Sundaram Home Finance (Formerly Sundaram BNP Paribas Home Finance Ltd) v. State of Kerala, rep. by Secretary, Dept. of Revenue, Secretariat, Thiruvananthapuram; The Sub Registrar, Sub Registry Office, Melattur; The Village Officer, Nenmini Village Office; Canara Bank, Perinthalmanna Branch

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN TUESDAY, THE 7[TH] DAY OF NOVEMBER 2023 / 16TH KARTHIKA, 1945 WP(C) NO.27267 OF 2023`** ## **`PETITIONER:`** ``` SUNDARAM HOME FINANCE (FORMERLY KNOWN AS SUNDARAM BNP PARIBAS HOME FINANCE LTD), SUNDARAM TOWERS, 46, WHITES ROAD, CHENNAI, PIN-600014, REPRESENTED BY ITS AUTHORISED OFFICER, MR.ABU ROSHAN ANDREWS, S/O.JOSHY CYRIAC, RESIDING AT CHUMAPPUNKAL HOUSE, KALPETTA NORTH, WAYANAD DISTRICT, PIN - 673121 ``` ``` BY ADV.VARGHESE C.KURIAKOSE ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REP. BY SECRETARY, DEPT. OF REVENUE, SECRETARIAT, TRIVANDRUM, PIN - 695001`** - **`2 THE SUB REGISTRAR, SUB REGISTRY OFFICE, MELATTUR, MELATTUR, EDAPPATTA, MALAPPURAM, PIN - 679326`** - **`3 THE VILLAGE OFFICER NENMINI VILLAGE OFFICE, ORAVAMPURAM ALUNGAL, THOTTAPAYA, MALAPPURAM DISTRICT, PIN - 676521`** - **`4 VIJAYAN PILLAI R, AGED 64 YEARS, S/O.RAMAN PILLAI, 13/993, KALLINGAL HOUSE, ANGADIPURAM, PERINTHALMANNA, MALAPPURAM, PIN – 679321 [DELETED]`** - **`5 MRS JALAJA V, AGED 53 YEARS W/O.VIJAYAN PILLAI, 13/993, KALLINGAL HOUSE, ANGADIPURAM, PERINTHALMANNA, MALAPPURAM, PIN – 679321 [DELETED]`** ``` * ``` ``` R4 & R5 ARE DELETED VIDE ORDER DATED 07.11.2023 ``` WP(C) No.27267 of 2023 2 ``` IN I.A.NO.2 OF 2023 ``` ``` 6CANARA BANK PERINTHALMANNA BRANCH, HAVING OFFICE AT 5/496/(5), AL AZIZ, POMM CENTRE, HOSPITAL ROAD, PERINTHALMANNA, MALAPPURA REP BY ITS CHIEF MANAGER, PIN – 679332 ``` ``` BY ADVS. GOPIKRISHNAN NAMBIAR M K.JOHN MATHAI(K/413/1984) JOSON MANAVALAN(J-526) KURYAN THOMAS(K/131/2003) PAULOSE C. ABRAHAM(MAH/58/2006) RAJA KANNAN(K/356/2008) PRANOY HARILAL(K/931/2018) AKHILA NAMBIAR(K/737/2021) ``` ``` DEEPA NARAYANAN, SR.GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) No.27267 of 2023 3 ## **`JUDGMENT`** ``` The petitioner is a housing finance institution. Respondents 4 & 5 [who are deleted from the party array vide order dated 07.11.2023 in I.A.No.2 of 2023] availed a housing loan of Rs.10,60,000/- from the petitioner on 10.08.2016 by creating an equitable mortgage by deposit of title deed on 26.08.2016. The borrowers defaulted payment of instalment and the petitioner initiated proceedings under the SARFAESI Act. It is submitted that the right to redeem the mortgaged property by borrowers has already been extinguished. Pursuant to Ext.P3 sale notice, the property was sold on 29.03.2023 and Ext.P4 is the sale certificate issued to the auction purchaser. After the issuance of sale certificate, the petitioner took steps for registration of the ``` WP(C) No.27267 of 2023 4 ``` property. At that time, the petitioner noted an entry of revenue recovery attachment in the BT Register of Nenmini Village Office effected at the instance of the 6[th] respondent. The petitioner submits that the attachment is effected by the 6[th] respondent Bank on 14.02.2019. The 6[th] respondent has produced Annexure R6(a), which is the requisition notice for initiating revenue recovery proceedings against the 4[th]respondent, the borrower. From the statement filed by the 6[th] respondent, it is evident that the revenue recovery proceedings initiated is subsequent to the equitable mortgage created on 26.08.2016. The aforesaid loan was availed from the 6[th] respondent by the 4[th] respondent on 05.11.2016, after the creation of the equitable mortgage. Therefore, it is contended that the revenue recovery proceedings initiated against the mortgaged property, ``` WP(C) No.27267 of 2023 5 ``` which is subsequent to the creation of equitable mortgage, cannot affect the sale conducted by the Bank under the provisions of the SARFAESI Act. Therefore, the endorsement regarding the attachment at the instance of the 6[th] respondent in the BT Register is liable to be effaced and the 2[nd] respondent has to register Ext.P4 sale certificate. ``` ``` 3. Heard Sri.Varghese C.Kuriakose, the learned counsel for the petitioner, Smt.Deepa Narayanan, the learned Senior Government Pleader appearing for respondents 1 to 3 and Sri.Gopikrishnan Nambiar, the learned counsel for the 6[th] respondent. ``` ``` 4. 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 ``` WP(C) No.27267 of 2023 6 ``` (1) KLJ 483: AIR 2014 Ker.54]and the decision of a Division Bench of this Court inSecretary, - Keechery Service Cooperative 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 attachment has to be effaced from the encumbrance certificate. ``` ``` 5. In Madhan'scase (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 ``` WP(C) No.27267 of 2023 7 ``` 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 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.” ``` ``` 6. A Division Bench of this Court inAli Asharaf M.M. and Another v. Sub Registrar, Thrissur (Judgment dated 24.7.2015 in W.A. ``` WP(C) No.27267 of 2023 8 ``` No.612/2015)has affirmed the law laid down in Madhan'scase. InKeechery Service Co-operative Bank’scase (supra), another Division Bench of this Court also affirmed the law laid down in Madhan'scase (supra) and held in paragraph 7 as under: ``` ``` “7. …. We do not find any reason to disagree with the declaration of law in Madhan'scase (supra) which was virtually affirmed by the Division Bench in Ali Asharaf'scase (supra). In 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 inMadhan'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 ``` WP(C) No.27267 of 2023 9 ``` which the property in question was mortgaged with Federal Bank”. ``` ``` 7. In the light of the aforesaid decision, the 3[rd] respondent is directed to efface the entry No.2019/2187/10and2019/2188/10regarding attachment pursuant to the requisition of the 6[th] respondent from the BT Register. ``` ``` 8. The learned counsel for the petitioner also submits that the 2[nd] respondent cannot insist for ROR for registration. The learned counsel for the petitioner relies on the decision in Sainudheen v. State of Kerala [2013 (1) KHC 437] & Jacob P.C v. Village Officer, Ernakulam & Another [2020 (4) KHC 167]. ``` ``` 9. In the light of the aforesaid decisions, the 2[nd] respondent cannot insist for ROR and there will be a further direction to the 2[nd] respondent to register Ext.P4 sale certificate without ``` WP(C) No.27267 of 2023 10 ``` insisting for ROR as and when presented for registration, if the same is otherwise in order. There will be also a direction to the Village Officer to effect mutation of the property de hors the entry regarding revenue recovery proceedings at the instance of the 6[th] respondent. The writ petition is disposed of. ``` ## **`Sd/-`** ``` MURALI PURUSHOTHAMAN JUDGE ``` ``` sp/07/11/2023 ``` WP(C) No.27267 of 2023 11 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS :-`** ``` EXHIBIT P1TRUE PHOTOSTAT COPY OF THE 13 (2) NOTICE DATED 01.11.2017 ISSUED BY THE PETITIONER ``` - **`EXHIBIT P2 TRUE PHOTOSTAT COPY OF THE POSSESSION NOTICE DATED 07.02.2018 ISSUED BY THE PETITIONER`** - **`EXHIBIT P3 TRUE PHOTOSTAT COPY OF THE SALE NOTICE DATED 15.02.2023 ISSUED BY THE PETITIONER`** - **`EXHIBIT P4 TRUE PHOTOSTAT COPY OF THE SALE CERTIFICATE DATED 03.07.2023 IN FAVOUR OF THE PURCHASER MUSTHAFA P.`** ``` EXHIBIT P5TRUE PHOTOSTAT COPY OF TITLE DEED NO.2469/2016 OF SRO MELATTUR DATED 26.08.2016 ``` - **`EXHIBIT P6 TRUE PHOTOSTAT COPY OF THE REPRESENTATION DATED 04.07.2023 SUBMITTED BY THE PETITIONER BEFORE RESPONDENTS NO.2 AND 3`** - **`EXHIBIT P7 TRUE PHOTOSTAT COPY OF THE INDIA POST TRACK RECORD DATED 05.07.2023`** - **`EXHIBIT P8 TRUE PHOTOSTAT COPY OF THE INDIA POST TRACK RECORD DATED 06.07.2023`** - **`EXHIBIT P9 TRUE PHOTOSTAT COPY OF THE SPECIFIC REQUEST DATED 04.07.2023 GIVEN TO 3RD RESPONDENT FOR ERASING THE ATTACHMENT`** - **`EXHIBIT P10 TRUE PHOTOSTAT COPY OF THE INDIA POST TRACK RECORD DATED 06.07.2023.`** WP(C) No.27267 of 2023 12 ## **`RESPONDENT'S ANNEXURES :-`** ``` ANNEXURE R6 (A)TRUE COPY OF THE FORM 24 REQUISITION NOTICE DATED 14.12.2019 ISSUED BY THE 6TH RESPONDENT ```