Kerala High Court
T.P.Jacob Paul vs State Of Kerala on 13 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
MONDAY, THE 13TH DAY OF SEPTEMBER 2021 / 22ND BHADRA, 1943
WP(C) NO. 23153 OF 2011
PETITIONER/S:
T.P.JACOB PAUL, AGED 58 YEARS, S/O PAUL
THEKIKINIYATH HOUSE, NO.39, HILL GARDENS,,
ANCHERY P.O., THRISSUR DISTRICT.
BY ADVS.
SRI.G.BALAMURALEEDHARAN (PARAVUR)
SRI.N.T.NANDAKUMAR PARAVUR
RESPONDENT/S:
1 STATE OF KERALA,
REP. BY THE SECRETARY TO GOVT.,
REGISTRATION DEPARTMENT,,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001
2 THE DISTRICT REGISTRAR
CIVIL STATION, THRISSUR, PIN-680 020.
3 THE SUB REGISTRAR
SUB REGISTRAR OFFICE, KUTTANELLUR-PIN-680006,
THRISSUR DISTRICT.
4 SREEDHARAN, S/O. KUNJAN
MARAMKALAYIL HOUSE, KURIACHIRA,
OLLUR VILLAGE,, KURIACHIRA P.O.,
PIN-680 006, THRISSUR DISTRICT.
5 THE MANAGING DIRECTOR
RESOURCE INDIA KURIES PVT.LTD.,
PALLIKULAM ROAD,, THRISSUR-680001
BY ADVS.
SRI.K.RAVI PARIYARATH
SRI.G.SREEKUMAR CHELUR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
13.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 23153 OF 2011 ..2..
JUDGMENT
The petitioner states that he purchased a
property consisting of 53.25 cents of land in
Sy.No.13/1 of Ollur Village, by public auction
conducted by the UCO Bank, Palakkad Branch,
under the proceedings under Section 13(2) of the
SARFAESI Act, 2002. On the basis of the sale
certificate, which is produced as Ext.P1 in the writ
petition, Ext.P2 sale deed, pertaining to the same
was registered at the Sub Registrar Office,
Kuttanellur on 03.03.2011. Thereafter, mutation was
effected and property tax was paid in favour of the
petitioner. However, when the petitioner obtained
Ext.P4 Encumbrance Certificate pertaining to the
said property for the period 01.01.1997 to
22.03.2011, it consisted of three entries of
WP(C) NO. 23153 OF 2011 ..3..
encumbrances over the same, one an agreement
executed between the prior owner/defaulter with the
4th respondent and other entries pertaining to the
attachments from Court. According to the petitioner,
all these encumbrances/attachments are pertaining
to transactions effected after the mortgage of the
property with the UCO Bank, by its prior
owner/defaulter.
2. The petitioner contends that, since the
property is purchased by the petitioner in public sale
under the proceedings under the SARFAESI Act, the
sale is free from all other encumbrances and charges
as recited in Ext.P1 sale certificate and such sale has
overriding effect on all other private sale /
encumbrances/ charges. Though the petitioner
approached the District Registrar and the Sub-
Registrar, the respondents 2 and 3, to delete the
WP(C) NO. 23153 OF 2011 ..4..
entries of charges/encumbrances/prohibition orders
from the revenue records, the request was not
considered. Accordingly, the petitioner has filed this
writ petition for the following reliefs:
a) declare that the three entries as shown
in Ext. P4 regarding the registration of an
agreement in favour of the 4th respondent, two
prohibitory orders passed by the Munsiff Court,
Thrissur in chitty transactions with the 5th
respondent over the subject matter property,
purchased by the petitioner in public sale as per
the provisions of the SARFAESI Act are illegal
and improper and in no way affect the absolute
rights of the petitioner over the property:
b) direct the 2nd and 3rd respondents to
delete the said entries pertaining to the
registration of an agreement in favour of the 4 th
respondent and two prohibitory orders passed
by the Munsiff Court, Thrissur in chitty
transactions with the 5th respondent from the
revenue/encumbrance records over the said
property:
WP(C) NO. 23153 OF 2011 ..5..
c) direct the 3rd respondent to issue a new
Encumbrance certificate after deleting the
aforesaid entries, to the petitioner.
3. A counter affidavit dated 08.02.2012 is filed
on behalf of the 2nd respondent, the District
Registrar and referring to the provisions of the
Registration Act, 1908 and Registration Rules
(Kerala), it is stated that, the request for striking off
or deleting entries in the Encumbrance Certificate
cannot be considered by the registering officers as
they are not authorised to do so under the Act and
Rules.
4. Heard the learned Counsel for the petitioner,
the learned Government Pleader and the learned
Counsel for the other respondents.
5. The learned Counsel for the petitioner
submits that the equitable mortgage of the property
WP(C) NO. 23153 OF 2011 ..6..
was created in favour of UCO Bank in the year 2006
and the attachments/charges entered in Ext.P4
Encumbrance Certificate were effected after the
date of mortgage. Relying on the decision in
Madhan S. v. Sub Registrar, Kollam and Others
[2014(1) KHC 249: 2014(1) KLT 406: ILR 2014
(1) Ker.586: 2014 (1) KLJ 483: AIR 2014 Ker.54]
and the decision of the Division Bench in Secretary,
Keechery Service Co-operative Bank Ltd. v.
Sajitha Nizar alias Sajitha P.M. and Others
[2020 (5) KHC 231: ILR 2020 (4) Ker.249: 2020
(6) KLT 68: 2020(4) KLJ 970] the Counsel
contends that attachments effected subsequent to
the creation of equitable mortgage have to be
effaced after the property is purchased by the
petitioner under the provisions of the SARFAESI Act.
WP(C) NO. 23153 OF 2011 ..7..
6. The learned Counsel for the 5th respondent
contended that though the attachments entered in
Ext.P4 Encumbrance Certificate are subsequent to
the equitable mortgage created in favour of UCO
Bank, those attachments are prior to the sale
conducted on 03.03.2011. The Counsel also
contended that the petitioner ought to have
approached the Civil Court or the Debts Recovery
Tribunal for redressal of his grievances.
7. In Madhan's case (supra), the learned
Single Judge, taking note of relevant statutory
provisions and various judicial decisions, held in
paragraph 9 as follows:
"9. The preponderance of judicial
opinion leads to the irresistible conclusion
that the sale of the mortgaged property in
favour of the petitioner under Ext. P5 sale
certificate under the Act is free of all
encumbrances. The attachments effected
WP(C) NO. 23153 OF 2011 ..8..
subsequent to the mortgage created in
favour of the bank do not affect the title
and ownership of the petitioner over the
subject property. Such attachments have
no impact on the sale conducted under the
Act and the same ceases to have any effect
or fall to the ground the moment the sale is
confirmed in favour of the petitioner. The
declaration so sought by the petitioner is
therefore granted and I further direct the
Sub-Registrar and the Village Officer to
efface the attachments effected subsequent
to the mortgage from the relevant records.
Otherwise those attachments would remain
as a permanent taboo prejudicial affecting
the marketability and title to the property
even though they ceased to have any legal
efficacy. The needful in relation to the
property bought by the petitioner shall be
done within a period of two months from
the date of receipt of a copy of this
judgment."
8. A Division Bench of this Court in Ali Asharaf
M.M. and Another v. Sub Registrar, Thrissur
WP(C) NO. 23153 OF 2011 ..9..
(Judgment dated 24.7.2015 in
W.A.No.612/2015) has affirmed the law laid down
in Madhan's case.
9. In Keechery Service Co-operative Bank
case (supra), another Division Bench of this Court
also affirmed the law laid down in Madhan's case
(supra) and held in paragraph 7 as under:
"7. .... We do not find any reason to
disagree with the declaration of law in
Madhan's case (supra) which was virtually
affirmed by the Division Bench in Ali
Asharaf's case (supra). In the said
circumstances and taking note of the fact
that the orders of attachment of the property
in question were after the creation of
equitable mortgage of the same with Federal
Bank we do not find any reason to interfere
with the impugned judgment passed by the
learned Single Judge following the dictum in
Madhan's case (supra), carrying the
directions to effect mutation of the property
as also to efface all encumbrance over the
WP(C) NO. 23153 OF 2011 ..10..
property effected after 27/06/2014, the date
on which the property in question was
mortgaged with Federal Bank.
10. In the light of the dictum laid down by this
Court in Madhan's case (supra) and affirmed in Ali
Asharaf and Keechery Service Co-operative
Bank cases (supra), the attachments effected
subsequent to the creation of equitable mortgage
has to be effaced after the property is purchased by
the petitioner under the proceedings under the
SARFAESI Act.
11. Since the attachments effected and the
encumbrances referred to in Ext.P4 Encumbrance
Certificate are subsequent to the mortgage created
in favour of the UCO Bank, those entries are liable to
to be effaced after the property is purchased by the
petitioner under the proceedings under the
WP(C) NO. 23153 OF 2011 ..11..
SARFAESI Act.
Accordingly, the writ petition is allowed.
Respondents 2 and 3 are directed to delete the
entries other than the entry regarding registration of
Document No. 717/2011 from the Encumbrance
records/register for the period from 01.01.1997 to
22.03.2011, in relation to the property purchased by
the petitioner and issue fresh Encumbrance
Certificate replacing Ext.P4. This shall be done
within a period of two months from the date of
receipt of a copy of this judgment. No order as to
costs.
Sd/-
MURALI PURUSHOTHAMAN
JUDGE
SB/13/09/2021
WP(C) NO. 23153 OF 2011 ..12..
APPENDIX
PETITIONERS EXHIBITS
EXT.P1 COPY OF THE SALE CERTIFICATE ISSUED BY UCO
BANK, PALAKKAD DATED 29.05.2010
EXT.P2 COPY OF THE SALE DEED NO.717/2011 OF
KUTTANELLUR SRO DATED 3.3.2011
EXT.P3 COPY OF TAX RECEIPT DATED 26.4.11 ISSUED
FROM OLLUR VILLAGE OFFICE
EXT.P4 COPY OF ENCUMBRANCE CERTIFICATE NO.4084/11
DATED 23.03.2011
EXT.P5 COPY OF A/D CARD DATED 20.07.2011
EXT.P6 COPY OF MEMORANDUM ACKNOWLEDGED BY THE 3RD
RESPONDENT DATED 18.07.2011
