High Court of KeralaSingle JudgeWrit petition disposed of with directions as st...

Bank of Baroda v. State of Kerala and Others (WP(C) 6655/2013)

Case / Petition Number:WP(C) 6655/2013
Neutral Citation:/

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • SHOBA ANNAMMA EAPEN
Judgment Date
2022-08-24
Court Decision / Holding
Disposed of with directions: file a fresh application before the 3rd respondent within one month from receipt of a certified copy of the judgment; the 3rd respondent to consider and pass orders within two months thereafter, with notice to the petitioner, and effect mutation of ownership in favour of the 5th respondent, taking into account the judgment in Secretary Keechery Service Co-operative Bank Ltd. v. Sajitha Nizar (supra).
Final Disposition
Writ petition disposed of with directions as stated in the judgment.

Parties to the Case

Appellants / Petitioners

  • Bank of Baroda, Palayam Branch, Thiruvananthapuram

Respondents

  • State of Kerala represented by the Secretary, Revenue Department, Thiruvananthapuram
  • District Collector, Thiruvananthapuram
  • Village Officer, Sasthamangalam
  • Elizabeth Mathew, W/o. Babu Mathew
  • M. Sreekumar A.

Legal Representation & Advocates

Counsels for Petitioners

  • • Devan Ramachandran
  • • Santhosh Kumar K.
  • • K. M. Aneesh
  • • Adarsh Kumar
  • • S. Nikhil Sankar

Counsels for Respondents

  • • Government Pleader

Case Synopsis & Summary

This writ petition, filed by Bank of Baroda (the petitioner), seeks a direction to the 3rd respondent to accept real property tax from the 5th respondent and to effect a mutation of title in the 5th respondent’s name, the latter having purchased the property at auction under SARFAESI proceedings. The property, a 4-cent plot in Sy.No.988/3-1 of Sasthamangalam, Thiruvananthapuram, was mortgaged to the petitioner by the 4th respondent through an equitable mortgage dated 31.07.2004. The account went NPA, triggering securitization and enforcement under the SARFAESI Act, culminating in an auction on 23.10.2009, wherein the 5th respondent emerged as the successful bidder and the auction was confirmed in his name. The petitioner then sought mutation in his favour, but the 3rd respondent refused, citing an attachment entry by a court below in the village records. The 2nd respondent supported the refusal, noting the attachment in CC 1556/2006 before the Judicial First Class Magistrate Court-III, Punalur. The petitioner contends that the equitable mortgage predates the attachment; authorities have previously held that attachments after the mortgage date are invalid (citing Secretary Keechery Service Co-operative Bank Ltd. v. Sajitha Nizar). The court agrees that post-mortgage attachments are invalid and disposes of the petition with directions: the petitioner and the 5th respondent must file a fresh application with the 3rd respondent within one month, who must decide within two months thereafter, permitting mutation of ownership in favour of the 5th respondent, while ensuring compliance with the Keechery precedent.

Provisions of Law Cited

Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002Section 13(2) of SARFAESI Act

Submissions & Arguments

Contentions of Appellants / Petitioners

Bank contends that an equitable mortgage created in 2004 predates the 2007 attachment; post-mortgage attachments are invalid per the court’s ruling in Secretary Keechery Service Co-operative Bank Ltd. v. Sajitha Nizar, and therefore mutation should be permissible in favour of the auction purchaser (the 5th respondent). The bank also asserts its first-charge status and the need to reflect ownership to the 5th respondent in tax records.

Contentions of Respondents

Respondents claim the mutation cannot be effected due to an attachment noted by the Judicial First Class Magistrate Court, Punalur in CC 1556/2006; they maintain the property remains encumbered and tax mutation cannot be processed while the court attachment stands.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Secretary, Keechery Service Co-operative Bank Ltd. v. Sajitha Nizar @ Sajitha P.M. & Others2020 (5) KHC 231 (DB)PositiveCourt relies on this decision to hold that attachments effected after the date of mortgage are invalid; hence mutation can be allowed notwithstanding post-mortgage encumbrances.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN WEDNESDAY, THE 24[TH] DAY OF AUGUST 2022 / 2ND BHADRA, 1944** ## **WP(C) NO. 6655 OF 2013** ## **PETITIONER/S:** BANK OF BARODA, PALAYAM BRANCH, THIRUVANANTHAPURAM, REPRESENTED BY ITS CHIEF MANAGER. BY ADVS. SRI.DEVAN RAMACHANDRAN SRI.SANTHOSH KUMAR.K SRI.K.M.ANEESH SRI.ADARSH KUMAR SRI.S.NIKHIL SANKAR ## **RESPONDENT/S:** 1 STATE OF KERALA, REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT, THIRUVANANTHAPURAM. 695 001. 2 THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 695 001. 3 THE VILLAGE OFFICER, SASTHAMANGALAM. 695 010. 4 MRS.ELIZABETH MATHEW, W/O.BABU MATHEW, T.C.10/2224, KPNRA 206, KANJIRAMPARA, THIRUVANANTHAPURAM-30. 5 MR.M.SREEKUMAR.A., CHALACHACCARA PUTHENVEEDU, NRRA123, NETAJI ROAD, VATTIYOORKAVU, THIRUVANANTHAPURAM. 695 013. BY GOVERNMENT PLEADER ## **OTHER PRESENT:** SMT. M.M. JASMINE - GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) No.6655/2013 ..2.. ## **JUDGMENT** This writ petition is filed by the petitioner seeking for a direction to the 3[rd] respondent to accept tax from 5[th] respondent and to effect change of ownership of property in the name of the 5[th] respondent, who is the auction purchaser. 2. The facts of the case are as follows; The petitioner is a body corporate duly constituted under the provisions of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. The 4[th] respondent availed a loan from the petitioner Bank, by mortgaging her property having an extent of 4 cents in Sy.No.988/3-1 of Sasthamangalam Village, Thiruvananthapuram Taluk. Due to nonpayment of the loan amount, the account was classified as Non Performing Asset (NPA). Thereafter, proceedings under the WP(C) No.6655/2013 **==> picture [31 x 8] intentionally omitted <==** Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002, were initiated and finally, auction of the property was conducted on 23.10.2009 and the 5[th] respondent was the successful bidder in the auction. The auction was confirmed in the name of the 5[th] respondent and the petitioner approached the 3[rd] respondent to effect mutation of the property and to update the tax receipt in favour of the 5[th] respondent. However, the 3[rd] respondent declined to accept the request on the ground that there is a noting of attachment by a court below in the village records in respect of the property. Thereafter, the petitioner filed Ext.P2 representation before the 2[nd] respondent, for effecting mutation of the property and to update the tax receipt in favour of the 5[th] respondent. The petitioner also contended that the petitioner Bank has WP(C) No.6655/2013 **==> picture [31 x 8] intentionally omitted <==** first charge over the properties by way of equitable mortgage, created as early as in 2004 and the attachment by the court below is only in 2007. Aggrieved by the inaction on the part of respondents Nos.2 & 3, the petitioner has approached this Court with this writ petition. 3. The 2[nd] respondent filed counter affidavit, contending that the property is attached by Judicial First Class Magistrate Court-III, Punalur in CC No.1556/2006 and Ext.P3 reply was given to the petitioner, stating the reason for not accepting tax. According to the 2[nd] respondent, since there is an attachment by the court below, it cannot be said that it is free from all encumbrances. 4. I have heard the learned counsel on both sides. 5. The learned counsel for the petitioner submitted that an equitable mortgage in WP(C) No.6655/2013 **==> picture [31 x 8] intentionally omitted <==** respect of the property was created by the bank on 31.07.2004, whereas the attachment by the court below is only in the year 2007. It is further submitted that the issue in respect of the subsequent attachment effected in the property after creation of the equitable mortgage was considered by this Court in **Secretary, Keechery Service Co-operative Bank** **Ltd.** v. **Sajitha Nizar @ Sajitha P.M. & Others** [2020 (5) KHC 231 (DB)] and this court held that the attachments effected by the court after the date of mortgage are invalid. 6. In the case in issue, the equitable mortgage was admittedly created in 2004, whereas the attachment by the court below is only in 2007. Hence, following the judgment in **Secretary,** **Keechery Service Co-operative Bank Ltd.** 's case _(supra),_ I am of the view that this writ petition can be disposed of, with a direction to the 2[nd] respondent to take steps for WP(C) No.6655/2013 **==> picture [31 x 8] intentionally omitted <==** effecting mutation of the property and to update the tax receipt in favour of the 5[th] respondent. The learned counsel for the petitioner has agreed before this Court to file a fresh application before the 3[rd] respondent, along with the 5[th] respondent. 7. In the result, this writ petition is disposed of, with the following directions; - (a) The petitioner along with the 5[th] respondent is directed to file a fresh application before the 3[rd] respondent within a period of one month from the date of receipt of a certified copy of this judgment. - (b) The 3[rd] respondent shall consider and pass orders on the application filed by the petitioner and the 5[th] respondent, within a period of two months thereafter, with notice to the petitioner and effect mutation of the property by providing all WP(C) No.6655/2013 **==> picture [31 x 8] intentionally omitted <==** necessary documents of ownership, taking into consideration the judgment in **Secretary, Keechery Service Co-operative** **Bank Ltd.** 's case ( _supra_ ). The petitioner shall produce a certified copy of this judgment along with a copy of this writ petition before the 3[rd] respondent for compliance. ## **Sd/-** ## **SHOBA ANNAMMA EAPEN** **JUDGE** bka/- WP(C) No.6655/2013 ..8.. ## **APPENDIX OF WP(C) 6655/2013** PETITIONER EXHIBITS EXT.P1 TRUE COPY OF THE 13(2) NOTICE DATED 21.06.2006 EXT.P2 TRUE COPY OF THE REPRESENTATION DATED 22.03.12 EXT.P3 TRUE COPY OF THE REPLY DATED 23.08.2012 ISSUED BY THE 2ND RESPONDENT EXT.P4 TRUE COPY OF THE ORDER IN CRL.M.P. 2995/2012 IN LP 49/2008 DATED 10.07.12