Bank Of Baroda vs State Of Kerala
2021 Latest Caselaw 4583 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

         THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

TUESDAY, THE 09TH DAY OF FEBRUARY 2021 / 20TH MAGHA,1942

                  WP(C).No.15455 OF 2020(F)


PETITIONER:

              BANK OF BARODA
              ROSARB, ERNAKULAM, PALLIMUKKU, M.G. ROAD,
              ERNAKULAM REPRESENTED BY ITS CHIEF MANAGER.

              BY ADVS.
              SRI.K.M.ANEESH
              SRI.K.SANTHOSH KUMAR (KALIYANAM)
              SRI.ADARSH KUMAR
              SRI.BIJU VARGHESE ABRAHAM
              SRI.DILEEP CHANDRAN
              SRI.SHASHANK DEVAN

RESPONDENTS:

     1        STATE OF KERALA
              REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
              DEPARTMENT OF TAXES, THIRUVANANTHAPURAM 695
              001.

     2        DISTRICT COLLECTOR,
              COLLECTORATE , CIVIL STATION, KOLLAM 691 013.

     3        THAHSILDAR
              (REVENUE RECOVERY), PUNALUR, KOLLAM DISTRICT
              691 305.

     4        SUB REGISTRAR,
              SUB REGISTRARS OFFICE, ANCHAL P.O. KOLLAM
              DISTRICT 691 306.

     5        VILLAGE OFFICER,
              ANCHAL VILLAGE, ANCHAL P.O. KOLLAM DISTRICT
              691 306.
                               -2-
WP(C).No.15455 OF 2020(F)

       6      BAIJU LAL M.,
              PARANKIMAMVILA VEEDU, NO. B/6/90, AGASTICODE,
              PRATHIBHA NAGAR, AREEPLACHY P.O. KOLLAM
              DISTRICT 691 333.

       7      VISHNU PRIYA T RAJ,
              W/O. BAIJU LAL M, PARANKIMAMVILA VEEDU,
              AGASTICODE, PRATHIBHA NAGAR, AREEPLACHY P.O.
              KOLLAM DISTRICT 691 333.

       8      LALKUMAR G.,
              S/O. GOPINATHAN .D,
              CHENAVILA VEEDU, AGASTHYACODE, ANCHAL P.O.
              KOLLAM DISTRICT, 691 306.

              R1 TO 5 BY SMT K.AMMINIKUTTY - SR
              GOVT.PLEADER
              R6 BY ADV. SRI.PRAVEEN K. JOY
              R6 BY SRI ABHILASH N
              R8 BY ADV. SRI.BINU MATHEW
              R8 BY ADV. KUM.T.M.KRISHNA PRIYA


     THIS WRIT PETITION (CIVIL) HAVING COME UP             FOR
ADMISSION ON 09.02.2021, THE COURT ON THE SAME             DAY
DELIVERED THE FOLLOWING:
                                  -3-
WP(C).No.15455 OF 2020(F)

                             JUDGMENT

The petitioner, who is a secured creditor of the property

having an extent of 3.80 Ares (9.390 cents) comprised in

Re.Sy.No.387/12, Block No.33 of Anchal Village, covered by

Ext.P1 sale certificate dated 10.02.2020 executed under Rule

9 of the Security Interest (Enforcement) Rules, 2002 in favour

of the 8th respondent, has filed this writ petition under Article

226 of the Constitution of India, seeking a writ of mandamus

commanding the 4th respondent Sub Registrar, Anchal to

register the original of Ext.P1 sale certificate executed by the

petitioner in favour of the 8th respondent, after effacing the

attachments, at the instance of the 1 st respondent State. The

petitioner has also sought for a writ of mandamus

commanding the 5th respondent Village Officer, Anchal to

effect transfer of registry of the properties covered by Ext.P1

sale certificate in favour of the 8 th respondent and to permit

the 8th respondent to pay property tax in his name once the

registration of the original of Ext.P1 sale certificate is

completed.

2. On 03.08.2020, when this writ petition came up for

WP(C).No.15455 OF 2020(F)

admission, this Court issued notice before admission to the

respondents. The learned Government Pleader took notice for

respondents 1 to 5. Notice by speed post was ordered to

respondents 6 to 8. The learned counsel for the petitioner

submitted that the party respondents have preferred an

application before the Debt Recovery Tribunal, Ernakulam and

therefore, the petitioner may be permitted to serve notice to

the learned counsel appearing for respondents 6 to 8 in that

proceedings. By the order dated 03.08.2020, the petitioner

was permitted to serve copy to the learned counsel appearing

for respondents 6 to 8 and file memo.

3. On 18.11.2020, the 6th respondent has filed

counter affidavit, opposing the reliefs sought for in this writ

petition. On 18.11.2020, this Court passed the following

order;

"I have heard Sri.Aneesh K.M., the learned counsel appearing for the petitioner and the learned Government Pleader.

In the statement filed by the learned Government Pleader, it is stated that the petitioner has neither presented the sale certificate before the 4th respondent after complying with the procedure and on remitting the

WP(C).No.15455 OF 2020(F)

requisite fees. It is further stated that if the sale certificate is presented before the 4 th respondent duly stamped and in a prescribed manner, he would act in terms of the Act and Rules.

The party respondents seek time to file a counter. However, it shall be open to the petitioner to present the document duly stamped before the 4th respondent by following the procedure and if the same is done, the 4th respondent shall act in terms of law.

4. Heard the learned counsel for the petitioner, the

learned Government Pleader appearing for respondents 1 to

5, and also the respective counsel for respondents 6 and 8.

Service of notice is not complete on the 7 th respondent, since

notice returned with an endorsement 'unclaimed'. The 7 th

respondent is the wife of the 6 th respondent. They are the

borrowers, who reside in the very same address. In such

circumstances, service of notice on the 7th respondent is

dispensed with.

5. As per the averments in the writ petition, the

property covered by Ext.P1 sale certificate was mortgaged

with the Bank on 03.10.2015, in connection with the loan

availed by respondents 6 and 7. As per Ext.P2 encumbrance

certificate dated 25.02.2020, an attachment was effected on

WP(C).No.15455 OF 2020(F)

that property, on 10.07.2018. Along with I.A.No.2 of 2020,

the petitioner has placed on record Ext.P3 letter of

confirmation of mortgage dated 25.10.2015, in order to show

that the property covered by Ext.P1 sale certificate was

mortgaged with the petitioner Bank on 03.10.2015, as stated

in the writ petition.

6. During the course of arguments, the learned

Government Pleader, on instructions, would submit that Ext.P1

sale certificate has already been registered by the 4 th

respondent Sub Registrar on 27.11.2020.

7. Now, what remains to be considered is effacement

of the attachment effected on 10.07.2018, on the property

covered by Ext.P2 encumbrance certificate issued by the 4 th

respondent in respect of the property covered by Ext.P1 sale

certificate.

8. In Madhan v. Sub Registrar [2014 (1) KLT

406] the 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

WP(C).No.15455 OF 2020(F)

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.

9. 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;

"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

WP(C).No.15455 OF 2020(F)

[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

WP(C).No.15455 OF 2020(F)

8.7.2008 that is, the date on 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)

10. As already noticed, the property covered by Ext.P1

certificate was mortgaged with the petitioner Bank on

03.10.2015 in connection with the loan availed by

respondents 6 and 7, as evident from Ext.P3 letter of

confirmation of mortgage dated 05.10.2015, much prior to the

WP(C).No.15455 OF 2020(F)

attachment effected on that property, on 10.07.2018, as per

Ext.P2 encumbrance certificate dated 25.02.2020.

11. In view of the law laid down by this Court in the

decisions referred to supra, this writ petition is disposed of by

directing the 4th respondent Sub Registrar and the 5th

respondent Village Officer to efface/delete the attachment

recorded in Ext.P2 encumbrance certificate on the immovable

property covered by Ext.P1 sale certificate, within a period of

six weeks from the date of receipt of a certified copy of this

judgment.

No order as to cost.

Sd/-

ANIL K.NARENDRAN, JUDGE AV/09/02

WP(C).No.15455 OF 2020(F)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE SALE CERTIFICATE DATED 10.02.2020 ISSUED IN FAVOUR OF 8TH RESPONDENT.

EXHIBIT P2             TRUE COPY OF THE ENCUMBRANCE
                       CERTIFICATE ISSUED BY THE 4TH
                       RESPONDENT.

EXHIBIT P3             TRUE COPY OF THE CONFIRMATION OF
                       MORTGAGE EXECUTED BY RESPONDENTS 6 AND


RESPONDENT'S/S EXHIBITS:

EXHIBIT R6(a):         TRUE PHOTOCOPY OF THE GAZZETTE
                       NOTIFICATION DATED 24/01/2020.