Kerala High Court
Hdfc Bank Ltd vs Sub Registrar on 1 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
MONDAY, THE 01ST DAY OF FEBRUARY 2021 / 12TH MAGHA,1942
WP(C).No.15128 OF 2020(M)
PETITIONER:
HDFC BANK LTD.
DEPARTMENT FOR SPECIAL OPERATIONS, CHOICE TOWERS,
MANORAMA JUNCTION, ERNAKULAM-16, REP. BY ITS
AUTHORIZED OFFICER RAJESH ANTONY.
BY ADVS.
SHRI.BASIL MATHEW
SRI.P.BINNY JOSEPH
SRI.DIPU.R
RESPONDENTS:
1 SUB REGISTRAR
KOTHAMANGALAM SUB REGISTRARS OFFICE,
KOTHAMANGALAM-686691.
2 GOVERNMENT OF KERALA,
REP. BY PRINCIPLE SECRETARY,
(REVENUE) ROOM NO.201A, 2ND FLOOR, ANNEX I,
SECRETARIAT, TRIVANDRUM-695001.
3 THE VILLAGE OFFICER,
PINDIMANA VILLAGE, PINDIMANA VILLAGE OFFICE,
KOTHAMANGALAM-686691.
R1-R3 BY SMT VIDHYA A.C- GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.15128 OF 2020(M)
2
JUDGMENT
The petitioner, a secured creditor, has filed this writ petition
under Article 226 of the Constitution of India, seeking a writ of
mandamus commanding respondents 1 and 3 to remove the
attachments made subsequent to the creation of mortgage in the
property having an extent of 10 cents comprised in
Sy.No.477/1A/37/9A of Pindimana Village covered by document
Nos.291 of 2000 and 2484 of 2010 of the Sub Registrar Office,
Kothamangalam . The petitioner has also sought for a declaration
that the attachment made in the aforesaid property is free from all
encumbrances.
2. On 25.01.2021, when this writ petition came up for
admission, the learned Government Pleader submitted that based
on the instructions received, a statement on behalf of the 1 st
respondent shall be placed on record. The statement of the 1 st
respondent is placed on record today as bench-mark. Paragraphs 2
to 4 of that statement read thus:
"2. It is submitted that the writ petition is not
maintainable either in law or on facts. The petitioner being
a secured creditor is having a legal claim over immovable
properties comprising in Survey Nos.477/1A/37/9A in
WP(C).No.15128 OF 2020(M)
Pindimana Village. The petitioner being a scheduled bank
had sanctioned an amount of Rs.13,00,000/- to a
partnership firm by name M/s. Near and Safe Tube N
Rods. In security to the amount borrowed, the firm had
pledged and thereby created security interest over the
immovable property. The Security interest was ensured by
creating a mortgage by deposit of title deeds security
Nos.291/2000 and 2484/2010 both of Kothamangalam
Sub Registrar Office. Now it is presumed that the
petitioner had initiated legal proceedings under SARFEASI
Act. Further, the petitioner had taken possession of the
property in view of the default payment by the firm.
3. It is submitted that while the property was in
mortgage, an attachment order was filed in Sub Registrar
Office, Kothamangalam as F172/2016. Being a public offer
as envisaged in Section 84 of the Registration Act, Sub
Registrar is bound to accept and file an encumbrance
creating order issued by a Revenue authority in terms of
Section 89(5)(A) of the Registration Act 1908.
4. It is submitted that the Sub Registrar has no
authority to discard an order or delete an entry stating
that the property is in mortgage with someone else or on
the ground that the order of attachment was issued
subsequent to the creation of security interest in favour of
a firm or institution." (underline supplied)
3. Heard the learned counsel for the petitioner and also the
learned Government Pleader appearing for the respondents.
4. In Madhan v. Sub Registrar [2014 (1) KLT 406] the
WP(C).No.15128 OF 2020(M)
question that came up for consideration before this Court was
whether the attachments effected subsequent to the creation of
equitable mortgage will be effaced after the property is purchased
by another in a sale conducted by the Recovery Officer of the Debt
Recovery Tribunal. This Court held that, preponderance of judicial
opinion leads to the irresistible conclusion that the sale of the
mortgaged property in favour of the petitioner under Ext.P5 sale
certificate is free of all encumbrances. The attachments effected
subsequent to the mortgage created in favour of the bank do not
affect the title and ownership of the petitioner over the subject
property. Such attachments have no impact on the sale conducted
by the Recovery Officer and the same ceases to have any effect or
fall to the ground the moment the sale is confirmed in favour of the
petitioner. Therefore, this Court directed the Sub-Registrar and the
Village Officer to efface the attachments effected subsequent to the
mortgage from the relevant records.
5. In Keechery Service Co-operative Bank Ltd. v.
Sajitha Nizar [2020 (5) KHC 231] a Division Bench of this Court
agreed with the declaration of law in Madhan. Paragraphs 6 and 7
of that judgment read thus;
WP(C).No.15128 OF 2020(M)
"6. The issue was again considered by a Division Bench of
this Court in an unreported decision in Ali Asharaf M.M. &
another v. Sub Registrar, Thrissur [W.A.No.612 of 2015].
That was a case where the appellants/writ petitioners
purchased property in question in an auction proceedings
conducted under the SARFAESI Act. The appellants -
petitioners were constrained to approach this Court by filing
W.P.(C)No.23435 of 2014, from which the said appeal arose,
on account of refusal on the part of the Village Officer to
effect mutation of the property purchased by them in the
auction under the SARFAESI Act. The reason for not effecting
mutation was an order of attachment effected by Munsiff
Court, Thrissur in respect of the same property. The learned
Single Judge as per judgment dated 13.10.2014 in W.P.
(C)No.23435/2014 directed the writ petitioners to approach
Munsiff Court, Thrissur for vacating the order of attachment
in respect of the property purchased by them in the auction
sale conducted under the SARFAESI Act. The Division Bench
took note of the indisputable and undisputed fact that the
attachment of the property involved therein was subsequent
to the date of mortgage of the said property with the Bank
whose Authorised Officer conducted the auction proceedings
under the SARFAESI Act. In the said circumstances, the
Division Bench, in full agreement with the dictum laid down
in Madhan's case (supra), declared that the attachments
effected by the Munsiff Court, Thrissur after the date of
mortgage are invalid and consequently, directed the Sub
Registrar and the Village Officer, concerned to efface the
attachments effected after 8.7.2008 that is, the date on
WP(C).No.15128 OF 2020(M)
which the mortgage of the property was created with the
Bank.
7. In the light of the aforesaid declaration of law by this
Court the order of dismissal of the petition filed for lifting the
attachment ordered under Ext.R7(a) viz., Ext.R7(b) by the
Federal Bank would pale into insignificance. We do not find
any reason to disagree with the declaration of law in
Madhan's case (supra) which was virtually affirmed by the
Division Bench in Ali Asharaf's case (supra). In the said
circumstances and taking note of the fact that the orders of
attachment of the property in question were after the
creation of equitable mortgage of the same with Federal Bank
we do not find any reason to interfere with the impugned
judgment passed by the learned Single Judge following the
dictum in Madhan's case (supra), carrying the directions to
effect mutation of the property as also to efface all
encumbrance over the property effected after 27.6.2014, the
date on which the property in question was mortgaged with
Federal Bank." (underline supplied)
6. In the instant case, going by the averments in the writ
petition, the property having an extent of 10 cents comprised in
Sy.No.477/1A/37/9A of Pindimana Village covered by documents
Nos.291 of 2000 and 2484 of 2010 of the Sub Registrar Office,
Kothamangalam was mortgaged with the petitioner on 08.10.2012.
The attachment in Ext.P3 encumbrance certificate dated
02.07.2020 for the period from 01.01.2008 to 26.06.2020 and that
WP(C).No.15128 OF 2020(M)
in Ext.P4 encumbrance certificate dated 02.07.2020 in respect of
the properties covered by document Nos.291 of 2000 and 2484 of
2010 of the Sub Registrar Office, Kothamangalam, are made on
24.12.2016, much after the mortgage. In paragraph 3 of the
statement filed by the 1st respondent it is admitted that while the
property was under mortgage, attachment order was filed in the
Office of the Sub Registrar, Kothamangalam as F172/2016.
Therefore, it is an admitted fact that the order of attachment
shown in Ext.P3 and P4 encumbrance certificates are much after
the date of mortgage, i.e., 08.10.2012. In view of the law laid
down in Madhan [2014 (1) KLT 406] and Keechery service
Co-operative Bank Ltd. [2020 (5) KHC 231] such attachments
have no impact on the sale conducted by the Recovery Officer, of
the properties in question, which are mortgaged to the petitioner
secured creditor, on 08.10.2012.
In such circumstances, this writ petition is disposed of by
directing the 1st respondent Sub Registrar and the 3rd respondent
Village Officer to efface/delete the attachment recorded in the
relevant books as well as in Exts.P3 and P4 encumbrance
certificates on the immovable property comprised in
WP(C).No.15128 OF 2020(M)
Sy.No.477/1A/37/9A of Pindimana Village covered by document
Nos.291 of 2000 and 2484 of 2010 of the Sub Registrar Office,
Kothamangalam, within a period of six weeks from the date of
receipt of a certified copy of this judgment.
No order as to costs.
Sd/-
ANIL K.NARENDRAN
JV JUDGE
WP(C).No.15128 OF 2020(M)
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE 13(2) NOTICE ISSUED
TO THE BORROWERS.
EXHIBIT P2 THE TRUE COPY OF THE POSSESSION NOTICE
ISSUED BY THE PETITIONER ON 29.3.2016.
EXHIBIT P3 THE TRUE COPY OF THE ENCUMBRANCES
CERTIFICATE DATED 1.1.2008 TILL
26.6.2020.
EXHIBIT P4 THE TRUE COPY OF THE ENCUMBRANCE
CERTIFICATE DATED 1.1.2008 TILL
26.6.2020.
EXHIBIT P5 THE JUDGMENT OF THIS HON'BLE COURT IN
W.P.(C) 13123/2018 DATED 12.4.2018.
EXHIBIT P6 WRIT PETITION WP(C)35979 OF 2018 OF THIS
HON'BLE COURT DATED 5.11.2018.
