Muthoot Housing Finance Company Limited v. Samji Joseph and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 14[TH] DAY OF JUNE 2022 / 24TH JYAISHTA, 1944 WP(C) NO. 18536 OF 2020** ## **PETITIONER** MUTHOOT HOUSING FINANCE COMPANY LIMITED BRANCH OFFICE AT FIRST FLOOR, HALCYON BUILDING, C.C.54/17434, MAIN AVENUE, PANAMPILLY NAGAR, ERNAKULAM, PIN - 682 036, REPRESENTED BY ITS AUTHORIZED OFFICER MR. ARUN CHADRE. BY ADVS. SHAJI CHIRAYATH SMT.JIJI M. VARKEY SMT.G.SAVITHA SRI.M.M.SHAJAHAN ## **RESPONDENT** 1 SAMJI JOSEPH AGED 47 YEARS S/O. JOSEPH, RESIDING AT KANDATHILPARAMBIL HOUSE, ERUMATHALA P. O., CHUNGAVELI, ALUVA, ERNAKULAM, PIN - 683 112. 2 LAYA SAMJI AGED 43 YEARS W/O. SAMJI JOSEPH, RESIDING AT KANDATHILPARAMBIL HOUSE, ERUMATHALA P. O., CHUNGAVELI, ALUVA, ERNAKULAM, PIN - 683 112. 3 SHRIRAM TRANSPORT FINANCE COMPANY LIMITED BRANCH OFFICE AT 1ST FLOOR, KANNAMPARAMBAN BUILDING, MUDAVOOR P. O., VAZHAPPILLY JN., MUVATTUPUZHA, ERNAKULAM, ITS BRANCH MANAGER AND PRINCIPAL OFFICER, PIN - 686661. 4 GOLDWIN KURIES DEWASAM NADA, CHERAI P. O. - 683514, REPRESENTED BY ITS MANAGING PARTNER, MR. RADHAKRISHNAN. 5 SUB REGISTRAR OFFICE OF THE SUB REGISTRAR OFFICE, ALUVA, W.P.(C) No.18536 of 2020 : 2 : ALUVA P. O., ERNAKULAM DISTRICT, PIN - 683 101. BY ADVS. K.S.SREERAJ SRI.C.HARIKUMAR SRI.K.S.BABU SMT.N.SUDHA SRI.RENJITH RAJAPPAN SRI.BABU SHANKAR SHRI.ANAND GOKULDAS SMT.MINU SIBY ROY SRI.T.N.JAYADEVAN ## **OTHER PRESENT:** SRI.SYAMANTHAK B S, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.18536 of 2020 : 3 : ## **J U D G M E N T** ## _**Dated this the 14[th] day of June, 2022**_ The petitioner which is a financial institution as envisaged under Section 2(m) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act), has approached this Court seeking to direct the 5[th] respondent for registration of Ext.P5 Sale Certificate pursuant to the sale of immovable properties under the SARFAESI Act. 2. In a SARFAESI proceedings against respondents 1 and 2, the properties of respondents 1 and 2 were put to sale. The properties were purchased by one Pradesh Chacko. Thereafter, the petitioner approached the 5[th] respondent to register Ext.P5 Sale Certificate. But, the Sub Registrar refused to register the same on the ground that there are other attachments on the very same property in respect of amounts due to respondents 3 and 4. Aggrieved by the stand taken by the 5[th] respondent, the petitioner has approached this Court. W.P.(C) No.18536 of 2020 : 4 : 3. The counsel for the petitioner argued that the property was given to the petitioner as security by way of mortgage on 28.02.2013. Since the amounts due to the 4[th] respondent were defaulted, the 4[th] respondent filed O.S. No.570/2015 before the Munsiff Court, North Paravur, which ordered attachment of a portion of the property subsequently. In view of the law laid down by this Court in various judgments, as against subsequent attachments, a prior mortgage will prevail. In view of the above, the 5[th] respondent is liable to be compelled to register Ext.P5 sale certificate. 4. The Government Pleader entered appearance and resisted the writ petition. The Government Pleader submitted that the petitioner has not so far produced Ext.P5 Sale Certificate for registration before the Sub Registrar. 5. I have heard the learned counsel for the petitioner, the respective counsel appearing for respondents 1 to 4 and the learned Government Pleader representing the 5[th] respondent-Sub Registrar. W.P.(C) No.18536 of 2020 : 5 : 6. It is an admitted position that the property was originally mortgaged to the petitioner on 28.02.2013. The attachment of the very same properties at the instance of respondents 3 and 4 by Civil Courts, was admittedly effected thereafter. ## 7. In _**Keechery Service Co-operative Bank Ltd. v.**_ ## _**Sajitha Nizar**_ **[2020 (6) KLT 68],** this Court held that:- “The issue was again considered by a Division Bench of this Court in an unreported decision in Ali Ashraf M.M & Anr. v. Sub Registrar, Thrissur (2015 (3) KLT Online 1117=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 appellantspetitioners 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 mutation 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 a auction sale conducted under the SARFAESI Act. The Division Bench took note of the undisputable 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 W.P.(C) No.18536 of 2020 : 6 : 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 (2014 (1) KLT 406), 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.” 8. The judgment of this Court in _**Sub Registrar, Ernakulam and another v. C.M.Nadirsha and another**_ **[2009 (1) KHC 722]** is also in support of the petitioner. In view of the above, the writ petition is disposed of permitting the petitioner to approach the 5[th] respondent for registration of Ext.P5 Sale Certificate. If the petitioner approaches the 5[th] respondent, the 5[th] respondent shall take a decision in the matter, within a period of two weeks, ignoring the subsequent mortgages of the same properties and register the Sale Certificate, if the Sale Certificate is otherwise eligible for registration. Sd/- ## **N. NAGARESH, JUDGE** W.P.(C) No.18536 of 2020 : 7 : The word 'attachments' is incorporated by deleting the word 'mortgages' in the operative portion of judgment dated 14.06.2022 in W.P(C) No.18536/2020, as per order dated 29.07.2022 in I.A.No.2/2022 of W.P(C) No.18536/2020. Sd/- Joint Registrar W.P.(C) No.18536 of 2020 : 8 : ## **APPENDIX OF WP(C) 18536/2020** PETITIONER EXHIBITS EXHIBIT P1 COPY OF THE LOAN AGREEMENT EXECUTED BY AND BETWEEN PETITIONER AND RESPONDENTS 1 AND 2. EXHIBIT P2 COPY OF THE DEMAND NOTICE ISSUED UNDER SECTION 13(2) OF SECURITIZATION AND THE RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF THE SECURITY INTEREST ACT. EXHIBIT P3 COPY OF THE ORDER IN CRIMINAL MISCELLANEOUS PETITION NO.1510 OF 2016 ON THE FILES OF CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM. EXHIBIT P4 COPY OF THE SALE NOTICE ISSUED UNDER SECURITY INTEREST ENFORCEMENT RULES 2002. EXHIBIT P5 COPY OF THE SALE CERTIFICATE ISSUED BY THE AUTHORISED OF THE PETITIONER IN FAVOUR OF THE AUCTION PURCHASER PURSUANT SECURITIZATION AND THE RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF THE SECURITY INTEREST ACT 2002. EXHIBIT P6 COPY OF THE CERTIFICATE ON ENCUMBRANCE ON PROPERTY CERTIFICATE NO.7434/20 ISSUED BY THE REGISTRATION DEPARTMENT OF GOVERNMENT OF KERALA.