Manappuram Home Finance Limited, Kottayam Branch v. Rajesh N. P. and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942** ## **W.P(C).No.3529 OF 2021(M)** ## **PETITIONER:** **MANAPPURAM HOME FINANCE LIMITED KOTTAYAM BRANCH, 2ND FLOOR LOGOS CENTER, LOGOS JUNCTION, KOTTAYAM – 686 001, REPRESENTED BY ITS BRANCH MANAGER AND AUTHORIZED SIGNATORY, BLESSON C.M., AGED 30 YEARS, S/O. C.P. MOHANAN, CHETTIYAMMODIYIL, CHEENTHALAR P. O., IDUKKI – 685 501.** **BY ADVS. SRI. C. HARIKUMAR SRI. RENJITH RAJAPPAN SRI. ANAND GOKULDAS** ## **RESPONDENTS:** **1 RAJESH N. P., 8/1033, NJATTUVETTY VILLADAM THEKKUMURI, HARITHA NAGAR, RAMAVARMAPURAM P. O., THRISSUR – 680 631.** - **2 AMBILI CHANDRAN, 8/1033, NJATTUVETTY VILLADAM THEKKUMURI, HARITHA NAGAR, RAMAVARMAPURAM P. O., THRISSUR – 680 631.** - ***R3 DREAM FINANCE, FIRST FLOOR, N.P.TOWER, NEAR KERALA VARMA COLLEGE JUNCTION, WEST FORT, ASVARY NAGAR, POOTHOLE, THRISSUR – 680 004, REPRESENTED BY ITS MANAGER. (DELETED)** - **4 ICL FINCORP, BAZAR ROAD, PUDUKKAD, THRISSUR – 680 301, REPRESENTED BY ITS MANAGER.** - ***R5 SOMAN, S/O. PARAMESWARAN, MOZHIKKULANGARA HOUSE, C3/2, P AND T QUARTERS, POOTHOLE P. O., ANARATTUKKARA VILLAGE, THRISSUR – 680 004.(DELETED)** - **6 MATHRUKA LEASING AND HIRE PURCHASE COMPANY PRIVATE LIMITED, 25/1130/77/1, 3RD FLOOR, CITY CENTER, ROUND NORTH, THRISSUR – 680 001, REPRESENTED BY ITS MANAGER.** WP(C).No.3529 OF 2021 2 - **7 HILL VALLEY TRICHUR NIDHI LIMITED, 400-A, EZHUTHUPURAKKAL HOUSE, MULANKUNNATHUKAVU, THRISSUR – 680 581, REPRESENTED BY ITS MANAGER.** - **8 CAPITAL FIN RESERVE LIMITED, TATA CAPITAL, TRADE CENTER, KURUPPAM ROAD, THRISSUR – 680 001, REPRESENTED BY ITS MANAGER.** - **9 JMJ FINANCE, DOOR NO.21/349/29, WEST FOR JUNCTION, CIVIL LINES ROAD, THRISSUR – 680 004, REPRESENTED BY ITS MANAGER.** **10 RADHAKRISHNA FINANCE PRIVATE LIMITED, ANGELS NAGAR, OLLUR TOWN, THRISSUR – 680 306, REPRESENTED BY ITS MANAGER. 11 SUB REGISTRAR, OFFICE OF THE SUB REGISTRAR OFFICE, CHEMBUKKAV, THRISSUR – 680 020.** ***R3 AND R5 DELETED FROM PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER DATED 03.03.2021 IN I.A. NO.1/2021 IN WPC No.3529/2021.** **R4 BY ADV. SHRI.M.BAIJU NOEL R7 BY ADV. SRI.LINDONS C.DAVIS R7 BY ADV. SMT.E.U.DHANYA R7 BY ADV. SRI.RAJITH DAVIS R9 BY ADV. SRI.C.K.ANWAR R9 BY ADV. SRI.K.S.SUMEESH** **SMT. K. AMMINIKUTTY, SR. GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.3529 OF 2021 3 ## **J U D G M E N T** The petitioner, the secured creditor of property having an extent of 5 cents in Survey No.285/2 of Vilvattom Village in Thrissur Taluk covered by Deed No.4033/2014 of the Sub Registrar Office, Thrissur, which is one executed in favour of one Shyam Mohan N.M, the auction purchaser, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 11[th] respondent Sub Registrar, Chembukkav, Thrissur to permit registration of EXt.P5 Sale Certificate dated 01.11.2020 executed under Section 19 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 read with Rules 8 and 9 of the Security Interest Enforcement Rules, 2002, of the said property. 2. On 11.02.2021, when this writ petition came up for admission, urgent notice on admission by special messenger was ordered to respondents 1 to 10, returnable by 19.02.2021. The learned Government Pleader took notice on admission for the 11[th] respondent. On 03.03.2021, the petitioner has filed I.A.No.1 of 2021 seeking an order to delete respondents 3 and 5 from the WP(C).No.3529 OF 2021 4 party array and that application was allowed, at the risk of the petitioner. 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 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 WP(C).No.3529 OF 2021 5 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; “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 WP(C).No.3529 OF 2021 6 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 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 5 cents comprised in Sy.No.285/2 of Vilvattom Village covered by Deed No.4033/2014 WP(C).No.3529 OF 2021 7 of the Sub Registrar Office, Thrissur, was mortgaged with the petitioner on 30.05.2016, as per Exts.P1 and P1(a) loan agreements dated 30.05.2016 executed by the petitioner. Respondents 3 to 10 obtained attachment over the said property as evidenced by Ext.P6 encumbrance certificate dated 24.06.2020 issued by the 11[th] respondent, much after 30.05.2016, the date of mortgage in favour of the petitioner. Therefore, the petitioner would contend that, 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 property in question, which is mortgaged to the petitioner secured creditor on 30.05.2016, and as such, the 11[th] respondent Sub Registrar has to permit registration of Ext.P5 sale certificate dated 01.11.2020. Having considered the submission made by the learned counsel for the petitioner and the learned Senior Government Pleader for the 11[th] respondent and also the learned counsel for respondents 4, 7 and 9, this writ petition is disposed of with the following directions:- i) Within two weeks from the date of receipt of a certified WP(C).No.3529 OF 2021 8 copy of this judgment, the petitioner shall produce necessary documents before the 11[th] respondent Sub Registrar to show that the property covered by Ext.P5 sale certificate was mortgaged with the petitioner on 30.05.2016. ii) Thereafter, the 11[th] respondnt shall consider favourably to the request made by the petitio **ne** r for registration of Ext.P5 sale certificate, within a further period of four weeks, in case all the attachment **s** reflected in Ext.P6 encumbrance certificate are subsequent to the date of mortgage. No order as to costs. Sd/- **ANIL K. NARENDRAN, JUDGE** SPR WP(C).No.3529 OF 2021 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **THE TRUE COPY OF THE LOAN AGREEMENT BETWEEN THE PETITIONER AND THE 1ST RESPONDENT DATED 30.05.2016.** **EXHIBIT P1(a) THE TRUE COPY OF THE LOAN AGREEMENT BETWEEN THE PETITIONER AND THE 2ND RESPONDENT DATED 30.05.2016.** - **EXHIBIT P2 THE TRUE COPY OF THE NOTICE ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT UNDER SECTION 13(2) OF THE ACT DATED 01.09.2018.** - **EXHIBIT P2(a) THE TRUE COPY OF THE NOTICE ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT UNDER SECTION 13(2) OF THE ACT DATED 01.09.2018.** **EXHIBIT P3 THE TRUE COPY OF THE ORDER IN CRL.M.P.NO.1972 OF 2019 ON THE FILE OF THE CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR DATED 18.05.2019.** **EXHIBIT P4 THE TRUE COPY OF THE SALE NOTICE WAS PUBLISHED IN THE INDIAN EXPRESS DAILY NEWSPAPER DATED 12.06.2020.** **EXHIBIT P5 THE TRUE COPY OF THE SALE CERTIFICATE ISSUED BY THE PETITIONER DATED 01.11.2020.** **EXHIBIT P6 THE TRUE COPY OF THE CERTIFICATE OF ENCUMBRANCE OF THE PROPERTY NO.7623/20 ISSUED BY THE REGISTRATION DEPARTMENT GOVERNMENT OF KERALA DATED 24.06.2020.** **RESPONDENT'S/S EXHIBITS: NIL.**