The Trichur Urban Co-operative Bank Ltd. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 10[TH] DAY OF JANUARY 2022 / 20TH POUSHA, 1943** ## **WP(C) NO. 12626 OF 2021** ## **PETITIONER:** THE TRICHUR URBAN CO-OPERATIVE BANK LTD HEAD OFFICE AT MISSION QUARTERS, THRISSUR 680 001. REPRESENTED BY ITS GENERAL MANAGER AND AUTHORIZED OFFICER, JEROME P. THOMAS. LINDONS C.DAVIS E.U.DHANYA RAJITH DAVIS ## **RESPONDENTS:** - 1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, THIRUVANANTHAPURAM - 695 001. - 2 THE SUB REGISTRAR, SUB REGISTRAR OFFICE, AYYANTHOLE, AYYANTHOLE, THRISSUR, 680003. - 3 THE VILLAGE OFFICER, KANIMANGALAM VILLAGE, THRISSUR 680 027. - 4 THE TAHSILDAR, TALUK OFFICE, THRISSUR, CHEMBUKKAVU, THRISSUR - 680 020. - 5 HEMA T.S, D/O. SIVARAMAN T.P., THONNENKAVUPARAMBIL HOUSE, AYYAPPANKAVU ROAD, AKRA 30, KANIMANGALAM P.O. THRISSUR 680 027. - 6 SIVARAMAN T.P., THONNENKAVUPARAMBIL HOUSE, AYYAPPANKAVU ROAD, AKRA 30, KANIMANGALAM P.O. THRISSUR 680 027. - 7 BEENA T.S., THONNENKAVUPARAMBIL HOUSE, AYYAPPANKAVU ROAD,AKRA 30, KANIMANGALAM P.O, THRISSUR 680 027. - 8 JAYAPRABHA SIVARAMAN, KARTHIKA HOUSE NO. 30, AKRA 30, KANIMANGALAM P.O. THRISSUR 680 027. - 9 ANIL THAMPAN, AGED 43 YEARS, S/O. ALAYAM VEETIL THAMPAN, KARIYATTUKARA DESOM, ARANATTUKARA VILLAGE WP(C) NO. 12626 OF 2021 2 THRISSUR TALUK - 680 618. 10 SAKTHAN KURIES AND LOANS PVT. LTD, THRISSUR, REPRESENTED BY CHAIRMAN, JOY THOMAS, 63 YEARS, S/O. THOMAS, PUTHOOR HOUSE, PARAPOOR DESOM, THOLOOR VILLAGE, THRISSUR - 680 552. 11 B.R.D. SECURITIES LIMITED, REPRESENTED BY LITIGATION CLERK MIDHUN, AGED 32 YEARS, S/O. MUKUNDAN, PATHIYALA HOUSE, MULLASSERY VILLAGE AND DESOM, CHAVAKKAD TALUK THRISSUR 680 509. 12 SUNDARAN, VELIMPARAMBIL (H), KANIMANGALAM P.O. THRISSUR 680 027. 13 SUVIN, VELIMPARAMBIL (H), KANIMANGALAM P.O. THRISSUR 680 027. 14 K.L. BABY, AGED 64 YEARS, S/O. LONAPPAN, KOZHALIPARAMBIL HOUSE, KURIACHIRA DESOM, OLLUR VILLAGE, THRISSUR TALUK 680 006. M.R.JAYALATHA K.VINAYA ABHILASH.B A.P.VASAVAN SMT. MABLE .C .KURIAN - SR.G.P THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 12626 OF 2021 3 ## **JUDGMENT** The Trichur Urban Co-operative Bank Ltd. (for short, 'the Bank') has approached this Court seeking a direction to respondents 2 and 3 to efface the entries of attachment over the property covered by Ext.P6 Encumbrance Certificate, saying that they had obtained equitable mortgage over it as early as on 21.04.2012; while the attachments in question were brought on to the property much later by the various respondents. 2. The petitioner explains that they had obtained an equitable mortgage over the property from its original owners as collateral security for a loan facility availed of by them, but that since they defaulted the same, they were constrained to take possession of it on 20.08.2016, under the provisions of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI) and to bring it to sale on 27.12.2019, leading to Ext.P5 sale certificate being issued in their own favour, since there were no other bidders. 3. The petitioner says that, however, when they presented Ext.P5 sale certificate for registration before the second WP(C) NO. 12626 OF 2021 4 respondent - Sub Registrar, the said Authority refused to accede to it saying that there are various attachments over the property. They contend that, as per Section 26E of the SARFAESI Act, they have a primary charge over the property in question on account of the prior equitable mortgage and therefore, pray that the second respondent - Sub Registrar be directed to register Ext.P5 sale certificate in their favour and to consequently efface entries numbered as 4, 5, 6, 8, 9 and 10 in Ext.P6 encumbrance certificate in obedience to the judgment of this Court in **Secretary, Keechery Service Cooperative Bank Ltd. v. Sajitha Nizar alias Sajitha P.M.** (2020 (6) KLT 68). 4. The afore submissions made on behalf of the petitioner by Smt.Dhanya E.U., were answered by Smt.Vinaya K. - learned counsel appearing for respondents 9 and 12, saying that her clients are attaching creditors who are to obtain large amounts of money from the original owner of the property. She submitted that her clients have already obtained orders of attachments from a competent Civil Court and therefore, prayed that this writ petition be dismissed. 5. Even though summons from this Court have been WP(C) NO. 12626 OF 2021 5 validly served on the other party respondents, they have chosen not to be present in person or to be represented through counsel; inferentially guiding me to the impression that they have nothing to offer in opposition to the various reliefs sought for in this writ petition. 6. The learned Senior Government Pleader, Smt.Mable C.Kurian, submitted that the second respondent has been incapacitated from registering Ext.P5 sale certificate because there are several attachments over the property in question, as is evident from Ext.P6 encumbrance certificate. She, however, added that if this Court is so inclined, the second respondent can register Ext.P5, subject to all other conditions and requirements of law being satisfied. 7. When I evaluate the afore submissions, it is without doubt that the law is now well settled through various judgments of this Court and that of the Hon'ble Supreme Court, that if the petitioner is able to establish a prior equitable mortgage over the property in question, they certainly are entitled to have Ext.P5 sale certificate registered in their favour. This is a pure question of fact, which the competent Authority will have to verify, leading to a decision to be taken WP(C) NO. 12626 OF 2021 6 on the application of the petitioner for registration of the said certificate. 8. In the afore circumstances, I direct the petitioner and the party respondents, including respondents 9 and 12, to appear before the second respondent – Sub Registrar at 11 a.m. on 21.01.2022; on which day, the said Authority will verify whether the mortgage claimed by the petitioner – Bank is prior to the attachments and then decide on the registration of Ext.P5 sale certificate, taking note of the various judgments of this Court, including in **Secretary, Keechery Service Cooperative Bank Ltd. v. Sajitha Nizar alias Sajitha P.M.** (2020 (6) KLT 68). 9. Needless to say, if the Sub Registrar is to find that the petitioner has a primary charge over the property, he shall register Ext.P5 sale certificate and will thereupon efface all the entries of subsequent attachments from the encumbrance certificate and issue the petitioner a fresh one in terms of law. 10. It goes without saying that upon the afore exercise being completed, the petitioner will be at liberty to approach the jurisdictional Tahsildar, as also the competent Village Officer and seek the transfer of Registry of the property in WP(C) NO. 12626 OF 2021 7 their favour, as also for remittance of land tax thereon as per law. This writ petition is thus ordered. **Sd/- DEVAN RAMACHANDRAN** **JUDGE** **STU** WP(C) NO. 12626 OF 2021 8 ## **APPENDIX OF WP(C) 12626/2021** PETITIONER EXHIBITS Exhibit P1 A COPY OF THE TITLE DEED NO.169/1/1976 OF SRO THRISSUR DATED 17.01.1976. Exhibit P2 A TRUE COPY OF DECLARATION OF GEHAN MORTGAGE BY DEPOSIT OF TITLE DEED EXECUTED BY THE RESPONDENTS 5 to 7 IN FAVOUR OF THE PETITIONER BANK DATED 21.04.2012. Exhibit P3 A TRUE COPY OF THE REPORT OF ADVOCATE COMMISSIONER IN Crl.MP 2351/2013 DATED 20.08.2016. Exhibit P4 A TRUE COPY OF THE ORDER IN Crl.MP 2351/2013 DATED 20.08.2016. Exhibit P5 A TRUE COPY OF THE SALE CERTIFICATE DATED 27.12.2019. Exhibit P6 A TRUE COPY OF THE ENCUMBRANCE CERTIFICATE ISSUED BY THE 2ND RESPONDENT FOR A PERIOD COVERING FROM 01.01.2000 TO 12.01.2021.