Brijesh D. Kaithakkal v. Village Officer, Varapuzha Village Office; Sub Registrar, Alangad; Tahsildar, Paravur; Bank of Baroda; UCO Bank

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM MONDAY, THE 19[TH] DAY OF FEBRUARY 2024 / 30TH MAGHA, 1945** ## **WP(C) NO. 38393 OF 2023** ## **PETITIONER:** BRIJESH D.KAITHAKKAL,AGED 49 YEARS S/O.K.D.DEVASSYA, 10/1, 1ST MAIN, 3RD CROSS, CHRIST SCHOOL ROAD THAVARAKKARE P. O., BANGALORE, PIN - 560029 BY ADV NASEER MOIDU 1 THE VILLAGE OFFICER VARAPUZHA VILLAGE OFFICE, VARAPUZHA P.O., PIN - 683517 2 THE SUB REGISTRAR OFFICE OF THE SUB REGISTRAR, ALANGAD, KONGORPILLY P.O., PIN - 683518 3 THE TAHSILDAR TALUK OFFICE, PARAVUR MAIN ROAD, NORTH PARAVOOR PARAVOOR P.O., PIN - 683513 4 BANK OF BARODA ROSARB - ERNAKULAM BRANCH PALLIMUKKU, M.G.ROAD P.O., ERNAKULAM, REPRESENTED BY ITS MANAGER, PIN - 682016 5 UCO BANK, ZONAL OFFICE 39/3720F, SR COMPLEX, RAVIPURAM ROAD, ERNAKULAM, REPRESENTED BY ITS MANAGER, PIN - 682016 BY ADVS. ADVOCATE GENERAL OFFICE KERALA NAGARAJ NARAYANAN ## **RESPONDENTS:** ## **OTHER PRESENT:** GP - DEEPA V. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **W.P.(C).No.38393 of 2023 2** ## **VIJU ABRAHAM,J** **------------------W.P.(C).No.38393 of 2023 --------------------------------------Dated this the 19[th] day of February, 2024** ## **JUDGMENT** Petitioner has approached this Court seeking the following reliefs: _i. To issue a writ of mandamus or any other appropriate writ, order or direction commanding the 1[st] and 2[nd] respondents to efface all attachments noted in the registers subsequent to 10.09.2013 in respect of the 6.80 ares of property in Sy No.409/1-26 of Varapuzha Village, covered by Ext.P1 sale certificate, and_ _ii. To issue any other order as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case._ It is averred that the petitioner purchased 6.80 Ares of property in Survey No.409/1-26 of Varapuzha Village sold by the 4[th] respondent bank under the provisions of the SARFAESI Act, 2002 and Ext.P1 Sale Certificate was issued. Petitioner contend that the above property was mortgaged by Ms.Tiny Tomy, Kizhakkoodan house, Elamakkara, Kaloor, Kochi-682026, creating security interest over the property by way of equitable mortgage by **W.P.(C).No.38393 of 2023 3** depositing the original sale deed Nos.3223/2007 and 5657/2007 of Alangad Sub Registry in favour of the 4[th] respondent bank on 10.09.2013 towards the cash credit facility availed by M/s.V.International Import and Exports, Kaloor, Kochi from the 4[th] respondent bank. Later, the loan amount was defaulted and SARFAESI proceedings were initiated and the property was put for sale through public auction on 24.02.2020. Petitioner participated in the auction and bid the property, Ext.P1 sale certificate was issued in favour of the petitioner. Subsequent to the same, in order to mutate the property the petitioner approached the 1[st] respondent and submitted an application in this regard. However, the same was refused stating that there is an attachment effected by the Sub Court, Ernakulam in E.P.No.270/2013 in O.S.No.144/2012 at the instance of the 5[th] respondent bank. Thereafter, the 1[st] respondent issued letter No.93/22 dated 04.02.2022 to the petitioner directing the petitioner to obtain the 'no objection' from the Sub Court, Ernakulam for ## **W.P.(C).No.38393 of 2023 4** the purpose of mutating the property in his name. Ext.P4 encumbrance certificate would show that there was an attachment effected at the instance of the 5[th] respondent. Petitioner submits that since the mortgage was on 10.09.2013 and the attachment effected on behalf of the 5[th] respondent is on 07.02.2015, the attachment subsequent to the mortgage will not affect the proceedings initiated under the SARFAESI Act. 2. Heard the learned counsel for the petitioner and the Government Pleader and also the learned Standing Counsel appearing for respondents 4 and 3. The learned counsel for the petitioner relied on the decision of this Court in **Madhan S. v. Sub** **Registrar, Kollam and Others [2014 (1) KHC 249]** and the decision of a Division Bench of this Court in **Secretary, Keechery Service Cooperative Bank Ltd. v. Sajitha Nizar alias Sajitha P.M. and** **Others, [2020 (5) KHC 231]** and contends that the attachment effected subsequent to the creation of equitable mortgage will not affect the right of ## **W.P.(C).No.38393 of 2023 5** the Bank to sell the mortgaged property and the attachment has to be effaced from the encumbrance register. 4. In **Madhan** 's case (supra), this Court held in paragraph 9 as follows:- _“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. P1 sale certificate under the Act 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 under the Act and the same ceases to have any effect or fall to the ground the moment the sale is confirmed 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 Officer to efface the attachments effected 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.”_ ## **W.P.(C).No.38393 of 2023 6** 5. A Division Bench of this Court in **Ali** **Asharaf M.M. and Another v. Sub Registrar, Thrissur** (Judgment dated 24.7.2015 in W.A. No.612 of 2015) has affirmed the law laid down in **Madhan** 's case. In **Keechery Service Co-operative Bank** ’s case (supra), another Division Bench of this Court also affirmed the law laid down in **Madhan** 's case (supra) and held in paragraph 7 as under:- _“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 27/06/2014, the date on which the property in_ ## **W.P.(C).No.38393 of 2023 7** _question was mortgaged with Federal Bank”._ Thus it is trite law that attachment effected subsequent to the creation of equitable mortgage does not have any effect on the sale conducted by the Bank under the SARFAESI Act and has to be effaced from the encumbrance register. It is evident from the documents produced in the writ petition that the attachment obtained by the 5th respondent is subsequent to the creation of equitable mortgage by the borrowers in favour of the petitioner. 6. This Court in **Phoenic ARC Pvt. Ltd. v. Sub Registrar, Feroke [2023 KHC Online 9452]** while considering an identical issue referring to Section 89(5) of the Registration Act, 1908 has held that since the attachment subsequent to creation of equitable mortgage has lost its efficacy and has to be obliterated from the records, the same can be done by the Sub Registrar by filing the certified copy of the order/judgment of this Court in Book No.1 maintained by the Sub ## **W.P.(C).No.38393 of 2023 8** Registrar. 7. In view of the same, the petitioner is entitled to the reliefs sought for. Accordingly, there will be a direction to the 2[nd] respondent to efface the attachment obtained by the 5th respondent noted in Ext.P4 encumbrance certificate from Book No.1 by filing the certified copy of this judgment in the said book and register Ext.P1 sale certificate if the same is otherwise in order. The 1[st] respondent shall thereafter effect mutation of the said property de hors the aforesaid attachments, if there are no other impediments. The writ petition is disposed of. sd/- **VIJU ABRAHAM, JUDGE** pm ## **W.P.(C).No.38393 of 2023 9** ## **APPENDIX OF WP(C) 38393/2023** PETITIONER'S EXHIBITS Exhibit P1 A TRUE COPY OF SALE CERTIFICATE NO. 2543/2021 DT. 28.10.2021 OF ALANGAD SUB REGISTRY Exhibit P2 A TRUE COPY OF THE LETTER DT. 21.12.2021 SENT BY THE 1ST RESPONDENT TO SHERISTADAR, SUB COURT, ERNAKULAM Exhibit P3 A TRUE COPY OF THE LETTER NO. 93/22 DT. 04.02.2022 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER Exhibit P4 A TRUE COPY OF THE ENCUMBRANCE CERTIFICATE NO.14889/23 DT. 04.11.2023 FOR THE PERIOD FROM 01.01.2015 TO 26.10.2023 ISSUED BY THE 2ND RESPONDENT Exhibit P5 A TRUE COPY OF THE ORDER DT. 15.02.2013 IN O.S.NO. 144/2012 OF THE SUB COURT, ERNAKULAM DOWNLOADED FROM THE E-COURTS WEBSITE