Writ Petition (Civil) Nos. 8767/2021, 8836/2021 and 8887/2021 (Arams Tourism Private Limited; Saiju Sathyapalan; Renee Joshua v Pegasus Asset Reconstruction Pvt. Ltd. and connected respondents)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 1[ST] DAY OF SEPTEMBER 2021 / 10TH BHADRA, 1943** **WP(C) NO. 8767 OF 2021** ## **PETITIONER:** M/S.ARAMS TOURISM PRIVATE LIMITED KMC 16/1244, KOCHU KOICKAL VEEDU, ASRAMOM P.O, KOLLAM, PIN-691002, REPRESENTED BY ITS MANAGING DIRECTOR.P.ABDUL SALAM. BY ADVS. SERGI JOSEPH THOMAS SRI.S.AJAY KUMAR ## **RESPONDENTS:** 1 THE AUTHORISED OFFICER PEGASUS ASSET RECONSTRUCTION PVT LTD, NO.3F, 3RD FLOOR, KASTHURI APARTMENTS, JP AVENUE, 6TH STREET, DR.RADHAKRISHNAN ROAD, MYLAPORE, CHENNAI-600004. 2 THE SUB REGISTRAR, OFFICE OF THE SUB REGISTRAR, ERAVIPURAM, KOLLAM DISTRICT, PIN-691011. 3 THE VILLAGE OFFICER, VADAKKEVILA VILLAGE, KOLLAM DISTRICT, PIN-691010. *4 ADDL R4 THE BRANCH MANAGER CATHOLIC SYRIAN BANK LTD., KOLLAM BRANCH, MAIN ROAD, KOLLAM, PIN-691001 *ADDL.R4 IS IMPLEADED AS PER ORDER DATED 13/7/2021 IN I.A. NO. 2/2021 IN W.P.(C) 8767/2021. BY ADVS. C.A.JOY K.ANAND **WP(C) NO.8767/2021 & Con. Cases** **2** ## **OTHER PRESENT:** SMT RESHMITHA RAMACHANDRAN- GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.09.2021, ALONG WITH WP(C).8887/2021, 8836/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO.8767/2021 & Con. Cases** **3** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 1[ST] DAY OF SEPTEMBER 2021 / 10TH BHADRA, 1943** **WP(C) NO. 8836 OF 2021** ## **PETITIONER:** SAIJU SATHYAPALAN AGED 52 YEARS S/O.PARAMESWARAN, SATHYPALAN, MOOKAMBIKA, CHERUMOOD, PERINAD, KOLLAM PIN 691 511 BY ADVS. SERGI JOSEPH THOMAS S.AJAY KUMAR ## **RESPONDENTS:** 1 THE AUTHORISED OFFICER PEGASUS ASSET RECONSTRUCTION PVT. LTD. NO.3F, 3RD FLOOR, KASTHURI APARTMENTS, JP AVENUE, 6TH STREET, DR. RADHAKRISHNAN ROAD, MYLAPORE, CHENNAI 600 004 2 THE SUB REGISTRAR OFFICE OF THE SUB REGISTRAR, KANNANALLOOR, KOLLAM DISTRICT. PIN 691 576 3 THE VILLAGE OFFICER NEDUMBANA VILLAGE, KOLLAM DISTRICT, PIN 691 576 *4 ADDL.R4. THE BRANCH MANAGER, CATHOLIC SYRIAN BANK LTD., KOLLAM BRANCH, MAIN ROAD, KOLLAM PIN - 691001. (*ADDL. R4 IS IMPLEADED AS PER ORDER DATED 13.07.2021 IN IA 2/2021 IN WPC NO.8836/2021.) BY ADVS. C.A.JOY K.ANAND **WP(C) NO.8767/2021 & Con. Cases** ## **4** SMT.RESHMITHA RAMACHANDRAN - GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.09.2021, ALONG WITH WP(C).8767/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO.8767/2021 & Con. Cases** **5** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 1[ST] DAY OF SEPTEMBER 2021 / 10TH BHADRA, 1943 WP(C) NO. 8887 OF 2021** ## **PETITIONERS:** RENEE JOSHUA AGED 37 YEARS W/O JACKSON, JOSE BHAVANAM, NADUVILEMURI, ANAYADI P.O, KUNNATHOOR, SOORANADU SOUTH, KOLLAM DISTRICT, PIN-690561. BY ADV SERGI JOSEPH THOMAS ## **RESPONDENTS:** 1 THE AUTHORISED OFFICER PEGASUS ASSET RECONSTRUCTION PVT LTD, NO. 3F, 3RD FLOOR, KASTHURI APARTMENTS, JP AVENUE, 6TH STREET, DR. RADHAKRISHNAN ROAD, MYLAPORE, CHENNAI-600004. 2 THE SUB REGISTRAR OFFICE OF THE SUB REGISTRAR, CHEPPAD, ALAPPUZHA DISTRICT, PIN-690507. 3 THE VILLAGE OFFICE, CHEPPAD VILLAGE, ALAPPUZHA DISTRICT, PIN-690507. *4 ADDL.R4 THE BRANCH MANAGER CATHOLIC SYRIAN BANK LIMITED, KOLLAM BRANCH, MAIN ROAD, KOLLAM, PIN-691 001. *ADDL. R4 IS IMPLEADED AS PER ORDER DATED 13-072021 IN IA 2/21 IN WP(C)NO.8887/2021 BY ADVS. **WP(C) NO.8767/2021 & Con. Cases** **6** C.A.JOY K.ANAND SMT. RESHMITHA RAMACHANDRAN - GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.09.2021, ALONG WITH WP(C).8767/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO.8767/2021 & Con. Cases** **7** ## **JUDGMENT** The petitioners in these cases – which have been heard together on account of the analogous facts presented and the similarities of reliefs sought for – are stated to be the assignees of certain properties from an auction purchaser, who successfully bid the same in a sale ordered by the 1[st] respondent – Pegasus Asset Reconstruction Pvt. Ltd., which is stated to be an Asset Reconstruction Company (ARC for short), operating under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ('SARFAESI Act' for short). 2. The petitioners say that the 1[st] respondent – ARC had got the debt assigned to them from the Catholic Syrian Bank Ltd. (hereinafter referred to as 'the Bank' for short), under the sanction of the SARFAESI Act and that they had, thereafter brought it to sale on 18.01.2021, which is evident from Ext.P1 Sale Certificate in these cases. **WP(C) NO.8767/2021 & Con. Cases** **8** 3. The petitioners say that on the strength of the afore mentioned sale Certificate, the auction purchaser sold the properties to them; but that when they presented their documents for registration before the 2[nd] respondent – Sub Registrar, it has been refused to be acted upon citing the reason that there are certain attachments found over the properties in the relevant Encumbrance Certificates. 4. The petitioners say that as is limpid from the Encumbrance Certificates - which have been produced on record, all the attachments are after the date of the equitable mortgage executed by the original owners over the property in favour of Catholic Syrian Bank; and they thus pray that the 2[nd] respondent – Sub Registrar be directed to register their documents within a time frame to be fixed by this Court. 5. I have heard Shri.Sergi Joseph Thomas, learned counsel for the petitioners in these cases; ## **WP(C) NO.8767/2021 & Con. Cases** **9** Shri.C.A.Joy, learned Standing Counsel for the Asset Reconstruction Company and the Catholic Syrian Bank Ltd., and Smt.Reshmitha Ramachandran, learned Government Pleader appearing for the official respondents. 6. Smt.Reshmitha Ramachandran, learned Government Pleader, opposed the plea of the petitioners saying that the Encumbrance Certificate produced on record indubitably disclose several attachments over the properties and therefore, that the 2[nd] respondent – Sub Registrar has been incapacitated from considering the petitioners' plea for registration of their title documents. She submitted that it is only after the attachments are honoured or vacated, can the Sub Registrar act as per law. 7. The learned Standing Counsel for the ARC and the Bank, Shri.C.A.Joy, submitted that the afore contentions urged on behalf of the Sub Registrar are untenable because the equitable mortgage over ## **WP(C) NO.8767/2021 & Con. Cases** ## **10** the properties in question were created on 29.09.2008 and 16.11.2009 respectively, as regards those covered by W.P(C)Nos.8767 of 2021, 8836 of 2021 and 8887 of 2021; and therefore, it has been well settled by a catena of judgments of this Court, including _**Travancore Devaswom Board v. Deputy Examiner, Local Fund Audit & Others [**_ **2020 (3) KHC 129]** _**and Keechery Service Co-operative Bank**_ _**Ltd. v. Sajitha Nizar [2020(6)KLT 68]**_ that none such can stand in the way of the rights of the Bank and the ARC in proceeding against the property under the SARFAESI Act; or in the auction purchaser or his assignees from having their title deeds registered in terms of law. The learned standing Counsel, therefore, prayed that the reliefs sought for in this writ petition be allowed. 8. When I consider the afore submissions and assess the records available on record, particularly the Encumbrance Certificates with respect to the properties, it becomes _prima facie_ clear that all the attachments noticed by the 2[nd] ## **WP(C) NO.8767/2021 & Con. Cases** **11** respondent appear to be after the date of mortgage created over the properties. 9. In fact, the 1st respondent has produced on record the Register of Equitable Mortgage maintained by the Bank, as Ext.R1 in all these cases, wherein, it is luculent that the mortgage with respect to the properties involved in W.P(C)Nos.8767/2021 and 8836/2021 was made on 29.09.2008; while that with respect to the property involved in W.P(C)No.8887/2021 was executed on 16.01.2009. 10. Therefore, unless the Registrar is able to convince himself that the attachments recorded in the Encumbrance Certificate were effected prior to these date, there can be little doubt that he is obligated in law to register the Sale Certificates, as well as the title documents of the petitioners, if they are presented validly and with the support of all relevant documents. Resultantly, I order these writ petitions and direct the 2nd respondent to immediately consider **WP(C) NO.8767/2021 & Con. Cases** **12** the applications made before him by the petitioners in these cases and take a decision with respect to registration of the Sale Certificates, as also the title deeds after affording them, the Authorised Officer of the 1st respondent, the competent official of the Catholic Syrian Bank, as also another person who may have made any complaint against the said request; thus culminating in an appropriate order thereon as expeditiously as is possible, but not later than one month from the date of receipt of a copy of this judgment. Needless to say, while the afore exercise is completed, the Sub Registrar will specifically verify whether there are any attachments over the property which are prior to the date of mortgage and it is only in such a situation will he refuse registration of the Sale Certificates and title documents. **==> picture [82 x 48] intentionally omitted <==** **Sd/-** **DEVAN RAMACHANDRAN JUDGE** MC/RR **WP(C) NO.8767/2021 & Con. Cases** ## **13** ## **APPENDIX OF WP(C) 8767/2021** ## PETITIONER EXHIBITS - EXHIBIT P1 TRUE COPY OF THE SALE CERTIFICATE DATED 18/01/2021 ISSUED BY THE 1ST RESPONDENT. - EXHIBIT P2 TRUE COPY OF THE CERTIFICATE OF ENCUMBRANCE ON PROPERTY DATED 29.03.2021 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P3 TRUE COPY OF NOTIFICATION NO.46/2016 F.NO.275/16/2016-IT(D) DATED 17/06/2016 ISSUED BY THE MINISTRY OF FINANCE, GOVERNMENT OF INDIA, (DEPARTMENT OF REVENUE), CENTRAL BOARD OF DIRECT TAXES. EXHIBIT P4 TRUE COPY OF THE SANCTION LETTER DATED 22.09.2008 ISSUED BY THE BRANCH MANAGER, CATHOLIC SUYRIAN BANK, KOLLAM BRANCH EXHIBIT P5 TRUE COPY OF THE CONFIRMATION LETTER DATED 29.09.2008 SIGNED BY THE LOANEE IN FAVOUR OF THE BRANCH MANAGER CATHOLIC SYRIAN BANK, KOLLAM BRANCH ## RESPONDENTS' EXHIBIT ANNEXURE R1 TRUE COPY OF THE MEMORANDUM OF DEPOSIT OF TITLE DEED EVIDENCING THE DEPOST OF TITLE DEED DATED 29.09.2008 **WP(C) NO.8767/2021 & Con. Cases** ## **14** ## **APPENDIX OF WP(C) 8836/2021** ## PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE SALE CERTIFICATE DATED 18.1.2021 ISSUED BY THE 1ST RESPONDENT. Exhibit P2 TRUE COPY OF THE CERTIFICATE OF ENCUMBRANCE ON PROPERTY DATED 29.3.2021 ISSUED BY THE 2ND RESPONDENT. Exhibit P3 TRUE COPY OF THE RENEWAL LETTER DATED 22.09.2008 ISSUED BY THE BRANCH MANAGER,, CATHOLIC SYRIAN BANK, KOLLAM BRANCH. Exhibit P4 TRUE COPY OF THE CONFIRMATION LETTER DATED 29.09.2008 SIGNED BY THE LOANEE IN FAVOUR OF THE BRANCH MANAGER, CATHOLIC SYRIAN BANK, KOLLAM BRANCH. ## RESPONDENT'S EXHIBIT EXHIBIT R1 TRUE COPY OF THE MEMORANDUM OF DEPOSIT OF TITLE DEED EVIDENCING THE DEPOSTI OF TITLE DEED DATED 29.09.2008 **WP(C) NO.8767/2021 & Con. Cases** ## **15** ## **APPENDIX OF WP(C) 8887/2021** ## PETITIONER EXHIBITS - EXHIBIT P1 TRUE COPY OF THE SALE CERTIFICATE DATED 18/01/2021 ISSUED BY THE 1ST RESPONDENT. - EXHIBIT P2 TRUE COPY OF THEN CERTIFICATE OF ENCUMBRANCE ON PROPERTY DATED 29.03.2021 ISSUED BY THE 2ND RESPONDENT. - EXHIBIT P3 TRUE COPY OF NOTIFICATION NO.46/2016 F.NO.275/16/2018-IRD) DATED 17/06/2016 ISSUED BY THE MINISTRY OF FINANCE, GOVERNMENT OF INDIA, (DEPARTMENT OF REVENUE), CENTRAL BOARD OF DIRECT TAXES. - EXHIBIT P4 TRUE COPY OF THE RENEWAL LETTER DATED 16.11.2008 ISSUED BY THE BRANCH MANAGER, CATHOLIC SYRIAN BANK, KOLLAM BRANCH - EXHIBIT P5 TRUE COPY OF THE CONFIRMATION LETTER DATED 16.11.2008 SIGNED BY THE LOANEE IN FAVOUR OF THE BRANCH MANAGER, CATHOLIC SYRIAN BANK, KOLLAM BRANCH ## RESPONDENT'S EXHIBIT EXHIBIT R1 TRUE COPY OF THE MEMORANDUM OF DEPOSIT OF TITLE DEED EVIDENCING THE DEPOSIT OF TITLE DEED DATED 16.11.2009