Pradip Mazumdar And 2 Ors vs The Industrial Cooperative Bank Ltd And Anr
- Court
- Gauhati High Court
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GAHC010017552023
2026:GAU-AS:12509
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/634/2023
PRADIP MAZUMDAR AND 2 ORS
S/O- LT. SHRI BIJAY KRISHNA MAZUMDAR, R/O- ODALBAKRA
LALGANESH LOKHRA ROAD, GUWAHATI- 781034
2: JYOTSNA MAZUMDAR
W/O- SHRI PRADIP MAZUMDAR
R/O- ODALBAKRA LALGANESH LOKHRA ROAD
GUWAHATI- 781034
3: TRIPTI MAZUMDAR
W/O- PRABIR MAZUMDAR
R/O- ODALBAKRA LALGANESH LOKHRA ROAD
GUWAHATI- 78103
VERSUS
THE INDUSTRIAL COOPERATIVE BANK LTD AND ANR
REP. BY ITS MANAGING DIRECTOR, S.S. ROAD, LAKHTOKIA, GUWAHATI-
781001
2:THE MANAGING DIRECTOR
INDUSTRIAL COOPERATIVE BANK LTD.
S.S. ROAD
LAKHTOKIA
GUWAHATI- 781001
3:THE STATE OF ASSAM
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF ASSAM
COOPERATION DEPARTMENT
4:THE REGISTRAR
COOPERATIVE SOCIETIES
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ASSAM.
5:THE OFFICER ON MANAGEMENT
THE INDUSTRIAL COOPERATIVE BANK LTD.
S.S. ROAD
LAKHTOKIA
GUWAHATI-781001
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
For the Petitioner(s) : Dr. P. Agarwal, Advocate
For the Respondent(s) : Mr. U. Dutta, Advocate
· Date on which Judgment was reserved : N/A
· Date of Pronouncement of Judgment : 25.08.2026
· Whether the pronouncement is of
the Operative Part of the Judgment : No
· Whether the full Judgment has been
Pronounced : Yes
JUDGMENT AND ORDER (ORAL)
Heard Dr. P. Agarwal, the learned counsel for the Petitioners. Mr.
U. Dutta, the learned counsel appears on behalf of the Respondent
Nos. 1 and 2.
2. None appears on behalf of the Cooperation Department on
call.
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PREFACE
3. The present writ petition was filed by the Petitioners being
aggrieved on one hand by the inaction on the part of the
Respondent Nos. 1 and 2 in not handing over possession of the
property sold to the Petitioners in an auction purchase vide Sale
Certificate dated 20.02.2015 and on the other hand not refunding
the consideration paid for the purchase of the property described
in the Sale Certificate dated 20.02.2015.
4. This Court is therefore to adjudicate in the present facts as to
whether directions can be issued for refund of the sale
consideration along with interest and/or whether any other writ
direction or order can be passed.
BRIEF FACTS OF CASE AND THE PRESENT PROCEEDINGS
LEADING THE PRESENT JUDGMENT
5. One Sri Naba Kumar Das mortgaged a plot of land
admeasuring 2 Kathas with one Assam-type house standing
thereon covered by Dag No. 883 (old)/2472 (new) of K.P. Patta No.
41 (old)/603 (new) at Village Maidamgaon under Mouza Beltola in
the district of Kamrup (M), Assam to secure a loan amount. The
said land and the house standing thereon are hereinafter referred
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to as “the property”
6. The said Sri Naba Kumar Das defaulted in making payment
and as such, proceedings were initiated under the Securitization
and Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002 (for short, “the Act of 2002”).
7. On 21.11.2012, a notice was issued to Sri Naba Kumar Das to
either liquidate the loan amount within 60 days, failing which the
Respondent bank would take possession of the mortgaged
property. Subsequently, another notice was issued on 04.01.2013
directing Sri Naba Kumar Das to vacate and hand over the said
property.
8. The records further reveal that the District Magistrate, Kamrup
(Metro) issued an order on 17.01.2013 appointing one Sri
Tankeswar Das, ACS, Circle Officer to take over possession of the
land in question from Sri Naba Kumar Das. Physical possession of
the said plot of land was handed over to the Respondent No. 1
bank under Section 14 of the Act of 2002 on 13.12.2013 and a
certificate of physical possession dated 13.12.2013 was issued by
the Circle Officer, Dispur Revenue Circle.
9. At this stage, it is relevant to take note of that one Sri
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Dimbeswar Kalita claiming that he had entered into an agreement
for sale with Sri Naba Kumar Das in respect of the property in
question filed a suit being Title Suit No. 553/2013. In the said suit,
the said Sri Dimbeswar Kalita filed an injunction application, which
was registered and numbered as Misc. (J) Case No. 891/2013
seeking an ad interim temporary injunction restraining the said Sri
Naba Kumar Das, the defendant in the said suit from alienating
and/or transferring the suit land to any third person. An injunction
order was passed on 02.01.2014 thereby directing the said Sri
Naba Kumar Das not to alienate and/or otherwise transfer the suit
land till the filing of the objection. It has been informed to this
Court that the said suit as well as the injunction proceedings which
are more than a decade old is still pending.
10. Be that as it may, on 30.09.2014, the Respondent No. 1 bank
issued an auction sale notice in respect of the property in question
fixing the reserve price at Rs. 40 lakhs. The Petitioners participated
in the said auction sale and on 20.12.2014, paid the entire
consideration of Rs. 55 lakhs. A Sale Certificate was issued
thereupon on 20.02.2015. The Sale Certificate though was issued
to the Petitioners, but the possession of the land was not actually
handed over. The Petitioners, on various occasions requested the
Respondent No. 1 bank to hand over possession.
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11. The Respondent No. 1 bank having not handed over
possession, the Petitioners filed a suit before the learned Court of
the Civil Judge No. 1, Kamrup (Metro), at Guwahati which was
registered and numbered as Money Suit No. 89/2017 seeking
refund of the amount of Rs. 55 lakhs along with interest at the rate
of 18%. Subsequently, the said suit was withdrawn with liberty to
take recourse to appropriate alternative legal remedies. The said
prayer was allowed and accordingly, the suit was disposed of on
withdrawal.
12. The Petitioners thereupon approached this Court by filing the
present writ petition on 24.01.2023 seeking a direction upon the
Respondents to refund the entire sum of Rs. 55 lakhs to the
Petitioners along with interest at a rate equivalent to the rate of
interest applicable to fixed deposits for the relevant period from
the date of full payment by the Petitioners, i.e. 20.12.2014, till the
amount is refunded to the Petitioners. It appears that the
Petitioners filed the writ petition upon legal advice based upon an
order dated 25.02.2021 of the learned Coordinate Bench of this
Court in the case of Ajay Sharma Vs. Punjab National Bank &
Others.
13. The records reveal that the Respondent Nos. 1 and 2 have
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filed an affidavit-in-opposition wherein apart from what has been
stated hereinabove, it is mentioned that the Petitioners were
handed over possession of the property at the time of execution of
the Sale Certificate and as such, the Respondent Nos. 1 and 2
cannot be held responsible if there is any encroachment on the
land in question. It was further mentioned in the said affidavit-in-
opposition that regarding the execution of the Sale Deed, the
Petitioners were repeatedly asked to coordinate with the bank for
execution of the Sale Deed, but the Petitioners did not do so. At
paragraph No. 16, it is further mentioned that the Respondent Nos.
1 and 2 are ready to execute the Deed of Sale and hand over
possession of the property in question to the Petitioners within a
period of six months.
14. The Petitioners thereupon filed an affidavit-in-reply bringing on
record various representations submitted by the Petitioners for
execution of the Deed of Sale.
15. The Respondents filed an additional affidavit on 30.10.2024
stating inter alia that the affidavit-in-opposition which was filed
earlier was at a time when Title Suit No. 553/2013 was dismissed
for default, but in the meantime, the said suit was restored vide
order dated 28.05.2024. It is also mentioned that various attempts
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have been made for taking over possession by removing the
livestock which could not be done in view of the injunction order
passed in Title Suit No. 553/2013.
16. Another additional affidavit was filed by the Respondent Nos.
1 and 2 on 11.05.2026 which in the opinion of this Court is
relevant for the purpose of determination of the present
proceedings. In the said additional affidavit, it was admitted that
the Petitioners were successful in the auction sale and that the
Petitioners deposited the amount of Rs. 55 lakhs on 20.12.2014. It
was further mentioned that on receipt of the bid amount on
20.12.2015, the Authorized Officer of the bank validated a sale
certificate in favour of the auction purchaser by stating that “the
undersigned acknowledge the receipt in full and had handed over
delivery of the scheduled property”. The said Sale Certificate was
received by the Petitioners on that date.
17. It was categorically mentioned at paragraph No. 8 that once
the Sale Certificate had been issued, the Petitioners became the
title holder of the property in question and that such Sale
Certificate is exempted from registration under Section 17(2)(xii) of
the Registration Act, 1908 read with Section 89(4) of the said Act.
It was further averred that the Petitioners had therefore to take
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appropriate action against the unauthorized occupants of the
property in question before the appropriate forum. In addition to
that, it was also mentioned that in Title Suit No. 553/2013, an
application was filed in the year 2024 for impleadment of the bank.
However, the said application has not yet been disposed of.
18. A reply was filed by the Petitioners to the said additional
affidavit filed by the Respondent Nos. 1 and 2 wherein at
paragraph No. 11, it is categorically mentioned that in the
circumstances, if the amount cannot be refunded in view of the
title having already been conferred upon the Petitioners by virtue
of the said certificate, the Petitioners should be handed over
possession of the property.
19. This Court duly heard the learned counsels appearing on
behalf of the parties whose submissions were on the basis of their
respective pleadings. Their submissions would be reflected in the
portion of the present judgment under the Heading “ANALYSIS
AND DETERMINATION.”
ANALYSIS AND DETERMINATION
20. The Petitioners primarily seek the refund of the sale
consideration and in the alternative if not possible for appropriate
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directions for handing over the possession.
The primary question therefore is as to whether direction can be
issued for refund of the sale consideration and if not what
appropriate directions can be issued.
21. From the materials on record, it is apparent that pursuant to
the auction sale notice issued on 30.09.2014, the Petitioners
participated in the said proceedings and being successful deposited
the entire consideration of Rs. 55 lakhs on 20.12.2014. Thereupon,
a Sale Certificate was issued on 20.02.2015. The question arises as
to what is the effect of issuance of a Sale Certificate.
22. The Sale Certificate is issued in terms with Rule 9(6) of the
Security Interest (Enforcement) Rules, 2002 (for short, “the Rules
of 2002”).
23. It is well settled that upon issuance of a Sale Certificate, the
title over the immovable property stands transferred to the person
to whom the Sale Certificate was issued. There is also no
requirement for execution of any additional Sale Deed or
registration of the said certificate. This is the mandate of Section
17(2)(xii) of the Registration Act, 1908 read with Section 89(4) of
the said Act. The only requirement is that upon issuance of the
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Sale Certificate in terms with Rule 9(6) of the Rules of 2002, the
original Sale Certificate has to be issued to the auction purchaser
and a copy thereof has to be sent to the Sub-Registrar to note it in
Book No. 1 thereby recording the transfer.
24. The above proposition of law appears to be well settled by the
Supreme Court in the case of M/s Esjaypee Impex Private Limited
Vs. Assistant General Manager and Authorised Officer, Canara Bank
reported in (2021) 11 SCC 537 . Paragraph Nos. 15 and 16 of the
said judgment being relevant are reproduced hereinbelow:
“ 15. The learned counsel for the Bank agreed that the sale certificate has to be
further validated and assured that the needful will be done within two weeks.
However, a submission was made that the sale certificate was then to be handed
over to the registering authority for registration and payment of stamp duty.
16. We are of the view that the mandate of law in terms of Section 17(2)(xii) read
with Section 89(4) of the Registration Act, 1908 only required the authorised
officer of the Bank under the SARFAESI Act to hand over the duly validated sale
certificate to the auction-purchaser with a copy forwarded to the registering
authorities to be filed in Book I as per Section 89 of the Registration Act.”
25. This Court also finds it relevant to take note of another
judgment of the Supreme Court in the case of B. Arvind Kumar Vs.
Government of India & Others reported in (2007) 5 SCC 745 ,
wherein the Supreme Court observed that when a property is sold
by public auction pursuant to an order of the Court and the bid is
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accepted, the sale is confirmed by the Court in favour of the
purchaser. The sale becomes absolute and title vests in the
purchaser. A Sale Certificate is issued to the purchaser only when
the sale is absolute. The Sale Certificate is merely evidence of such
title.
26. In the case of State of Punjab & Another Vs. M.S. Ferrous
Alloys Forgings P. Limited & Others reported in 2024 SCC OnLine SC
3372 , the Supreme Court observed that a Sale Certificate is issued
to the purchaser only when the sale becomes absolute. The Sale
Certificate is merely evidence of such title and it is well settled that
when an auction purchaser derives title on confirmation of sale in
his favour and a Sale Certificate is issued evidencing such sale, no
further deed of transfer from the Court is contemplated or
required. In the said judgment, the Supreme Court also reiterated
the proposition of law laid down by the Supreme Court in the case
of M/s Esjaypee Impex Private Limited (supra). Paragraph Nos. 16
to 20 of the said judgment being relevant are reproduced
hereinbelow:
“ 16. In B. Arvind Kumar v. Govt. Of India and Others reported in (2007) 5
SCC 745, this Court observed that when a property is sold by public auction in
pursuance of an order of the court and the bid is accepted and the sale is
confirmed by the court in favour of the purchaser, the sale becomes absolute
and the title vests in the purchaser. A sale certificate is issued to the purchaser
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only when the sale becomes absolute. The sale certificate is merely the
evidence of such title. It is well settled that when an auction- purchaser
derives title on confirmation of sale in his favour, and a sale certificate is
issued evidencing such sale and title, no further deed of transfer from the
court is contemplated or required. Although in the said case, the sale
certificate was registered yet this Court proceeded to observe that a sale
certificate issued by a court or an officer authorized by the court, does not
require registration. Section 17(2)(xii) of the Registration Act, 1908 specifically
provides that a certificate of sale granted to any purchaser of any property
sold by a public auction by a civil or revenue officer does not fall under the
category of non-testamentary documents which require registration under
sub-section (b) and (c) of Section 17(1) of the said Act.
17. The position of law is thus settled that a sale certificate issued to the
purchaser in pursuance of the confirmation of an auction sale is merely
evidence of such title and does not require registration under Section 17(1) of
the Registration Act. It is not the issuance of the sale certificate which
transfers the title in favour of the auction purchaser. The title is transferred
upon successful completion of the sale and its confirmation by the competent
authority after all the objections against the sale have been disposed of.
18. Recently, a three-Judge Bench of this Court in M/s Esjaypee Impex
Private Limited v. The Asst. General Manager and Authorized Officer Canara
Bank reported in (2021) 11 SCC 537 observed that the mandate of law that
flows from a combined reading of Sections 17(2)(xii) and 89(4) of the
Registration Act respectively is that the auction purchaser is entitled to receive
the original sale certificate and a copy of the same is required to be forwarded
to the Sub- Registrar for the purpose of filing in Book-1 as per the Registration
Act.
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19. In Inspector General of Registration and Another v. G. Madhurambal
and Another reported in 2022 SCC Online SC 2079, a two- Judge Bench of this
Court observed that the consistent position of law is that a certificate of sale
cannot be regarded as a conveyance subject to stamp duty. The Court further
observed that once a direction is issued for the duly validated certificate to be
issued to the auction purchaser with a copy forwarded to the registering
authorities to be filed in Book I as per Section 89 of the Registration Act, it has
the same effect as registration and requirement of any further action is
obviated.
20. The position of law discussed above makes it clear that sale certificate
issued by the authorised officer is not compulsorily registrable. Mere filing
under Section 89(4) of the Registration Act itself is sufficient when a copy of
the sale certificate is forwarded by the authorised officer to the registering
authority. However, a perusal of Articles 18 and 23 respectively of the first
schedule to the Stamp Act respectively makes it clear that when the auction
purchaser presents the original sale certificate for registration, it would attract
stamp duty in accordance with the said Articles. As long as the sale certificate
remains as it is, it is not compulsorily registrable. It is only when the auction
purchaser uses the certificate for some other purpose that the requirement of
payment of stamp duty, etc. would arise.”
27. The above proposition of law upon applied to the facts of the
present case makes it clear as a noon day that with the issuance of
the Sale Certificate on 20.02.2015 by the Authorized Officer of the
Respondent No. 1, the title in respect to the property stood vested
in the Petitioners.
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28. Let this Court at this stage take note of the order passed by
the learned Coordinate Bench of this Court dated 25.02.2021
passed in the case of Ajay Sharma Vs. Punjab National Bank &
Others in W.P.(C) No. 8227/2019 whereby the learned Coordinate
Bench had directed refund of the amount. In the opinion of this
Court and with due respect to the learned Coordinate Bench, the
said direction could not have been made without first cancelling
the Sale Certificate inasmuch as on the basis of the Sale
Certificate, the title had already vested in the auction purchaser.
Further to that, a direction to refund the sale consideration without
cancelling the Sale Certificate would lead to unjust enrichment
inasmuch as the title over the property would continue to be
vested unless the Sale Certificate is cancelled while the Auction
Purchaser would get the refund of the sale consideration. It is the
opinion of this Court that a direction for refund of the sale
consideration is only consequential to the cancellation of the Sale
Certificate.
29. A question duly arises as to the course of action this Court
should follow in view of the judgment of the learned Coordinate
Bench. His Lordship R.M. Sahai, J (as His Lordship then was) in his
concurring opinion rendered in the case of State of U.P. & Another
Vs. Synthetics and Chemicals Ltd. & Another reported in (1991) 4
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SCC 139 explained the concept of ratio decidendi as well as when a
judgment is held to be per incuriam. Paragraph Nos. 39, 40 and 41
of the said judgment being relevant are reproduced hereinbelow:
“ 39. But the problem has arisen due to the conclusion in the case of Synthetic and
Chemicals. The question was if the State legislature could levy vend fee or excise
duty on industrial alcohol. The bench answered the question in the negative as
industrial alcohol being unfit for human consumption the State legislation was
incompetent to levy any duty of excise either under Entry 51 or Entry 8 of List II
of the Seventh Schedule. While doing so the bench recorded the conclusion
extracted earlier. It was not preceded by any discussion. No reason or rationale
could be found in the order. This gives rise to an important question if the
conclusion is law declared under Article 141 of the Constitution or it is per
incuriam and is liable to be ignored.
40. ‘ Incuria’ literally means ‘carelessness’. In practice per incuriam appears to
mean per ignoratium. English courts have developed this principle in relaxation of
the rule of stare decisis. The ‘quotable in law’ is avoided and ignored if it is
rendered, ‘in ignoratium of a statute or other binding authority’. (Young v. Bristol
Aeroplane Co. Ltd.). Same has been accepted, approved and adopted by this
Court while interpreting Article 141 of the Constitution which embodies the
doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey this
Court while pointing out the procedure to be followed when conflicting decisions
are placed before a bench extracted a passage from Halsbury’s Laws of England
incorporating one of the exceptions when the decision of an appellate court is not
binding.
41. Does this principle extend and apply to a conclusion of law, which was neither
raised nor preceded by any consideration. In other words can such conclusions be
considered as declaration of law? Here again the English courts and jurists have
carved out an exception to the rule of precedents. It has been explained as rule of
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sub-silentio. “A decision passes sub-silentio, in the technical sense that has come
to be attached to that phrase, when the particular point of law involved in the
decision is not perceived by the court or present to its mind.” (Salmond on
Jurisprudence 12th Edn., p. 153). In Lancaster Motor Company (London) Ltd. v.
Bremith Ltd. the Court did not feel bound by earlier decision as it was rendered
‘without any argument, without reference to the crucial words of the rule and
without any citation of the authority’. It was approved by this Court in Municipal
Corporation of Delhi v. Gurnam Kaur. The bench held that, ‘precedents sub-silentio
and without argument are of no moment’. The courts thus have taken recourse to
this principle for relieving from injustice perpetrated by unjust precedents. A
decision which is not express and is not founded on reasons nor it proceeds on
consideration of issue cannot be deemed to be a law declared to have a binding
effect as is contemplated by Article 141. Uniformity and consistency are core of
judicial discipline. But that which escapes in the judgment without any occasion is
not ratio decidendi. In B. Shama Rao v. Union Territory of Pondicherry it was
observed, ‘it is trite to say that a decision is binding not because of its conclusions
but in regard to its ratio and the principles, laid down therein’. Any declaration or
conclusion arrived without application of mind or preceded without any reason
cannot be deemed to be declaration of law or authority of a general nature
binding as a precedent. Restraint in dissenting or overruling is for sake of stability
and uniformity but rigidity beyond reasonable limits is inimical to the growth of
law.”
30. From the above quoted paragraphs, it would show that any
declaration of law without application of mind or preceded without
any reason cannot be deemed to be a declaration of law or
authority of a general nature binding as a precedent.
31. The Constitution Bench of the Supreme Court in the case of
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Dr Shah Faesal & Others Vs. Union of India & Another reported in
(2020) 4 SCC 1 observed that a judgment rendered in ignorance of
the statute or a binding precedent cannot be regarded as a binding
judicial precedent. Paragraph Nos. 28 and 29 of the said judgment
being relevant are reproduced hereinunder:
“ 28. The rule of per incuriam has been developed as an exception to the doctrine
of judicial precedent. Literally, it means a judgment passed in ignorance of a
relevant statute or any other binding authority [see Young v. Bristol Aeroplane Co.
Ltd.]. The aforesaid rule is well elucidated in Halsbury’s Laws of England in the
following manner:
“ 1687. … the court is not bound to follow a decision of its own if given
per incuriam. A decision is given per incuriam when the court has acted in
ignorance of a previous decision of its own or of a court of a coordinate
jurisdiction which covered the case before it, or when it has acted in
ignorance of a decision of the House of Lords. In the former case it must
decide which decision to follow, and in the latter it is bound by the decision
of the House of Lords.”
(emphasis supplied)
29. In this context of the precedential value of a judgment rendered per incuriam,
the opinion of Venkatachaliah, J., in the seven-Judge Bench decision of A.R.
Antulay v. R.S. Nayak assumes great relevance : (SCC p. 716, para 183)
“ 183. But the point is that the circumstance that a decision is reached
per incuriam, merely serves to denude the decision of its precedent value.
Such a decision would not be binding as a judicial precedent. A coordinate
Bench can disagree with it and decline to follow it. A larger Bench can
overrule such decision. When a previous decision is so overruled it does not
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happen — nor has the overruling Bench any jurisdiction so to do — that the
finality of the operative order, inter partes, in the previous decision is
overturned. In this context the word “decision” means only the reason for
the previous order and not the operative order in the previous decision,
binding inter partes. … Can such a decision be characterised as one reached
per incuriam? Indeed, Ranganath Misra, J. says this on the point : (para
105)
‘ Overruling when made by a larger Bench of an earlier decision of a
smaller one is intended to take away the precedent value of the decision
without effecting the binding effect of the decision in the particular case.
Antulay, therefore, is not entitled to take advantage of the matter being
before a larger Bench.’”
(emphasis supplied)”
32. In the nstant case, the directions passed by the learned
Coordinate Bench in the case of Ajay Sharma (supra) is not only
contrary to Rule 9 of the Rules of 2002 but also contrary to the
settled principles of law laid down by the Supreme Court prior to
the decision rendered by the learned Coordinate Bench as well as
Ajay
post. Under such circumstances, the judgment in the case of
Sharma (supra) cannot be said to be a valid judicial binding
precedent.
33. It is the opinion of this Court that the question of refund to
the sale consideration cannot arise unless and until the Sale
Certificate is cancelled by due process.
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34. The learned counsel for the petitioners submitted that the Sale
Certificate be cancelled in exercise of the plenary powers of this
Court as a fraud had been committed inasmuch the property in
question was not handed over. It is the opinion of this Court that
the exercise of plenary powers of this Court cannot be made in the
given facts as it would require an adjudication on the existence of
facts that a fraud had been committed. This aspect, this Court
cannot adjudicate in the present proceedings under Article 226 of
the Constitution. Apart from that, mere non-handing over the
possession would not amount to a commission of fraud.
35. In that view of the matter, this Court is of the opinion that no
direction can be passed directing refund of the amount of Rs. 55
lakhs to the Petitioners inasmuch as without cancellation of the
Sale Certificate, the question of refund does not arise.
36. Under such circumstances, let this Court analyze what
appropriate writ, direction or order can be passed in the present
facts.
37. The Sale Certificate was issued on 20.02.2015. In the contents
of the Sale Certificate, it is mentioned that possession was handed
over. However, from the various documents which have been
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enclosed with the writ petition, more particularly the
communication issued by the Chief Manager (Development) of the
Respondent No. 1 to the Deputy Commissioner, Kamrup (Metro)
dated 21.07.2016, it appears that possession of the property in
question was not handed over. In other words, what was
transferred to the Petitioners vide the certificate of sale was a
limited transfer in respect to the title without possession.
38. This Court now finds it relevant to take note of Rule 9(9) of
the Rules of 2002 which mandates that the Authorized Officer shall
deliver the property to the purchaser free from encumbrances
known to the secured creditor on deposit of the money as specified
in Sub-Rule (7) of the said Rules. The said Rule therefore imposes
an obligation upon the secured creditor, i.e., the Respondent No. 1
to hand over the possession.
39. In this regard, this Court finds it very pertinent to take note of
the judgment of the Supreme Court in the case of ITC Limited v.
Blue Coast Hotels Limited & Others reported in (2018) 15 SCC 99
wherein an issue arose as to whether the secured creditor can
after issuance of the Sale Certificate, exercise the powers under
Section 14 of the Act of 2002. The Supreme Court observed that till
possession is handed over accompanied by the certificate of sale, it
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is a limited transfer and the secured creditor still retains the
authority to invoke the provisions of Section 14 of the Act of 2002
by approaching the District Magistrate for taking over possession of
the secured asset. Paragraph Nos. 44, 46 and 48, being relevant
are reproduced hereinbelow:
“ 44. According to the debtor, since Section 14 provides that an application for
taking possession may be made by a secured creditor, and the creditor having
ceased to be a secured creditor after the confirmation of sale in favour of the
auction-purchaser, was not entitled to maintain the application. Consequently,
therefore, the order of the District Magistrate directing delivery of possession is a
void order. This submission found favour with the High Court that held that the
creditor having transferred the secured assets to the auction-purchaser ceased to
be a secured creditor and could not apply for possession. The High Court held that
the Act does not contemplate taking over of symbolic possession and therefore the
creditor could not have transferred the secured assets to the auction-purchaser. In
any case, since ITC Ltd. was the purchaser of such property, it could only take
recourse to the ordinary law for recovering physical possession.
46. The question, however, whether the creditor could maintain an application of
possession under Section 14 of the Act even though it had taken over only
symbolic possession before the sale of the property to the auction-purchaser,
depends on whether it remained a secured creditor after having done so. Section
2(1)(d) of the Act defines “secured creditor” to mean a “banking company” having
the meaning assigned to it in clause (c) of Section 5 of the Banking Regulation Act,
1949; Section 2(1)(l) includes debts or receivables and any right or interest in the
security whether full or part underlying such debt or receivables or any beneficial
interest in property vide Sections 2(l)(i), (iv) and (v). Sub-section (6) of Section 13
posits that the transfer of the secured asset by the secured creditor shall vest in
the transferee all the rights as if the transfer had been made by the owner of the
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secured asset.
48. In this case, the creditor did not have actual possession of the secured asset
but only a constructive or symbolic possession. The transfer of the secured asset
by the creditor therefore cannot be construed to be a complete transfer as
contemplated by Section 8 of the Transfer of Property Act. The creditor
nevertheless had a right to take actual possession of the secured assets and must
therefore be held to be a secured creditor even after the limited transfer to the
auction-purchaser under the agreement. Thus, the entire interest in the property
not having been passed on to the creditor in the first place, the creditor in turn
could not pass on the entire interest to the auction-purchaser and thus remained a
secured creditor in the Act.”
40. It is very relevant at this stage to take note of another aspect
of the matter as to why the Respondent Nos. 1 and 2 have not
been able to take over possession of the property in question.
41. The reason is the pendency of Title Suit No. 553/2013 wherein
there is an injunction operating thereby directing Sri Naba Kumar
Das not to alienate or transfer the said suit property. It is of
pertinence to note that the said suit is between one Sri Dimbeswar
Kalita and Sri Naba Kumar Das. The Respondent Nos. 1 and 2 are
not parties to the said suit. The Sale Certificate which has been
issued in favour of the Petitioners has not been put to challenge.
There is no injunction operating against the Respondent Nos. 1
and 2. Further, the said injunction order which has been passed in
the said suit is limited to Sri Naba Kumar Das.
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42. On the other hand, in the instant case, it is seen that the sale
which has been carried out in favour of the Petitioners by issuance
of the certificate of sale is under the Act of 2002 as well as the
Rules of 2002. The said injunction, under no circumstances, would
create any impediment or bar upon the Respondent Nos. 1 and 2
or even the District Commissioner or any other authority delegated
by the District Commissioner to take possession of the property so
that the possession can be handed over to the Petitioners.
43. Accordingly, the instant writ petition stands disposed of with
the following observations and directions:
(i) The issuance of the Sale Certificate dated 20.02.2015 in
favour of the Petitioners by the Authorized Officer of the
Respondent Nos. 1 and 2 amounts to a valid sale of the
property in favour of the Petitioners. By issuance of the said
certificate, the Petitioners have right, title and interest over
the property in question.
(ii) The Respondent Nos. 1 and 2 are directed to forthwith
forward a copy of the said Sale Certificate to the Sub-
Registrar, Kamrup (M). The Sub-Registrar, Kamrup (M) upon
receipt of the copy of the Sale Certificate in terms with
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Section 89 of the Registration Act, 1908 note the contents of
the same in Book No. 1 regarding the transfer.
(iii) The Respondent Nos. 1 and 2 are further directed to take
up the matter with the District Commissioner, Kamrup (Metro)
for taking over possession of the property in question and the
District Commissioner, Kamrup (M) either by himself or
through his authorized officer shall take due steps in
compliance with Section 14 of the Act of 2002.
(iv) Mr. U. Dutta, the learned counsel for the Respondent
Nos. 1 and 2 submitted that within 30 days from the date of
the present judgment such steps would be taken before the
District Commissioner, Kamrup (M) and the Sub-Registrar,
Kamrup (M).
(v) It is further observed and directed that once such steps
are taken by the Respondent Nos. 1 and 2, the District
Commissioner, Kamrup (M) shall do the needful for taking
over possession of the property and hand it over to the
Respondent Nos. 1 and 2, so that the same can be eventually
handed over to the Petitioners.
(vi) The said exercise shall be completed within a period of
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60 days from the date of the request made by the
Respondent Nos. 1 and 2 to the District Commissioner,
Kamrup (M).
(vii) This Court clarifies that neither the pendency of the Title
Suit No. 553/2013 nor the injunction order passed in Misc. (J)
Case No. 891/2013 in Title Suit No. 553/2013 shall cause a
bar upon the District Commissioner, Kamrup (M) or his
authorized Officer or the Respondent Nos. 1 and 2 to take
steps for handing over the possession of the property to the
Petitioners.
(viii) No costs.
JUDGE
Digitally signed by Satyam Sharma
Date: 2026.09.02 07:02:26 +05'30'
Comparing Assistant