HDFC Bank Ltd. v Sub Registrar Office of the Sub Registrar, Ayyanthole (thrissur district) and 10 others; WP(C) No. 15132 of 2020

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 3[RD] DAY OF JUNE 2022 / 13TH JYAISHTA, 1944** **WP(C) NO. 15132 OF 2020** ## **PETITIONER:** HDFC BANK LTD. DEPARTMENT FOR SPECIAL OPERATIONS, CHOICE TOWERS, MANORAMA JUNCTION, ERNAKULAM 16, REP BY ITS AUTHORIZED OFFICER RAJESH ANTONY. BY ADVS. BASIL MATHEW SRI.P.BINNY JOSEPH ## **RESPONDENTS:** 1 SUB REGISTRAR OFFICE OF THE SUB REGISTRAR, AYYANTHOLE 680 003. 2 THE VILLAGE OFFICER, ARANATTUKARA VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT 680 816. 3 JENASHEMAM KURIES PVT LTD., TKS BUILDING, HIGH RD, KURUPPAM, THEKKINKADU MAIDAN, THRISSUR 680 001. 4 RURAL KURIES PVT LTD., EASTERN BAZAR, PILLAKAD, THRISSUR , KERALA 680 00 5 TRISSUR KURIES SYNDICATE LTD., TKS BUILDING, HIGH RD, KURUPPAM, THEKKINKADU MAIDAN, THRISSUR 680 001. 6 KARUNYA KURIES LTD., FIRST FLOOR, C, JANARDHANAN SMARAK MANHIRAM, MANNADIAR LN, BEHIND RAGAM THEATRE, KURUPPAM, THRISSUR, KERALA 680 001. 7 INVEST GOLD AND GENERAL FINANCE LTD., INVEST HOUSE, MAVINCHODU P.O. URAKAM, THRISSUR 680 562. 8 SYSTEM KURIES PVT. LTD., MGM COMPLEX, MISSION QUARTERS, M T NAGAR, ANCHERY, **WP(C) NO. 15132 OF 2020** **2** THRISSUR, KERALA 680 001. 9 JACOB AND SONS MALIYAKKAL CHITS PRIVATE LIMITED REGISTERED ADDRESS IS DOOR NO. X/37/170 ADAM BAZAR, RICE BAZAR THRISSUR 680 001 IN. 10 YUVASAKTHI TRADERS LLP, CHEMBUKKAVU VILLAGE, THRISUSUR TALUK, REP. BY ITS MANAGER MATHEW T.L., AGED 58 YEAS, S/O. THOTTATHIL LONAPPAN, KOTTATT DESOM, PADINJARE CHALAKKUDY VILLAGE, CHALAKUDY TALUK 680 307. 11 SOORYAN, AGED 60 YEARS S/O. CHIRIYANKANDATH JOHNY, ARANATTUKARA VILLAGE, AYYANTHOLE DESOM, THRISSUR 680 816. BY ADV SMT.P.K.PRIYA SRI.K M FAIZAL-GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 15132 OF 2020** **3** ## **JUDGMENT** The HDFC Bank Limited, which is a banking company, has approached this Court seeking a direction to the 1[st] respondent – Sub Registrar to efface the entries of attachment reflected in the Encumbrance Certificate relating to the property involved in this case. They say that, they had obtained an equitable mortgage over the property in question on 29.11.2012, but that the borrower had defaulted repayment of the loan liability in time, thus constraining them to invoke the provisions of the 'SARFAESI Act', so as to bring it to sale. They say that, however, on account of the various entires of attachment shown in the Encumbrance Certificate, they are unable to do so and that they thus approached the Sub Registrar to efface them, all such being after the date of **WP(C) NO. 15132 OF 2020** **4** mortgage. They allege that, however, instead of doing so, the Sub Registrar has taken the stand that the attachments over the property have been obtained by respondents 3 to 11 validly from competent Court and cannot be hence effaced. 2. The petitioner contends that all the attachments are subsequent to the equitable mortgage and therefore, that, going by the settled position of law, as declared by this Court in _**Sajitha Nizar Alias Sajitha P.M v.**_ _**Secretary, Keechery Service Co-operative Bank**_ _**Ltd.,** [2020 (6) KLT 68]_ the 1[st] respondent is obligated to efface them from the records forthwith. 3. I have heard Sri.Binni Joseph – learned counsel for the petitioner and the learned Government Pleader – K.M.Faizal appearing for the official respondents. **WP(C) NO. 15132 OF 2020** **5** 4. In response to the afore submissions of the petitioner, the learned Government Pleader submitted that the 1[st] respondent has been incapacitated from acceding to the request of the petitioner, because he noticed that the attachments over the property are as ordered by competent Civil Courts. He pointed out to Ext.P4 Encumbrance Certificate in substantiation; but added that if this Court is inclined to find otherwise, the said Authority will abide by any direction to be issued. 5. I notice from the files that service of summons from this Court has been completed on respondents 3,4,5,7,8 and 10. As far as respondents 6,9 and 11 are concerned, the special messenger deputed from this Court to complete service on them has reported that these persons are not available in their addresses shown in the cause title of this **WP(C) NO. 15132 OF 2020** **6** case. When one examines Ext.P4 - which is the Encumbrance Certificate produced by the petitioner, the addresses of respondents 6,9 and 11 mentioned therein are the same as that which has been shown in this writ petition. I am, therefore, of the firm view that this Court will be justified in disposing of this writ petition in the manner that I presently propose. 6. It is now well settled, that without requirement to restate, the subsequent orders of attachment cannot over over side primary right of the financial institution/Bank to proceed against their secured asset, on strength of a prior equitable mortgage. 7. In the case at hand, it is without contest that the security interest over the property was created in favour of the Bank by the original owner of the property on **WP(C) NO. 15132 OF 2020** **7** 29.11.2012, by executing an equitable mortgage over it through deposit of its title deeds. Going by Ext.P4, every attachment reflected therein and obtained by respondents 3 to 11, are much after it and therefore, the declarations of this Court in various judgments, resting with _**Sajitha Nizar Alias Sajitha P.M (supra)**_ would certainly cover the field. In the afore circumstances, I order this writ petition and direct the 1[st] respondent to efface the entries of attachments over the property, as reflected in Ext.P4 obtained by respondents 3 to 11, within a period of two weeks from the date of receipt of a copy of this judgment. As far as the contesting respondents are concerned, I certainly leave them full liberty to invoke every remedy that may be available to **WP(C) NO. 15132 OF 2020** **8** them in law, including to obtain the balance of the sale consideration that may become available to the Bank, if any, after sale of the secure asset or even to challenge the sale as they may be advised; for which purpose, all their respective contentions are left open. Sd/- ## **DEVAN RAMACHANDRAN** **JUDGE** SAS **WP(C) NO. 15132 OF 2020** **9** ## **APPENDIX OF WP(C) 15132/2020** PETITIONER'S EXHIBITS EXHIBIT P1 THE TRUE COPY OF THE 13 (2) NOTICE DATED 6.5.2014, ISSUED BY THE PETITIONER. EXHIBIT P2 THE TRUE COPY OF THE POSSESSION NOTICE DATED 17.7.2015. EXHIBIT P3 THE TRUE COPY OF THE POSSESSION NOTICE DATED 11.11.2015 PERTAINING TO THE PROPERTIES COVERED BY DOCUMENTS 2058/1996, 3273/1999 AND 1734/2001 LL OF AYYANTHOLE SRO. - EXHIBIT P4 THE TRUE COPY OF THE ENCUMBRANCE CERTIFICATE FOR THE PERIOD FROM 1/1/2008 TO 26/6/2020 PERTAIN TO 6.10. CENTS OF PROPERTIES COVERED BY SALE DEED NO. 7626/2004 OF AYYANTHOLE SRO. EXHIBIT P5 THE TRUE COPY OF THE JUDGMENT OF THIS HONBLE COURT IN WPC 13123/2018 DATED 12/4/2018. EXHIBIT P6 THE TRUE COPY OF THE ANOTHER JUDGMENT OF WRIT PETITION WPC 35979 F 2018 DATED 5/11/2018.