Sowmya Francis v. Sub Registrar, Cherpu; Edakunni Village Officer; State Bank of India; Mary George; JMJ Finance; Hill Valley Thrissur Nidhi Limited; KLM Axiva Finvest Limited; and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` MONDAY, THE 12[TH] DAY OF FEBRUARY 2024 / 23RD MAGHA, 1945 WP(C) NO. 36585 OF 2023 ``` ## **`PETITIONER(S):`** ``` SOWMYA FRANCIS AGED 30 YEARS ``` ``` W/O. BAIJU, THANDIYEKKAL HOUSE, MARATHAKKARA, PUTHUR, THALORE P.O., THRISSUR DISTRICT, KERALA-680306. REPRESENTED THROUGH HER POWER OF ATTORNEY HOLDER AND MOTHER ANNIE, AGED 55 YEARS, W/O. FRANCIS, CHENGALIKKUNNEL HOUSE, VEPPUR DESOM, VARANDARAPPILLY P.O., THRISSUR DISTRICT, KERALA., PIN - 680303 ``` ``` BY ADVS. ``` ``` JISHY P.S. ``` ``` SENITTA P. JOJO ``` ## **`RESPONDENT(S):`** - **`1 THE SUB REGISTRAR SUB REGISTRAR'S OFFICE, CHERPU, THRISSUR DISTRICT, KERALA., PIN - 680561`** - **`2 THE VILLAGE OFFICER EDAKUNNI VILLAGE OFFICE, THRISSUR DISTRICT, KERALA., PIN - 680306`** - **`3 CHIEF MANAGER AND AUTHORISED OFFICER STATE BANK OF INDIA, ASSET RECOVERY MANAGEMENT BRANCH, R.S. BUILDING, M.G. ROAD, ERNAKULAM., PIN - 682001`** - **`4 MARY GEORGE AGED 74 YEARS`** - **`W/O. GEORGE, MOYALAN HOUSE, MARATHAKKARA, OLLUR P.O., THRISSUR DISTRICT, KERALA., PIN - 680306`** - **`5 JMJ FINANCE DOOR NO. 21/349/29, WEST FORT TOWER, CIVIL LANE ROAD, WEST FORT JUNCTION, POTHOLE P.O., THRISSUR-680002, REPRESENTED BY ITS DIRECTOR., PIN - 680002`** - **`6 HILL VALLEY TRICHUR NIDHI LIMITED`** ``` WP(C) NO. 36585 OF 2023 ``` 2 ``` THIROOR, MULANKUNNATHUKKAVU P.O., THRISSUR DISTRICT, KERALA-680581., REPRESENTED BY ITS CHAIRMAN., PIN - 680581 ``` ``` 7KLM AXIVA FINVEST LIMITED (FORMERLY KNOWN AS NEEDS FINVEST LIMITED) REGISTERED OFFICE AT DOOR NO. 3-4-186, TOBACCO BAZAAR LANE, BEHIND MAHAKALI TEMPLE, SECCUNDERABAD-500003, REPRESENTED BY ASSISTANT MANAGER, HAVING ADDRESS AT DHANESH BHAVAN, VALAMANGALAM SOUTH, THURAVOOR P.O., CHERTHALA, ALAPPUZHA DISTRICT, KERALA., PIN - 688532 ``` ``` BY ADVS. SHIJU VARGHESE ``` ``` SACHU THOMAS(K/175/2022) SRI BS SYAMANTHAK, GP, SRI JITHESH MENON, SC - R3 ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 36585 OF 2023 ``` 3 ## **P.V.KUNHIKRISHNAN, J.** **-----------------------------W.P.(C)No. 36585 of 2023** **---------------------------------------------Dated this the 12[th] day of February, 2024** ## **JUDGMENT** The above writ petition is filed with the following prayers: “i. Issue a writ of Mandamus or any other appropriate writ, order or direction, directing the 1[st] respondent to issue a fresh encumbrance certificate to the petitioner, for the property comprised in Re-Survey No. 74/134 (Survey No. 161/9) of Edakunni Village, Thrissur Taluk, Thrissur District, at the earliest, by effacing or deleting all the entries on it by considering the date of mortgage to the 3[rd] respondent and the date of confirmation of sale. ii. Direct the 1[st] respondent to remove or efface the attachments noted in Exhibit P2 and also from the concerned registers in the office of the Sub Registrar, Cherpu in respect of the property comprised in Re-Survey No. 74/134 (Survey No. ``` WP(C) NO. 36585 OF 2023 ``` 4 161/9) of Edakunni Village, Thrissur Taluk, Thrissur District. iii. Grant such other reliefs as this Hon'ble Court may deem fit and proper by considering the facts and circumstances of this case. iv. Dispense with production of English translation of the documents.”[SIC] 2. The petitioner is the successful bidder who has quoted highest amount on the e-auction conducted by the 3rd respondent bank under the provisions of SARFAESI Act, 2002. A Sale Certificate was issued by the 3[rd] respondent in favour of the petitioner. The subject matter of the land is having an extent of 4.05 Ares of land comprised in Re-Survey No. 74/134 (Old Survey No. 161/9) of Edakunni Village, Thrissur Taluk, Thrissur District. The 4[th] respondent had purchased the property from its previous owner without any encumbrances over the property, on 16/11/2001 vide Sale Deed No. ``` WP(C) NO. 36585 OF 2023 ``` 5 4136/2001 of Cherpu SRO, is the submission. Subsequently, she availed a loan from the 3[rd] respondent State Bank of India on 17/03/2015 by creating mortgage/ charge over the property. Subsequently, the 4th respondent had failed to repay the above loan and accordingly SARFAESI proceedings were initiated against the 4[th] respondent and through sale proceedings the subject matter property is devolved upon the petitioner. The petitioner had paid the entire sale price and sale certificate is issued as evident by Ext.P1. For the purpose of registration of sale deed of the subject matter property, the petitioner had applied for an encumbrance certificate at the office of the 1[st] respondent. Then an encumbrance certificate is issued to the petitioner showing certain encumbrance on it as evident by Ext.P2. According to the petitioner, the date of encumbrance related to 6 ``` WP(C) NO. 36585 OF 2023 ``` the 5[th] respondent is endorsed on Ext.P2 as 23.07.2019. The date of encumbrance related to the 6[th] respondent is endorsed on Ext.P2 as 05.10.2019. The date of encumbrance related to the 7[th] respondent is endorsed on Ext.P2 as 21.12.2020. Therefore, it is submitted that the above endorsements over Ext.P2 are legally not sustainable and the mortgage / charge created by the previous owner / 4[th] respondent was on 17.03.2015. According to the petitioner, since the mortgage was created by the 4[th] respondent on 17.03.2015 and the encumbrance as far as respondent Nos.5 to 7 are subsequent to it, the petitioner is entitled to efface the encumbrance in the light of Ext.P3 and P4 judgments. The petitioner also relied the judgment of this Court in **Phoenix Arc Private Limited v. Sub Registrar, Feroke (2023 KHC 9452).** Hence, this writ petition is filed. 7 ``` WP(C) NO. 36585 OF 2023 ``` 3. Heard the learned counsel appearing for the petitioner, the learned Government Pleader and the learned counsel appearing for the 3[rd] respondent. 4. It is an admitted fact that the encumbrance noted in Ext.P2 are subsequent to the mortgage created by the 4th respondent. There is no dispute on that. If that be the case, I am of the considered opinion that the point is covered by Ext.P3 and P4 judgment. The dictum laid down in **Phoenix Arc Private Limited’s** case (supra) is also directly on the point. It will be beneficial to extract the relevant portion of the above said judgment: “8. Sri. A. Kevin Thomas, the learned counsel for the petitioner relied on the decisions of this Court in **Madhan S. v. Sub Registrar, Kollam and Others (2014 (1) KHC 249: 2014 (1) KLT 406: ILR 2014 (1) Ker. 586: 2014 (1) KLJ 483: AIR 2014 Ker. 54), Secretary, Keechery Service** ``` WP(C) NO. 36585 OF 2023 ``` 8 **Cooperative 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 **HDFC Bank v. Sub Registrar Office (2011 (3) KLJ 561: 2011 KHC 851)** 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 register. The learned counsel further contends that the remedy of the 3rd respondent to redeem the mortgage has been extinguished in view of the provisions contained in S.13 (8) of the SARFAESI Act. 9. Smt. Deepa Narayanan, the learned Government Pleader submits that, when an order of attachment of immovable property or release of any immovable property from attachment has been made by any Court and ``` WP(C) NO. 36585 OF 2023 ``` 9 communicated to the Sub Registrar as per S.89(5)(b) of the Registration Act, 1908, the Sub Registrar shall file the copy of the order in Book No.1 maintained under S.51 and shall be indexed as per S.54 of the said Act. Smt. Deepa then refers to R.171 of the Registration Rules (Kerala) and submits that a certificate of encumbrance shall contain list of all acts and encumbrances effecting the property in question. Therefore, the Registering officer has no power to efface any entries and the only option is to have the attachment lifted by the competent Court. 12. (9) Smt. Deepa is right in her submission that when an order of attachment of immovable property or release of any immovable property from attachment has been made by any Court and communicated to the Sub Registrar as per S.89(5) (b) of the Registration Act, 1908, the Sub Registrar shall file the copy of the order and memorandum in ``` WP(C) NO. 36585 OF 2023 ``` 10 Book No.1 and shall be indexed as per S.54 of the said Act. According to Smt. Deepa, the Registering officer has no power to efface such entries. In **Madhan's** case (supra), this Court directed the Sub-Registrar and the Village Officer to efface the attachments effected subsequent to the mortgage from the relevant records for the reason that 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. It is evident from the documents produced by the petitioner that the attachment effected Munsiff Court, Manjeri is subsequent to the creation of the equitable mortgage and therefore, in the light of the decisions cited supra, the attachment order lost its efficacy, and, therefore, needs to be obliterated from the records. This can be done in the same manner as provided under S.89(5)(b) of the ``` WP(C) NO. 36585 OF 2023 ``` 11 Registration Act, 1908. S.89(5) of the Registration Act, 1908 reads as follows: **“89. Copies of certain orders, certificates and instruments to be sent to registering officers and filed.** Xxxx xxxx xxxx ## - (5) Every Court passing (a) decree or order creating, declaring, transferring, limiting or extinguishing any right, title or interest to or in immovable property in favour of or of any person, or (b) an order for the attachment of immovable property or for the release of any immovable property from attachment, shall send a copy of such decree or order together with a memorandum describing the property, as far as may be practicable in the manner required by S.21, to the Registering Officer within the local limits of whose jurisdiction the whole or any part of the immovable property comprised in such ``` WP(C) NO. 36585 OF 2023 ``` 12 decree or order is situate, and such officer shall file the copy and memorandum in his Book No.1. (underlining supplied) Since the attachment subsequent to the creation of equitable mortgage has lost its efficacy and has to be obliterated from records, the same can be done by the Sub Registrar by filing the certified copy of the order / judgment of this Court in his Book No.1. Accordingly, there will be a direction to the 1st respondent to efface the attachment effected by the Munsiff Court, Manjeri in O.S No. 263 of 2022 from Book No.1 by filing the certified copy of this judgment in the said Book and register Ext. P5 sale certificate as and when presented, on payment of the required stamp duty and registration fee and if the same is otherwise in order. After registration of the property as above, the 2nd respondent shall effect transfer of registry, if ``` WP(C) NO. 36585 OF 2023 ``` 13 there are no other legal impediments. The writ petition is disposed of.” 5. The similar is the view in **Secretary, Keechery Service Co-operative Bank Ltd. v. Sajitha Nizar alias Sajitha P.M. and Others [2020(5) KHC 231]** and **Madhan S. v. Sub Registrar, Kollam and Others [2014 (1) KHC 249]** . The counsel for the contesting respondent takes me through the judgment dated 14.11.2023 in WP(C) No.20463/2023. But, that was a judgment in which this Court relied the judgment in **Shamala K.U. and Another v. Sub Registrar, Kodungalloor [2018 KHC 811]** . In **Shamla’s** case, the affected parties were not impleaded. But, in this case respondent Nos.5 to 7 are impleaded and they were also heard. In such circumstances, I am of the considered opinion that, no dictum is laid down 14 ``` WP(C) NO. 36585 OF 2023 ``` in the judgment in WP(C) No.20463/2023 and not applicable in the facts and circumstances of the case. Therefore, this Writ petition is disposed of with the following directions: 1. The 1[st] respondent is directed to issue fresh encumbrance certificate to the petitioner for the property comprised in Re-survey No.74/134 (Old Survey No.161/9) of Edakunni Village, Thrissur Taluk in Thrissur District by effacing or deleting all the entries on it by considering the date of mortgage to the 3[rd] respondent and the date of confirmation of the sale and also Ext.P1 sale cirtificate. 2. The above exercise shall be done, as expeditiously as possible, at any rate, within a 15 ``` WP(C) NO. 36585 OF 2023 ``` period of one month from the date of receipt of a copy of this judgment. Sd/- nvj **P.V.KUNHIKRISHNAN JUDGE** ``` WP(C) NO. 36585 OF 2023 ``` 16 ## **`APPENDIX OF WP(C) 36585/2023`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1TRUE COPY OF THE SALE CERTIFICATE ISSUED UNDER RULE 9(6) OF THE SECURITY INTEREST (ENFORCEMENT) RULES, 2002, DATED 17/03/2023 ``` ``` EXHIBIT P2TRUE COPY OF THE ENCUMBRANCE CERTIFICATE NO. 8014/23 DATED 05/07/2023 ``` ``` EXHIBIT P3TRUE COPY OF THE JUDGMENT DATED 10/12/2018 IN WP(C) NO. 16745/2018 EXHIBIT P4TRUE COPY OF THE JUDGMENT DATED 21/01/2021 IN WP(C) NO. 27827/2020 ``` ``` RESPONDENTS EXHIBITS : NIL ``` ``` //TRUE COPY// PA TO JUDGE ```