MITHA P R and VIVEK K S v Sub Registrar, Thrikkakara; The State Bank of India, SARB-II; ADDL.R3 and ADDL.R4

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 2[ND] DAY OF APRIL 2024 / 13TH CHAITHRA, 1946** **WP(C) NO. 6010 OF 2024** ## **PETITIONERS:** **1 MITHA P R AGED 37 YEARS W/O VIVEK K S, RESIDING AT PARAPPURATH, ERATTUPETTA P O, ERATTUPETTA, KOTTAYAM, PIN - 686121 2 VIVEK K S AGED 39 YEARS S/O K S SATHYAN, RESIDING AT DWARAKA, AVALOOKKUNNU P O, ALAPPUZHA, PIN – 688006** **BY ADVS. C.R.SANISH KARTHIK S. ACHARYA ANJANA K.P. CISLY GRASHIOUS** ## **RESPONDENTS:** **1 THE SUB REGISTRAR SUB REGISTRY OFFICE, THRIKKAKARA, KAKKANAD ERNAKULAM DISTRICT, PIN - 682030 2 THE STATE BANK OF INDIA SARB-II, ERNAKULAM REPRESENTED BY ITS CHIEF MANAGER AND AUTHORIZED OFFICER SMT.ASHA KARUNAKARAN NAIR, W/O C G BHAGYANATHAN, PIN - 682035 ADDL.R3. T.N. SUBRAMANION S/O NARAYANAN IYER, RESIDING AT VANAMALI, ANANTHAPURAM LANE, THAMMANAM P O, ERNAKULAM, PIN-682032.** : 2 : W.P.(C) No.6010/2024 **ADDL.R4 HEDGE FINANCE LIMITED RESPRESENTED BY SENIOR MANAGER MADHU E** **M/S. HEDGE FINANCE LTD, HEDGE HOUSE, MAMANGALAM, PALARIVATTOM, ERNAKULAM, PIN-682025 REPRESENTED BY ITS SENIOR MANAGER MADHU E, S/O KELAPPAN** **(ADDL.R3 AND ADDL.R4 ARE IMPLEADED AS PER ORDER DATED 07-03-2024 IN IA NO.1/24 IN W.P. (C)NO.6010/24)** **BY ADVS. TOM K.THOMAS NIKHIL JOHN SHIJU VARGHESE SMT. REKHA C. NAIR, SR. GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.6010/2024 : 3 : ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` ## W.P.(C) No.6010 of 2024 ````````````````````````````````````````````````````````````` _Dated this the 2[nd] day of April, 2024_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The petitioners seek to direct the 1[st] respondent to register Ext.P1 Sale Certificate in favour of the petitioners within a time frame. 2. The petitioners state that they have purchased 4.10 Ares of property along with right of way through 0.75 Ares of property comprised in survey No.136/3, Block No.7 in Thrikkakkara Village, Kanayannur Taluk. The property was purchased in a proceeding under Rule 9(6) of the Security Interest (Enforcement) Rules, 2002. Ext.P1 is the Sale Certificate dated 06.02.2024. 3. The 1[st] respondent-Sub Registrar, however, refused to register the Sale Certificate on the ground that there are W.P.(C) No.6010/2024 : 4 : three attachments shown in the property covered under the Sale Certificate issued by the 2[nd] respondent-Bank. The petitioners state that the three attachments over the property were effected subsequent to the equitable mortgage dated 26.12.2016. Therefore, the 1[st] respondent is duty bound to register Ext.P1 sale certificate in favour of the petitioners. 4. I have heard the learned counsel for the petitioners, the learned Standing Counsel representing the 2[nd] respondent, the respective counsel representing respondents 3 and 4 and the learned Government Pleader appearing on behalf of the 1[st] respondent. 5. The pleadings and arguments in the writ petition would indicate that the mortgage of the property to the Bank was made on 26.12.2016. The petitioners purchased in auction the said property in the year 2024. Ext.P1 Sale Certificate is dated 06.02.2024. The attachment of the property in question was made subsequent to the mortgage on 26.12.2016. This is evident from Ext.P2 Encumbrance Certificate. W.P.(C) No.6010/2024 : 5 : 6. 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 SubRegistrar and the Village Officer to efface the attachments effected subsequent to the mortgage from the relevant records. W.P.(C) No.6010/2024 : 6 : 7. 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**_ (supra). 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 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 W.P.(C) No.6010/2024 : 7 : 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) Taking into consideration the law laid down by this Court, the writ petition is disposed of directing the 1[st] respondent to take necessary steps to efface/remove attachments from official records and to register Ext.P1 Sale Certificate in favour of the petitioners within a period of two months. Sd/- **N. NAGARESH, JUDGE** aks/14.05.2024 W.P.(C) No.6010/2024 : 8 : ## **APPENDIX OF WP(C) 6010/2024** **PETITIONER'S EXHIBITS** **Exhibit P1 THE TRUE COPY OF THE SALE CERTIFICATE DATED 06/02/2024 ISSUED BY THE 2ND RESPONDENT UNDER RULE 9(6) OF THE SECURITY INTEREST (ENFORCEMENT) RULES, 2002.** **Exhibit P2 THE TRUE COPY OF THE ENCUMBRANCE CERTIFICATE OF THE PROPERTY COVERED UNDER EXT.P1 SALE CERTIFICATE.** **Exhibit P3** **THE TRUE COPY OF THE LETTER DATED 13/02/2024 ISSUED BY THE 2ND RESPONDENT BANK TO THE PETITIONERS CONFIRMING THE EQUITABLE MORTGAGE BY SRI.ALIAS K K TO 2ND RESPONDENT BANK ON 26/12/2016.**