Kerala High Court
Binoy Joseph vs Authorised Officer on 5 April, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 5TH DAY OF APRIL 2024 / 16TH CHAITHRA, 1946
WP(C) NO. 10321 OF 2024
PETITIONER(S):
BINOY JOSEPH, AGED 45 YEARS
S/O. JOSEPH, PADICKAKUDIYIL INCHATHOTTY,
KUTTAMPUZHA, ERNAKULAM DISTRICT., PIN - 686681
BY ADV. N.K.MOHANLAL
RESPONDENTS:
1 AUTHORISED OFFICER
SOUTH INDIAN BANK 1ST FLOOR, REGENCY SQUARE, K.K
ROAD, COLLECTORATE P.O, KOTTAYAM, PIN - 686002
2 SUB-REGISTRAR
KANJIRAPPALLY, KOTTAYAM DISTRICT., PIN - 686507
3 VILLAGE OFFICER
CHIRAKADAVU, KOTTAYAM DISTRICT, PIN - 686520
4 ADDL.R4. THOMSON JOSE ( IMPLEADED )
AGED 62 YEARS,S/O LATE JOSEPH, VALAYUMKAL HOUSE,
CHENGULAM P.O, ELAMGULAM KARA, ELAMGULAM VILLAGE,
KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT , PIN-686
585 (IS IMPLEADED AS ADDL. RESPONDENT NO.4 IN WPC
10321/2024 AS PER ORDER DATED 19/03/2024 IN IA
1/2024 IN WPC 10321/2024).
BY ADVS.
SUNIL SHANKAR, SC
VIDYA GANGADHARAN(K/000424/2020)
JERIN GEORGE(K/863/2023)
VARGHESE C.KURIAKOSE
ANJANA JOSE(K/203/2024)
KRISHNAPRIYA M.S.(K/510/2024)
AMRITHA.J(K/552/2020)
KURUVILLA MATHEW(K/426/2023)
VIPIN C. VARGHESE(K/000507/2023)
SMT.DEEPA NARAYANAN, SENIOR GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 05.04.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.10321 of 2024
2
P.V.KUNHIKRISHNAN, J.
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W.P.(C) No. 10321 of 2024
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Dated this the 05th day of April, 2024.
JUDGMENT
This writ petition is filed seeking the following reliefs:
"i. Issue a writ of mandamus or any other appropriate writ or order declare that attachment reflected in ExhibitP2 encumbrance certificate subsequent to creation of equitable mortgage in favour of the 1st respondent is non-est and does not affect the marketability and title of the property covered by Exhibit P1 Sale Certificate.
ii. Issue a writ of mandamus or any other appropriate writ, direction or order directing, the 2 nd respondent to register the exhibitP1 Sale certificate dehors the attachment shown in Exhibit P2. And iii. Pass such other appropriate writ or order which is deemed just and necessary on the facts and circumstances of the case."[SIC]
2. Petitioner purchased a property notified for W.P.(C) No.10321 of 2024 3 sale from the 1st respondent and a sale certificate was issued to the petitioner. The Sub Registrar refused to register the sale certificate stating that the purchased property is having attachment obtained by private parties. According to the petitioner, the attachments are subsequent to the mortgage created in favour of the 1st respondent. Hence this Writ petition is filed.
3. Heard the learned counsel appearing for the petitioner and the learned Government Pleader.
4. Admittedly, all the attachments mentioned in Ext.P2 are subsequent to the mortgage created with the 1st respondent by the borrower. Petitioner is the bonafied purchaser of the property in the auction conducted by the 1st respondent. Therefore, I am of the considered opinion that the prayers in this Writ petition is to be allowed. Moreover, in State Bank of India v. Sub Registrar, Eravipuram [2023 KHC W.P.(C) No.10321 of 2024 4 OnLine 10385] this Court observed that the attachment effected subsequent to the creation of equitable mortgage has to be effaced by the officer concerned. The relevant portion of the above judgment is extracted hereunder:
"9. In the light of the dictum laid down by this Court in the above decisions, Ext. P6 is quashed. The attachment effected subsequent to the creation of equitable mortgage has to be effaced by the 2 nd respondent from the Revenue records and the 1 st respondent is directed to register Ext.P5 Sale Certificate as and when presented, notwithstanding the order of attachment of the Sub Court, Kottarakkara in O.S. No. 36/2020 dated 27.10.2020, if the document is otherwise in order."
In the light of the above principle, this Writ petition is to be allowed. Therefore, this Writ Petition is disposed of in the following manner:
1. The 2nd respondent is directed to efface all pending attachments mentioned in Ext.P2 relating to the secured property W.P.(C) No.10321 of 2024 5 which is subsequent to the mortgage created with the 1st respondent, as expeditiously as possible, at any rate, within a period of two weeks from the date of receipt of a copy of this judgment.
2. After effacing the attachments, the 2nd respondent will register Ext.P1 sale certificate, if the same is produced and if it is otherwise in order.
3. The petitioner will produce a certified copy of this judgment along with a copy of the Writ Petition with exhibits before the 2nd respondent for compliance.
Sd/-
P.V.KUNHIKRISHNAN JUDGE DM W.P.(C) No.10321 of 2024 6 APPENDIX OF WP(C) 10321/2024 PETITIONER EXHIBITS EXHIBIT - P1 A TRUE COPY OF SALE CERTIFICATE DATED 29/02/2024 ISSUED TO PETITIONER BY 1ST RESPONDENT EXHIBIT -P2 A TRUE COPY OF ENCUMBRANCE CERTIFICATE DATED 20/12/23 ISSUED BY 2ND RESPONDENT EXHIBIT - P3 A TRUE COPY OF DEMAND NOTICE DATED 12/08/2016 ISSUED BY 1ST RESPONDENT BANK EXHIBIT -P4 A TRUE COPY OF JUDGMENT DATED 26/02/24 IN WP(C) 17034/2021 OF HON'BLE HIGH COURT OF KERALA RESPONDENTS EXHIBITS: NIL //TRUE COPY// PA TO JUDGE