Bank of Baroda (Rosarb) v State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 09TH DAY OF FEBRUARY 2021 / 20TH MAGHA,1942** ## **WP(C).No.15455 OF 2020(F)** ## **PETITIONER:** **BANK OF BARODA ROSARB, ERNAKULAM, PALLIMUKKU, M.G. ROAD, ERNAKULAM REPRESENTED BY ITS CHIEF MANAGER.** **BY ADVS. SRI.K.M.ANEESH SRI.K.SANTHOSH KUMAR (KALIYANAM) SRI.ADARSH KUMAR SRI.BIJU VARGHESE ABRAHAM SRI.DILEEP CHANDRAN SRI.SHASHANK DEVAN** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY ITS SECRETARY TO GOVERNMENT,**| ||**DEPARTMENT OF TAXES, THIRUVANANTHAPURAM 695**| ||**001.**| |**2**|**DISTRICT COLLECTOR,**| ||**COLLECTORATE , CIVIL STATION, KOLLAM 691 013.**| |**3**|**THAHSILDAR**| ||**(REVENUE RECOVERY), PUNALUR, KOLLAM DISTRICT**| ||**691 305.**| |**4**|**SUB REGISTRAR,**| ||**SUB REGISTRARS OFFICE, ANCHAL P.O. KOLLAM**| ||**DISTRICT 691 306.**| |**5**|**VILLAGE OFFICER,**| ||**ANCHAL VILLAGE, ANCHAL P.O. KOLLAM DISTRICT**| ||**691 306.**| -2- WP(C).No.15455 OF 2020(F) **6 BAIJU LAL M., PARANKIMAMVILA VEEDU, NO. B/6/90, AGASTICODE, PRATHIBHA NAGAR, AREEPLACHY P.O. KOLLAM DISTRICT 691 333.** **7 VISHNU PRIYA T RAJ, W/O. BAIJU LAL M, PARANKIMAMVILA VEEDU, AGASTICODE, PRATHIBHA NAGAR, AREEPLACHY P.O. KOLLAM DISTRICT 691 333. 8 LALKUMAR G., S/O. GOPINATHAN .D, CHENAVILA VEEDU, AGASTHYACODE, ANCHAL P.O. KOLLAM DISTRICT, 691 306.** **R1 TO 5 BY SMT K.AMMINIKUTTY - SR GOVT.PLEADER R6 BY ADV. SRI.PRAVEEN K. JOY R6 BY SRI ABHILASH N R8 BY ADV. SRI.BINU MATHEW R8 BY ADV. KUM.T.M.KRISHNA PRIYA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -3- WP(C).No.15455 OF 2020(F) ## **JUDGMENT** The petitioner, who is a secured creditor of the property having an extent of 3.80 Ares (9.390 cents) comprised in Re.Sy.No.387/12, Block No.33 of Anchal Village, covered by Ext.P1 sale certificate dated 10.02.2020 executed under Rule 9 of the Security Interest (Enforcement) Rules, 2002 in favour of the 8[th] respondent, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 4[th] respondent Sub Registrar, Anchal to register the original of Ext.P1 sale certificate executed by the petitioner in favour of the 8[th] respondent, after effacing the attachments, at the instance of the 1[st] respondent State. The petitioner has also sought for a writ of mandamus commanding the 5[th] respondent Village Officer, Anchal to effect transfer of registry of the properties covered by Ext.P1 sale certificate in favour of the 8[th] respondent and to permit the 8[th] respondent to pay property tax in his name once the registration of the original of Ext.P1 sale certificate is completed. 2. On 03.08.2020, when this writ petition came up for -4- ## WP(C).No.15455 OF 2020(F) admission, this Court issued notice before admission to the respondents. The learned Government Pleader took notice for respondents 1 to 5. Notice by speed post was ordered to respondents 6 to 8. The learned counsel for the petitioner submitted that the party respondents have preferred an application before the Debt Recovery Tribunal, Ernakulam and therefore, the petitioner may be permitted to serve notice to the learned counsel appearing for respondents 6 to 8 in that proceedings. By the order dated 03.08.2020, the petitioner was permitted to serve copy to the learned counsel appearing for respondents 6 to 8 and file memo. 3. On 18.11.2020, the 6[th] respondent has filed counter affidavit, opposing the reliefs sought for in this writ petition. On 18.11.2020, this Court passed the following order; “I have heard Sri.Aneesh K.M., the learned counsel appearing for the petitioner and the learned Government Pleader. In the statement filed by the learned Government Pleader, it is stated that the petitioner has neither presented the sale certificate before the 4[th] respondent after complying with the procedure and on remitting the WP(C).No.15455 OF 2020(F) -5- requisite fees. It is further stated that if the sale certificate is presented before the 4[th] respondent duly stamped and in a prescribed manner, he would act in terms of the Act and Rules. The party respondents seek time to file a counter. However, it shall be open to the petitioner to present the document duly stamped before the 4[th] respondent by following the procedure and if the same is done, the 4[th] respondent shall act in terms of law. 4. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1 to 5, and also the respective counsel for respondents 6 and 8. Service of notice is not complete on the 7[th] respondent, since notice returned with an endorsement 'unclaimed'. The 7[th] respondent is the wife of the 6[th] respondent. They are the borrowers, who reside in the very same address. In such circumstances, service of notice on the 7[th] respondent is dispensed with. 5. As per the averments in the writ petition, the property covered by Ext.P1 sale certificate was mortgaged with the Bank on 03.10.2015, in connection with the loan availed by respondents 6 and 7. As per Ext.P2 encumbrance certificate dated 25.02.2020, an attachment was effected on -6- ## WP(C).No.15455 OF 2020(F) that property, on 10.07.2018. Along with I.A.No.2 of 2020, the petitioner has placed on record Ext.P3 letter of confirmation of mortgage dated 25.10.2015, in order to show that the property covered by Ext.P1 sale certificate was mortgaged with the petitioner Bank on 03.10.2015, as stated in the writ petition. 6. During the course of arguments, the learned Government Pleader, on instructions, would submit that Ext.P1 sale certificate has already been registered by the 4[th] respondent Sub Registrar on 27.11.2020. 7. Now, what remains to be considered is effacement of the attachment effected on 10.07.2018, on the property covered by Ext.P2 encumbrance certificate issued by the 4[th] respondent in respect of the property covered by Ext.P1 sale certificate. 8. In **Madhan v. Sub Registrar [2014 (1) KLT** **406]** the question that came up for consideration before this Court was whether the attachments effected subsequent to the creation of equitable mortgage will be effaced after the property is purchased by another in a sale conducted by the -7- ## WP(C).No.15455 OF 2020(F) Recovery Officer of the Debt Recovery Tribunal. This Court held that, preponderance of judicial opinion leads to the irresistible conclusion that the sale of the mortgaged property in favour of the petitioner under Ext.P5 sale certificate is free of all encumbrances. The attachments effected subsequent to the mortgage created in favour of the bank do not affect the title and ownership of the petitioner over the subject property. Such attachments have no impact on the sale conducted by the Recovery Officer and the same ceases to have any effect or fall to the ground the moment the sale is confirmed in favour of the petitioner. Therefore, this Court directed the Sub-Registrar and the Village Officer to efface the attachments effected subsequent to the mortgage from the relevant records. 9. In **Keechery Service Co-operative Bank Ltd. v. Sajitha Nizar [2020 (5) KHC 231]** a Division Bench of this Court agreed with the declaration of law in **Madhan** . Paragraphs 6 and 7 of that judgment read thus; “6. The issue was again considered by a Division Bench of this Court in an unreported decision in **Ali Asharaf M.M. & another v. Sub Registrar, Thrissur** -8- WP(C).No.15455 OF 2020(F) [W.A.No.612 of 2015]. That was a case where the appellants/writ petitioners purchased property in question in an auction proceedings conducted under the SARFAESI Act. The appellants - petitioners were constrained to approach this Court by filing W.P. (C)No.23435 of 2014, from which the said appeal arose, on account of refusal on the part of the Village Officer to effect mutation of the property purchased by them in the auction under the SARFAESI Act. The reason for not effecting mutation was an order of attachment effected by Munsiff Court, Thrissur in respect of the same property. The learned Single Judge as per judgment dated 13.10.2014 in W.P. (C)No.23435/2014 directed the writ petitioners to approach Munsiff Court, Thrissur for vacating the order of attachment in respect of the property purchased by them in the auction sale conducted under the SARFAESI Act. The Division Bench took note of the indisputable and undisputed fact that the attachment of the property involved therein was subsequent to the date of mortgage of the said property with the Bank whose Authorised Officer conducted the auction proceedings under the SARFAESI Act. In the said circumstances, the Division Bench, in full agreement with the dictum laid down in **Madhan's case (supra)** , declared that the attachments effected by the Munsiff Court, Thrissur after the date of mortgage are invalid and consequently, directed the Sub Registrar and the Village Officer, concerned to efface the attachments effected after -9- WP(C).No.15455 OF 2020(F) 8.7.2008 that is, the date on which the mortgage of the property was created with the Bank. 7. In the light of the aforesaid declaration of law by this Court the order of dismissal of the petition filed for lifting the attachment ordered under Ext.R7(a) viz., Ext.R7(b) by the Federal Bank would pale into insignificance. We do not find any reason to disagree with the declaration of law in **Madhan's case (supra)** which was virtually affirmed by the Division Bench in **Ali** **Asharaf's case (supra)** . In the said circumstances and taking note of the fact that the orders of attachment of the property in question were after the creation of equitable mortgage of the same with Federal Bank we do not find any reason to interfere with the impugned judgment passed by the learned Single Judge following the dictum in **Madhan's case (supra)** , carrying the directions to effect mutation of the property as also to efface all encumbrance over the property effected after 27.6.2014, the date on which the property in question was mortgaged with Federal Bank.” (underline supplied) 10. As already noticed, the property covered by Ext.P1 certificate was mortgaged with the petitioner Bank on 03.10.2015 in connection with the loan availed by respondents 6 and 7, as evident from Ext.P3 letter of confirmation of mortgage dated 05.10.2015, much prior to the -10- WP(C).No.15455 OF 2020(F) attachment effected on that property, on 10.07.2018, as per Ext.P2 encumbrance certificate dated 25.02.2020. 11. In view of the law laid down by this Court in the decisions referred to supra, this writ petition is disposed of by directing the 4[th] respondent Sub Registrar and the 5[th] respondent Village Officer to efface/delete the attachment recorded in Ext.P2 encumbrance certificate on the immovable property covered by Ext.P1 sale certificate, within a period of six weeks from the date of receipt of a certified copy of this judgment. No order as to cost. Sd/- ## **ANIL K.NARENDRAN, JUDGE** AV/09/02 -11- WP(C).No.15455 OF 2020(F) ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SALE CERTIFICATE DATED 10.02.2020 ISSUED IN FAVOUR OF 8TH RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE ISSUED BY THE 4TH RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE CONFIRMATION OF MORTGAGE EXECUTED BY RESPONDENTS 6 AND 7** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R6(a): TRUE PHOTOCOPY OF THE GAZZETTE NOTIFICATION DATED 24/01/2020.**