Kerala High Court
Sundaram Home Finance Ltd vs State Of Kerala on 4 April, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
THURSDAY, THE 4TH DAY OF APRIL 2024 / 15TH CHAITHRA, 1946
WP(C) NO. 34372 OF 2023
PETITIONER:
SUNDARAM HOME FINANCE LTD.,AGED 34 YEARS
(FORMERLY KNOWN AS SUNDARAM BNP PARIBAS HOME FINANCE
LTD) SUNDARAM TOWERS, 46, WHITES ROAD, CHENNAI,
PIN-600014, REPRESENTED BY ITS AUTHORISED OFFICER,
MR. ABU ROSHAN ANDREWS, S/O JOSHY CYRIAC,
RESIDING AT CHUMAPPUNKAL HOUSE, KALPETTA NORTH,
WAYANAD DISTRICT, PIN - 673121
BY ADVS.
VARGHESE C.KURIAKOSE
KURUVILLA MATHEW
AMRITHA.J
VIPIN C. VARGHESE
RESPONDENTS:
1 STATE OF KERALA
REP. BY SECRETARY, DEPT. OF REVENUE,
SECRETARIAT, TRIVANDRUM-695001, PIN - 682031
2 THE SUB REGISTRAR
SUB REGISTRY OFFICE, PERINTHALMANNA,
MALAPPURAM DISTRICT, PIN - 679322
3 THE VILLAGE OFFICER
PATHAIKKARA VILLAGE OFFICE,
MALAPPURAM DISTRICT-, PIN - 679322
4 SHANAVAS C.M., AGED 45 YEARS
S/O UMMER HAJI, CHOLAMUKHATHU HOUSE,
THAZHEKODE WEST P.O. PERINTHALMANNA,
THAZHEKODE MALAPPURAM, PIN - 679352
5 MRS FATHMATH SUHARA M
W/O SHANAVAS C.M., CHOLAMUKHATHU HOUSE,
THAZHEKODE WEST P.O. PERINTHALMANNA,
WP(C) No.34372 of 2023 2
THAZHEKODE MALAPPURAM-, PIN - 679352
6 MOHAMMED ASHARAF, AGED 43 YEARS
S/O RAYINKUTTY HAJI, CHETTIYAMPARAMBIL HOUSE,
CHERIYAMUNDAM AMSOM, THALAKKADATHUR DESOM,
REP. BY POWER OF ATTORNEY HOLDER NAZARATHZEEN,
AGED 45, S/O MUHAMMEDKUTTY, CHETTIYAMPARAMBIL
HOUSE, CHERIYAMUNDAM AMSOM, THALAKKADATHUR DESOM,
TIRUR TALUK MALAPPURAM DISTRICT, PIN - 676106
7 MUHAMMED FAISAL BABU, AGED 36 YEARS
S/O CHOLAMUKHATH SAYED, ELAMKULAM AMSOM,
KIZHUNGATHOLE PERINTHALMANNA TALUK,
MALAPPURAM, PIN - 679340
BY ADVS.
M.U.VIJAYALAKSHMI
K.RAKESH
K.JAJU BABU (SR.)(K/116/1981)
BRIJESH MOHAN(K/1851/1999)
OTHER PRESENT:
GP - AJITH VISWANATHAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
04.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) No.34372 of 2023 3
VIJU ABRAHAM, J.
.................................................................
W.P (C) No.34372 of 2023
.................................................................
Dated this the 4th day of April, 2024
JUDGMENT
Petitioner has approached this Court seeking a direction to the 2 nd
respondent to forthwith facilitate registration of the sale certificate in
relation to the properties covered by Exts.P1 to P3 notices and which is
subject matter of Ext.P4 sale certificate without insisting for ROR
certificate.
2. It is averred that the petitioner is a housing finance institution.
Respondents 4 and 5 availed financial facility from the petitioner bank by
executing a mortgage on 19.07.2012. Thereafter there was default in the
payment of amount and SARFAESI proceedings were initiated and later
on the property was put to sale and it was sold in the name of one Ummer
K.T. as evident from Ext.P4 sale certificate. When Ext.P5 encumbrance
certificate was obtained as part of the registration of the sale deed, it was
revealed that there is an endorsement to the effect that attachments are
effected in respect of the said property at the instance of respondents 6
and 7. Learned counsel for the petitioner would submit that a perusal of
Ext.P5 would reveal that the attachment in respect of the 6th respondent is
dated 25.03.2013 whereas the attachment in respect of the 7th
respondent is dated 25.02.2016, which is much after the mortgage was
created in favour of the petitioner on 19.07.2012. The contention of the
petitioner is that the said attachments which are subsequent to the
mortgage cannot affect the sale conducted as per the provisions of the
SARFAESI Act and the respondents are bound to register the sale deed.
3. Heard the learned counsel for the petitioner and the learned
Government Pleader.
4. The learned counsel for the petitioner relied on the decision of this
Court in Madhan S. v. Sub Registrar, Kollam and Others [2014 (1)
KHC 249] and the decision of a 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 contends that the
attachment effected subsequent to the creation of equitable mortgage will
not affect the right of the Bank to sell the mortgaged property and the
attachment has to be effaced from the encumbrance register.
5. In Madhan's case (supra), this Court held in paragraph 9 as
follows:-
"9. The preponderance of judicial opinion leads to the irresistible
conclusion that the sale of the mortgaged property in favour of the
petitioner under Ext. P5 sale certificate under the Act is free of all
encumbrances. The attachments effected subsequent to the mortgage
created in favour of the bank do not affect the title and ownership of the
petitioner over the subject property. Such attachments have no impact
on the sale conducted under the Act and the same ceases to have any
effect or fall to the ground the moment the sale is confirmed in favour of
the petitioner. The declaration so sought by the petitioner is therefore
granted and I further direct the Sub-Registrar and the Village Officer to
efface the attachments effected subsequent to the mortgage from the
relevant records. Otherwise those attachments would remain as a
permanent taboo prejudicially affecting the marketability and title to the
property even though they ceased to have any legal efficacy. The
needful in relation to the property bought by the petitioner shall be done
within a period of two months from the date of receipt of a copy of this
judgment."
6. A Division Bench of this Court in Ali Asharaf M.M. and Another v.
Sub Registrar, Thrissur (Judgment dated 24.7.2015 in W.A. No.612 of
2015) has affirmed the law laid down in Madhan's case. In Keechery
Service Co-operative Bank's case (supra), another Division Bench of
this Court also affirmed the law laid down in Madhan's case (supra) and
held in paragraph 7 as under:-
"7.In the light of the aforesaid declaration of law by this Court the order
of dismissal of the petition filed for lifting the attachment ordered under
Ext R7 (a) viz., Ext R7 (b) by the Federal Bank would pale into
insignificance. We do not find any reason to disagree with the
declaration of law in Madhan's case (supra) which was virtually
affirmed by the Division Bench in Ali Asharaf's case (supra). In the said
circumstances and taking note of the fact that the orders of attachment
of the property in question were after the creation of equitable
mortgage of the same with Federal Bank we do not find any reason to
interfere with the impugned judgment passed by the learned Single
Judge following the dictum in Madhan's case (supra), carrying the
directions to effect mutation of the property as also to efface all
encumbrance over the property effected after 27/06/2014, the date on
which the property in question was mortgaged with Federal Bank".
Thus it is trite law that attachment effected subsequent to the creation of
equitable mortgage does not have any effect on the sale conducted by
the Bank under the SARFAESI Act and has to be effaced from the
encumbrance register. It is evident from the documents produced in the
writ petition that the attachment obtained by the sixth respondent is
subsequent to the creation of equitable mortgage by the borrowers in
favour of the petitioner.
7. This Court in Phoenix ARC Pvt. Ltd. v. Sub Registrar, Feroke
[2023 KHC Online 9452] while considering an identical issue referring to
Section 89(5) of the Registration Act, 1908 has held that since the
attachment subsequent to creation of equitable mortgage has lost its
efficacy and has to be obliterated from the records, the same can be done
by the Sub Registrar by filing the certified copy of the order/judgment of
this Court in Book No.1 maintained by the Sub Registrar.
8. As regards insistence for production of ROR certificate for the
purpose of registration, in the light of the decision in Jacob P.C. v. Village
Officer, Ernakulam and another, 2020 (4) KLT 271, ROR cannot be
insisted for registration of documents.
Accordingly, there will be a direction to the 2 nd respondent to efface
the attachment obtained by respondents 6 and 7 noted in Ext.P5
encumbrance certificate from book no.1 by filing the certified copy of this
judgment in the said book and register Ext.P4 sale certificate if the same
is otherwise in order, without insisting for production of ROR certificate.
The 3rd respondent shall thereafter effect mutation of the said property de
hors the said attachments, if there are no other impediments.
With the abovesaid directions the writ petition is disposed of.
Sd/-
VIJU ABRAHAM
JUDGE
cks
APPENDIX OF WP(C) 34372/2023
PETITIONER EXHIBITS
Exhibit P1 TRUE PHOTOSTAT COPY OF THE 13 (2)
NOTICE DATED 01.11.2013 ISSUED BY THE
PETITIONER
Exhibit P2 TRUE PHOTOSTAT COPY OF THE POSSESSION
NOTICE DATED 04.09.2021 ISSUED BY THE
PETITIONER
Exhibit P3 TRUE PHOTOSTAT COPY OF THE SALE NOTICE
DATED 28.07.2023 ISSUED BY THE
PETITIONER
Exhibit P4 TRUE PHOTOSTAT COPY OF THE SALE
CERTIFICATE DATED 13.09.2023 IN FAVOUR
OF THE PURCHASER UMMER K.
Exhibit P5 TRUE PHOTOSTAT COPY OF THE ENCUMBRANCE
CERTIFICATE DATED 31.07.2023 OF
PERINTHALMANNA SUB REGISTRY
Exhibit P6 TRUE PHOTOSTAT COPY OF THE
REPRESENTATION SUBMITTED BY THE
PETITIONER BEFORE RESPONDENTS NO.2 AND
3 DATED 18.09.2023
Exhibit P7 TRUE PHOTOSTAT COPY OF THE INDIA POST
TRACK RECORD INDICATING DELIVERY ON THE
2ND RESPONDENT DATED 20.09.2022
Exhibit P8 TRUE PHOTOSTAT COPY OF INDIA POST TRACK
RECORD INDICATING DELIVERY ON THE 3 RD
RESPONDENT DATED 21.09.2022
Exhibit P9 TRUE PHOTOSTAT COPY OF THE SPECIFIC
REQUEST DATED 18.09.2022 GIVEN TO 2ND
RESPONDENT FOR ERASING THE ATTACHMENT
Exhibit P10 TRUE PHOTOSTAT COPY OF THE INDIA POST
TRACK RECORD INDICATING DELIVERY ON THE
2ND DATED 20.09.2022
Exhibit P11 TRUE PHOTOSTAT COPY OF THE LOAN
AGREEMENT DATED 25.07.2012 ISSUED BY
THE PETITIONER TO 4 TH AND 5 TH
RESPONDENT
Exhibit P12 TRUE PHOTOSTAT COPY OF THE LETTER
CONFORMING DEPOSIT OF TITLE DEEDS
SUBMITTED BY SHANAVAS AND SMT.FATHMATH
SUHARA.M
RESPONDENT EXHIBITS
Exhibit R6(a) Copy of the IA.No. 790/2013 in
OS.No.85/2013 filed before the
Subordinate Judge's Court, Thirur on
16.03.2013
Exhibit R6(b) Copy of the order sheet in IA.No.
790/2013 in OS.No.85/2013 of the
Subordinate Judge's Court, Thirur
Exhibit R6(c) Copy of the counter affidavit filed in
I.A.No.790/2013 in OS.No.85/2013 before
the Thirur Sub Court
Exhibit R6(d) Copy of the judgment dated 12.07.2023
in OS.NO.85 of 2013 passed the
Subordinate Judge's Court, Thirur
Exhibit R6(e) Copy of the decree dated 12.07.2023 in
OS.NO.85 of 2013 passed the Subordinate
Judge's Court, Thirur
