M/S. Csb Bank Ltd vs Mohankumar M
2023 Latest Caselaw 3887 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MR. JUSTICE GOPINATH P.
     THURSDAY, THE 30TH DAY OF MARCH 2023 / 9TH CHAITHRA, 1945
                         WP(C) NO. 4432 OF 2023
PETITIONER/S:

          M/S. CSB BANK LTD
          FORMERLY KNOWN AS CATHOLIC SYRIAN BANK LTD., REGISTERED
          OFFICE AT THRISSUR, WITH BRANCHES AT VARIOUS PLACES
          INCLUDING AT CHITTUR, CHITTUR BRANCH, PALAKKAD, REP. BY
          ITS PRINCIPAL OFFICER AND CHIEF MANAGER, ZONAL OFFICE
          KOZHIKODE, PIN - 673006
          BY ADV C.A.JOY


RESPONDENTS:

    1     MOHANKUMAR M
          AGED 51 YEARS
          S/O BALAKRISHNAN NAIR, PROPRIETOR, RAJESWARI STORES AND
          RESIDING AT MONUSRI, PATTARPALLAM KALAM, MUTHALAMADA
          P.O., PALAKKAD, PIN - 678507
    2     A.C. BABU
          AGED 46 YEARS
          S/O CHANDRAN, A.C. HOUSE, KATTUPADAM, MUTHALAMADA P.O,
          CHITTUR TALUK, PULAKKAD, PIN - 678507
    3     MOHAMMED SALIM
          S/O KAMARUDEEN,AGED 35 YEARS, THOTTUMOKKU,
          VANDITHAVALAM, PALAKKAD, PIN - 678534
    4     THE SUB REGISTRAR
          SUB REGISTRAR OFFICE, CHITTUR, PALAKKAD DISTRICT,
          PIN - 678101
    5     THE VILLAGE OFFICER
          VANDITHAVALAM VILLAGE OFFICE, VANDITHAVALAM, CHITTUR,
          PALAKKAD, PIN - 678534
          BY ADVS.
          SARATH M S M S
          B.PREMNATH (E)(K/1350/1995)
          SMT PREETHA KK, SR.GOVERNMENT PLEADER


    THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
30.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WPC NO.4432 of 2023

                                               2




                                 JUDGMENT

The petitioner is a banking company. In brought to

sale, an item of property belonged to the first respondent

under the provisions of the Securitisation and Reconstruction

of Financial Assets and Enforcement of Security

Interest Act(hereinafter will be referred as SARFAESI Act for

convenience) and issued Ext.P3 sale certificate dated

20.09.2022. The petitioner is unable to register the sale

certificate in favour of the third respondent (auction

purchaser) on account of the fact that there is an

encumbrance noted in Ext.P4 encumbrance certificate. The

said encumbrance is on account of an attachment obtained

over the property in respect of a claim of the second

respondent against the first respondent (borrower).

2. The learned counsel appearing for the

petitioner would submit that the issue is covered in favour of

the petitioner. It is submitted that the mortgage in this case WPC NO.4432 of 2023

was on 17.3.2015, while the attachment at the instance of the

second respondent was on 23.01.2019. It is submitted that

going by the decisions of the Division Bench of this Court in

Secretary, Keechery Service Co-operative Bank Ltd. v.

Sajitha Nizar alias Sajitha P.M. and others; 2020 (5)

KHC 231 and that of a learned Single Judge of this Court in

Madhan v. Sub.Registrar; 2014 (1) KLT 406, the

subsequent attachment has no effect on the proceedings

initiated by the bank. It is also pointed out that the amount

received by sale of the property is not even sufficient to meet

the claim of the bank.

3. Heard the learned Government Pleader and

the learned counsel appearing for the second respondent

also.

4. The learned counsel appearing for the second

respondent would refer to the counter affidavit filed and

contends that the present writ petition is not maintainable as

there is no demand of refusal justifying the issue of

mandamus. It is submitted that, if the petitioner is aggrieved WPC NO.4432 of 2023

in any manner by the order of attachment, the petitioner has

to approach the competent civil court and cannot seek relief

in proceedings under Article 226 of the Constitution of India.

It is, however, not disputed that the order of attachment was

only on 23.01.2019.

5. Having heard the learned counsel for the

petitioner, the learned Senior Government Pleader appearing

for the official respondents and the learned counsel

appearing for the second respondent, I am of the view that

the petitioner is entitled to succeed. It is settled by the

decisions of this Court referred to above that the attachment

from a civil court has no bearing on the proceedings initiated

by the bank under the provisions of the SARFAESI Act

provided the mortgage is prior to the date of attachment.

This has been the consistent view of this Court in the

decisions referred to above. Therefore, I am of the view that

the petitioner is entitled to the relief sought for.

Accordingly, this writ petition is allowed and the

fourth respondent is directed to register Ext.P3 sale WPC NO.4432 of 2023

certificate without in any manner being affected by the

encumbrance obtained by the second respondent and noted

in Ext.P4 encumbrance certificate. The fourth respondent

shall also efface the details of encumbrance from the record

of the encumbrance maintained by him.

Sd/-

GOPINATH P., JUDGE rkj WPC NO.4432 of 2023

APPENDIX OF WP(C) 4432/2023

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE MEMORANDUM OF DEPOSIT OF TITLE DEED EXECUTED WITH RESPECT TO THE 2ND ITEM OF PROPERTY DATED 17.03.2015 Exhibit P2 TRUE COPY OF THE POSSESSION NOTICE DATED 13.06.2022 WITH RESPECT TO THE 2ND ITEM OF PROPERTY Exhibit P3 TRUE COPY OF THE SALE CERTIFICATE DATED 20.09.2022 WITH RESPECT TO THE 2ND ITEM OF PROPERTY Exhibit P4 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE DATED 29.09.2022