Ownership of immovable property requires a registered sale deed; an unregistered agreement to sell does not confer any title or interest.

JUDGMENT :

1. These two writ petitions are decided by this order as the facts and issues involved are similar. The facts are being taken from S.B. Civil Writ Petition No.3479/2015.

2. This petition is filed seeking quashing of orders dated 15.10.2003, 28.11.2003 and 08.08.2014, rejection of the objections by the Recovery Officer (hereinafter referred to as ‘RO’), dismissal of appeals by the Debts Recovery Tribunal, Jaipur (DRT) and Debts Recovery Appellate Tribunal, New Delhi (DRAT) respectively. Further prayer is for seeking directions to hand over the vacant possession of Plot Nos.502, 503 & 512 situated in Nemi Sagar Colony, Beed Khatipura, Jaipur (hereinafter referred to as ‘plots’).

FACTS

3. The relevant facts are that on 25.08.1993 agreement to sell was executed between the petitioner and Smt. Shanti Bhargava, Madhu Bhargava & Yogendra Bhargava (collectively referred hereinafter to as ‘borrowers’). For securing the loan facility availed the borrowers had mortgaged the plots with respondent No.1—Canara Bank (hereinafter ‘the bank’). On failure of the borrowers to maintain financial discipline, the application filed by bank before the DRT for recovery of dues was allowed on 11.06.2002. The arbitration proceedings initiated at the instance of petitioner for resolving dispute between petitioner and borrowers culminated in award dated 14.09.2002. The execution proceedings were initiated by bank under the Recovery of Debts and Bankruptcy Act, 1993 (hereafter ‘the Act of 1993’). On request of the bank for proclamation of the plots, the RO passed order fixing the auction for 05^th August, 2003. A day before the auction the petitioner filed objection before the RO, claiming ownership on the basis of agreement to sell and relying upon the arbitration award passed in favour of the petitioner. The objections were rejected vide order dated 05.08.2003 but liberty was granted to raise the objections after the sale. The plots were auctioned on 05^th and 06^th August, 2003. The objections filed by the petitioner on 03.09.2003 were dismissed on 15.10.2003. The borrowers executed a registered sale deed for plots in favour of the petitioner on 17.01.2004. The appeals of petitioner were dismissed by the DRT and DRAT on 28.11.2003 and 08.08.2014 respectively.

CONTENTIONS

4. Learned senior counsel for the petitioner made the following submissions:-

(i) The petitioner was owner of the plots and the auction held for recovery of the debts of borrowers is bad.

(ii) The RO had not held enquiry under Rule 11 of the Second Schedule to the Income Tax Act, 1961 (hereinafter referred to as ‘Second Schedule’).

(iii) The RO erred in not exercising the power under Rules 60 and 61 of Second Schedule to set aside the sale.

(iv) The RO had not considered application as per the provisions of Order 21 Rule 89 and 90 of CPC.

(v) There was discrepancy in the area of plots mortgaged and auctioned.

(vi) Lastly that after the arbitration award directing the borrower to get the sale deed executed in favour of the petitioner having been made rule of court, the bank could not have auctioned the plots.

PROVISIONS

5. It would be relevant to quote Order 21 Rules 89 and 90 of CPC, Section 29 of the Act of 1993 and Rule 11, 60 & 61 of the Second Schedule to the Income Tax Act, 1961 as under:-

Order XXI:- Execution of Decrees and Orders

Rule 89. Application to set aside sale on deposit.

(1) Where immovable property has been sold in execution of a degree, any person claiming an interest in the property sold at the time of the sale or at the time of making the application, or acting for or in the interest of such person, may apply to have the sale set aside on his depositing in Court (a) for payment to the purchaser, a sum equal to five per cent of the purchase-money, and (b) for payment to the decree- holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been re