Canara Bank vs Inspector General Of ...
2021 Latest Caselaw 22590 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
               THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
     FRIDAY, THE 19TH DAY OF NOVEMBER 2021 / 28TH KARTHIKA, 1943
                          WP(C) NO. 21019 OF 2021


PETITIONER:

              CANARA BANK, TRISSUR WEST PALACE BRANCH, SRI.KRISHNA
              BUILDINGS, 1ST FLOOR, WEST PALACE, THRISSUR, PIN -
              680020, REPRESENTED BY ITS BRANCH MANAGER, BIJIMOLE A.S.

              BY ADVS.
              AJEESH S.BRITE
              SAJU.K.PERUTTY
              FRANCIS ASSISI
              STEPHY JOSEPH
              SEREENA P.A.


RESPONDENTS:

    1         INSPECTOR GENERAL OF REGISTRATION
              DEPARTMENT OF REGISTRATION KERALA, VANCHIYOOR,
              THIRUVANANTHAPURAM - KERALA - PIN - 695035.

    2         SUB REGISTRAR, NELLAYI SUB REGISTER OFFICE,
              SERVICE ROAD, VILLAGE, NELLAYI, KERALA - 680305.

    3         SECRETARY, AYYANTHOLE SERVICE CO-OPERATIVE BANK LTD NO.
              494, AYYANTHOLE P.O, THRISSUR - 680003.

    4         THRISSUR AUTO CENTER, HPC DEALER, NH 47, MARATHAKKARA,
              THRISSUR - 680320.

    5         MATHEW , S/O. SEBASTIAN, RESIDING AT MANNUMEL HOUSE,
              KANDASSANKADAVU P.O, THRISSUR, PIN - 680613.

    6         JAYA JOSE, W/O. GLANNY, RESIDING AT CHEMMANNUR HOUSE,
              PULLAZHI P.O, OLARIKKARA, THRISSUR, PIN - 680012.

    7         GLANNY C.J., S/O. JOSEPH, RESIDING AT CHEMMANNUR HOUSE,
              PULLAZHI P.O, OLARIKKARA, THRISSUR, PIN - 680012.
 WPC 21019/21
                                          2

    8          PAUL DEVASSY CHITTILAPPILY, S/O. DAVASSY
               CHITTILAPILLY, RESIDING AT B-603, MAHAVIR
               RACHANA, PALM BEACH ROAD, SECTOR 15, C.B.D.
               BELAPUR, NAVI MUMBAI, MAHARASHTRA, PIN - 400614.

               BY ADVS.
               DILIP J. AKKARA
               M.R.DHANIL
               JISHY P.S.
               SR GP SMT AMMINIKKUTTY


        THIS     WRIT   PETITION   (CIVIL)    HAVING   COME    UP    FOR
ADMISSION       ON   19.11.2021,   THE   COURT   ON    THE    SAME   DAY
DELIVERED THE FOLLOWING:
 WPC 21019/21
                                              3



                               JUDGMENT

The Canara Bank, which is a Banking Company

constituted under the provisions of Banking Companies

(Acquisition and Transfer of Undertaking) Act, 1970, has

approached this Court alleging that the 2nd respondent - Sub

Registrar is unfairly refusing to register Ext.P2 Sale Certificate

issued by them in favour of the 8th respondent, who is the

auction purchaser of a certain property which was brought to

sale by them under the provisions of Securitisation and

Reconstruction of Financial Assets and Enforcement of Securities

Interest Act ('the SARFAESI Act' for brevity).

2. Sri.Ajeesh S. Brite - learned Standing Counsel for

the petitioner-Bank, submitted that though the sale was

conducted validly under the provisions of the SARFAESI Act

and though the Ext.P2 was issued in terms of law, the 2nd

respondent has refused to accept it merely saying that there is WPC 21019/21

a mortgage reflected on the property at the instance of the 6th

respondent in favour of the 3rd respondent - Ayyanthole

Service Co-operative Bank Ltd. He vehemently asserted that this

mortgage was subsequently redeemed and that the entire

amount due to the 3rd respondent has been paid off and that it

was only thereafter, his client obtained equitable mortgage over

it on 03.07.2013. He, therefore, prayed that this Writ Petition

be allowed.

3. Smt.K.Amminikutty - learned Senior Government

Pleader appearing for respondents 1 and 2, submitted that since

there is nothing on record to show that the mortgage reflected

in Ext.P3 Encumbrance Certificate, in favour of the 3rd

respondent, has, in any manner, been released and that since

no such document was produced by the petitioner before the

2nd respondent, he was incapacitated from accepting their

version and to register Ext.P2 Sale Certificate.

4. Sri.Dilip J. Akkara - learned counsel for the 4th WPC 21019/21

respondent, submitted that his client has already moved an

application before the jurisdictional Debts Recovery Tribunal

(DRT for short) to set aside the sale conducted by the Bank;

and therefore, prayed that this Court may not accede to any

relief sought for in this Writ Petition.

5. I notice from the files that even though summons

from this Court have been validly served on respondents 6 and

7, they have chosen not to be present in person or to be

represented through counsel; while summons issued to the 5th

respondent has been returned with the endorsement 'insufficient

address'. However, it is conceded by Sri.Dilip J. Akkara that

respondents 5 to 7 were co-borrowers and guarantors of the

loan availed by his client - the 4th respondent and am,

therefore, of the view that non-service of notice to the 5th

respondent for the above reason would not inhibit me from

disposing of this Writ Petition in the manner that I propose.

6. When I evaluate the rival contentions, it is clear that WPC 21019/21

the only reason now stated by the Sub Registrar in not

accepting and registering Ext.P2 Sale Certificate is that there is

a mortgage ('Gehan') seen to have been executed by the 6th

respondent, who is the owner of the property, in favour of the

3rd respondent-Co-operative Bank. However, the petitioner -

Bank asserts that this mortgage had been released and that it

was, thereafter, that they accepted the equitable mortgage from

the owners and granted a loan facility to the 4th respondent.

7. That said, however, the petitioner-Bank has

produced Ext.P4 certificate issued by the 3rd respondent on

record, which limpidly certifies that the mortgage executed in

their favour earlier has been redeemed and that no amounts are

now due to them. Pertinently, this document has not been

contested by the 4th respondent.

8. In the afore circumstances and taking note of Ext.P4

certificate issued by the 3rd respondent, which remains

unimpeached, I am certainly of the view that the 2nd WPC 21019/21

respondent - Sub Registrar cannot refuse to register Ext.P2 Sale

Certificate, if it is presented before him for registration by the

petitioner - Bank or the 8th respondent, as the case may be.

Resultantly, I order this Writ Petition, leaving liberty to

the petitioner - Bank or the 8th respondent to present Ext.P2

Sale Certificate for registration before the 2nd respondent - Sub

Registrar forthwith; in which event, the said Authority will take

steps for registration of the same, after following due procedure

and after ensuring satisfaction of all necessary criterion and

requirements, adverting to Ext.P4, as expeditiously as is

possible but not later than one week from the date on which

the same is presented in terms of the afore directions.

As a corollary and consequent direction, once Ext.P2 Sale

Certificate is registered, the Sub Registrar will efface the entry

of the earlier mortgage in favour of the 3rd respondent and

issue a fresh Encumbrance Certificate to the petitioner - Bank

or 8th respondent, as the case may be, without any avoidable WPC 21019/21

delay thereafter.

Sd/-

RR                  DEVAN RAMACHANDRAN
                         JUDGE
 WPC 21019/21


               APPENDIX OF WP(C) 21019/2021

PETITIONER EXHIBITS
Exhibit P1         THE TRUE COPY OF STATUTORY NOTICE
                   UNDER SECTION 13(2) OF THE SARFEASI
                   ACT ON 31.08.2017.
Exhibit P2         THE TRUE COPY OF THE SALE CERTIFICATE
                   AS MANDATED UNDER THE SARFEASI ACT
                   ISSUED BY THE PETITIONER IN FAVOUR OF
                   THE 7TH RESPONDENT.
Exhibit P3         THE TRUE COPY OF THE ENCUMBRANCE
                   CERTIFICATE OBTAINED FROM THE 1ST
                   RESPONDENT DATED 13.08.2012.
Exhibit P4         TRUE COPY OF THE CERTIFICATE DATED
                   17.08.2021 ISSUED BY THE 3RD
                   RESPONDENT.