Transfer of lease hold rights on the basis of power of attorney
AALOK TEWARI
(Querist) 22 January 2016
This query is : Resolved
One Partnership concern, having 5 partners from one family, aquired Lease hold rights on a plot of District Industries Centre in the year 1988, After few years 4 partners of the firm gave an unregistered Notorized Power of Attorney to one partner for transferring the lease hold right to other Person/Body. One Pvt Ltd company purchased the lease hold right in the year 1998 and get it mutuated in Companies name on the record of District Industries Centre, thereafter got the Map approved from local authority, erected the building on the said plot and applied for a Loan in the Bank.
DIC has issued NOC for creation of Mortgage but Banks Law officer says that Since POA was not registered as such transfer of lease rights of the propety can not be treated as concluded and has raised question regarding creation of a Valid EM giving the example of Hon Supreme Courts verdict in the case of Kishore chandra Singh Deo V/s Babu Ganesh Prasad Bhagar AIR 1954 (SC)316
. Whether law prohibits to create EM on such Property. As far as my knowldge is concern Hon Supreme Court has clearly directives in their judgement in 2011 in the case of Surat lamp & industries Vs State of Hariyana2009 7SCC363, that These transactions are not to be confused or equated with Genurine transactions where the owner of a property grants a power of attorney in favour of family members.
In this case unregistered Power of attorney was given to the family members more over as a partner of Partnership concern they authorized one partner for transferring the rights, further they all are alive and ready to confirm the sale/transfer executed by one family member cum partner of the unit on their behalf.in the year 1998.
Please advise me the gorunds so that Banks lawyer can be convinced along with the an alternate to make the transaction legal.
P. Venu
(Expert) 23 January 2016
The Bank has already formed their opinion. If they are in error, the matter needs to be met professionally.
Rajendra K Goyal
(Expert) 23 January 2016
Obtain opinion of another Bank lawyer on the basis of your version.
If the land was in the name of partnership, even one partner can sign on behalf of the firm.
Can represent the Bank giving full particulars and request for second opinion.
Some other Bank may be approached.
Dr J C Vashista
(Expert) 24 January 2016
Surya Roshini Industries case is a historical judgment of Supreme Court qua transfer of title of the property, which has been discussed on various issues concering actions of attorney.
In the instant case DIC is still titleholder/lessor and partnership firm was lessee, which is under transfer/sale of thier right to another firm; the issue has been admitted/accepted by the DIC/ lessor /titleholder, which implies the agreement between DIC and previous partnership firm stand annulled/revoced and there is a fresh contract/agreement between the DIC/Lessor/titleholder and "purchaser" of the said plot. The bankers are required to clarify the position and there objection is invalid.
However, discuss/consult a local senior lawyer with all documents and proceed as advised.
