Joys The Beach Resort Pvt. Ltd vs The Sub Registrar
2021 Latest Caselaw 18502 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                       PRESENT

                  THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

         WEDNESDAY, THE 8TH DAY OF SEPTEMBER 2021 / 17TH BHADRA, 1943

                             WP(C) NO. 23548 OF 2020

PETITIONER:

               MR JOY'S THE BEACH RESORT PVT. LTD.
               CHOWARA, THIRUVANANTHAPURAM-695 501, REP BY ITS DIRECTOR SMT.
               GEETHA JOSE THOTTAM, RESIDING AT PX-7, DIAMOND CASTLE,
               VELLAYAMBALAM, THIRUVANANTHAPURAM-695 010

               BY ADV JOSE ANTONY



RESPONDENTS:

     1         THE SUB REGISTRAR
               CHALAI SUB REGISTRY, THIRUVANANTHAPURAM-695 002.

     2         THE TAHSILDAR,
               TALUK OFFICE, THIRUVANANTHAPURAM-695 023.

     3         THE VILLAGE OFFICER,
               VILLAGE OFFICE, THYCAUD, THIRUVANANTHAPURAM-695 014.

     4         THE AUTHORISED OFFICER,
               UNION BANK OF INDIA, THIRUVANANTHAPURAM, MAIN BRANCH, M.G.ROAD,
               STATUE, THIRUVANANTHAPURAM-695 001.

     5         HYCOUNT ENTERPRISES AND EXPORTS,
               2ND MILE STONE, KILIKOLLOOR P.O.KOLLAM-691 004.

               BY ADV SRI.LEO GEORGE

               SRI.ASHWIN SETHUMADHAVAN-SR.GP

               SRI.SADCHIT P KURUP




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.09.2021,

THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 23548 OF 2020

                                     2




                             JUDGMENT

The petitioner, which is stated to be a Company registered

under the provisions of the Companies Act, 1956, claims to have

purchased a property, having an extent of 2.02 Ares of land

comprised of in Sy.No.1111/A1 of Thycaud Village, in an auction

conducted by the 4th respondent - Authorized Officer of the Union

Bank of India (hereinafter referred to as 'the Bank' for short).

2. The petitioner says that even though a valid Sale

Certificate has been issued by the Bank in their favour and though

they are entitled to occupy and possess the same under the full

sanction of law, when they approached the 1 st respondent - Sub

Registrar for registration of the said Sale Certificate, it has been

refused saying that there is an attachment over it, obtained by the

5th respondent from a competent Civil Court.

3. The petitioner points out that, even going by Ext.P4

Encumbrance Certificate, the order of attachment over the property

- obtained by the 5th respondent from the Munsiff Court, Kollam,

against the original owner of the property - is dated 23.03.2014;

while the execution of the equitable mortgage by the said owner in

favour of the Bank was early as in the year 2009, which is evident WP(C) NO. 23548 OF 2020

from Ext.P2 extract of 'Memorandum of Deposit of Title Deeds',

maintained by the said Bank.

4. The petitioner, therefore, contends that, going by the

decision of this Court in Secretary, Keechery Service Co-

operative Bank Ltd. v. Sajitha Nizar Alias Sajitha P.M (2020

(6) KLT 68), the 1st respondent is obligated to efface the entry of

attachment over the property and to register the Sale Certificate

without any delay. The petitioner, therefore, prays that 1 st

respondent be directed to do so within a time frame to be fixed by

this Court.

5. I have heard Sri.Jose Antony K, learned counsel for the

petitioner; Sri.Leo George, learned counsel appearing for the 5 th

respondent; Sri.Sadchit P. Kurup, learned Standing Counsel for

respondent No.4 and the learned Senior Government Pleader -

Sri.Ashwin Sethumadhavan, appearing for the official respondents.

6. Sri.Leo George, learned counsel appearing for the 5 th

respondent, in opposition to the afore request made on behalf of the

petitioner, pointed out that, in Ext.P2, there is no whisper that the

equitable mortgage was created in the year 2009. He argued that

Ext.P2 is, in any case, a document which cannot inspire confidence,

because the signature of the original owner of the property has not WP(C) NO. 23548 OF 2020

been subscribed therein. He submitted that the stand of the

petitioner, that equitable mortgage was created over the property in

question by its original owner - Sri.Varghese Cheriyan on

06.02.2009 is without truth; and added that, in any event, when one

reads Ext.P2, it is clear that it cannot be construed as a proper

'Memorandum of Deposit of Title Deeds' and cannot be accepted by

this Court, thus praying that this writ petition be dismissed.

7. The learned Standing Counsel for the Bank - Sri.Sadchit

P. Kurup, however, confirmed that the title deeds of the property in

question were mortgaged in favour of his client by the original

owner - Sri.Varghese Cheriyan, on 06.02.2009; and he added that

there are sufficient documents with the Bank in substantiation

thereof. He argued that since the 5th respondent themselves admit

that the attachment obtained by them over the property was only on

28.03.2014, same cannot inhibit the right of his client to sell the

property or that of the petitioner to own it, under the provisions of

the Securitisation and Reconstruction of Financial Assets and

Enforcement of Securities Interest Act (SARFAESI). He, therefore,

prayed that this writ petition be allowed.

8. The learned Senior Government Pleader - Sri.Ashwin

Sethumadhavan, answered the submissions of the petitioner by WP(C) NO. 23548 OF 2020

saying that the 1st respondent - Sub Registrar was incapacitated

from acting on the request for registration of the Sale Certificate,

noticing a valid attachment from a competent Civil Court. He

submitted that if this Court is inclined to direct him to register the

document notwithstanding the same, he has no objection in doing so

and prayed that no further orders be issued against the said

respondent.

9. I have evaluated the afore submissions with great amount

of care.

10. As I have already recorded above, the case of the 5 th

respondent is that Ext.P2 cannot establish that a valid equitable

mortgage has been created over the property in question by its

original owner in the year 2009. He also has a case that Ext.P2

does not even subscribe to the description of a 'Memorandum of

Deposit Title Deeds' and therefore, that this Court cannot act on its

terms.

11. However, the fact remains that the Bank has now

confirmed that the equitable mortgage in their favour was in the

year 2009 and that Ext.P2 is a document that has been validly

maintained by them under the provisions of the Bankers' Books

Evidence Act and other applicable Satutes. WP(C) NO. 23548 OF 2020

12. I, therefore, cannot find any reason to disbelieve the

Bank, particularly when the 5th respondent has not initiated any

action against Ext.P2 or any of the other documents or entries

evidencing deposit of title deeds in their favour in the year 2009.

13. That said, as per law, the obligation of the 1 st respondent

is to verify whether the date of mortgage in favour of the 4 th

respondent - Bank is prior to the date of attachment, and if so, he

has no other option but to register the Sale Certificate, as per the

provisions of the applicable Rules and Regulations.

14. Presumably knowing the mind of this Court as afore,

Sri.Leo George, intervened at this stage to say that this Court may

at least direct the Bank to inform his client if any excess amount is

available with them, after adjusting the debt owned by the original

owner, consequent to the sale of the property and that his client

may be permitted to take legal recourse against the said amount, so

that they can obtain it without any further delay. He added that he

is making this request because his client has already obtained a

decree against the original owner and therefore, that he is now

entitled to the surplus amount, which is now remaining in the hands

of the Bank.

15. I, therefore, asked Sri.Sadchit P. Kurup, learned counsel WP(C) NO. 23548 OF 2020

for the Bank, whether any such amounts are available with them

and he submitted that if the 5th respondent approaches his client

with a proper representation, the information sought for can be

given to them in terms of law.

In the afore circumstances, I order this writ petition and direct

the 1st respondent - Sub Registrar to hear the petitioner, the 5 th

respondent as also the competent Authority of the Bank and then

take a decision whether the date of mortgage in favour of the Bank

is prior to the date of attachment obtained by the 5 th respondent;

and if so, to register the Sale Certificate without any avoidable

delay.

Needless to say, the 5th respondent will also efface the entry

with respect to the attachment in the records in terms of the

judgment of this Court in Secretary, Keechery Service Co-

operative Bank Ltd. (supra) simultaneously.

The afore exercise shall be completed by the Sub Registrar, as

expeditiously as is possible but not later than one month from the

date of receipt of a copy of this judgment.

I make it clear that 5th respondent is at liberty to approach the

Bank with a request to obtain information of any surplus amounts

available with them; and to thereafter, approach the competent WP(C) NO. 23548 OF 2020

Court for necessary remedies against the same, as per the

provisions of the Code of Civil Procedure Code.

SD/-

DEVAN RAMACHANDRAN JUDGE rp WP(C) NO. 23548 OF 2020

APPENDIX OF WP(C) 23548/2020

PETITIONER EXHIBITS

EXHIBIT P1 COPY OF TITLE DEED NO 1605/2005 OF CHALAI SRO IN THE NAME OF VARGHESE

EXHIBIT P2 COPY OF MEMORANDUM OF DEPOSIT OF TITLE DEED DATED 7.2.2009 DRAWN BY THE 4TH RESPONDENT

EXHIBIT P3 COPY OF SALE CERTIFICATE DATED 3.4.2020 ISSUED IN FAVOUR OF THE PETITIONER

EXHIBIT P4 COPY OF ENCUMBRANCE CERTIFICATE DATED 15.6.2020 ISSUED BY THE 1ST RESPONDENT

EXHIBIT P5 COPY OF JUDGMENT DATED 10.1.2014 PASSED BY THIS HONPURABLE COURT IN WPC NO 28728/2013 REPORTED IN 2014(1) KLT 406.

EXHIBIT P6 COPY OF JUDGMENT DATED 24.7.2015 PASSED IN WA NO 612/2015 BY THIS HON'BLE COURT