Bank of Baroda v. Sub Registrar, Edava Village; Village Officer, Edava Village; Shamnad; Sadiya Ismail; Shikkim Singh; Salim; Hashem

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942** ## **WP(C).No.12377 OF 2020(V)** ## **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**|**SUB REGISTRAR,**| |---|---| ||**SUB REGISTRAR'S OFFICE,**| ||**VARKALA P. O, VARKALA,**| ||**THIRUVANANTHAPURAM,**| ||**PIN – 695 141.**| |**2**|**VILLAGE OFFICER,**| ||**EDAVA VILLAGE, EDAVA P. O,**| ||**VARKALA,**| ||**THIRUVANANTHAPURAM DISTRICT,**| ||**PIN – 695 311.**| |**3**|**SHAMNAD**| ||**S/O. MOHAMMED BASHEER,**| ||**PATTAN VILAKOM, KAPPIL P. O,**| ||**EDAVA, VARKALA,**| ||**THIRUVANANTHAPURAM DISTRICT,**| ||**PIN – 695 311.**| |**4**|**SADIYA ISMAIL**| ||**W/O. SHAMNAD,**| ||**PATTAN VILAKOM,**| ||**KAPPIL P. O, EDAVA,**| ||**VARKALA,**| ||**THIRUVANANTHAPURAM DISTRICT, PIN – 695 311.**| WP(C).No.12377 OF 2020 2 **5 SHIKKIM SINGH S/O. CHELLAPPAN, VADAKKEBHAGOM, KAPPIL P. O, EDAVA, THIRUVANANTHAPURAM DISTRICT, PIN – 695 311.** **6 SALIM S/O. ALIYARKUNJU, SAJID BAHVAN, CHIRAYINKEEZHU P. O, KOONTHALLOOR VILLAGE, KIZHUVILAM PANCHAYATH, THIRUVANANTHAPURAM.** **7 HASHEEM S/O. MOIDU, NIJOOD MANZIL, KAPPIL P. O, EDAVA, THIRUVANANTHAPURAM DISTRICT, PIN – 695 311.** **R1 – SMT. K. AMMINIKUTTY - SR GOVERNMENT PLEADER R6 – SMT. M.A.ZOHRA R6 – SRI. MAHESH ANANDAKUTTAN R6 – SMT. SHREEJI R. NAIR** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.12377 OF 2020 3 ## **JUDGMENT** The petitioner, who is a secured creditor of the property having an extent of 15 cents in Re-Survey No.40/11-1 of Edava Village in Varkala Taluk, covered by Ext.P2 sale certificate dated 09.03.2020 executed under Rule 9 of the Security Interest (Enforcement) Rules, 2002 in favour of 5th respondent, has filed this writ petition under Article 226 of the Constitution of India, seeking a declaration that the attachments reflected in Ext.P3 encumbrance certificate subsequent to creation of equitable mortgage created in favour of the petitioner are non-est and does not affect the marketability of the property. The petitioner has also sought for a writ of mandamus commanding the 1[st] respondent to efface the attachments made on 20.11.2015 and 04.03.2016 over 15 cents of land in Re-Sy No.40/11-1 of Edava Village, Varkala Taluk, Thiruvananthapuram District. 2. On 23.06.2020, when this writ petition came up for admission, the learned Government Pleader took notice for respondents 1 and 2 and notice on admission was ordered to respondents 3 to 7. 3. On 10.02.2021, when this writ petition came up for consideration, the learned Government Pleader, on instructions, WP(C).No.12377 OF 2020 4 submitted that Ext.P2 sale certificate has already been registered on 11.12.2020, as document No.2226 of 2020. 4. Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for the official respondents and also the learned counsel appearing for the 6[th] respondent. Service of notice is not complete on respondents 3 and 4. Considering the nature of relief proposed to be granted in this writ petition, service of notice on respondents 3 and 4 is dispensed with. 5. 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 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 WP(C).No.12377 OF 2020 5 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. 6. 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** [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 WP(C).No.12377 OF 2020 6 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 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) WP(C).No.12377 OF 2020 7 7. In the instant case, as per the averments in the writ petition, the property covered by Ext.P2 sale certificate was mortgaged with the Bank on 06.04.2015, in connection with the loan availed by respondents 3 and 4. As per Ext.P3 encumbrance certificate dated 04.03.2020, attachments were effected on that property, on 20.11.2015 and 04.03.2016 respectively. Along with I.A No.1 of 2021, the petitioner has placed on record Ext.P4 memorandum of entry evidencing the creation of mortgage, in order to show that the property covered by Ext.P2 sale certificate was mortgaged on 06.04.2015, as stated in the writ petition. 8. As already noticed, the property covered by Ext.P2 certificate was mortgaged with the petitioner Bank on 06.04.2015 in connection with the loan availed by respondents 3 and 4, as evident from Ext.P4 letter of confirmation of mortgage dated 06.04.2015, much prior to the attachment effected on that property on 20.11.2015 and 04.03.2016, as per Ext.P3 encumbrance certificate dated 04.03.2020. Having considered the pleadings and materials on record and also the submissions made by the learned counsel on both sides, this writ petition is disposed of with the following directions: WP(C).No.12377 OF 2020 8 (i) Within two weeks from the date of receipt of a certified copy of this judgment, the petitioner shall produce necessary documents before the 1[st] respondent Sub Registrar to show that the property covered by Ext.P2 sale certificate was mortgaged with the petitioner on 06.04.2015. (ii) Thereafter, the 1[st] respondent shall consider favourably the request made by the petitioner to efface/delete the attachments recorded in Ext.P3 Encumbrance Certificate on the immovable property covered by Ext.P2 sale certificate within a further period of four weeks, if found necessary with notice to respondents 3 and 4, in case all such attachments are subsequent to the date of mortgage. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** SPR WP(C).No.12377 OF 2020 9 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE NOTICE DATED 19.10.2016 ISSUED UNDER SECTION 13(2) OF THE SARFEASI ACT.** **EXHIBIT P2 TRUE COPY OF THE SALE CERTIFICATE ISSUED BY THE PETITIONER IN FAVOUR OF THE 5TH RESPONDENT. EXHIBIT P3 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE OBTAINED FROM THE 1ST RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE MEMORANDUM OF ENTRY EVIDENCING THE CREATION OF MORTGAGE DATED 06.04.2015.** **RESPONDENT'S/S EXHIBITS: NIL.**