The Authorised Officer CSB Bank Ltd (Formerly Known as the Catholic Syrian Bank Ltd) v. Sub Registrar, Kadamba Zhippuram; Village Officer, Ambalapara-1 Village; Dakshin Agro Tech Pvt Ltd; Chandrasekharan K.C.; Ajay Chandran; Arun Chandran; Devi Prasad R S/O Kesava Pillai; Radhamma P W/O Kesavan Pillai; Unnikrishnan Nair Paadath; ADDL. R10 Shobana; ADDL. R11 Rajeev

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **THURSDAY, THE 21[ST] DAY OF MARCH 2024 / 1ST CHAITHRA, 1946** ## **WP(C) NO. 32130 OF 2022** ## **PETITIONER:** **THE AUTHORISED OFFICER CSB BANK LTD (FORMERLY KNOWN AS THE CATHOLIC SYRIAN BANK LTD) ZONAL OFFICE, DGM BUILDING, MARKET ROAD, ERNAKULAM, PIN - 682011** **BY ADVS. MADHU RADHAKRISHNAN NELSON JOSEPH M.D.JOSEPH DEEPAK ASHOK KUMAR** ## **RESPONDENTS:** - **1 THE SUB REGISTRAR , KADAMBAZHIPPURAM PALAKKAD DISTRICT, PIN - 678633** - **2 THE VILLAGE OFFICER , AMBALAPARA -1 VILLAGE PALAKKAD DISTRICT, PIN - 679512** - **3 DAKSHIN AGRO TECH PVT LTD REG. OFFICE, K.C. HOUSE IV/342, CHERUMUNDASSERY P.O., AMBALAPPARA, OTTAPPALAM, PALAKKAD DISTRICT 679512** - **4 CHANDRASEKHARAN K.C S/O. KUNJUNNY NAIR U.P, K.C. HOUSE, IV/342, CHERUMUNDASERRY P.O., AMBALAPARA, OTTAPALAM PALAKKAD DISTRICT, PIN - 679512** - **5 AJAY CHANDRAN S/O. CHANDRASEKHARAN K.C. C/O. VISWANATHAN NAIR, "MENAKATHSHANTHI", NEAR PUTHENKURISSISREE KRISHNA TEMPLE, PUTHUR, PALAKKAD DISTRICT, PIN - 678001** - **6 ARUN CHANDRAN S/O. CHANDRASEKHARAN K.C. VIRUTHIATHU HOUSE, PANDANAD P.O CHENGANNUR, ALAPPUZHA DISTRICT, PIN - 689506** **WP(C)NO.32130/2022** **2** **7 DEVI PRASAD R S/O KESAVA PILLAI VIRUTHIATHU HOUSE, PANDANAD P.O CHENGANNUR, PIN - 689506** - **8 RADHAMMA P** - **W/O. KESAVAN PILLAI, VIRUTHIATHU HOUSE, PANDANAD P.O CHENGANNUR, PIN - 689506** **9 UNNIKRISHNAN NAIR PAADATH PUTHEN PURAYIL , CHEMB, OTTAPPALAM, PALAKKAD DISTRICT, PIN - 679512** - **10 ADDL.R10. SHOBANA,** **WO.CHANDRASEKARAN K.C., VIRUTHIATHU HOUSE , PANDANAD P.O., CHENGANNUR, PIN-689506.** - **11 ADDL. R11. RAJEEV,** **S/O.KESAVA PILLAI VIRUTHIATHU HOUSE, PANDANAD P.O., CHENGANNUR, PIN-689506** **ADDL. R10 AND R11 IMPLEADED AS PER THE ORDER DATED 07.06.2023 IN I.A.2/2023.** **BY ADVS.** **B.UNNIKRISHNA KAIMAL, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C)NO.32130/2022** **3** ## **JUDGMENT** _Dated this the 21[st] day of March, 2024_ Petitioner has approached this Court seeking a direction to the first respondent to register the certificates of sale produced as Exts.P3 to P5. Petitioner has also sought for a direction to efface/delete all the attachments reflecting on the secured asset. 2. Petitioner is a Public Limited Banking Company. The third respondent Company along with respondents 4 to 8, who are the directors, approached the Bank for a cash credit facility and the facilities were granted on executing a mortgage of the property on 28.05.2010. Thereafter the payment was defaulted and SARFAESI proceedings were initiated. As there was no third party bidders, petitioner Bank bid the property in auction and Exts.P3 to P5 sale certificates were issued in favour of the petitioner Bank. Though an appeal was filed as S.A.No.423 of 2012, the same was also dismissed by the DRT as per order dated 20.05.2014. When the sale certificate was taken for registration before the registering authorities and **WP(C)NO.32130/2022** **4** encumbrance certificate was applied for, petitioner came to know that there is an attachment dated 27.05.2015 of property number 4 in Ambalappara-1 Village, Ottappalam Taluk by the Sub Court, Ottapalam in E.A.No.198/2012 in E.P.No.51/2015. Subsequently property Nos.1 to 3 situated in Sy.No.59/7 and 59/8 of Ambalappara – I Village, Ottapalam Taluk were also attached on 27.06.2018 as evident from Ext.P6 encumbrance certificate and the attachment was at the instance of the ninth respondent. Petitioner submits that any attachment created over the property after the mortgage has been effected will not find the petitioner’s right over the secured assets. Petitioner rely on Exts.P7 to P9 judgments wherein this Court has interfered and passed orders in similar circumstances. Notice by publication was effected on the ninth respondent, but there was no appearance for the ninth respondent in these proceedings. 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] and the decision **WP(C)NO.32130/2022** **5** of a Division Bench of this Court in **Secretary, Keechery Service Cooperative Bank Ltd. v. Sajitha Nizar alias Sajitha P.M. and Others** , [2020 (5) KHC 231] 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 register. 5. In **Madhan** 's case (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 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 confirmed in favour of the petitioner. 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 prejudicially 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.”_ **WP(C)NO.32130/2022** **6** 6. A Division Bench of this Court in **Ali Asharaf M.M. and Another v. Sub Registrar, Thrissur** (Judgment dated 24.7.2015 in W.A. No.612/2015) has affirmed the law laid down in **Madhan** 's case. In Keechery Service Co-operative Bank case (supra), another Division Bench of this Court also affirmed the law laid down in **Madhan** 's case (supra) and held in paragraph 7 as under:- _“7.In the light of the aforesaid declaration of law by this Court the order of dismissal of the petition filed for lifting the attachment ordered under Ext R7 (a) viz., Ext R7 (b) by the Federal Bank would pale into insignificance. We do not find any reason to disagree with the declaration of law in Madhan's case (supra) which was virtually affirmed by the Division Bench in Ali Asharaf's case (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 in Madhan'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 which the property in question was mortgaged with Federal Bank”._ Thus it is trite law that attachment effected subsequent to the creation of equitable mortgage does not have any effect **WP(C)NO.32130/2022** **7** on the sale conducted by the Bank under the SARFAESI Act and has to be effaced from the encumbrance register. It is evident from the documents produced in the writ petition that the attachments obtained are subsequent to the creation of equitable mortgage by the borrowers in favour of the petitioner. ## 7. This Court in **Phoenic ARC Pvt. Ltd. v. Sub** **Registrar, Feroke** [2023 KHC Online 9452] while considering an identical issue referring to Section 89(5) of the Registration Act, 1908 has held that since the attachment subsequent to creation of equitable mortgage has lost its efficacy and has to be obliterated from the records, the same can be done by the Sub Registrar by filing the certified copy of the order/judgment of this Court in Book No.1 maintained by the Sub Registrar. 8. Accordingly, there will be a direction to the first respondent to efface the attachment noted in Ext.P6 encumbrance certificate from Book No.1 by filing the certified copy of this judgment in the said book and register Exts.P3 to P5 sale certificates if the same are otherwise in **WP(C)NO.32130/2022** **8** order. Respondents shall thereafter effect mutation of the said property _de hors_ the aforesaid attachments, if there are no other impediments. The Writ Petition is disposed of as above. SD/- **VIJU ABRAHAM JUDGE** csl **WP(C)NO.32130/2022** **9** ## **PETITIONER EXHIBITS** **Exhibit P1 THE TRUE COPIES OF THE LETTER OF CONFIRMATION OF MORTGAGE BY DEPOSIT OF TITLE DEEDS OF PROPERTY NO. 4 DATED 14/9/2009** **Exhibit P1(a) THE TRUE COPIES OF THE LETTERS OF CONFIRMATION OF MORTGAGE BY DEPOSIT OF TITLE DEEDS OF PROPERTY NO. 1 DATED 28/5/2010** **Exhibit P1(b) THE TRUE COPIES OF THE LETTERS OF CONFIRMATION OF MORTGAGE BY DEPOSIT OF TITLE DEEDS OF PROPERTIES NO. 2 DATED 28/5/2010** **ExhibitP1(c) THE TRUE COPIES OF THE LETTERS OF CONFIRMATION OF MORTGAGE BY DEPOSIT OF TITLE DEEDS OF PROPERTIES NO. 3 DATED 28/5/2010** **ExhibitP1(d) LETTER OF EXTENSION OF MORTGAGE OVER PROPERTY NO.4 DATED 28/5/2010** **Exhibit P2 TRUE COPY OF THE SALE NOTICE ISSUED BY THE PETITIONER DATED 11/1/2014** **ExhibitP3 TRUE COPY OF THE SALE CERTIFICATE OF PROPERTY NO.4 DATED 16/3/2015** - **ExhibitP4 TRUE COPY OF THE SALE CERTIFICATE OF PROPERTY NO. 1 DATED 16/3/2015** - **ExhibitP5 TRUE COPY OF THE SALE CERTIFICATE OF PROPERTIES NO. 2 & 3 DATED 16/3/2015** **ExhibitP6 COPY OF THE ENCUMBRANCE CERTIFICATE NO. 8211/21 DATED 22/12/2021** **ExhibitP7 TRUE COPY OF THE JUDGMENT IN WPC 16745/2018** **WP(C)NO.32130/2022** **10** **Exhibit P8 TRUE COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT IN WPC NO. 3956/2019 Exhibit P9 TRUE COPY OF THE JUDGMENT IN WPC NO. 27827/ 2020**