Canara Bank, Vazhuthacaud Branch, Trivandrum v. Sub Registrar, Pothencode Sub Registrar Office, Thiruvananthapuram District; Village Officer, Keezhthonnackal; Bank of India, Uchakkada Branch; SMT. Deepa V.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **WEDNESDAY, THE 20[TH] DAY OF DECEMBER 2023 / 29TH AGRAHAYANA, 1945** ## **WP(C) NO. 28672 OF 2023** ## **PETITIONER:** **CANARA BANK VAZHUTHACAUD BRANCH, TRIVANDRUM REPRESENTED BY CHIEF MANAGER, ARM BRANCH, ERNAKULAM, PIN – 682 016.** **BY ADVS. SRI. SANTHOSH PETER (MAMALAYIL) SRI. P.N.ANOOP SRI. M.S.SANDEEP SUDHAKARAN** ## **RESPONDENTS:** **1 SUB REGISTRAR, POTHENCODE SUB REGISTRAR OFFICE, TRIVANDRUM DISTRICT, PIN – 695 584. 2 THE VILLAGE OFFICER, KEEZHTHONNACKAL VILLAGE OFFICER, KEEZHTHONNACKAL VILLAGE, THIRUVANAMTHAPURAM, PIN – 695 584. 3 BANK OF INDIA, UCHAKKADA BRANCH REPRESENTED BY ITS BRANCH MANAGER UCHAKKADA TRIVANDRUM, PIN – 695 506. SMT. DEEPA V – GP R3 - SRI. K. M ANEESH - SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.11.2023, THE COURT 20.12.2023 DELIVERED THE FOLLOWING:** **W.P(C) No.28672 of 2023** **2** ## **JUDGMENT** The petitioner, a Nationalised bank, has filed this writ petition, _inter alia,_ for a direction to the 1[st] respondent Sub Registrar to register the sale certificate in favour of its auction purchaser _de hors_ the attachment on its secured assets obtained by the 3[rd] respondent Bank. 2. One Sri.Anil Kumar D.S and Smt. Suni. S (hereinafter referred to as 'borrowers' for short) availed of a housing loan from the petitioner bank by creating an equitable mortgage by deposit of title deeds in respect of the property having an extent of 3.96 Ares in Sy. No.240/2-1-1 of Keezhthonnaickal Village, Trivandrum, on 22.09.2014. The borrowers defaulted payment of installments and the bank initiated proceedings under the SARFAESI Act and the **W.P(C) No.28672 of 2023** **3** mortgaged property was sold at auction, and Ext.P5 is the sale certificate dated 21.06.2023. 3. When the petitioner approached the 2nd respondent Village Officer by Ext.P6 letter for demarcating the property, the Village Officer refused to demarcate the property stating that there is a Revenue Recovery attachment on the property at the instance of the 3[rd] respondent Bank as per Revenue Recovery requisition dated 18.10.2016. The petitioner by Ext.P7 letter requested the 3[rd] respondent Bank to take steps to get the attachment cancelled on the ground that the petitioner Bank is having the 1[st] charge. When the 2[nd ] respondent refused to measure the property as requested in Ext.P6, the petitioner has filed this writ petition for direction to the 2[nd] respondent to demarcate the property and for direction to the 1[st] respondent to register Ext.P5 sale **W.P(C) No.28672 of 2023** **4** certificate in favour of the auction purchaser not withstanding the attachment effected on the request of the 3[rd] respondent. 4. Heard Sri.Santhosh Peter, the learned counsel for the petitioner, Smt.Deepa.V, the learned Government Pleader and Sri.K.M. Aneesh, the learned counsel for the 3[rd] respondent. 5. The learned counsel for the petitioner submits that the equitable mortgage was created by the borrowers in favour of the petitioner on 22.09.2014 and the revenue recovery requisition by the 3[rd] respondent was on 18.10.2016, subsequent to the creation of equitable mortgage and that the petitioner is having 1[st] charge over the property and the attachment shall not stand in the way of the petitioner selling the property under the SARFAESI Act and the petitioner has every right to execute the document in **W.P(C) No.28672 of 2023** **5** favour of the auction purchaser notwithstanding the attachment at the instance of the 3[rd] respondent. 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: 2014 (1) KLT 406: ILR 2014 (1) Ker.586: 2014 (1) KLJ 483: AIR 2014 Ker.54]** and contends that the attachment effected subsequent to the creation of equitable mortgage will not affect the right of the Bank to sell the mortgaged property and the attachment has to be effaced from the encumbrance register. 6. 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_ **W.P(C) No.28672 of 2023** **6** _petitioner under Ext. P5 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 petitioner. The confirmed in favour of 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_ **W.P(C) No.28672 of 2023** **7** _would remain as a permanent taboo prejudicial 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.”_ 7. 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.612/2015)** has affirmed the law laid down in Madhan's case. In **Secretary, Keechery Service Cooperative Bank Ltd. v.Sajitha Nizar alias Sajitha P.M. and Others [2020 (5) KHC 231: ILR 2020 (4) Ker.249: 2020(6) KLT 68: 2020(4) KLJ 970]** , another Division Bench of this Court also affirmed the **W.P(C) No.28672 of 2023** **8** law laid down in Madhan's case (supra) and held in paragraph 7 as under:- _“7. …. 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_ **W.P(C) No.28672 of 2023** **9** _efface all encumbrance over the property effected after 27/06/2014, the date on which the property in 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. The revenue recovery attachment effected at the instance of the 3[rd] respondent is subsequent to creation of equitable mortgage in favour of the petitioner. 8. Accordingly, there will be a direction to the 2[nd] respondent to consider the request of the petitioner in Ext. P6 for demarcation of the property, notwithstanding the attachment effected at the instance of the 3[rd] respondent. Further, there will be a direction to the 1[st] respondent to register the sale **W.P(C) No.28672 of 2023** **10** certificate in favour of the auction purchaser as and when presented, notwithstanding the attachment effected at the request of the 3[rd] respondent. The writ petition is disposed of. Sd/- ## **MURALI PURUSHOTHAMAN** ## **JUDGE** SPR **W.P(C) No.28672 of 2023** **11** ## **APPENDIX** ## **' - PETITIONER S EXHIBITS:** |**EXHIBIT**|**1**|**TRUE COPY OF THE AGREEMENT EXECUTED BY**| |---|---|---| |||**MR.ANILKUMAR AND SMT. SUNI S WITH THE**| |||**PETITIONER BANK DATED 20.09.2014.**| |**EXHIBIT**|**2**|**TRUE COPY OF THE LETTER EVIDENCING DEPOSIT**| |||**OF TITLE DEEDS DATED 22.09.2014.**| |**EXHIBIT**|**3**|**TRUE COPY OF ENCUMBRANCE CERTIFICATE ISSUED**| |||**BY THE RESPONDENT DATED 21.05.2014.**| |**EXHIBIT**|**4**|**TRUE COPY OF THE E-AUCTION SALE NOTICE DATED**| |||**10.03.2023.**| |**EXHIBIT**|**5**|**TRUE COPY OF THE CERTIFICATE OF SALE DATED**| |||**21.06.2023.**| |**EXHIBIT**|**6**|**TRUE COPY OF THE REQUEST SUBMITTED BY THE**| |||**PETITIONER BEFORE THE 2ND RESPONDENT DATED**| |||**24.04.2023.**| |**EXHIBIT**|**7**|**TRUE COPY OF THE REQUEST MADE BY THE**| |||**PETITIONER TO THE 3RD RESPONDENT DATED**| |||**12.5.2023.**| ## **RESPONDENTS EXHIBITS: NIL.**