Bank Of Baroda vs The Sub Registrar
2023 Latest Caselaw 9311 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MR. JUSTICE GOPINATH P.
        FRIDAY, THE 25TH DAY OF AUGUST 2023 / 3RD BHADRA, 1945
                        WP(C) NO. 18188 OF 2023

PETITIONER/S:
            BANK OF BARODA, M.G ROAD BRANCH, ERNAKULAM , KOCHI.
            REPRESENTED BY ITS CHIEF MANAGER AND AUTHORISED OFFICER,
            SRI. SHRINIWAS PATHAK, AGED 44 YEARS, S/O. LATE. S.M PATHAK,
            PIN - 682018

            BY ADV LEO GEORGE


RESPONDENT/S:
    1       THE SUB REGISTRAR, KARAKULAM, SUB REGISTRAR'S OFFICE,
            KARAKULAM, THIRUVANANTHAPURAM,, PIN - 695564

    2       THE VILLAGE OFFICER, ARUVIKARA, VILLAGE OFFICE ARUVIKARA,,
            PIN - 695564

    3       THE THASILDARNEDUMANGAD, PIN - 695541

    4       N.K. GEORGEKUTTYS/O. C. KOCHU KOSHY,T.C.5/1964,PIPELINE
            ROAD, KOWDIAR,THIRUVANANTHAPURAM, PIN - 695003

    5       ANILAL RS/O.RUBILAL ,'ANUPA NIVAS', MAYYANAD, KOLLAM, PIN -
            691303

    6       M/S. USRIS HARDWARES AND SANITARIESREPRESENTED BY ITS
            PROPRIETOR, MUHAMMED FAIZAL, ERIYAD, THRISSUR, PIN - 680666

            BY ADVS.
            S V Rajan
            MITHUN PAVANAN
            P.B.MALINI RAO(K/000739/2017)
            KAILAS NATH(K/844/2018)
            SWETHA P. DILEEP(K/1077/2022)
            DONA K.R.(K/000763/2023)
            MOHAMED AMJAD K.M(K/1228/2020)


OTHER PRESENT:
           SMT. DEEPA V (GP)


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
25.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P (C) No.18188/2023                     -2-

                                  JUDGMENT

The petitioner brought to sale an item of property belonging to the 4 th

respondent under the provisions of the Securitisation and Reconstruction of

Financial Assets and Enforcement of Security Interest Act (hereinafter referred to

as the SARFAESI Act). The property was purchased by the 5 th respondent. However

the sale certificate issued by the petitioner is not being accepted for registration by

the 1st respondent on the ground that there is an attachment obtained by the 6 th

respondent in I.A. No.2/2021 in C.S. No.377/2021 on the file of the Subordinate

Judges Court, Thrissur.

2. The learned counsel appearing for the petitioner submits that the issue

stands covered in favour of the petitioner by judgments of this court in Madhan S.

v. Sub Registrar, Kollam; 2014 (1) KLT 406 and Secretary, Keechery

Service Co-operative Bank Ltd., v. Sajitha Nizar @ Sajitha; 2020 (6) KLT

68 (DB), wherein it has been held that the attachments effected after the date of

mortgage cannot affect the mortgage. He submits that the mortgage in this case is

clearly prior to the attachment was obtained by the 6th respondent.

3. The learned counsel appearing for the 6th respondent does not dispute

the fact that the attachment obtained by the 6 th respondent is after the date of

mortgage of the land in question with the petitioner

4. Having regard to the facts and circumstances of the case, this writ

petition is liable to be allowed. It is settled by the judgment of this court in

Secretary, Keechery Service Co-operative Bank Ltd., (supra) that the

attachments are obtained after the date of mortgage cannot have any bearing on the

action taken by the bank under the provisions of the SARFAESI Act. Therefore, this

writ petition is allowed and the 1 st respondent is directed to register the sale

certificate issued by the petitioner in favour of the 5 th respondent without in any

manner being affected by the attachment obtained by 6 th respondent. The 1st

respondent shall also efface the encumbrance obtained by the 6 th respondent in I.A.

No.2/2021 in C.S. No.377/2021 on the file of the Subordinate Judges Court,

Thrissur from the record of encumbrance maintained by him.

Sd/-

GOPINATH P.

JUDGE AMG

APPENDIX OF WP(C) 18188/2023 PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF SALE DEED NO. 1265/1995 OF KARAKULAM SRO

Exhibit P2 TRUE COPY OF SALE DEED NO.1477/1995 OF KARAKULAM SRO

Exhibit P3 TRUE COPY OF CERSAI SEARCH REPORT

Exhibit P4 TRUE COPY OF THE DEMAND NOTICE CAUSED BY THE AUTHORISED OFFICER OF THE PETITIONER BANK TO THE BORROWERS INCLUDING FOURTH RESPONDENT DATED 01.08

Exhibit P5 TUE COPY OR SALE CERTIFICATE ISSUED BY THE AUTHORISED OFFICER OF THE PETITIONER IN FAVOUR OF THE FIFTH RESPONDENT IN RESPECT OF THE PROPERTY COVERED BY EXHIBIT P1 DATED 24.03.2023

Exhibit P6 A TRUE COPY OF ENCUMBRANCE CERTIFICATE IN RESPECT OF THE SUBJECT PROPERTY ISSUED BY THE OFFICE OF THE FIRST RESPONDENT COVERING THE PERIOD FROM 01.02.2019 TO 10.02.2023

Exhibit P7 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BANK BEFORE THE FIRST RESPONDENT DATED 10.05.2023

Exhibit P8 TRUE COPY OF THE COMMUNICATION ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER DATED 18.05.2023