The South Indian Bank Ltd vs Sub Registrar
2023 Latest Caselaw 3662 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR. JUSTICE GOPINATH P.
    WEDNESDAY, THE 29TH DAY OF MARCH 2023 / 8TH CHAITHRA, 1945
                        WP(C) NO. 9495 OF 2023
PETITIONERS:

    1     THE SOUTH INDIAN BANK LTD
          REPRESENTED BY ITS CHIEF MANAGER, MAIN BRANCH,
          CHALAKUDY THRISSUR, PIN - 680307

    2     THE AUTHORISED OFFICER AND CHEIF MANAGER
          THE SOUTH INDIAN BANK LIMITED, REGIONAL OFFICE,
          IRINJALAKUDA, THRISSUR, PIN - 680121

          BY ADVS.
          S.AMBILY
          K.K.CHANDRAN PILLAI (SR.)
          SAJI THOMAS


RESPONDENTS:

    1     SUB REGISTRAR
          SUB REGISTRY OFFICE, MALA, THRISSUR DISTRICT., PIN -
          680732

    2     VILLAGE OFFICER
          VADAKKUMBHAGOM VILLAGE OFFICE, CHALAKKUDY TALUK,
          THRISSUR, PIN - 680307

    3     STATE OF KERALA
          REPRESENTED BY THE CHIEF SECRETARY, GOVT. SECRETARIAT,
          THIRUVANANTHAPURAM, PIN - 695001

    4     T.K UMMER
          PROPRIETOR, M/S.NAVARATNA HYPER MARKET, ASHTAMICHIRA,
          THRISSUR - 680 731, THANATHUPARAMBIL HOUSE,
          ASHTAMICHIRA.P.O, THRISSUR - 680 731 NOW RESIDING AT
          PRESTIGE NEPTUNE COURTYARD, FLAT NO.2021, MARINE DRIVE,
          KOCHI -, PIN - 682018

    5     LAILA VALIYAKATH VAPPU
          W/O.T.K.UMMER, THANATHUPARAMBIL ASHTAMICHIRA.P.O,
          THRISSUR - 680 731 NOW RESIDING AT PRESTIGE NEPTUNE
          COURTYARD, FLAT NO.2021, MARINE DRIVE, KOCHI, PIN -
          682018
 W.P (C) No.9495/2023               -2-

      6       T..K.YASIR
              S/O.T.K.UMMER THANATHUPARAMBIL ASHTAMICHIRA.P.O,
              THRISSUR - 680 731 NOW RESIDING AT PRESTIGE NEPTUNE
              COURTYARD, FLAT NO.2021, MARINE DRIVE, KOCHI, PIN -
              682018

      7       MUGHAL FOUNDATION MALL
              KODUNGALLUR VADAKKE NADA REPRESENTED BY ITS MANAGING
              PARTNER SRISRI.MUHAMMED ALI PADIYATH HOUSE, EDAVILANGU,
              KODUNGALLUR, THRISSUR, PIN - 680671

              BY ADV DENU JOSEPH.
              SMT. K.K. PREETHA, SR. GOVT. PLEADER.
      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
29.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P (C) No.9495/2023                    -3-

                                JUDGMENT

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

respondent for recovery of the amounts due from respondents 4 to 6 under a credit

facility extended to 4th respondent by the petitioners. The sale of the property was

conducted on 27-03-2023 (pending this writ petition) and the successful bidder has

already deposited 10% of the bid amount. In the meanwhile it has come to the

notice of the petitioners that the 7 th respondent had obtained an attachment over

the property in proceedings before the Sub Court, Irinjalakuda in I.A. No.1/2020 in

O.S. No.26/2020. The petitioners apprehend that the sale certificate that may be

issued in favour of the successful bidder will not be registered on account of the

attachment as is discernible from Ext.P1 Encumbrance Certificate.

2. The learned Senior Counsel appearing for the petitioners on the

instructions of Adv. S. Ambily would contend that the issue is covered in favour of

the petitioners by judgment of this court in HDFC v. Sub Registry Officer and

others ; 2011 (3) KLJ 561, 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), where it has been held that the

sale under the provisions of the SARFAESI Act is not effected in any manner by a

subsequent attachment by a third party obtained from the Civil Court. It is

submitted that the mortgage in this case was created on 23-11-2016 and the

attachment as discernible from the Encumbrance is only in the month of February,

2020.

3. Heard the learned Senior Counsel appearing for the petitioners, the

learned Government Pleader appearing for the official respondents and the learned

counsel appearing for the 4th respondent. Despite service of notice to other

respondents, there is no appearance for them.

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

petition is liable to be allowed. The attachment is clearly after the date of mortgage.

Going by the law laid down in the decisions referred to above, it is directed that on

presentation of the sale certificate, the same shall be registered notwithstanding the

fact that the 7th respondent had obtained an attachment. The 1 st / 2nd respondents

shall also efface the encumbrance obtained by the 7 th respondent from the Sub

Court, Irinjalakuda in I.A. No.1/2020 in O.S. No.26/2020 from the record of

encumbrance maintained by them.

Sd/-

GOPINATH P.

JUDGE AMG

APPENDIX OF WP(C) 9495/2023

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE DATED 04.11.2022

Exhibit P2 COPY OF THE MEMORANDUM OF DEPOSIT OF TITLE DOCUMENTS DATED 24.11.2016 SENT BY THE 4TH RESPONDENT

Exhibit P3 COPY OF THE SALE NOTIFICATION DATED 02.03.2023