Kerala High Court
Jithin Jameel vs Income Tax Officer on 1 July, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
WP(C) NO. 4654 OF 2022
PETITIONER:
JITHIN JAMEEL,AGED 42 YEARS,
S/O. ABOOBACKER SAINULABDEEN,
RESIDING AT KUMBALATH HOUSE, PALLIPATTUMURI,
THRIKKUNNAPPUZHA P.O., ALAPPUZHA - 690 515.
BY ADVS.
ZAKEER HUSSAIN
K.A.SANJEETHA
RESPONDENTS:
1 INCOME TAX OFFICER, INCOME TAX DEPARTMENT,
OFFICE OF THE TAX RECOVERY OFFICER,
TRO, KOZHIKODE, MANANCHIRA, KOZHIKODE - 673 001.
2 SUB REGISTRAR,
THRIKKAKKARA SUB REGISTRY OFFICE,
THRIKKAKKARA, KAKKANAD - 682 030.
3 THE VILLAGE OFFICER,
THRIKKAKKARA VILLAGE OFFICE,
KAKKANAD - 682 030.
4 FEDERAL BANK LTD .,
LCRD/ERNAKULAM DIVISION, GROUND FLOOR, FEDERAL TOWERS,
MARINE DRIVE , KOCHI - 682 031,
REPRESENTED BY ITS AUTHORISED OFFICER.
5 REGGI MATHEW,
AGED 54 YEARS,
S/O. JOY MATHEW, C-6, HIG APARTMENT, GANDHI NAGAR,
KADAVANATHARA, ERNAKULAM - 682 020.
6 SHANIL ABOOBACKER,
AGED 36 YEARS
S/O. ABOOBACKER.M., KOLLATHODY HOUSE,
VELIPPURAM, RAMANATTUKARA P.O, KOZHIKODE - 673 633.
BY ADVS.
CHRISTOPHER ABRAHAM, INCOME TAX DEPARTMENT
WP(C) NO. 4654 OF 2022
2
MOHAN JACOB GEORGE, SC
REENA THOMAS
NIGI GEORGE
ADV. K.B. SONY (GP)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 01.07.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO. 4654 OF 2022
3
JUDGMENT
The petitioner has approached this Court being aggrieved by
the fact that a property purchased by him in a sale conducted by
the 4th respondent Bank under the provisions of the SARFAESI Act
is not being registered in his name on account of an attachment
effected by the Income Tax Department and also on account of the
fact that the original mortgagor had transferred the property to the
6th respondent after creating the mortgage in favour of the 4 th
respondent.
2. The learned counsel for the petitioner submits that a
sale under the SARFAESI Act is free from all encumbrances. It is
pointed out that the Income Tax Department had filed a statement
in this Court stating that the attachment effected by the Income
Tax Department can be effaced. It is submitted that the purchase
of the mortgaged property by the 6 th respondent can only be
subject to the mortgage to the 4th respondent and all that the 6 th
respondent obtained was the equity of redemption. It is stated
that on the property being brought to sale by the 4 th respondent
Bank and the sale being confirmed in favour of the petitioner, that
equity of redemption was also lost. It is, therefore, submitted that
WP(C) NO. 4654 OF 2022
the 2nd respondent may be directed to register the sale certificate
cum sale deed executed in favour of the petitioner and the 3 rd
respondent may be directed to effect mutation. The learned
counsel also points out that the possession of the property is with
the petitioner.
3. I have heard the learned Standing Counsel appearing
for the Income Tax Department, the learned Government Pleader
appearing for respondents 2 and 3 and the learned Standing
Counsel appearing for the 4th respondent.
4. The notice issued from this Court to the 5 th respondent
(original mortgagor) has been returned with the endorsement
"addressee left". The notice issued by this Court to the 6 th
respondent has been served. However, there is no appearance for
the 6th respondent.
5. Having heard the learned counsel appearing for the
petitioner, the learned Government Pleader for respondents 2 and
3 and the respective Standing Counsel for the 1 st and 4th
respondents, I am of the opinion that the petitioner is entitled to
succeed. There is merit in the contention raised by the learned
counsel for the petitioner that since the sale by the 5 th respondent
WP(C) NO. 4654 OF 2022
to the 6th respondent was subsequent to the creation of mortgage
with the 4th respondent, the only right that was transferred to the
6th respondent is the equity of redemption. The said equity of
redemption is lost when the property was brought to sale by the 4 th
respondent under the provisions of the SARFAESI Act and the
property was purchased by the petitioner. Therefore, the 6th
respondent has no existing right over the property in question. I
must also note that despite the 4 th respondent having taken
possession of the secured asset under the provisions of the
SARFAESI Act, before sale, the 6 th respondent has not raised any
claim and has not initiated any litigation against the 4 th respondent
in that regard. The possession of the property is also stated to be
with the petitioner. The Income Tax Department has also filed a
statement stating that they have no objection in the attachment
effected on the property at their instance being effaced.
6. Taking all the aforesaid facts cumulatively into
consideration, I am of the view that the petitioner is entitled to
succeed. Accordingly, this writ petition is allowed and 2nd
respondent is directed to register Ext.P1 sale certificate cum sale
deed in favour of the petitioner subject to compliance with usual
formalities. The 3rd respondent shall also effect mutation on
WP(C) NO. 4654 OF 2022
application by the petitioner.
The writ petition is disposed of as above.
Sd/-
GOPINATH P.
JUDGE
DK
WP(C) NO. 4654 OF 2022
APPENDIX OF WP(C) 4654/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE SALE CERTIFICATE DATED
02/12/2019 ISSUED BY THE BANK.
Exhibit P2 TRUE COPY OF THE SALE DEED NO. 574/2001
OF THRIKKAKKARA SUB REGISTRY OFFICE IN
RESPECT OF 36.014 ARES OF PROPERTY.
Exhibit P3 TRUE COPY OF THE SALE DEED NO. 576/2001
OF THRIKKAKKARA SUB REGISTRY OFFICE IN
RESPECT OF 36. 421 ARES OF PROPERTY.
Exhibit P4 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE
DATED 28/01/2022 ISSUED BY THE
THRIKKAKKARA SUB REGISTRY OFFICE.
Exhibit P5 TRUE COPY OF THE UNDERTAKING DATED
12/1/2011 SUBMITTED BY THE MORTGAGER TO
THE BANKp
