Housing Development Finance Corporation Limited v. Sub Registrar, Thrissur; Village Officer, Vilvattom; Tahsildar, Thrissur; Prasanth K.P.; Surendarn K.G.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN TUESDAY, THE 14[TH] DAY OF NOVEMBER 2023 / 23RD KARTHIKA, 1945 ``` ## **`WP(C) NO. 12129 OF 2023`** ## **`PETITIONER:`** ``` M/S. HOUSING DEVELOPMENT FINANCE CORPORATION LIMITED, DOOR NO.39/6457 OF COCHIN CORPORATION, RAVIPURAM JUNCTION, M.G.ROAD, PERUMANOOR P.O., PIN – 682015 ERNAKULAM DISTRICT REPRESENTED BY ITS AUTHORIZED OFFICER SRI. SACHIN A S, S/O T K SHANAVAS, AGED 40 YEARS ``` ``` BY ADVS. SHIJU VARGHESE SACHU THOMAS ``` ## **`RESPONDENTS:`** - **`1 THE SUB REGISTRAR, THRISSUR SUB REGISTRAR'S OFFICE, PALACE ROAD, CHEMBUKKAVU, THRISSUR DISTRICT, PIN - 680020`** - **`2 THE VILLAGE OFFICER, VILVATTOM VILLAGE, VILVATTOM P O, THRISSUR DISTRICT, PIN - 680008`** - **`3 THE TAHSILDAR THRISSUR TALUK OFFICE, THRISSUR, THRISSUR DISTRICT, PIN - 673020`** - **`4 PRASANTH K.P.,(ADDL. R4.) S/O KUTTANKULANGARA PRAKASHAN, AGED 43, T C NO. 18/114, KIZHAKKUMPATTUKARA DESOM, KIZHAKKEKOTTA P O, CHEMBUKKAVU VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT, PIN-680005.`** - **`5 SURENDARN K.G., AGED 49,(ADDL. R5.) KOZHIPARAMBIL HOUSE, KUTTUMUCK, CHEROOR, CHEROOR P O, THRISSUR DISTRICT, PIN-680 008 ARE IMPLEADED AS ADDITIONAL RESPONDENTS R4 AND R5 AS PER ORDER DATED 01.11.2023 IN I.A. 1/2023 IN WP(C) 1219/2023.`** - **`BY ADVS. SMT. DEEPA NARAYANAN – SENIOR GOVERNMENT PLEADER`** ``` 2 ``` ## **`WP(C) NO. 12129 OF 2023`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 12129 OF 2023 ``` ``` 3 ``` ## **`JUDGMENT`** The 4[th] respondent availed a loan from the petitioner financial institution creating equitable mortgage by deposit of title deed. The 4[th] respondent defaulted repayment and the petitioner initiated proceedings under the SARFAESI Act and the property was put up for sale. Ext.P3 is the sale certificate. After the creation of the equitable mortgage, the 5[th] respondent filed O.S. No.1034/2022 before the Munsiff Court, Thrissur against the 4[th] respondent and obtained an order of attachment in respect of the mortgaged property. The petitioner submits that the said attachment is subsequent to the equitable mortgage created by the 4[th] respondent and shall not defeat the sale conducted by the petitioner under the provisions of SARFAESI Act. Though the petitioner approached the 1[st] respondent for registration of sale certificate, the 1[st] respondent, Sub Registrar refused to register the same citing the order of attachment. The petitioner submitted Ext.P5 application before the ``` WP(C) NO. 12129 OF 2023 ``` ``` 4 ``` 1[st] respondent, to efface the attachment effected by the Munsiff Court, Thrissur in O.S No. 1034/2022 from the encumbrance register. The grievance of the petitioner is that Ext.P5 request is not so far considered. 2. Heard the learned counsel for the petitioner and the learned Government Pleader for respondents 1 to 3. 3. The petitioner contends that since the attachment by the Munsiff Court is subsequent to the creation of equitable mortgage, the entry regarding the attachment has to be effaced from Book No.1 maintained by the 1[st] respondent under Section 89 of the Registration Act. The learned counsel for the petitioner refers to the decision of this Court in **Shamla K.U. and Another v. Sub Registrar, Kodungalloor [2018 KHC 811]** wherein this Court has relegated the petitioner therein to the Sub Registrar to decide the question as to whether there is any attachment subsequent to the creation of the equitable mortgage and whether the entry can be ``` WP(C) NO. 12129 OF 2023 ``` ``` 5 ``` ## effaced from the encumbrance register. Paragraph 11 of the said decision reads as follows:- _11. However, the beneficiary of the attachment order referred to in serial No.9 of Ext.P-3 certificate is not now made a party and therefore procedural fairness demands that he should be duly notified before the process of effacement of attachment order is completed and he could be heard on the limited factual issue, as to whether the attachment order in his favour has been issued before or after the date of creation of mortgage in this case. So also, a proper certificate by the financial institution showing the exact date of creation of mortgage in this case pursuant to Ext.P - 2 loan agreement is also not available before this Court. It is brought to the notice of this Court that the respondent - Sub-Registrar will be having copies of the orders of the Civil Court referred to in serial No.9 of Ext.P-3, showing the details like the name and address of the beneficiary of the attachment order in question. Accordingly, the following directions and orders are passed:_ _(i) The request of the petitioner in Ext.P-4 petition dated 25/10/2018 will stand remitted to the respondent - SubRegistrar, for consideration afresh._ _(ii) The petitioner will get an authenticated certificate from the financial institution concerned (HDFC), certifying the date of creation of the mortgage in this case, pursuant to Ext.P-2 loan agreement and the said certificate shall be issued by the said financial institution, through its authorized officer under the seal of the bank._ _(iii) The petitioner will produce copy of the said certificate before the respondent - Sub-Registrar, along with a certified copy of this judgment. Thereafter, the respondent Sub-Registrar will issue notice to the beneficiary of the attachment order, referred to as serial No.9 of Ext.P3 and hear the petitioner and the said party and decide on the limited factual issue, whether the attachment order in_ ``` WP(C) NO. 12129 OF 2023 ``` ``` 6 ``` _question has been rendered after the date of creation of the mortgage, in the instant case._ _(iv) In case, it is found that the attachment order in question referred to in serial No.9 of Ext.P - 3 has been rendered after the creation of the mortgage in this case, then the respondent shall make an additional entry in book No.1 as envisaged in S.89(5) of the Registration Act, 1908, noting therein that the said attachment order will stand effaced consequent to the directions issued by this Court in this judgment._ _(v) After completing the above process, the respondent - SRO will issue a fresh Encumbrance Certificate, without showing the impugned attachment order, on submission of requisite application in that regard and on payment of the prescribed fee, if any, in case the same has been effaced after following the process mentioned herein above._ _(vi) The petitioner may produce such fresh Encumbrance Certificate before the Village Officer concerned, who shall also then efface such encumbrance pursuant to the abovesaid attachment order, as shown in the revenue records and may issue necessary rights of records (ROR) certificate in respect of the property, if an application in that regard is made by the petitioner._ _With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of._ 4. In the light of the decision referred above, there will be a direction to the 1[st] respondent to consider Ext.P5 application, after hearing the petitioner and the additional respondents 4 and 5. If the 1[st] respondent takes a decision to efface the entry regarding order of attachment, the sale certificate presented before the 1[st] respondent ``` WP(C) NO. 12129 OF 2023 ``` ``` 7 ``` shall be registered, if the same is otherwise in order. This shall be done within a period of one month from the date of receipt of a certified copy of this judgment. There will be a further direction to the 2[nd] respondent, village officer to efface the attachment from Ext.P4 encumbrance certificate, consequent to such decision. The writ petition is disposed of. **Sd/-** **`MURALI PURUSHOTHAMAN JUDGE`** BR ``` WP(C) NO. 12129 OF 2023 ``` ``` 8 ``` ## **`APPENDIX OF WP(C) 12129/2023`** ``` PETITIONER’S EXHIBITS Exhibit P1TRUE COPY OF THE HOME LOAN AGREEMENT DATED 24.9.2013 Exhibit P2TRUE COPY OF THE HOME IMPROVEMENT LOAN AGREEMENT DATED 17.12.2013 Exhibit P3TRUE COPY OF THE SALE CERTIFICATE DATED 30.3.2023 Exhibit P4TRUE COPY OF THE ENCUMBRANCE CERTIFICATE BEARING NO.5544/2023 DATED 23.3.2023 Exhibit P5TRUE COPY OF THE APPLICATION DATED 24.3.2023 ``` ``` RESPONDENTS’ EXHIBITS: NIL ```