State Bank of India v Sub Registrar Kollam and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 25[TH] DAY OF MAY 2022 / 4TH JYAISHTA, 1944 WP(C) NO. 16273 OF 2022** ## **PETITIONER:** THE STATE BANK OF INDIA, REPRESENTED BY ITS CHIEF MANAGER, STRESSES ASSETS RECOVERY BRANCH (S.A.R.B), LMS COMPOUND, OPPOSITE MUSEUM WEST GATE, VIKAS BHAVAN (PO), THIRUVANANTHAPURAM, PIN-695 033. BY ADVS. JAWAHAR JOSE CISSY MATHEWS JAISON ANTONY EDWIN JOSEPH ## **RESPONDENTS:** 1 THE SUB REGISTRAR KOLLAM, SUB REGISTRAR OFFICE, T.D NAGAR, KOLLAM, PIN691 013. 2 JOAN, AGED 51 YEARS D/O JERMIAS, RESIDING AT KNRA/58-A, KAVAL JUNCTION, CUTCHERRY(PO), KOLLAM, PIN-691 013. 3 SHERIN DIXON, AGED 48 YEARS W/O LATE DIXON SYRASS, NEDUMPARAMBIL HOUSE, THANGASSERRY, KOLLAM, PIN-691 013. BY ADV G.VIDYA SMT K AMMINIKUTTY SR GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 16273 OF 2022** **2** ## **JUDGMENT** The State Bank of India, which is a banking company, has approached this Court alleging that the 1[st] respondent – Sub Registrar is refusing to register Ext.P2 Sale Certificate, even though they had sold the property covered by it in favour of the auction purchaser under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act ('the SARFAESI Act' for brevity). 2. Sri.Edwin Joseph – learned counsel representing Sri.Jawahar Jose – learned Standing Counsel for the petitioner, explains that his client had obtained equitable mortgage over the property in question from the original owner/borrower – namely, the 2[nd] respondent, as early as on 08.08.2016 and that since the loan had not been properly serviced, they were **WP(C) NO. 16273 OF 2022** **3** constrained to bring the property to sale in exercise of their rights under the said mortgage. He submitted that it is thus that Ext.P2 Sale Certificate was issued, but that its registration has been now denied by the 1[st] respondent saying that there are certain attachments over the property, effected admittedly after the aforementioned mortgage. 3. Sri.Edwin Joseph, therefore, reiteratingly prayed that 1[st] respondent be directed to register Ext.P2 Sale Certificate and to simultaneously efface all entries of attachment from the Encumbrance Certificate, so as to enable the auction purchaser to deal with the property without any legal impediment in future. 4. Smt.Mable C.Kurian – learned Senior Government Pleader, submitted that 1[st] respondent has been incapacitated from acceding to the request of the petitioner because the **WP(C) NO. 16273 OF 2022** **4** Sale Certificate has not been presented before it for registration and also because there are entries of attachments from the competent Civil Court reflected in the records. She, however, added that if this Court is inclined to hold otherwise, the 1[st] respondent is willing to abide by the same. 5. Smt.G.Vidya – learned counsel appearing for respondent No.2, initially sought time to file counter pleadings, arguing that the sale conducted by the Bank is fraudulent and malafide. However, he then conceded, to a pointed question from this Court, that the orders of attachment obtained by her client over the property in question were much after 08.08.2016, but argued that this would be of no consequence because the sale itself is without sanction of law. She thus prayed that this writ petition be dismissed. 6. I notice from the files that the **WP(C) NO. 16273 OF 2022** **5** summons issued to respondent No.3 has been validly served. However, she is neither present in person nor represented through counsel. 7. When I consider and assess the afore submissions, it becomes luculent that the attaching creditor, namely the 2[nd] respondent, contests the sale, rather than the equitable mortgage claimed by the Bank. Obviously, therefore, their remedy is not before this Court, but before the competent Forum, which they must invoke if they are interested in assailing the sale conducted by the Bank. 8. That said, since the 2[nd] respondent concedes that the attachments obtained by them over the property in question is much after 06.09.2016, being the date of mortgage claimed by the Bank, the principles of law as enunciated by this Court in various judgments, ending in _**Secretary, Keechery Service Cooperative Bank Ltd., v. Sajitha Nizar Alias**_ **WP(C) NO. 16273 OF 2022** **6** _**Sajitha P.M.**_ [(2020 (6) KLT 68)] would certainly apply to this case. In the afore circumstances and being guided by _**Sajitha Nizar Alias Sajitha P.M** (supra),_ I order this writ petition with the following directions: a) I permit the petitioner, or the auction purchaser, to present Ext.P2 Sale Certificate before the 1[st] respondent – Sub Registrar; and if this is done within a period of two weeks from the date of receipt of a copy of this judgment, the same shall be registered, if there are no other legal impediments, as expeditiously as is possible, but not later than one week thereafter. b) Either Simultaneously or immediately subsequent to the afore, all entries of attachment over the property, as reflected in the Encumbrance Certificate, shall be effaced, **WP(C) NO. 16273 OF 2022** **7** so as to enable the auction purchaser to deal with the same in terms of law. c) I leave full liberty to respondents 3 and 4, or any other person who is interested, to approach the competent Forum against the sale conducted by the Bank, for which purpose, all rival contentions of the parties are left open. **Sd/-** ## **DEVAN RAMACHANDRAN** **JUDGE** SAS **WP(C) NO. 16273 OF 2022** **8** ## **APPENDIX OF WP(C) 16273/2022** |PETITIONER'S EXHIBITS|| |---|---| |Exhibit P1|TRUE COPY OF THE MEMORANDUM DATED 8.8.2016| ||WHEREBY THE TITLE DEEDS WERE DEPOSITED WITH| ||THE BANK| |Exhibit P2|TRUE COPY OF THE SALE CERTIFICATE DATED| ||11.3.2022 ISSUED BY THE BANK TO THE AUCTION| ||PURCHASERS| |Exhibit P3|TRUE COPY OF THE LETTER DATED 30.3.2022| ||ISSUED BY THE BANK TO THE 1ST RESPONDENT| |Exhibit P4|TRUE COPY OF THE ORDER DATED 21.4.2022| ||WHEREBY THE REGISTRATION IS DENIED BY THE 1ST| ||RESPONDENT| |Exhibit P5|TRUE COPY OF THE ENCUMBRANCE CERTIFICATE| |Exhibit P6|TRUE COPY OF THE JUDGEMENT DATED 30.9.2020 IN| ||OS NO 824/2016 ON THE FILES OF ADDITIONAL| ||MUNSIFF COURT, KOLLAM| |Exhibit P7|TRUE COPY OF THE JUDGEMENT DATED 17.9.2021 IN| ||WPC NO 19470/2021 OF THIS HON'BLE COURT| |Exhibit P8|TRUE COPY OF THE JUDGEMENT DATED 10.3.2022 IN| ||WPC NO 26793/2021 OF THIS HON'BLE COURT|