Vijayakumar v. The Tahasildar (LR), Taluk Office, Kollam; The Village Officer, Vadakkevila Village, Kollam; The Sub Registrar, Eravipuram, Kollam; Authorized Officer/Chief Manager, The Federal Bank Ltd., Kollam-Kottarakkara Branch

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY ,THE 19TH DAY OF FEBRUARY 2019 / 30TH MAGHA, 1940 WP(C).No.4665 of 2019** ## **PETITIONER/S:** **MR. VIJAYAKUMAR, AGED 46 YEARS S/O.BALAKRISHNAN, RESIDING AT THOTTUMKARA VEEDU, AYATHIL P.O., KOLLAM-691017. BY ADV. SRI.R.REGHUTHAMAN** ## **RESPONDENT/S:** **1 THE TAHASILDAR (LR), TALUK OFFICE, KOLLAM-691001. 2 THE VILLAGE OFFICER, VADAKKEVILA VILLAGE, KOLLAM-691010. 3 SUB REGISTRAR, ERAVIPURAM, KOLLAM-691011. 4 AUTHORISED OFFICER/CHIEF MANAGER, THE FEDERAL BANK LTD., KOTTARAKARA BRANCH, KOLLAM-691508.** ## **OTHER PRESENT:** **SRI.JESTIN MATHEW, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ::2:: **WP(C).No.4665 of 2019** ## **ALEXANDER THOMAS, J** . ----------------------------W.P(C).No.4665 Of 2019 --------------------------------- Dated this the 19[th] day of February, 2019. ## **J U D G M E N T** The petitioner is aggrieved by the refusal on the part of respondents 1 & 2 to mutate the subject property covered by Ext.P-1 sale certificate in his favour on the ground that attachment has been affected after the creation of the mortgage of the subject property in favour of the financial institution concerned noting as encumbrance, etc. The prayers in the above Writ Petition (Civil) are as follows: - _“(i) To issue a writ of mandamus, order or direction to the respondents 1 to 3 to mutate the property of the petitioner purchased in auction from the 4[th] respondent bank and to receive the property tax from the petitioner without recording the attachment created after the mortgage._ - _(ii) To issue a writ of mandamus, order or direction to the respondents 1 to 3 remove the adverse entries in the entries in the relevant registers regarding the attachment by the Munsiff's Court, Kollam against the secured asset subsequent to the creation of the mortgage._ _(iii) Such other writ or direction which this Hon'ble Court may deem fit and proper on the facts and circumstances of the case and in the interest of justice.”_ 2. It is stated that the 4[th] respondent-Federal Bank had advanced a loan to a borrower, one Harsha Kumar, after mortgaging the subject property involved in this case on 3.8.1999, which was owned by the said borrower, in favour of the said bank. ::3:: ## **WP(C).No.4665 of 2019** When the borrower has consistently defaulted the loan transaction the 4[th] respondent-bank had taken recourse to the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI), and the sale of the subject property was conducted in accordance with the provisions contained in the SARFAESI Act wherein the petitioner had purchased the said property and Ext.P-1 sale certificate dated 24.2.2009 has been issued in favour of the petitioner. It is stated that the subject properties are having an extent of 3.21 ares in Sy.Nos.416/13 & 417/3 and an extent of 3.75 ares in Sy.No.416/29 of Vadakkevila Village, Kollam Revenue District. The abovesaid properties were purchased by the petitioner in the public auction conducted by the 4[th] respondent pursuant to the orders of the Debt Recovery Tribunal in O.A.No.228/2005. When the petitioner sought mutation of the subject property covered by Ext.P-1, respondents 1 & 2 are refusing the same on the ground that attachment orders have been secured by other creditors against the very same borrower as has been noted as encumbrance in the subject property which was subsequently owned by the said borrower. The petitioner seeks directions to the 2[nd] respondent Village officer to ensure grant of mutation and transfer of registry ::4:: ## **WP(C).No.4665 of 2019** and acceptance of basic land tax in respect of the subject property covered by Ext.P-1 without any further delay. So also the petitioner seeks directions to the 3[rd] respondent-SRO as well as the 2[nd] respondent-Village Officer to efface and delete the attachment noted as encumbrance in respect of the subject property on the ground that the said attachment orders have been issued after the creation of the mortgage in favour of the 4[th] respondent Bank. 3. As regards the first prayer, it is to be noted that it is by now well established that mere pendency of revenue recovery proceedings, attachemnt proceedings and civil proceedings, etc., in cases as in the instant one will not be a sufficient legally justiciable ground for the competent revenue officials like respondents 1 & 2 to refuse mutation and acceptance of basic land tax in respect of the subject property concerned from the land holder concerned. Therefore, merely because attachment orders have been rendered by the civil court at the instance of the other creditors against the very same borrower as against the subject property is not a ground for the competent revenue officials like respondents 1 & 2 to refuse grant of mutation. If the property has been duly mutated in favour of predecessor and basic land tax has been accepted from him then such predecessor is the registered land holder and on ::5:: ## **WP(C).No.4665 of 2019** assignment of the said property through due process of law the assignee of such registered land holder would fulfil the definition of “land holder” as understood in Sec.3(3)(d) of the Kerala Land Tax Act and Sec.5(2) of the said Act mandates that the competent revenue officials like respondents 1 & 2 are obliged in law to collect land tax in respect of the property concerned from the “land holder” as understood in Sec.3(3). Hence going by the cumulative impact of mandate of Secs.5(2) and 3(3) of the Kerala Land Tax Act, the competent revenue officials like respondents 1 & 2 are obliged to grant mutation, transfer of registry and acceptance of basic land tax from the assignee of the land holder, who will be the land holder as understood in Sec.3(3)(d) of the Kerala Land Tax Act. 4. Accordingly, it is ordered that the 2[nd] respondentVillage Officer will take up the request for mutation, grant of transfer of registry and acceptance of basic land tax and after affording a reasonable opportunity of being heard to the petitioner, if it is otherwise in order, within one month from the date of production of a certified copy of this judgment. It is made clear that the respondents 1 & 2 cannot refuse mutation and transfer of registry of the subject property on the ground that attachment has ::6:: **WP(C).No.4665 of 2019** been issued by the civil court concerned. 5. As regards the second prayer it is stated by the petitioner that attachment order noted as encumbrances has been issued after the creation of the mortgage on 3.8.1999 in respect of the subject property by the borrower in favour of the 4[th] respondent-Bank. It has been held by this Court in cases as in _**Housing Development Finance Corporation v. Sub Registry Officer**_ **,** reported in 2011 (3) KLJ 561 **,** _**Madhan v. Sub Registrar**_ **,** reported in 2014 (1) KLT 406 that in such cases, where attachment orders have been issued after the date of creation of the mortgage, then such attachment will have no legal efficacy, the moment the sale is confirmed in favour of the purchaser under the enactment like SARFAESI Act and Recovery of Debts due to Banks and Financial Institutions Act, 1993, etc., and such attachment would fall to the ground the moment sale has been confirmed and the same has no legal efficacy in the eye of law and that the SRO concerned and the Village Officer concerned are obliged in such cases to efface and delete attachment from the subject property concerned. 6. Accordingly, it is ordered and declared that if in the instant case, the impugned attachment noted as encumbrance in ::7:: **WP(C).No.4665 of 2019** respect of the subject property has been rendered after the creation of the mortgage, then such attachment will have no efficacy and will fall to the ground the moment the sale has been confirmed. Since the petitioner has not arrayed the beneficiary of the impugned order, the petitioner may file a separate application before the 3[rd] respondent-SRO after arraying the beneficiary of attachment order as a respondent therein and also produce a certificate from the 4[th] respondent-Bank showing the exact date of creation of the mortgage of the subject property covered by Ext.P-1 in favour of the 4[th] respondent-Bank. The 3[rd] respondent-SRO will thereafter issue notice to the holder/holders of attachment order/orders and will decide the 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 found that the attachments have been rendered after the date of creation of the mortgage in question, then the 3[rd] respondent will make additional entries in Book No.I in respect of the subject property as envisaged under Sec.89(5) of the Registration Act so as to efface and delete such attachment which has been rendered after the creation of mortgage from the encumbrance records. Thereafter, the petitioner may make an application for fresh Encumbrance ::8:: ## **WP(C).No.4665 of 2019** Certificate and after deletion and effacement of such attachment before the 3[rd] respondent-SRO who will then issue a fresh Encumbrance Certificate after deletion and effacement of such attachment subject to the petitioner paying necessary cost/fee in that regard. Thereafter the petitioner may produce a copy of Encumbrance Certificate so issued by the 3[rd] respondent after deletion and effacement of attachment before the 2[nd] respondent, who thereafter will take immediate steps to efface and delete the attachment in respect of the subject property from the village/revenue records concerned. However, it is made clear that the 2[nd] respondent will have to comply with the first direction for mutation, transfer of registry and acceptance of basic land tax in respect of the subject property from the petitioner, without much delay, within the abovesaid time limit and he shall not wait for effacement of the attachment order. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. **Sd/ALEXANDER THOMAS, Judge.** bkn/- ::9:: **WP(C).No.4665 of 2019** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE SALE CERTIFICATE DATED 24.02.2009 ISSUED IN FAVOUR OF THE PETITIONER.** **EXHIBIT P2 THE TRUE COPY OF THE LETTER DATED 03.08.99 ISSUED BY THE MORTGAGER IN FAVOUR OF THE 4TH RESPONDENT BANK BY DEPOSITING THE TITLE.** **EXHIBIT P3 A TRUE COPY OF THE SUBMISSION ISSUED TO THE 1ST RESPONDENT.**