State Bank of India Stressed Asset Recovery Branch v. Sub Registrar Sub Registering Office, Pattom & Village Officer, Pattom; Samuel Jacob (Deleted); John Jacob; Sugunan; Harikumar; Felix Johny Kuruvila

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **MONDAY, THE 6[TH] DAY OF SEPTEMBER 2021 / 15TH BHADRA, 1943** ## **WP(C) NO. 27977 OF 2020** ## **PETITIONERS:** - **1 STATE BANK OF INDIA STRESSED ASSET RECOVERY BRANCH, LMS COMPOUND, NEAR VIKAS BHAVAN, THIRUVANANTHAPURAM-695033, REPRESENTED BY ITS CHIEF MANAGER.** - **2 SRI.ARSHAD.M, ARSHAD MANZIL, DERPPAKADU, AYIRAKUZHI.P.O, KADAKKAL, KOLLAM-691559. BY ADV S.EASWARAN** ## **RESPONDENTS:** - **1 THE SUB REGISTRAR SUB REGISTERING OFFICE,PATTOM, THIRUVANANTHAPURAM-695004.** - **2 THE VILLAGE OFFICER, VILLAGE OFFICE,PATTAM, THIRUVANANTHAPURAM-695004.** - ***3 MR.SAMUEL JACOB, PROPRIETOR OF M/S SAMSON AND SONS LIFESTYLE,TC 10/1221(4),(5),(6), NALANCHIRA.P.O, THIRUVANANTHAPURAM-695015. (DELETED)** **-:2:-** W.P.(C) No.27977/20 ***(THIRD RESPONDENT IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 15/07/2021 IN IA.NO.2/2021 IN WP(C)27977/2020)** ## **4 MR.JOHN JACOB,** **S/O JACOB SAMSON, TC-3/678,KANNIMATTOM,** **TKD ROAD,MUTTADA.P.O, THIRUVANANTHAPURAM-695025.** ## **5 SUGUNAN,** **EF 205,VRINDAVAN HOUSING COLONY, NEAR VYDUTHI BHAVAN,PATTOM, PATTOM PALACE.P.O, THIRUVANANTHAPURAM-695004.** **6 HARIKUMAR, S/O GANESHA PILLAI, VENKITACHALA BHAVAN, NETTAYAM P.O, THIRUVANANTHAPURAM-695035.** - **7 FELIX JOHNY KURUVILA, TC 12/177, 3/4,MULAVANA, KUNNUKUZHI.P.O,** **THIRUVANANTHAPURAM-695035.** B **Y ADVS.** **SRI.V.PHILIP MATHEW SRI.SIVAN MADATHIL** **SMT.SABEENA P. ISMAIL, GOVT. PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **-:3:-** W.P.(C) No.27977/20 ## **BECHU KURIAN THOMAS, J. -----------------------------------W.P.(C) No.27977 of 2021 --------------------------------------** Dated this the 6[th] day of September, 2021 ## **JUDGMENT** First petitioner is a secured creditor, who brought the mortgaged property of the 4[th] respondent for sale. The 2[nd] petitioner is the auction purchaser. Sale was conducted on 8.7.2020 pursuant to proceedings initiated under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, ('SARFAESI Act' for brevity). The reason for invoking the jurisdiction of this Court under Article 226 of the Constitution of India is on account of the refusal of the Sub Registrar to register the sale certificate issued as per the SARFAESI Act, after effacing the attachments already effected on the property. 2. Petitioners contend that on 20.10.2015, an equitable mortgage, by deposit of title deeds of the property belonging to the 4[th] respondent, was created, as evidenced by Ext.P3 memorandum of deposit of title deeds dated 21.10.2015. On account of default in repayment, proceedings under the SARFAESI Act was initiated which W.P.(C) No.27977/20 **-:4:-** ultimately resulted in sale of the property. The 2[nd] petitioner, who purchased the property, was issued with the sale certificate, produced as Ext.P4. It is claimed by the petitioners that when the 2[nd] petitioner took steps for registering the sale certificate, the 1[st] respondent refused to carry out the registration due to attachments over the property effected as per orders of the civil court in two different civil suits filed by respondents 6 and 7. According to the petitioners, in view of the law laid down by this Court in **Madhan S. v. Sub Registrar, Kollam and Others** (2014 (1) KHC 249) as well as the decision reported in **Secretary, Keechery Service Co-operative Bank Ltd. v. Sanjitha Nizar alias Sajitha P.M. and Others** (2020 (5) KHC 231), petitioners are entitled to have the sale certificate registered after effacing the attachments effected over the said property. 3. Though the 3[rd] respondent was the borrower, he was subsequently deleted as per order dated 15.07.2021, while respondents 4 and 5 have not appeared in this proceedings, in spite of service of notice. 4. Counter affidavits have been filed by the 1[st] respondent as well as respondents 6 and 7. **-:5:-** W.P.(C) No.27977/20 5. 1[st] respondent has contended that the registration of sale certificate have never been sought and the petitioners have never approached the Sub-Registrar for registration of Ext.P4 sale certificate. 6. The 6[th] respondent filed a counter affidavit contending that there are no reasons justifying the issuance of a writ of mandamus, especially since the date of alleged sale is not clear from the sale certificate, the sale consideration is very low and is inadequate, and that the description of property in Ext.P3 and Ext.P4 differs. It was further stated that O.S. No.201 of 2016 was filed by the 6[th] respondent against respondents 3 and 4 before the Sub Court, Thiruvananthapuram for realisation of Rs.46 Lakhs and the order of attachment was obtained by him on 22.12.2016. 7. The 7[th] respondent, on the other hand, stated that he had paid an amount of Rs.71,60,000/- to M/s.Samson & Sons Lifestyle and that when they failed to honour their commitment, he was compelled to file O.S. No.169 of 2016 before the Sub Court, Thiruvananthapuram on 4.11.2016 and obtained an order of attachment. The 7[th] respondent also thus sought for dismissal of the writ petition. **-:6:-** W.P.(C) No.27977/20 8. I have heard Adv.S.Easwaran on behalf of the petitioners, Adv.Sabeena P.Ismail, learned Government Pleader on behalf of respondents 1 and 2, Adv.V.Philip Mathews on behalf of the 6[th] respondent and Adv.Sivan Madathil on behalf of the 7[th] respondent. 9. Learned counsel for the respondents contended that the writ petition is liable to be dismissed on the technical ground of failure on the part of the petitioners to approach the 1[st] respondent with a demand for registration. It was also contended that Ext.P4 sale certificate contains the entry of “Re.Sy. No.31 of Block 12”, which was not part of the properties covered by Ext.P3 memorandum, due to which, there is a dispute on the identity of property and hence the parties ought to approach the jurisdictional civil court for relief. 10. Adv.V.Philip Mathew as well as Adv.Sivan Madathil submitted in unison that, respondents 6 and 7 have no other method to realise the amounts due to them and if the property is registered in the name of the 2[nd] petitioner, they would be deprived of the fruits of their decree. 11. A perusal of the pleadings in the writ petition shows that the petitioners have averred that “when the 2[nd] petitioner took steps for registration of Ext.P4 sale certificate it was informed by the 1[st] W.P.(C) No.27977/20 **-:7:-** respondent that the property could not be registered as there are attachments over the property by filing civil suits”. It is further pleaded in the grounds of the writ petition that “reticence on the part of the 1[st] respondent to register the sale certificate issued by the petitioner certainly qualifies for interference at the hands of this Honourable Court and the 1[st] respondent is liable to be compelled by this Honourable Court to register the sale certificate”. 12. On a consideration of the principle that govern the grant of a mandamus, the aforesaid pleading in the writ petition is sufficient for the petitioners to invoke the jurisdiction of this Court under Article 226 of the Constitution of India. The veracity of the pleading is not a matter to be decided while exercising the writ jurisdiction. For the purpose of invoking the jurisdiction of this Court and to enable this Court to exercise the power of issuing a writ of mandamus, the aforesaid pleading would be sufficient. Further, what is sought for in the writ petition is, to compel the 1[st] respondent to perform a statutory duty vested upon it. A writ of mandamus can be issued for compelling performance of a statutory duty (See **State of U.P. and Others v. Harish Chandra and Others** [(1996) 9 SCC 309], and **Oriental Bank of Commerce v. Sunderlal Jain and Another** **-:8:-** W.P.(C) No.27977/20 [(2008) 2 SCC 280]. In view of the above, this Court finds that the writ petition is maintainable 13. The argument built upon the difference in survey numbers between Ext.P3 and Ext.P4 though impressive at first blush, on a deeper scrutiny it is found to be devoid of merits. It was argued that while Ext.P4 sale certificate mentions “6.37 cents of land in Re.Sy. No.30 and 1.33 cents of land in Re.Sy. No.30 & 31 in Pattom Village, Thiruvananthapuram Taluk”, Ext.P3 memorandum of deposit of title deeds does not mention Re.Sy. No.31. On the basis of the aforesaid alleged mistake in the description of property, the 6[th] respondent contended that Ext.P4 cannot be stated to be related to Ext.P3 and that this dispute can only be adjudicated by a civil court. Ext.P3 memorandum refers to two properties of which the first property is described as covered by sale deed No.5270/2007 situated in Re.Sy.No.30 in Block No.72 (Old Sy.No.2209/1-3 having an extent of 2.58 ares) while the second property is descried as covered by sale deed No.3019/2011 dated 30.9.2011 of SRO Pattom. In Ext.P4 sale certificate, description of property is mentioned as “All the part and parcel of 6.37 cents of land in Re Sy. No.30 and 1.33 cents of land in Re.Sy.No.30 & 31 in Pattom Village, Thiruvananthapuram Taluk, W.P.(C) No.27977/20 **-:9:-** Thiruvananthapuram District in the name of Shri.John Jacob vide sale deed no.5270/2007 dated 31.12.2007 and sale deed no.3019/2011 dated 30.09.2011 of SRO Pattom bounded by: EastPlamoodu-PMG road and pathway, North-DN convent & Reebok, West-property of Usha Wycliff, South-pathway and property of John Puthooran.” 14. A comparison of the aforesaid description in Ext.P3 as well as in Ext.P4 will reveal that the first property is described in Ext.P4 by Re.Survey number and tallies with that in Ext.P3 while the second property tallies with sale deed number but the survey number is not shown in Ext.P3. The only difference is that in Ext.P4, in addition to the sale deed number, the re-survey numbers are also specified. It is appropriate to mention at this juncture that respondents 6 and 7 do not even have a case that the attachment obtained by them from the civil court relates to the second property, i.e., 1.33 cents of land in Re.Sy. Nos.30 and 31 of Pattom Village. It is their definite case that the attachment obtained by them is confined to 6.37 cents of land in Re.Sy. No.30. Since the property covered by Ext.P4 sale certificate was described in Ext.P3 by sale deed numbers, according to me, there cannot be any valid dispute on the identification of property that **-:10:-** W.P.(C) No.27977/20 can be raised by respondents 6 and 7 to the sale certificate issued in favour of the 2[nd] petitioner. 15. Even otherwise, the mortgagor of the property had never raised a dispute on the description or on the identity of the property and hence respondents 6 and 7 cannot validly raise such a dispute. 16. The main question raised for consideration is whether in spite of the attachments effected by the orders of civil court, can the sale carried out under the SARFAESI Act be directed to be registered, after effacing the attachments over the property? 17. It is a settled proposition of law that an attachment does not create any interest in a property, as held in **Francis v. Navodaya Kuries & Loans (P) Ltd** . (2010 (3) KLT 609). Further, in **Kabidi Venku Sah v. Syed Abdul Hai and Another** [(1983) 4 SCC 570] it was held that the attaching creditor can bring the property to sale only subject to the mortgage, as long as it is subsisting. In **Madhan S. v. Sub-Registrar, Kollam and Others** (2014 (1) KHC 249), while dealing with a sale conducted under the Recovery of Debts Due to Banks and Financial Institutions Act 1993, it was held that “ _the attachments effected subsequent to the mortgage created in favour of the bank do not affect the title and ownership of the petitioner over_ **-:11:-** W.P.(C) No.27977/20 _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_ . 18. Apart from the above decisions, recently, a Division Bench of this Court had occasion to consider an identical question under the SARFAESI Act. In the decision reported in **Secretary, Keechery Service Co-operative Bank Ltd. v. Sajitha Nizar alias Sajitha P. M and Others** (2020 (6) KLT 68) after referring to an unreported decision of another Division Bench of this court, in **Ali Ashraf M.M and Another v. Sub-Registrar, Thrissur,** it was held that the orders of attachments on the property in question were after the creation of the equitable mortgage and hence this Court refused to interfere with the direction of the learned Single Judge directing to effect mutation of the property as well as to efface all encumbrance over the property effected after the date of mortgage. 19. In view of the above binding propositions of law, no further elaboration is required on the question raised for consideration. The attachments effected over the property by the two orders of civil court which are undoubtedly subsequent to the creation of the equitable **-:12:-** W.P.(C) No.27977/20 mortgage with the bank have no impact upon the sale conducted under the SARFAESI Act. Once the sale is effected under the said Act, the sale is liable to be registered after effacing the attachments effected. 20. In view of the above discussions, a writ of mandamus is hereby issued, directing the first respondent to register Ext.P4 sale certificate, on payment of the requisite stamp duty forthwith. The first and second respondents are further directed to efface the attachments effected in O.S. No. 201 of 2016 and O.S 169 of 2016 of the Sub Court, Thiruvananthapuram, over the property covered by Ext.P4 sale certificate while registering the sale certificate. The writ petition is allowed as above. ## **Sd/-** **BECHU KURIAN THOMAS JUDGE** vps W.P.(C) No.27977/20 **-:13:-** ## **APPENDIX OF WP(C) 27977/2020** ## **PETITIONER'S EXHIBITS** **EXHIBIT P1 TRUE COPY OF DEMAND NOTICE DATED 30.5.2016** **EXHIBIT P2 TRUE COPY OF THE POSSESSION NOTICE DATED 5.1.2017** **EXHIBIT P3 TRUE COPY OF THE LETTER OF CONFIRMATION OF MORTGAGE DATED 21.10.2015** **EXHIBIT P4 TRUE COPY OF THE SALE CERTIFICATE DATED 6.10.2020.** **EXHIBIT P5 COPY OF ENCUMBRANCE CERTIFICATE DATED 28.02.2020.** **EXHIBIT P6 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE NO.10133 OF 2017 DATED 8/12/2017 WITH ENGLISH TRANSLATION** - **EXHIBIT P7 TRUE COPY OF THE SALE DEED NO.5270/2007 DATED 5.12.2007 WITH ENGLISH TRANSLATION** - **EXHIBIT P8 TRUE COPY OF THE SALE DEED NO.3019 OF 2011 DATED 30.9.2011** **EXHIBIT P9 TRUE COPY OF THE SALE NOTICE DATED 17.6.2020 ISSUED BY THE 1ST PETITIONER** **RESPONDENT'S/S' EXHIBITS:** **EXHIBIT R7(1) TRUE COPY OF THE JUDGMENT DATED 15.9.2018 IN O.S. NO.169/2016 OF THE 1ST ADDL.SUB COURT, THIRUVANANTHAPURAM** **EXHIBIT R7(2) TRUE COPY OF THE DECREE DATED 15.9.2018 IN O.S. NO.169/2016 OF THE 1ST ADDL.SUB COURT, THIRUVANANTHAPURAM**