Back
High Court Of Delhi
ASHA M.JAIN - Appellant
Versus
CANARA BANK - Respondent
E.F.A.(O.S.) 3 of 1990
Decided On : 10/15/2001
Held :
We have considered this aspect taking into consideration these judgments and we are in against with the view that the concept of power of attorney sales have been recognised as a mode of transaction. These transactions are different from mere agreement to sell since such transactions are accompanied with other documents including General Power of Attorney, Special Power of Attorney and Will and affidavits and full consideration is paid. This is what also has happened in the present case. There are two general power of attorneys, special power of attorney and the Will apart from the agreement to sell. One of the general power of attorney is registered. Further the Will is also registered. Thus there are two contemporaneous documents which are registered and they lend authenticity of the date of execution of documents. The power of attorneys are for consideration within the meaning of Section 202 of the Contract Act, 1872. Thus there is no doubt that interest has been created in the property in favor of the appellant Possession is also been handed over. Thus the provisions of Section 53A of the Transfer of Property Act would also come into play. The bank is debarred from enforcing any right qua the property other than the right conferred by the agreement to sell. The agreement to sell has nowhere reserved any right on the transferor either for resuming the property or payment of any additional money. The transferor is debarred from claiming back the property from the appellant. The net result of all this is that the rights have been created in favor of the appellant which cannot be defeated by the attachment order.
( 1 ) THE appellant, who purchased property No. A-27/ c, DDA Hats Munirka, New Delhi, on a power of attorney basis is aggrieved by the impugned order dated 31. 10. 1990 dismissing the objection filed by the appellant under Order XXI Rule 58 of the Code of Civil Procedure, 1908, against the attachment order dated 29. 4. 1989.
( 2 ) THE appellant is stated to have purchased the aforesaid property in question by an agreement to sell dated 21. 5. 1984 for a consideration of Rs. 90. 000/- stated to have been paid by cheque drawn on State Bank of India. The documents in respect of the property in question, apart from the agreement to sell dated 21. 5. 1984, are receipt dated 22. 5. 1984, affidavit dated 22. 5. 1984, a registered General Power of attorney dated 22. 5. 1984, a special Power of Attorney dated 22. 5. 1984, another general Power of Attorney dated 22. 5. 1984 and a registered Will dated 21. 5. 1984. It is stated that this property was purchased on what is commonly called a power of attorney sale where the registered documents of sale is not executed but a set of documents consisting of agreement to sell. General Power of Attorney, Special power of Attorney, Will etc. are executed. In view of the fact that the property in question was a lease hold property and transfer would not be recognised by the lessor without consent and without payment of unearned increase, only a power of attorney sale took place. Reliance is also placed on behalf of the appellant on a notice published in the statesman of 30. 7. 1987 bringing to the notice of the public a resolution dated 22. 7. 1987 adopted by the Delhi Metropolitan Council for treating sale transactions effected through such power of attorney sale as valid sale, purchase or transfer of interest for all practicable purposes and for necessary amendments to be carried out in law for the said transactions completed prior to the date of resolution.
( 3 ) THE property in question was purchased through the documents executed by one Shri N. K. Duggal, respondent No. 3, who was the allottee of the flat in question in pursuance to the conveyance deed registered on 23. 8. 1984. This is so set out in the agreement to sell dated 21. 5. 1984. It appears that around the same time or just before the transaction in question in respect of the aforesaid property, certain loan facilities were availed of from Canara Bank, Connaught Circus Branch, respondent No. 1 by respondent Nos. 2 to 4. Since the borrowers and the guarantor failed to adhere to the financial discipline of the Bank, a suit bearing No. 679/1986 was filed and was decreed on 7. 11. 1986 for a sum of Rs. 3,21,635. 40 alongwith interest. The execution petition was filed almost two and a half years later was execution Case No. 4/1989 and an order of attachment dated 29. 4. 1989 was issued in respect of the property in question as respondent No. 3 was the judgment debtor and registered owner of the property.
( 4 ) IT would be relevant to state that the suit was not a mortgage suit and further during the pendency of the suit no interim order was sought against in respect of the property in question. Not only this no action was taken against the property in question for almost two and a half years even after the decree was passed.
( 5 ) SINCE the attachment order was passed on 29. 4. 1989, the appellant herein filed objections to the same being IA No. 239/1989 under Order XXI Rule 58 of the code of Civil Procedure, 1908. In terms of the impugned order dated 31. 10. 1990 the learned Single Judge dismissed the objection no the ground that an agreement to sell does not create any interest in immovable property in view of the Section 54 of the transfer of Property Act, 1882.
( 6 ) MR. Ravi Gupta, learned Counsel for the appellant has assailed the impugned order primarily on the ground that the provisions of Section 53a of the Transfer of property Act, 1882 has been ignored specifically keeping in mind the fact that the appella
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
