IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944
WP(C) NO. 17184 OF 2022
PETITIONER:
CANARA BANK
ARM BRANCH 2ND FLOOR, CANARA BANK BUILDING
CHITTOOR ROAD, OPPOSITE GOVERNMENT GIRL HIGH SCHOOL
ERNAKULAM - 682035, REPRESENTED BY ITS MANAGER
BY ADVS.
M.J.RAJASREE
K.V.ANIL
ANIRUDH KADAVIL
RESPONDENTS:
1 TAHSILDHAR REVENUE RECOVERY
TALUK OFFICE, FORT P.O., THIRUVANANTHAPURAM - 695023
2 SUB-REGISTRAR
SUB- REGISTRAR OFFICE, PATTOM, PATTOM P.O.
THIRUVANANTHAPURAM - 695004
3 K C SANJEEV
MANAGING PARTNER,PRISM CASTING NO.7D, KOWDIAR MANOR,
JAWAHAR NAGAR P.O., THIRUVANANTHAPURAM-695003
4 M/S PRISM CASTINGS
REPRESENTED BY SRI.K C SANJEEV, MANAGING PARTNER PRISM
CASTING NO.7D, KOWDIAR MANOR JAWAHAR NAGAR P.O.
THIRUVANANTHAPURAM-695003
5 VILLAGE OFFICER
VILLAGE OFFICE,
KUDAPPANAKUNNU, THIRUVANANTHAPURAM - 695043
SRI.BIMAL K.NATH- SR.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
27.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 17184 OF 2022
2
T.R. RAVI, J.
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W.P.(C) No.17184 of 2022
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Dated this the 27th day of July, 2022
JUDGMENT
Admit. Government Pleader takes notice for respondents 1, 2 and 5. Notice to respondents 3 and 4 have been served by effecting paper publication and they have not chosen to appear.
2. The prayer in the writ petition is for quashing Ext.P13 issued by the 5th respondent and Ext.P14 issued by the 2 nd respondent to the extent they mention about an order of attachment dated 12.12.2018 on the property described in Serial No.4 Schedule 9/9 of Ext.P14 [8.70 Ares of property in Survey No.743 (Re-survey No.448/17)], which had been equitably mortgaged with the petitioner. There is also a prayer for a direction to respondents 1, 2 and 5 to remove the entries in their registers relating to the attachments made over the said properties, subsequent to the date of the mortgage in favour of the petitioner.
3. The petitioner had earlier approached this Court by filing W.P.(C) No.8768 of 2022 which was disposed of by this Court with a direction to the Sub Registrar to efface the entry regarding WP(C) NO. 17184 OF 2022 3 the attachment by the 5th respondent, the Kerala State Industrial Development Corporation (hereinafter referred to as 'KSIDC') from Ext.P5 and to either reissue the same, or issue a fresh encumbrance certificate. At the time of filing of the above writ petition the attachment made at the instance of KSIDC alone was put in issue and hence the above direction. It is categorically found that the attachment at the instance of the KSIDC was of the year 2018, which is nearly five years after the equitable mortgage was effected in favour of the petitioner and hence the petitioner is entitled to the relief. In Ext.P13, it is stated that there are further attachments effected by the Additional Sub Court, Trivandrum which are admittedly of the year 2019, i.e even after the attachment which had been earlier put in issue, made at the instance of the KSIDC. It is hence apparent that the said attachment also cannot survive since the mortgage is prior to the said attachment. A Division Bench of this Court has in Ext.P16 judgment in DBA No.1 of 2020 held that the sale carried out either under the SARFAESI Act or under the RDB Act takes precedence over the statutory charge due to the Government created under the KVAT Act or under other State Enactments after the amendment of 2016. It is also held that secured creditor in whose favour a security interest has been created thus has priority in sale and WP(C) NO. 17184 OF 2022 4 payment over all other statutory charge holders. The situation of persons who do not have such statutory charge cannot be any better. In the above circumstances the petitioner is entitled the same.
In the result, the writ petition is allowed. Exts.P13 and P14 to the extent they mention about the attachment dated 12.12.2018 on the property described in Serial No.4 Schedule 9/9 of Ext.P14 that is 8.70 Ares of property in Survey No.743 correspondent in the Re- survey No.448/17 is set aside. There will be a direction to respondents 1, 2 and 5 to remove the entries in their registers, relating to the attachments made over the subject property of 8.70 Ares of land in Re-Survey No.448/17 (Survey No.743) in Kudappanakunnu Village and 8.38 Ares of land in Re-Survey No.448/12-1 (Survey No.742) in Kudappanakunnu Village, as they have been made subsequent to the mortgage in favour of the petitioner. Necessary orders shall be issued within one month from the date of receipt of a copy of this judgment.
Sd/-
T.R.RAVI JUDGE mpm WP(C) NO. 17184 OF 2022 5 APPENDIX OF WP(C) 17184/2022 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE SANCTION MEMORANDUM DATED 28.02.2013 ISSUED BY THE PETITIONER BANK IN FAVOUR OF THE 4TH RESPONDENT.
Exhibit P2 A TRUE COPY OF THE LETTER EVIDENCING DEPOSIT OF TITLE DEEDS (HEREINAFTER REFERRED TO AS LEDTD) DATED 16.03.2012 EXECUTED BY THE 3RD RESPONDENT IN FAVOUR OF THE PETITIONER BANK.
Exhibit P3 A TRUE COPY OF THE SALE DEED NO.3763/2008 DATED 10.09.2008 DEPOSITED WITH THE PETITIONER BANK ON 15.03.2012.
Exhibit P4 A TRUE COPY OF THE LEDTD DATED 16.04.2013 EXECUTED BY THE 4TH RESPONDENT IN FAVOUR OF THE PETITIONER BANK.
Exhibit P5 A TRUE COPY OF THE SALE DEED NO.2328/2011 DATED 29.07.2011 DEPOSITED WITH THE PETITIONER BANK ON 15.04.2013.
Exhibit P6 A TRUE COPY OF THE LEDTD DATED 16.04.2013 EXECUTED BY THE 4TH RESPONDENT IN FAVOUR OF THE PETITIONER BANK.
Exhibit P7 A TRUE COPY OF THE SALE DEED NO.1680/2011 DATED 30.05.2011 DEPOSITED WITH THE PETITIONER BANK ON 15.04.2013.
Exhibit P8 A TRUE COPY OF THE DEMAND NOTICE DATED 05.09.2018 ISSUED BY THE PETITIONER BANK TO THE 3RD RESPONDENT.
Exhibit P9 A TRUE COPY OF THE POSSESSION NOTICE UNDER SECTION 13(4) DATED 12.12.2018 ISSUED BY THE PETITIONER BANK TO THE 4TH RESPONDENT.
WP(C) NO. 17184 OF 2022 6 Exhibit P10 A TRUE COPY OF THE ENCUMBRANCE CERTIFICATE NO.9809/21 DATED 18.11.2021 ISSUED BY THE 2ND RESPONDENT.
Exhibit P11 A TRUE COPY OF THE SALE NOTICE DATED 19.02.2022 ISSUED BY THE PETITIONER BANK. Exhibit P12 A TRUE COPY OF THE JUDGMENT DATED 22.03.2022 IN WP(C) NO.8768/2022.
Exhibit P13 A TRUE COPY OF THE LETTER DATED 21.05.2022 ISSUED BY THE 5TH RESPONDENT IN FAVOUR OF THE PETITIONER BANK.
Exhibit P14 A TRUE COPY OF THE ENCUMBRANCE
CERTIFICATE NO.4944/2022 DATED
16.05.2022.
Exhibit P15 A COPY OF THE JUDGMENT DATED IN
24.07.2015 IN WA NO.612/2015 BY THE
HONOURABLE HIGH COURT.
Exhibit P16 A COPY OF JUDGMENT DATED 19.05.2020 IN
DBA 1/2020 BY THE HONOURABLE HIGH COURT.