UCO Bank, Thrissur Branch v Sub Registrar Erumapetti and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **WEDNESDAY, THE 20[TH] DAY OF DECEMBER 2023 / 29TH AGRAHAYANA, 1945** ## **WP(C) NO. 17839 OF 2022** ## **PETITIONER:** ## **UCO BANK,** **THRISSUR BRANCH, PANIKKERS TOWER, 1ST FLOOR, ASHWIN JUNCTION, THRISSUR, KERALA – 680 020, REPRESENTED BY ITS AUTHORIZED OFFICER (CHIEF MANAGER), BENOY JOSE, AGED 34, S/O C.D JOSE, NOW WORKING AT UCO BANK, PALGHAT BRANCH, MARKET ROAD, PALAKKAD – 678 014.** ## **BY ADV BIJU HARIHARAN** ## **RESPONDENTS:** - **1 SUB REGISTRAR, OFFICE OF THE SUB REGISTRY OFFICE, ERUMAPETTI P.O, PIN – 680 584, THRISSUR DISTRICT.** - **2 ASHWATHY EXPORTERS AND MARKETING NETWORK, T.C 49/721, AYYANTHOLE P.O, THRISSUR – 680 013, REPRESENTED BY ITS PROPRIETOR K.V RAMESH.** - **3 T.V BALAKRISHNAN, AGED 59 YEARS, S/O VELAYUDHAN, "KARNAT HOUSE", KANDASSANKADAVU, THRISSUR – 680 613.** - **4 K. V. RAMESH, AGED 55 YEARS, S/O. VELAYUDHAN, "KARNAT HOUSE", KANDASSANKADAVU, THRISSUR – 680 613.** - **5 K. G SANTHOSH KUMAR, AGED 36 YEARS, S/O. GANGADHARAN, KOCHATH HOUSE, ERUMAPETTY P.O, THRISSUR DISTRICT - 680 584.** - **6 BIJU K. LONAPPAN, AGED 48 YEARS, S/O. LONAPPAN, RESIDING AT "KOMBARA HOUSE", NEAR KARSHAKA NAGAR, AYYANTHHOLE P. O, THRISSUR – 680 003.** - **7 STATE BANK OF INDIA, LHO THIRUVANANTHAPURAM, ROTARY JUNCTION, POOJAPPURA, THIRUVANANTHAURAM KERALA - 695 012.** - **SRI. SUNIL SHANKAR SRI. K.K.CHANDRAN PILLAI (SR.) S.AMBILY VIDHYA KISHAN JERIN GEORGE** ## **SRI. JITHESH MENON - SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.12.2023, THE COURT 20.12.2023 DELIVERED THE FOLLOWING:** W.P(C) 17839/2022 2 ## **JUDGMENT** The Petitioner Bank has filed this writ petition for a direction to the 1[st] respondent Sub Registrar to register Ext. P5 Sale Certificate in the name of the 6[th] respondent auction purchaser. 2.The 2[nd] respondent firm availed credit facilities from the petitioner Bank by mortgaging the property belonging to 5[th] respondent having an extent of 125 cents in Sy No 880/P, Kadangode Village, Trichur District. The equitable mortgage by deposit of title deed was created on 30.11.2004. Since respondents 2, 3 and 4, the borrowers, defaulted payment of installments, the petitioner initiated proceedings under the SARFAESI Act and the property was sold to the 6[th] respondent in auction. Ext.P5 is the Sale Certificate issued to the 6[th] respondent on 04.06.2020. W.P(C) 17839/2022 3 3.When the 6th respondent made arrangements to get the Sale Certificate registered, the 1[st] respondent, the Sub Registrar refused to register the same for the reason that there is an attachment over the property. The attachment is ordered by the Debts Recovery Tribunal, Ernakulam in favour of the 7[th] respondent Bank on 13.10.2010. The petitioner states that equitable mortgage in favour of the petitioner Bank was created on 30.11.2004 and the attachment in favour of the 7[th] respondent Bank was effected on 13.10.2010. Therefore the petitioner contends that the attachment effected subsequent to the creation of equitable mortgage has to be effaced after the property is purchased in the sale conducted under the SARFAESI Act. 4. Heard the learned counsel for the petitioner, the learned Government Pleader, the learned counsel W.P(C) 17839/2022 4 for the 6[th] respondent and the learned Standing Counsel for the 7[th] respondent. Though notice was taken to respondents 2 to 5 by paper publication, there is no appearance. 5.The learned counsel for the petitioner relied on the decision of this Court 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 contends that the attachment effected subsequent to the creation of equitable mortgage will not affect the right of the Bank to sell the mortgaged property and the attachment has to be effaced from the encumbrance register. 6. In Madhan's case (supra), this Court held in paragraph 9 as follows:- _“9. The preponderance of judicial_ _opinion leads to the irresistible_ W.P(C) 17839/2022 5 _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 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 petitioner. The confirmed in favour of the declaration so sought by the petitioner is therefore granted and I further direct the Sub-Registrar and_ W.P(C) 17839/2022 6 _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.”_ 7. A Division Bench of this Court in **Ali Asharaf** **M.M. and Another** _**v**_ **. Sub Registrar, Thrissur (Judgment dated 24.7.2015 in W.A. No.612/2015)** has affirmed the law laid down in W.P(C) 17839/2022 7 Madhan's case. In **Secretary, Keechery Service Cooperative 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],** another Division Bench of this Court also affirmed the law laid down in Madhan's case (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_ W.P(C) 17839/2022 8 _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 property effected after 27/06/2014, the date on which the property in question was mortgaged with FederalBank”._ Thus it is trite law that attachment effected subsequent to the creation of equitable mortgage does not have any effect on the sale conducted by the Bank under the SARFAESI Act and has to be effaced from W.P(C) 17839/2022 9 the encumbrance register. The equitable mortgage in favour of the petitioner Bank was created on 30.11.2004 and the attachment in favour of the 7[th] respondent Bank was effected subsequently on 13.10.2010. Accordingly, there will be a direction to the 1st respondent to register Ext. P5 sale certificate as and when presented by the 6[th] respondent, if the same is otherwise in order. The writ petition is disposed of. Sd/- **MURALI PURUSHOTHAMAN** **JUDGE** SPR W.P(C) 17839/2022 10 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXHIBIT P1 TRUE COPY OF SALE DEED NO.1997/2004, DATED 12.10.2004 OF ERUMAPETTI SUB REGISTRY OFFICE).** **EXHIBIT P2 THE TRUE COPY OF THE MEMORANDUM OF DEPOSIT OF TITLE DEED, DATED 01.12.2004.** **EXHIBIT P3 TRUE COPY OF THE DEMAND NOTICE DATED 06.01.2007. EXHIBIT P4 TRUE COPY OF POSSESSION NOTICE DATED 06.06.2007. EXHIBIT P5 TRUE COPY OF SALE CERTIFICATE DATED 04.06.2020. EXHIBIT P6 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE NO 6626/19, DT 29.11.2019.** ## **RESPONDENTS EXHIBITS: NIL.**