HDFC Bank Ltd. v. Sub Registrar, Kothamangalam Sub Registrar Office, Government of Kerala and Village Officer, Pindimana Village

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 01ST DAY OF FEBRUARY 2021 / 12TH MAGHA,1942** ## **WP(C).No.15128 OF 2020(M)** ## **PETITIONER:** **HDFC BANK LTD.** **DEPARTMENT FOR SPECIAL OPERATIONS, CHOICE TOWERS, MANORAMA JUNCTION, ERNAKULAM-16, REP. BY ITS AUTHORIZED OFFICER RAJESH ANTONY.** **BY ADVS.** **SHRI.BASIL MATHEW SRI.P.BINNY JOSEPH SRI.DIPU.R** ## **RESPONDENTS:** **1 SUB REGISTRAR KOTHAMANGALAM SUB REGISTRARS OFFICE, KOTHAMANGALAM-686691.** **2 GOVERNMENT OF KERALA, REP. BY PRINCIPLE SECRETARY, (REVENUE) ROOM NO.201A, 2ND FLOOR, ANNEX I, SECRETARIAT, TRIVANDRUM-695001.** **3 THE VILLAGE OFFICER, PINDIMANA VILLAGE, PINDIMANA VILLAGE OFFICE, KOTHAMANGALAM-686691.** **R1-R3 BY SMT VIDHYA A.C- GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.15128 OF 2020(M) 2 ## **JUDGMENT** The petitioner, a secured creditor, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 1 and 3 to remove the attachments made subsequent to the creation of mortgage in the property having an extent of 10 cents comprised in Sy.No.477/1A/37/9A of Pindimana Village covered by document Nos.291 of 2000 and 2484 of 2010 of the Sub Registrar Office, Kothamangalam . The petitioner has also sought for a declaration that the attachment made in the aforesaid property is free from all encumbrances. 2. On 25.01.2021, when this writ petition came up for admission, the learned Government Pleader submitted that based on the instructions received, a statement on behalf of the 1[st] respondent shall be placed on record. The statement of the 1[st] respondent is placed on record today as bench-mark. Paragraphs 2 to 4 of that statement read thus: “2. It is submitted that the writ petition is not maintainable either in law or on facts. The petitioner being a secured creditor is having a legal claim over immovable properties comprising in Survey Nos.477/1A/37/9A in WP(C).No.15128 OF 2020(M) 3 Pindimana Village. The petitioner being a scheduled bank had sanctioned an amount of Rs.13,00,000/- to a partnership firm by name M/s. Near and Safe Tube N Rods. In security to the amount borrowed, the firm had pledged and thereby created security interest over the immovable property. The Security interest was ensured by creating a mortgage by deposit of title deeds security Nos.291/2000 and 2484/2010 both of Kothamangalam Sub Registrar Office. Now it is presumed that the petitioner had initiated legal proceedings under SARFEASI Act. Further, the petitioner had taken possession of the property in view of the default payment by the firm. 3. It is submitted that while the property was in mortgage, an attachment order was filed in Sub Registrar Office, Kothamangalam as F172/2016. Being a public offer as envisaged in Section 84 of the Registration Act, Sub Registrar is bound to accept and file an encumbrance creating order issued by a Revenue authority in terms of Section 89(5)(A) of the Registration Act 1908. 4. It is submitted that the Sub Registrar has no authority to discard an order or delete an entry stating that the property is in mortgage with someone else or on the ground that the order of attachment was issued subsequent to the creation of security interest in favour of a firm or institution.” (underline supplied) 3. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the respondents. 4. In **Madhan v. Sub Registrar [2014 (1) KLT 406]** the WP(C).No.15128 OF 2020(M) 4 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 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. 5. 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; WP(C).No.15128 OF 2020(M) 5 “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 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 WP(C).No.15128 OF 2020(M) 6 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) 6. In the instant case, going by the averments in the writ petition, the property having an extent of 10 cents comprised in Sy.No.477/1A/37/9A of Pindimana Village covered by documents Nos.291 of 2000 and 2484 of 2010 of the Sub Registrar Office, Kothamangalam was mortgaged with the petitioner on 08.10.2012. The attachment in Ext.P3 encumbrance certificate dated 02.07.2020 for the period from 01.01.2008 to 26.06.2020 and that WP(C).No.15128 OF 2020(M) 7 in Ext.P4 encumbrance certificate dated 02.07.2020 in respect of the properties covered by document Nos.291 of 2000 and 2484 of 2010 of the Sub Registrar Office, Kothamangalam, are made on 24.12.2016, much after the mortgage. In paragraph 3 of the statement filed by the 1[st] respondent it is admitted that while the property was under mortgage, attachment order was filed in the Office of the Sub Registrar, Kothamangalam as F172/2016. Therefore, it is an admitted fact that the order of attachment shown in Ext.P3 and P4 encumbrance certificates are much after the date of mortgage, i.e., 08.10.2012. In view of the law laid down in **Madhan [2014 (1) KLT 406]** and **Keechery service Co-operative Bank Ltd. [2020 (5) KHC 231]** such attachments have no impact on the sale conducted by the Recovery Officer, of the properties in question, which are mortgaged to the petitioner secured creditor, on 08.10.2012. In such circumstances, this writ petition is disposed of by directing the 1[st] respondent Sub Registrar and the 3[rd] respondent Village Officer to efface/delete the attachment recorded in the relevant books as well as in Exts.P3 and P4 encumbrance certificates on the immovable property comprised in WP(C).No.15128 OF 2020(M) 8 Sy.No.477/1A/37/9A of Pindimana Village covered by document Nos.291 of 2000 and 2484 of 2010 of the Sub Registrar Office, Kothamangalam, within a period of six weeks from the date of receipt of a certified copy of this judgment. No order as to costs. **Sd/-** **ANIL K.NARENDRAN** **JUDGE** JV WP(C).No.15128 OF 2020(M) 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE 13(2) NOTICE ISSUED TO THE BORROWERS.** **EXHIBIT P2 THE TRUE COPY OF THE POSSESSION NOTICE ISSUED BY THE PETITIONER ON 29.3.2016. EXHIBIT P3 THE TRUE COPY OF THE ENCUMBRANCES CERTIFICATE DATED 1.1.2008 TILL 26.6.2020. EXHIBIT P4 THE TRUE COPY OF THE ENCUMBRANCE CERTIFICATE DATED 1.1.2008 TILL 26.6.2020. EXHIBIT P5 THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C) 13123/2018 DATED 12.4.2018. EXHIBIT P6 WRIT PETITION WP(C)35979 OF 2018 OF THIS HON'BLE COURT DATED 5.11.2018.**