UCO Bank, Munambam Branch v. Sub Registrar, North Paravur & Others
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
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 Name | Citation | Treatment | Explanation |
|---|---|---|---|
| Secretary, Keechery Service Co-operative Bank Ltd. v. Sajitha Nizar alias Sajitha P.M. and others | 2020 (6) KLT 68 | Positive | Held 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 others | 2014 (1) KHC 249 | Positive | Court took a similar view supporting effacement of later attachments post-equitable mortgage. |
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