T.P. Jacob Paul v State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN MONDAY, THE 13[TH] DAY OF SEPTEMBER 2021 / 22ND BHADRA, 1943** **WP(C) NO. 23153 OF 2011** ## **PETITIONER/S:** **T.P.JACOB PAUL, AGED 58 YEARS, S/O PAUL THEKIKINIYATH HOUSE, NO.39, HILL GARDENS,, ANCHERY P.O., THRISSUR DISTRICT.** **BY ADVS. SRI.G.BALAMURALEEDHARAN (PARAVUR) SRI.N.T.NANDAKUMAR PARAVUR** ## **RESPONDENT/S:** **1 STATE OF KERALA, REP. BY THE SECRETARY TO GOVT., REGISTRATION DEPARTMENT,, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001 2 THE DISTRICT REGISTRAR CIVIL STATION, THRISSUR, PIN-680 020. 3 THE SUB REGISTRAR SUB REGISTRAR OFFICE, KUTTANELLUR-PIN-680006, THRISSUR DISTRICT. 4 SREEDHARAN, S/O. KUNJAN MARAMKALAYIL HOUSE, KURIACHIRA, OLLUR VILLAGE,, KURIACHIRA P.O., PIN-680 006, THRISSUR DISTRICT. 5 THE MANAGING DIRECTOR RESOURCE INDIA KURIES PVT.LTD., PALLIKULAM ROAD,, THRISSUR-680001** **BY ADVS. SRI.K.RAVI PARIYARATH SRI.G.SREEKUMAR CHELUR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON** **13.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 23153 OF 2011 ..2..** ## **JUDGMENT** The petitioner states that he purchased a property consisting of 53.25 cents of land in Sy.No.13/1 of Ollur Village, by public auction conducted by the UCO Bank, Palakkad Branch, under the proceedings under Section 13(2) of the SARFAESI Act, 2002. On the basis of the sale certificate, which is produced as Ext.P1 in the writ petition, Ext.P2 sale deed, pertaining to the same was registered at the Sub Registrar Office, Kuttanellur on 03.03.2011. Thereafter, mutation was effected and property tax was paid in favour of the petitioner. However, when the petitioner obtained Ext.P4 Encumbrance Certificate pertaining to the said property for the period 01.01.1997 to 22.03.2011, it consisted of three entries of **WP(C) NO. 23153 OF 2011 ..3..** encumbrances over the same, one an agreement executed between the prior owner/defaulter with the 4[th] respondent and other entries pertaining to the attachments from Court. According to the petitioner, all these encumbrances/attachments are pertaining to transactions effected after the mortgage of the property with the UCO Bank, by its prior owner/defaulter. 2. The petitioner contends that, since the property is purchased by the petitioner in public sale under the proceedings under the SARFAESI Act, the sale is free from all other encumbrances and charges as recited in Ext.P1 sale certificate and such sale has overriding effect on all other private sale / encumbrances/ charges. Though the petitioner approached the District Registrar and the SubRegistrar, the respondents 2 and 3, to delete the **WP(C) NO. 23153 OF 2011 ..4..** entries of charges/encumbrances/prohibition orders from the revenue records, the request was not considered. Accordingly, the petitioner has filed this writ petition for the following reliefs: a) declare that the three entries as shown in Ext. P4 regarding the registration of an agreement in favour of the 4[th] respondent, two prohibitory orders passed by the Munsiff Court, Thrissur in chitty transactions with the 5[th] respondent over the subject matter property, purchased by the petitioner in public sale as per the provisions of the SARFAESI Act are illegal and improper and in no way affect the absolute rights of the petitioner over the property: b) direct the 2[nd] and 3[rd] respondents to delete the said entries pertaining to the registration of an agreement in favour of the 4[th] respondent and two prohibitory orders passed by the Munsiff Court, Thrissur in chitty transactions with the 5[th] respondent from the revenue/encumbrance records over the said property: **WP(C) NO. 23153 OF 2011 ..5..** c) direct the 3[rd] respondent to issue a new Encumbrance certificate after deleting the aforesaid entries, to the petitioner. 3. A counter affidavit dated 08.02.2012 is filed on behalf of the 2[nd] respondent, the District Registrar and referring to the provisions of the Registration Act, 1908 and Registration Rules (Kerala), it is stated that, the request for striking off or deleting entries in the Encumbrance Certificate cannot be considered by the registering officers as they are not authorised to do so under the Act and Rules. 4. Heard the learned Counsel for the petitioner, the learned Government Pleader and the learned Counsel for the other respondents. 5. The learned Counsel for the petitioner submits that the equitable mortgage of the property **WP(C) NO. 23153 OF 2011 ..6..** was created in favour of UCO Bank in the year 2006 and the attachments/charges entered in Ext.P4 Encumbrance Certificate were effected after the date of mortgage. Relying on the decision in **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: AIR 2014 Ker.54]** and the decision of the Division Bench in **Secretary,** v. **Keechery Service Co-operative Bank Ltd. 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]** the Counsel contends that attachments effected subsequent to the creation of equitable mortgage have to be effaced after the property is purchased by the petitioner under the provisions of the SARFAESI Act. **WP(C) NO. 23153 OF 2011 ..7..** 6. The learned Counsel for the 5[th] respondent contended that though the attachments entered in Ext.P4 Encumbrance Certificate are subsequent to the equitable mortgage created in favour of UCO Bank, those attachments are prior to the sale conducted on 03.03.2011. The Counsel also contended that the petitioner ought to have approached the Civil Court or the Debts Recovery Tribunal for redressal of his grievances. 7. In **Madhan's** case (supra), the learned Single Judge, taking note of relevant statutory provisions and various judicial decisions, 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 **WP(C) NO. 23153 OF 2011 ..8..** 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 prejudicial 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.” 8. A Division Bench of this Court in **Ali Asharaf** ## **M.M. and Another** _v_ . **Sub Registrar, Thrissur** **WP(C) NO. 23153 OF 2011 ..9..** **(Judgment dated 24.7.2015 in** **W.A.No.612/2015)** has affirmed the law laid down in **Madhan's** case. 9. In **Keechery Service Co-operative Bank** case (supra), another Division Bench of this Court **Madhan's** case also affirmed the law laid down in (supra) and held in paragraph 7 as under: “7. …. 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 **WP(C) NO. 23153 OF 2011 ..10..** property effected after 27/06/2014, the date on which the property in question was mortgaged with Federal Bank. 10. In the light of the dictum laid down by this Court in **Madhan's** case (supra) and affirmed in **Ali Asharaf** and **Keechery Service Co-operative Bank** cases (supra), the attachments effected subsequent to the creation of equitable mortgage has to be effaced after the property is purchased by the petitioner under the proceedings under the SARFAESI Act. 11. Since the attachments effected and the encumbrances referred to in Ext.P4 Encumbrance Certificate are subsequent to the mortgage created in favour of the UCO Bank, those entries are liable to to be effaced after the property is purchased by the petitioner under the proceedings under the **WP(C) NO. 23153 OF 2011 ..11..** SARFAESI Act. Accordingly, the writ petition is allowed. Respondents 2 and 3 are directed to delete the entries other than the entry regarding registration of Document No. 717/2011 from the Encumbrance records/register for the period from 01.01.1997 to 22.03.2011, in relation to the property purchased by the petitioner and issue fresh Encumbrance Certificate replacing Ext.P4. This shall be done within a period of two months from the date of receipt of a copy of this judgment. No order as to costs. **Sd/-** **JUDGE** SB/13/09/2021 **WP(C) NO. 23153 OF 2011 ..12..** ## **APPENDIX** ## **PETITIONERS EXHIBITS** **EXT.P1 COPY OF THE SALE CERTIFICATE ISSUED BY UCO BANK, PALAKKAD DATED 29.05.2010 EXT.P2 COPY OF THE SALE DEED NO.717/2011 OF KUTTANELLUR SRO DATED 3.3.2011** **EXT.P3 COPY OF TAX RECEIPT DATED 26.4.11 ISSUED FROM OLLUR VILLAGE OFFICE** **EXT.P4 COPY OF ENCUMBRANCE CERTIFICATE NO.4084/11 DATED 23.03.2011 EXT.P5 COPY OF A/D CARD DATED 20.07.2011 EXT.P6 COPY OF MEMORANDUM ACKNOWLEDGED BY THE 3RD RESPONDENT DATED 18.07.2011**