Kerala High Court
Shaji Ittiyavirah vs The Village Officer on 9 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
TUESDAY, THE 9TH DAY OF NOVEMBER 2021 / 18TH KARTHIKA, 1943
WP(C) NO. 21477 OF 2021
PETITIONER:
SHAJI ITTIYAVIRAH
AGED 53 YEARS
S/O. ITTIYAVIRAH, VATTAPPARAYIL HOUSE, PONKUNNAM
NORTH, PONKUNNAM-686506.
BY ADVS.
LIJI.J.VADAKEDOM
TOM E. JACOB
REXY ELIZABETH THOMAS
RESPONDENTS:
1 THE VILLAGE OFFICER
CHIRAKKADAVU VILLAGE OFFICE, CHIRAKKADAVU,
KOTTAYAM-686506.
2 THE SUB REGISTRAR,
KANJIRAPPALLY, KOTTAYAM-686507.
3 CHINNAPPAN,
S/O. THOMAS, PUTHUPARAMBIL HOUSE, CHIRAKKADAVU,
PONKUNNAM P.O., KOTTAYAM-686506.
4 SML FINANCE LTD.,
REG. OFFICE AT BETHANY COMPLEX, THRISSUR ROAD,
KUNNAMKULAM-680503, THRISSUR AND HAVING CORPORATE
OFFICE AT SML BUILDING, TOLL JUNCTION, PUKKATTUPADY
ROAD, EDAPPALLY, COCHIN-682024, REPRESENTED BY ITS
MANAGING DIRECTOR.
OTHER PRESENT:
SMT RESHMITHA RAMACHANDRAN - GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
09.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 21477 OF 2021
2
JUDGMENT
The petitioner says that he purchased a property
comprised of 3.46 Ares in Chirakkada Village through Ext. P1
Sale Deed dated 10/10/2019. He says that he had caused due
diligence of the property at the time when the constructions
were made by him and that there were no records anywhere
as regards any prior charge over it, which is evident from the
fact that the originals of Exts.P4 and P4(a) title deeds were
also handed over to him by the 3 rd respondent, who is the
original owner.
2. The petitioner says that, however, when he obtained
Ext.P2 Encumbrance Certificate from the office of the 1 st
respondent - Sub Registrar, to avail a financial facility on the
strength of the said property, he came to be aware that there
is an order of attachment marked on it, which is dated
25/11/2019. He says that this order has been produced on
record as Ext.P3, from which, it is clear that it is pursuant to
an arbitration proceedings initiated by the 4 th respondent
against the original owner of the property, namely the 3 rd
WP(C) NO. 21477 OF 2021
respondent, with respect to a vehicle loan.
3. The petitioner contends that since he had purchased
the property in question much before the order of attachment
had been brought over the property at the instance of the 4 th
respondent, the Sub Registrar is obligated in law, particularly,
on account of the various judgments of this Court, to efface
the orders of attachment from the Encumbrance Certificate, so
as to enable him to use his property without impediment in
future.
4. I have heard Sri. Liji. J. Vadakkedom - learned
counsel for the petitioner and Smt. Resmitha Ramachandran -
learned Government Pleader appearing for respondents 1 and
2.
5. Even though notices from this Court have been
validly served on respondents 3 and 4, they have chose not to
be present in person or to be represented through counsel;
inferentially guiding me to the impression that they have
nothing to offer in answer to the various allegations made and
the reliefs sought for in this writ petition.
6. Smt. Resmitha Ramachandran - learned
WP(C) NO. 21477 OF 2021
Government Pleader submitted that the 2nd respondent - Sub
Registrar is incapacitated from acceding to the request of the
petitioner because Ext.P3 is an order of a competent Authority.
She, however, submitted that if this Court is inclined to grant
relief to the petitioner, the second respondent will have no
objection in doing so, provided the petitioner convinces that
the originals of Ext.P1 Sale Deed was executed prior to Ext.P3
order.
7. When I consider the afore submissions and go
through the materials available on record, prima facie, it
appears that Ext.P1 Sale Deed was executed on 10/10/2019;
while Ext.P3 order of attachment was issued only on
23/11/2019. Going by the well recognized principles of
creation and priority of charges over properties, it is
ineluctable that if the afore facts are accurate, then the
petitioner is justified in seeking that the endorsement relating
to the attachment on Ext.P3 Encumbrance Certificate
deserves to be effaced.(see for support Secretary, Keechery
Service Co-operative Bank Ltd., V. Sajitha Nizar Alias
Sajitha P.M.(2020 (6) KLT 68).
8. In the afore circumstances, I direct the petitioner to
WP(C) NO. 21477 OF 2021
mark appearance before the 2 nd
respondent - Sub Registrar on
17/11/2021, along with the originals of Exts.P1, P4 and P4(a)
title documents; in which event the said Authority will verify
the same and if it is found that Ext.P1 was executed on
10/10/2019 and that Ext.P3 is issued only on 25/11/2019,
then the request of the petitioner will be immediately acceded
to and a new Encumbrance Certificate issued, without an entry
regarding Ext.P3.
9. The afore exercise shall be completed by the 2 nd
respondent - Sub Registrar, within a period of one week from
17/11/2021.
10. Needless to say, the petitioner will be, thereafter at
full liberty to move the Village Officer for effacing the entry
regarding Ext.P3 in any of the village records appropriately,
who will thereupon be guided by the afore directions.
This writ petition is thus ordered.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
ANB
WP(C) NO. 21477 OF 2021
APPENDIX OF WP(C) 21477/2021
PETITIONER EXHIBITS
Exhibit P1 THE COPY OF THE SALE DEED NO.2031/2019
DATED 10.10.2019 OF THE SRO,
KANJIRAPPALLY.
Exhibit P1(A) THE COPY OF THE TAX RECEIPT DATED
2.12.2020 ISSUED BY THE VILLAGE OFFICER,
CHIRAKKADAVU SHOWING REMITTANCE OF TAX
FOR THE SAID PROPERTY OF 3.46 ARES.
Exhibit P2 THE COPY OF THE ENCUMBRANCE CERTIFICATE
DATED 23.1.2021 ISSUED FROM THE SRO,
KANJIRAPPALLY WITH RESPECT TO THE
PROPERTY 3.46 ARES.
Exhibit P3 THE COPY OF THE INTERIM ORDER OF
ATTACHMENT DATED 25.11.2019 ISSUED BY THE
ARBITRAL TRIBUNAL IN I.A.NO.11/2019 IN
ARB.REF.NO.101/2019 RECEIVED FROM THE
SRO, KANJIRAPPALLY.
Exhibit P4 THE COPY OF THE PARTITION DEED
NO.5932/1995 OF THE SRO, KANJIRAPPALLY.
Exhibit P4(A) THE COPY OF SETTLEMENT DEED 5937/1995 OF
THE S.R.O. KANJIRAPPALLY.
Exhibit P5 THE COPY OF THE JUDGMENT DATED 24.7.2015
IN W.A.NO.612/2015 BEFORE THIS HONOURABLE
COURT.
Exhibit P6 THE COPY OF THE JUDGMENT DATED 14.9.2021
IN WP(C) NO.17868/2021 BEFORE THIS
HONOURABLE COURT.
