High Court of KeralaSingle JudgeWrit petition disposed of as above.

UCO Bank, Munambam Branch v. Sub Registrar, North Paravur & Others

Case / Petition Number:WP(C) No.26942/2023

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • N. Nagareesh
Judgment Date
2023-12-08
Court Decision / Holding
The 1st respondent-Sub Registrar is directed to consider Ext. P11 representation submitted by the petitioner with notice to the 5th respondent and decide on effacement of the attachment in Ext. P10 Encumbrance Certificate and from the Books of Registry, in light of the Division Bench judgment in Secretary, Keechery Service Co‑operative Bank Ltd. (Supra). The writ petition is disposed of as above.
Final Disposition
Writ petition disposed of as above.

Parties to the Case

Appellants / Petitioners

  • UCO Bank, Munambam Branch, represented by its Authorized Officer and Assistant General Manager

Respondents

  • The Sub Registrar, Sub Registrar's Office, North Paravur, Ernakulam District
  • State of Kerala, represented by its Secretary, Registration Department
  • PT Francis
  • PB Sivan
  • Saju

Legal Representation & Advocates

Counsels for Petitioners

  • • Adv. Deepak Joy K

Counsels for Respondents

  • • Adv. Vishak Johnson K
  • • Adv. Benzir P. M.
  • • Adv. Akhila Shukkoor Veliyaveettil
  • • Adv. Dheeraj A.S., Government Pleader

Case Synopsis & Summary

The petitioner-bank advanced substantial credit facilities to the third respondent and created an equitable mortgage by deposit of title deed over 3.70 acres in Moothakunnam, survey no. 60/14 (ext. P1 and P2). After default, the bank invoked SARFAESI proceedings, took possession, and a sale certificate (ext. P9) was issued to the fourth respondent, who remitted the sale consideration. When the bank procured Ext. P10 Encumbrance Certificate, it showed an attachment dated 20.07.2023 under OS No.118/2023 by the Additional Sub Court, North Paravur. The bank filed Ext. P11 requesting the 1st respondent Sub Registrar to efface the attachment from the EC and the Books of Registry, arguing that the equitable mortgage predates the attachment and that subsequent attachments should stand effaced. The 1st respondent had not acted on Ext. P11. The court relied on established principles in Keechery Service Co-operative Bank Ltd. v. Sajitha Nizar alias Sajitha P.M. and others, and Madhan S. v. Sub Registrar, Kollam, to hold that as soon as an equitable mortgage is created, subsequent attachments are effaced, and the property may be mutated in favor of the auction purchaser. The court directed the Sub Registrar to consider Ext. P11 with notice to the 5th respondent and decide on effacement of the attachment and related entries in the EC and registry. The petition is disposed of accordingly.

Provisions of Law Cited

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002Section 13(2) of SARFAESI ActSection 13(4) of SARFAESI Act

Legal Doctrines & Maxims

  • After creation of an equitable mortgage, a subsequent attachment will be effaced (Keechery Service Co-operative Bank Ltd. v. Sajitha Nizar alias Sajitha P.M. and others, 2020 (6) KLT 68).
  • A similar view is taken in Madhan S. v. Sub Registrar, Kollam and others (2014 (1) KHC 249).

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner-bank contends that the equitable mortgage created by deposit of title deed predates the attachment; after the mortgage, any subsequent attachment should be effaced, enabling mutation in favor of the auction purchaser. Ext. P11 was filed to seek effacement, and the Sub Registrar has not yet acted. Relying on the principles in Keechery and Madhan S., the bank seeks a direction to consider Ext. P11 and remove the Ext. P10 encumbrance from the EC and registry records, so as to protect the bank’s interests and facilitate mutation or transfer to the auction purchaser.

Contentions of Respondents

The respondents’ petitioners defend the existing attachment and rely on the formal process, arguing that encumbrances prior to mutation must be recognized and subject to due process. They contend that the statutory procedures and registry entries must be respected, with due notice and compliance by the Sub Registrar, before any alteration of the EC or registry records.

Cited Precedents (2)

Case NameCitationTreatmentExplanation
Secretary, Keechery Service Co-operative Bank Ltd. v. Sajitha Nizar alias Sajitha P.M. and others2020 (6) KLT 68PositiveHeld that after creation of an equitable mortgage, subsequent attachment will stand effaced, freeing the property for mutation in favor of the auction purchaser.
Madhan S. v. Sub Registrar, Kollam and others2014 (1) KHC 249PositiveCourt took a similar view supporting effacement of later attachments post-equitable mortgage.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 8[TH] DAY OF DECEMBER 2023/17TH AGRAHAYANA, 1945** **WP(C) NO. 26942 OF 2023** ## **PETITIONER:** **UCO BANK, MUNAMBAM BRANCH, REPRESENTED BY ITS AUTHORIZED OFFICER AND ASSISTANT GENERAL MANAGER, NEAR MUNAMBAN FERRY, PALLIPORT PO, MUNAMBAM, ERNAKULAM DISTRICT, PIN – 683515** **BY ADV DEEPAK JOY.K.** ## **RESPONDENTS:** - **1 THE SUB-REGISTRAR, THE SUB-REGISTRARS OFFICE, NORTH PARAVUR , ERNAKULAM DISTRICT, PIN – 683513** - **2 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, REGISTRATION DEPARTMENT, SECRETARIAT, THIRUVANANTHUPURAN, PIN – 695001** - **3 PT FRANCIS, S/O THOMMAN, AGED 62 YEARS, PANAKKAL HOUSE, PALLIPORT PO, MUNAMBAM, PIN – 683515** - **4 PB SIVAN, S/O BAVA, PONATH HOUSE, PALLIPURAM, MUNANBAM, ERNAKULAM, PIN – 683515** - **5 SAJU, S/O KOCHAPPAN, KANAKUDAM HOUSE, VELLAMKALLUR, VADAKKUMKARA, MUKUNDAPURAM, THRISSUR DISTRICT, PIN - 680662** W.P.(C) No.26942/2023 : 2 : **BY ADVS. VISHAK JOHNSON K BENZIR P. M. AKHILA SHUKKOOR VELIYAVEETTIL(K/1129/2013) SRI.DHEERAJ A.S. , GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.26942/2023 : 3 : ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` ## W.P.(C) No.26942 of 2023 ````````````````````````````````````````````````````````````` _Dated this the 8[th] day of December, 2024_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The petitioner-Bank, which has given financial advance to the 3[rd] respondent, is before this Court seeking to direct the 1[st] respondent-Sub Registrar to consider Ext.P11 representation and efface Entry No.1 order of attachment dated 20.07.2023 clamped by the 5[th] respondent through the Additional Sub Court, North Paravur, from Ext.P10 Encumbrance Certificate and from the Books of Registry maintained at SRO, North Paravur. 2. The petitioner-Bank states that the Bank sanctioned ₹180 lakhs and ₹22.50 lakhs to the 3[rd] respondent towards credit facilities. The 3[rd] respondent mortgaged 3.70 Ares of property in Survey No.60/14 in W.P.(C) No.26942/2023 : 4 : Moothakunnam Village covered by Ext.P1 Sale Deed No.4575/ 2006 dated 26.06.2006 of SRO, North Paravur. The land was mortgaged by deposit of Title Deed as per letter of deposit dated 23.07.2011. 3. When the 3[rd] respondent failed to maintain the credit facilities, the petitioner initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The mortgaged property was taken possession of by the Bank. SA No.311/2016 filed by the 3[rd] respondent in the Debts Recovery Tribunal-I Ernakulam, OS No.152/2016 in the Sub Court Ernakulam, OP(Crl) No.63/2017 and OP(DRT) No.149/2021, were all dismissed. SA No.317/2022 in the DRT and CC No.117/2014 in the State Consumer Forum are pending. 4. The Bank auctioned the mortgaged property and sold it to the 4[th] respondent. The 4[th] respondent remitted the entire sale consideration and Ext.P9 Sale Certificate was issued to him. When the petitioner obtained Ext.P10 W.P.(C) No.26942/2023 : 5 : Encumbrance Certificate in respect of the mortgaged property, it is revealed that there is an attachment of property dated 20.07.2023 clamped by the Additional Sub Court, North Paravur in OS No.118/2023. 5. As the mortgage created in favour of the Bank was at an earlier point of time, the Bank issued Ext.P11 letter to the 1[st] respondent-Sub Registrar requesting to efface the attachment from records. The Sub Registrar has not acted on Ext.P11 so far. The petitioner argued that after creation of equitable mortgage, subsequent attachment will stand effaced. 6. Heard. 7. The equitable mortgage created by the 3[rd] respondent was by deposit of Title Deed. The mortgage was created as per Letter of Deposit of Title Deed dated 23.07.2011. Ext.P2 is the letter of extension of equitable mortgage dated 03.05.2014. The court attachment by the Additional Sub Court, North Paravur in OS No.118/2023 is on 20.07.2023. Therefore, the attachment is admittedly after the W.P.(C) No.26942/2023 : 6 : creation of equitable mortgage. 8. Considering the effect of subsequent attachment effected in a property after creation of equitable mortgage, a Division Bench of this Court has held in _**Secretary, Keechery Service Co-operative Bank Ltd. v. Sajitha Nizar alias Sajitha P.M. and others** [2020 (6) KLT 68]_ that after creation of equitable mortgage of the property, subsequent attachment created in respect of the property will stand effaced. The property will be free of all encumbrances and it can be mutated in favour of auction purchaser, who purchased the property in SARFAESI proceedings. 9. This Court has taken a similar view in the judgment in _**Madhan S. v. Sub Registrar, Kollam and others** [2014 (1) KHC 249]_ . In view of the law laid down by this Court, the petitioner in this writ petition is liable to succeed. 10. The 1[st] respondent-Sub Registrar is therefore directed to consider Ext.P11 representation submitted by the petitioner with notice to the 5[th] respondent and take decision W.P.(C) No.26942/2023 : 7 : on effacement of the attachment in Ext.P10 Encumbrance Certificate and from the Books of Registry, in the light of the Division Bench judgment of this Court in _**Secretary, Keechery Service Co-operative Bank Ltd.**_ (Supra). The writ petition is disposed of as above. Sd/- **N. NAGARESH, JUDGE** aks/29.01.2024 W.P.(C) No.26942/2023 : 8 : ## **APPENDIX OF WP(C) 26942/2023** ## **PETITIONER'S EXHIBITS** **Exhibit P1 THE LETTER OF DEPOSIT OF TITLE DEED DATED 23.07.2011 Exhibit P2 THE TRUE COPY OF LETTER OF THE EXTENSION OF EQUITABLE MORTGAGE DATED 03.05.2014 Exhibit P3 THE TRUE COPY OF THE NOTICE WAS ACCEPTED BY THE 3RD RESPONDENT. NOTICE UNDER SECTION 13(2) DATED 25.04.2016 Exhibit P4 THE TRUE COPY OF THE NOTICE UNDER SECTION 13(4) DATED 02.07.2016 Exhibit P5 THE ORDER OF THE CHIEF JUDICIAL MAGISTRATES COURT ERNAKULAM DATED 05.10.2016 Exhibit P6 THE JUDGEMENT IN OP CRL 63/2017 DATED 17.03.2020 Exhibit P7 THE JUDGEMENT IN OP(DRT) 149/2021 DATED 15.11.2021 Exhibit P8 THE SALE NOTICE DATED 03.06.2023 ISSUED BY THE PETITIONER BANK Exhibit P9 THE 4TH DEFENDANT REMITTED THE SALE CONSIDERATION TO THE TUNE OF RS. 14,90,000/- AS PROVIDED UNDER THE SARFAESI ACT AND THE SECURITY INTEREST RULES. THE SALE CERTIFICATE DATED 29.07.2023 Exhibit P10 THE ENCUMBRANCE CERTIFICATE NO. 9727/2023 DATED 26.07.2023 Exhibit P11 THE LETTER DATED 31.07.2023 ISSUED BY THE PETITIONER BANK TO THE 1ST RESPONDENT Exhibit P10A ENCUMBRANCE CERTIFICATE NO 9728/23 DATED 26.07.2023 ISSUED BY SRO NORTH PARAVUR**