesaid transaction one instrument styled as ‘Bandhaki Khat’ was executed by the borrower in respect of the same plot of land being 240/343 (Hotel Omega) which was annexed with such instrument. In clause 4 of such instrument the borrower has undertaken that without written permission of the Cooperative Society he shall not transfer or create any mortgage in respect of such equity of redemption and for non-payment of such secured loan the Cooperative Bank shall be entitled to attach and dispose of such property in auction. Therefore, even such ‘Bandhaki Khat’ also is an instrument transferring right, title and interest of the said Amitava Basu in the disputed property by way of mortgaging the said property to the Balagaria Central Cooperative Bank against total loan of Rs. 50,00,000/-. Therefore, even such ‘Bandhaki Khat’ also is an instrument transferring right, title and interest of the said Amitava Basu in the disputed property by way of mortgaging the said property to the Balagaria Central Cooperative Bank against total loan of Rs. 50,00,000/-. Therefore, when the same person Amitava Basu, approached the Dhakuria Branch of the State Bank of India for sanction of credit facility on 8th November, 2005 he has suppressed the fact of first charge upon the mortgaged property with the Cooperative Bank and by confirming the creation of such second mortgage on 8th December, 2005 he obtained further loan without deposit of any valid title deed or without liquidating all dues of Balagaria Central Cooperative Bank Limited. 46. The authorised officer of the State Bank of India subsequently tried to realize the outstanding dues of such loan by sale of such mortgaged property. In fact the instrument which is incomplete at the time of registration is void, ab initio as soon as the former one had been acted upon. If the deed is void ab initio no valid second mortgage can be created in respect of the said property in favour of the State Bank of India. If the mortgage of the property is invalid the Bank cannot exercise its power conferred under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and all efforts are thereby futile efforts on their part. 47. Deposit of a valid title deed is the essence of initiating process under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. I hold that if the deed is not valid its deposit does not confer any right upon the Bank to dispose of such property which is already mortgaged with the Cooperative Bank. The entire fabric of the second creditor, in the instant case the State Bank of India, rests on the validity of the deposit of such title deed which cannot be effected since one of such instruments over the same property has been acted upon much earlier making the other one inoperative. If this deed is void, the entire edifice of Bank’s claim of right to sell the property dilutes into mere lexicographic morphology. If this deed is void, the entire edifice of Bank’s claim of right to sell the property dilutes into mere lexicographic morphology. In this context it is useless for me to discuss whether the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 will prevail upon the Cooperative Societies Act or not. The Plethora of cases cited by both the contending parties need not be considered in the above context since it will be a mere futile attempt to build a castle in the air. Prima facie I am satisfied that Mr. Amitava Basu sold the property on 03.08.2005 by one instrument but by presenting two same instruments before registering authority has tried to befool them and to kill two birds by one stone. Therefore, by accepting such invalid sale deed by way of mortgage of property by deposit of sale deed, the State Bank of India has not acquired any legally enforceable right so as to dispose of such property by public auction for realisation of their unpaid dues as per their notification dated 12.11.2007 which is not sustainable in law. 48. In view of above findings the three points raised are answered in the following manner: - (a) It is held that the instant writ petitions are maintainable in law in as much as no serious disputed question of facts is involved in these petitions and that it relates to interpretation of the meaning and legal value of documents or title relied upon by the contending parties. (b) It is held further that where the owner of an immovable property transfers such property on receipt of consideration by executing sale deed in favour of the purchaser but presents two sale deeds identical in form, feature and contents, the deed which has been entered into the volume will be treated as actually registered within the meaning of Section 61(2) of the Indian Registration Act read with Article 97 of the Limitation Act and the other which has been presented for registration but not entered into the volume, registration of such document will be treated as incomplete and when the first sale deed which has been entered into the volume and acted upon by mortgaging the property to financial institute by deposit of title deed, such second document will be treated as invalid document through which no right, title or interest in such property can be transferred subsequently to any other person or authority. (c) It is held further that when the sale deed registration of which is complete within the meaning of Section 61(2) of the Indian Registration Act read with Article 97 of the Limitation Act is deposited to a Bank by way of security for loan, it is an encumbrance created upon the property involved till liquidation of loan and release of such mortgage is a condition precedent for sale of such property by subsequent secured creditor and that the Bank in possession of such deed which acted upon is entitled to dispose of such property as per law for realisation of unpaid/ outstanding dues of the borrower. 49. Therefore, the said notice dated 12.11.2007 published in the Statesman is hereby set aside. I further hold that the second creditor, i.e., the State Bank of India as well as the Balagaria Central Cooperative Bank Limited may, however, seek alternative remedy for realisation of their dues as per law. The interim order accordingly stands vacated. The State Bank of India is directed not to give any effect or further effect to the said notice dated 12th November, 2007. 50. The interim order accordingly stands vacated. The State Bank of India is directed not to give any effect or further effect to the said notice dated 12th November, 2007. 50. In W. P. No. 25701(W) of 2007 the petitioner M/s. Hotel Sonar Bangla has sought for a direction upon the competent authority to investigate on such terms as may be convenient to this Court, the facts and circumstances under which the respondent State Bank of India had issued notice under Section 13(2)/13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 in respect of the immovable property of the petitioner firm and to file a report before this Hon’ble Court to pass appropriate orders as may be deemed fit. From the nature of transactions made by and between the parties and interpretation of the documents placed before me I have adjudicated the matter in the manner hereinabove discussed and there is no necessity to holding any such enquiry of deciding merit of this writ petition. So parties are at liberty to move the appropriate forum for seeking their redress and realisation of the outstanding dues against mortgage of the disputed property or in absence of such valid mortgaged property from the guarantor who furnished collateral security according to law in such manner as may be chosen by them and such option is hereby left open. Both the writ petitions are thus disposed of. 51. Let urgent photostat certified copy of this order be supplied, if applied for, be supplied to the parties upon compliance of necessary formalities.