Bank of Baroda, Kottayam Branch v. Sub Registrar, Pampadi; Village Officer, Kooroppada; Vinod Mohan; Mathew & Sons Chitty Fund; Muthoot Vehicle and Finance Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 16[TH] DAY OF DECEMBER 2021 / 25TH AGRAHAYANA, 1943** ## **WP(C) NO. 26355 OF 2021** ## **PETITIONER:** BANK OF BARODA KOTTAYAM BRANCH, MADEENA TOWER, BAKER JUNCTION, C.M.S.COLLEGE ROAD, KOTTAYAM-686001, REPRESENTED BY ITS CHIEF MANAGER AND AUTHORISED OFFICER, RETHEESH VIJAYENDRAN, S/O. VIJAYENDRAN, AGED 47 YEARS. BY ADV LEO GEORGE ## **RESPONDENTS:** 1 THE SUB REGISTRAR SUB REGISTRARS OFFICE, PAMPADI, KOTTAYAM, PIN-686502. 2 THE VILLAGE OFFICER, KOOROPPADA VILLAGE, KOOROPPADA, KOTTAYAM, PIN-686502. 3 VINOD MOHAN, MELEMAVILAKATH HOUSE, PAMPADI, KOTTAYAM-686502. 4 MATHEW & SONS CHITTY FUND, (PRESENTLY M/S.MATHEW & SONS FINANCE), XIII/616, T.B ROAD, NEAR KAUMUDI, KOTTAYAM-686001, REPRESENTED BY ROSHAN SHAJAN, S/O. LATE SHAJAN KATTACHIRA. 5 MUTHOOT VEHICLE AND FINANCE LTD., MUTHOOT CHAMBERS, OPPOSITE SARITHA SAVITHA THEATRE, BANERJI ROAD, KOCHI-682018, REPRESENTED BY ITS MANAGING DIRECTOR. **OTHER PRESENT:** **WP(C) NO. 26355 OF 2021** **2** SMT.K.AMMINIKUTTY .SR.G.P. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 26355 OF 2021** **3** ## **JUDGMENT** The petitioner is stated to be a Public Sector Bank and they say that they had obtained an equitable mortgage over the property involved in this case from the 3[rd] respondent, who had availed of certain loan facilities from them on its security. They submit that the 3[rd] respondent defaulted the payment of the loan facility, which constrained them to bring the property for sale; but that when they attempted to do so, by issuing Exts.P7 and P8 Sale Notices, it was objected to saying that these are attachments over it, which is evident from Ext.P9 Encumbrance Certificate, but that all of them are much after the date of mortgage. 2. Petitioner says that, even though a certain Sri. V. V. Suresh has bid the property, and though the sale has been confirmed in his favour, the Sale Certificate has not been able to be issued because attachments are still on the property. They say that they, therefore, preferred Exts.P10 and P11 representations to the 1[st] respondent, with copies marked to the 2[nd] respondent, seeking that the entries of attachment be effaced from the Encumbrance Certificate, but that no action has been taken thereon until now. 3. The petitioner, therefore, prays that Exts.P10 and P11 be directed to be taken up and disposed of by the 1[st] respondent - **WP(C) NO. 26355 OF 2021** **4** Sub Registrar within a time frame to be fixed by this Court. 4. The afore submissions of Sri.Leo George – learned counsel for the petitioner, were vehemently opposed by Sri.C.S.Manilal - learned counsel appearing for the 5[th] respondent and Sri.T.Madhu - learned counsel appearing for the 4[th] respondent. Both the learned counsel submitted that they will be able to establish that their clients have first charge over the property on the strength of the orders of attachment and therefore, that this Court may not grant any relief to the petitioner. 5. In reply, Sri.Leo George submitted that law is well settled that since his client obtained equitable mortgage on the property on 31/08/2017, every attachment brought on the property thereafter including by the respondent No.5 will require to be effaced and he relied upon in the judgment of this Court in _**Secretary, Keechery Service Co-operative Bank Ltd. v. Sajitha Nizar Alias Sajitha P.M.(2020 (6) KLT 68).**_ – 6. The learned Senior Government Pleader Smt.K.Amminikutty submitted that the 1[st] respondent can certainly consider Exts.P10 and P11 representations; but prayed that while doing so, the party respondents be also allowed to be heard, so that their version regarding their rights, if any, obtained over the **WP(C) NO. 26355 OF 2021** **5** ## property can also be assessed. 7. When I evaluate the afore submissions, it is without doubt that if the petitioner is able to establish that they have the first charge over the property on account of their equitable mortgage executed in their favour by the 3[rd] respondent, they certainly can proceed against it _de hors_ the attachments, provided they are subsequent to it. This is a pure question of fact, which will have to be established by the parties before the 1[st] respondent, for which purpose, I am of the view that Exts.P10 and P11 will require to be directed to be disposed of without any further delay. 8. Resultantly, I direct the petitioners, as well as respondents 4 and 5, to mark appearance before the 1[st] respondent, with all documents to show their rights over the property in question, at 11.00 a.m. on 05/01/2022; on which date, the said Authority will either hear them or fix another convenient date for such purpose and take an apposite decision with respect to effacement of the orders of attachment over the property, as reflected in Ext.P9, subsequent to the mortgage, namely 31/08/2017; and issue appropriate orders thereon, as expeditiously as is possible but not later than two weeks from the date of receipt of a copy of this judgment. **WP(C) NO. 26355 OF 2021** **6** 9. Needless to say, if the petitioner Bank is able to convince the 1[st] respondent that their equitable mortgage was prior to the attachments obtained by respondents 4 and 5, then certainly the said Authority will be bound to act in terms of **Keechery Service Co-operative Bank Limited (supra)** and efface the attachments, implicitly adverting to the declarations therein. This writ petition is thus ordered. ## **Sd/-** **DEVAN RAMACHANDRAN JUDGE** ANB **WP(C) NO. 26355 OF 2021** **7** ## **APPENDIX OF WP(C) 26355/2021** PETITIONER EXHIBITS |Exhibit P1|TRUE COPY OF SALE DEED NO.108/2017 OF| |---|---| ||PAMPADI SRO.| |Exhibit P2|TRUE COPY OF SALE DEED NO.627/2017 OF| ||PAMPADI SRO.| |Exhibit P3|TRUE COPY OF MEMORANDUM EVIDENCING DEPOSIT| ||OF TITLE DEEDS EXECUTED BY THIRD| ||RESPONDENT IN FAVOUR OF PETITIONER BANK| ||WITH RESPECT TO THE PROPERTIES WHICH IS| ||THE SUBJECT MATTER OF EXHIBITS P1 & P2| ||DATED 7.9.2017.| |Exhibit P4|TRUE COPY OF THE SECURITY INTEREST DETAILS| ||MAINTAINED AT THE CENTRAL REGISTRY OF| ||SECURITISATION ASSET RECONSTRUCTION AND| ||SECURITY INTEREST OF INDIA WITH RESPECT TO| ||THE SUBJECT PROPERTY.| |Exhibit P5|TRUE COPY OF THE DEMAND NOTICE ISSUED BY| ||THE AUTHORISED OFFICER OF THE PETITIONER| ||TO THE THIRD RESPONDENT DATED 17.2.2020.| |Exhibit P6|A TRUE COPY OF THE COMMISSION REPORT IN MC| ||NO.75/2021 ON THE FILES OF THE CHIEF| ||JUDICIAL MAGISTRATE COURT, KOTTAYAM DATED| ||29.4.2021.| |Exhibit P7|TRUE COPY OF THE SALE NOTICE DATED| ||12.7.2021 FIXING THE SALE OF THE SECURED| ||ASSET ON 18.8.2021.| |Exhibit P8|TRUE COPY OF THE SALE NOTICE DATED 1.10.21| ||FIXING THE SALE OF THE SECURED ASSET ON| ||22.10.2021.| |Exhibit P9|TRUE COPY OF THE ENCUMBRANCE CERTIFICATE| ||WITH RESPECT TO THE PROPERTY COVERED BY| ||EXHIBIT P1 & P2 SALE DEEDS DATED| ||22.10.2021.| |Exhibit P10|TRUE COPY OF THE REPRESENTATION SUBMITTED| **8** ## **WP(C) NO. 26355 OF 2021** BY THE PETITIONER BANK BEFORE THE FIRST RESPONDENT DATED 27.10.2021. Exhibit P11 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BANK BEFORE THE SECOND RESPONDENT DATED 27.10.2021.