N.K. Narayanan Unni & K. Nandini v. Tahsildar [RR] Taluk Office, Thrissur; Village Officer Kurichikkara Village; Sub-Registrar Office Thrissur; Authorized Officer & Chief Manager State Bank of India, Palarivattom; T. O. Raju; Jini KuriaKose

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **THURSDAY, THE 29[TH] DAY OF SEPTEMBER 2022 / 7TH ASWINA, 1944** ## **WP(C) NO. 36685 OF 2017** ## **PETITIONERS:** **1 N.K.NARAYANAN UNNI AGED 65 YEARS, S/O.KRISHNAN UNNI, PENSIONER, RESIDING AT HOUSE NO.7/131, 'CHIPPI', MANNUMKAD DESAM, VILVATTOM VILLAGE, THRISSUR TALUK, ENGINEERING COLLEGE POST, THRISSUR DISTRICT-680009. 2 K.NANDINI AGED 61 YEARS, W/O.MR.N.K.NARAYANAN UNNI, RESIDING AT HOUSE NO.7/131, 'CHIPPI', MANNUMKAD DESAM, VILVATTOM VILLAGE, THRISSUR TALUK, ENGINEERING COLLEGE POST, THRISSUR DISTRICT-680009.** **BY ADVS. SRI.S.SREEKUMAR (KOLLAM) SRI.K.VIJAYAN** ## **RESPONDENTS:** **1 TAHSILDAR [RR] TALUK OFFICE, THRISSUR-680001. 2 VILLAGE OFFICER KURICHIKKARA VILLAGE, THRISSUR-680001. 3 THE SUB-REGISTRAR-OFFICE THRISSUR-680001.** **-:2:-** WP(C) No.36685/17 - **4 AUTHORISED OFFICER & CHIEF MANAGER STATE BANK OF INDIA, PALARIVATTAM, ERNAKULAM-682025.** - **5 T.O.RAJU** **S/O.OUSEPH, RESIDING AT THAMARAPPALLY, MADAKKATAHRA PANCHAYATH, THANIKKUDAM, KURICHIKKARA VILLAGE, THRISSUR DISTRICT, PIN-680009.** - **6 JINI KURIAKOSE** **D/O.KURIAKOSE, RESIDING AT THAMARAPPALLY, MADAKKATAHRA PANCHAYATH, THANIKKUDAM, KURICHIKKARA VILLAGE, THRISSUR DISTRICT-680009.** **BY SRI.JITHESH MENON, SC** **BY SMT.M.K PUSHPALATHA, GOVT. PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **-:3:-** WP(C) No.36685/17 ## **BECHU KURIAN THOMAS, J. -------------------------------W.P.(C) No.36685 of 2017** **---------------------------------** Dated this the 29[th] day of September, 2022 ## **JUDGMENT** Petitioners are auction purchasers of a property who seek a direction to the second respondent to mutate the property in their favour. Directions are also sought for removing the adverse entries of revenue recovery proceedings initiated against the secured assets and incorporated in the registers kept with the third respondent. 2. The fifth and sixth respondents were the owners of an extent of 30.67 Ares situated in Re.Sy No.21 of Block No.62 of Kurichikara Village. They had availed a loan after mortgaging the aforesaid property by deposit of title deeds with the fourth respondent bank. Consequent to default in repayment, the secured creditor initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002. Thereafter, the property was brought for sale. In the auction held at the behest of the secured creditor, petitioners purchased that property for a total consideration of WP(C) No.36685/17 **-:4:-** Rs.99,01,000/- and Ext.P1 sale certificate was issued in their favour. Thus, petitioners are the present owners of the property. According to the petitioners, though consequent to the auction purchase, they had applied by Ext.P2 for mutating the property in their names, respondents 2 and 3 failed to effect mutation. It was also learnt by them thereafter, that revenue recovery proceedings had also been initiated against the property for the alleged liability of the prior owners. It was pleaded that the liability, which was the basis of the revenue recovery proceeding, arose subsequent to the mortgage with respondents 4 and 5. 3. Adv. Namitha appearing on behalf of Adv.S.Sreekumar for the petitioner, vehemently contended that the revenue recovery proceedings initiated against the property cannot be proceeded with in view of the provisions of the SARFAESI Act, and further that respondents were bound to effect mutation of the property in the name of the petitioners. Reliance was placed by the learned counsel on the decisions in **Secretary, Keechery Service Co-operative Bank Ltd. v. Sajitha Nizar alias Sajitha P.M. and Others** (2020 5 KHC 231) as well as the decision in **Corporation Bank and Another v. Jayesh Kumar Jha** (2019 KHC 5120). WP(C) No.36685/17 **-:5:-** 4. A statement has been filed by the first respondent stating that as per an interim order dated 16.08.2016 of the Debts Recovery Tribunal, Ernakulam in O.A. No.58/2016, an order of attachment was issued restraining respondents 5 and 6 from alienating or mortgaging the properties until further orders. It was also stated that the property situated in Re-Survey No.21/8 of Kuruchikara was also attached by order dated 29.09.2016 issued by the Recovery Officer of the Employees Provident Fund Organisation. It was also pointed out that till date, the first respondent had not received any orders either from the Tribunal or from the office of the Provident Fund Commissionerate to remove the attachments. It was also pointed out that petitioners had not yet submitted any application for mutation of the land. 5. The third respondent, Sub Registrar, has also filed a counter affidavit stating that the said office had not received any application in the nature of Ext.P2. It was also pointed out that as per section 89(5) of the Registration Act, 1908, (for short 'the Act'), every court passing any decree or order creating or declaring, transferring, limiting or extinguishing any right, title or interest to or in immovable property must send a copy of such WP(C) No.36685/17 **-:6:-** decree or order to the Registering Officer. It was submitted that as per section 54 of the Act, index of the contents of such books and every entry in such index must be made in a book to be kept. It was further stated that when a court attachment is received in the Sub Registrar's Office, it is required to be filled in as per sections 89(5) and 51(2) of the Act and indexed as per section 54 of the said Act. According to the third respondent, the Sub Registrar has no power to efface the entries relating to the property, and on that basis, the respondent sought disposal of the writ petition. 6. I have considered the rival contentions. The issue that is raised for consideration, in a nutshell, is, whether petitioners are entitled for mutation of the property purchased by them after effacing the attachments presently made over it. 7. Petitioners are admittedly auction purchasers who purchased the property in an auction conducted under the SARFAESI Act. The very purchase of the property in an auction conducted under the SARFAESI Act pre-supposes the existence of creation of a secured interest over the property. The pleadings also refer to the mortgage created by the borrowers. 8. In the decision in **Secretary Keechery service Co-** WP(C) No.36685/17 **-:7:-** **operative bank Ltd V. Sajih** (2020) 5 KHC 231, a Division Bench of this Court had held that after the creation of an equitable mortgage of the property, a subsequent attachment effected on the mortgaged property will stand effaced after auction under the SARFAESI Act and the property can be mutated in favour of the auction purchaser free of all encumbrances. In view of the above settled legal position, no further discussion is necessary to conclude that the petitioners are entitled to have mutation of the property into their name, if purchased by them, in an auction under the Securitisation Act, after effacing all the prior encumbrances on the property. 9. However, since the respondents have stoutly denied the receipt of any application for transfer of registry, the burden is upon the petitioners to prove such submission. The request for mutation has to be submitted in the prescribed form along with the required documents. There is nothing on record to conclude that such an application has been submitted by the petitioners. Since no records are available to prove receipt of such an application, it has to be concluded that the petitioners had not yet applied for effecting a mutation. 10. However, having regard to the circumstances of the WP(C) No.36685/17 ## **-:8:-** case, if the petitioners submit an application for effecting transfer of registry, along with all the required documents, within three weeks from the date of receipt of a copy of this judgment, the second respondent shall issue appropriate orders effecting mutation of the property in the name of the petitioners (auction purchasers), without further delay. Apart from the above there will also be a direction to the third respondent to efface all the encumbrances on the property prior to the date of sale. The needful as directed above shall be done by the respondents concerned, within a period of thirty days from the date of receipt of the respective applications from the petitioners. The writ petition is allowed as above. **BECHU KURIAN THOMAS JUDGE** vps WP(C) No.36685/17 ## **-:9:-** ## **APPENDIX OF WP(C) 36685/2017** **PETITIONER'S/S' EXHIBITS EXHIBIT P1 A TRUE COPY OF THE SALE CERTIFICATE NO.2725/2017 REGISTERED BEFORE THE THRISSUR S.R.O. EXHIBIT P2 A TRUE COPY SUBMISSION FILED BY THE PETITIONER BEFORE THE KURICHIKKARA VILLAGE OFFICER ON 06-11-2017 FOR MUTATING THE PROPERTY.**