W.P.(C) Nos.28767 & 33591/2018

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Dama Seshadri Naidu
Judgment Date: 2018-10-22
Court Decision / Holding: Direct the Sub Registrar to receive and register the deed of conveyance, subject to statutory stipulations; hold that attachments stand erased in light of Madhan v. Sub Registrar; direct the Bank to deposit the excess sale proceeds before the Family Court, Mavelikkara, in O.P. No.326 of 2018; leave the rival husband-wife claims open; dispose of both writ petitions.
Final Disposition: Disposed of both writ petitions

Parties to the Case

Appellants / Petitioners

Jaison J
Gayathri R
Greeshma
Sajith Kumar P
Arun Kumar Prakash Bhavanam

Respondents

Sub Registrar, Mavelikkara, Alappuzha-690110
The Village Officer, Thekkekara, Alappuzha-690110
DEWAN HOUSING FINANCE CORPORATION LIMITED
Jaison J
Gayathri R
Sajith Kumar P
Arun Kumar Prakash Bhavanam

Legal Representation & Advocates

Counsels for Petitioners

• Sri S. Sunil Kumar
• Sri R. Jayakrishnan (Muthukulam)

Counsels for Respondents

• Sri Paulochan Antony SC
• Rashmi K M

Case Synopsis & Summary

Two writ petitions were heard together challenging the Sub Registrar’s refusal to register a conveyance of a property mortgaged to a bank and the bank’s sale of the secured asset. In WP(C) No.28767 of 2018, the auction purchaser (Jaison J) and his coborrower wife (Gayathri R) challenged the Sub Registrar’s refusal to register the deed; the refusal stemmed from an attachment in matrimonial proceedings that also affected the property. In WP(C) No.33591 of 2018, the coborrower-wife Greeshma, along with other coborrowers, challenged the bank’s recovery and sale of the property. The Bank contended that it had followed the required procedure and that, even though the property was subject to attachments, a bank’s right to sell and realise the debt stood unimpaired; it also indicated that any excess over the debt realised at auction could be disposed of in favour of a legitimate claimant. The Court held that subsequent attachments will not defeat the bank’s right to sell the secured asset and that the attachments stand erased, citing Madhan v. Sub Registrar. It directed registration of the conveyance, subject to statutory requirements, and ordered the Bank to deposit any excess sale proceeds before the Family Court for consideration in the ongoing matrimonial proceedings, leaving rival claims between husband and wife open. The petitions were disposed of accordingly.

Legal Doctrines & Maxims

Subsequent attachments will not defeat the Bank's right to sell the secured asset
Attachments stand erased (per Madhan v. Sub Registrar)

Submissions & Arguments

Contentions of Appellants / Petitioners

The auction purchaser (Jaison J) and coborrower-wife challenge the Sub Registrar’s refusal to register the conveyance, arguing that attachment in matrimonial proceedings should not defeat the bank’s entitlement to transfer the property to the purchaser. They contend that the bank’s sale has been conducted in accordance with procedure and that the court should ensure the conveyance is registered subject to statutory requirements, with any excess proceeds appropriately dealt with in light of ongoing matrimonial proceedings.

Contentions of Respondents

The Bank (DHFL) maintains that it followed due process in the mortgage recovery and sale; it argues that attachments do not bar sale, and that the excess sale proceeds may be disbursed to the rightful claimant, with the court directing registration of the conveyance and handling of excess proceeds through the Family Court in the ongoing proceedings.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Madhan v. Sub Registrar	2014 (1) KLT 406	Positive	The judgment relies on the Madhan case to hold that subsequent attachments do not defeat the bank’s right to sell and that attachments are erased.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU MONDAY ,THE 22ND DAY OF OCTOBER 2018 / 30TH ASWINA, 1940 ## WP(C).No. 28767 of 2018 ## PETITIONER/S: 1 JAISON.J AGED 38 YEARS S/O JOY M.M., KUTTUVELIL, THEKKEKARA VILLAGE, KALLUMALA P.O., ALAPPUZHA690110 690110 2 GAYATHRI R AGED 26 YEARS, D/O T.P RAJAPPAN, KAMALA BHAVAN, PUTHIYACAVU, MEVELIKKARA PO, ALAPPUZHA-690101. BY ADV. SRI.S.SUNIL KUMAR ## RESPONDENT/S: 1 SUB REGISTRAR MAVELIKKARA, ALAPPUZHA-690110 690110 2 THE VILLAGE OFFICER, THEKKEKARA, ALAPPUZHA-690110 3 DEWAN HOUSING FINANCE CORPORATION LIMITED HAVING ITS REGISTERED OFFICE AT WARDEN HOUSE, 2ND FLOOR, SIR P.M ROAD, MUMBAI-400001, HAVING ITS REGIONAL OFFICE AT 1ST FLOOR, KMM BUILDINGS, PALARIVATTOM, KOCHI-REPRESENTED BY ITS AUTHORISED OFFICER/CHIEF MANAGER.-682021 **-2-** ## **W.P.(C) Nos.28767 & 33591/2018** - 4 SAJITHAKUMAR P S/O SAJITHKUMAR P, MAVULLATHIL VEEDU, UMBERNADU, KALLUMALA PO, MAVELIKKARA, ALAPPUZHA-690110 5 GREESHMA G W/O SAJITHKUMAR P, MAVULLATHIL VEEDU, UMBERNADU, KALLUMALA PO, MAVELIKKARA, ALAPPUZHA-690110. - 6 ARUN KUMAR PRAKASHBHAVANAM, KANDIYOOR, ALAPPUZHA-690103. ## OTHER PRESENT: SRI PAULOCHAN ANTONY SC GP RASHMI K M THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.10.2018, ALONG WITH WP(C).33591/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **W.P.(C) Nos.28767 & 33591/2018** **-3-** IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU MONDAY ,THE 22ND DAY OF OCTOBER 2018 / 30TH ASWINA, 1940 ## WP(C).No. 33591 of 2018 ## PETITIONER/S: GREESHMA AGED 31 YEARS D/O GOPALAN M T, CHAITRAM HOUSE, NOORANAD VILLAGE, PATTOOR P O, ALAPPUZHA DISTRICT, PIN-690529 BY ADV. SRI.R.JAYAKRISHNAN (MUTHUKULAM) ## RESPONDENT/S: |1|THE SUB REGISTRAR| |---|---| ||MAVELIKKARA, ALAPPUZHA DISTRICT-690101| |2|DEVAN HOUSING FINANCE CORPORATION LIMITED| ||HAVING ITS REGISTERED OFFICE AT WARDEN HOUSE, 2ND FLOOR,| ||SIR.P.M.ROAD, MUMBAI-400001 HAVING ITS REGIONAL OFFICE AT| ||1ST FLOOR, KMM BUILDINGS, PALARIVATTOM, KOCHI-682025| ||REPRESENTED BY ITS AUTHORIZED OFFICER/CHIEF MANAGER.| |3|JAISON.J| ||AGED 38 YEARS, S/O.JOY.M.M, KUTTUVELIL, KALLUMALA.P.O.,P.O,| ||ALAPPUZHA-690110.| **W.P.(C) Nos.28767 & 33591/2018** **-4-** - 4 GAYATRI.R. AGED 26 YEARS, D/O.T.P.RAJAPPAN, KAMALA BHAVAN, PUTHIYAKAVU, MAVELIKKARA.P.O, ALAPPUZHA-690101. - 5 SAJITH KUMAR.P. S/O.VINAYAKUMAR, MUVULLATHIL VEEDU, UMBERNADU, KALLUMALA.P.O, MAVELIKKARA, ALAPPUZHA-690110. - 6 ARUN KUMAR PRAKASH BHAVANAM, KANDIYOOR, ALAPPUZHA-690103. ## OTHER PRESENT: SRI PAULOCHAN ANTONY SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.10.2018, ALONG WITH WP(C).28767/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **W.P.(C) Nos.28767 & 33591/2018** **-5-** ## J U D G M E N T There are two writ petitions—W.P.(C) Nos.28767 and 33591 of 2018—one filed by the auction purchaser and the other by the coborrower, who is also the principal borrower's wife. In W.P.(C) No.28767 of 2018, the petitioner-auction purchaser assails the Sub Registrar's refusal to register the document. The unwillingness, as seen from the record, is because the petitioner in W.P.(C) No.33591 of 2018 secured an attachment in matrimonial proceedings before the Family Court. Besides, the sixth respondent in W.P.(C) No.28767 of 2018 also attached the same property. 2. In W.P.(C) No.33591 of 2018, the petitioner-wife, who also happened to be a co-borrower, assailed the Bank's bringing the property for sale. 3. Indeed, the learned counsel for the auction purchaser, the learned counsel for the co-borrower-wife, and the learned counsel for the Bank argued the matter extensively. ## **W.P.(C) Nos.28767 & 33591/2018** **-6-** 4. As the facts reveal, during the happy days the wife and husband borrowed money from the respondent Bank by mortgaging the husband's property. Later, ostensibly the husband and wife fell out. In the meanwhile, the Bank began recovery proceedings. Pending those proceedings, the wife initiated matrimonial proceedings before the Family Court, Mavelikkara. She filed O.P. (HMA) No.364 of 2018 for divorce and O.P. No.326 of 2018 for the return of gold and money. 5. In the second O.P., the wife had her husband's already mortgaged property attached, through an interim order, dated 28th March 2018. She also filed M.C. No.40 of 2018 for maintenance, though no interim order has been passed in that case, yet. 6. Now the petitioner-wife in W.P.(C) No.33591 of 2018 has assailed the Bank's recovery proceedings, including the sale of the property. In fact, the sale took place on 23.03.2018, after the initial four aborted attempts by the Bank. ## **W.P.(C) Nos.28767 & 33591/2018** **-7-** 7. The Bank's counsel, however, submits that the Bank has followed the procedure to perfection. In the end, he has informed the Court that when the debt to be realised is around Rs.12 lakh, the property in the auction fetched Rs.18,50,000/-. So he submits that if this Court directs, the Bank is willing to part with the excess money in favour of either the wife or any other person that has a legitimate claim over the property. Incidentally, despite receiving the f notice, the husband, the fourth respondent in W.P.(C) No. 28767 of 2018 and fifth respondent in W.P.(C) No.33591 of 2018, has not appeared before the Court. 8. On the issue raised by the auction purchaser, this Court has time and time again held that the subsequent attachments will not defeat the Bank's right to sell the secured asset. To that extent, the Sub Registrar's objection cannot be sustained. 9. I, therefore, direct the Sub Registrar to receive the deed of conveyance the Bank and the auction purchaser are to present and register it, subject to the parties to registration fulfilling further **W.P.(C) Nos.28767 & 33591/2018** **-8-** statutory stipulations. Thus, the attachments stand erased, as is held in . _Madhan v. Sub Registrar[1]_ 10. As far as the wife's claim is concerned, she is also a coborrower. At any rate, the Bank has no claim on the excess amount it realised in the sale. So I direct the Bank to deposit the excess amount before the Family Court, Mavelikkara, in O.P. No.326 of 2018. And the Family Court will keep it as the husband's asset available for the proceedings the wife initiated. On the rival claims between the husband and wife, this Court has not expressed any opinion, and the entire issue is left open. With these observations, I dispose of both the writ petitions. Sd/- DAMA SESHADRI NAIDU JUDGE jjj 1 2014 (1) KLT 406 ## **W.P.(C) Nos.28767 & 33591/2018** **-9-** ## APPENDIX OF WP(C) 28767/2018 RESPONDENT'S/S EXHIBITS: ANNEXURE R1 NIL ANNEXURE R2 NIL ANNEXURE R3 A TRUE COPY OF THE PAPER PUBLICATION MADE ON 24.10.2017 ANNEXURE R3 B TRUE COPY OF THE VALUATION ON THE SECURED ASSET 20.9.2017 - ANNEXURE R3 C TRUE COPY OF THE PAPER PUBLICATION DATED 8.3.2018 PETITIONER'S/S EXHIBITS: - EXHIBIT P1 TRUE COPY OF THE LOAN AGREEMENT DATED 30.3.2012 - EXHIBIT P2 TRUE COPY OF THE LOAN REGISTRATION OF CHARGE SEARCH REPORT DOWNLOADED FROM THE CENTRAL REIGISTRY ON SECURITIZATION. - EXHIBIT P3 TRUE COPY OF THE ORDER DATED 16.06.2017 IN CMP NO.1480/2017 IN M.C NO.136/2017 OF HON'BLE CJM COURT, ALAPPUZHA. - EXHIBIT P4 TRUE COPY OF THE NOTICE DATED 24.10.2017 PUBLISHED IN INDIAN EXPRESS. - EXHIBIT P5 TRUE COPY OF THE SALE NOTICE DATED 24.10.2017 PUBLISHED IN DEEPIKA DAILY. - EXHIBIT P6 TRUE COPY OF THE SALE CERTIFICATE DATED 28.05.2018 EXHIBIT P7 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE DATED 31.3.2018 ISSUED BY THE 1ST RESPONDENT IN RESPECT ## **W.P.(C) Nos.28767 & 33591/2018** **-10-** OF THE SECURED ASSEST. EXHIBIT P7 A TRUE COPY OF THE TRANSLATION OF ENCUMBRANCE CERTIFICATE DATED 31.3.2018 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P8 TRUE COPY OF THE DRAFT SALE DEED DATED SUBMITTED BEFORE THE 1ST RESPONDENT. **W.P.(C) Nos.28767 & 33591/2018** **-11-** ## APPENDIX OF WP(C) 33591/2018 PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE PAPER PUBLICATION OF THE 2ND RESPONDENT. EXHIBIT P2 TRUE COPY OF NOTICE IS RECEIVED TO THE PETITIONER ON 31/03/2018. EXHIBIT P3 TRUE COPY OF THE REGISTERED POST ENVELOPE ON 17/03/2018.