Kerala High Court
Canara Bank vs The Tahsildar, Revenue Recovery on 11 January, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
WEDNESDAY, THE 11TH DAY OF JANUARY 2023/21ST POUSHA, 1944
WP(C) NO. 19495 OF 2022
PETITIONER:
CANARA BANK
ARM BRANCH, 2ND FLOOR,
CANARA BANK BUILDING, CHITTOOR ROAD,
OPPOSITE GOVERNMENT GIRL HIGH SCHOOL,
ERNAKULAM - 682035,
REPRESENTED BY ITS SENIOR MANAGER.
BY ADVS.
SMT.M.J.RAJASREE
SRI K.V.ANIL
SRI ANIRUDH KADAVIL
RESPONDENTS:
1 THE TAHSILDAR, REVENUE RECOVERY
TALUK OFFICE, THRISSUR,
THRISSUR-680306.
2 SUB-REGISTRAR,SUB- REGISTRAR OFFICE,
KUTTANELLUR, THRISSUR - 680014.
3 SUB-REGISTRAR
SUB- REGISTRAR OFFICE,
OLLUKKARA, THRISSUR -680655.
4 RAJESH JOSE
S/O SRI. JOSE, KURIYAPARAMBIL HOUSE,
MARIYAPURAM, ANCHERY P.O.,
THRISSUR-680006.
5 SHYJU A S
ATTAPARAMBIL HOUSE, ST. THOMAS STREET,
KURIACHARA, THRISSUR - 680006.
6 JOSE SONS
TC 5/155, KURIAPARAMBIL HOUSE,
KURIACHARA, ANCHERI P.O.,
THRISSUR - 680006.
7 VILLAGE OFFICER
OLLUR VILLAGE OFFICE,
OLLUR, THRISSUR-680306.
8 VILLAGE OFFICER
PANANCHERY VILLAGE OFFICE,
PANANCHERY, THRISSUR - 680652.
W.P.(C)No.19495/2022
2
ADDL.R9 & R10 IMPLEADED
ADDL.R9. SRI. SHAJU.K.F.,
KATTIPARAMBIL HOUSE,
KOTTAYI, EAST CHURCH, KALLUR.P.O.,
THRISSUR-680317.
ADDL.R10 JANA NANMA NIDHI INDIA LTD.,
. DOOR NO. 6/284, NEAR NIRMALAMATHA SCHOOL, EAST FORT
THRISSUR, KERALA INDIA-680001.
(ADDL.R9 & ADDL.R10 ARE IMPLEADED AS PER ORDER
DATED 27-09-2022 IN IA 1/2022 IN WP(C).
ADDL.R11 IMPLEADED
ADDL.R11 JANAPADHAM KURIES PVT. LTD.,
. SAKTHAN ARCADE, SAKTHAN THAMPURAN NAGAR,
THRISSUR-680001, REPRESENTED BY ITS CHAIRMAN.
(ADDL.R11 IMPLEADED AS PER ORDER DATED 16-11-2022
IN IA 3/2022 IN WP(C)
BY ADVS.
SMT. DEEPA. V. GOVT.PLEADER
SRI T.M.CHANDRAN
SRI S.SUJITH
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 11.01.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C)No.19495/2022
3
T.R. RAVI, J.
--------------------------------------------
W.P.(C)No.19495 of 2022
--------------------------------------------
Dated this the 11th day of January, 2023
JUDGMENT
The prayers in the writ petition are; to quash Exts.P9 and
P10 encumbrance certificates issued by respondents 2 and 3 to
the extent they mention about orders of attachment dated
29.5.2015 and 18.1.2020 in Item Nos.1 and 2 in Ext.P7, which
is kept as security for the equitable mortgage; to declare that
the property mentioned in Ext.P7, i.e., 2.06 Ares of land and
residential building thereon in 211/8P of Ollur Village of Thrissur
Taluk (Item No.1) and 1.72 Ares of land in Re-Sy.No.60/7 of
Pananchery Village of Thrissur Taluk (Item No.2) is free of all
encumbrances; to direct that attachment mentioned in Exts.P9
and P10 are not valid, since the Civil Court and Arbitral Tribunal
attachment is subsequent to the mortgage and the issue is
already covered in Exts.P11 and P12 judgments; to direct
respondents 1, 2, 3, 7 and 8 to remove the entries in their
registers relating to the attachments made over the subject
property mentioned in Ext.P7 for 2.06 Ares of land and
W.P.(C)No.19495/2022
residential building thereon in 211/8P of Ollur Village of Thrissur
Taluk (Item No.1) and 1.72 Ares of land in Re-Sy.No.60/7 of
Pananchery Village of Thrissur Taluk (Item No.2), since the
attachment is subsequent to the mortgage, to direct the
respondents 7 and 8 to accept land tax and issue land tax
receipt for registering the auctioned property by respondents 2
and 3 in favour of the successful purchaser, to direct
respondents 2 and 3 to register the property (Item Nos.1 and 2)
mentioned in Ext.P7 in the name of the auction purchaser, since
the attachment mentioned in Exts.P9 and P10 is subsequent to
the mortgage; and for other consequential reliefs.
2. 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 attachments were effected on 29.5.2015
and 18.1.2020 and the mortgage was created prior to the said
dates, in the year 2013. Reliance is placed on the decision in
Madhan v. Sub Registrar, Kollam reported in [2014 (1) KLT
406]. Reliance is also placed on Exts.P11 and P12 judgments of
W.P.(C)No.19495/2022
this Court rendered in similar circumstances.
3. The contention of the counsel for the petitioner is
justified. The writ petition is allowed. Respondents 2 and 3 are
directed to efface the entries regarding encumbrance/
attachment in Exts.P9 and P10 encumbrance certificates, within
one month from the date of receipt of a certified copy of this
judgment. Respondents 7 and 8 shall accept land tax and issue
tax receipt, after effacing the entries regarding
encumbrance/attachment in Ext.P9 and P10 encumbrance
certificates by respondents 2 and 3. Respondents 2 and 3 shall
also take necessary steps to register any document relating to
the property mentioned in Ext.P7 (Item Nos.1 and 2), as and
when it is tendered, ignoring the attachments.
Sd/-
T.R. RAVI
JUDGE
dsn
W.P.(C)No.19495/2022
APPENDIX OF WP(C) 19495/2022
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE SANCTION MEMORANDUM DATED
15.10.2013 ISSUED BY CANARA BANK, POOCHATTY
BRANCH IN FAVOUR OF THE 6TH RESPONDENT.
Exhibit P2 A TRUE COPY OF THE LETTER EVIDENCING DEPOSIT
OF TITLE DEEDS DATED 25.10.2013 DEPOSITED ON
24.10.2013 EXECUTED BY THE 6TH RESPONDENT IN
FAVOUR OF CANARA BANK, POOCHATTY BRANCH.
Exhibit P3 A TRUE COPY OF THE RELEASE DEED NO.3372/2011
DATED 07.10.2011 OF SUB REGISTRAR OFFICE,
KUTTANELLUR.
Exhibit P4 A TRUE COPY OF THE SANCTION MEMORANDUM DATED
12.01.2015 ISSUED BY CANARA BANK, POOCHATTY
BRANCH IN FAVOUR OF THE 6TH RESPONDENT.
Exhibit P5 A TRUE COPY OF THE LETTER EVIDENCING DEPOSIT
OF TITLE DEEDS DATED 12.01.2015 EXECUTED BY
4TH RESPONDENT IN FAVOUR OF CANARA BANK,
POOCHATTY BRANCH.
Exhibit P6 A TRUE COPY OF THE SALE DEED NO.3140/2014
DATED 29.08.2014 OF SUB REGISTRAR OFFICE,
KUTTANELLUR.
Exhibit P7 A TRUE COPY OF THE SALE NOTICE DATED
05.03.2022 ISSUED BY THE PETITIONER.
Exhibit P8 A TRUE COPY OF THE LETTER OF CONFIRMATION
DATED 04.05.2022 ISSUED BY THE PETITIONER
BANK IN FAVOUR OF THE BUYER.
Exhibit P9 A TRUE COPY OF THE ENCUMBRANCE CERTIFICATE
NO.7243/2022 DATED 02.06.2022 IN RESPECT OF
1ST ITEM OF EXHIBIT P7 ISSUED BY THE 2ND
RESPONDENT.
Exhibit P10 A TRUE COPY OF THE ENCUMBRANCE CERTIFICATE
NO.6916/2022 DATED 03.06.2022 IN RESPECT OF
2ND ITEM OF EXHIBIT P7 ISSUED BY THE 3RD
RESPONDENT.
Exhibit P11 A TRUE COPY OF THE JUDGMENT DATED 24.07.2015
IN WA NO.612/2015 BY THE HONOURABLE HIGH
W.P.(C)No.19495/2022
COURT.
Exhibit P12 A TRUE COPY OF JUDGMENT DATED 19.05.2020 IN
DBA 1/2020 BY THE HONOURABLE HIGH COURT.
RESPONDENT EXHIBITS
Exhibit R11(A) TRUE COPY OF THE GAZETTE NOTIFICATION DATED
30/03/2022 ISSUED BY THE GOVERNMENT OF
KERALA
