Kerala High Court
Uco Bank vs The Sub Registrar on 6 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 6TH DAY OF OCTOBER 2021 / 14TH ASWINA, 1943
WP(C) NO. 16282 OF 2021
PETITIONER:
UCO BANK
MALLAPUZHASERRY BRANCH, REPRESENTED BY ITS BRANCH MANAGER,
SRI.DONY PERUMAL, S/O.JOSE PERUMAL, AGED 37 YEARS, MANAGER, UCO
BANK, MALLAPUZHASERY BRANCH, PATHANAMTHITTA DISTRICT,
PIN - 689 643.
BY ADV K.P.SUJESH KUMAR
RESPONDENTS:
1 THE SUB REGISTRAR
SUB REGISTRY OFFICE, KOZHANCHERRY, PIN - 689 641.
2 THE VILLAGE OFFICER
NARANGANAM VILLAGE OFFICE, NARANGANAM,
PATHANAMTHITTA, PIN - 689 642.
3 P.R.ASHOK KUMAR
ASHOK BHAVAN, KANAMUKKU, NARANGANAM NORTH P.O., PATHANAMTHITTA,
PIN - 689 642.
4 NISHA ASHOK
W/O.P.R.ASHOK KUMAR, ASHOK BHAVAN, KANAMUKKU, NARANGANAM NORTH
P.O., PATHANAMTHITTA, PIN - 689 642.
5 HARISH ARULDAS
CHAKKAMPARAMPIL MEMURI, NARANGANAM WEST P.O., PATHANAMTHITTA,
PIN - 689 642.
OTHER PRESENT:
SMT. SURYA BINOY- SR. G.P
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.10.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 16282 OF 2021
2
JUDGMENT
The petitioner, which is a nationalized Bank constituted under
the provisions of the Banking Companies (Acquisition and Transfer
of undertaking) Act, 1970, has approached this Court being
aggrieved that the 1st respondent - Sub Registrar is refusing to
register Ext.P6 Sale Certificate in favour of the 5 th respondent,
consequent to an auction conducted by them under the provisions
of the Securitisation and Reconstruction of Financial Assets
and Enforcement of Securities Interest Act ('the SARFAESI
Act' for brevity).
2. The petitioner - Bank says that the owners of the
property in question had executed an equitable mortgage in their
favour as collateral security for a loan availed of by them as early
as on 03.07.2013 and that since default was committed in the
payment of the said facility, the property had to be sold under the
provisions of the SARFAESI Act. They say that the 5 th respondent
paid the sale consideration as per the provisions of the said Act and
consequently, that Ext.P6 Sale Certificate had been issued to him,
following all due procedure.
WP(C) NO. 16282 OF 2021
3. The petitioner alleges that, inspite of the above, when
they presented Ext.P6 Sale Certificate for registration before the 1 st
respondent - Sub Registrar, he has refused to accede to it, merely
saying that there are orders of attachments obtained by
respondents 3 and 4 over the property in question, from competent
Civil Courts. The petitioner contends that it has been now well
settled, through a series of judgments, that orders of attachments
issued after the date of equitable mortgage cannot override their
first charge on the property and thus prays that the 1 st respondent
be directed to register Ext.P6 de hors the attachments and to efface
the entries of the same from the Encumbrance Certificate, so as to
enable the 5th respondent to deal with it without impediment in
future.
4. I have heard Sri.K.P.Sujesh Kumar, learned counsel for
the petitioner and the learned Government Pleader - Smt.Surya
Binoy, learned counsel appearing for respondents 1 and 2.
5. Even though notice has been validly served on
respondent No.5, he has not appeared; while the notices to
respondents 3 and 4 have been returned with the endorsement
'addressee left without instruction'.
WP(C) NO. 16282 OF 2021
6. Be that as it may, the fact remains that the Bank is
claiming right over the property in question on the strength of an
equitable mortgage, which they claim to have been executed by the
original owners in their favour on 03.07.2013.
7. Obviously, therefore, if the Sub Registrar verifies this
and finds that the said mortgage is prior to the date of the orders of
attachments, then obviously, Ext.P6 Sale Certificate will have to be
registered and the endorsements of the attachments on the
Encumbrance Certificate will require to be deleted, since it has
been so declared by this Court in Secretary, Keechery Service
Co-operative Bank Ltd., v. Sajitha Nizar Alias Sajitha P.M.
(2020 (6) KLT 68).
In the afore circumstances, I allow this writ petition and
direct the petitioner and the 5th respondent, if he is so interested, to
appear before the 1st respondent - Sub Registrar, along with Ext.P6
Sale Certificate, at 11.00 am on 20.10.2021; on which day, the said
Authority will verify from the records maintained by the Bank, to be
produced before him, whether the equitable mortgage was made on
03.07.2013, as claimed by the petitioner and if the attachments are
subsequent to it.
WP(C) NO. 16282 OF 2021
If the Registrar convinces himself that the equitable mortgage
is prior to the attachments then, certainly, he will register Ext.P6
Sale Certificate and will consequently delete the entries of the
same from the Encumbrance Certificate and issue a fresh one to
the 5th respondent, so that he can use the property without
impediment in future.
This writ petition is thus ordered.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
rp
WP(C) NO. 16282 OF 2021
APPENDIX OF WP(C) 16282/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF SALE DEED NO.957/2009 OF KOZHENCHERRY
SUB REGISTRY OFFICE DATED 24/10/2009.
Exhibit P2 TRUE COPY OF THE MEMORANDUM OF DEPOSIT OF TITLE
DEED EXECUTED BY THIRD RESPONDENT IN FAVOUR OF THE
PETITIONER DATED 3/07/2013.
Exhibit P3 TRUE COPY OF THE DEMAND NOTICE ISSUED BY THE
PETITIONER UNDER THE SAFAESI ACT, DATED 14/06/2016.
Exhibit P4 TRUE COPY OF THE POSSESSION NOTICE ISSUED BY THE
PETITIONER BANK, DATED 01/09/2016.
Exhibit P5 TRUE COPY OF THE SALE PROCLAMATION NOTICE ISSUED BY
THE PETITIONER, DATED 16/04/2021.
Exhibit P6 TRUE COPY OF THE SALE CERTIFICATE ISSUED BY THE
PETITIONER.
Exhibit P7 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE
NO.910/2021 DATED 1/06/2021.
