Kerala High Court
Binoy Joseph vs Authorised Officer on 5 April, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 5TH DAY OF APRIL 2024 / 16TH CHAITHRA, 1946
WP(C) NO. 10321 OF 2024
PETITIONER(S):
BINOY JOSEPH, AGED 45 YEARS
S/O. JOSEPH, PADICKAKUDIYIL INCHATHOTTY,
KUTTAMPUZHA, ERNAKULAM DISTRICT., PIN - 686681
BY ADV. N.K.MOHANLAL
RESPONDENTS:
1 AUTHORISED OFFICER
SOUTH INDIAN BANK 1ST FLOOR, REGENCY SQUARE, K.K
ROAD, COLLECTORATE P.O, KOTTAYAM, PIN - 686002
2 SUB-REGISTRAR
KANJIRAPPALLY, KOTTAYAM DISTRICT., PIN - 686507
3 VILLAGE OFFICER
CHIRAKADAVU, KOTTAYAM DISTRICT, PIN - 686520
4 ADDL.R4. THOMSON JOSE ( IMPLEADED )
AGED 62 YEARS,S/O LATE JOSEPH, VALAYUMKAL HOUSE,
CHENGULAM P.O, ELAMGULAM KARA, ELAMGULAM VILLAGE,
KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT , PIN-686
585 (IS IMPLEADED AS ADDL. RESPONDENT NO.4 IN WPC
10321/2024 AS PER ORDER DATED 19/03/2024 IN IA
1/2024 IN WPC 10321/2024).
BY ADVS.
SUNIL SHANKAR, SC
VIDYA GANGADHARAN(K/000424/2020)
JERIN GEORGE(K/863/2023)
VARGHESE C.KURIAKOSE
ANJANA JOSE(K/203/2024)
KRISHNAPRIYA M.S.(K/510/2024)
AMRITHA.J(K/552/2020)
KURUVILLA MATHEW(K/426/2023)
VIPIN C. VARGHESE(K/000507/2023)
SMT.DEEPA NARAYANAN, SENIOR GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 05.04.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.10321 of 2024
2
P.V.KUNHIKRISHNAN, J.
---------------------------------------------
W.P.(C) No. 10321 of 2024
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Dated this the 05th day of April, 2024.
JUDGMENT
This writ petition is filed seeking the following
reliefs:
"i. Issue a writ of mandamus or any other
appropriate writ or order declare that attachment
reflected in ExhibitP2 encumbrance certificate
subsequent to creation of equitable mortgage in
favour of the 1st respondent is non-est and does not
affect the marketability and title of the property
covered by Exhibit P1 Sale Certificate.
ii. Issue a writ of mandamus or any other
appropriate writ, direction or order directing, the 2 nd
respondent to register the exhibitP1 Sale certificate
dehors the attachment shown in Exhibit P2. And
iii. Pass such other appropriate writ or order
which is deemed just and necessary on the facts and
circumstances of the case."[SIC]
2. Petitioner purchased a property notified for
sale from the 1st respondent and a sale certificate was
issued to the petitioner. The Sub Registrar refused to
register the sale certificate stating that the purchased
property is having attachment obtained by private
parties. According to the petitioner, the attachments
are subsequent to the mortgage created in favour of
the 1st respondent. Hence this Writ petition is filed.
3. Heard the learned counsel appearing for the
petitioner and the learned Government Pleader.
4. Admittedly, all the attachments mentioned in
Ext.P2 are subsequent to the mortgage created with
the 1st respondent by the borrower. Petitioner is the
bonafied purchaser of the property in the auction
conducted by the 1st respondent. Therefore, I am of
the considered opinion that the prayers in this Writ
petition is to be allowed. Moreover, in State Bank of
India v. Sub Registrar, Eravipuram [2023 KHC
OnLine 10385] this Court observed that the
attachment effected subsequent to the creation of
equitable mortgage has to be effaced by the officer
concerned. The relevant portion of the above
judgment is extracted hereunder:
"9. In the light of the dictum laid down by this
Court in the above decisions, Ext. P6 is quashed. The
attachment effected subsequent to the creation of
equitable mortgage has to be effaced by the 2 nd
respondent from the Revenue records and the 1 st
respondent is directed to register Ext.P5 Sale
Certificate as and when presented, notwithstanding the
order of attachment of the Sub Court, Kottarakkara in
O.S. No. 36/2020 dated 27.10.2020, if the document is
otherwise in order."
In the light of the above principle, this Writ
petition is to be allowed. Therefore, this Writ Petition
is disposed of in the following manner:
1. The 2nd respondent is directed to efface
all pending attachments mentioned in
Ext.P2 relating to the secured property
which is subsequent to the mortgage
created with the 1st respondent, as
expeditiously as possible, at any rate,
within a period of two weeks from the
date of receipt of a copy of this
judgment.
2. After effacing the attachments, the 2nd
respondent will register Ext.P1 sale
certificate, if the same is produced and
if it is otherwise in order.
3. The petitioner will produce a certified
copy of this judgment along with a
copy of the Writ Petition with exhibits
before the 2nd respondent for
compliance.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
DM
APPENDIX OF WP(C) 10321/2024
PETITIONER EXHIBITS
EXHIBIT - P1 A TRUE COPY OF SALE CERTIFICATE
DATED 29/02/2024 ISSUED TO
PETITIONER BY 1ST RESPONDENT
EXHIBIT -P2 A TRUE COPY OF ENCUMBRANCE
CERTIFICATE DATED 20/12/23 ISSUED BY
2ND RESPONDENT
EXHIBIT - P3 A TRUE COPY OF DEMAND NOTICE DATED
12/08/2016 ISSUED BY 1ST RESPONDENT
BANK
EXHIBIT -P4 A TRUE COPY OF JUDGMENT DATED
26/02/24 IN WP(C) 17034/2021 OF
HON'BLE HIGH COURT OF KERALA
RESPONDENTS EXHIBITS: NIL
//TRUE COPY//
PA TO JUDGE
