Philip K.K. v. The Tahasildar (LR), Taluk Office, Kollam; The Village Officer, Nedumpana Village; Authorized Officer/Asst. General Manager, Union Bank of India (Thiruvananthapuram Branch); Addl. Sub Registrar, Kannanalloor, Kollam District

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY,THE 06TH DAY OF FEBRUARY 2019 / 17TH MAGHA, 1940 WP(C).No. 3586 of 2019** ## **PETITIONER/S:** **PHILIP K.K AGED 63 YEARS** **S/O.KUNJUKUNJU, RESIDING AT VALIYAVILA LIGHT, PAZHANGALAM CHERRY, NALLIALA.P.OP., NEDUMPANA VILLAGE, KOLLAM-691515.** **BY ADV. SRI.S.SREEKUMAR (KOLLAM)** ## **RESPONDENT/S:** - **1 THE TAHASILDAR (LR, TALUK OFFICE, KOLLAM-691001.** - **2 THE VILLAGE OFFICER, NEDUMPANA VILLAGE, KOLLAM691015.** - **3 AUTHORISED OFFICER/ASST.GENERAL MANAGER, UNION BANK OF INDIA(THIRUVANANTHAURAM BRANCH), UNION BANK BHAVAN,M.G.ROAD, STATUE, THIRUVANANTHAPURAM-695001.** - **4 ADDL.R4- SUB REGISTRAR,KANNANALLOOR, KOLLAM DISTRICT(ADDL.R4 IS IMPLEADED AS PER ORDER DATED 06.01.2019 IN THE WP(C))** ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER FOR R1, R2 AND R4 , SRI.A.S.P.KURUP FOR R3** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ALEXANDER THOMAS, J.** ================== ## W.P.(C).No. 3586 of 2019 ## ================== Dated this the 6[th] day of February, 2019 **J U D G M E N T** The prayers in the above Writ Petition (Civil) are as follows: - _“(i) To issue a writ of mandamus, order or direction to the respondents 1 and 2 to mutate the property of the petitioner purchased in auction from the 3[rd] respondent bank and to receive the property tax from the petitioner without recording the attachment created after the mortgage._ - _(ii) To issue a writ of mandamus, order or direction to the 2[nd] respondent to remove the adverse entries in the relevant registers regarding the attachment by the Munsiff's Court, Kollam against the secured asset subsequent to the creation of the mortgage._ - _(iii) Such other writ or direction which this Hon'ble Court may deem fit and proper on the facts and circumstances of the case and in the interest of justice.”_ 2. Heard Sri.S.Sreekumar Kollam, learned counsel appearing for the petitioner, Sri.Saigi Jacob Palatty, learned Senior Govt. Pleader appearing for respondents 1, 2 & 4 and Sri.A.S.P. Kurup, learned counsel appearing for R-3 (Union Bank of India). 3. The 3[rd] respondent Union Bank of India had advanced a loan to a borrower, in which transaction the borrower had mortgaged the subject property involved in this cases in favour of the said bank. Later when there was consistent default in repaying the loan amount by the borrower, the 3[rd] respondent bank was constrained to initiate proceedings under the Securitisation and Reconstruction of Financial W.P.(C)3586/19 - : 3 :- Assets and Enforcement of Security Interest Act, 2002. (SARFAESI Act) against the subject property, whereby the said property was sold in auction proceedings to the petitioner herein as per the provisions of the SARFAESI Act, which resulted in Ext.P-1 sale certificate dated 5.4.2017 issued by the 3[rd] respondent bank in favour of the petitioner. It is stated that the subject property is having an extent of 8.09 Ares sitauted in old Sy.No. 829 in Re-survey No. 223/13/2 in block No.20 of Nedumpana Village, Kollam Taluk, Kollam Revenue District. That the petitioner had purchased the said property covered by Ext.P-1 sale certificate for a total auction amount of Rs. 98 lakhs and that the said sale proceedings have been duly confirmed as per the provisions of the SARFAESI Act. The complaint of the petitioner is that the 2[nd] respondent Village Officer is refusing to accept basic land tax in respect of the said property covered by Ext.P-2 on the ground that encumbrances have been noted therein due to attachment orders obtained by other creditors of the same borrower as against the same property. 4. The contentions of the petitioner are two fold. Firstly that it is not within the province and domain of the competent revenue officials like 2[nd] respondent Village Officer to refuse to accept basic land tax on account of attachments orders pending against the W.P.(C)3586/19 - : 4 :- property and that de hors any such attachments, the 2[nd] respondent is obliged to accept basic land tax in respect of the subject property from the petitioner. The case laws are now in legion to require any citation of any judicial authority that pendency of revenue recovery proceedings, attachment proceedings and civil proceedings in cases as in the instant one will not be sufficient legal ground for respondents 1 and 2 to refuse to accept basic land tax as against the subject property, as what is involved in the process of mutation and acceptance of basic land tax is only limited arrangement of fiscal purposes to ensure timely collection of revenue and so long as the petitioner satisfies the definition of “land holder” as defined in Sec. 3(3) of the Act, more particularly clause (d), the competent revenue officials like 1 and 2 are obliged to grant mutation, transfer of registry and accept basic land tax in respect of the subject property. Accordingly, it is ordered that in case the property has not so far been mutated, the petitioner may file formal application for grant of mutation, transfer of registry and also for acceptance of basic land tax in respect of the subject property before the 2[nd] respondent Village Officer and may also a authenticated copy of Ext.P-1 sale certificate, upon which the 2[nd] respondent will consider the said request for transfer of registry and acceptance basic land tax and grant the same W.P.(C)3586/19 - : 5 :- immediately and will also forthwith issue land tax receipt to the petitioner. 5. As regards the efficacy of the attachment orders said to have been issued subsequently to the creation of the mortgage, the matter in issue is covered by a series of judgments of this Court as in _**HDFC v. SRO**_ [2011(3) KLJ 561]= [2011 KHC 851], _**Madhan V. Sub Registrar**_ reported in [2014 (1) KLT 406], that in cases where the attachment orders have been rendered after the creation of equitable mortgage, then such attachment orders in respect of the said properties in question will lose its legal efficacy the moment the sale is confirmed in favour of the purchaser concerned as per the provisions contained in the enactments like the Recovery of Debts Due to the Banks and Financial institutions Act, 1993, SARFAESI Act, etc. and that in such case, the Sub Registrar concerned is bound to efface such attachments from the encumbrance certificate, so that the clouds created over the title of the property are removed. 6. Accordingly, it is ordered and declared that in case the impugned attachment orders noted as encumbrances as against the subject property have been rendered after the creation of the equitable mortgage in favour of the 3[rd] respondent bank, then the 4[th] respondent Sub Registrar is obliged to efface and delete such W.P.(C)3586/19 - : 6 :- attachment from encumbrance records. The petitioner may file an appropriate application before the 4[th] respondent Sub Registrar giving the details of the loan transaction entered into between the 3[rd] respondent bank and the borrower and also a certificate from the 3[rd] respondent bank showing the exact date of creation of equitable mortgage in favour of the said bank in this case. The petitioner will also array respondent in the said application the beneficiary of the said impugned attachment order. Thereafter the 4[th] Sub Registrar will issue notices to the petitioner and the beneficiary of the attachment orders and determine the limited factual issue as to whether the impugned attachment orders have been rendered after the date of creation of the mortgage in the instant case and if that be so, the 4[th] respondent will immediately make additional entries in respect of the subject property in book No.1 as per Sec.89(5) of the Registration Act, 1908 so as to efface and delete such attachments from the encumbrance records. In that eventuality, the petitioner may also make an application for grant of fresh encumbrance certificate after deletion of such attachment orders, upon which the 4[th] respondent will issue such fresh encumbrance certificate after deletion of such attachment orders from the encumbrance records, subject to payment of cost/fee in that regard by the petitioner. The petitioner may W.P.(C)3586/19 - : 7 :- thereafter produce a copy of the said fresh encumbrance certificate issued by the 4[th] respondent SRO after deletion of such attachment before the 2[nd] respondent Village Officer, who will thereupon immediately take steps to efface and delete such attachments/ encumbrances from the revenue/village records concerned. It is made clear that the 2[nd] respondent Village Officer should not wait till the production of fresh encumbrance certificate by the petitioner as aforestated, for the purpose acceptance of basic land tax and 2[nd] respondent will comply with the earlier directions issued by this Court in this judgment regarding acceptance of basic land tax without waiting for any such fresh encumbrance certificate and should issue land tax receipt to the petitioner, as directed herein above immediately. With these observations and directions, the above Writ Petition (Civil) stands finally disposed of. sdk+ Sd/- **ALEXANDER THOMAS, JUDGE** W.P.(C)3586/19 - : 8 :- - : 9 :- W.P.(C)3586/19 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE SALE CERTIFICATE DATED 05.04.2017 ISSUED BY THE 3RD RESPONDENT BANK IN FAVOUR OF THE PETITIONER.** **EXHIBIT P2 THE TRUE COPY OF TH SALE DEED NO.90/2019, DATED 17.01.2019. EXHIBIT P3 THE TRUE COPY OF THE ORDER IN NO.C1024370/18/LDIS, DATED 31/01/2019.**