2014(7) ALL MR 663
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.V. GANGAPURWALA, J.
Gorakh Ramchandra Mali & Anr. Vs. The State of Maharashtra & Ors.
Writ Petition No.2098 of 2013
17th October, 2013
Petitioner Counsel: Shri AMOL S. SAWANT
Respondent Counsel: Shri S.D. KALDATE, Shri A.D. KASLIWAL
Transfer of Property Act (1882), S.52 - Registration Act (1908), S.18 - Lis-pendens - Challenge to order registering lis pendens notice - Proceedings under S.138 of NI Act are subjudice - Held, proceeding u/s.138 of NI Act is not where right to immovable property is directly and specifically in question - Therefore, S.52 of TP Act is not applicable - No question arises of registering authority invoking S.18(ee) of Registration Act - Registration of notice is without jurisdiction and authority - Hence, not sustainable. (Paras 8, 9, 11, 12)
3. Mr. Sawant, the learned counsel states that, there is no suit or proceedings pending between the parties with regard to any immovable property. As such the lis-pendens could not have been registered. Sec. 52 of the Transfer of Property Act, 1882 (hereinafter referred as to the "T. P. Act" for the sake of brevity) is inapplicable. The authorities have wrongly invoked their powers U/Sec. 18 of the Registration Act (hereinafter referred as to the "Act of 1908" for the sake of brevity). According to the learned counsel, even show cause notice with regard to mutation entry is illegal.
4. Mr. Kasliwal, the learned counsel for respondent Nos. 4 and 5 supports the impugned action/order and submits that the proceedings are pending between the parties. The proceedings U/Sec. 138 of the Negotiable Instruments Act were initiated by the petitioners and same are subjudice in writ petition in High Court. The same is with regard to the consideration amount in respect of immovable property. If any proceeding is pending, same can be registered U/Sec. 18 (ee) of the Registration Act and Sec. 52 of the T. P. Act can be invoked. According to the learned counsel, this Court would not entertain the writ petition against the same. The petitioners have to approach the Civil Court to seek redressal of the grievance. The learned counsel relies on the judgment of the Apex Court in a case of Shanti Budhiya Vesta Patel and others Vs. Nirmala Jayprakash Tiwari and others reported in 2010 ALL SCR 1921.
TRANSFER OF PROPERTY ACT, 1882
52. Transfer of property pending suit relating thereto.- During the pendency in any Court in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under the decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
Explanation.-For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.
THE REGISTRATION ACT, 1908
18. Documents of which registration is optional.-Any of the following documents may be registered under this Act, namely,-
(ee) notices of pending suits or proceedings referred to in section 52 of the Transfer of Property Act, 1882;"-Bombay Act 14 of 1939, S. 4 (w.e.f. 15-6-1939) read with Act 35 of 1958, S. 2 (w.e.f. 28-4-1958)
8. Sec. 52 of the T. P. Act basically deals with suit or proceedings concerning an immovable property. The suit or proceedings pending should be qua immovable property. The right to immovable property has to be directly and specifically in question in the said suit or the proceedings then only U/Sec. 52 of the T. P. Act would be applicable. Sub Section (ee) of Sec. 18 of the Act of 1908 empowers the registering authority to register the notices of pending suit or proceedings referable to Sec. 52 of the T. P. Act. A proceeding U/Sec. 138 of the Negotiable Instrument Act cannot be said to be a proceedings, where right to immovable property is directly and specifically in issue/question.
9. In the light of the above, Sec. 52 of the T. P. Act would be inapplicable. Where Sec. 52 of the T. P. Act itself is inapplicable, no question arises of registering authority invoking sub section (ee) of Sec. 18 of the Act of 1908. The registering authority in a way has usurped the jurisdiction not vested in him. The said registration is without jurisdiction and authority.
10. The authority can invoke its powers U/Sec. 18(ee) of the Act of 1908 only if Sec. 52 of the T. P. Act is attracted. If proceeding or suit does not come within the purview and ambit of Sec. 52 of the T. P. Act, no question arises of authority registering the said suit or proceeding U/Sec. 18(ee) of the Act of 1908.
11. The contention of the learned counsel for the respondent No. 4 and 5 that, it is not necessary that suit only can be registered, but even any proceedings can be registered and need not necessarily concern immovable property cannot be accepted. The suit or proceedings as referred in Sec. 52 of the T. P. Act is qualified with a right to immovable property being directly and specifically in question. The "proceedings" can also be registered U/Sec. 52 of the T. P. Act, provided in the said proceedings right to immovable property is directly and specifically in question.
12. Proceeding U/Sec. 138 of the N. I. Act would be outside the contour of Sec. 52 of the T. P. Act. Considering the above, the impugned order registering the notice of lis-pendens as U/Sec. 18 (ee) of the Act of 1908 is illegal and the same cannot be sustained.