Kerala High Court
Phoenix Arc Private Limited vs Sub Registrar on 11 January, 2023
W.P. (C) Nos. 30792 & 30822 of 2022
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 11TH DAY OF JANUARY 2023 / 21ST POUSHA, 1944
WP(C) NO. 30792 OF 2022
PETITIONER:
PHOENIX ARC PRIVATE LIMITED
(ACTING IN ITS CAPACITY AS TRUSTEE
OF PHOENIX TRUST FY17-8),
HAVING ITS REGISTERED OFFICE AT 5TH
FLOOR, DANI CORPORATE PARK, 158,
CST ROAD, KALINA, SANTA CRUZ(E),
MUMBAI
REPRESENTED BY ITS AUTHORISED
OFFICER MR. HARSH MAGIA, PIN - 400098
BY ADVS.
MANSOOR.B.H.
SAKEENA BEEGUM
RESPONDENTS:
1 SUB REGISTRAR
SUB REGISTRAR OFFICE, THRITHALA,
PALAKKAD, PIN - 679354
2 VILLAGE OFFICER
THRITHALA VILLAGE OFFICE, THRITHALA
PALAKKAD, PIN - 679354
3 RAHMA NADIRSHA
SWASTHAM, NOCHEEMAKARA,
ALUVA EAST VILLAGE, ALUVA TALUK,
ERNAKULAM DISTRICT, W/O. P.A.
NADIRSHA, PAREKOTTIL HOUSE,
NOCHEEMA, NAD(POST), ALUVA,
ERNAKULAM DISTRICT, PIN - 683514
4 U. ABDULLA
S/O URATHODIYIL ALIKUTTY,
OORATHODIYIL HOUSE, THRITHALA
VILLAGE, AMSOM, DESOM & POST,
PATTAMBI TALUK, THRUTHALLA
DESOM., PIN - 695068
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) Nos. 30792 & 30822 of 2022
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 11TH DAY OF JANUARY 2023 / 21ST POUSHA, 1944
WP(C) NO. 30822 OF 2022
PETITIONER:
PHOENIX ARC PRIVATE LIMITED,
(ACTING IN ITS CAPACITY AS TRUSTEE OF
PHOENIX TRUST FY17-8),
HAVING ITS REGISTERED OFFICE AT 5TH
FLOOR, DANI CORPORATE PARK, 158, CST
ROAD, KALINA, SANTA CRUZ(E),
'MUMBAI ,
REPRESENTED BY ITS AUTHORISED OFFICER
MR. HARSH MAGIA, PIN - 400098
BY ADVS.
MANSOOR.B.H.
SAKEENA BEEGUM
RESPONDENTS:
1 SUB REGISTRAR
SUB REGISTRAR OFFICE, THRITHALA,
PALAKKAD , PIN - 679354
2 VILLAGE OFFICER
THRITHALA VILLAGE OFFICE, THRITHALA
PALAKKAD, PIN - 679354
3 MUHAYUDHEEN MOULAVI
S/O. MAYAMU, MELEYIL HOUSE,
WORKING IN MOSQUE, KATTUKANPAL
VILLAGE, DESOM & POST, THALAPPILLY
TALUK, THRISSUR DISTRICT, PIN - 679534
4 U. ABDULLA
S/O. OORATHODIYIL ALIKUTTY,
OORATHODIYIL HOUSE, THRITHALA
VILLAGE, AMSOM, DESOM & POST,
PATTAMBI TALUK, THRITHALA DESOM., PIN - 679534
BY ADV ADVOCATE GENERAL OFFICE KERALA
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) Nos. 30792 & 30822 of 2022
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JUDGMENT
These Writ Petitions have been filed by an asset
reconstruction company. The said company brought to
sale an item of property belonging to the 4 th respondent in
W.P.(C)No. 30822/2022. It appears that there were
attachments obtained in respect of the said property by
the 4th respondent in W.P.(C)No.30822/2022 and the 3 rd
respondent in W.P.(C) No. 30792/2022.
2. The learned counsel appearing for the petitioners
(common in these cases) would submit that the
attachment obtained by the 3rd respondent in W.P.(C) No.
30792/2022 was in O.S. No. 36/2016 on the file of the
Subordinate Judge's Court, Ottappalam, while the
attachment obtained by the 4th respondent in W.P.(C) No.
30822/2022 was in O.S.No. 37/2016 on the file of the
same court. It is pointed out with reference to Ext.P4
W.P. (C) Nos. 30792 & 30822 of 2022
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document produced in both the Writ Petitions that the
aforesaid original suits have been dismissed for non-
payment of the balance court fee. It is submitted that in
such circumstances, the orders of attachment before
judgment obtained in those original suits at the
interlocutory stage no longer subsist, and any entry
regarding the attachments obtained in O.S Nos. 36/2016
and 37/2016 both on the file of the Subordinate Judge's
Court, Ottappalam will have to be effaced.
3. In the light of the law laid down by this court by
the Division Bench of this court in Travancore
Devaswam Board v. Deputy Examiner, Local Fund
Audit and others [2020 (3) KHC 129], this court has
been issuing directions for registration of sale certificates
issued under the provisions of the SARFAESI Act where it
has been found that the attachments in question have
been obtained after the date of creation of the mortgage.
W.P. (C) Nos. 30792 & 30822 of 2022
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However, such a direction cannot be issued in these cases
as it is fairly admitted by the learned counsel appearing for
the petitioners in these cases that there are several other
attachments in respect of the very same property.
4. Having regard to the aforesaid facts, these Writ
Petitions will stand disposed of directing that the details of
attachments obtained in O.S. Nos. 36 & 37 of 2016 on the
file of the Subordinate Judges Court, Ottappalam shall be
effaced from the record of encumbrance maintained by the
1st respondent.
These Writ Petitions are disposed of as above.
Sd/-
GOPINATH P.
JUDGE
RMV
W.P. (C) Nos. 30792 & 30822 of 2022
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APPENDIX OF WP(C) 30792/2022
PETITIONER EXHIBITS
Exhibit P1 COPY OF THE ONLINE E AUCTION NOTICE DATED 7/1/2022
Exhibit P2 COPY OF THE SALE CONFIRMATION LETTER DATED 4/2/2022
INFAVOUR OF SUCCESSFUL BIDDERS.
Exhibit P3 COPY OF THE CERTIFICATE OF ENCUMBRANCE OF PROPERTY
DATED 3/9/2021 ISSUED BY THE FIRST RESPONDENT
Exhibit P4 TRUE COPY OF THE ORDER IN O.S.NO.37/2019 OF SUB
COURT, OTTAPPALAM.
Exhibit P5 COPY OF THE JUDGMENT DATED 27/10/2021 IN W.P(C)
NO.16067/2021 OF THIS HON'BLE COURT
W.P. (C) Nos. 30792 & 30822 of 2022
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APPENDIX OF WP(C) 30822/2022
PETITIONER EXHIBITS
Exhibit P1 COPY OF THE E AUCTION NOTICE DATED 7/1/2022
Exhibit P2 COPY OF THE SALE CONFIRMATION LETTER DATED 4/2/2022
INFAVOUR OF SUCCESSFUL BIDDERS
Exhibit P3 COPY OF THE CERTIFICATE OF ENCUMBRANCE OF PROPERTY
DATED 3/9/2021 ISSUED BY THE 1ST RESPONDENT
Exhibit P4 TRUE COPY OF THE ORDER IN O.S 36/2016 OF SUB COURT
OTTAPALAM
Exhibit P5 COPY OF THE JUDGEMENT DATED 27/10/2021 IN W.P(C)
NO:16067/2021 OF THIS HON'BLE COURT
RESPONDENTS' EXHIBITS:NIL
TRUE COPY
P.A.TO JUDGE
