Prasanth K vs District Collector
2022 Latest Caselaw 1014 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

        THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

  TUESDAY, THE 25TH DAY OF JANUARY 2022 / 5TH MAGHA, 1943


                   WP(C) NO. 28214 OF 2021
PETITIONER:

          PRASANTH K.
          SHANTHINILAYAM, NO 88,
          ROYAL NAGAR, ASHRAMAM,
          KOLLAM-691 002.
          BY ADV UNNI K.K. (EZHUMATTOOR)


RESPONDENTS:

    1     DISTRICT COLLECTOR
          CIVIL STATION,
          THIRUVANANTHAPURAM-695 043.
    2     SUB REGISTRAR,
          SUB REGISTRARS OFFICE, SASTHAMANGALAM,
          THIRUVANANTHAPURAM-695 010.
    3     TAHSILDAR,
          TALUK OFFICE,
          THIRUVANANTHAPURAM-695 023.
    4     VILLAGE OFFICER
          VILLAGE OFFICE,
          VATTIYOORKAVU-695 013.
    5     AUTHORIZED OFFICER,
          ASSET RECONSTRUCTION COMPANY INDIA LTD (ARCIL)
          IG, 1ST FLOOR, CENTUARY PLAZA,
          NO.560 562, ANNASALAI,
          TENYAMPET, CHENNAI-600 018
          BY ADVS.
          R1 TO R4 BY SRI.JUSTIN JACOB, SR. GOVT. PLEADER
 W.P.(C) No.28214/21
                                  -:2:-

              SRI.R.SUNIL KUMAR
              SMT.A.SALINI LAL



       THIS     WRIT   PETITION   (CIVIL)   HAVING   COME   UP   FOR
ADMISSION ON 12.01.2022, THE COURT ON 25.01.2022 DELIVERED
THE FOLLOWING:
 W.P.(C) No.28214/21
                                       -:3:-


                     BECHU KURIAN THOMAS, J.
                     --------------------------------
                      W.P.(C) No.28214 of 2021
                     --------------------------------
                 Dated this the 25th day of January, 2022

                                   JUDGMENT

Petitioner was the successful bidder in an auction

conducted on 26.11.2021 by the fifth respondent. Pursuant to

the auction, petitioner deposited 25% of the bid amount as per

rule 9(3) of the Security Interest (Enforcement) Rules, 2002 (for

short, 'the rules'). Thereafter, when the encumbrance certificate

was obtained, it revealed the existence of attachments on the

property bid by the petitioner. Since the property that was put

up for auction contains encumbrances in the form of attachment

before judgment issued by the civil court in different suits

instituted, this writ petition is filed seeking for directions inter

alia, to remove the attachments over the properties purchased

by the petitioner. A further direction has also been sought to

extend the time to repay the balance bid amount.

2. A statement has been filed on behalf of the fifth

respondent asserting that petitioner had purchased three W.P.(C) No.28214/21

apartments put up for auction by it under the Securitisation and

Reconstruction of Financial Assets and Enforcement of Security

Interest Act, 2002. It is also mentioned in the statement that

the mortgage of the properties were created on 23.09.2015.

3. It is seen from Ext.P1 to Ext.P3 that, Flat No.4A, Flat

No.4B and Flat No.4E of 'A' Block of the apartment complex by

name 'Silver Castle Green Terrace' situated in Survey

No.2725/A1-1 of Vattiyoorkavu Village, Thiruvananthapuram

Taluk was brought to sale by the fifth respondent and in the

ensuing auction, petitioner's bid was accepted by the fifth

respondent.

4. I have heard Sri.Unni K.K., learned counsel for the

petitioner, Sri.Justin Jacob, learned Senior Government Pleader

appearing on behalf of the respondents 1 to 4 and Sri.R.Sunil

Kumar, learned counsel for the fifth respondent.

5. A perusal of the encumbrance certificate, produced as

Ext.P4, shows that, attachments are pending against Flat No.4A

having been attached on 18.09.2017 as well as an attachment

against Flat No.4E. No attachment is seen mentioned against

apartment No.4B.

W.P.(C) No.28214/21

6. The encumbrance certificate produced by the petitioner

reveals that, the attachments over the properties were effected

after the mortgage was created. Since the mortgages are

created prior to the attachment before judgment, obviously, the

same cannot have any legal effect after, the property was put up

for auction.

7. As held by this Court in Madhan v. Sub Registrar

(2014 (1) KLT 406) and Secretary, Keechery Service Co-

operative Bank Ltd. v. Sajitha Nizar alias Sajitha P.M. and

Others (2020 (5) KHC 231) attachment before judgment

effected subsequent to the creation of a mortgage has no legal

validity and the attachment is liable to be effaced. In view of

the above settled principle of law, attachments existing on the

property purchased by the petitioner, pursuant to Ext.P1 auction

notice cannot stand and the attachments thereon are liable to be

effaced.

8. Having found that the attachments effected over the

properties purchased by the petitioner are required to be

effaced, it is essential that the period stipulated in Ext.P1 to

Ext.P3 to deposit the balance amount also be extended. Since W.P.(C) No.28214/21

the statute contemplates 90 days to deposit the entire balance

amount, I am of the view that the petitioner must be granted an

opportunity to pay the amount due towards the balance of the

auction, till 26.02.2022.

In view of the above, this writ petition is allowed directing

respondents 1 to 4 to efface the attachments effected on Flat

No.4A (TC No.38/1780-18) and Flat No.4E (TC No.38/1780-22)

of the apartment complex 'Silver Castle Green Terrace' situated

in Survey No.2725/A1-1 of Vattiyoorkavu Village,

Thiruvananthapuram Taluk within two weeks from the date of

receipt of a copy of the judgment. The fifth respondent is also

directed to accept the balance bid amount payable by the

petitioner on any date till 26.02.2022, provided the effacement

of attachments are carried out before the said date.

Sd/-

BECHU KURIAN THOMAS JUDGE vps W.P.(C) No.28214/21

APPENDIX OF WP(C) 28214/2021

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE LETTER OF ACCEPTANCE ISSUED BY THE 5TH RESPONDENT WITH REGARD TO APARTMENT NO 4A.

EXHIBIT P2 TRUE COPY OF THE LETTER OF ACCEPTANCE ISSUED BY THE 5TH RESPONDENT WITH REGARD TO APARTMENT 4B.

EXHIBIT P3 TRUE COPY OF THE LETTER OF ACCEPTANCE ISSUED BY THE 5TH RESPONDENT WITH REGARD TO APARTMENT NO 4E.

EXHIBIT P4 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE ISSUED BY THE 2ND RESPONDENT