State Bank of India v Sub Registrar, Mavelikkara, Vineetha Vijayan, Soman Pillai

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN TUESDAY, THE 17[TH] DAY OF OCTOBER 2023 / 25TH** # **ASWINA, 1945** # **WP(C) NO. 22992 OF 2023** ## **PETITIONER/S:** THE STATE BANK OF INDIA REPRESENTED BY ITS CHIEF MANAGER, RASMEC BRANCH, AMBANATTU BUILDING, NEAR K.S.R.T.C BUS STATION, MAVELIKKARA, ALAPPUZHA DISTRICT., PIN - 690101 BY ADVS. JAWAHAR JOSE CISSY MATHEWS SAFEER BAWA A.S. HAMED ABDULLA JAVAHIR ## **RESPONDENTS:** - 1 THE SUB REGISTRAR, MAVELIKKARA, KOTTANADU, MAVELIKKARA (P.O), ALAPPUZHA DISTRICT., PIN - 690101 - 2 VINEETHA VIJAYAN W/O SANTHOSH KUMAR, AJITH BHAVANAM, NIRANAM (P.O), PATHANAMTHITTA DISTRICT., PIN - 689621 - 3 SOMAN PILLAI RESIDING AT THONNOOTTIL PUTHANVEEDU, THEKKEKKARA (P.O), MAVELIKKARA, ALAPPUZHA DISTRICT., PIN - 690107 BY ADV RASHEED C.NOORANAD BY G.P. SRI.BIMAL K.NATH. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.22992/2023 2 ## **JUDGMENT** One Santhosh kumar (hereinafter referred to as 'borrower') availed a loan of Rs.16 lakhs from the erstwhile State Bank of Travancore (SBT) by creating an equitable mortgage by deposit of title deed on 28.12.2013. The SBT later merged with State Bank of India, the petitioner herein. Since the borrower defaulted payment of the loan amount, proceedings under the SARFAESI Act was initiated and the property was sold pursuant to Ext.P4 sale notice on 29.5.2023. Ext.P5 is the sale certificate dated 12.6.2023 issued to the auction purchaser. When the petitioner Bank approached the 1[st] respondent for registration of Ext.P5 sale certificate, the same was rejected as per Ext.P7 communication pointing out that the mortgaged property is having an attachment from the Family Court, Mavelikkara at the instance of the 2[nd] respondent, the W.P.(C) No.22992/2023 3 wife of the borrower and a further attachment from the Munsiff Court, Mavelikkara in a suit instituted by the 3[rd] respondent. Challenging Ext.P7 order, the petitioner has approached this Court seeking a direction to the 1[st] respondent to efface all the attachments in the mortgaged property effected after 28.12.2013 and to register Ext.P5 sale certificate in favour of the auction purchaser. 2. Heard Sri. Jawahar Jose the learned counsel for the petitioner, the Government pleader for the 1[st] respondent and Sri. Rasheed C. Nooranad for the 2[nd] respondent. Though notice was served on the 3[rd] respondent, there is no appearance. 3. The learned counsel for the petitioner relied on the decision 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]** and the decision of a Division Bench of this Court in **Secretary, Keechery** W.P.(C) No.22992/2023 4 **- Service Co operative 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 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 2[nd] respondent Village Officer has to efface the attachment from the revenue records. 4. In Madhan's case (supra), this Court held in paragraph 9 as follows: “9. The preponderance of judicial opinion leads to the irresistible conclusion that the sale of the mortgaged property in favour of the petitioner under Ext. P5 sale certificate under the Act is free of all encumbrances. The attachments effected subsequent to the mortgage created in favour of the bank do not affect the title and ownership of the petitioner over 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 petitioner. The confirmed in favour of the declaration so sought by the petitioner is therefore W.P.(C) No.22992/2023 5 granted and I further direct the Sub-Registrar and the Village Officer to efface the attachments effected subsequent to the mortgage from the relevant records. Otherwise those attachments would remain as a permanent taboo prejudicial affecting the marketability and title to the property even though they ceased to have any legal efficacy. The needful in relation to the property bought by the petitioner shall be done within a period of two months from the date of receipt of a copy of this judgment.” ## 5. A Division Bench of this Court in **Ali Asharaf M.M. and Another v . Sub Registrar, Thrissur** (Judgment dated 24.7.2015 in W.A. No.612/2015) has affirmed the law laid down in Madhan's case. 6. In Keechery Service Co-operative Bank case (supra), another Division Bench of this Court also affirmed the law laid down in Madhan's case (supra) and held in paragraph 7 as under: “7. …. We do not find any reason to disagree with the declaration of law in Madhan's case (supra) which was virtually affirmed by the Division Bench in Ali Asharaf's case (supra). In W.P.(C) No.22992/2023 6 the said circumstances and taking note of the fact that the orders of attachment of the property in question were after the creation of equitable mortgage of the same with Federal Bank we do not find any reason to interfere with the impugned judgment passed by the learned Single Judge following the dictum in Madhan's case (supra), carrying the directions to effect mutation of the property as also to efface all encumbrance over the property effected after 27/06/2014, the date on which the property in question was mortgaged with Federal Bank”. 7. Thus it is trite law that attachment effected subsequent to the creation of equitable mortgage does not have any effect on the sale conducted by the Bank under the SARFAESI Act and has to be effaced from the encumbrance register. 8. The equitable mortgage was created in favour of the petitioner Bank on 28.12.2013. The attachment by the Family Court was effected on 9.8.2019 and the attachment by the Munsiff Court, Mavelikkara is dated 30.03.2021. The sale was held on 29.5.2023. All the W.P.(C) No.22992/2023 7 attachments were effected subsequent to the creation of mortgage by the borrower. It is also submitted by the learned counsel for the petitioner that the suit filed before the Munsiff Court, Mavelikkara by the 3[rd] respondent has been rejected for non-payment of court fees. 9. Accordingly, there will be a direction to the 1[st] respondent to efface all attachments effected on the mortgaged property after 28.12.2013 from Book No.1 maintained as per Section 51 of the Registration Act, 1908 and to register Ext.P5 sale certificate as and when presented for registration, if the same is otherwise in order. 10.The learned counsel for the petitioner Bank submits that the balance amount after realising the liability of the mortgagee is Rs.12,54,109/-. The amount due to the 2[nd] respondent as per the orders of the Family Court is for Rs.16,75,205/-. The 2[nd] respondent has filed I.A. No.1/2023 for a direction to release the W.P.(C) No.22992/2023 8 balance amount kept in the bank. It will be open for the 2[nd] respondent to approach the Family Court, Mavelikkara in E.P. No.36/2023 for appropriate orders in accordance with law for realisation of the balance amount kept in the Bank, pursuant to the sale conducted under the SARFAESI Act. The writ petition is disposed of with the above direction. Sd/- **MURALI PURUSHOTHAMAN JUDGE** al/- W.P.(C) No.22992/2023 9 ## **APPENDIX OF WP(C) 22992/2023** ## PETITIONER EXHIBITS Exhibit1 TRUE COPY OF MORTGAGE CONFIRMATION LETTER DATED 30-12-2013 EXECUTED BY THE BORROWER. Exhibit-P2 TRUE COPY OF THE DEMAND NOTICE DATED 18-2-2022 ISSUED UNDER SECTION 13(2) OF THE SARFAESI ACT - Exhibit-P3 TRUE COPY OF THE POSSESSION NOTICE DATED 20-7-2022 ISSUED UNDER SECTION 13(4) OF THE SARFAESI ACT. - Exhibit-P4 TRUE COY OF THE SALE NOTICE DATED 2- 5-2023 ISSUED BY THE PETITIONER BANK. - Exhibit-P5 TRUE COPY OF SALE CERTIFICATE DATED 12-6-2023 ISSUED BY THE PETITIONER BANK. - Exhibit-P6 TRUE COPY OF THE LETTER DATED 1-72023 ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT. - Exhibit-P7 TRUE COPY OF THE ORDER DATED 7-72023 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. - Exhibit-P8 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE DATED 21-03-2023.