Canara Bank vs Thahasildhar Revenue Recovery
2022 Latest Caselaw 3349 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
     TUESDAY, THE 22ND DAY OF MARCH 2022 / 1ST CHAITHRA, 1944
                        WP(C) NO. 8768 OF 2022
PETITIONER:

          CANARA BANK, ARM BRANCH, 2ND FLOOR, CANARA BANK
          BUILDING, CHITTOOR ROAD, OPPOSITE GOVERNMENT
          GIRL HIGH SCHOOL, ERNAKULAM 682 035,
          REPRESENTED BY ITS MANAGER.

          BY ADVS.
          M.J.RAJASREE
          K.V.ANIL
          ANIRUDH KADAVIL


RESPONDENTS:

    1     THAHASILDHAR REVENUE RECOVERY
          TALUK OFFICE, FORT P.O.,
          THIRUVANANTHAPURAM 695 023.

    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 695 003.

    4     M/S. PRISM CASTINGS, REPRESENTED BY
          SRI.K.C. SANJEEV, MANAGING PARTNER,
          PRISM CASTING NO. 7D, KOWDIAR MANOR,
          JAWAHAR NAGAR P.O, THIRUVANANTHAPURAM 695 003.

    5     KERALA STATE INDUSTRIAL DEVELOPMENT CORPORATION
          LTD, REPRESENTED BY GENERAL MANAGER,
          TC.C. XI/2666, KESTON ROAD, KOWDIAR,
          THIRUVANANTHAPURAM 695 003.


          SMT.K.AMMINIKUTTY SR.G.P.
          SRI.P.U.SHAILAJAN - SC - R5
     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WPC 8768/22
                                       2



                            JUDGMENT

The Canara Bank, which is a body corporate, constituted

under the Banking Companies (Acquisition and Transfer of

Undertakings) Act, 1970, has approached this Court seeking a

direction to the 2nd respondent - Sub Registrar, to efface all

entries of attachment over the property involved in this case

subsequent to 28.02.2013 - the date on which they had obtained

an equitable mortgage over it - from Ext.P5 Encumbrance

Certificate, within a time frame to be fixed by this Court.

2. The afore request of the petitioner, made by their

learned counsel - Sri.Anirudh Kadavil, was answered by

Sri.P.U.Shailajan - learned counsel for the 5th respondent, saying

that his client had granted a loan to a company by name 'Solar

Offset Printers Pvt Ltd', on the strength of a personal guarantee

given by the 3rd respondent, who was its Director and that they

have initiated action for recovery and obtained an order of

attachment dated 12.12.2018 on the property in question. He WPC 8768/22

prayed that, therefore, this Court may grant relief to the

petitioner only with the clarification that, subsequent to the sale

of the property if there is any amounts left, same may be

directed to be handed over to his client.

3. The learned Senior Government Pleader - Smt.Mable

C. Kurian, submitted that if the petitioner only requires

effacement of the order of attachment dated 12.12.2018 obtained

by the 5th respondent, then she will not stand in the way of an

appropriate order being issued by this Court; however, adding

that if there are any dues to the Government towards arrears of

public revenue, liberty may be reserved to the competent

Authority to recover it in terms of law.

4. When I evaluate the afore submissions, it is without

doubt that the Bank claims an equitable mortgage over the

property in question as early as in the year 2013; while the 5 th

respondent granted a loan to the aforementioned Company, of

which the 3rd respondent is stated to be the Director, only in the

year 2015. Obviously, the charge of the petitioner over the

property in question obtains primacy and the 5th respondent WPC 8768/22

cannot seek any relief over riding the same.

5. That said, there is no allegation anywhere in this Writ

Petition regarding any dues outstanding to Revenue and

therefore, I do not propose to speak on the afore submission of

the learned Senior Government Pleader.

6. In the afore circumstances and since the 5 th respondent

unequivocally admits that their order of attachment was only of

the year 2018 - which is nearly five years after the equitable

mortgage was effected in favour of the petitioner - I am certain

that the latter is entitled to relief.

7. Before I go forward, I must record that the notices

issued to respondents 3 and 4 had been returned with the

endorsement 'Not residing since the property has been attached'.

However, because the directions in this judgment will not operate

to their prejudice, I am certain that this Court will be justified in

disposing of this Writ Petition, even in their absence.

Resultantly, I order this Writ Petition, with a direction to

the 2nd respondent - Sub Registrar to efface the order of

attachment obtained by the 5th respondent dated 12.12.2018 from WPC 8768/22

Ext.P5 and to either reissue the same, or issue a fresh

Encumbrance Certificate to them, within a period of two weeks

from the date of receipt of a copy of this judgment.

Needless to say, this Court has not spoken about any dues

towards Public Revenue on the property; and further make it

clear that once the same is brought to sale by the petitioner-

Bank in terms of applicable law, the 5 th respondent will be at

liberty to proceed against any balance, after adjusting the dues of

the petitioner, in terms of law; for which purpose, all their

contentions are left open.

Sd/-

RR                                       DEVAN RAMACHANDRAN
                                               JUDGE
 WPC 8768/22


                APPENDIX OF WP(C) 8768/2022

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 DATED 16.03.2012 EXECUTED BY THE 3RD RESPONDENT IN FAVOUR OF THE PETITIONER BANK.

Exhibit P3 A TRUE COPY OF THE DEMAND NOTICE DATED 05.09.2018 ISSUED BY THE PETITIONER BANK TO THE 3RD RESPONDENT.

Exhibit P4 A TRUE COPY OF THE POSSESSION NOTICE UNDER SECTION 13 (4) DATED 12.12.2018 ISSUED BY THE PETITIONER BANK TO THE 4TH RESPONDENT.

Exhibit P5 A TRUE COPY OF THE ENCUMBRANCE CERTIFICATE NO 9809/21 DATED 18.11.2021 ISSUED BY THE 2ND RESPONDENT.

Exhibit P6 A TRUE COPY OF THE SALE DEED NO.

3763/208 DATED 10.09.2008.

Exhibit P7 A TRUE COPY OF THE SALE NOTICE DATED 19.02.2022 ISSUED BY THE PETITIONER BANK.

Exhibit P8 A COPY OF THE JUDGMENT DATED IN 24.07.2015 IN WA NO. 612/2015 BY THE HONOURABLE HIGH COURT.

Exhibit P9 A COPY OF JUDGMENT DATED 19.05.2020 IN DBA 1/2020 BY THE HONOURABLE HIGH COURT.