State Bank of India v. Sub Registrar, Murukkumpuzha Sub Registrar Office 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. 16202 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 (P.O), THIRUVANANTHAPURAM. PIN -695033. BY ADVS. JAWAHAR JOSE CISSY MATHEWS JAISON ANTONY EDWIN JOSEPH ## **RESPONDENTS:** 1 THE SUB REGISTRAR, MURUKKUMPUZHA SUB REGISTRAR OFFICE, THOPPUMUKKU, THIRUVANANTHAPURAM DISTRICT. PIN -695302. 2 SUKESAN. S, RESIDING AT SOOSHAMA NIVAS (THEKKU VEEDU),KATTADIMUKKU, PERUNGUZHY (P.O), THIRUVANANTHAPURAM DISTRICT. PIN -695305; (REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SMT.AJEENA SUKESAN, RESIDING AT SOOSHAMA NIVAS (THEKKU VEEDU), KATTADIMUKKU, PERUNGUZHY (P.O), THIRUVANANTHAPURAM DISTRICT. PIN -695305.) 3 SHEENA RAJEEV, AGED 50 YEARS, D/O DEVADASAN, RESIDING AT RAJA SAUDAM,AZHOOR VILLAGE, PERUNGUZHY (P.O),THIRUVANANTHAPURAM DISTRICT. PIN -695305. 4 AMBIKA. T, AGED 78 YEARS, D/O THANKAMMA, RESIDING AT SHEEBA BHAVANAM, AZHOOR VILLAGE, PERUNGUZHY (P.O), THIRUVANANTHAPURAM DISTRICT. PIN -695305. **WP(C) NO. 16202 OF 2022** **2** 5 SHAKKEELA ABHIMANYU, AGED 51 YEARS, W/O ABHIMANYU, RESIDING AT ACHUTHALAYAM, AZHOOR VILLAGE, PERUNGUZHY (P.O), THIRUVANANTHAPURAM DISTRICT. PIN -695305. 6 MINI. S, AGED 44 YEARS, W/O JAYAKUMAR, RESIDING AT THUNDU PURAYIDOM, AZHOOR VILLAGE, PERUNGUZHY (P.O), THIRUVANANTHAPURAM DISTRICT. PIN -695305. 7 SUKESINI, AGED 56 YEARS, RESIDING AT 253, THOPPIL VEEDU, AZHOOR VILLAGE, PERUNGUZHY (P.O), THIRUVANANTHAPURAM DISTRICT. PIN -695305. BY ADVS. G.RANJU MOHAN M.SANTHI (K/868/2011) ANJITHA T.R. THARA JOHNSON SMT MABE C KURIAN 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. 16202 OF 2022** **3** ## **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 24.01.2014 and that since the loan ## **WP(C) NO. 16202 OF 2022** **4** had not been properly serviced, they were 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] **WP(C) NO. 16202 OF 2022** **5** respondent has been incapacitated from acceding to the request of the petitioner because the 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. Sri.S.Sreejith – learned counsel appearing for respondents 3 and 4, 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 his client over the property in question were much after 24.01.2014, but argued that this would be of no consequence because the **WP(C) NO. 16202 OF 2022** **6** sale itself is without sanction of law. He thus prayed that this writ petition be dismissed. Learned counsel appearing for 7[th] respondent adopted the afore submissions. 6. I notice from the files that the summons issued to respondent Nos.5 to 7 have been validly served. However, they are neither present in person nor represented through counsel. 7. When I consider and assess the afore submissions, it becomes luculent that the attaching creditors, namely respondents 3 and 4, they contest 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. **WP(C) NO. 16202 OF 2022** **7** 8. That said, since they concede that the attachments obtained by them over the property in question is much after 24.01.2014, 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 Co-operative Bank Ltd., v.**_ _**Sajitha Nizar Alias Sajitha P.M.**_ [(2020 (6) KLT 68)] would certainly apply to this case. 9. Before I go forward, I must say that the notices issued to respondents 5 to 7 have been accepted, but they are chosen not to be presented in person inferentially guiding me to the impression that they have nothing to answer in opposition to the request made by the petitioner. As far as the 2[nd] respondent is concerned, the notice issued to him has been returned with the endorsement and he does not reside here, but I am certain that this would **WP(C) NO. 16202 OF 2022** **8** be of no consequence at all because he is only the borrower/mortgagor, who has no further interest left on the property. 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 **WP(C) NO. 16202 OF 2022** **9** attachment over the property, as reflected in the Encumbrance Certificate, shall be effaced, 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. 16202 OF 2022** **10** ## **APPENDIX OF WP(C) 16202/2022** PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE MEMORANDUM DATED 24-1-2014 WHEREBY THE TITLE DEEDS WERE DEPOSITED WITH THE BANK Exhibit P2 TRUE COPY OF THE SALE CERTIFICATE DATED 21-42022 ISSUED BY THE BANK TO THE AUCTION PURCHASERS Exhibit P3 TRUE COPY OF THE LETTER DATED 22-4-2022 ISSUED BY THE BANK TO THE 1ST RESPONDENT Exhibit P4 TRUE COPY OF THE ORDER DATED 25-4-2022 WHEREBY THE REGISTRATION IS DENIED BY THE 1ST RESPONDENT Exhibit P5 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE Exhibit P6 TRUE COPY OF THE JUDGMENT DATED 3-9-2016 IN O.S NO.200/2015 ON THE FILES OF MUNSIFF'S COURT, ATTINGAL Exhibit P7 TRUE COPY OF THE JUDGMENT DATED 29-11-2021 O.S NO.18/2015 ON THE FILES OF SUB COURT, ATTINGAL