Kerala High Court
The Trichur Urban Co-Operative ... vs State Of Kerala on 11 January, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
TUESDAY, THE 11TH DAY OF JANUARY 2022 / 21ST POUSHA, 1943
WP(C) NO. 13042 OF 2021
PETITIONER:
THE TRICHUR URBAN CO-OPERATIVE BANK LTD.,
HEAD OFFICE AT MISSION QUARTERS, THRISSUR-680 001,
REPRESENTED BY ITS GENERAL MANAGER AND AUTHORIZED
OFFICER JEROME P.THOMAS.
BY ADVS.
LINDONS C.DAVIS
E.U.DHANYA
RAJITH DAVIS
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
DEPARTMENT OF REVENUE, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 THE SUB REGISTRAR,
SUB REGISTRAR OFFICE, THRISSUR, CHEMBUKKAV, THRISSUR-
680 020.
3 THE VILLAGE OFFICER,
VILLAGE OFFICE, PERINGAVU, UDAYA NAGAR, CHEMBUKKAV,
THRISSUR-680 005.
4 THE TAHSILDAR,
TALUK OFFICE, THRISSUR, CHEMBUKKAV, THRISSUR-680 020.
5 SUNIL @ SUNILAN,
AGED 52 YEARS
S/O.PARAMAN, PAYYAPATTIL HOUSE, KIZHAKKUMPATTUKARA,
EAST FORT P.O., THRISSUR-680 005.
6 BIJI SUNIL,
AGED 42 YEARS
W/O.SUNIL @ SUNILAN, PAYYAPATTIL HOUSE,
KIZHAKKUMPATTUKARA, EAST FORT P.O., THRISSUR-680 005.
WP(C) NO. 13042 OF 2021 2
7 THOMAS FRANCIS,
AGED 46 YEARS
S/O.CHITTILAPPILLY KUNJAPPU FRANCIS, CHEMBUKKAV
VILLAGE, LOURDPURAM DESOM, THRISSUR TALUK-680 020.
8 RINI FRANCIS,
AGED 42 YEARS
W/O.THOMAS FRANCIS, CHEMBUKKAV VILLAGE, LOURDPURAM
DESOM, THRISSUR TALUK-680 020.
9 PARISHKAR LEASING AND FINANCIAL SERVICES LTD.,
COLLEGE ROAD, EAST FORT DESOM AND P.O., CHEMBUKKAVU
VILLAGE, THRISSUR TALUK, PIN-680 005, REPRESENTED BY
CHAIRMAN GEORGE CHAKKOLA, AGED 64 YEARS, S/O.PAUL,
RESIDING AT CHAKKOLA HOUSE, CHEMBUKKAVU VILLAGE AND
DESOM, THRISSUR TALUK-680 008.
10 TIPCOS THRISSUR MEKHALA PRAVASI WELFARE CO-OPERATIVE
SOCIETY LTD.,
R 1407, SREELAKSHMI BUILDINGS, SHORNUR ROAD,
THIRUVAMPADI P.O., THRISSUR-680 022, REPRESENTED BY
ITS SECRETARY.
11 HEEWAN GROUP OF COMPANIES,
CHAKKAMUKKU, PUNKUNNAM, THRISSUR-680 020, REPRESENTED
BY MANAGING DIRECTOR.
BY ADVS.
C.K.ANWAR
K.S.SUMEESH
M.A.SAFEENA
OTHER PRESENT:
SMT. MABLE .C .KURIAN SR.G.P
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 11.01.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO. 13042 OF 2021 3
JUDGMENT
The Trichur Urban Co-operative Bank Ltd., which
is a Co-operative Society operating under the
provisions of the Kerala Co-operative Societies Act
and Rules, has approached this Court seeking a
direction to the 2nd respondent - Sub Registrar to
delete entry Nos.5, 7 and 8 in Ext.P9 Encumbrance
Certificate, asserting that those entries relate to
the orders of attachment obtained by respondents 9,
10 and 11 over a property which had been equitably
mortgaged to them as early as on 01.01.2015 and sold
to respondents 7 and 8.
2. The petitioner explains that the property in
question was equitably mortgaged to them by
respondents 5 and 6, while availing a financial
facility from them; but that since they defaulted
payment of the same, the Bank was constrained to
initiate legal action, thus leading to Ext.P7 Sale
Certificate being issued on 14.08.2020 in favour of
respondents 7 and 8. They say that, even though
Ext.P7 Sale Certificate has been registered in favour
of the said respondents, on account of the entries of
attachment pending on the Encumbrance Certificate,
they are now facing impediment in remitting land tax
on it. The petitioner, therefore, prays that the
reliefs sought for in this writ petition be granted.
3. I have heard Smt.Dhanya E.U., learned counsel
for the petitioner; the learned Senior Government
Pleader, Smt.Mable C.Kurian appearing for the
official respondents and Shri.C.K.Anwar, learned
counsel appearing for respondents 10 and 11.
4. Even though notices from this Court have been
validly served on respondents 5, 6, 7, 8 and 9, they
have chosen not to be present in person or to be
represented through counsel; inferentially guiding me
to the impression that they have no objection to the
grant of reliefs as sought for by the petitioner in
this writ petition.
5. The pleadings and materials on record show
that the petitioner claims equitable mortgage over
the property in question on 01.01.2015 and which was
extended to cover another loan liability on
26.11.2015; while the attachments obtained by
respondents 9, 10 and 11 are of the years 2018 and
2019. This aspect is not contested by the respondents
either.
6. Therefore, the law is now well settled -
without requirement of restatement - that when the
petitioner claims a prior equitable mortgage on the
property in question, they certainly obtain a better
right under Section 26E of the Securitisation and
Reconstruction of Financial Assets and Enforcement of
Securities Interest Act ('the SARFAESI Act' for
brevity), thus being fully entitled to bring the
property to sale, which they did in favour of
respondents 7 and 8.
7. Pertinently, even though Ext.P7 Sale
Certificate was registered in favour of respondents 7
and 8, the entries of the attachments continue in
Ext.P9 Encumbrance Certificate; and as rightly stated
by the petitioner, this is causing impediment to the
use of the property by the purchasers.
8. Going by the judgment of this Court in
Secretary, Keechery Service Co-operative Bank Ltd.v.
Sajitha Nizar Alias Sajitha P.M. [2020 (6) KLT 68],
which has been followed in several judgments later,
the attaching creditors cannot get a better charge
than the petitioner, since they are enjoying a prior
equitable mortgage.
9. In fact, Shri.C.K.Anwar - learned counsel
appearing for respondents 10 and 11, also admits to
this and confined the plea that his clients may be
allowed liberty to approach the petitioner - Bank for
any surplus of sale consideration, after the loan
account of theirs is fully settled.
In the afore circumstances, I order this writ
petition and direct the 2nd respondent to immediately
take steps to delete entry Nos.5, 7 and 8 in Ext.P9
Encumbrance Certificate and to issue a fresh one to
the petitioner or to respondents 7 and 8 as per their
application, as expeditiously as is possible, but not
later than two weeks from the date on which same is
made before him by the said parties.
As far as the party respondents are concerned, I
leave them full liberty to approach the petitioner -
Bank or to invoke any other remedy that may be
available to them, with respect to the surplus of the
sale consideration, if any, that may be available
after adjustment of the loan liability.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
MC/11.1
APPENDIX OF WP(C) 13042/2021
PETITIONER EXHIBITS
Exhibit P1 A COPY OF THE TITLE DEED NO.2058/1/1965
OF SRO, THRISSUR DATED 07.07.1065.
Exhibit P2 A COPY OF THE TITLE DEED NO.2513/1011 OF
SRO, THRISSUR DATED 10.06.2011.
Exhibit P3 A TRUE COPY OF DECLARATION OF GEHAN
MORTGAGE FOR AN AMOUNT OF RS.6,00,000/-
BY DEPOSIT OF TITLE DEED EXECUTED BY THE
RESPONDENTS 5 AND 6 IN FAVOUR OF THE
PETITIONER BANK DATED 01.01.2015.
Exhibit P4 A TRUE COPY OF DECLARATION OF GEHAN
MORTGAGE FOR AN AMOUNT OF RS.175,000/- BY
DEPOSIT OF TITLE DEED EXECUTED BY THE
RESPONDENTS 5 AND 6 IN FAVOUR OF THE
PETITIONER BANK DATED 26.11.2015.
Exhibit P5 A TRUE COPY OF THE REPORT OF ADVOCATE
COMMISSIONER IN MC NO.109/2019 DATED
25.01.2020.
Exhibit P6 A TRUE COPY OF THE ORDER IN MC 109/2019
DATED 25.01.2020.
Exhibit P7 A TRUE COPY OF THE SALE CERTIFICATE DATED
14.08.2020.
Exhibit P8 A TRUE COPY OF THE SALE DEED DATED
12.01.2021 NUMBERED 134/1/2021 OF SRO,
THRISSUR.
Exhibit P9 A TRUE COPY OF THE ENCUMBRANCE
CERTIFICATE ISSUED BY THE 2ND RESPONDENT
FOR A PERIOD COVERING FROM 01.01.2014 TO
30.07.2020.
