Bank of Baroda v. Sub Registrar, Tripunithura; Village Officer, Thiruvankulam; Thasildar, Kanayannur; Divya c/o Wilson; South Indian Bank Ltd; Manuel Jacob Thottekattu

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 8[TH] DAY OF APRIL 2024 / 19TH CHAITHRA, 1946 ``` ## **`WP(C) NO. 9853 OF 2024`** ## **`PETITIONER:`** ``` BANK OF BARODA ROSARB, ERNAKULAM,PALLIMUKKU, M.G ROAD ERNAKULAM,KOCHI, REPRESENTED BY ITS CHIEF MANAGER AND AUTHORISED OFFICER, SRI. SUKLESWAR BASUMATARY, AGED 50 YEARS, S/O. LATE. TARIT KUMAR BASUMATARY, PIN - 682016 ``` ``` BY ADV LEO GEORGE ``` ## **`RESPONDENTS:`** - **`1 THE SUB REGISTRAR TRIPUNITHURA SUB REGISTRAR'S OFFICE, TRIPUNITHURA, ERNAKULAM, PIN - 682301`** - **`2 THE VILLAGE OFFICER THIRUVANKULAM VILLAGE OFFICE THIRUVANKULAM, ERNAKULAM DISTRICT, PIN - 682305`** - **`3 THE THASILDAR KANAYANNUR ERNAKULAM DISTRICT, PIN - 682011`** - **`*4 REJI M.P (DELETED) S/O. M.E PAULOSE, MALAYIL HOUSE , POONTHANAM ROAD , THIRUVANKULAM, THRIPUNITHURA, ERNAKULAM DISTRICT, PIN – 682305`** ``` THE 4TH RESPONDENT IS DELETED FROM THE PARTY ARRAY, AT THE RISK OF THE PETITIONER, AS PER ORDER DATED 08.04.2024 IN IA 1/2024. ``` - **`5 DIVYA C/O. WILSON, 49/1196, PANCHIKKAL, THYKOODAM, VYTTILA, ERNAKULAM, PIN - 682019`** - **`6 SOUTH INDIAN BANK LTD TRIPUNITHURA BRANCH, TRIPUNITHURA, ERNAKULAM, REPRESENTED BY ITS BRANCH MANAGER, PIN - 682301`** - **`7 MANUEL JACOB THOTTEKATTU, PALLURUTHY, KOCHI, PIN - 682006`** WP(C).No.9853/2024 **2** ``` 8G. SURESH KUMAR SRISADAN, PATHANAPURAM, KOLLAM, PIN - 689695 BY ADVS.K.SHAJ ARUN CHAND(K/000860/2016) BHARAT VIJAY P.(K/000976/2018) ``` ## **`OTHER PRESENT:`** ``` SMT.DEEPA NARAYANAN, SR.GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C).No.9853/2024 **3** ## **P.V.KUNHIKRISHNAN, J. -------------------------------W.P.(C).No.9853 of 2024** ## **---------------------------------------------Dated this the 08[th] day of April, 2024** ## **JUDGMENT** This writ petition is filed with following prayers: i. Declare that the Petitioner Bank has priority in the matter of Recovery of its dues from the Fourth Respondent over Attachments/Encumbrances reflected in Exhibits P5 Encmbrance Certificate, being a Secured Creditor having its security interest registered with the 'Central Registry as provided in section 26E of the SARFAESI Act. ii. Issue a writ of certiorari or any other appropriate writ direction or order calling for the records leading to Exhibit P7 Communication and Quash the Same. iii. iv. Issue a writ of mandamus or any other appropriate writ, direction or order commanding the First Respondent to efface the Encumbrance/attachments in favour of Respondents 6,7 & 8 as reflected in Exhibit P5 Encumbrance certificate. Issue a writ of mandamus or any other appropriate writ, direction or order commanding the First Respondent to Register Exhibit P4 Sale WP(C).No.9853/2024 **4** Certificate ignoring/ effacing the attachments in favour of Respondents 6,7 & 8 as reflected in Exhibit P5 Encumbrance certificate without insisting for ROR within a time limit to be prescribed by this Honourable court. v. Issue a writ of mandamus or any other appropriate writ, direction or order commanding Respondents 2&3 to effect mutation in favour of the Fifth Respondent in respect of the property covered by Exhibit P4 Sale certificate within a time limit to be prescribed by this Honourable Court. vi. issue such other further reliefs as this Honourable Court deem fit and proper to grant in the circumstances of the case. **==> picture [36 x 12] intentionally omitted <==** 2. Petitioner is a public sector Bank. The 4[th] respondent is the owner in possession of the property covered by Ext.P1 title deed. It is submitted that, on 18.06.2011, the 4[th] respondent created security interest in favour of the petitioner Bank in respect of the property covered by Ext.P1 documents to secure a credit facility availed by him along with his wife, from the petitioner Bank. But, as far as the repayment in the credit facility is concerned, the same was irregular and the Bank declared the account of the credit facility as a Non WP(C).No.9853/2024 **5** Performing Asset and proceeded to recover the outstanding by resorting to the provisions of the SARFAESI Act. Ultimately, the secured assets covered by Exts.P1 and P2 were sold in favour of the 5[th] respondent under the provisions of the SARFAESI Act, 2002 is the submission. Sale Certificate were also issued in favour of the 5[th] respondent. However, when enquiries were made with the Sub Registrar’s Office, Anchal, in connection with effecting registration of Ext.P4 sale certificate, it has been informed by the Sub Registrar that the sale certificate will not be entertained for registration because the Encumbrance Register reveals that certain attachments have been seen created over the subject property by the Respondents 6,7 & 8. It is further submitted that when the petitioner made enquiries with the 2[nd] respondent in connection with obtaining ROR, the 2[nd] respondent divulged that it is not possible for him to issue ROR in respect of the property covered by Ext.P4 sale certificate because of the attachments. The contention of the petitioner is that the security interest in respect of the property covered by Ext.P1 has been created by the 4[th] respondent on 18.06.2011. The WP(C).No.9853/2024 **6** attachments/encumbrances reflected in Ext.P5 are of 15.12.2014, 24.01.2019, 23.10.2019 and 14.08.2020 respectively, which are subsequent to the date of creation of security interest in favour of the Bank. Thus it is submitted that the claim of the Bank has priority over the attachments, reflected in Ext.P5. It is also submitted that as per Section 26E of the SARFAESI Act, after effecting the registration of the security interest with the Central Registry, the debts due to any secured creditor shall be paid in priority over all other debts and all Revenues, Taxes, Cesses, and other rates payable to the Central Government or State Government or Local Authority. In such circumstances, the petitioner made a representation before the 1[st] respondent seeking necessary orders to efface the attachments shown in favour of respondents 6,7 and 8 from the Encumbrance Register kept by it and to register Ext.P4 sale certificate ignoring the attachments in favour of respondents 6,7 and 8 as reflected in Ext.P5. Ext.P6 representation so submitted by the petitioner has been replied by the 1[st] respondent as per Ext.P7 stating that he has no power to efface attachments and the same can WP(C).No.9853/2024 **7** be done only based on orders from appropriate court. It is submitted that respondents 2 and 3 are also taking the stand that even if Ext.P4 sale certificate is registered by virtue of court orders, they will not effect mutations in thandapper Register maintained in the Village in favour of the 5[th] respondent in view of the attachments reflected in Ext.P5. Hence this writ petition. 3. Heard the learned counsel for the petitioner and the learned Government Pleader. 4. It is an admitted fact that the attachments mentioned in the encumbrance certificate are all subsequent to the mortgage created in favour of the petitioner by the borrowers. In **Madhan S. v. Sub Registrar, Kollam and Others** [2014 (1) KHC 249], this Court considered this point in detail. It will be better to extract the relevant portion of the above judgment: “9. The 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 under the Act is free of all encumbrances. The attachments efected subsequent to the mortgage created in favour of the WP(C).No.9853/2024 **8** bank do not afect the title and ownership of the petitioner over the subject property. Such attachments have no impact on the sale conducted under the Act and the same ceases to have any efect or fall to the ground the moment the sale is confrmed in favour of the petitioner. The declaration so sought by the petitioner is therefore granted and I further direct the Sub Registrar and the Village Oficer to eface the attachments efected subsequent to the mortgage from the relevant records. Otherwise those attachments would remain as a permanent taboo prejudicially affecting the marketability and title to the property even though they ceased to have any legal efficacy. The needful in relation to the property bought by the petitioner shall be done within a period of two months from the date of receipt of a copy of this judgment.” 5. In the light of the above principle, I am of the considered opinion that the prayers in this writ petition are to be allowed. Therefore, this writ petition is allowed in the following manner: 1. Ext.P7 is set aside. 2. The 1[st] respondent is directed to efface encumbrance/attachments in favour of WP(C).No.9853/2024 **9** respondents 6, 7 and 8 reflected in Ext.P5 encumbrance certificate, within two weeks from the date of receipt of a copy of this judgment. 3. The 1[st] respondent is also directed to register Ext.P4 sale certificate, after effacing the attachment in favour of respondents 6, 7 and 8 as reflected in Ext.P5 encumbrance certificate, without insisting for ROR, once the sale certificate is produced for registration. 4. Respondents 2 and 3 are directed to effect mutation in favour of the 5[th] respondent in respect of property covered by Ext.P4 sale certificate, immediately after the same is registered by the 1[st] respondent. sd/- **P.V.KUNHIKRISHNAN JUDGE** JV WP(C).No.9853/2024 **10** ## **`APPENDIX OF WP(C) 9853/2024`** ``` PETITIONER EXHIBITS Exhibit P1 ``` ``` TRUE COPY OF SALE DEED NO.1893/I/2011 OF TRIPUNITHURA SRO DATED 18.06.2011 TRUE COPY OF LETTER EVIDENCING CONFIRMATION OF MORTAGE EXECUTED BY BY THE FOURTH DEFENDANT IN FAVOUR OF THE BANK DATED 20.07.2011 ``` - **`Exhibit P2`** ``` Exhibit P3 ``` - **`TRUE COPY OF THE DEMAND NOTICE CAUSED BY THE AUTHORISED OFFICER OF THE PETITIONER BANK TO THE BORROWERS INCLUDING FOURTH RESPONDENT DATED 05.06. 2020`** - **`Exhibit P4 TRUE COPY OF SALE CERTIFICATE ISSUED BY THE AUTHORISED OFFICER OF THE PETITIONER IN FAVOUR OF THE FIFTH RESPONDENT IN RESPECT OF THE PROPERTY COVERED BY EXHIBIT P1 DATED 30.11.2023`** - **`Exhibit P5 A TRUE COPY OF ENCUMBRANCE CERTIFICATE IN RESPECT OF THE SUBJECT PROPERTY ISSUED BY THE OFFICE OF THE FIRST RESPONDENT COVERING THE PERIOD FROM 01.01.1992 TO 23.11.2023`** - **`Exhibit P6 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BANK BEFORE THE FIRST RESPONDENT DATED 12.02.2024`** - **`Exhibit P7 TRUE COPY OF THE COMMUNICATION ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER DATED 23.02.2024`**