Sundaram Home Finance Ltd vs State Of Kerala
2021 Latest Caselaw 12970 Ker

                     IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                        PRESENT
                      THE HONOURABLE MR. JUSTICE GOPINATH P.
       WEDNESDAY, THE 16TH DAY OF JUNE 2021 / 26TH JYAISHTA, 1943
                              WP(C) NO. 10735 OF 2021
PETITIONER:

                  SUNDARAM HOME FINANCE LTD.,
                  FORMERLY KNOWN AS SUNDARAM BNP PARIBAS, HOME FINANCE
                  LTD., SUNDARAM TOWERS, 46, WHITES ROAD, CHENNAI, PIN-600
                  014, REPRESENTED BY ITS AUTHORISED OFFICER, MR.ABU ROSHAN
                  ANDREWS, AGED 33 YEARS, S/O.JOSHY CYRIAC.

                  BY ADV VARGHESE C.KURIAKOSE



RESPONDENTS:

       1          STATE OF KERALA,
                  REPRESENTED BY SECRETARY,
                  DEPARTMENT OF REVENUE, SECRETARIAT, TRIVANDRUM-695 001.

       2          THE SUB REGISTRAR,
                  SUB REGISTRY OFFICE, RAJAPURAM, KASARAGODE-671 532.

       3          THE VILLAGE OFFICER, KODOTH VILLAGE OFFICE,
                  KODOTH, KASARAGODE-671 531.

       4          THE TAHSILDAR, TALUK OFFICE,
                  HOSDURG TALUK, TALUK OFFICE, HOSDURG,
                  KASARAGODE, PIN-671 315.
OTHER PRESENT:

                  GP MANOJ P M



THIS       WRIT    PETITION   (CIVIL)   HAVING    COME   UP   FOR   ADMISSION   ON
16.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP (C) No.10735/2021                      -2-

                                     JUDGMENT

The petitioner is a Housing Finance Institution as defined under the National

Housing Bank Act, 1987. The grievance projected by the writ petitioner is the failure

on the part of the 3rd respondent to issue a Record of Rights Certificate under the

provisions of the Kerala Record of Rights Act, 1968.

2. The petitioner initiated proceedings against in respect of a property

having an extent of 4.45 Ares comprised in Re-Survey No.1/43-A/1B situated in

Kodoth Village, Hosdurg Taluk, Kasaragod District under the Provisions of the

Securitisation & Reconstruction of Financial Assets & Enforcement of Security Interest

Act, 2002 (hereinafter referred to as the 'SARFAESI' Act for short). On failure to find

any bidder in a public auction, the petitioner entered into a private treaty for sale of

the property to one Sathyanadhan. Ext.P2 is the said private treaty. Following Ext.P2,

a Sale Certificate (Ext.P3) was also issued in favour of the aforesaid Sathyanadhan.

However, for failure to produce a Record of Right Certificate, the Sale Certificate could

not be registered.

3. Section 3 of the Kerala Record of Rights Act, 1968 (hereinafter referred to

as 'the Act') reads as follows:-

"3. Preparation of record of rights.-

(1) A record of rights shall be prepared by the prescribed officer in the prescribed manner in respect of any area or areas notified by the Government in this behalf in the Gazette.

(2) The record of rights in respect of any land shall include the following particulars namely:-

(a) the description and extent of the land;

(b) the name and address of the person in occupation of the land;

(c)the names and addresses of other persons interested in the land;

(d) the nature and extent of the respective interest of the persons referred to in clause (b) and (c):

(e) the names and addresses of the kudikidappukars, if any; and

(f) such other particulars as may be prescribed.

(3) The record of rights shall be maintained by such officer as may be prescribed, and different officers may be prescribed for different areas."

4. A reading of Section 3 of the Act shows that the particulars entered in the

Record of Rights includes, among other things, the name and address of the person in

occupation of the land, the names and addresses of other persons interested in the

land and the nature and extent of the respective interest of persons referred to in

clause (b) and (c) of Section 3 of the Act. Obviously, a secured creditor initiating

action under the provisions of the SARFAESI Act will not find mention in the Record

of Rights. This Court, in Jacob v. Village Officer; 2020 (4) KLT 271 has, following

the judgment in Synudheen v. State of Kerala; 2013 (1) KLT 221, taken the view

that as long as the provisions of the Registration Act and the Registration Rules have

not been amended so as to compulsorily insist for production of the certificate under

the Act, such requirement cannot be insisted upon by the registration authorities.

Further, a Sale Certificate (for immovable property) issued by the secured creditor

under the provisions of the SARFAESI Act is issued in a statutory form namely, that

given in Appendix - V of the Security Interest (Enforcement) Rules, 2002. The

registering authority cannot, obviously, refuse to register such a Sale Certificate in

statutory form on the ground that a certificate showing Record of Rights in favour of

the secured creditor has not been produced. As already noticed, the provisions of

Section 3 of the Act shows that only the name of the owner of the property and the

nature of his interest will be recorded in the Record of Rights. The provisions of the

Act and/or the Registration Rules cannot defeat the rights of the secured creditor.

Accordingly, this writ petition will stand disposed of directing that the 2 nd

respondent shall forthwith register Ext.P3 Sale Certificate in accordance with law

without insisting upon a Record of Rights Certificate.

Sd/-

GOPINATH P.

JUDGE

acd

APPENDIX OF WP(C) 10735/2021

PETITIONER ANNEXURE

EXHIBIT P1 TRUE PHOTOSTAT COPY OF THE POSSESSION NOTICE DATED 13.04.2015.

EXHIBIT P2 TRUE PHOTOSTAT COPY OF THE AGREEMENT FOR SALE OF PROPERTY.

EXHIBIT P3 TRUE PHOTOSTAT COPY OF THE SALE CERTIFICATE PREPARED IN THE NAME OF SATHYANATHAN,

EXHIBIT P4 TRUE PHOTOSTAT COPY OF THE APPLICATION DATED 12.04.2021 BEFORE THE 3RD RESPONDENT.

EXHIBIT P5 TRUE PHOTOSTAT COPY OF THE JUDGMENT DATED 10.04.2019 IN WPC NO.8819/2019 PASSED BY THIS HONOURABLE COURT.