Joy's The Beach Resort Pvt. Ltd. v. Sub Registrar Chalai Sub Registry, Thiruvananthapuram; Tahsildar, Taluk Office, Thiruvananthapuram; Village Officer, Thycaud, Thiruvananthapuram; Authorized Officer, Union Bank of India, Thiruvananthapuram Main Branch; Hycount Enterprises and Exports

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 8[TH] DAY OF SEPTEMBER 2021 / 17TH BHADRA, 1943** ## **WP(C) NO. 23548 OF 2020** ## **PETITIONER:** **MR JOY'S THE BEACH RESORT PVT. LTD.** **CHOWARA, THIRUVANANTHAPURAM-695 501, REP BY ITS DIRECTOR SMT. GEETHA JOSE THOTTAM, RESIDING AT PX-7, DIAMOND CASTLE, VELLAYAMBALAM, THIRUVANANTHAPURAM-695 010** **BY ADV JOSE ANTONY** ## **RESPONDENTS:** - **1 THE SUB REGISTRAR CHALAI SUB REGISTRY, THIRUVANANTHAPURAM-695 002.** - **2 THE TAHSILDAR, TALUK OFFICE, THIRUVANANTHAPURAM-695 023.** - **3 THE VILLAGE OFFICER, VILLAGE OFFICE, THYCAUD, THIRUVANANTHAPURAM-695 014.** - **4 THE AUTHORISED OFFICER, UNION BANK OF INDIA, THIRUVANANTHAPURAM, MAIN BRANCH, M.G.ROAD, STATUE, THIRUVANANTHAPURAM-695 001.** - **5 HYCOUNT ENTERPRISES AND EXPORTS, 2ND MILE STONE, KILIKOLLOOR P.O.KOLLAM-691 004.** - **BY ADV SRI.LEO GEORGE** **SRI.ASHWIN SETHUMADHAVAN-SR.GP SRI.SADCHIT P KURUP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.09.2021,** **THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 23548 OF 2020** **2** ## **J U D G M E N T** The petitioner, which is stated to be a Company registered under the provisions of the Companies Act, 1956, claims to have purchased a property, having an extent of 2.02 Ares of land comprised of in Sy.No.1111/A1 of Thycaud Village, in an auction conducted by the 4th respondent - Authorized Officer of the Union Bank of India (hereinafter referred to as 'the Bank' for short). 2. The petitioner says that even though a valid Sale Certificate has been issued by the Bank in their favour and though they are entitled to occupy and possess the same under the full sanction of law, when they approached the 1st respondent - Sub Registrar for registration of the said Sale Certificate, it has been refused saying that there is an attachment over it, obtained by the 5th respondent from a competent Civil Court. 3. The petitioner points out that, even going by Ext.P4 Encumbrance Certificate, the order of attachment over the property - obtained by the 5th respondent from the Munsiff Court, Kollam, against the original owner of the property - is dated 23.03.2014; while the execution of the equitable mortgage by the said owner in favour of the Bank was early as in the year 2009, which is evident **WP(C) NO. 23548 OF 2020** **3** from Ext.P2 extract of 'Memorandum of Deposit of Title Deeds', maintained by the said Bank. 4. The petitioner, therefore, contends that, going by the decision of this Court in **Secretary, Keechery Service Cooperative BankLtd. v. Sajitha Nizar Alias Sajitha P.M (2020** **(6) KLT 68),** the 1st respondent is obligated to efface the entry of attachment over the property and to register the Sale Certificate without any delay. The petitioner, therefore, prays that 1st respondent be directed to do so within a time frame to be fixed by this Court. 5. I have heard Sri.Jose Antony K, learned counsel for the petitioner; Sri.Leo George, learned counsel appearing for the 5th respondent; Sri.Sadchit P. Kurup, learned Standing Counsel for respondent No.4 and the learned Senior Government Pleader - Sri.Ashwin Sethumadhavan, appearing for the official respondents. 6. Sri.Leo George, learned counsel appearing for the 5th respondent, in opposition to the afore request made on behalf of the petitioner, pointed out that, in Ext.P2, there is no whisper that the equitable mortgage was created in the year 2009. He argued that Ext.P2 is, in any case, a document which cannot inspire confidence, because the signature of the original owner of the property has not **WP(C) NO. 23548 OF 2020** **4** been subscribed therein. He submitted that the stand of the petitioner, that equitable mortgage was created over the property in question by its original owner - Sri.Varghese Cheriyan on 06.02.2009 is without truth; and added that, in any event, when one reads Ext.P2, it is clear that it cannot be construed as a proper 'Memorandum of Deposit of Title Deeds' and cannot be accepted by this Court, thus praying that this writ petition be dismissed. 7. The learned Standing Counsel for the Bank - Sri.Sadchit P. Kurup, however, confirmed that the title deeds of the property in question were mortgaged in favour of his client by the original owner - Sri.Varghese Cheriyan, on 06.02.2009; and he added that there are sufficient documents with the Bank in substantiation thereof. He argued that since the 5th respondent themselves admit that the attachment obtained by them over the property was only on 28.03.2014, same cannot inhibit the right of his client to sell the property or that of the petitioner to own it, under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act (SARFAESI). He, therefore, prayed that this writ petition be allowed. 8. The learned Senior Government Pleader - Sri.Ashwin Sethumadhavan, answered the submissions of the petitioner by **WP(C) NO. 23548 OF 2020** **5** saying that the 1st respondent - Sub Registrar was incapacitated from acting on the request for registration of the Sale Certificate, noticing a valid attachment from a competent Civil Court. He submitted that if this Court is inclined to direct him to register the document notwithstanding the same, he has no objection in doing so and prayed that no further orders be issued against the said respondent. 9. I have evaluated the afore submissions with great amount of care. 10. As I have already recorded above, the case of the 5th respondent is that Ext.P2 cannot establish that a valid equitable mortgage has been created over the property in question by its original owner in the year 2009. He also has a case that Ext.P2 does not even subscribe to the description of a 'Memorandum of Deposit Title Deeds' and therefore, that this Court cannot act on its terms. 11. However, the fact remains that the Bank has now confirmed that the equitable mortgage in their favour was in the year 2009 and that Ext.P2 is a document that has been validly maintained by them under the provisions of the Bankers' Books Evidence Act and other applicable Satutes. **WP(C) NO. 23548 OF 2020** **6** 12. I, therefore, cannot find any reason to disbelieve the Bank, particularly when the 5th respondent has not initiated any action against Ext.P2 or any of the other documents or entries evidencing deposit of title deeds in their favour in the year 2009. 13. That said, as per law, the obligation of the 1 st respondent is to verify whether the date of mortgage in favour of the 4 th respondent - Bank is prior to the date of attachment, and if so, he has no other option but to register the Sale Certificate, as per the provisions of the applicable Rules and Regulations. 14. Presumably knowing the mind of this Court as afore, Sri.Leo George, intervened at this stage to say that this Court may at least direct the Bank to inform his client if any excess amount is available with them, after adjusting the debt owned by the original owner, consequent to the sale of the property and that his client may be permitted to take legal recourse against the said amount, so that they can obtain it without any further delay. He added that he is making this request because his client has already obtained a decree against the original owner and therefore, that he is now entitled to the surplus amount, which is now remaining in the hands of the Bank. 15. I, therefore, asked Sri.Sadchit P. Kurup, learned counsel **WP(C) NO. 23548 OF 2020** **7** for the Bank, whether any such amounts are available with them and he submitted that if the 5th respondent approaches his client with a proper representation, the information sought for can be given to them in terms of law. In the afore circumstances, I order this writ petition and direct the 1st respondent - Sub Registrar to hear the petitioner, the 5th respondent as also the competent Authority of the Bank and then take a decision whether the date of mortgage in favour of the Bank is prior to the date of attachment obtained by the 5 th respondent; and if so, to register the Sale Certificate without any avoidable delay. Needless to say, the 5th respondent will also efface the entry with respect to the attachment in the records in terms of the judgment of this Court in **Secretary, Keechery Service Cooperative Bank Ltd.** ( _supra_ ) simultaneously. The afore exercise shall be completed by the Sub Registrar, as expeditiously as is possible but not later than one month from the date of receipt of a copy of this judgment. I make it clear that 5th respondent is at liberty to approach the Bank with a request to obtain information of any surplus amounts available with them; and to thereafter, approach the competent **WP(C) NO. 23548 OF 2020** **8** Court for necessary remedies against the same, as per the provisions of the Code of Civil Procedure Code. **==> picture [320 x 46] intentionally omitted <==** SD/- ## **DEVAN RAMACHANDRAN JUDGE** rp The word '5[th] respondent' occurring in the portion “needless to say, the 5[th] respondent will also efface the entry with respect to the attachment in the records in terms of the judgment of this Court in Secretary, Keechery Service Co-operative Bank Ltd. (supra) simultaneously” in paragraph 15 of the judgment is corrected as ''1[st] respondent”, as per order dated 27.06.2022 in I.A.No.3/2021 in WP(C)23548/2020. Sd/- Joint Registrar **WP(C) NO. 23548 OF 2020** **9** ## **APPENDIX OF WP(C) 23548/2020** ## **PETITIONER EXHIBITS** **EXHIBIT P1 COPY OF TITLE DEED NO 1605/2005 OF CHALAI SRO IN THE NAME OF VARGHESE** **EXHIBIT P2 COPY OF MEMORANDUM OF DEPOSIT OF TITLE DEED DATED 7.2.2009 DRAWN BY THE 4TH RESPONDENT** **EXHIBIT P3 COPY OF SALE CERTIFICATE DATED 3.4.2020 ISSUED IN FAVOUR OF THE PETITIONER EXHIBIT P4 COPY OF ENCUMBRANCE CERTIFICATE DATED 15.6.2020 ISSUED BY THE 1ST RESPONDENT** **EXHIBIT P5 COPY OF JUDGMENT DATED 10.1.2014 PASSED BY THIS HONPURABLE COURT IN WPC NO 28728/2013 REPORTED IN 2014(1) KLT 406.** **EXHIBIT P6 COPY OF JUDGMENT DATED 24.7.2015 PASSED IN WA NO 612/2015 BY THIS HON'BLE COURT**