Unnikrishnan Komathodi vs The Tahsildar, Thrissur Taluk Office; The Village Officer, Tholur; The Sub Registrar, Mundoor; Central Bank of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY ,THE 24TH DAY OF JANUARY 2019 / 4TH MAGHA, 1940** ## **WP(C).No. 2225 of 2019** ## **PETITIONER:** **UNNIKRISHNAN KOMATHODI AGED 57 YEARS S/O.SANKUNNI, CHEROKODE, VALLAPUZHA, PALAKKAD DISTRICT, PIN-679336.** **BY ADV. SRI.K.T.SAJU** ## **RESPONDENTS:** |**1**|**THE TAHSILDAR**| |---|---| ||**THRISSUR TALUK OFFICE, THRISSUR DISTRICT-680020.**| |**2**|**THE VILLAGE OFFICER**| ||**VILLAGE OFFICE, THOLUR, THRISSUR DISTRICT-680020.**| |**3**|**THE SUB REGISTRAR**| ||**SUB REGISTRAR OFFICE, MUNDOOR, THRISSUR DISTRICT-**| ||**680541.**| |**4**|**THE CENTRAL BANK OF INDIA,**| ||**KAIPARAMBU BRANCH, KONNIKKARA GARDEN, KAIPPARAMBU,**| ||**THRISSUR DISTRICT, PIN-680546.**| ## **SRI.SAIGI JACOB PALATTY, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 2225 of 2019** **2** ## **ALEXANDER THOMAS, J.** --------------------------------- W.P.(C) No. 2225 of 2019 ------------------------- Dated this the 24th day of January, 2019 ## **JUDGMENT** The prayers in this Writ Petition (Civil) are as follows: a) Issue a writ of mandamus or such other writ, direction or order commanding respondents 1 to 3 to remove the entries relating to attachments effected over the property of the petitioner covered by Exhibit P1, made subsequent to the date of equitable mortgage, from relevant records expeditiously at any rate within a time frame to be fixed by this honorable court. b) Issue a writ of mandamus or such other writ, direction or order commanding respondents 1 and 2 to effect the mutation of the property of the petitioner covered by Exhibit P1 and accept land tax in respect of the said property expeditiously at any rate within a time frame to be fixed by this honourable court. c) Issue a Writ to declare that the property of the petitioner covered by Exhibit P1 Sale Certificate is free of all encumbrances as on 01.10.2018 and therefore the attachments mentioned in Exhibit P4 do not affect the petitioner in any manner. d) Issue such other writ, direction or order as is deemed just and necessary in the facts and circumstances of the case. ## 2. Heard Sri. K.T. Saju learned counsel for the petitioner and Sri. Saigi Jacob Palatty, learned Senior Government Pleader appearing for respondents 1 to 3. In the nature of the orders proposed to be passed in this Writ Petition, notice to contesting respondent no. 4 will stand dispensed with. 3. A borrower had secured a loan from the 4[th] respondentCentral Bank of India after mortgaging the subject property in favour of the said Bank on 18.08.2015 and due to defaults the 4[th] respondentBank had initiated SARFAESI proceedings, which culminated in the **WP(C).No. 2225 of 2019** **3** sale of the subject mortgaged property, which was confirmed in favour of the petitioner. Exhibit P-1 sale certificate has also been duly issued and the same has also to been registered with the 3[rd] respondent-Sub Registrar, Mundoor, Thrissur District. When the petitioner had approached the 2[nd] respondent-Village Officer for grant of mutation of transfer registry and for acceptance of basic land tax in respect of the subject property covered by Exhibit P-1, the 2[nd] respondent has refused to act upon the said request on the ground that encumbrances as per Serial No. 12 and 13 are noted in Exhibit P-4 encumbrances certificate issued in respect of the subject property based on the attachment orders granted by the civil court concerned to the plaintiffs in the said suit as against the very same borrower. 4. It is by now trite that pendency of attachment proceedings, revenue proceedings, civil suit, etc as in the instant case is no legal justification for the competent officials like respondents 1 and 2 to refuse the grant of mutation transfer of registry and to accept basic land tax in respect of the subject property. The said legal position is too elementary to require any citation of any judicial authority in that regard. However it may be apposite in this regard to observe that this Court in various decisions as in _**Tulasibhai v. State of Kerala,**_ reported in _**2010 (4) KLT 215**_ , _**Nevin Raju v. S. Basheer & Others,**_ reported in _**2015 (3) KLJ 197**_ , held **WP(C).No. 2225 of 2019** **4** consistently that pendency of revenue recovery proceedings, attachment proceedings, civil suit, etc, is no ground for the competent revenue officials to grant transfer of registry, mutation, etc, and that as there are no rules in the Transfer of Registry Rules, 1966 and the Kerala Land Tax Rules, 1972, which interdict the competent revenue officials from granting such mutation and transfer of registry on account of pendency of such proceedings. It is clearly adumbrated in Rule 16 of the Transfer of Registry Rules, 1966 that the summary enquiry contemplated under those rules for grant of mutation is only for the limited fiscal purpose to enable efficacious collection of revenue to public exchequer and grant of mutation of transfer of registry will not by itself create or extinguish title and any disputes regarding title, etc are to be adjudicated in the Civil Court and even if mutation is granted by the competent revenue officials, the same is liable to be revised consequent to any judicial verdicts that may be pronounced later on such disputed issues of title, ownership, etc. Hence it is only to be ordered and declared that the stand of respondents 1 and 2 in refusing the grant of mutation, transfer of registry acceptance of basic land tax in respect of the subject property covered by Exhibit P-1 on the ground of pendency of the attachment orders issued by the Civil Courts etc is illegal and ultravires and accordingly it is so ordered. **WP(C).No. 2225 of 2019** **5** 5. Accordingly it is so ordered that the 2[nd] respondent is directed to immediately take up the request of the petition for mutation, transfer of registry and acceptance of basic land tax and grant the same, if it is otherwise in order. Orders in this regard should be passed by the 2[nd] respondent- Village Officer, without much delay, preferably within a period of one month from the date of receipt of a certified copy of this judgment. As regards the second prayer of the petitioner in the matter of effacement and deletion of encumbrances by the 3[rd] and 2[nd] respondents from the registration records and revenue records are concerned, the following aspects are relevant. 6. It is stated that the mortgage on the subject property was created on 18.08.2015 in favour of the 4[th] respondent- Central Bank by the borrower concerned. It is stated that the attachment orders referred to Serial Nos. 12 and 13 as made out in Exhibit P-4 encumbrance certificate have been rendered on 21-11-2016, 11-122017 respectively. This Court in a series of decisions as in _**HDFC v. SRO [2011 (3) KLJ 561], Madhan S v. SRO [2014 (1) KLT 406]**_ has consistently held that the sale of the mortgage property in favour of the purchaser under sale certificate under the Recovery of Debts due to Banks and Financial Institution in 1993 or the SARFAESI Act 2003 etc, where the attachment orders have been issued after the mortgage, and under Sale Certificate under the Act **WP(C).No. 2225 of 2019** **6** will be free of all encumbrances and that the attachments effected subsequent to the mortgage created in favour of the Banks or Financial Institutions do not affect the title and ownership of the purchaser of the subject property and 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. Accordingly this Court has directed the Sub Registrar and the Village Officer concerned to efface the attachments effected subsequent to the mortgage from the relevant records. Otherwise those attachments would remain as a permanent taboo prejudicially affecting the marketability and title to the property even though they ceased to have any legal efficacy etc. 7. Accordingly it is ordered and declared that in case the impugned attachments orders have been rendered after the creation of the mortgage in the instant case, the same will cease to have any legal effect at the moment the sale has been confirmed under the Act, and in such a situation the 3[rd] respondent- Sub Registrar and the 2[nd] respondent- Village Officer, obliged to efface and delete such attachments from the registration/encumbrance records and the village/revenue records concerned without any further delay. 8. However it is to be noted that the petitioner has not arrayed the beneficiaries of the said attachment orders as respondents **WP(C).No. 2225 of 2019** **7** in this W.P(C). Accordingly it is ordered that the petitioner should file a proper application before the 3[rd] respondent-Sub Registrar, after arraying such beneficiaries of the attachment orders as respondents therein and requesting to efface such attachments from the encumbrance records. The petitioner should also produce a Certificate from the 4[th] respondent- Central Bank regarding the details of loan transaction and as to the exact date creation of the mortgage in respect of the subject property in favour of the 4[th] respondent Bank. The original as well as attested photocopy of Exhibit P-1 sale certificate may also be produced by the petitioner before the 3[rd] respondent, who after verification, will return the original of Exhibit P-1 to the petitioner. Thereafter the 3[rd] respondent will issue notices hearing to the petitioner and the beneficiaries of attachment orders and will determine limited factual issue as to whether the impugned attachment orders have been rendered after the creation of the mortgage in the instant case. If it is so found that the attachments have been rendered after the creation of the mortgage, then the 3[rd] respondent will immediately take steps to make as additional entries in respect of Book no. 1 of the subject property as envisaged in Sec. 89 (5) Registration Act, 1908 so as to delete and efface such attachments/ encumbrances from the encumbrance records. Thereafter, the petitioner will make an application for issuance of a fresh **WP(C).No. 2225 of 2019 8** encumbrance certificate after deletion of such encumbrances/ attachments and there upon the 3[rd] respondent shall issue a fresh encumbrance certificate to the petitioner after deleting such attachments provided the petitioner pays necessary fees/cost in that regard. 9. The 3[rd] respondent-Sub Registrar will complete necessary formalities in this regard without much delay, preferably within a period of six weeks from the date of production of a certified copy of this judgment. After securing the fresh encumbrance certificate on deletion of the attachment, petitioner will produce a copy of the same before the 3[rd] respondent- Village Officer, who there upon shall take steps to delete and efface such attachment from the Village/Revenue records. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. ## **Sd/-** ## **ALEXANDER THOMAS** ## **JUDGE** SVP **WP(C).No. 2225 of 2019** **9** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SALE CERTIFICATE NO.2044/1/2018 IN FAVOUR OF PETITIONER DATED 01/10/2018.** **EXHIBIT P2 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 27/11/2018.** **EXHIBIT P3 TRUE COPY OF THE REPLY GIVEN BY THE 2ND RESPONDNT DATED 27/11/2018. EXHIBIT P4 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE NO.11729/18 DATED 15/10/2018.** RESPONDENT'S EXHIBITS : NIL