Kerala High Court
Canara Bank vs Tahsildhar Revenue Recovery on 27 July, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944
WP(C) NO. 17184 OF 2022
PETITIONER:
CANARA BANK
ARM BRANCH 2ND FLOOR, CANARA BANK BUILDING
CHITTOOR ROAD, OPPOSITE GOVERNMENT GIRL HIGH SCHOOL
ERNAKULAM - 682035, REPRESENTED BY ITS MANAGER
BY ADVS.
M.J.RAJASREE
K.V.ANIL
ANIRUDH KADAVIL
RESPONDENTS:
1 TAHSILDHAR REVENUE RECOVERY
TALUK OFFICE, FORT P.O., THIRUVANANTHAPURAM - 695023
2 SUB-REGISTRAR
SUB- REGISTRAR OFFICE, PATTOM, PATTOM P.O.
THIRUVANANTHAPURAM - 695004
3 K C SANJEEV
MANAGING PARTNER,PRISM CASTING NO.7D, KOWDIAR MANOR,
JAWAHAR NAGAR P.O., THIRUVANANTHAPURAM-695003
4 M/S PRISM CASTINGS
REPRESENTED BY SRI.K C SANJEEV, MANAGING PARTNER PRISM
CASTING NO.7D, KOWDIAR MANOR JAWAHAR NAGAR P.O.
THIRUVANANTHAPURAM-695003
5 VILLAGE OFFICER
VILLAGE OFFICE,
KUDAPPANAKUNNU, THIRUVANANTHAPURAM - 695043
SRI.BIMAL K.NATH- SR.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
27.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 17184 OF 2022
2
T.R. RAVI, J.
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W.P.(C) No.17184 of 2022
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Dated this the 27th day of July, 2022
JUDGMENT
Admit. Government Pleader takes notice for respondents 1, 2
and 5. Notice to respondents 3 and 4 have been served by effecting
paper publication and they have not chosen to appear.
2. The prayer in the writ petition is for quashing Ext.P13
issued by the 5th respondent and Ext.P14 issued by the 2 nd
respondent to the extent they mention about an order of
attachment dated 12.12.2018 on the property described in Serial
No.4 Schedule 9/9 of Ext.P14 [8.70 Ares of property in Survey
No.743 (Re-survey No.448/17)], which had been equitably
mortgaged with the petitioner. There is also a prayer for a
direction to respondents 1, 2 and 5 to remove the entries in their
registers relating to the attachments made over the said
properties, subsequent to the date of the mortgage in favour of the
petitioner.
3. The petitioner had earlier approached this Court by
filing W.P.(C) No.8768 of 2022 which was disposed of by this Court
with a direction to the Sub Registrar to efface the entry regarding
WP(C) NO. 17184 OF 2022
the attachment by the 5th respondent, the Kerala State Industrial
Development Corporation (hereinafter referred to as 'KSIDC')
from Ext.P5 and to either reissue the same, or issue a fresh
encumbrance certificate. At the time of filing of the above writ
petition the attachment made at the instance of KSIDC alone was
put in issue and hence the above direction. It is categorically
found that the attachment at the instance of the KSIDC was of the
year 2018, which is nearly five years after the equitable mortgage
was effected in favour of the petitioner and hence the petitioner is
entitled to the relief. In Ext.P13, it is stated that there are further
attachments effected by the Additional Sub Court, Trivandrum
which are admittedly of the year 2019, i.e even after the
attachment which had been earlier put in issue, made at the
instance of the KSIDC. It is hence apparent that the said
attachment also cannot survive since the mortgage is prior to the
said attachment. A Division Bench of this Court has in Ext.P16
judgment in DBA No.1 of 2020 held that the sale carried out either
under the SARFAESI Act or under the RDB Act takes precedence
over the statutory charge due to the Government created under the
KVAT Act or under other State Enactments after the amendment of
2016. It is also held that secured creditor in whose favour a
security interest has been created thus has priority in sale and
WP(C) NO. 17184 OF 2022
payment over all other statutory charge holders. The situation of
persons who do not have such statutory charge cannot be any
better. In the above circumstances the petitioner is entitled the
same.
In the result, the writ petition is allowed. Exts.P13 and P14 to
the extent they mention about the attachment dated 12.12.2018 on
the property described in Serial No.4 Schedule 9/9 of Ext.P14 that
is 8.70 Ares of property in Survey No.743 correspondent in the Re-
survey No.448/17 is set aside. There will be a direction to
respondents 1, 2 and 5 to remove the entries in their registers,
relating to the attachments made over the subject property of 8.70
Ares of land in Re-Survey No.448/17 (Survey No.743) in
Kudappanakunnu Village and 8.38 Ares of land in Re-Survey
No.448/12-1 (Survey No.742) in Kudappanakunnu Village, as they
have been made subsequent to the mortgage in favour of the
petitioner. Necessary orders shall be issued within one month
from the date of receipt of a copy of this judgment.
Sd/-
T.R.RAVI
JUDGE
mpm
WP(C) NO. 17184 OF 2022
APPENDIX OF WP(C) 17184/2022
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE SANCTION MEMORANDUM
DATED 28.02.2013 ISSUED BY THE PETITIONER
BANK IN FAVOUR OF THE 4TH RESPONDENT.
Exhibit P2 A TRUE COPY OF THE LETTER EVIDENCING
DEPOSIT OF TITLE DEEDS (HEREINAFTER
REFERRED TO AS LEDTD) DATED 16.03.2012
EXECUTED BY THE 3RD RESPONDENT IN FAVOUR
OF THE PETITIONER BANK.
Exhibit P3 A TRUE COPY OF THE SALE DEED NO.3763/2008
DATED 10.09.2008 DEPOSITED WITH THE
PETITIONER BANK ON 15.03.2012.
Exhibit P4 A TRUE COPY OF THE LEDTD DATED 16.04.2013
EXECUTED BY THE 4TH RESPONDENT IN FAVOUR
OF THE PETITIONER BANK.
Exhibit P5 A TRUE COPY OF THE SALE DEED NO.2328/2011
DATED 29.07.2011 DEPOSITED WITH THE
PETITIONER BANK ON 15.04.2013.
Exhibit P6 A TRUE COPY OF THE LEDTD DATED 16.04.2013
EXECUTED BY THE 4TH RESPONDENT IN FAVOUR
OF THE PETITIONER BANK.
Exhibit P7 A TRUE COPY OF THE SALE DEED NO.1680/2011
DATED 30.05.2011 DEPOSITED WITH THE
PETITIONER BANK ON 15.04.2013.
Exhibit P8 A TRUE COPY OF THE DEMAND NOTICE DATED
05.09.2018 ISSUED BY THE PETITIONER BANK
TO THE 3RD RESPONDENT.
Exhibit P9 A TRUE COPY OF THE POSSESSION NOTICE
UNDER SECTION 13(4) DATED 12.12.2018
ISSUED BY THE PETITIONER BANK TO THE 4TH
RESPONDENT.
WP(C) NO. 17184 OF 2022
Exhibit P10 A TRUE COPY OF THE ENCUMBRANCE
CERTIFICATE NO.9809/21 DATED 18.11.2021
ISSUED BY THE 2ND RESPONDENT.
Exhibit P11 A TRUE COPY OF THE SALE NOTICE DATED
19.02.2022 ISSUED BY THE PETITIONER BANK.
Exhibit P12 A TRUE COPY OF THE JUDGMENT DATED
22.03.2022 IN WP(C) NO.8768/2022.
Exhibit P13 A TRUE COPY OF THE LETTER DATED
21.05.2022 ISSUED BY THE 5TH RESPONDENT
IN FAVOUR OF THE PETITIONER BANK.
Exhibit P14 A TRUE COPY OF THE ENCUMBRANCE
CERTIFICATE NO.4944/2022 DATED
16.05.2022.
Exhibit P15 A COPY OF THE JUDGMENT DATED IN
24.07.2015 IN WA NO.612/2015 BY THE
HONOURABLE HIGH COURT.
Exhibit P16 A COPY OF JUDGMENT DATED 19.05.2020 IN
DBA 1/2020 BY THE HONOURABLE HIGH COURT.
