M/S Sundaram BNP Paribas Home Finance Ltd (formerly Sundaram Home Finance Ltd) vs State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS FRIDAY, THE 6TH DAY OF JULY 2018 / 15TH ASHADHA, 1940** **WP(C).No. 21690 of 2018** ## **PETITIONER(S)** ## **------------** **M/S.SUNDARAM BNP PARIBAS HOME FINANCE LTD, WHICH WAS FORMERLY KNOWN AS M/S SUNDARAM HOME FINANCE LTD, PRESENTLY WORKING AT ELIZABETH ALEXANDER MEMORIAL BUILDING, II FLOOR, MARINE DRIVE, COCHIN-31, REPRESENTED BY AUTHORISED OFFICER & SENIOR LEGAL OFFICER, SHRI.ABDU ROSHAN ANDREWS, AGED 30, S/O JOSHY CYRIAC.** **BY ADV.SRI.VARGHESE C.KURIAKOSE** ## **RESPONDENT(S):** ## **-------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF REVENUE SECRETARIAT, THIRUVANANTHAPURAM 695 001.** **2. THE SUB REGISTRAR, SUB REGISTRAR'S OFFICE, KAPPALANDIMUKKU, MATTANCHERI, KOCHI 682 002.** **3. THE VILLAGE OFFICER, RAMESWARAM VILLAGE, PALLURUTHY, KOCHI 682 006.** **4. K.A ABDUL JABBAR, AGED 47, S/O K.M. ABOOBAKKAR, C.C. 4/1521A, BERNAD COLONY, KUNNUMPURAM ROAD, FORTKOCHI VILLAGE, KOCHI TALUK 682 001.** **5. M.M. SHOUKKATH, AGED 42, S/O.M.S. MUHAMMED KUTTY, EARAVELIL FORTKOCHI VILLAGE, KOCHI TALUK, ERNAKULAM.** **TS** ## **WP(C).No. 21690 of 2018 (I)** **--------------------------** ## **6. AUGUSTINE JACKSON,** **AGED 42, S/O PETER DOURAV, MALIAKKAL HOUSE, NAMBIAPURAM DESOM, RAMESWARAM VILLAGE, PALLURUTHY, KOCHI TALUK, 682 002.** ## **7. GREENY JACKSON,** **AGED 39, W/O AUGUSTINE JACKSON, MALIAKKAL HOUSE, NAMBIAPURAM DESOM, RAMESWARAM VILLAGE, PALLURUTHY, KOCHI TALUK 682 002.** **R1 TO R3 BY SENIOR GOVERNMENT PLEADER SRI.SAIGI JACOB PALATTY R4 & R5 BY ADV. SRI.M.H.HANIS** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06-07-2018, ALONG WITH WPC.NO.21691/2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **TS** ## **WP(C).No. 21690 of 2018 (I)** ## **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** **EXHIBIT P1 TRUE PHOTOCOPY OF THE LOAN AGREEMENT DATED 06-09-2011 PERTAINING TO FIRST TRANSACTION. EXHIBIT P2 TRUE PHOTOCOPY OF THE LOAN AGREEMENT DATED 22-06-2012 PERTAINING TO SECOND TRANSACTION. EXHIBIT P3 TRUE PHOTOSTAT COPY OF THE ENCUMBRANCE CERTIFICATE. EXHIBIT P4 TRUE PHOTOSTAT COPY OF THE PLAINT IN O.S NO 41/2016 ON THE FILES OF SUB COURT KOCHI. EXHIBIT P5 TRUE PHOTOSTAT COPY OF THE CLAIM PETITION AS I.A NO 238/2018 SEEKING TO LIFT THE ATTACHMENT AND RELEASE THE SAME AND ERASE THE ENTRY FROM THE SUB REGISTRY RECORDS. EXHIBIT P6 TRUE PHOTOSTAT COPY OF THE REPRESENTATION DATED 13-06-2018 SENT THROUGH REGISTERED POST ON 14-06-2018.** **RESPONDENT(S)'EXHIBITS - NIL -----------------------------** **/TRUE COPY/** **PS TO JUDGE** **TS 07.07.2018** ## **ALEXANDER THOMAS, J.** ## ========================== ## **W.P(C)Nos.21690 & 21691 of 2018** ## =========================== Dated this the 06[th] day of July, 2018 ## **JUDGMENT** ## The prayers in W.P(C)No.21690/2018 are as follows : “(i) Declare that the attachment effected by the attaching creditors/respondents 4 and 5 through I.A.No.635/2016 in O.S.No.41/2016 on the files of Sub Court Kochi is an invalid attachment and that does not have any bearing upon secured interest which the petitioner is having upon two items of properties , one item being (1) All that is part and parcel of land having an extent of 0.60 Ares of property comprised in Sy.No.938/1 of Rameswaram village more particularly described in the schedule to sale deed No.2107/2010 of SRO, Kochi with other improvements situated thereon and the second Item being (2) All that is part and parcel of land having an extent of 9.72 Ares of property comprised in Sy.No.938/1 of Rameswaram village more particularly described in the schedule to sale deed No.2141/2010 of SRO, Kochi with other improvements situated thereon and further declare that the petitioner is free to sell the property ignoring the attachment and that the purchaser can enjoy the same ignoring the said attachment. (ii) Issue writ, order or direction in the nature of Mandamus or other appropriate writ, directing respondents 2 and 3 to erase the attachment effected through I.A.No.635/2016 in O.S.No.41/2016 on the files of Sub Court Kochi from the entries of sub registry and from the entries of the village office recording the attachment and further direct them to effect sale when presented by the petitioner in relation to the secured interest properties and effect mutation. (iii) Allow the petitioner to recover the full costs incurred for the institution and conduct of the writ petition from the respondents No.4 to 7.” ## 2. The prayers in W.P(C)No.21691/2018 are as follows : “(i) Declare that the attachment effected by the attaching creditors/Joseph Jilban the 4[th] respondent through I.A.No.2179/2016 in O.S.No.292/2016 on the files of Munsiff Court Kochi is an invalid attachment and that does not have any bearing upon secured interest which the petitioner is having upon two items of properties, one item being (1) All that is part and parcel of land having an extent of 0.60 Ares of property comprised in Sy.No.938/1 of Rameswaram village W.P(C)Nos.21690 & 21691 of 2018 2 more particularly described in the schedule to sale deed No.2107/2010 of SRO, Kochi with other improvements situated thereon and the second Item being (2) All that is part and parcel of land having an extent of 9.72 Ares of property comprised in Sy.No.938/1 of Rameswaram village more particularly described in the schedule to sale deed No.2141/2010 of SRO, Kochi with other improvements situated thereon and further declare that the petitioner is free to sell the property ignoring the attachment and that the purchaser can enjoy the same ignoring the said attachment. (ii) Issue writ, order or direction in the nature of Mandamus or other appropriate writ, directing respondents 2 and 3 erase the attachment effected through I.A.No.2179/2016 in O.S.No.292/2016 on the files of Munsiff Court Kochi from the entries of the sub registry and from the entries of the village office recording the attachment and further direct them to effect sale when presented by the petitioner in relation to the secured interest properties and effect mutation. (iii) Allow the petitioner to recover the full costs incurred for the institution and conduct of the writ petition from the respondents No.4 and 5.” 3. Heard Sri.Varghese.C.Kuriakose, learned counsel appearing for the writ petitioner, Sri.Saigi Jacob Palatty, learned Sr.Government Pleader appearing for official respondents 1 to 3 in these cases. Sri.M.H.Hanis, learned counsel appearing for respondents 4 and 5 in W.P.(C)No.21690/2018. Though notices have been duly served on R6 in W.P.(C)No.21690/2018 and R4 in W.P.(C)No.21691/2018, those parties have not entered appearance. Notices to R6 & R7 in W.P.(C)No.21690/2018 and R5 in W.P.(C)No.21691/2018 have been returned with the W.P(C)Nos.21690 & 21691 of 2018 3 endorsement that he is not at residence. It is pointed out by the learned counsel for the petitioner that R6 in W.P. (C)No.21690/2018, Sri.Augustine Jackson (who is also impleaded as R5 in W.P.(C)No.21691/2018) is the husband of Smt.Greeny Jackson, who is R7 in W.P.(C)No.21690/2018 have been duly served. In the nature of the orders proposed to be passed in these writ petitions, notice to the unserved respondents concerned in these W.P(C)s will stand dispensed with. 4. The essential contention of the petitioner company is that they had secured mortgage in respect of the property concerned in these two cases, against which the contesting respondents concerned have secured attachments from civil courts, in civil litigative proceedings initiated by them against the defendants therein. It is the contention of the petitioner that since the attachment orders in these cases have been granted only after the effecting of the mortgage, such attachment orders, will have no effect and is liable to be effaced, in view of the possession well secured by this Court in a series of cases as in the judgment in **Madhan v. Sub Registrar** reported in **2014 (1) KLT 406,** the main question to consider as to whether the attachments effected W.P(C)Nos.21690 & 21691 of 2018 4 subsequent to the creation of the equitable mortgage could be effaced after the property is purchased by another in a sale conducted by the recovery officer of the Debt Recovery Tribunal etc. It was conclusively and categorically held by this Court in the said decision that the preponderance of judicial opinion leads to the irresistible conclusion that the sale of the mortgaged property in favour of the petitioner therein under sale certificate under the Act is free from all encumbrances and that the attachments effected subsequent to the mortgage created in favour of the petitioner bank do not affect the title encumbrances and that the attachments effected subsequent to the mortgage created in favour of the bank do not affect the title and ownership of the petitioner therein over the subject property and such attachments have no impact on the sale conducted under the Act and the same ceases to have any effect or fall to the ground the moment the sale is confirmed in favour of the petitioner. Accordingly, this Court had granted a declaration of law as aforestated and further directed the Sub-Registrar concerned and the Village Officer concerned therein to efface the attachments in the impugned attachments effected therein subsequent to the mortgage for the relevant records. It W.P(C)Nos.21690 & 21691 of 2018 5 was held by this Court that otherwise, those attachments would remain as a permanent taboo prejudicially affecting the marketability and title to the property even though they have ceased to have any legal efficacy. It would be pertinent to refer to paras 1 and 9 of the abovesaid decision of this Court in **Madhan’s** **case** supra which reads as follows (see KLT report) : “Can the attachments effected subsequent to the creation of equitable mortgage be effaced after the property is purchased by another in sale conducted by the Recovery Officer of the Debts Recovery Tribunal? 9. The 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 under the Act 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 under the Act and the same ceases to have any effect or fall to the ground the moment the sale is confirmed in favour of the petitioner. The declaration so sought by the petitioner is therefore granted and I further direct the Sub-Registrar and the Village Officer to efface the attachments effected subsequent to the mortgage from the relevant records. Otherwise those attachments would remain as a permanent taboo prejudicially affecting the marketability and title to the property even though they ceased to have any legal efficacy. The needful in relation to the property bought by the petitioner shall be done within a period of two months from the date of receipt of a copy of this judgment.” However, this Court is not proposing to adjudicate the factual issues as to whether or not the impugned attachment orders concerned in these cases have been effected after the effecting of W.P(C)Nos.21690 & 21691 of 2018 6 the mortgage etc. Accordingly, it is now submitted by the petitioner that they have submitted necessary application before the respondent SRO which is produced as Ext.P6 in these cases requesting for effacement of the attachments which have been effected after the mortgage etc. However, it is seen that the affected parties have not been specifically made parties therein. Accordingly, it is ordered that it is for the petitioner to file proper separate applications before the 2[nd] respondent Sub Registrar, SRO, Mattancheri, in these two cases and the affected persons should also be made parties in that application. Proper applications in that regard may be submitted by the petitioner within one week from the date notified for receiving the certified copy of this judgment. Upon receipt of the such applications, the 2[nd] respondent SRO will issue notices to the contesting parties therein and then should permit the parties to make available the requisite documents concerned. The petitioner may produce the attested photocopies of the title deeds concerned on the basis of which they claim the mortgage, and the originals of such title deeds may be made available to the respondent SRO for perusal and verification. The papers relating to the encumbrances may W.P(C)Nos.21690 & 21691 of 2018 7 also be made available by the parties concerned before the SRO. Thereafter, after hearing both sides, the 2[nd] respondent SRO will decide the factual issue as to whether the impugned attachment orders concerned in these two cases have been effected after the mortgage in question. If it is found that the attachment orders have been effected after the mortgage in these cases, then the 2[nd] respondent SRO will take necessary steps to efface those attachments from the relevant records, as otherwise those attachments would remain as a permanent taboo prejudicially affecting the marketability and title to the property, even though they ceased to have legal efficacy, as held by this Court in **Madhan’s case** supra. Necessary opportunity of hearing may also be afforded to the parties concerned which may be effected within 10 days after the receipt of the applications from the petitioner. Appropriate orders as aforestated should be passed by the 2[nd] respondent SRO within 2 weeks from the date of conclusion of the said hearing. Further, it is also made clear that it will also open to the petitioner to file such separate applications before the competent revenue official concerned. If he has any grievances in that matter, which may also be considered by such W.P(C)Nos.21690 & 21691 of 2018 8 competent authority, after hearing the necessary parties and in the light of the abovesaid dictum laid down by this Court in **Madhan’s case** supra reported in **2014 (1) KLT 406** . With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** vgd/09.07.18