State Bank of India v. State of Kerala and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 23RD JUNE 2010 / 2ND ASHADHA 1932** **WP(C).No. 13011 of 2010(B)** **--------------------------** **PETITIONER:** ## **---------------** **STATE BANK OF INDIA,STRESSED ASSETS MANAGEMENT BRANCH CNENNAI, REPRESENTED BY THE ASSISTANT GENERAL MANAGER (OFFICIATING) RESIDENT OFFICER IN CHARGE, STATIONED AT ERNAKULAM RS BUILDING, 2ND FLOOR, M.G.ROAD,ERNAKULAM.** **BY ADV. SRI.P.V.SURENDRANATH SRI.B.S.SYAMANATHAK** **RESPONDENTS:** ## **---------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO REGISTRATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE SUB REGISTRAR, OFFICE OF THE SUB REGISTRY,TRISSUR.** **3. M/S.COOKIES (INDIA)PRIVATE LTD. CHIYYARAM,THRISSUR-680026.** **4. SMT.JAYASREE THAMBI, MANAGING DIRECTOR, INDUJ DIAGNOSTIC & RESEARCH CENTRE (P)LTD.,SWATHI,BHARANIKKAVU,MAVELIKKARA.** **5. MOOLAYIL XAVIER CHACKO, S/O.MOOLAYIL JOSEPH CHACKO,MANAGING PARTNER, REGISTERED PARTNERSHIP FIRM M/S.XAVIER CHACKO VAZHAPPILLY EAST POST, CHANGANASSERY, KOTTAYAM DISTRICT.** **ADV. SRI.K.SASIKUMAR FOR R4** **SRI.S.ARAVIND FOR R4 SRI.DEVAN RAMACHANDRAN FOR R5 SRI.K.M.ANEESH FOR R5 SRI.SANTHOSH KUMAR.K. FOR R5 GOVT.PLEADER, SRI.MATHEW GEORGE VADAKKEL FOR R1 & R2** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **P.R.RAMACHANDRA MENON, J. -----------------------------------W.P.(C) No.13011 OF 2010 ------------------------------------Dated this the 23[rd] day of June, 2010** ## **J U D G M E N T ~~~~~~~~~~~** The petitioner Bank is before this Court seeking for a direction to be issued to the 2[nd] respondent Sub Registrar, Trissur, to register the sale of the concerned property confirmed in the name of the 4[th] respondent, who is the successful bidder of the concerned item, sold in the public auction held on 24.10.2010. 2. The factual position narrated in the Writ Petition shows that the 3[rd] respondent, borrower, had obtained a loan from the petitioner Bank creating security interest over the property in question. The borrower turned to be a defaulter, when there was no other alternative for the Bank, but to declare the account as 'NPA' and proceed with further steps under the SARFAESI Act, causing the property to be taken possession of and sold in public auction as mentioned above. W.P.(C) No.13011/2010 2 3. On complying with the statutory formalities, the sale was conducted as scheduled, in which the 4[th] respondent turned to be the successful bidder. It is stated that the 4[th] respondent has satisfied the entire sale consideration and the sale has been confirmed in the name of the 4[th] respondent. On confirmation of the sale as above, a draft sale deed was prepared and the same was presented before the 2[nd] respondent. It is stated that the petitioner Bank was told by the 2[nd] respondent that there was some other attachment over the property in question and hence the sale was not liable to be registered at all, which made the petitioner Bank to approach this Court by filing this Writ Petition. 4. The learned counsel appearing for the Bank submits that the stand taken by the 2[nd] respondent is _per se_ wrong and illegal. No attachment can save the property in question, in so far as the security interest has been created over the same and the petitioner Bank is having priority right, there being a 'non obstante' clause as contained in Section 35 of the SARFAESI Act, 3 W.P.(C) No.13011/2010 which will prevail over the rights and liberties of others concerned. 5. The learned counsel appearing for the 5[th] respondent submits that the 5[th] respondent has obtained a decree against the 3[rd] respondent/borrower and that the property has been caused to be attached, under which circumstance it is not correct or proper for the Bank to have sold the property in question. The legal position cannot be the subject matter of dispute any more as the rights and interest of the secured creditor have already been upheld by this Court except in the case of 'Crown debt', holding that it will prevail over the rights and liberties of others, reported in **Sahir Sha v. Bank of India** [2006(1) KLT 161]. The only exceptional circumstance that has been carved out is that pursuant to a decree, if it has been got executed, it will stand on a different footing. In the instant case, admittedly, the decree in question stated as obtained by the 5[th] respondent is still to be got executed. W.P.(C) No.13011/2010 4 6. It is brought to the notice of this Court by the learned counsel for the petitioner Bank that, in the relevant proceedings pending consideration before the Munsiff's Court, Thrisur (O.S.No.1057/2010) I.A.No.3127/2010 was filed by the 5[th] respondent seeking for an injunction against the Bank with regard to the steps being taken in respect of the the property in question. Eventhough an order was passed by the concerned civil court in the I.A., after filing objection by the Bank, it was endorsed by the 5[th] respondent that the 5[th] respondent did not have any objection with regard to the sale of the immovable property concerned as the said respondent did not have any rights and interest over the same. This being the position, there is absolutely no merit or bonafides on the part of the 5[th] respondent in causing the proceedings to be protracted by approaching the 2[nd] respondent, nor is there any justification on the part of the 2[nd] respondent for denying the sale deed to be registered, submits the learned counsel. W.P.(C) No.13011/2010 5 7. The learned Government Pleader appearing for the 2[nd] respondent submits that the contention raised in the petition, that there is a wilful default on the part of the 2[nd] respondent in registering the sale, is quiet wrong and misconceived. It is also stated that as per the instructions received, the sale deed submitted before the 2[nd] respondent was only on a 'plain paper' and that the party wanted to have 'exemption' from paying the stamp duty , which was not possible. The learned Government Pleader submits that, by virtue of the mandate under Section 30, the party is very much bound to pay the stamp duty and there cannot be any exemption under any of the provisions including under Section 9(1A) of the Kerala Stamp Act. Eventhough the position was let known to the party concerned, no steps were taken to present the document paying the requisite stamp duty and this alone is the reason for the delay in causing the document to be registered. 8. The learned counsel appearing for the petitioner Bank as well as the learned counsel appearing for the 4[th] respondent, W.P.(C) No.13011/2010 6 (the purchaser of the property) vehemently dispute the correctness/genuineness of the said submission, asserting that at no point of time, were the parties told about the reason for the delay as now mentioned above, nor did they have any such case. Both the learned counsel assert that the petitioner as well as the 4[th] respondent know it very well, that they are bound to pay the stamp duty in accordance with the relevant provisions of law and the document will be presented in the proper form, paying the stamp duty as prescribed. The learned counsel for the petitioner also submits that the document produced before the 2[nd] respondent was only a 'draft of the sale deed' on a 'plain paper' and it was only for the scrutiny of the 2[nd] respondent, so as to effect necessary corrections/modifications, if so necessitated. 9. In the above circumstances, the petitioner is permitted to present the proper sale deed executed on the stamp paper of requisite value forthwith and on presentation of the same, the 2[nd] respondent shall give an opportunity to the W.P.(C) No.13011/2010 7 petitioner to rectify the defect, if any, the same shall be caused to be registered, on complying with the statutory formalities, as expeditiously as possible, at any rate, within two days from the date of presentation. The Writ Petition is allowed as above. No costs. ## **(P.R.RAMACHANDRA MENON, JUDGE)** **ps**