H.D.Subash vs The District Collector, ...
2021 Latest Caselaw 21913 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
   WEDNESDAY, THE 3RD DAY OF NOVEMBER 2021 / 12TH KARTHIKA, 1943
                       WP(C) NO. 23953 OF 2021
PETITIONER:

          H.D.SUBASH
          AGED 48 YEARS
          S/O. DAVID, ANU BHAVANAM, CHOORAKKUZHY, PARASSALA,
          THIRUVANANTHAPURAM DISTRICT.

          BY ADVS.
          GEORGE SEBASTIAN
          B.S.SURESH KUMAR



RESPONDENTS:

    1     THE DISTRICT COLLECTOR, THIRUVANTHAPURAM
          2ND FLOOR, CIVIL STATION BUILDING, CIVIL STATION ROAD,
          TRIVANDRUM, PIN CODE-695043.

    2     THE REVENUE DIVISIONAL OFFICER,
          KUDAPPANAKUNNU, THIRUVANANTHAPURAM, PIN CODE-695043.

    3     THE TAHSILDAR (LAND RECORDS),
          TALUK OFFICE, ALUMMODU, NEYYATINKARA -695121.

    4     THE VILLAGE OFFICER,
          PARASSALA VILLAGE OFFICE, THIRUVANANTHAPURAM DISTRICT,
          PIN CODE-695502.

    5     THE SUB REGISTRAR,
          PARASSALA, THIRUVANANTHAPURAM DISTRICT, PIN-695502.

    6     THE CHIEF MANAGER/AUTHORISED OFFICER,
          INDIAN BANK, ZONAL OFFICE, THIRUVANANTHAPURAM, PIN
          CODE-695001.

          SMT. RESMITHA RAMACHANDRAN .G.P


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
03.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 23953 OF 2021
                                    2

                                 JUDGMENT

The petitioner claims to be the auction

purchaser of a certain property sold by the 6th

respondent - Bank, under the provisions of the

Securitisation and Reconstruction of Financial

Assets and Enforcement of Securities Interest

Act ('the SARFAESI Act' for brevity).

2. He asserts that after the sale

certificate was issued to him, he had presented

it before the 5th respondent - Sub Registrar,

who registered it, which consequentially led to

the transfer of Registry of the property

covered by it. He says that, however, a few

orders of attachments are still reflected over

the property in the encumbrance certificate,

which is now impeding his enjoyment of the

property fully. He, says that he, therefore,

approached the 5th respondent seeking that the

encumbrances over the property, subsequent to WP(C) NO. 23953 OF 2021

the mortgage executed by the original owner of

the property in favour of the 6th respondent -

Bank on 04.07.2011, be effaced in the light of

the judgment of this court in Secretary,

Keechery Service Co-operative Bank Ltd., v.

Sajitha Nizar Alias Sajitha P.M. (2020 (6)

KLT 68)

3. The learned Government Pleader -

Smt.Resmitha Ramachandran, appearing for

respondents 1 to 5, submitted that since the

petitioner's request for transfer of Registry

of the property has already been acceded to,

his further request for effacing the orders of

attachments from the encumbrance certificate is

not possible because they have been issued by

competent Civil Courts.

4. Sri.S.Easwaran - learned Standing

Counsel appearing for respondent No.6, affirmed

that the equatable mortgage over the property

in his client's favour was made on 04.07.2011. WP(C) NO. 23953 OF 2021

He thus supported the petitioner in his prayer

that the entries reflected in the encumbrance

certificate with respect to attachments

subsequent to the said date be effaced.

5. When I consider the afore submissions,

it is clear that the issues in this case have

already been affirmatively considered and

answered in favour of the petitioner by this

Court in Keechery (supra). I am, therefore, of

the view that the petitioner is certainly

entitled to the benefit of the declarations

contained therein.

6. That being said, since the Bank affirms

that the mortgage was of the year 2011 and

since all the entries in Ext.P4 encumbrance are

subsequent to the said date, I am of the

opinion that the 5th respondent is bound to

consider the petitioner's request and efface

the same, taking note of the afore precedent.

7. In the afore circumstances, I direct WP(C) NO. 23953 OF 2021

the 5th respondent to immediately hear the

petitioner, and if there is nothing to

demonstrate against the claim of the Bank that

the mortgage was obtained by them in the year

2011, he shall immediately proceed to efface

all the attachments reflected in the

encumbrance certificate after that date; and

issue to the petitioner a fresh one, so as to

enable him to use this property without

impediment in future.

8. The afore shall be done by the 5th

respondent as expeditiously as is possible, but

not later than one month from the date of

receipt of a copy of this judgment.

This writ petition is thus ordered.

Sd/-

DEVAN RAMACHANDRAN JUDGE SAS/03/11/2021 WP(C) NO. 23953 OF 2021

APPENDIX OF WP(C) 23953/2021

PETITIONER'S EXHIBITS

Exhibit P1 TRUE COPY OF THE SALE DEED DATED 8.6.2018 EXECUTED IN FAVOUR OF THE PETITIONER BY THE 6TH RESPONDENT.

Exhibit P2 TRUE COPY OF THE REPRESENTATION DATED NIL SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

Exhibit P3 TRUE COPY OF THE COMMUNICATION DATED 2.8.2018 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT.

Exhibit P4 TRUE COPY OF THE JUDGMENT DATED 12.11.2018 IN WP(C) NO.33729/2018.

Exhibit P5 TRUE COPY OF THE LAND TAX RECEIPT OF THE PETITIONER'S PROPERTY DATED 29.3.2021.

Exhibit P6 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE DATED 2.9.2021 IN RESPECT OF THE PETITIONER'S PROPERTY FROM 1.1.1992 TO 1.9.2021.