Praveen Kumar S v Sub Registrar, Sasthamangalam; Vattiyoorkavu Village; Axis Bank Ltd; Aneesh A.C.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN MONDAY, THE 27[TH] DAY OF NOVEMBER 2023 / 6TH AGRAHAYANA, 1945 ``` ## **`WP(C) NO. 16161 OF 2023`** ## **`PETITIONER:`** ``` PRAVEEN KUMAR.S,AGED 37 YEARS S/O SASIDHARAN NAIR,T C 52/2271/1, REVATHI, NEMOM, THIRUVANANTHAPURAM, PIN - 695020 BY ADVS. S.NIDHEESH M.S.PAMILA ``` ## **`RESPONDENTS:`** ``` 1THE SUB REGISTRAR,SUB REGISTRAR OFFICE, SASTHAMANGALAM, THIRUVANANTHAPURAM- 695010 2THE VILLAGE OFFICER,VATTIYOORKAVU VILLAGE, VATTIYOORKAVU P O, THIRUVANANTHAPURAM, PIN - 695013 3THE AXIS BANK LTD RETAIL ASSETS CENTRE, TRIVANDRUM, SECOND FLOOR, LOAN CENTRE, NIHAL COMPLEX, KARAMANA, THIRUVANANTHAPURAM REPRESENTED BY ITS AUTHORIZED OFFICER, PIN - 695002 *4SUBASH S/O JANAKI RAMAN, T C 23/1323(6), ESWARI NIVAS, GANDHI NAGAR, MELARAMOOR, KARAMANA.P.O, THIRUVANANTHAPURAM, PIN – 695002 *(DELETED FROM PARTY ARRAY AS PER ORDER IN I.A.NO.1/2023 DATED 27.11.2023) 5ANEESH.A.C, S/O ARJUN, RESIDING AT GAN EDEN, MALANCHARIKU, THIRUPURAM.P.O, THIRUPURAM, THIRUVANANTHAPURAM, PIN - 695525 ADV SRI.P.PAULOCHAN ANTONY SRI.BIMAL K NATH, SR.G.P THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) No.16161 OF 2023 :2: ## **JUDGMENT** Petitioner was the successful bidder in the auction conducted by the 3[rd] respondent Bank under the SARFAESI proceedings with respect to a property admeasuring 1.27 Ares in Sy. No.3596/4-2-1 of Vattiyoorkavu village, Thiruvananthapuram. The property originally belonged to the 4[th] respondent who had availed a loan from the 3[rd] respondent bank for an amount of Rs 38,64,000/- on 24.05.2016 by creating an equitable mortgage of the above mentioned property by deposit of title deeds, evidenced by Ext. P1 memorandum of entry. Due to the default in repayment of the loan, the 3[rd] respondent initiated proceedings against the mortgaged property under the SARFAESI Act and the property was put up for sale. The petitioner was the successful bidder in the auction proceedings and Ext. P3 is the sale certificate. 2. The petitioner states that when he took steps for change of ownership of the property, it was found from WP(C) No.16161 OF 2023 :3: Ext.P4 encumbrance certificate that there is an attachment by the Munsiff Court, Thiruvananthapuram at the instance of the 5[th] respondent on 09.08.2019, much after the mortgage of the property with the 3[rd] respondent bank. The petitioner contends that, since the attachment effected as evidenced by the entry in Ext. P4 encumbrance certificate is subsequent to the creation of the equitable mortgage, the same cannot affect the sale under the SARFAESI Act and the 1[st] respondent, the Sub Registrar has to efface the attachment from the encumbrance register. 3.Heard the learned counsel for the petitioner, the learned Government Pleader and the learned counsel for the 5[th] respondent. The notice issued to the 4[th] respondent was returned with endorsement ‘addressee left’ and today, he is deleted from the party array as per order in I.A No.1/2023. 4. The learned counsel for the petitioner relied on the decision of this Court in **Madhan S. v. Sub Registrar,** WP(C) No.16161 OF 2023 :4: **Kollam and Others [2014 (1) KHC 249: 2014 (1) KLT 406: ILR 2014 (1) Ker.586: 2014 (1) KLJ 483: AIR 2014 Ker.54]** and the decision of a Division Bench of this Court in Secretary, **Keechery Service Co-operative Bank Ltd. v.Sajitha Nizar alias Sajitha P.M. and Others [2020 (5) KHC 231: ILR 2020 (4) Ker.249: 2020(6) KLT 68: 2020(4) KLJ 970]** and contends that the attachment effected subsequent to the creation of equitable mortgage will not affect the right of the Bank to sell the mortgaged property and the attachment has to be effaced from the encumbrance certificate. 5. In **Madhan** 's case (supra), this Court held in paragraph 9 as follows: **“** 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 WP(C) No.16161 OF 2023 :5: 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 petitioner. The confirmed in favour of 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 prejudicial affecting the marketability and title to the property even though they ceased to have any legal efficacy. The needful in relation to the WP(C) No.16161 OF 2023 :6: 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.” 6. A Division Bench of this Court in **Ali Asharaf M.M. and Another v. Sub Registrar, Thrissur (Judgment dated 24.7.2015 in W.A. No.612/2015)** has affirmed the law laid down in **Madhan** 's case. In **Keechery Service Co-operative Bank** case (supra), another Division Bench of this Court also affirmed the law laid down in **Madhan** 's case (supra) and held in paragraph 7 as under: “7. …. 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 WP(C) No.16161 OF 2023 :7: 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 27/06/2014, the date on which the property in question was mortgaged with Federal Bank”. 7. Going by Ext. P4, it can be seen that the attachment effected by the Munsiff Court, Thiruvananthapuram is subsequent to the equitable mortgage created on 24.05.2016. Accordingly, in the light of the decisions cited above, the attachment made by the Munsiff Court, Thiruvananthapuram over the mortgaged property in Sy. No.3596/4-2-1 of Vattiyoorkavu village, Thiruvananthapuram, referred to in Ext. P3 sale certificate, WP(C) No.16161 OF 2023 :8: is liable to be effaced from the encumbrance register maintained by the 1[st] respondent. It is so declared. The writ petition is disposed of. Sd/- **MURALI PURUSHOTHAMAN JUDGE** spc/ WP(C) No.16161 OF 2023 :9: ## **`APPENDIX`** ``` PETITIONER’S EXHIBITS Exhibit P1TRUE COPY OF THE MEMORANDUM OF ENTRY REGARDING LOAN DATED 24.5.2016 Exhibit P2TRUE COPY OF THE SUCCESSFUL BIDDER ADVISE ISSUED BY THE 3RD RESPONDENT DATED 31.3.2023 Exhibit P3TRUE COPY OF THE SALE CERTIFICATE ISSUED BY THE 3RD RESPONDENT ON 13.4.2023 Exhibit P4TRUE COPY OF THE ENCUMBRANCE CERTIFICATE DATED 15.10.2022. Exhibit P5TRUE COPY OF THE JUDGMENT IN W.P© 14057/22 DATED 14.7.2022 ```