State Bank of India v. Sub Registrar, Kallettumkara; Village Officer Kodakara; Star Financiers; Joy Kalapparamban; Thomas Mattathil; Win-Coast Finance Investments; Devassy Mullakkara; JMJ Finance; Capital Finsserve Ltd.; KLM Nidhi Ltd; New Trichur Company Ltd; and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE N.NAGARESH ``` ``` THURSDAY, THE 4[TH] DAY OF APRIL 2024 / 15TH CHAITHRA, 1946 ``` # **`WP(C) NO. 40637 OF 2023`** ## **`PETITIONER:`** ``` STATE BANK OF INDIA STRESSED ASSETS RECOVERY BRANCH, 7TH FLOOR, VANKARATH BUILDING, PALARIVATTOM, ERNAKULAM, REPRESENTED BY ITS AUTHORIZED OFFICER/CHIEF MANAGER, PIN – 682024 ``` - **`BY ADVS. M.JITHESH MENON K.INDU (POURNAMI) P.G.MAHESHKUMAR`** - **`R.BRIJESH`** ``` KURIAN T. VADAKKEL ``` ## **`RESPONDENTS:`** - **`1 THE SUB REGISTRAR KALLETTUMKARA OFFICE OF THE SUB REGISTRAR, KALLETTUMKARA, THRISSUR DISTRICT., PIN - 680683`** - **`2 THE VILLAGE OFFICER KODAKARA VILLAGE OFFICE, KODAKARA, THRISSUR DISTRICT., PIN - 680684`** - **`3 M/S.STAR FINANCIERS REPRESENTED BY ITS MANAGING PARTNER MR.JAMES, PANTHALOOKKARAN BUILDINGS, OPP:SHANTHI HOSPITAL, KODAKARA, THRISSIR DISTRICT, PIN - 680684`** - **`4 MR.JOY KALAPARAMBAN S/O.JOSEPH KALAPARAMBAN, KALAPARAMBAN HOUSE, KODAKARA VILLAGE, CHALAKKUDY, THRISSUR DISTRICT, PIN - 680684`** - **`5 MR.THOMAS MATTATHIL S/O.LONA MATTATHIL, PULLOKKARAN, CHALAKKUDY P.O, CHALAKKUDY WEST,`** ``` WP(C) No.40637 Of 2023 ``` ``` 2 ``` - **`THRISSUR DISTRICT, PIN - 680307`** - **`6 M/S.WIN-COAST FINANCE INVESTMENTS REPRESENTED BY ITS MANAGING DIRECTOR, GROND FLOOR, WIN COAST TOWER, NANDIKKARA, THRISSUR DISTRICT, PIN - 680301`** - **`7 MR. DEVASSY MULLAKKARA S/O.JOSE MULLAKKARA, MULLAKKARA HOUSE, KODAKARA DESOM, MUKUNDAPURAM TALUK, KODAKARA, THRISSUR DISTRICT, PIN - 680684`** - **`8 M/S.JMJ FINANCE REPRESENTED BY ITS MANAGING DIRECTOR, DOOR NO. 21/349/29, WEST FORT TOWER, CIVIL LANE ROAD, WEST FORT JUNCTION, POOTHOLE PO. THRISSUR DISTRICT, PIN - 680002`** - **`9 M/S.CAPITAL FINSERVE LTD. (FORMERLY KNOWN AS ASSOCIATED HIRE PURCHASE & CREDIT LIMITED), REPRESENTED BY ITS MANAGING DIRECTOR MR.BABU ELIAS, 1ST FLOOR, CAPITAL PLAZA, AM ROAD, NEAR KOTHAMANGALAM POLICE STATION, KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN - 686691`** - **`10 M/S. K L M NIDHI LTD REPRESENTED BY ITS MANAGING DIRECTOR JOSEKUTTY XAVIER, KLM TOWERS, MUVATTUPUZHA ROAD, KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN - 686691`** - **`11 M/S. NEW TRICHUR COMPANY LTD REPRESENTED BY ITS MANAGING DIRECTOR, NEW TRICHUR TOWERS, VATANAPPALLY-KANJANI-THRISSUR ROAD, KANDASSANKADAVU, THRISSUR DISTRICT, PIN – 680613`** ``` BY ADVS. SRI.LINDONS C.DAVIS SRI.S.GOPINATHAN-SR.GOVERNMENT PLEADER RAJITH DAVIS(K/1252/1998) E.U.DHANYA(K/672/2006) ``` ``` WP(C) No.40637 Of 2023 ``` ``` 3 ``` ``` N.S.SHAMILA(K/222/2016) CHINJU P. JOYIES(K/894/2016) ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) No.40637 Of 2023 ``` ``` 4 ``` ## **JUDGMENT** Dated this the 4[th] day of April, 2024 The petitioner had sanctioned certain loan facilities to M/s.Varikkasery Stores, represented by its Proprietor Mr.Raphy V.K. As collateral security for availing the loan, the borrower had created an equitable mortgage of 10.12 Ares of land with a double storied building in Survey No.128/1, in Kodakara Village, Mukundapuram Taluk, Thrissur district, obtained as per Sale Deed No.2805/2004 of Kalletumkara SRO, by deposit of title deeds. The mortgager had issued a letter of confirmation of creation of mortgage by deposit of title deeds dated 20.10.2015. 2. There occurred default in the repayment of the loans by the borrowers, resulting in the accounts being classified as NPA and initiation of proceedings under the ``` WP(C) No.40637 Of 2023 ``` ``` 5 ``` Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. 3. The physical possession of the secured asset was thereafter taken and the property was put for sale on 18.08.2022, by issuance of sale notice dated 30.07.2022. The property was sold in favour of one Mrs. Suvarna Binu & Binu M.K. The Bank confirmed the sale and sale certificate was also issued on 26.10.2022. However, the 1[st] respondent is refusing to register the sale certificate stating that attachments have been effected on the property, in compliance of the orders passed by Courts and that the Sale Certificate can be registered only on lifting of the attachments. 4. The stand taken by the 1[st] respondent is per se contrary to the judgments rendered by this Hon'ble Court in **Madan v. Sub Registrar** [2014 (1) KHC 249], _**Ali Ashraf v. Sub Registrar**_ W.A 612/2015, _**Kechery Service Cooperative Bank V Sajitha Nizar and others** [_ 2020 (5) KHC ``` WP(C) No.40637 Of 2023 ``` ``` 6 ``` 231] and _**UCO Bank V State of Kerala**_ [2022 KHC online 1049]. A direction to respondents 1 and 2 to efface the attachments and to the 1[st] respondent to register the sale certificate has become necessary, in the interest of justice. 5. I have heard the learned counsel for the petitioner, the learned Government Pleader representing respondents 1 and 2 and the learned counsel representing respondents 3 to 11. 6. The mortgage was created in favour of the petitioner-Bank on 20.10.2015, which is discernible from Ext.P1. The attachments over the property are evidently subsequent to the date of the mortgage, as can be seen from Ext.P4. 7. In view of the judgment of this Court in _**Madhan v. Sub Registrar, Kollam and Others** [2014 (1) KHC 249]_ and _**Ali Ashraf v. Sub Registrar**_ [W.A.612/2015], the attachments effected subsequent to the mortgage are unsustainable. ``` WP(C) No.40637 Of 2023 ``` ``` 7 ``` 8. In view of the above, the 1[st] respondent-Sub Registrar is compellable to efface the attachments in respect of the secured asset in order to register the sale conducted by the Bank in respect of the properties, in favour of the auction purchasers. 9. Respondents 1 and 2 therefore directed to efface all attachments on the property in question ordered after the date of creation of mortgage in favour of the petitioner. The petitioner shall submit a copy of the document in evidence of mortgage and all such other documents as required under the Registration Rules for the purpose of registration. If all other parameters are satisfied, the 1[st] respondent shall register the Sale Certificate. The writ petition is disposed of as above. Sd/- ## **N.NAGARESH JUDGE** hmh ``` WP(C) No.40637 Of 2023 ``` ``` 8 ``` ## **`APPENDIX OF WP(C) 40637/2023`** ## **`PETITIONER EXHIBITS`** |**`Exhibit-P1`**|**`TRUE COPY OF THE LETTER OF`**| |---|---| ||**`CONFIRMATION FOR CREATION OF MORTGAGE`**| ||**`BY DEPOSIT OF TITLE DEEDS EXECUTED BY`**| ||**`MR.RAPHY V K, DATED 20.10.2015`**| |**`Exhibit-P2`**|**`TRUE COPY OF THE SALE NOTICE ISSUED BY`**| ||**`THE PETITIONER DATED 30.07.2022`**| |**`Exhibit-P3`**|**`TRUE COPY OF THE SALE CERTIFICATE`**| ||**`DATED 26.10.2022`**| |**`Exhibit-P4`**|**`TRUE COPY OF THE ENCUMBRANCE`**| ||**`CERTIFICATE IN RESPECT OF THE PROPERTY`**| ||**`DATED 08.06.2023`**|