THE GREATER BOMBAY CO-OPERATIVE BANK LIMITEDversusMR. NAGRAJ GANESHMAL JAIN & ORS.

                       (2017] 6 S.C.R. 437


 THE GREATER BOMBAY CO-OPERATIVE BANK LIMITED.                     A

                               v.
          MR. NAGRAJ GANESHMAL JAIN & ORS.

              (Civil Appeal Nos. 9777-9778 of2017)
                                                                   B
                         JULY26, 2017

      [MADAN B. LOKUR AND DEEPAK GUPTA, JJ.)
       Deeds and Documents:
                                                                   c
         Sale deed - Validity of - Recovery proceedings by appellant-
Bank - Against guarantors of credit facility - Property in question
(flat of Housing Society) owned by the guarantors attached by Bank
- After the death of one of the guarantors, respondent No.1 claimed
ownership of the society flat and applied to the Housing Society to
grant him its membership - Also challenged the attachment stating D
that he had purchased the flat much prior to the attachment and
was in possession thereof - Membership denied by the Society -
On challenge to denial of membership, authority concerned finally
allowed the case of respondent No.1 - Writ petition by Bank - High
Court set aside the attachment order directing the Housing Society E
to enroll respondent No.1 as member of the Society - On appeal,
held: The very foundation of the case of respondent No.1 i.e.
agreement to sell is doubtfal - The vendors had never disclosed the
fact of alleged sale to anybody including the Housing Society -
 The document has been fabricated to wriggle out of the recovery
proceedings - The document does not transfer any right, title or F
 interest in the property.

      Allowing ·the appeals, the Court
       HELD : 1. Immoveable property can be transferred only
by a Registered document. There can be no transfer of any right,   G
title or interest in any immoveable property except by way of a
registered document. [Para 15) [441-G)
      Suraj Lamp & industries (P) Ltd. v. State of Haryana
      (2012) 1 SCC 656 : [2011) 11 SCR 848 - relied on.
                                                                   H

                              437
438           SUPREME COURT REPORTS                      [2017] 6 S.C.R.



·A            2. In the present case, the very foundation of the case of
      the respondent No.I i.e. agreement to sell, is doubtful. The
      original has not seen the light of the day and only photocopy
      thereof was filed. There are doubts with regard to the signature
      of the guarantor (the vendor of the property). The Bank attached
B     the property in question in the year 2001. The guarantor died in
      the year 2004 and during these three years, though he and his
      wife had filed various legal proceedings, they never disclosed
      that this flat had been sold by them. Respondent No.I during
      the life time of the guarantor, never claimed ownership of the
      flat. [Para 17) [443-C]
 c
            3. The guarantor and his wife never disclosed the fact of
    the alleged sale of the suit property to anybody including any
    member of the Society. It is more than obvious that with a view
    to wriggle out of the recovery proceedings, after the death of
. D the guarantor, this document has been fabricated. This document
    does not transfer any right, title or interest of the property and,
    therefore, the Revisional Court and the High Court erred in
    allowing the claim of respondent No.I. Respondent No.I has no
    right, title or interest in the suit property. [Paras 18, 19)
    (443-D-E, F]
  E
                          Case Law Reference

             [2011) 11 SCR 848         relied on      Para 15

             CIVIL APPELLATE JURISDICTION : Civil Appeal
 F    Nos. 9777-9778 of2017.

               From the Judgment and Order dated 02.04.2014 of the High
      Court of Judicature at Bombay in Writ Petition No.195 of2014 & Writ
      Petition No.1659 of2014.

 G           B. H. Marlapalle, Sr. Adv., Shridhar Y. Chitale, Vivek R.
      Mohanty, Ajit Wagh, Aditya Gaggar, Apoorv Shukla, Abhijat P. Medh,
      Advs. for the Appellant.

             Sudhanshu S. Choudhari, Ms. Surabhi Guleria, Advs. for the
      Respondents.
 H
 THE GREATER BOMBAY CO-OPERATIVE BANK LIMITED                               439
         v. NAGRAJ GANESHMAL JAIN & ORS.

       The Judgment of the Court was delivered by                           A
        DEEPAK GUPTA, J. Leave granted.
         2. These appeals are directed against the Judgment dated
02.04.2014 passed by the Bombay High Court in Writ Petition No. 195
of 2014, whereby the writ petition filed by the Petitioner-appellant,
(hereinafter referred to as "the Bank") was dismissed and the attachment    B
order dated 14.12.200 I, relating to flat No. 12, 51h Floor, New Shrinath
Kunj, CHS Ltd, Vile Parle (West), Mumbai, 400056 was set aside and a
further direction was given to enrol the respondent No.1 as member of
the New Shrinath Housing Co-operative Society (hereinafter referred
to as "the Society").                                                       C
          3. The undisputed facts are that the flat in question was owned
by Shri Dhillon P. Shah. Mr. Shah and his wife Smt. Shivangi Shah were
Directors of a Company known as Mis. Mahaganesh Texpro Private
Limited. The Bank granted a cash credit facility of Rs. 2.25 crores to
the Company. The Directors including Shri Dillon P. Shah and Smt.           D
Shivangi P. Shah stood guarantee for the repayment of the cash credit
facilities.
         4. The Company did not repay the amount due to the Bank and
finally on 30.08.2001 recovery certificate for an amount of Rs.
2,98,94,363/- along with interest was issued by the Assistant Registrar     E
of the Cooperative Societies and proceedings initiated for recovery of
the amount from the Company and the guarantors. Demand notice was
sent to the Company and also to Shri Dhillon P. Shah and Smt. Shivangi
P. Shah on 12.12.2001. In the notice it was stated that the property of
these persons including Flat No. 12/5 Gopal Bhuvan, New Shrinath Kunj
Co-operative Housing Society Bapubhai Vash Road, Ville Parle (West)         F
Mumbai (hereinafter referred to as the 'suit property) and another
bungalow owned by Smt. and Shri Dhillon P. Shah, were to be attached
and sold for recovery of the dues of the Bank. Both the properties
including the suit property were attached. The bungalow was sold for a
sum of Rs. 1.6 crores. That sale is subject matter of separate              G
proceedings.
        5. The attachment order was issued on 14.12.2001 and the same
was served on Shri Dhillon P. Shah and his wife. They both challenged
these attachment proceedings before various fora, but never took the
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440             SUPREME COURT REPORTS                           [2017] 6 S.C.R.


A     objection that the suit property had already been sold or transferred.
      Mr. Dhillon P. Shah expired on 20.07. 2004.
                6. On 01.11.2004, Smt. Shivangi P. Shah, widow of late Shri
      Dhillon P. Shah, sent a letter to the Society requesting that duplicate
      share certificate be issued, since the original share certificate was not
B     traceable. In this letter she made no mention of the attachment of the
      flat or of the fact that dues were payable to the bank. She sent another
      similar letter on 28.12.2004. Thereafter, on 28.12.2004, the respondent
      No. I for the first time claimed ownership of the suit property and, under
      some amnesty scheme, paid the stamp duty payable on the agreement
C     to sell the suit property.
                7. On 20.01.2005, the respondent No. I applied to the Society
      praying that he may be granted membership of the Society. This
      application was rejected by the Society vi de letter dated 28.01.2005. In
      this letter it was clearly stated that neither late Shri Dhillon P. Shah nor
      Mrs. Shivangi P. Shah had informed the other members of the Society
D     about the fact that they had transferred the flat. This, despite the fact
      that there had been several meetings between the members of the
      Society and Shri Dhillon P. Shah and his wife. The respondent No. I
      was also informed that the flat had already been attached.
               8. It was only thereafter, on 03.02.2005, the respondent No. I
 E    filed objections under Rule 107 (19) (c) of the Maharashtra Cooperative
      Societies Rules, 1961 challenging the attachment order on the allegation
      that he had purchased the flat through agreement dated 04.10.1995 and
      was in possession of the same from 12.04.1996.
              9. The respondent No. I also challenged the decision of the
 F    Society refusing to grant him membership. The Deputy Registrar vi de
      order dated 18.09.2006 allowed the appeal of the respondent No.I and
      directed the Society to admit him as a member. It would be pertinent to
      mention here that in these proceedings the Bank was not a party. The
      Bank on coming to know about the order of the Deputy Registrar dated
 G    18.09.2006 also filed a Revision Application before the Divisional Joint
      Registrar on 16.07 .20 IO challenging the order directing the society to
      grant membership to respondent Nol.
               I 0. The Bank contested the proceedings filed by the respondent
      challenging the order of attachment of property and a prayer was made
 H    that the documents especially the alleged agreement to sell be sent to a
  THE GREATER BOMBAY CO-OPE,RATNE BANK LIMITED                                 441
 v. NAGRAJ GANESHMAL JAIN & ORS. [DEEPAK GUPTA, J.]

handwriting expert for ascertaining whether-the signature on the document      A
were of Shri Dhillon P. Shah or not. This prayer was allowed on
I2.1 l.2006 in the presence of the counsel for the respondent No. I.
          11. The forensic expert sent his report dated 21.07.2010 in
which he found that the signature on the photocopy did not appear to
be ofShri Dhillon P. Shah. On 09. I 0.20I 0, the objection petition filed by   B
the respondent No. I was dismissed and it was held that he had no right
title or interest in the suit flat.
        12. Thereafter respondent N o.1 filed Revision Petition, which
was allowed on 28.10.20I3. The Bank thereafter filed writ petition
No.195 of20I4, which was dismissed giving rise to these appeals.               c
        13. As far as the issue of transfer of the suit flat is concerned,
the Bombay High Court has dismissed the petition of the Bank only on
the ground that since the attachment order was passed in the year 200I
and the agreement of sale was executed prior thereto, therefore, the
attachment order is not valid. The High Court did not go into the questions    D
raised by the Bank that no right, title or interest in the flat could have
been transferred by the said agreement.
         I4. Here, it would be pertinent to mention that admittedly the
respondent No. I was a close friend of Shri Dhillon P.Shah and he also
states that he had a lot of business dealings with him. According to the       E
respondent No. I an amount of Rs. 20 lakhs were advanced by Mis.
Hitesh Corporation a proprietary firm of the respondent No. I to Shri
Dhillon P. Shah on 05 .12.2004. Admittedly, this advance was made not
in connection with the flat but either as a loan or part of some business
transactions. According to the respondent No. I, since Shri Dhillon P.
Shah could not repay the amount of Rs. 20 lakh on 04.1O.I994 he executed       1'.
the alleged agreement to sell in his favour. Pursuant thereto respondent
No.I took possession of the said flat on I2.04. I996 and thereafter had
been paying the electricity bills etc.
        I 5. Immoveable property can be transferred only by a Registered
document. There can be no transfer of any right, title or interest in any      G
immoveable property except by way of a registered document. In this
behalf we may make reference to the judgment of this Court in Suraj
Lamp & Industries (P) Ltd. Vs. State of Haryana (2012) I SCC
656, wherein it was held as follows.
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442    SUPREME COURT REPORTS                         [2017] 6 S.C.R.


A      "18. lt is thus clear that a transfer of immovable property
       by way of sale can only be by a deed of conveyance (sale
       deed). Jn the absence of a deed of conveyance (duly
       stamped and registered as required by law), no right, title
       or interest in an immovable property can be transferred.
B      19. Any contract of sale (agreement to sell) which is not a
       registered deed of conveyance (deed of sale) would fall
       short of the requirements of Sections 54 and 55 of TP Act
       and will not confer any title nor transfer any interest in an
       immovable property (except to the limited right granted
       under section 53A of TP Act). According to the TP Act, an
c      agreement of sale, whether with possession or without
       possession, is not a conveyance. Section 54 ofthe TP Act enacts
       that sale of immoveable property can be made only by a
       registered instrument and an agreement of sale does not
       create any interest or charge on its subject matter.
D                             xxx              xxx              xxx
        24. We therefore reiterate that immovable property can be
        legally and lawfully transferred/conveyed only by a
        registered deed of conveyance. Transactions of the nature
        of 'GPA sales' or 'SA/GPA/will transfers' do not convey
 E      title and do not amount to transfer, nor can they
        be recognized or valid mode of transfer of immovable
        property. The courts will not treat such transactions as
        completed or concluded transfers or as conveyances as
        they neither convey title nor create any interest in an
 F      immovable property. They cannot be recognised as deeds
        of title, except to the limited extent of Section ·53A of the
        TP Act. Such transactions cannot be relied upon or made
        the basis for mutations in municipal or revenue records.
        What is stated above will apply not only to deeds of
      • conveyance in regard to freehold pf'Operty but also to
G       transfer of leasehold property. A lease can be validly
        transferred only under a registered assignment of lease. It
        is time that an end is put to the pernicious practice of SA/
        GPA/will transactions known as GPA sales. "

H
  THE GREATER BOMBAY CO-OPERATIVE BANK LIMITED                                  443
 v. NAGRAJ GANESHMAL JAIN & ORS. [DEEPAK GUPTA, J.]

         I6. IThis Court clearly held that an agreement to sell which is        A
not a registered deed of conveyance would not meet the requirements
of Section 54 and 55 of the Transfer of Property Act. With respect to
Section 53A of the Transfer of Property Act, it is well settled that the
same can only be used as a defence in proceedings initiated by the
transferor or by any person claiming under him.
                                                                                B
         I 7. As far as the present case is concerned, the very foundation
of the case of the respondent No. I i.e. agreement to sell is doubtful.
The original has not seen the light of day and only photocopy thereof
was filed. There are doubts with regard to the signature of Shri Dhillon
P. Shah. As pointed out earlier, the Bank attached the property in question
in the year 200 I. Shri Dhillon P. Shah died in the year 2004 and during        C
these three years though Shri Shah and his wife filed various legal
proceedings, they never disclosed that this flat had been sold by them.
The respondent No. I, during the life time of Shri Dhillon P. Shah never
claimed ownership of the flat.
           I 8. Shri Dhillon P. Shah and his wife never disclosed the fact D
of the alleged sale of the suit property to anybody including any member
of the Society. It is more than obvious that with a view to wriggle out of
the recovery proceedings, after the death of Shri Dhillon P. Shah this
document has been fabricated. This document does not transfer any
right, title or interest of the property and, therefore, the Revisional Court E
and the High Court erred in allowing the claim of the respondent No. I
          19. The appeals are accordingly allowed and the order of the
High Court and the revisional/appellate authority accepting the claim of
respondent No. I are set aside and the claim of the respondent No. I is
rejected. It is held that respondent No. I has no right, title or interest in   F
the suit property. Therefore, he cannot claim membership of the New
Shrinath Kunj Housing Co-operative Society.


Kalpana K. Tripathy                                           Appeals allowed         •