Sundaram Home Finance Ltd (formerly Sundaram BNP Paribas Home Finance Ltd) v. State of Kerala & Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE GOPINATH P.`** ``` WEDNESDAY, THE 14[TH] DAY OF JUNE 2023 / 24TH JYAISHTA, 1945 WP(C) NO. 14285 OF 2023 ``` ## **`PETITIONER:`** ``` SUNDARAM HOME FINANCE LTD (FORMERLY KNOWN AS SUNDARAM BNP PARIBAS HOME FINANCE LTD) SUNDARAM TOWERS, 46, WHITES ROAD, CHENNAI, PIN-600 014. REPRESENTED BY ITS AUTHORISED OFFICER, MR. ABU ROSHAN ANDREWS, AGED 33 YEARS, S/O JOSHY CYRIAC, RESIDING AT CHUMAPPUNKAL HOUSE, KALPETTA NORTH, WAYANAD DISTRICT, PIN – 673 121. ``` ``` BY ADVS. VARGHESE C.KURIAKOSE VIPIN C. VARGHESE KURUVILLA MATHEW JISHNU A.L. ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REP. BY SECRETARY, DEPT. OF REVENUE, SECRETARIAT, TRIVANDRUM, PIN – 695 001. 2THE SUB REGISTRAR SUB REGISTRY OFFICE, PATTAMBI, PALAKKAD DISTRICT, PIN – 679 303. 3THE VILLAGE OFFICER PATTAMBI VILLAGE OFFICE, PALAKKAD DISTRICT, PIN – 679 303. 4AKBARALI.P AGED 36 YEARS PALLATH HOUSE, SANGARAMANGALAM, PATTAMBI, PALAKKAD DISTRICT, PIN – 679 303. ``` ``` WP(C) NO.14285 OF 2023 2 ``` ``` 5SUHARA.P AGED 61 YEARS, M/O AKBARALI, PALLATH HOUSE, SANGARAMANGALAM, PATTAMBI, PALAKKAD DISTRICT, PIN – 679 303. ``` ``` BY ADVS. K.RAKESH PREETHA K K (SR GP) ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO.14285 OF 2023 3 ``` ## **JUDGMENT** Petitioner has approached this Court seeking a direction to the 2[nd] respondent to cause registration of Ext.P6 sale certificate without insisting for ROR certificate. The issue is covered in favour of the petitioner by the judgment of this Court in **P.C.Jacob v. Village Officer, Ernakulam & another; 2020** ## **(4) KLT 271,** where it was held as follows: “7. It is also to be noted that this Court has already held in the judgment in the case in **Synudheen v. State of Kerala** , reported in 2013 (1) KLT 221 that so long as the provisions of the Registration Act and the Registration Rules have not been amended so as to compulsorily insist for production of ROR certificate before it could be registered by the registration officials as per the Act, the same cannot be insisted for a compulsorily basis and at best it can only be optional for the party concerned to produce such ROR certificate. This Court has categorically held in the abovesaid decision in Synudheen's case supra that since the provisions of the Registration Act and the Rules have not been amended so as to incorporate such a mandatory condition insisting for production of ROR certificate before the deeds could be registered by the registration officials, the registration officials cannot refuse to register the same on the mere ground that the petitioner has not produced the ROR certificate in respect of the property concerned. But it is certainly optional for the party concerned to seek such ``` WP(C) NO.14285 OF 2023 4 ``` certificate for the sake of completion of formalities. But non-production of such certificate cannot be the legal basis for the registration officials to refuse the request for registration. This Court has held that though the preparation of Record of Right certificate in respect of every item of land may be a laudable idea, in many cases it may require further verification and a party cannot be told that his property cannot be sold unless steps for preparing ROR is completed and no intending purchaser will wait indefinitely, etc. and that the property owners may have to transfer their property for many urgent purposes such as for purchase of another property, to meet the liability towards loan, for meeting the expenses for education of children, for meeting the marriage expenses of children, etc. Hence it was held therein that so long as stringent condition for production of ROR certificate is not incorporated as a requisite condition by amendment of the Registration Act and the Rules framed thereunder the registration officials of the Government in exercise of the executive powers cannot insist that deeds will not be registered without production of ROR certificate etc. It will be profitable to refer to paragraphs 6, 12 and 13 of the abovesaid decision in **Synudheen's case** (supra), which read as follows: “6. In the counter affidavit filed on behalf of the first respondent, Exts.Rl(a) and Rl(b) Government Orders have been produced. The same governs the e- District Project launched in Kerala under the National e-governance Plan. It is stated that a modified programme, viz., National Land Records Modernisation Programme (NLRNP) has been formulated by the Government of India. The same is being implemented in the State through three departments, viz. Revenue Department, Survey and Land Records Department and Registration Department. The computerisation of Land Records is ``` WP(C) NO.14285 OF 2023 5 ``` one of the major components of the scheme. The Department of Land Revenue has developed a software, viz., Revenue Land Information System (RELIS) for online mutation/transfer of registry with the support of National Informatic Centre. Sanction was accorded by the Government as per Ext.R1(c) for implementing the system in Palakkad District on a pilot basis and the Government has amended the Transfer of Registry Rules and insisted Form IB along with applications for effecting transfer of registry. ## xxx xxx xxx 12. Evidently, the Registration Rules have not been amended to have any such system that before registration of the document Record of Right has to be obtained or produced. Therefore, it can be seen that the parties cannot be subjected to such compulsion to obtain Record of Right as a pre condition for registration. It can only be optional for the party concerned. Otherwise, it will interfere with the right of a property owner to transfer his property in terms of his requirement. Of course, the preparation of Record of Right in respect of every item of land may be a laudable idea. But in many cases it may require further verification also and a party cannot be told that his property cannot be sold unless steps for preparing Record of Right is completed. No intending purchaser will wait indefinitely also. The property owners may have to transfer of their property for many urgent purposes such as for purchase of another property; to meet the liability towards loan, if any taken; for meeting the expenses for education of children; for meeting the marriage expenses of children and the like. Therefore, all those aspects will have to be considered, as rightly pointed out by the learned counsel for the petitioners. The hardship of the parties should be avoided also. If stringent conditions not required under the Registration Act and Rules are imposed and Record of Right is required for a transfer, that too as a pre condition, then the system will not work at all and the matter will get unduly delayed. 13. Therefore, as far as Ext.P9 is concerned, I am of the view that the petitioners' contentions are well founded. The Tahsildar cannot decide on the validity of a document and the title of a previous owner. In fact, under R.16 of the Transfer of Registry Rules, it is made clear that mutation effected will not affect the legal right of any true owner. Therefore, as ``` WP(C) NO.14285 OF 2023 6 ``` far as the title of the petitioners and the previous owners are concerned, the Tahsildar cannot sit in appeal over the documents itself. The prior documents have been duly registered and they have not been set aside in any civil proceedings. Therefore, they can be acted upon and no objection can be taken on the basis of the alleged incompetence.” 8. In the light of the abovesaid categoric declaration of law made by this Court in **Synudheen's case** (supra), it is ordered and declared that production of ROR certificate is only optional and cannot be made mandatory and the registration officials concerned will not have jurisdiction to refuse registration on the mere ground that the parties like the petitioner has not produced the ROR certificate in respect of the property concerned. Accordingly, it is ordered that the registration officials concerned will have to register the document concerned on its presentation, if it is otherwise in order. 2. In the light of the judgment in **P.C.Jacob (supra)** this writ petition is allowed and the 2[nd] respondent is directed to register Ext.P5 Sale Certificate issued under the provisions of the SARFAESI Act, without insisting on the production of an ROR certificate. The Village officer concerned, shall also affect mutation after the sale certificate is registered in compliance with usual formalities. The writ petition is disposed of as above. **`Sd/-` GOPINATH P. JUDGE** ats ``` WP(C) NO.14285 OF 2023 7 ``` ## **`APPENDIX OF WP(C) 14285/2023`** ``` PETITIONER’S EXHIBITS ``` - `Exhibit P1 TRUE PHOTOSTAT COPY OF THE DEMAND NOTICE DATED 01.11.2013 ISSUED UNDER SARFAESI ACT TO RESPONDENTS 4 AND 5` - `Exhibit P2 TRUE PHOTOSTAT COPY OF THE POSSESSION NOTICE DATED 20.05.2014` - `Exhibit P3 TRUE PHOTOSTAT COPY OF THE SALE AGREEMENT PREPARED AND ISSUED ON 14.02.2023 IS IN FAVOUR OF THE PURCHASER RASHEED.P.` - `Exhibit P4 TRUE PHOTOSTAT COPY OF THE SALE NOTICE DATED 16.02.2023` - `Exhibit P5 TRUE PHOTOSTAT COPY OF THE SALE CERTIFICATE IN THE STATUTORY FORM WAS PREPARED AND ISSUED TO THE PURCHASER ON 09.03.2023` - `Exhibit P6 TRUE PHOTOSTAT COPY OF THE REPRESENTATION DATED 10.03.2023 SUBMITTED BY THE PETITIONER BEFORE RESPONDENTS NO.2 AND 3` - `Exhibit P7 TRUE PHOTOSTAT COPY OF THE ACKNOWLEDGMENT CARD SIGNED FROM OFFICE OF THE 2ND RESPONDENT DATED 13.03.2023` - `Exhibit P8 TRUE PHOTOSTAT COPY OF THE ACKNOWLEDGMENT CARD SIGNED FROM OFFICE OF THE 3RD RESPONDENT DATED 15.03.2023` - `Exhibit P9 TRUE PHOTOSTAT COPY OF THE ENCUMBRANCE CERTIFICATE DATED 21.12.2022 COVERING A PERIOD OF 12 YEARS ENDING WITH 13.12.2022` - `Exhibit P10 TRUE PHOTOSTAT COPY OF THE CASE DETAILS DOWNLOADED FROM THE WEBSITE OF C.C.NO.691/2019 PENDING BEFORE JUDICIAL FIRST CLASS MAGISTRATE COURT, PATTAMBI` ``` WP(C) NO.14285 OF 2023 8 ``` - `Exhibit P11 TRUE PHOTOSTAT COPY OF THE CASE DETAILS DOWNLOADED FROM THE WEBSITE OF PRIVATE COMPLAINT LODGED BY COMPANY UNDER THE NAME AND STYLE M/S KALPATTA JANAKSHEMA MARUTI CHITS PVT. LTD., ALLEGING COMMISSION OF AN OFFENCE CULPABLE UNDER SECTION 138 OF THE NI ACT (RENUMBERED AS C.C.NO.691/2019)` - `Exhibit P12 TRUE PHOTOSTAT COPY OF THE CRL.M.P.NO. 1548/2023 FILED BY THE PETITIONER COMPANY BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, PATTAMBI DATED 31.03.2023`