Kerala High Court
Canara Bank vs State Of Kerala on 21 October, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
FRIDAY, THE 21ST DAY OF OCTOBER 2022 / 29TH ASWINA, 1944
WP(C) NO. 7296 OF 2022
PETITIONER:
CANARA BANK,
MAVELIKKARA BRANCH I (1991), CHERIANS GALLARIA
(KOLLASSERIL KIZHAKKETHIL ) NADAKKAVU, ALAPPUZHA
DISTRICT 690 101, REPRESENTED BY ITS SENIOR
MANAGER.
BY ADVS.
SRI R.S.KALKURA
SRI M.S.KALESH
MS. R.BINDU
SRI HARISH GOPINATH
SRI P.I.NAJUMAL HUSSAIN
MS.ANJALI B CHANDRAN
SRI GEORGE AUGUSTINE
MS. PARVATHI ANIL
SRI ALEX MIDHUN K.M.
SRI GENTLE C.D.
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM-695 001
2 SUB REGISTRAR,
MANNAR SUB REGISTRY OFFICE,
MANNAR, ALAPPUZHA 689 622.
3 SREEKUMAR S, AGED 44 YEARS
S/O. SREEDHARAN PILLAI, UPPAMOOTTIL HOUSE,
KUTTAMPEROOR P.O, ALAPPUZHA 689 623.
4 AHILESH KUMAR G,
AGED 43 YEARS
S/O. GOPAKUMAR PILLAI, SHIVAVILAS HOUSE,
CHIRAYAMPU P.O, THOTTAPUZHASSERY,
MARAMOM, PATHANAMTHITTA-689 549
5 LIJIYA R, W/O. AHILESH KUMAR G, UDAYATHIL HOUSE,
CHENNITHALA P.O, MAVELIKKARA, ALAPPUZHA 690 105.
6 TAHSILDAR, CHENGANNOOR TALUK,
CHENGANNUR 689 121.
W.P.(C)No.7296 of 2022
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7 VILLAGE OFFICER,
MANNAR VILLAGE, MANNAR 689 622, ALAPPUZHA DISTRICT.
BY ADV P.VINODKUMAR
SMT. V. DEEPA, GOVT.PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 21.10.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C)No.7296 of 2022
3
T.R. RAVI, J.
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W.P.(C)No.7296 of 2022
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Dated this the 21st day of October, 2022
JUDGMENT
The petitioner is a Nationalised Bank. The 3rd respondent
availed a housing loan from the Bank. Due to default in payment
of loan, the bank initiated recovery proceedings against the 3 rd
respondent and the property belonging to the 3 rd respondent was
put to sale. Sale was confirmed and sale certificate was issued to
respondents 4 and 5, who are the auction purchasers. The
grievance of the petitioner Bank is that when the purchasers
applied for mutation of the property in their names, it was found
that an encumbrance existed on it by virtue of Ext.P9.
2. The prayer in the writ petition is for a declaration that
all orders of attachments subsequent to the creation of equitable
mortgage in favour of the petitioner bank effected on 2.2.2019
passed by the District Court, Mavelikkara in E.A.No.16/19 in
E.P.No.14/2019 in A.R.No.13/2017 have no impact on Ext.P8 sale
certificate and are liable to be declared as one having no
relevance whatsoever for the purpose of registration; to direct
W.P.(C)No.7296 of 2022
the 2nd respondent to efface all attachments subsisting over
Ext.P8 sale certificate; and to direct respondents 6 and 7 to
effect mutation of the property covered by Ext.P8 sale certificate
in the name of respondents 4 and 5.
3. The counsel for the petitioner submits that, having
regard to Section 26E of the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest
(SARFAESI) Act, no attachment of immovable property
subsequent to the creation of the security interest will survive. It
is submitted that the mortgage was created on 15.10.2015; that
the attachment was effected subsequently on 02.02.2019; that
the sale took place on 04.03.2021; and that the sale certificate
was issued on 10.05.2021. Reliance is placed on the decision in
Madan v. Sub Registrar, Kollam reported in [2014 (1) KLT
406].
4. The contention of the counsel for the petitioner is
justified. The writ petition is allowed. The 2 nd respondent is
directed to efface all attachments subsisting over the property
covered by Ext.P8 sale certificate. Necessary orders shall be
issued within one month from the date of receipt of a copy of this
judgment. Respondents 6 and 7 shall thereafter take necessary
W.P.(C)No.7296 of 2022
steps to effect mutation in respect of the property covered by
Ext.P8 sale certificate, in the name of respondents 4 and 5.
Sd/-
T.R. RAVI
JUDGE
dsn
W.P.(C)No.7296 of 2022
APPENDIX OF WP(C) 7296/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE LETTER EVIDENCING THE
DEPOSIT OF TITLE DEED DATED 15.10.2015
EXECUTED BY THE 3RD RESPONDENT IN FAVOUR
OF THE PETITIONER BANK.
Exhibit P2 TRUE COPY OF THE NOTICE DATED 19.10.2017
ISSUED BY THE PETITIONER UNDER SECTION
13(2) OF THE SARFAESI ACT.
Exhibit P3 TRUE COPY OF THE POSSESSION NOTICE DATED
12.1.2018.
Exhibit P4 TRUE COPY OF THE ORDER IN M.C. NO. 105 OF
2018 DATED 08.03.2018 OF THE CHIEF
JUDICIAL MAGISTRATE COURT AT ALAPPUZHA.
Exhibit P5 TRUE COPY OF THE MAHAZAR PREPARED BY THE
ADVOCATE COMMISSIONER APPOINTED AS PER
ORDER IN M.C. 105 OF 2018 DATED
30.06.2018.
Exhibit P6 TRUE COPY OF THE E-AUCTION SALE NOTICE
DATED 30.01.2021 ISSUED BY THE PETITIONER
BANK TO THE 3RD RESPONDENT AND PUBLISHED
BY THEM.
Exhibit P7 TRUE COPY OF THE LETTER OF CONFIRMATION
OF SALE DATED 4.3.2021 ISSUED BY THE
PETITIONER BANK TO THE RESPONDENT 4 AND
Exhibit P8 TRUE COPY OF THE SALE CERTIFICATE ISSUED
TO RESPONDENTS 4 AND 5 REGISTERED AS DEED
NO. 573/2021 DATED 10.05.2021 OF THE
MANNAR SUB REGISTRY OFFICE.
Exhibit P9 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE
DATED 30.01.2020 ISSUED BY THE SUB
REGISTRAR, MANNAR IN RESPECT OF SECURITY
INTEREST PROPERTY FOR A PERIOD COMMENCING
FROM 11.9.2015 TO 25.1.2020.
