IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 3RD FEBRUARY 2009 / 14TH MAGHA 1930 WP(C).No. 30949 of 2008(H) --------------------------------------- PETITIONER: ------------------- CASSANDRA TOURISM PRIVATE LTD., SREYAS HOUSE, PERUMKULAM, VARKALA - 695 141, REPRESENTED BY ITS DIRECTOR CHRISTINE MARY GARBUTT. BY ADVS. MR. PHILIP T.VARGHESE, MR.THOMAS T.VARGHESE. RESPONDENTS: ------------------------ 1. THE SUB REGISTRAR, VARKALA. 2. THE RESERVE BANK OF INDIA, LISSE JUNCTION, ERNAKULAM - 682 018, REPRESENTED BY ITS GENERAL MANAGER. R1 & R2 BY GOVERNMENT PLEADER MR. M.A. ASIF. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/02/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.30949/2008-H: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE CERTIFICATE OF REGISTRATION OF THE PETITIONER DTD. 22/09/2008. EXT.P.2: COPY OF THE SALE DEED DTD. 17/10/2008 EXECUTED IN FAVOUR OF THE PETITIONER. EXT.P.3: COPY OF THE ORDER NO. 213/08 DTD. 17/10/2008 ISSUED BY THE R.1. TO THE DIRECTOR OF THE PETITIONER. EXT.P.4: COPY OF THE LETTER DTD. 05/05/2008 ISSUED BY THE R.2. RESPONDENTS' EXHIBIT: EXT.R1.A: COPY OF THE LETTER NO. 25019/55/05-F. DTD. 10/07/2006 OF THE MINISTRY OF HOME AFFAIRS, (FOREIGN DIVISION) NEW DELHI. //TRUE COPY// P.A. TO JUDGE. prv. ANTONY DOMINIC, J. ----------------------------- W.P.(C) No.30949 of 2008 -------------------------------------- Dated this the 3rd day of February, 2009 JUDGMENT Though notice was served, there is no representation on behalf of the second respondent. 2. The petitioner is a company incorporated under the provisions of the Companies Act, 1956 and Exhibit P1 is the Certificate of Incorporation issued by the Registrar of Companies, Kerala. It is stated that the directors of the company are all foreign nationals. The company entered into an agreement for the purchase of certain immovable properties and finally executed Exhibit P2 sale deed, purchasing of 19.27 cents of land mentioned in Exhibit P2 sale deed. The document was presented for registration before the first respondent and the first respondent issued Exhibit P3, refusing to register the document and directing one of the directors of the petitioner-company to submit necessary sanction order from the second respondent for the purchase of land. It is seeking to quash Exhibit P3 and to direct the first respondent to accept and register Exhibit P2 sale deed, this writ petition is filed. 3. A counter affidavit has been filed by the first W.P.(C) No.30949/2008 2 respondent. In the counter affidavit, it is stated that the sale deed was presented by one of the directors of the company, who is a British Passport holder. According to the first respondent, it was relying on Exhibit R1(a), the circular issued by the Ministry of Home Affairs( Foreign Division) Government of India, placing restrictions of registration of properties in favour of foreigners, that Exhibit P3 was issued. 4. Reading of Exhibit P3 and the counter affidavit filed by the first respondent would show that the first respondent has proceeded on the basis that the document is sought to be registered in favour of a foreign national. It was on that basis, Exhibit P3 has been issued, placing reliance on Exhibit R1(a). 5. However, it is to be noted that in Exhibit P2 document, the purchaser is the petitioner herein, a company incorporated under the provisions of the Companies Act, 1956. If that be so, the premise on which the first respondent has proceeded that the document has been executed in favour of a foreign national is incorrect. If the purchaser company is incorporated in India, may be with the shareholders and directors of which are foreign nationals, the company is an Indian Company and is also a W.P.(C) No.30949/2008 3 person resident in India in terms of Section 2(V) of the Foreign Exchange Management Act, 1999. In view of this, Exhibit P3 order issued on the premise that the purchaser is a foreign national is erroneous. 6. Learned counsel for the petitioner also placed reliance on Exhibit P4, communication dated 5/05/2008 issued by the second respondent in favour of M/s. Tiptoe Travel Tourism Pvt. Ltd. A reading of such communication shows that the restriction now sought to be enforced in Exhibit P3 is inapplicable, if the purchaser is an Indian Company. For these reasons, Exhibit P3 cannot be sustained and is quashed. It is directed that it will be open to the petitioner to produce Exhibit P2 sale deed before the first respondent for registration, thereupon the first respondent shall deal with the said document in accordance with law. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE scm