The South Indian Bank Limited v. Sub Registrar, Office of the Sub Registrar Annammanada SRO, Mukundapuram; Village Officer, Thirumukkulam Village; Antony, S/o Chummar; A K Raju, S/o Kuttappan
Case Details & Bench
- Court
- High Court of Kerala
- Hon'ble Judges
- Murali Purushothaman
- Judgment Date
- 2023-09-29
- Court Decision / Holding
- The writ petition is disposed of with the direction to the 1st respondent to delete/efface the attachment noted in Ext. P7 encumbrance certificate/encumbrance register in favour of the 3rd respondent in respect of the property described (36.95 cents, 14.95 ares) in Sy. No. 433/2 of Thirumukulam village, Mukundapuram Taluk, Thrissur District, within three weeks from the date of receipt of a copy of this judgment. The 1st respondent shall ensure that the ownership/marketability is not affected by the post-mortgage attachment; the Sub Registrar and Village Officer are to carry out the necessary mutation/effacement in the revenue records to reflect this; the sale under the SARFAESI Act is not affected by this attachment, and the petition is disposed of accordingly.
- Final Disposition
- Disposed of
Parties to the Case
Appellants / Petitioners
- The South Indian Bank Limited
Respondents
- Sub Registrar, Office of the Sub Registrar, Annamanada SRO, Mukundapuram, Irinjalakkuda, Thrissur - 680741
- Village Officer, Thirumukkulam Village, Kuzhur PO, Mukundapuram Taluk, Thrissur District - 680734
- Antony, S/O Chummar, Potteparambil House, Thanissery Desom, Kakkkulissery Village, Chalakudy Taluk, Thrissur District - 680701
- A K Raju, S/O Kuttappan, Arayakkarambill House, Kundoor, Meladur, Thrissur District – 680734
Legal Representation & Advocates
Counsels for Petitioners
- • Mohan Jacob
- • George P.V.
- • Parvathy
- • Reena Thomas
- • Nigi George
Case Synopsis & Summary
The South Indian Bank Limited, a banking company, extended credit facilities to M/s Parvathi Paper Industries and took an equitable mortgage on 36.95 cents of land and a residential building in Sy. No. 433/2, Thirumukulam village, created by deposit of title deed on 30.04.2014. When the borrower defaulted, the Bank invoked SARFAESI proceedings and the secured asset was sold at auction (Ext. P5) in favour of the 4th respondent, with sale confirmation (Ext. P6). Since the sale proceeds did not cover the debt, the Bank instituted OA No. 383/2021 before the Debts Recovery Tribunal, Ernakulam. The 3rd respondent obtained an attachment from the Sub Court, Irinjalakuda, on 26.09.2016 in OS No. 154/2016 in respect of the same property. The Bank contends that the attachment post-dates the mortgage and cannot affect the Bank’s right to convey title on sale; it seeks that the 1st respondent register the sale after effacing the attachment as noted in Ext. P7. Relying on Madhan S. v. Sub Registrar, Kollam and Others and Keechery Service Co-operative Bank v. Sajitha Nizar, the Petitioner argues that an attachment created after the mortgage does not impair sale or title and should be removed from revenue records to preserve marketability. Though respondents 1 and 2 were represented by a Government Pleader, respondents 3 and 4 did not appear. The Court ultimately endorses the Madhan line of authority, holds that post-mortgage attachments do not affect the sale under SARFAESI, and directs effacement of the attachment within three weeks, disposing of the petition.
Provisions of Law Cited
Legal Doctrines & Maxims
- Sale under the SARFAESI Act is free from encumbrances created after mortgage
- Attachments subsequent to the mortgage do not affect title or sale; they cease to have effect on sale when confirmed
- Attachments must be effaced from encumbrance register after mortgage to preserve marketability
Submissions & Arguments
Contentions of Appellants / Petitioners
The Bank contends that the equitable mortgage created on 30.04.2014 remains intact and that a post-mortgage attachment cannot defeat the Bank’s right to sell the mortgaged property under the SARFAESI Act. It relies on Exts. P2, P5, and P6 to argue that the sale certificate should be unimpeded and that the attachment, created after mortgage, should be effaced from the encumbrance record (Ext. P7). It relies on Madhan S. v. Sub Registrar, Kollam and Others and Keechery Service Co‑operative Bank Ltd. v. Sajitha Nizar to show that post-mortgage attachments do not affect title and must be removed to preserve marketability. The Bank seeks a direction to the 1st respondent to delete the post-mortgage attachment from the encumbrance certificate within a short time frame.
Contentions of Respondents
The Respondents 1 and 2 were represented by the Government Pleader; Respondents 3 and 4 did not appear. The Respondents did not lodge a contrary argument in the document; the record shows the Bank’s position was to have post-mortgage attachments effaced so as not to impair sale and marketability; the Government Pleader’s arguments, as reflected, supported enforcement of the relief sought by the Bank based on the cited precedents.
Cited Precedents (3)
| Case Name | Citation | Treatment | Explanation |
|---|---|---|---|
| Madhan S. v. Sub Registrar, Kollam and Others | 2014 (1) KHC 249; 2014 (1) KLT 406; ILR 2014 (1) Ker.586; 2014 (1) KLJ 483 | Positive | Court relies on Madhan’s decision as the foundational principle that post-mortgage attachments do not affect the sale of mortgaged property under SARFAESI and must be effaced. |
| Ali Asharaf M.M. and Another v. Sub Registrar, Thrissur | Judgment dated 24.07.2015 in W.A. No.612/2015 | Positive | Division Bench affirmed the Madhan principle; post-mortgage attachments do not affect sale. |
| Keechery Service Co-operative 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 | Positive | Division Bench endorsed Madhan and held that post-mortgage attachments must be effaced; sale under SARFAESI remains unaffected. |
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Extracted Judgment Text
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