SHAJAHAN S/O ABBAS v. SUB REGISTRAR, KONNI & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **WEDNESDAY,THE 23RD DAY OF JANUARY 2019 / 3RD MAGHA, 1940** ## **WP(C).No. 2034 of 2019** ## **PETITIONER/S:** **SHAJAHAN** **S/O.ABBAS, AGED 44, JAMI MANZIL, PMPJ-30, PATHICKAL.P.O, KOLLAM-689695. BY ADVS. SRI.T.RAJESH SMT.P.V.SARITHA VENUGOPAL** ## **RESPONDENT/S:** - **1 SUB REGISTRAR, KONNI, PATHANAMTHITTA DIST-689691.** - **2 THE VILLAGE OFFICER, VALLIKODE, KOZHENCHERRY TALUK, PATHANAMTHITTA-689641.** - **3 CORPORATION BANK REPRESENTED BY ITS AUTHORIZED OFFICER, 1ST FLOOR, THELLIRETHU CHAMBERS, GOVERNMENT HOSPITAL ROAD, PATHANAMTHITTA-689645.** - **4 KAMALASANAN,** - **S/O.CHANDRASENAN, MEERA BHAVAN, MUNDACKAL MURI, MUNDACKAL VILLAGE, KOLLAM-691010.** - **5 MURALI, S/O.NARAYANAN, MALAYIL HOUSE, THAZHAKKARA VILLAGE, MAVELIKKARA, ALAPPUZHA-690101.** - **6 JOHNURGHESE, VALIYAKALAYIL HOUSE, THIRUVALLA, PATHANAMTHITTA-689101.** - **7 ABDUL VAHILD, KURPPINTHAYATH HOUSE, PATHANAMTHITTA689101.** - **8 PRAKASH @ PRAKSH MADHAVAN, PRAKASH VILL, PATHANAMTHITTA-689101.** ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ALEXANDER THOMAS, J.** ================== W.P.(C).No. 2034 of 2019 ================== Dated this the 23[rd] day of January, 2019 **J U D G M E N T** The petitioner is aggrieved by the action on the part of respondents 1 and 2 in not deleting and effacing attachments noted as encumbrances with respect to the subject property, which he has purchased from the 3[rd] respondent Corporation bank as per Ext.P-2 sale certificate granted under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act), even though the impugned attachment orders have been rendered after the creation of the mortgage of the subject property in favour of the 3[rd] respondent bank. 2. The prayers in the above Writ Petition (Civil) are as follows: - _“1. Declare that the attachment created in favour of respondents 4 to 8 in the secured property cease to have effect after the sale in the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act proceedings are completed vide Exhibit P1 and to direct 1[st] respondent to efface the attachments._ _2. Declare that the properties purchased by the petitioner by Exhibit P1 Sale Certificate of 5.67 Ares I Re-Sy. No.133/8 of Vallicode Village is free from all encumbrances including the charge created in favour of respondents 4 to 8._ _3. Issue such other writ, order or direction as this Honourable Court deems fit considering the facts and circumstances of the case._ _4. Direct the respondent to pay the cost of the proceedings.”_ W.P.(C).No. 2034/19 - : 3 :- 3. Heard Sri.T.Rajesh, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned Senior Govt. Pleader appearing for official respondents 1 & 2 and Sri.N.Rajendran, learned Standing Counsel appearing for the 3[rd] respondent Corporation Bank. In the nature of the order that is proposed to be passed in this petition, notice to contesting respondent Nos.4 to 8 will stand dispensed with. 4. From the pleadings and materials on record, it is seen that the subject property was mortgaged on 28.11.2003 in favour of the 3[rd] respondent Corporation Bank by a borrower to whom monies were advanced in a loan transaction by the said bank. That when the borrower had repeatedly made defaults in repayments in respect of the loan transaction, the 3[rd] respondent bank was constrained to initiate proceedings under the SARFAESI Act, to realise the loan arrear amounts and the property was thus put to sale and was duly purchased by the petitioner to whom Ext.P-1 sale certificate dated 3.3.2011 has been duly issued as per the provisions of the SARFAESI Act. Later when the petitioner could know in Ext.P-3 encumbrance certificate issued by the 1[st] respondent Sub Registrar that various W.P.(C).No. 2034/19 - : 4 :- attachments have been noted as encumbrance in respect of the subject property, which has been issued in favour of contesting No.4 to 8, wherein the same borrower has been made as defendant in those civil proceedings. It is stated that all the said attachments have been rendered after the date of creation of the mortgage in favour of the 3[rd] respondent bank on 28.11.2003. It is stated that the impugned attachments in Ext.P-3 encumbrance certificate issued by the 1[st] respondent Sub Registrar are noted therein as serial Nos.9, 10, 12, 13, 15, etc. According to the petitioner, the said attachments are liable to be effaced and deleted by respondents 1 and 2 from the respective encumbrance records and village/revenue records, as those attachments have no legal efficacy whatsoever as those attachments, which are granted after the date of creation of the mortgage, have no legal efficacy after the confirmation of the sale of the subject property in favour of the petitioner. 5. The matter in issue is no longer res integra and is covered in favour of the petitioner by a series of judgments of this Court as in _**HDFC v. SRO**_ reported in 2011 (3) KLJ 561, _**Madan v Sub Registrar**_ reported in 2014(1) KLT 406, etc. In _**Madan's case supra**_ it has been held that sale of the mortgaged properties in W.P.(C).No. 2034/19 - : 5 :- favour of the purchaser under sale certificate issued under the provisions of SARFAESI Act, are free from all encumbrances and attachments effected subsequent to the mortgage created in favour of the bank/financial institutions, etc. do not affect the title and ownership of the purchaser of any such property and such attachments have no impact on the sale conducted under the said Act, etc. It has also been held by this Court in _**Madhan's case**_ supra that the preponderance of judicial opinion leads to the irresistible conclusion that the sale of mortgaged property in favour of the petitioner therein after the sale certificate issued under the SARFAESI Act is free from all encumbrances and that attachments affected subsequent to the mortgage created in favour of the bank do not affect the title and ownership of the petitioner therein over the subject property and such attachments have no impact on the sale conducted under the SARFAESI Act and the same ceases to have any effect or fall to the ground the moment the sale is confirmed in favour of the auction bidder concerned. Accordingly, it was so declared by this Court that the Sub Registrar concerned and the Village Officer concerned will efface the attachments effected subsequent to the mortgage, from the relevant records. As otherwise, it was held that, W.P.(C).No. 2034/19 - : 6 :- those attachments would remain as a permanent taboo prejudicially affecting the marketability and title to the property even though they ceased to have any legal efficacy. 6. In the light of the abovesaid aspects, it is ordered that the petitioner may file appropriate application before the 1[st] respondent Sub Registrar after arraying the beneficiaries of the attachment orders, like respondents 4 to 8, etc. as respondents therein and should also produce along with the application the certificate issued by the 3[rd] respondent Corporation Bank certifying the details of the loan transaction in question and also the exact date of creation of mortgage in question of the subject property in favour of the bank, etc. The petitioner will also produce an attested copy of Ext.P-1 sale certificate and the original of the said certificate before the 1[st] respondent and the 1[st] respondent will verify the sale certificate and shall then immediately return the original of the sale certificate to the petitioner and he may keep an attested copy of Ext.P-1 sale certificate in his records. On filing such application, the 1[st] respondent will immediately issue notices to the petitioner and such beneficiaries of the attachment orders and will then decide the limited the factual issue as to whether the impugned attachments have been granted W.P.(C).No. 2034/19 - : 7 :- after the date of creation of the mortgage in favour of the 3[rd] respondent bank in respect of the subject property. If it is so found that the attachments have been rendered after the date of creation of the mortgage, then the 1[st] respondent will immediately make additional entries in book No.1 in respect of the subject property as envisaged Sec.89(5) of the Registration Act, 1908, so as to delete and efface such attachment. The entire formalities in this regard will be done by the 1[st] respondent within a period of six weeks from the date of production of a certified copy of this judgment. 7. Thereafter, the petitioner may make an application for issuance of fresh encumbrance certificate after deletion and effacement of such encumbrances/attachment, upon which the 1[st] respondent will issue such fresh encumbrance certificate after deletion of such encumbrances/ attachment, provided the petitioner pays cost/fee in respect of such application. 8. Thereafter, the petitioner may produce before the 2[nd] respondent Village Officer a copy of the said fresh encumbrance certificate so issued by the 1[st] respondent after deletion and effacement of the impugned attachments and thereupon, the 2[nd] respondent Village Officer will immediately take action to efface and W.P.(C).No. 2034/19 - : 8 :- delete such impugned attachment from the revenue records/village records. With these observations and directions, the Writ Petition (Civil) stands finally disposed of. Sd/sdk+ **ALEXANDER THOMAS, JUDGE** W.P.(C).No. 2034/19 - : 9 :- ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE SALE CERTIFICATE ISSUED BY THE 3RD RESPONDENT DATED 03/03/2011. EXHIBIT P2 THE TRUE COPY OF THE JUDGMENT IN WP(C)NO.34973/2015 DATED 20/12/2016. EXHIBIT P3 THE TRUE COPY OF THE ENCUMBRANCE CERTIFICATE. EXHIBIT P4 THE JUDGMENT OF THIS COURT IN WP(C) 35979/2018 DATED 5/11/2018.**