Vijayan T K Ag v. Sub Registrar, Koovappady Village Office, and State Bank of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 26[TH] DAY OF MARCH 2024 / 6TH CHAITHRA, 1946 WP(C) NO. 11300 OF 2024** ## **PETITIONER(S):** **VIJAYAN T K AGED 59 YEARS S/O KRISHNAN, THAZHATHEKUDY, THODAPARAMBU, KOOVAPADY P.O., KOCHI, PIN - 683544** **BY ADV PRAVEEN K. JOY** ## **RESPONDENT(S):** - **1 THE SUB REGISTRAR SUB REGISTRAR OFFICE, MINI CIVIL STATION, POOPANI ROAD, PALLIKKARA, PERUMBAVOOR, PIN - 683542** - **2 THE VILLAGE OFFICER KOOVAPPADY VILLAGE OFFICE KOOVAPPADY, PIN - 683544** - **3 THE AUTHORIZED OFFICER STATE BANK OF INDIA MG ROAD, ERNAKULAM, PIN - 682011** **BY ADV.** **SRI.B.S.SYAMANTAK, GP, SRI.JAWAHAR JOSE, SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.11300 of 2024 2 ## **P.V.KUNHIKRISHNAN, J.** **--------------------------------------------W.P.(C) No. 11300 of 2024 -----------------------------------------------------Dated this the 26[th] day of March, 2024.** ## **JUDGMENT** This writ petition is filed by the petitioner seeking the following reliefs: “i) Issue a writ of mandamus or any other appropriate writ or order commanding the 1st respondent to register the sale certificate taking note of dictums in Rajalekshmi Amma v. E.A. Basheer & Others [2013 (4) KLT 443}] Madhan S. v. Sub Registrar, Kollam and Others [2014 (1) KHC 249] and Secretary, Keechery Service Cooperative Bank Ltd. v.Sajitha Nizar alias Sajitha P.M. and Others [2020(6) KLT 68], in the interest of justice. ii) Issue a writ of mandamus or any other appropriate writ or order commanding the 2nd respondent to efface the attachment from the revenue records, in the interest of justice. (iii) To dispense with the English translation of the documents produced in Vernacular Language. W.P.(C) No.11300 of 2024 3 iv) To grant such other reliefs which this Hon'ble Court may deem fit and proper in the interest of justice.”[SIC] 2. Petitioner is aggrieved by the refusal of the 1[st] respondent to register the sale certificate issued by the 3[rd] respondent on the ground that the property is having attachments from the District Court. The property is obtained by the petitioner as per the Sale certificate obtained under the SARFAESI ACT. Ext.P1 is the sale certificate issued by the 3[rd] respondent. It is submitted that one Mr. Ranjith M. Balan who was the previous owner of the said property availed a loan from the 3[rd] respondent after mortgaging the above said property. Thereafter the borrower committed default in the repayment and the bank classified the loan as Non-Performing Asset and initiated proceedings under the SARFEASI Act. Thereafter the bank issued E-auction sale notice for sale of the W.P.(C) No.11300 of 2024 4 immovable property under the SARFAESI Act. The petitioner purchased the property by virtue of Sale certificate. According to the petitioner, the property is the secured asset of the 3[rd] respondent. It is submitted that subsequent to the purchase of the property the petitioner had given application for registration of the above said property before the Sub Registrar's office, Perumbavoor. It is the case of the petitioner that the 1[st] respondent refused to register the same on the ground that the property is having attachments from the District Court. The Encumbrance Certificate shows that the mortgaged property had been attached by the District Court-III, Emakulam in O.P (Arbitration) No.862/2017 in favour of SML Finance Ltd. According to the petitioner, he is the actual purchaser of the said property and the Bank issued sale certificate to the petitioner. Ext.P2 is W.P.(C) No.11300 of 2024 5 the Encumbrance Certificate. It is also submitted that the Arbitration (OP) itself was rejected by the Court on 23.11.2017 as evident by Ext.P3. It is submitted that, even after the dismissal of O.P (Arbitration), the attachment dated 23.10.2017 in the property still exist. It is submitted that after knowing that there is an attachment, the petitioner approached the District Court -III Ernakulam for lifting the attachment as evident by Ext.P4. It is submitted that there was no sitting in that court and therefore orders are not passed. The contention of the petitioner is that the attachment of the property by the District court was on 23.10.2017. The previous owner of the property purchased the same in the year 2015 by way of Sale Deed No. 234/15 of SRO Perumbavoor dated 16.01.2015 and mutation also effected. The petitioner obtained the property on W.P.(C) No.11300 of 2024 6 06.09.2023. It is submitted that the attachment effected subsequent to the creation of equitable mortgage and therefore, it will not affect the right of the Bank to sell the mortgaged property and the 1[st] respondent is bound to register the sale certificate. The petitioner relied on the judgments of this Court in **Rajalekshmi Amma v. E.A. Basheer & Others** [2013 (4) KLT 443: ILR 2013 (4) Ker.385: 2013 (4) KLJ 754], **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 the decision of a Division Bench of this Court 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]. The petitioner also produced Exts.P5 and P6 judgments of this Court W.P.(C) No.11300 of 2024 7 which were passed in a similar circumstance. It is submitted that, in **Madhan** 's case (supra) it is held that the attachment loses its efficacy, as the mortgage is prior to the attachment. Hence this Writ petition is filed. 3. Heard the learned counsel appearing for the petitioner, the learned Government Pleader and the learned Standing Counsel appearing for the 3[rd] respondent. 4. It is an admitted fact that the attachment of the property is subsequent to the mortgage in favour of the 3[rd] respondent bank. If that be the case, in the light of the dictum laid down by this Court in the above referred judgments, the attachment is to be effaced. Moreover, the attachment was effected in O.P (Arbitration) No.862/2017. That Original Petition itself is W.P.(C) No.11300 of 2024 8 dismissed as evident by Ext.P3. The petitioner already approached the court concerned to lift the attachment as evident by Ext.P4. Whatever that may be, it is an admitted fact that the attachment is subsequent to the mortgage in favour of the 3[rd] respondent. Therefore, there can be a direction to the 1[st] respondent to efface the attachment. Therefore, this Writ Petition is disposed of with the following directions: 1. The 1[st] respondent is directed to efface the attachment of the II Additional District Judge, Ernakulam in O.P (Arbitration) No.862/2017 from Book No.1 by filing the certified copy of this judgment in the said book. 2. The 1[st] respondent is directed to register the Sale certificate on payment of required stamp duty and W.P.(C) No.11300 of 2024 9 registration fee, if the same is otherwise in order. 3. The above exercise shall be completed, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a copy of this judgment. Sd/- **P.V.KUNHIKRISHNAN JUDGE** DM W.P.(C) No.11300 of 2024 10 ## **APPENDIX OF WP(C) 11300/2024** **PETITIONER EXHIBITS EXHIBIT P1 TRUE PHOTOCOPY OF THE SALE CERTIFICATE ISSUED BY THE 3RD RESPONDENT DATED 06.09.2023 EXHIBIT P2 TRUE COPY OF RELEVANT PAGES OF ENCUMBRANCE CERTIFICATE DATED 24.07.2023 OF THE PROPERTY OF PETITIONER EXHIBIT P3 TRUE COPY OF THE ORDER IN OP (ARBITRATION) NO.862/2017 DATED 23.11.2017 OF DISTRICT COURT-III, ERNAKULAM. EXHIBIT P4 TRUE COPY OF THE IA NO.01/2023 IN AOP NO.862/2017 DATED 08.09.2023 EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN WPC NO.30178/2023 THE STATE BANK OF INDIA VS THE SUB REGISTRAR AND OTHERS DATED 29.09.2023 EXHIBIT P6 TRUE COPY OF THE JUDGMENT IN WP (C) NO.32051/2014 DATED 01.12.2014 RESPONDENTS EXHIBITS: NIL** ## **//TRUE COPY//** **PA TO JUDGE**