Sundaram BNP Paribas Home Finance Limited v Sub Registrar, Office of the Principal Sub Registrar, Kottayam; and Sundaram BNP Paribas Home Finance Limited v Sub Registrar, Kollam District (WP(C). Nos. 4481 of 2019 and 4504 of 2019)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 14TH DAY OF FEBRUARY 2019 / 25TH MAGHA, 1940** ## **WP(C).No. 4481 of 2019** ## **PETITIONER:** **SUNDARAM BNP PARIBAS HOME FINANCE LIMITED, SUNDARAM TOWER, 46, WHITES ROAD, CHENNAI-600014, REP. BY ITS AUTHORIZED OFFICER VISHNU R.** **BY ADV. SRI.T.RAJESH** ## **RESPONDENTS:** |**1**|**SUB REGISTRAR,**| |---|---| ||**OFFICE OF THE PRINCIPLE SUB REGISTRAR,**| ||**KOTTAYAM-686002.**| |**2**|**D.S. MENON,**| ||**THIRMANGALATH HOUSE, KOTTAYAM-686002.**| |**3**|**MATHEW V.K.,**| ||**VANIYAPURAYIL, PUTHERPALLI, KOTTAYAM.**| |**4**|**THOMASKUTTY PETER,**| ||**SAROVARAM HOUSE STAY, KOTTAYAM-686002.**| |**5**|**VIJAYAMMA K.,**| ||**THURUTHUMALI, KILIROOR, KOTTAYAM-686002.**| |**6**|**KURIAN GEORGE,**| ||**VALIYAVEETTIL, VILLONI, KOTTAYAM-686008.**| |**7**|**SADGAMAYA CHITTIES, KOTTAYAM**| ||**REPRESENTED BY ITS MANAGING DIRECTOR SADANANDAN K.**| ||**SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.02.2019, ALONG WITH WP(C).4504/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** # **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 14TH DAY OF FEBRUARY 2019 / 25TH MAGHA, 1940** # **WP(C).No. 4504 of 2019** ## **PETITIONER:** **SUNDARAM BNP PARIBAS HOME FINANCE SUNDARAM TOWER, 46, WHITES ROAD, CHENNAI-600014, REP. BY ITS AUTHORIZED OFFICER VISHNU R.** **BY ADV. SRI.T.RAJESH** ## **RESPONDENTS:** |**1**|**SUB REGISTRAR,**| |---|---| ||**SUB REGISTRAR OFFICE, KADAKKAL,**| ||**KOLLAM DISTRICT-691536.**| |**2**|**JALALUDEEN,**| ||**C.A. NIVAS, KOTTARAKARA-691506.**| |**3**|**REGENT TRADE LINKS,**| ||**VIII/1137, KANJIKODE-678621,**| ||**REPRESENTED BY ITS MANAGING PARTNER,**| ||**MUHAMMED BEEGUM.**| ## **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.02.2019, ALONG WITH WP(C).4481/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## ALEXANDER THOMAS, J. ------------------------------------------ ## W.P.(C) Nos.4481 & 4504 of 2019 ------------------------------------------ Dated this the 14[th] day of February, 2019 ## J U D G M E N T The prayers in Writ Petition (Civil) No.4481/2019 are as follows: " - _i. Issue a writ of mandamus compelling the 1[st] respondent to remove the attachments made subsequent to the creation of mortgage in the properties having an extent of 2.15 Ares of properties comprising in Re.Sy.No.193/10/3 (old Sy.No.151/1) of Thiruvarppu Village, Kottayam District._ - _ii. Declare that the attachment made in properties having an extent of 2.15 Ares of properties comprising in Re.Sy.No.193/10/3 (old Sy.No.151/1) of Thiruvarppu Village, Kottayam District free from all encumbrances._ - _iii. Issue such other order or direction as this Honourable Court deems fit considering the facts and circumstances of the case._ - _iv. Direct the respondents to pay the cost of the proceedings."_ 2. The prayers in Writ Petition (Civil) No.4504/2019 are as follows: - " - _i. Issue a writ of mandamus compelling the 1[st] respondent to remove the attachments made subsequent to the creation of mortgage in the properties having an extent of 3.56 Ares of properties comprising in Re.Sy.No.88/9/1/5 (old Sy.No.55/1A/8/4/1684) of Kadakal Village, Kollam District._ - _ii. Declare that the attachment made in properties having an extent of 3.40 Ares of properties comprising in Re.Sy.No. 88/9/1/5 (old Sy.No.55/1A/8/4/1684) of Kadakal Village, Kollam District is free from all encumbrances._ - _iii. Issue such other order or direction as this Honourable Court deems fit considering the facts and circumstances of the case._ - _iv. Direct the respondents to pay the cost of the proceedings."_ 3. Heard Sri.T.Rajesh, learned counsel appearing for the petitioner in these two cases and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for R-1 in both the cases. In W.P.(C).Nos.4481 & 4504/2019 ..4.. the nature of the orders proposed to be passed in these two cases, notices to contesting respondents 2 to 7 in WP(C).No.4481/2019 and to respondents 2 & 3 in WP(C).No.4504/2019 are dispensed with. 4. It is stated that the petitioner financial institution had advanced loan to a borrower after securing mortgage of the subject property owned by him. Since the borrower had consistently defaulted in the loan transaction, the petitioner was constraint to initiate SARFAESI proceedings. However there are no takers for that properties on the ground that attachments have been noted in the encumbrances in Ext.P-3 encumbrance certificates. According to the petitioner, the mortgage in relation to WP(C).No.4481/2019 was created on 10.2.2014 and that in WP(C).No.4504/2019 was created on 6.3.2013. All the impugned attachments noted as encumbrances as per Sl.Nos.2, 3, 5, 6 & 8 of Ext.P-3 encumbrance certificate in WP(C).No.4481/2019 and Sl.Nos.8 & 9 of Ext.P-3 encumbrance certificate in WP(C).No.4504/2019 have been rendered after the creation of the mortgage in these cases. 5. Accordingly it is urged that since the attachment orders have been issued after the creation of mortgage in these cases, the W.P.(C).Nos.4481 & 4504/2019 **==> picture [18 x 9] intentionally omitted <==** said attachment orders have lost its efficacy and are liable to effaced and deleted by the respondent Sub Registrar concerned and the Village Officer concerned from the respective records. 6. The matter in issue is no longer _res integra_ and is covered by the dictum laid down by this Court in a series of cases as in _**HDFC v. SRO (2011 (3) KLT 567), Madan v. SRO (2014 (1) KLT 406),**_ wherein it has been held by this Court that attachments effected subsequent to the creation of the mortgage will stand effaced after the property is purchased by another person in sale proceedings and that such attachment orders issued after the date of creation of mortgage will not affect the title and ownership of the purchaser of the subject property and that the Sub Registrar and the Village Officer are obliged to efface those attachments effected subsequent to mortgage from the relevant records as otherwise those attachments will remain as a permanent taboo prejudicially affecting the marketability and title of the property eventhough they have ceased to have any proceedings etc. 7. Accordingly it is ordered and declared that in case the impugned attachment orders in these cases have been rendered after the creation of mortgage in these cases, then the attachment W.P.(C).Nos.4481 & 4504/2019 **==> picture [19 x 9] intentionally omitted <==** orders have lost its efficacy and are liable to be removed and deleted by the 1[st] respondent Sub Registrar from the encumbrance records. 8. Accordingly it is ordered that it is for the petitioner to file separate applications in respect of these two cases before the 1[st] respondent Sub Registrar after arraying as respondents the respective beneficiaries of the attachment orders concerned. The petitioner will also ensure that a certificate is also produced before the 1[st] respondent showing the loan transaction in these two cases and also the precise date of creation of mortgage in these cases. The 1[st] respondent will issue notices to the petitioner and such beneficiaries in the attachment orders and then will hear them and decide the limited factual issue as to whether the impugned attachment orders in these two cases have been rendered after the creation of mortgage. If it is found that the attachment orders have been rendered after the creation of mortgage, then the 1[st] respondent SRO will take immediate steps to make additional entries in respect of subject property in Book No.1 pertaining to the subject properties as per the provisions contained in Sec.89(5) of the Registration Act, 1908, so as to efface and delete such W.P.(C).Nos.4481 & 4504/2019 **==> picture [18 x 9] intentionally omitted <==** attachments from the encumbrance records. Thereafter the petitioner may file applications for issuance of fresh encumbrance certificate in these two cases after deletion of such attachments before the 1[st] respondent, who will then issue such fresh certificates, but subject to payment of any cost/fee in that regard by the petitioner for such applications. Thereafter the petitioner may also produce a copy of fresh encumbrance certificates so issued by the 1[st] respondent before the Village Officer concerned , who will then take steps immediately to efface and delete such attachments from the Village / Revenue Records. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG W.P.(C).Nos.4481 & 4504/2019 ..8.. ## **APPENDIX OF WP(C) 4481/2019** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE 13(2) NOTICE DATED 1.10.2015 ISSUED BY THE PETITIONER** **EXHIBIT P2 THE TRUE COPY OF THE POSSESSION NOTICE ISSUED BY THE PETITIONER EXHIBIT P3 THE TRUE COPY OF ENCUMBRANCES CERTIFICATE ISSUED BY THE 1ST RESPONDENT DATED 4.2.2019 IN REGARD TO THE SECURED ASSET EXHIBIT P4 THE JUDGMENT OF THIS HON'BLE COURT IN WPC.35979/2018 DATED 5.11.2018** W.P.(C).Nos.4481 & 4504/2019 ..9.. ## **APPENDIX OF WP(C) 4504/2019** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE 13(2) NOTICE DATED 1.7.2014 ISSUED BY THE PETITIONER** **EXHIBIT P2 THE TRUE COPY OF THE POSSESSION NOTICE ISSUED BY THE PETITIONER** **EXHIBIT P3 THE TRUE COPY OF ENCUMBRANCES CERTIFICATE ISSUED BY THE 1ST RESPONDENT DATED 1.2.2019 IN REGARD TO THE SECURED ASSET** **EXHIBIT P4 THE JUDGMENT OF THIS HON'BLE COURT IN WPC.35979/2018 DATED 5.11.2018**