The Kannur Co-operative Urban Bank Limited v. Sub Registrar, Valapattanam Sub Registrar's Office, and State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 5[TH] DAY OF APRIL 2022 / 15TH CHAITHRA, 1944** **WP(C) NO. 21615 OF 2021** ## **PETITIONER:** THE KANNUR CO-OPERATIVE URBAN BANK LIMITED, HEAD OFFICE, KANNUR, REPRESENTED BY ITS AUTHORISED RECOVERY OFFICER, PRAMOD.O.P., S/O.GOVINDAN, CHIEF ACCOUNTANT, THE KANNUR CO-OPERATIVE URBAN BANK LIMITED, HEAD OFFICE, KANNUR, RESIDING AT GOVINDAM, POST CHOVVA, ELAYAVOOR AMSOM, DESOM, KANNUR DISTRICT. BY ADVS. P.U.SHAILAJAN V.SREEJITH (K/1398/2000) NIDHEESH T.P ## **RESPONDENTS:** 1 THE SUB REGISTRAR, VALAPATTANAM SUB REGISTRAR'S OFFICE, P.O.VALAPATTANAM, KANNUR DISTRICT, PIN-670 010. 2 STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF REGISTRATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. BY ADV GOVERNMENT PLEADER ## **OTHER PRESENT:** SMT.K.AMMINIKUTTY.SR.G.P. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 21615 OF 2021** **2** ## **JUDGMENT** The Kannur Co-operative Urban Bank Limited, which is a co-operative society registered under the provisions of the Kerala Co-operative Societies Act and Rules, has approached this Court seeking that the 1[st] respondent – Sub Registrar be directed to register Ext.P9 Sale Deed, executed by them in favour of the auction purchaser of the property involved in this case under the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the “SARFAESI ACT” for short). 2. The petitioner explains that the property in question was equitably mortgaged to them by a certain Sri.Vijayan Munderi, who had obtained title to it as per a Gift Deed, copy of which has been produced as Ext.P1; and that, therefore, they were entitled to sell the same under the provisions of the “SARFAESI ACT”. They allege that, **WP(C) NO. 21615 OF 2021** **3** however, the Sub Registrar has refused to register Ext.P9 without citing any tenable reason; and thus pray that Ext.P12 order issued by him be quashed and he be directed to register the said deed without any further delay. 3. The afore submissions of Sri.P.U.Shailajan – learned counsel for the petitioner, were opposed by the learned Senior Government Pleader – Smt.K.Amminikutty saying that, as is evident from Ext.P12, the Sub Registrar has found that the 'Gift Deed' in favour of Sri.Vijayan Munderi had been cancelled by his mother, who made the said gift, through a subsequent deed. He submitted that, therefore, Sri.Vijayan Munderi does not appear to have had title to the property at the time when the equitable mortgage was created by him. 4. When I heard the learned Senior Government Pleader on the afore lines, I directed the petitioner to produce documents or affidavits to be sworn to by **WP(C) NO. 21615 OF 2021** **4** Sri.Vijayan Munderi and his mother with respect to the cancellation deed referred to in Ext.P12. 5. Sri.P.U.Shailajan thus brought on record two affidavits, namely, that sworn to by Sri.Vijayan Munderi and his mother, along with IA No.1/2022, in which it is averred that the former had accepted the gift of his mother and that the subsequent cancellation deed is a “sham” one, never acted upon. He also relied upon the judgment of this Court in _**Jose Paul v. Paul and Another [2018(4)KHC 152]**_ , wherein, a learned Judge of this Court has affirmatively declared that cancellation of a gift cannot be made unilaterally and that any such action would have no forensic support. 6. When I consider and evaluates the afore submissions, in particular the affidavits now filed by Sri.Vijayan Munderi and his mother – the averments therein are to the specific effect that the latter had gifted the **WP(C) NO. 21615 OF 2021** **5** property in question to the former through a Gift Deed, but had sought to cancel it nearly two years later due to certain reasons. Pertinently, however, both of them unequivocally have averred that said document was never acted upon and was only a “sham” one, and that Sri.Vijayan Munderi was its owner as on 02/12/2015, when he created an equitable mortgage over it. 7. It is thus perspicuous that, as far as the petitioner – Bank is concerned, they acted _bonafidely,_ based on the assertion of Sri.Vijayan Munderi and his title documents, perhaps being without knowledge of the cancellation deed subsequently executed by his mother. 8. I am, therefore, of the firm view that the request, as made in this writ petition, by the petitioner, must be acceded to; however, indemnifying the Sub Registrar against any action that may be brought on the property by any person, including Sri.Vijayan Munderi or his mother or **WP(C) NO. 21615 OF 2021** **6** anyone else. This view of mine has been confirmed by Sri.P.U.Shailajan and Smt.K.Amminikutty. 9. Before I conclude this judgment, I must also record that Ext.P12 contains two other reasons cited by the Sub Registrar in refusing to register Ext.P9, namely, that the Authorized Officer of the Bank is different and that same has been presented after four months. 10. When I examine the afore two objections, it is evident that the factum of the name of the Authorized Officer being different would be of no consequence to the Sub Registrar, since it is always possible that officers retire or are transferred and new persons substituted. Coming to the second reason, as is evident from Ext.P11, the assertion of the petitioner, that they presented Ext.P12 for registration on 20/03/2020 itself, appears to be _prima facie_ without error. 11. I am, therefore, of the firm view that the Sub Registrar must now reconsider registration of Ext.P9 Sale **WP(C) NO. 21615 OF 2021** **7** Certificate, _de hors_ the reasons stated in Ext.P12, as per law and after affording necessary opportunities to be heard to the petitioner and the auction purchaser. Resultantly, I order this writ petition with the following directions: (a) Ext.P12 is set aside. (b) The Sub Registrar is directed to hear the petitioner, as also the auction purchaser of the property, and consider registration of Ext.P9 Sale Certificate in terms of law, after compliance of all other statutory requirements, but without relying upon any of the reasons stated in Ext.P12. ## **Sd/-** ## **DEVAN RAMACHANDRAN JUDGE** ANB **WP(C) NO. 21615 OF 2021** **8** ## **APPENDIX OF WP(C) 21615/2021** ## PETITIONER EXHIBITS |Exhibit P1|TRUE COPY OF THE LOAN APPLICATION DATED| |---|---| ||21.11.2015 AND DOCUMENTS SUBMITTED BY| ||SRI.VIJAYAN MUNDERI BEFORE THE PETITIONER| ||BANK.| |Exhibit P2|TRUE COPY OF THE DOCUMENTS REGARDING| ||GEHAN REGISTRATION DATED 02.12.2015| ||EXECUTED BY SRI.VIJAYAN MUNDERI IN FAVOUR| ||OF THE PETITIONER BANK.| |Exhibit P3|TRUE COPY OF THE MAHAZAR PREPARED BY THE| ||ADVOCATE COMMISSIONER AT THE TIME OF| ||TAKING PHYSICAL POSSESSION OF THE| ||PROPERTY IN CMP NO.7472/2018 ON THE FILE| ||OF THE CHIEF JUDICIAL MAGISTRATE COURT,| ||THALSSERY DATED 27.03.2019.| |Exhibit P4|TRUE COPY OF THE REPORT DATED 03.06.2019| ||SUBMITTED BY THE ADVOCATE COMMISSIONER| ||BEFORE THE CHIEF JUDICIAL MAGISTRATE| ||COURT IN CMP NO.7472/2018.| |Exhibit P5|TRUE COPY OF THE ORDER PASSED BY THE| ||CHIEF<br>JUDICIAL<br>MAGISTRATE<br>COURT,| ||THALSSERY ON 03.06.2019 IN C MP| ||NO.7472/2018.| |Exhibit P6|TRUE COPY OF THE THANDAPER ACCOUNT OF THE| ||PETITIONER WITH NO.2080 ISSUED FROM THE| ||VILLAGE OFFICE, CHELERI.| |Exhibit P7|THE TRUE COPY OF THE LAND TAX DATED| ||20.01.2020 ISSUED FROM THE VILLAGE| ||OFFICE, CHELARI IN FAVOUR OF THE| ||PETITIONER.| |Exhibit P8|TRUE COPY OF THE NOTICE DATED 31.12.2019| **WP(C) NO. 21615 OF 2021** **9** ISSUED BY THE PETITIONER TO SRI.VIJAYAN MUNDERI. Exhibit P9 TRUE COPY OF THE SALE DEED DATED 20.03.2020 EXECUTED BY THE AUTHORISED OFFICER OF THE PETITIONER IN FAVOUR OF SRI.SUGESH. Exhibit P10 TRUE COPY OF THE FIRST PAGE OF THE ACKNOWLEDGMENT FOR ONLINE TOKEN REGISTRATION DATED 20.03.2020. Exhibit P11 TRUE COPY OF THE SCREEN SHOT OF THE RELEVANT PAGE OF THE WEB SITE MAINTAINED BY THE REGISTRATION DEPARTMENT. Exhibit P12 TRUE COPY OF THE SALE DEED PRESENTED FOR REGISTRATION AND THE ORDER DATED 18.02.2021 OF THE RESPONDENT NO.1 IN THE LAST PAGE. Exhibit P13 AFFIDAVIT OF SRI VIJAYAN MUNDERI DATED 17.3.2022 Exhibit P14 AFFIDAVIT OF SMT METHALE VEETIL MADHAVI DATED 17.3.2022