W.A. No.1233 / 2023

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE THE CHIEF JUSTICE MR.S.V.N.BHATTI ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI ``` ``` MONDAY, THE 10[TH] DAY OF JULY 2023 / 19TH ASHADHA, 1945 ``` **==> picture [145 x 9] intentionally omitted <==** ``` (AGAINST THE JUDGMENT IN WP(C)14353/2023 OF HIGH COURT OF ``` ``` KERALA) ``` ``` APPELLANT/6[TH] RESPONDENT: ``` ``` BIJU VARGHESE, AGED 53 YEARS, S/O.VARGHESE, NEREPARAMBIL HOUSE, KALLETTUMKARA VILLAGE, KALLETTUMKARA DESOM, KALLETTUNKARA P.O, CHALAKUDY TALUK, THRISSUR DISTRICT, PIN – 680 683 BY ADV N.L.BITTO ``` ## **`RESPONDENTS/PETITIONER, RESPONDENTS 1 TO 5 IN THE WRIT PETITION:`** ``` 1STATE BANK OF INDIA, ASSET RECOVERY MANAGEMENT BRANCH, R.S BUILDING, M.G.ROAD, KOCHI, ERNAKULAM DISTRICT-682 016, REPRESENTED BY ITS CHIEF MANAGER AND AUTHORISED OFFICER. ``` ``` 2SUB REGISTRAR, REGISTRAR OFFICE, CHERPPU, THRISSUR DISTRICT, PIN – 680 561. ``` ## _W. A. No.1233 / 2023_ ``` 3M/S.MATHA CHAIN CUTTING, (BORROWER) REPRESENTED BY PROPRIETOR JEO VARGHESE E., S/O.VARGHESE, ELINJIKKADAN HOUSE, KALLATTUMKARA.P.O, CHALAKUDY TALUK, THRISSUR DISTRICT – 680 683 4JEO VARGHESE, S/O.VARGHESE, ELINJIKKADAN HOUSE, KALLATTUMKARA.P.O , CHALAKUDY TALUK, THRISSUR DISTRICT, PIN – 680 683 5MEJO VARGHESE, S/O.VARGHESE, ELINJIKKADAN HOUSE, KALLATTUMKARA.P.O , CHALAKUDY TALUK, THRISSUR DISTRICT, PIN – 680 683 6SANTO P. ANTO, S/O.ANTO, PELLISSERY HOUSE, MULLAKKARA ROAD, PARALAM, AMMADAM, THRISSUR DISTRICT, PIN – 680 563 BY ADV S.EASWARAN SENIOR GOVERNMENT PLEADER, SRI.V.TEKCHAND ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _W. A. No.1233 / 2023_ ## JUDGMENT _(Dated: 10[th] July, 2023)_ ## Basant Balaji, J The 6[th] respondent in W.P.(C)No.14353 of 2023 is the appellant. The 1[st] respondent was the petitioner. The petitioner filed the writ petition for the following reliefs: _a. Issue a writ of mandamus and or other appropriate writs, directions or order directing the 1[st] respondent to register Exhibit-P6 sale certificate and register the same on presentation of the same on payment of requisite stamp duty,_ _b. Issue a writ of mandamus and or other appropriate writs directions or order directing the 1[st] respondent to efface the attachment effected over Exhibit-P6 sale certificate as evident from Exhibit-P7 encumbrance certificate,_ _c. Grant such other relief deem fit under the circumstances of the case,_ _d. Dispense with filing of the translation of vernacular documents and_ _e. Award the cost of the petitioners of these proceedings._ 2. The petitioner is a secured creditor. The 2[nd] respondent was the borrower, the 3[rd] and 4[th] respondents were guarantors, and the 5[th] respondent was the auction purchaser in a sale conducted under the provisions of the Securitisation and _W. A. No.1233 / 2023_ Reconstruction of Financial Assets and Enforcement of Security Interest Act (hereinafter referred to as the ‘SARFAESI Act’. The 6[th] respondent was the attachment creditor in O.S.No.110 of 2022 on the files of the Subordinate Judge’s Court, Irinjalakuda. For giving credit facility to the 2[nd] respondent, an equitable mortgage was created on 21.01.2013, and the title deeds were deposited. Since there was default in repayment, notice under Section 13(2) of the Securitisation Act was issued to the 2[nd] respondent. After taking possession of the secured asset, the petitioner issued a sale notice on 20.05.2022, proclaiming the property to be sold on 28.06.2022. The property was sold per the sale notice dated 06.12.2022, the 5th respondent paid the sale consideration, and the sale certificate dated 07.03.2020 was issued. When the property was about to be registered, the petitioner came to know that there was an order of attachment in O.S.No.110 of 2022 obtained by the 6[th] respondent. The attachment was on _W. A. No.1233 / 2023_ 19.05.2022. When the 1[st] respondent refused the registration of the document without refusing the attachment, the petitioner approached this Court by filing the writ petition. 3. The learned single Judge took note of the fact that the mortgage was created on 21.03.2013 and the attachment only on 19.05.2022, and relying on the judgments of this Court, allowed the writ petition and directed the 1[st] respondent to register the sale certificate issued to the petitioner without being affected in any manner by the order of attachment obtained by the 6[th] respondent in O.S.No.110 of 2022. It was also declared that the 1[st] respondent shall efface the details of the attachment on the records of encumbrance maintained by him. 4. Heard Sri.N.L.Bitto, counsel for the appellant/6[th] respondent, and Sri.S.Easwaran, counsel for the 1[st] respondent, and Sri.V.Tekchand, learned senior Government Pleader. ## _W. A. No.1233 / 2023_ 5. The counsel for the appellant/6[th] respondent argues that the learned single Judge ought to have relegated the petitioner, as there is an alternative remedy available to him, which is well settled by the judgment of the Apex Court in _South Indian Bank Ltd., and others v. Naveen Mathew Philip and another (2023 SCC Online SC 435)_ . If a Civil Court has passed an order under Order 38 Rule 8, the petitioner’s remedy is to move the same court to vacate the attachment order instead approached this Court under Article 226 of the Constitution of India. Without obtaining orders from the Civil Court, the learned single Judge had, in fact effaced the attachment on the record. Therefore, he is highly aggrieved by the judgment of the learned single Judge. 6. The counsel for the 1[st] respondent Sri.S.Easwaran argues that it is not in dispute that the mortgage was created by the deposit of title deeds on 21.03.2013 and the 6[th] respondent has obtained the attachment order in O.S.No.110 of 2022 only on _W. A. No.1233 / 2023_ 19.05.2022 and therefore the right of the mortgage is not curtailed by the attachment order, which is subsequent in time. He further submits that the writ petition was filed at a point in time when the 1[st] respondent did not register the sale certificate on presentation. Therefore, the argument of the learned counsel for the appellant that an alternate remedy is available to the petitioner is out of place. The judgment of the Apex Court in _South Indian Bank Ltd_ ., ( _supra_ ) does not apply to the facts of the case. The judgment of the Apex Court only prohibits the entertainment of a writ petition by the High Courts under Article 226 of the Constitution of India in matters arising out of the SARFAESI Act. The issue, in this case, is regarding the registration of Ext.P6 sales certificate, and it has nothing to do with the SARFAESI Act. Therefore, the learned single Judge was right in exercising his discretion and directing the registration of the sale certificate dehors the attachment order obtained by the 6[th] respondent. _W. A. No.1233 / 2023_ 7. He also relies upon the judgment of this Court in _Secretary, Keechery Service Co-operative Bank Ltd., v. Sajitha Nizar alias Sajitha P.M and others (2020 (5) KHC 231)_ and also _Axis Bank (M/s.) v. Hilal Ahmed Bhat and Another (2022 (4) KHC 508)_ . Reliance is also placed on an unreported judgment in W.A.No.612 of 2015 and a judgment of the learned single Judge in _Housing Development Finance and Another v. Sub Registry Office and others (2011 KHC 851)_ . 8. In Order 38 Rule 5, the court directs the defendant within time to be fixed by it either to furnish security in such sum as may be specified in the order to produce and place at the disposal of the court when required, the said property or the value of the same or such portion thereof as may be sufficient to satisfy the decree or to appear and show cause while he should not furnish security. It is true that under Order 38 Rule 8, the attached Court can consider any claim preferred by any party attached ## _W. A. No.1233 / 2023_ before judgment, and such claim shall be adjudicated. In the decisions cited (supra), this court declared that the attachment effected subsequent to the creation of equitable mortgage would be effaced of the properties purchased in the sale. In the facts of this case, it can be seen that the sale was on 21.03.2013, and the attachment in O.S.No.110 of 2022 on the files of the Subordinate Judge’s Court, Irinjalakuda was only on 19.05.2022. Therefore, applying the principles laid down by this Court in _Secretary, Keechery Service Co-operative Bank Ltd., and Axis Bank (supra),_ the petitioner is entitled to a writ of mandamus directing the 1[st] respondent to register Ext.P6 sales certificate dehors the attachment. Any order of attachment before judgment is not a bar from registering a document concerning the property unless an order of injunction expressly prohibits the Sub Registrar. The learned single Judge has rightly held that the subsequent attachment after the creation of an equitable mortgage does not _W. A. No.1233 / 2023_ prohibit the 1[st] respondent from registering the sale certificate. Therefore the 1[st] respondent was directed to register the sale certificate without being affected in any manner by the order of attachment obtained by the 6[th] respondent. We fully concur with the findings entered by the learned single Judge, and we are of the considered view that the grounds raised in the appeal are not tenable and, therefore, the appeal fails and the same is dismissed. Sd/S.V.N.BHATTI, CHIEF JUSTICE Sd/- BASANT BALAJI, JUDGE ss