## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`**
## **`PRESENT`**
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THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
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MONDAY, THE 25[TH] DAY OF MARCH 2024 / 5TH CHAITHRA, 1946
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WP(C) NO. 36415 OF 2023
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## **`PETITIONER:`**
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SAJID. M.A,AGED 22 YEARS
BISMILLA MANZIL, POYKAYIL, THONNAKKAL P.O.,
THIRUVANANTHAPURAM DISTRICT, PIN - 695317
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BY ADV MELWIN BYJU
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## **`RESPONDENTS:`**
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1CENTRAL BANK OF INDIA
REPRESENTED BY ITS AUTHORIZED OFFICER,
KINFRA FILM AND VIDEO PARK COMPLEX CHANTAVILA,
SAINIK SCHOOL P.O, THIRUVANANTHAPURAM DISTRICT,
PIN - 695584
2SUB REGISTRAR, POTHENCODE
MINI CIVIL STATION, POTHENCODE, KEEZHTHONNAKKAL,
THIRUVANANTHAPURAM DISTRICT, PIN – 695584
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## **`R1 BY ADV.K.M.ANEESH`**
## **`OTHER PRESENT:`**
## **`SR.GP - DEEPA NARAYANAN`**
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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
25.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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WP(C) No.36415 of 2023
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## **VIJU ABRAHAM, J.**
**................................................................. W.P (C) No.36415 of 2023 .................................................................** Dated this the 25[th] day of March, 2024
## **JUDGMENT**
The above writ petition is filed seeking a direction to the 1[st] respondent bank to take immediate and appropriate steps to register the sale certificate issued on 19.08.2022 in favour of the petitioner before the Sub Registrar’s office or in the alternative to refund the petitioner the sum of Rs.68,60,000/- and the cost of Rs.6,00,000/- incurred for the registration of the property with interest.
2. It is averred that the petitioner is the auction purchaser of 8.49 Ares (20.97 cent) of land and building bearing MP.No.VI/514 comprised in survey nos.280/16-1 and 280/17 (6.69 Ares in survey no.280/16-1 and 1.80 Ares in survey no.280/17), block no.4 and patta no. 6497 of Melthonnakkal Village, Thiruvananthapuram Taluk and District in the name of Mr.A.Sulaiman in the auction conducted by the Central Bank of India, Sainik Branch, Thiruvananthapuram. The said Sulaiman availed financial facility from the 1st respondent bank and when there was default in repayment of the amount, proceedings under Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short, “SARFAESI Act”) were initiated and in an auction held
WP(C) No.36415 of 2023
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on 28.12.2021 the property was sold by the 1[st] respondent in favour of the petitioner and Ext.P1 sale certificate was also issued. The whole amount was paid by the petitioner as evident from Ext.P2. Petitioner submits that the 1[st] respondent bank despite issuing sales certificate failed to take necessary and legal steps to register the same with the Registrar’s office. Petitioner has also purchased stamp papers worth Rs.6,00,000/- hoping that the registration will be done without any delay. Later petitioner came to know that the said Sulaiman has already sold 5 cents out of 20.97 cents of the mortgaged property to one Sindhu on 12.01.2012 as is evident from Ext.P3 certificate of encumbrance. Petitioner also came to know that Mrs. Sindhu has file O.S.No.86 of 2018 before the Munsiff’s Court, Attingal against Sulaiman and the Manager, Central Bank of India, Sainik School Branch, seeking a declaration, putting up of boundary, permanent prohibitory injunction and other consequential reliefs. Petitioner contends that the property covered by Ext.P4 suit is part of the property covered under Ext.P1 sale certificate. It is suppressing the said fact sale was conducted and certificate was issued to the petitioner. Petitioner submits that he will not have participated in the sale proceedings, if he had come to know that Ext.P4 suit is pending claiming right over the property. Petitioner submits that the 1[st] respondent bank is engaged in wrongful and deceptive conduct by purportedly selling 20.97 cents of property, concealing the fact that the property auctioned is only 15 cents. It is in the
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said circumstances the petitioner has approached this Court seeking the abovesaid reliefs.
2. A counter affidavit has been filed by the 1[st] respondent wherein it is stated that the respondent bank was always willing and ready to register the sale certificate but it was the petitioner who was not ready for the same stating that Ext.P4 suit is pending consideration. It is further contended that the sale notice duly stated that the auction is being held “AS IS WHERE IS” and “AS IS WHAT IS” basis and the petitioner has participated in the auction after accepting the said condition and now the petitioner cannot turn around and challenge the sale contending that the extent of the secured asset is lesser than what is shown in the auction notice. When the petitioner raised an apprehension about the title of the property, the respondent bank even attempted for a settlement of the dispute with the plaintiff in the suit, but she was not ready for any settlement. Petitioner has not challenged the sale conducted by the respondent bank in any of the proceedings and therefore the reliefs sought for cannot be granted. The respondent bank relying on the judgment of the Apex Court in **South Indian Bank Ltd.and others v. Naveen Mathew Philip and another, 2023 KHC Online 6435:2023 (4)**
**KLT 29** contends that a proceedings under the provisions of the SARFAESI Act cannot be challenged in a writ petition and therefore the respondent bank sought for dismissal of the writ petition.
WP(C) No.36415 of 2023
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3. A perusal of Ext.P3 encumbrance certificate would reveal that a portion of the property covered by Ext.P1 has been sold to a third party, Smt. Sindhu, and it is without taking note of the said fact the property has been sold to the petitioner. The respondent bank though contends that the property has been sold in “AS IS WHERE IS” and “AS IS WHAT IS” basis, they does not have a case that the extent of the property shown in the sale notification is less the property sold to Smt.Sindhu. Therefore the petitioner believing that the property now put to sale is exactly the same extent shown in Ext.P1 participated in the auction. Hence the contention raised by the respondent bank in this regard cannot be accepted. A perusal of Ext.P3 revealed that there is a transfer of a certain portion of the property having an extent of 5 cents in the name of a third party. The bank has not refuted the contention taken by the petitioner that a portion of the property covered by Ext.P1 was sold to third party and without verifying or intimating the same the property was put to sale and the petitioner has purchased the same as evident from Ext.P1. The judgment in **South Indian Bank** ’s case cited supra relied on by the respondent bank cannot have any application in the facts and circumstances of the case and that was a case where proceedings under the SARFAESI Act was challenged, when there is an effective alternative remedy available under the provisions of the SARFAESI Act.
WP(C) No.36415 of 2023
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4. Learned Government Pleader upon instruction from the 2[nd] respondent Sub Registrar submits that by virtue of a sale deed bearing no.1225 of 2012 the property having an extent of 2.03 Ares of land comprised in re-survey no.280/16-1 was sold to one Sindhu and now only 4.66 Ares in re-survey no.260/16/1 and 1.80 Ares in re-survey no.280/17 remain and therefore in view of the abovesaid fact revealed from Ext.P3 encumbrance certificate Ext.P1 sale certificate cannot be registered. The contention of the learned standing counsel for the bank that Ext.P1 sale certificate has not been challenged in this writ petition and therefore no relief could be granted to the petitioner cannot be accepted. Admittedly a property was put to sale notifying that the property has same extent as mentioned in Ext.P1 and believing the same petitioner has purchased the property. It has come out on record that as per Ext.P3 encumbrance certificate as well as the instruction submitted by the 2[nd] respondent that 5 cents of the property out of the property covered by Ext.P1 was sold to a third party. It is without disclosing the said fact that the whole of the property was put to sale by the bank.
In view of the above peculiar facts and circumstances of the case I am of the view that the petitioner cannot be forced to suffer the illegality in the sale conducted by the bank. In the above facts and circumstances of the case I am inclined to dispose of the writ petition with the following directions:
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(i) There will be a direction to the 1[st] respondent bank to refund Rs.68,60,000/- to the petitioner within a period of three weeks from the date of receipt of a copy of the judgment.
(ii) On payment of the said amount as directed above Ext.P1 sale certificate will be deemed to be cancelled automatically which means that the 1[st] respondent bank is free to proceed against the property mentioned in Ext.P1 in accordance with law.
(iii) If the petitioner files necessary application for refund of value of the stamp papers purchased by him to the extent of Rs.6,00,000/- before the authorities concerned within a period of two weeks from the date of receipt of a copy of the judgment, the same shall be deemed to be filed within time and the amount shall be refunded to the petitioner without any delay.
With the abovesaid directions the writ petition is disposed of.
Sd/-
**VIJU ABRAHAM**
**JUDGE**
cks
WP(C) No.36415 of 2023 8
## **`APPENDIX OF WP(C) 36415/2023`**
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PETITIONER EXHIBITS
Exhibit -p1THE PHOTOCOPY OF THE SALE CERTIFICATE
ISSUED BY THE 1ST RESPONDENT CENTRAL
BANK OF INDIA IN FAVOR OF THE PETITIONER
Exhibit -P2PHOTOCOPY OF THE RECEIPTS OF THE PAYMENT
MADE BY THE PETITIONER TO THE 1ST
RESPONDENT
Exhibit -P3CERTIFICATE OF ENCUMBRANCE ON PROPERTY
ISSUED FROM THE REGISTRATION DEPARTMENT,
POTHENCODE SUB-REGISTRAR OFFICE DATED
25/02/2023
Exhibit -P4PHOTOCOPYOFTHEPLAINTIN
O.S.NO.86/2018 ON THE FILE OF THE
MUNSIFF COURT, ATTINGAL
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