Union Bank of India v Sub Registrar Pattom & Ors

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE N.NAGARESH`** ``` THURSDAY, THE 8[TH] DAY OF FEBRUARY 2024 / 19TH MAGHA, 1945 ``` ``` WP(C) NO. 14518 OF 2023 ``` ## **`PETITIONER:`** ``` UNION BANK OF INDIA VELLAYAMBALAM BRANCH BHADRANJALY, K.R. ELANKATH ROAD VELLAYAMBALAM, SASTHAMANGALAM PO THIRUVANANTHAPURAM REP. BY ITS DY. BRANCH MANAGER RATHEESH R, AGE 39, S/O. RAMAN CHETTIYAR, PIN – 695010 ``` ``` BY ADVS. ASP.KURUP SADCHITH.P.KURUP C.P.ANIL RAJ SIVA SURESH ``` ## **`RESPONDENTS:`** |**`1`**|**`THE SUB REGISTRAR`**| |---|---| ||**`SUB REGISTRAR OFFICE, PATTOM`**| ||**`THIRUVANANTHAPURAM, PIN - 695004`**| |**`2`**|**`THE TAHSILDAR`**| ||**`TALUK OFFICE`**| ||**`THIRUVANANTHAPURAM, PIN - 695023`**| |**`3`**|**`THE VILLAGE OFFICER`**| ||**`KUDAPPANAKKUNNU VILLAGE OFFICE`**| ||**`THIRUVANANTHAPURAM-, PIN - 695005`**| |**`4`**|**`RENJITH KURIAN`**| ||**`MERIDIAN HEIGHTS KOWDIAR,`**| ||**`THIRUVANANTHAPURAM, PIN - 695003`**| |**`5`**|**`K. GOPALAKRISHNAN IAS`**| ||**`S/O. M.P KALIANNAN,`**| ||**`5/231 MARIAMMAN KOIL THOTTAM`**| ||**`MUSAL NAICKAN PALAYAM`**| ``` WP(C) NO.14518 & 37310 OF 2023 ``` ``` 2 ``` ``` PARAMATHI VELUR T.K NAMAKKAL DISTRICT TAMIL NADU, PIN – 637203 ``` ``` BY ADVS. SREEJITH V.S-GOVERNMENT PLEADER BEJOY JOSEPH P.J. . JANI A M.RAMESH CHANDER (SR.)(R-284) GOVIND G. NAIR(K/001627/2018) BONNY BENNY(K/000234/2017) BALU TOM(K/498/2014) ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.02.2024, ALONG WITH WP(C).37310/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`WP(C) NO.14518 & 37310 OF 2023`** ``` 3 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE N.NAGARESH ``` ``` THURSDAY, THE 8[TH] DAY OF FEBRUARY 2024 / 19TH MAGHA, 1945 WP(C) NO. 37310 OF 2023 ``` ## **`PETITIONER:`** ``` RENJITH KURIAN AGED 40 YEARS MERIDIAN HEIGHTS, UPPER MERIDIAN ROAD, KURAVANKONAM, KOWDIAR. P.O., THIRUVANANTHAPURAM, PIN – 695003 ``` ``` BY ADV BEJOY JOSEPH P.J. ``` ## **`RESPONDENTS:`** - **`1 UNION BANK OF INDIA VELLAYAMBALAM BRANCH, BHADRANJALY, K.R. ELANKATH ROAD, VELLAYAMBALAM, SASTHAMANGALAM P.O., THIRUVANANTHAPURAM REP. BY ITS DY. BRANCH MANAGER RATHEESH. R, AGED 39, S/O. RAMAN CHETTIYAR., PIN - 695010`** - **`2 THE SUB REGISTRAR OFFICE OF THE SUB REGISTRAR OFFICE, PATTOM, THIRUVANANTHAPURAM, PIN - 695004`** - **`3 THE TAHSILDAR OFFICE OF THE TAHSILDAR, TALUK OFFICE, THIRUVANANTHAPURAM, PIN - 695023`** - **`4 THE VILLAGE OFFICER OFFICE OF THE VILLAGE OFFICER,`** ## **`WP(C) NO.14518 & 37310 OF 2023`** ``` 4 ``` ``` KUDAPPANAKKUNNU VILLAGE OFFICE, THIRUVANANTHAPURAM, PIN - 695005 ``` - **`5 K. GOPALAKRISHNAN IAS S/O. M.P. KALIANNAN, 5/231 MARIAMMAN KOIL THOTTAM, MUSAL NAICKAN PALAYAM, PARAMATHI VELUR T.K., NAMAKKAL DISTRICT, TAMIL NADU, PIN - 637203`** - **`6 RESERVE BANK OF INDIA CENTRAL OFFICE, MUMBAI REPRESENTED BY THE CHIEF GENERAL MANAGER, RESERVE BANK OF INDIA, DEPARTMENT OF REGULATION, CENTRAL OFFICE, WORLD TRADE CENTRE, CUFFE PARADE, MUMBAI, PIN - 400005`** - **`7 RAIJU K. THOMAS MRA 95, RC 21C/1235, THONDALIL EDENS, MANNADI KANE, KUDAPPANAKUNNU, PEROORKADA PO, THIRUVANANTHAPURAM, PIN - 695005`** - **`8 SILVIA RAIJU MRA 95, RC 21C/1235, THONDALIL EDENS, MANNADI KANE, KUDAPPANAKUNNU, PEROORKADA PO, THIRUVANANTHAPURAM, PIN - 695005`** - **`9 ASM BUSINESS SOLUTIONS INDIA PVT. LTD. REPRESENTED BY ITS DIRECTOR RAIJU K. THOMAS, MRA 95, RC 21C/1235, THONDALIL EDENS, MANNADI KANE, KUDAPPANAKUNNU, PEROORKADA PO, THIRUVANANTHAPURAM, PIN – 695005`** ``` BY ADV JANI A GP - SREEJITH. V. S A.S.P.KURUP-SC-R1 ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.02.2024, ALONG WITH WP(C).14518/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO.14518 & 37310 OF 2023 ``` ``` 5 ``` ## **JUDGMENT** Dated this the 8[th] day of February, 2024 W.P.(C) No.14518 of 2023 has been filed by the Union Bank of India seeking to declare that attachment effected over the secured asset by the 4[th] respondent will stand effaced in view of the sale held under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The petitioner further seeks to direct the 1[st] respondent to efface the attachment effected over the property covered by Exts.P2 and P3, as reflected in Ext.P4 Encumbrance Certificate and register the Sale Certificate issued by the petitioner-Bank to the 5[th] respondent on presentation of the same on payment of requisite stamp ## **`WP(C) NO.14518 & 37310 OF 2023`** ## **`6`** duty. 2. W.P.(C) No.37310 of 2023 has been filed by the 4[th] respondent in W.P.(C) No.14518 of 2023. The 4[th] respondent is the person, in whose favour the Civil Court has passed the attachment order. In W.P.(C) No.37310 of 2023, the 4[th] respondent seeks to set aside the sale of the property, which is the secured asset of the Bank in favour of the 5[th] respondent pursuant to Ext.P6 sale notice and to cancel the sale certificate issued to the 5[th] respondent by the 1[st] respondent. 3. I have heard the learned counsel for the petitioners, the learned Standing Counsel Counsel for the 1[st] respondent in W.P.(C) No.37310 of 2023, the learned Government Pleader representing respondents 1 to 3 in W.P.(C) No.14518 of 2023 and respondents 2 to 4 in W.P.(C) No.37310 of 2023, the learned counsel appearing for the 5[th] respondent in W.P.(C) No.37310 of 2023 and W.P.(C) ## **`WP(C) NO.14518 & 37310 OF 2023`** ``` 7 ``` No.14518 of 2023 and the learned counsel appearing for respondents 7 to 9 in W.P.(C) No.37310 of 2023. 4. The pleadings and arguments in the writ petitions would show that the secured assets were mortgaged to the Union Bank of India, who is the petitioner in W.P.(C) No.14518 of 2023. The mortgage was created on 28.10.2014. 5. Subsequently, at the instance of the 4[th] respondent in W.P.(C) No.14518 of 2023 (who is the petitioner in W.P.(C) No.37310 of 2023) the District Court, Trivandrum passed an attachment order over the secured asset in I.A.No.1 of 2022 in O.S.No.2 of 2022 of the Additional Sub Court, Thiruvananthapuram. 6. The Bank approached the Sub Registrar Officer and the Village Officer for effacing the said attachment order from the Revenue records based on the judgment of this Court in _**Madhan v. Sub Registrar** [2014 (1) KLT 406]_ . ## **`WP(C) NO.14518 & 37310 OF 2023`** ``` 8 ``` 7. In the judgment in _**Madhan**_ (supra), this Court held that attachment effected subsequent to the creation of equitable mortgage will be effaced after the property is purchased by another person in sale conducted by the Recovery Officer of the Debts Recovery Tribunal. Such attachment will not affect the title and ownership of the purchaser over the subject property. 8. Counsel for the 4[th] respondent in W.P.(C) No.14518 of 2023 (who is the petitioner in W.P.(C) No.37310 of 2023) argued that even in Ext.P5 terms and conditions of sale of immovable secured assets, the Bank at serial No.4, had made it clear that the bidders are required to make thereon enquiry and verify encumbrance from Registrar Office. In Clause 15 thereof, it was specifically stated that the Authorised Officer may, where the property sold is subject to any encumbrances, if he thinks fit, allow the purchaser to deposit with him the money required to discharge the ## **`WP(C) NO.14518 & 37310 OF 2023`** ``` 9 ``` encumbrance and any interest due thereon together with such additional amount that may be sufficient to meet the contingencies or further costs, expenses and interest as may be determined by him. On such deposit of money for discharge of encumbrance, the Authorised Officer may issue or cause the purchaser to issue the notices to the persons interested in or entitled to the money deposited with him and take steps to make the payment accordingly. In view of the categorical provisions published in Ext.P5, the 5[th] respondent ought to have verified with the Registry regarding the encumbrance on the property occurred in view of the attachment obtained by the 4[th] respondent. Failure of the 5[th] respondent will make the property purchased by him subject to the attachment passed by the Civil Court. 9. Counsel for the 4[th] respondent in W.P.(C) No.14518 of 2023 further submitted that whether any attachment orders passed by the competent Civil Court ``` WP(C) NO.14518 & 37310 OF 2023 ``` ``` 10 ``` should be effaced from Revenue records or encumbrance records is a matter affecting civil rights. The officials including Sub Registrars cannot be given power to efface such court attachment. The Bank or Secured Creditors or the purchasers of the property, will have to approach the competent Civil Court to get the effacement involved. 10. I have considered the arguments advanced by the 4[th] respondent. A Division Bench of this Court has considered the issue in the judgment in _**Ali Ashraf v. The Sub Registrar**_ [2015 (3) KLT Online 1117]. The Division Bench, after considering the law laid down by this Court in the case of _**Madhan**_ (supra), has declared that attachments effected by the Court in such circumstances are invalid. Consequently, the Division Bench gave necessary direction to the Sub Registrar and the Village Officer to efface the attachments effected after the mortgage. In the present case, it is not disputed that the attachment ordered by the Court was ``` WP(C) NO.14518 & 37310 OF 2023 ``` ``` 11 ``` subsequent to the mortgage. 11. In the circumstances, I do not find any reason not to direct the Sub Registrar and the Village Officer to efface the attachment from the records. 12. W.P.(C) No.14518 of 2023 is therefore disposed of directing the 1[st] respondent-Sub Registrar to efface the attachment effected over property covered by Exts.P2 and P3 as reflected in Ext.P4 Encumbrance Certificate and register the Sale Certificate issued by the petitioner-Bank to the 5[th] respondent on presentation of the same on payment of requisite stamp duty. In view of the above findings, the relief prayed for in W.P.(C) No.37310 of 2023 cannot be granted. The writ petition is however, disposed of reserving the rights of the petitioner in the suit pending before the Court. Sd/- **N.NAGARESH JUDGE** hmh ## **`WP(C) NO.14518 & 37310 OF 2023`** ``` 12 ``` ## **`APPENDIX OF WP(C) 14518/2023`** ``` PETITIONER EXHIBITS Exhibit P1A TRUE COPY OF THE DEMAND PROMISSORY NOTE DATED 28.10.2014 FOR RS. 70 LAKHS EXECUTED BY THE BORROWER ``` ``` Exhibit P2A TRUE COPY OF THE SALE DEED NO 1236/2011 OF PATTOM SUB REGISTRY ``` - **`Exhibit P3 A TRUE COPY OF THE MEMORANDUM OF DEPOSIT OF TITLE DEED DATED 28.10.2014 EVIDENCING MORTGAGE OF THE PROPERTY`** - **`Exhibit P4 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE DATED 31.3.2023 ISSUED FROM PATTOM SUB REGISTRY`** - **`Exhibit P5 A TRUE COPY OF THE SALE NOTICE DATED 6/3/2023 ISSUED BY THE PETITITONER`** - **`Exhibit P6 A TRUE COPY OF LETTER DATED 17/4/2023 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER`** ## **`RESPONDENT EXHIBITS`** ``` R4(A)PHOTOSTAT COPY OF THE PLAINT IN OS 2/2022 FILED BEFORE THE HON'BLE VACATION COURT (DISTRICT COURT), THIRUVANANTHAPURAM DATED 24.12.2021 R4(B)PHOTOSTAT COPY OF THE ATTACHMENT PETITION ALONG WITH THE AFFIDAVIT IN IA 1/2021 IN OS 2/2022 OF THE HON'BLE VACATION COURT (DISTRICT COURT), THIRUVANANTHAPURAM DATED 24.12.2021 ``` ``` R4(C)PHOTOSTAT COPY OF THE ORDER IN IA 1/2022 IN OS 2/2022 DATED 04.12.2021 OF THE HON'BLE VACATION COURT (DISTRICT COURT), THIRUVANANTHAPURAM R4(D)PHOTOSTAT COPY OF THE OBJECTION FILED BY THE DEFENDANTS IN IA NO.1/2022 IN OS ``` ## **`WP(C) NO.14518 & 37310 OF 2023`** ``` 13 ``` ``` 2/2022 R4(E)PHOTOSTAT COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS IN OS NO. 2/2022 ``` ## **`WP(C) NO.14518 & 37310 OF 2023`** ## **`14`** ## **`APPENDIX OF WP(C) 37310/2023`** ## **`PETITIONER EXHIBITS`** - **`Exhibit P1`** ``` PHOTOSTAT COPY OF THE PLAINT IN OS 2/2022 FILED BEFORE THE HON'BLE VACATION COURT (DISTRICT COURT), THIRUVANANTHAPURAM DATED 24.12.2021 ``` - **`Exhibit P2 PHOTOSTAT COPY OF THE ATTACHMENT PETITION ALONG WITH THE AFFIDAVIT IN IA 1/2021 IN OS 2/2022 OF THE HON'BLE VACATION COURT (DISTRICT COURT), THIRUVANANTHAPURAM DATED 24.12.2021`** - **`Exhibit P3 PHOTOSTAT COPY OF THE ORDER OF THE HON'BLE VACATION COURT (DISTRICT COURT), THIRUVANANTHAPURAM DATED 04.12.2021`** - **`Exhibit P4 PHOTOSTAT COPY OF THE OBJECTION FILED BY RESPONDENTS 7 TO 9 IN IA NO.1/2022 IN OS 2/2022`** - **`Exhibit P5 PHOTOSTAT COPY OF THE WRITTEN STATEMENT FILED BY RESPONDENTS 7 TO 9 IN OS NO. 2/2022`** ``` Exhibit P6THE PHOTOSTAT COPY OF THE SALE NOTICE DATED 06.03.2023 ISSUED BY THE 1ST RESPONDENT BANK TO RESPONDENTS 7 TO 9, AS PRODUCED BY THE 1ST RESPONDENT IN WPC 14518/2023 ```