Sundaram Home Finance Ltd v State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 22[ND] DAY OF FEBRUARY 2022 / 3RD PHALGUNA, 1943** ## **WP(C) NO. 3635 OF 2022** ## **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 BY ADV VARGHESE C.KURIAKOSE ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY SECRETARY, DEPARTMENT OF REVENUE, SECRETARIAT, TRIVANDRUM 695 001 2 THE SUB REGISTRAR SUB REGISTRY OFFICE, THRITHALA, PALAKKAD DISTRICT 679 534 3 ABHILASH N S/O. VELAYUDHAN, NARIKUZHIYIL HOUSE, CHAZHIYITTIRI P.O, CHAZHIYITTIRI AMSOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT 679 535 4 RAJI ABHILASH W/O. ABHILASH N, NARIKUZHIYIL HOUSE, CHAZHIYITTIRI P.O, CHAZHIYITTIRI AMSOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT 679 535 5 SULOCHANA W/O. VELAYUDHAN, NARIKUZHIYIL HOUSE, CHAZHIYITTIRI P.O, CHAZHIYITTIRI AMSOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT 679 535 6 THE VILLAGE OFFICER THIRUMITTAKODE II VILLAGE, PALAKKAD DISTRICT 679 532 **OTHER PRESENT:** **WP(C) NO. 3635 OF 2022 2** SMT.K.AMMINIKUTTY SR.G.P. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **WP(C) NO. 3635 OF 2022 3** ## **JUDGMENT** The petitioner is stated to be a Company registered under the provisions of the Companies Act, 1956 and asserts to be a Housing Finance Institution as defined under the National Housing Bank Act, 1987. 2. The petitioner - Company says that they had obtained an equitable mortgage for the property involved in this case, which was created by its owner, namely the 5[th] respondent, while a loan was availed of by her, along with respondents 3 and 4 - who are her son and daughter-in-law respectively. They say that this equitable mortgage was created on 24.10.2013 as collateral security for the loan facility availed and that since the repayment under the same has been now defaulted, they have proceeded against the property as per the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act ('the SARFAESI Act' for brevity). 3. The petitioner says that, however, when they ## **WP(C) NO. 3635 OF 2022 4** initiated action for such purpose, they found that an attachment has been brought over the property in question at the instance of the 4[th] respondent in the year 2016, on the allegation that the 5[th] respondent owes her certain sums of money. The petitioner says that the action of the 4[th] respondent is in collusion with respondents 3 and 5, her husband and mother-inlaw respectively, and is, in any case, egregiously improper because she herself is a co-borrower, who is fully aware of the equitable mortgage. 4. The petitioner, therefore, prays that the entry of attachment over the property in question, at the instance of the 4[th] respondent, be directed to be erased, so that they can register the Sale Certificate in favour of its auction purchaser in terms of law. They added that they have already brought the property to sale and have issued Ext.P8 Sale Certificate in favour of the purchaser, but that it has now been refused to be registered solely on account of the afore attachment. 5. I have heard Sri.Varghese C.Kuriakose, learned **WP(C) NO. 3635 OF 2022 5** counsel for the petitioner and Smt.K.Amminikutty, learned Senior Government Pleader appearing for the official respondents. 6. Even though summons from this Court have been validly served on respondents 4 and 5, they have chosen not to be present in person; while the one issued to respondent No.3 has been returned with the endorsement 'Abroad'. 7. Smt.K.Amminikutty, learned Senior Government Pleader, submitted that though the Sub Registrar cannot stand against erasion of the attachment in question, registration of the Sale Certificate can be done only if the “Tandaper Certificate” is produced by the petitioner or the auction purchaser. She submitted that, therefore, this Court may dispose of this writ petition on such terms. ## 8. I have considered the afore submissions and it is without doubt that right of the petitioner Company to proceed against the property cannot be questioned by any of the party respondents, particularly because they themselves have created the mortgage. In fact, **WP(C) NO. 3635 OF 2022 6** the 4[th] respondent is stated to be a co-borrower and her action in bringing out an attachment over the property thereafter, can certainly be not countenanced by this Court, going by the well settled principles of law. Resultantly, I order this writ petition and direct the 2[nd] respondent to register Ext.P8 Sale Certificate without insisting on an ROR Certificate, taking into account the judgments of this Court in _**Jacob P.C. v. Village Officer, Ernakulam District [2020(4)KLT 221]**_ and _**Sainudheen v. State of Kerala [2013 (1) KHC 437];**_ as expeditiously as is possible, but not later than ten days from the date on which the said Sale Certificate is presented for registration. As far as the transfer of Registry of the property is concerned, the competent Tahsildar will be obligated to accede to the same and also to allow payment of land tax on it thereafter without insisting for the “Tandaper Certificate” so as to enable the said purchaser to deal with the property in terms of law without any avoidable delay. ## **WP(C) NO. 3635 OF 2022 7** Of course, it will be open to the Tahsildar to verify the accuracy and correctness of the Survey Numbers and the extents of the property shown in Ext.P8, through methods that are available to him; but for this purpose, cannot insist on the Bank or the auction purchaser producing a “Tandaper Certificate” or an “ROR Certificate”. It goes without saying that once Ext.P8 is registered, the Sub Registrar shall erase the entry of attachment over the property in question within a period of one week thereafter. ## **Sd/-** ## **DEVAN RAMACHANDRAN** **JUDGE** **MC/22.2** **WP(C) NO. 3635 OF 2022 8** ## **APPENDIX OF WP(C) 3635/2022** |PETITIONER EXHIBITS|| |---|---| |Exhibit P1|TRUE PHOTOSTAT COPY OF THE 13(2) NOTICE| ||ISSUED IN RESPECT OF LOAN ACCOUNT NO.| ||72200433| |Exhibit P2|TRUE PHOTOSTAT COPY OF THE SECTION 13(2)| ||IN RELATION TO THE LOAN TRANSACTION NO.| ||72200431 DATED 01-05-2015| |Exhibit P3|TRUE PHOTOSTAT COPY OF THE DOCUMENT NO.| ||3839/2000 OF SRO. THRITHALA| |Exhibit P4|TRUE PHOTOSTAT COPY OF THE DOCUMENT NO.| ||3840/2000 OF SRO, THRITHALA| |Exhibit P5|TRUE PHOTOSTAT COPY OF THE POSSESION| ||NOTICE DATED 20-08-2016 ISSUED IN RESPECT| ||OF LOAN A/C NO 72200431| |Exhibit P6|TRUE PHOTOSTAT COPY OF THE POSSESSION| ||NOTICE DATED 26-09-2015 ISSUED IN RESPECT| ||OF LOAN A/C NO. 72200433| |Exhibit P7|TRUE PHOTOSTAT COPY OF THE SALE NOTICE| ||DATED 29-10-2021 FIXING THE SALE TO 14-12-| ||2021| |Exhibit P8|TRUE PHOTOSTAT COPY OF THE SALE| ||CERTIFICATE| |Exhibit P9|TRUE PHOTOSTAT COPY OF THE ENCUMBRANCE| ||CERTIFICATE DATED 15-01-2022| |Exhibit P10|TRUE PHOTOSTAT COPY OF THE LETTER DATED| ||21-01-2022 SUBMITTED BY THE PETITIONER FOR| ||THE PURPOSE OF ERASING THE ATTACHMENT TO| ||THE 2ND RESPONDENT| |Exhibit P11|TRUE PHOTOSTAT COPY OF THE APPLICATION| ||SUBMITTED BY THE PETITIONER TO THE 2ND| ||RESPONDENT FOR EFFECTING REGISTRATION| ||WITHOUT INSISTING FOR ROR CERTIFICATE|