V.V. Francis and Thressiamma Francis v. State of Kerala and Others

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` TUESDAY, THE 27[TH] DAY OF FEBRUARY 2024 / 8TH PHALGUNA, 1945 ``` ## `WP(C) NO. 3575 OF 2024` ## `PETITIONERS:` ``` 1V.V.FRANCIS AGED 75 YEARS S/O LATE V.F.VARUTHUNNI, VAZHAPPILLY HOUSE, KONTHURUTHY, THEVARA, ELAMKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN - 682013 2THRESSIAMMA FRANCIS AGED 69 YEARS W/O V.V.FRANCIS, VAZHAPPILLY HOUSE, KONTHURUTHY, THEVARA, ELAMKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN - 682013 BY ADVS. VARGHESE C.KURIAKOSE AMRITHA.J KURUVILLA MATHEW VIPIN C. VARGHESE ``` ## `RESPONDENTS:` - `1 STATE OF KERALA REP. BY SECRETARY, DEPT. OF REVENUE, SECRETARIAT, TRIVANDRUM, PIN - 695001` - `2 THE SUB REGISTRAR SUB REGISTRAR'S OFFICE, AYYANTHOLE, THRISSUR DISTRICT, PIN - 680003` - `3 THE VILLAGE OFFICER PULLAZHY VILLAGE, THRISSUR-KANJANY ROAD, PULLAZHY, THRISSUR DISTRICT, PIN - 680012` - `4 JAYA JOSE AGED 46 YEARS W/O C.J.GLENNY, ORLARIKKARA, ARANATTUKARA VILLAGE, THRISSUR, PIN - 680012` W.P.© No.3575 of 2024 : 2 : ``` 5C.J.GLENNY AGED 57 YEARS S/O CHEMMANNUR JOSEPH, ORLARIKKARA, ARANATTUKARAVILLAGE, THRISSUR, PIN - 680012 6THE STATE BANK OF INDIA STRESSED ASSET RECOVERY BRANCH, RS BUILDING, M.G.ROAD, ERNAKULAM REP. BY ITS CHIEF MANAGER, PIN - 682011 7THE SOUTH INDIAN BANK HEAD OFFICE, GROUND FLOOR MUNICIPAL OFFICE ROAD, THRISSUR REP BY CHIEF MANAGER., PIN - 680001 8THE TALUK SUPPLY OFFICER TALUK SUPPLY OFFICE, 1ST FLOOR, CIVIL STATION, AYYANTHOLE, AYYANTHOLE P.O., THRISSUR DISTRICT, PIN - 680003 9THE DISTRICT COLLECTOR THRISSUR DISTRICT, CIVIL STATION, AYYANTHOLE THRISSUR, PIN - 680003 BY ADVS. K.MADHUSOODANAN MATHEW JACOB (KUNNATHU)(K/398/2013) SYRIAC JOSEPH(K/304/1980) SRI RIYAL DEVASSY, GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.© No.3575 of 2024 : 3 : ## P.V.KUNHIKRISHNAN, J. --------------------------------------------- W.P.(C) No.3575 of 2024 -----------------------------------------------------Dated this the 27[th] day of February, 2024. ## JUDGMENT ## This writ petition is filed with the following prayers: (i) Issue a a writ, order or direction in the nature of Mandamus or other appropriate writ, directing the 2[nd] respondent to forthwith facilitate registration of the sale certificate in relation to the properties subject matter of Ext.P1 and P2 sale certificates without insisting for ROR certificate following the law laid down in Jacob.P.C. and Sainudheen. (ii) Issue a writ, order or direction in the nature of Mandamus or other appropriate writ directing the 2[nd] respondent to forthwith erase the attachment reflected in Ext.P3 encumbrance certificates, which is the result of entering into Book No. 1 of Ayyanthole sub registry, in Volume No. 1450 pages 45-46 with No.G1922/2010, in the interests of justice. W.P.© No.3575 of 2024 : 4 : (iii) Issue a writ, order or direction in the nature of mandamus or other appropriate writ, directing respondent No.3 - the Village Officer, to effect mutation in the name of the purchaser to whom the sale certificate will be issued and registered as and when registration is facilitated in terms of relief (i) mentioned supra. (iv) Allow the petitioner to recover the full costs incurred for the institution and conduct of the proceedings from respondent Nos.4 and 5. **==> picture [43 x 15] intentionally omitted <==** 2. Respondent Nos.4 and 5 are husband and wife and they are borrowers of the State Bank of India. They availed a loan from the State Bank of India and in connection with the loan transaction, they had created security interest over two items of property viz., a property having an extent of 8.09 Ares with a building comprised in Sy.No.145/4 of Pullazhy Village, Thrissur Taluk and another property having an extent of 7.39 Ares comprised in Sy.No.145/4 of Pullazhy Village, Thrissur W.P.© No.3575 of 2024 : 5 : Taluk. In connection with the above loan transaction, a security agreement was executed on 29.05.2015 and later, a letter of confirmation was given on 30.05.2015, is the submission. Therefore, it is submitted that w.e.f. 29.05.2015, the secured creditor, State Bank of India, the 6[th] respondent herein, was having a security interest over the above mentioned two items of properties. 3. It is submitted that due to the default committed by respondent Nos.4 and 5, the transaction became non-performing asset. Resultantly, the proceedings under the SARFAESI Act was initiated. It is submitted that even though, the SARFAESI proceedings are pending before the DRT-II, Ernakulam, there is no stay in force. Accordingly, the 6[th] respondent bank conducted sale in respect of the properties mentioned above and the petitioners participated in the auction and became successful auction purchasers. Sale certificates have been issued on 30.03.2023, is the submission. W.P.© No.3575 of 2024 : 6 : Exts.P1 and P2 are the sale certificates. 4. The grievance of the petitioners is that sale certificates have not been registered so far. Ext.P3 is the encumbrance certificate as far as the properties covered under Exts.P1 and P2. On a perusal of the same, it is revealed that the same contains encumbrance. According to the petitioners, Entry No.7 pertains to an attachment, that has been effected at the instance of the South Indian Bank through O.A.No.548/2018. This attachment pertains to the property having an extent of 8.09 Ares comprised in Sy.No.145/4 of Pullazhi Village, which is item No.1 referred above. This attachment is subsequent to the security interest created in favour of the State Bank of India, is the submission. In such circumstances, in the light of the dictum laid down in Madan.S. v. Sub Registrar, Kollam and Others [2014 (1) KHC 249], the authorities are bound to erase the encumbrance. W.P.© No.3575 of 2024 : 7 : 5. It is also submitted that the District Collector, Thrissur, has initiated revenue recovery proceedings in relation to the amount due to the Civil Supplies Corporation. It is submitted that these encumbrances were not reflected in the encumbrance certificate dated 27.12.2022. According to the petitioners, the attachments are subsequent to the creation of security interest and therefore, the same has no validity under law. It is also submitted that the attachments are made by unsecured creditors. Both the South Indian Bank and the Civil Supplies Department are not having any security interest created over the properties covered by Exts.P1 and P2, is the submission. It is also submitted that with a view to effect registration, the petitioners approached the Sub Registrar and the Village Officer but they informed the petitioners that in the absence of the certificate contemplated under the Record of Rights Act, they will not facilitate registration. It is submitted that there is no W.P.© No.3575 of 2024 : 8 : legal necessity for the same as held by this Court in several decisions. Representations were submitted before the 2[nd] and 3[rd] respondents, as evident by Ext.P4. The bank also addressed the authorities for lifting the attachment but there was no action from the authorities. Hence, this writ petition. 6. Heard the learned counsel for petitioners, the learned Government Pleader and the counsel appearing for the contesting respondents. 7. It is an admitted fact that the encumbrance mentioned in Ext.P3 certificate are all subsequent to the security interest created by the 6[th] respondent bank with respondent Nos.4 and 5. In the light of the dictum laid by this Court in Madan’s case (supra), the attachment is to be erased. Moreover, as far as RoR is concerned, the Registering Authority need not insist for RoR as a condition precedent for registration. This point is considered in Jacob.P.C. v. Village Officer, Ernakulam and W.P.© No.3575 of 2024 : 9 : Another [2020(4) KLT 271] and Sainudeen v. State of Kerala [2013(1)KHC 437]. 8. In the light of the above decisions, I am of the considered opinion that the insistence of RoR certificate is not necessary for registration. Therefore, this writ petition is disposed of with the following directions: (1) The 2[nd] respondent is directed to erase the attachment reflected in Ext.P3 encumbrance certificate forthwith, as expeditiously as possible, at any rate, within two weeks from the date of receipt of a copy of this judgment. (2) The 2[nd] respondent is directed to forthwith facilitate the registration of the sale certificates in relation to the properties covered under Exts.P1 and P2 sale certificates, without insisting for RoR cetificate. (3) Once the registration is complete, the 3[rd] respondent will do the needful to effect mutation in accordance with law. Sd/- ## P.V.KUNHIKRISHNAN, JUDGE smv W.P.© No.3575 of 2024 : 10 : ## `APPENDIX OF WP(C) 3575/2024` |`PETITIONERS’`|`EXHIBITS`| |---|---| |`Exhibit P1`|`TRUE PHOTOSTAT COPY OF THE SALE`| ||`CERTIFICATE`<br>`DATED`<br>`30.03.2023`| ||`PERTAINING TO 7.39 ARES COMPRISED IN`| ||`SY NO.145/4 OF PULLAZHY VILLAGE`| |`Exhibit P2`|`TRUE PHOTOSTAT COPY OF THE SALE`| ||`CERTIFICATE`<br>`DATED`<br>`30.03.2023`| ||`PERTAINING TO 8.09 ARES COMPRISED IN`| ||`SY NO.145/4 OF PULLAZHY VILLAGE`| |`Exhibit P3`|`TRUE PHOTOSTAT COPY OF THE ENCUMBRANCE`| ||`CERTIFICATE DATED 14.08.2023`| |`Exhibit P4`|`TRUE`<br>`PHOTOSTAT`<br>`COPY`<br>`OF`<br>`THE`| ||`REPRESENTATION`<br>`DATED`<br>`01.09.2023`| ||`SUBMITTED BY THE PETITIONERS BEFORE`| ||`2ND AND 3RD RESPONDENTS.`| |`Exhibit P5`|`TRUE`<br>`PHOTOSTAT`<br>`COPY`<br>`OF`<br>`THE`| ||`COMMUNICATION`<br>`DATED`<br>`01.09.2023`| ||`SUBMITTED BY THE PETITIONERS TO THE`| ||`STATE BANK OF INDIA.`| W.P.© No.3575 of 2024 : 11 :