Sheeja Salim v. The District Collector, Thiruvananthapuram and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 14[TH] DAY OF NOVEMBER 2022 / 23RD KARTHIKA,** ## **1944** ## **WP(C) NO. 19277 OF 2022** ## **PETITIONER/S:** SHEEJA SALIM, AGED 49 YEARS W/O SALIM, RESIDING AT SALIM MANZIL, MUKKALA, THEMPAMOODU, PULLAMPARA (P.O), THIRUVANANTHAPURAM DISTRICT. PIN - 695607. BY ADV JAWAHAR JOSE ## **RESPONDENT/S:** |1|THE DISTRICT COLLECTOR,| |---|---| ||THIRUVANATHAPURAM-695 043.| |2|THE TAHASILDAR,| ||NEDUMANGADU,| ||THIRUVANANTHAPURAM DISTRICT. PIN - 695541.| |3|THE VILLAGE OFFICER,| ||THEKKADA,| ||VEMBAYAM (P.O), THIRUVANANTHAPURAM DISTRICT.| ||PIN - 695 615.| |4|THE SUB REGISTRAR,| ||KANYAKULANGARA,| ||SUB REGISTRAR OFFICE, KANYAKULANGARA (P.O),| ||THIRUVANANTHAPURAM DISTRICT. PIN - 695615.| |5|NUJUMUDEEN S.,| ||NUSAIFA MANZIL, OZHUKUPURA,| ||THEKKADA VILLAGE, KUTHIRAKKULAM (P.O),| ||VEMBAYAM, THIRUVANANTHAPURAM DISTRICT. PIN| ||695615.| |6|R. RAJAN,| ||AGED 54 YEARS,| ||S/O RAMAKRISHNAN, RESIDING AT PLAVILA VEEDU,| ||VAYYETTU, VENJARAMOODU, MANIKKAL MURI,| ||NELLANADU VILLAGE, NEDUMANGAD TALUK,| ||THIRUVANANTHAPURAM DISTRICT. PIN-695 607.| |7|SAJEER,| ||S/O SHAMSUDEEN,| ||RESIDING AT SIDDHIQUE MANZIL,| W.P.(C) No.19277 of 2022 -2- KARIKKAKOM, KUTHIRAKULAM, VEMBAYAM, THIRUVANANTHAPURAM DISTRICT. PIN - 695615 8 JAFFAR KHAN ABDUL VAHAB, RESIDING AT CHARUVILA PUTHENVEEDU, AVANOOR, KOTTARAKARA (P.O), KOLLAM DISTRICT. PIN-691506. BY ADVS. SUMAN CHAKRAVARTHY AMJATH A.R ## **OTHER PRESENT:** gp AMMINIKUTTY K; P.S.APPU **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARRD ON** **24.06.2022, THE COURT ON 14.11.2022 DELIVERED THE FOLLOWING:** W.P.(C) No.19277 of 2022 -3- ## **JUDGMENT** Dated this the 14[th] day of November, 2022 The petitioner purchased the property covered by Ext.P3 sales certificate in an e-auction conducted by the State Bank of India on 05.11.2021. The property was mortgaged with the bank as security for a loan availed by the 5th respondent. The mortgage was created by deposit of title deeds as per Ext.P1 document dated 14.12.2011. The borrower having defaulted repayment of the loan, the bank brought the property to sale following the procedure prescribed under the SARFAESI Act and the Security Interest (Enforcement) Rules, 2002. The petitioner purchased the property and was issued with Ext.P3 sales certificate. Thereafter the bank requested the 4[th] respondent/ Sub Registrar to register the sale deed, which was refused on W.P.(C) No.19277 of 2022 -4- the ground that there were subsisting attachment over the property. Aggrieved by the refusal, the bank approached this Court in W.P.(C) No.27044 of 2021 and obtained Ext.P2 judgment requiring the Sub Registrar to register the document _de hors_ the attachment. In compliance of the direction, the sale certificate was registered on 28.01.2022. 2. Thereafter, the petitioner submitted Ext.P4 application before the second respondent, requesting to direct the third respondent/Village Officer to effect mutation and accept tax from the petitioner for the property. The second respondent rejected the request as per Ext.P4 (a) on the ground that the property is under attachment as per orders passed by the Sub Court, Nedumangad in O.S.Nos.55/2021 and 62 of 2021. Thereupon, the petitioner submitted Ext.P5 before the 4[th] respondent/Sub Registrar requesting to efface the attachments effected after the W.P.(C) No.19277 of 2022 -5- property was mortgaged with the bank and to issue an encumbrance certificate without showing the orders of attachment issued after 04.03.2015. The said request was turned down by Ext.P7 and the petitioner informed that the attachments cannot be effaced without an order from the competent court. Aggrieved by Exts.P4(a) and P7, this writ petition is filed seeking the following reliefs; _“i. Call for the records leading to the issuance of Exhibits-P4(a) and P7 orders and issue a writ, order or direction in the nature of certiorari quashing the said orders._ _ii. Issue a writ, order or direction in the nature of mandamus, directing the respondents 2 and 3, to effect mutation, and to accept tax from the petitioner, by the provisions of the Kerala Land Tax Act, 1961, without showing the attachments in the revenue records, with respect to the property purchased by the petitioner as per Exhibit-P3 sale deed._ _Iii. Issue a writ, order or direction in the nature of mandamus, directing the_ ## W.P.(C) No.19277 of 2022 -6- _respondents 2 and 3, to efface the attachments effected after 4-3-2015, from the relevant revenue records, as the said attachments will cause permanent taboo on the petitioners._ _iv. Issue a writ, order or direction in the nature of mandamus directing the 4th respondent to efface/expunge all the attachments effected after 4-3-2015 in the property purchased by the petitioner as per Exhibit-P3 sale deed, from Book 1, which is maintained as per Section 51 of the Registration Act, 1908, and issue an encumbrance certificate to the petitioner, without exhibiting the said orders of attachment after 4-3-2015._ _v. Declare that the petitioners are entitled to efface/expunge the attachments from from Book 1, which is maintained as per Section 51 of the Registration Act, 1908, as the said attachments will prejudicially affect the marketability and title of the petitioners to the subject property, even though the attachments are not having any legal efficacy.”_ 3. Adv.Jawahar Jose, learned Counsel for the petitioner, contended that the refusal to effect ## W.P.(C) No.19277 of 2022 -7- mutation and efface the entries regarding attachments from the encumbrance certificate is patently illegal and unsustainable. It is argued that an order of attachment creates no charge and quality of the mortgage as an encumbrance does not get watered down by reason of an attachment issued by the civil court. Reliance is placed on the decision in _**Madhan S. v. Sub Registrar, Kollam and others [2014(1) KLT 406]**_ to contend that attachments effected subsequent to the creation of equitable mortgage should be effaced once the property is purchased in a sale conducted by the bank/secured creditor in accordance with provision of the SARFAESI Act and the Rules thereunder. It is pointed out that the property was originally mortgaged on 14.12.2011 and the mortgage was extended up to 03.03.2015. The attachment at the instance of respondents 5 to 8 was ordered by the Sub Court, Nedumangad in W.P.(C) No.19277 of 2022 -8- O.S.No.55 of 2021 and 62 of 2021 on 05.11.2021 and 01.12.2021 respectively. The attachments effected six years after creation of the mortgage, cannot impact the auction purchaser's rights. 4. Despite service of notice respondents 5 to - 8 have not entered appearance. 5. Learned Government Pleader submitted that mutation of the property could not be effected in view of the orders of attachment and there is no provision for effacing the entry regarding attachment from the encumbrance certificate. 6. As rightly pointed out by the learned Counsel for the petitioner, this Court in _**Madhan**_ _**S.**_ , after careful analysis of the relevant statutory provisions and the judicial precedents held as under; _“9. The preponderance of judicial opinion leads to the irresistible conclusion that the sale of the mortgaged property in favour of the petitioner under_ -9- ## W.P.(C) No.19277 of 2022 _Ext. P5 sale certificate under the Act is free of all 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 confirmed in favour of the petitioner. The declaration so sought by the petitioner is therefore granted and I further direct the SubRegistrar 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 prejudicially affecting the marketability and title to the property even though they ceased to have any legal efficacy. The needful in relation to the 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.”_ 7. On a careful reading of the erudite discussion in the above judgment after adverting to Section 64 and Order 38 Rule 10 of CPC and the ## W.P.(C) No.19277 of 2022 -10- precedents of the point, I am in complete agreement with the conclusion at paragraph 9 extracted above. In the result, this writ petition is allowed by declaring the refusal to effect mutation over the property covered by Ext.P3 in the petitioner’s name and to efface the attachments effected after 04.03.2015 from the encumbrance certificate to be illegal. Consequently, the third respondent is directed to effect mutation of the property covered by Ext.P3 in the petitioner’s name and the 4[th] respondent is directed to issue encumbrance certificate with respect to the property covered by Ext.P3, after effacing the attachments effected over after 04.03.2015. Sd/- **V.G.ARUN JUDGE** Scl/ W.P.(C) No.19277 of 2022 -11- ## **APPENDIX OF WP(C) 19277/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE MEMORANDUM OF THE DEPOSIT OF TITLE DEED DATED 4-3-2015 WHICH WAS EXECUTED BY THE 5TH RESPONDENT Exhibit P1(A) TRUE COPY OF THE SALE CERTIFICATE DATED 8-11-2021 Exhibit P2 TRUE COPY OF THE JUDGMENT DATED 9-122021 IN W.P(C) NO.27044/2021 OF THIS HON'BLE COURT Exhibit P3 TRUE COPY OF THE SALE DEED DATED 28-12022 EXECUTED BY THE AUTHORIZED OFFICER OF THE STATE BANK OF INDIA IN FAVOUR OF THE PETITIONER Exhibit P4 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT Exhibit P4(A) TRUE COPY OF THE ORDER DATED 23-5-2022 ISSUED BY THE 2ND RESPONDENT Exhibit P5 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE WITH RESPECT TO THE SECURED ASSET WHICH WAS SOLD UNDER THE SARFAESI ACT IN FAVOUR OF THE PETITIONER Exhibit P6 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT Exhibit P7 TRUE COPY OF THE ORDER DATED 25-5-2022 ISSUED BY THE 4TH RESPONDENT