Kerala High Court
Union Bank Of India vs The Sub Registrar on 8 February, 2024
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 8TH DAY OF FEBRUARY 2024 / 19TH MAGHA, 1945
WP(C) NO. 14518 OF 2023
PETITIONER:
UNION BANK OF INDIA
VELLAYAMBALAM BRANCH
BHADRANJALY, K.R. ELANKATH ROAD VELLAYAMBALAM,
SASTHAMANGALAM PO
THIRUVANANTHAPURAM REP. BY ITS DY. BRANCH MANAGER
RATHEESH R,
AGE 39, S/O. RAMAN CHETTIYAR,
PIN - 695010
BY ADVS.
ASP.KURUP
SADCHITH.P.KURUP
C.P.ANIL RAJ
SIVA SURESH
RESPONDENTS:
1 THE SUB REGISTRAR
SUB REGISTRAR OFFICE, PATTOM
THIRUVANANTHAPURAM, PIN - 695004
2 THE TAHSILDAR
TALUK OFFICE
THIRUVANANTHAPURAM, PIN - 695023
3 THE VILLAGE OFFICER
KUDAPPANAKKUNNU VILLAGE OFFICE
THIRUVANANTHAPURAM-, PIN - 695005
4 RENJITH KURIAN
MERIDIAN HEIGHTS KOWDIAR,
THIRUVANANTHAPURAM, PIN - 695003
5 K. GOPALAKRISHNAN IAS
S/O. M.P KALIANNAN,
5/231 MARIAMMAN KOIL THOTTAM
MUSAL NAICKAN PALAYAM
WP(C) NO.14518 & 37310 OF 2023
2
PARAMATHI VELUR T.K
NAMAKKAL DISTRICT
TAMIL NADU, PIN - 637203
BY ADVS.
SREEJITH V.S-GOVERNMENT PLEADER
BEJOY JOSEPH P.J. .
JANI A
M.RAMESH CHANDER (SR.)(R-284)
GOVIND G. NAIR(K/001627/2018)
BONNY BENNY(K/000234/2017)
BALU TOM(K/498/2014)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 08.02.2024, ALONG WITH WP(C).37310/2023, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO.14518 & 37310 OF 2023
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 8TH DAY OF FEBRUARY 2024 / 19TH MAGHA, 1945
WP(C) NO. 37310 OF 2023
PETITIONER:
RENJITH KURIAN
AGED 40 YEARS
MERIDIAN HEIGHTS,
UPPER MERIDIAN ROAD, KURAVANKONAM,
KOWDIAR. P.O., THIRUVANANTHAPURAM,
PIN - 695003
BY ADV BEJOY JOSEPH P.J.
RESPONDENTS:
1 UNION BANK OF INDIA
VELLAYAMBALAM BRANCH, BHADRANJALY, K.R.
ELANKATH ROAD, VELLAYAMBALAM,
SASTHAMANGALAM P.O., THIRUVANANTHAPURAM
REP. BY ITS DY. BRANCH MANAGER
RATHEESH. R, AGED 39,
S/O. RAMAN CHETTIYAR., PIN - 695010
2 THE SUB REGISTRAR
OFFICE OF THE SUB REGISTRAR OFFICE,
PATTOM, THIRUVANANTHAPURAM,
PIN - 695004
3 THE TAHSILDAR
OFFICE OF THE TAHSILDAR, TALUK OFFICE,
THIRUVANANTHAPURAM, PIN - 695023
4 THE VILLAGE OFFICER
OFFICE OF THE VILLAGE OFFICER,
WP(C) NO.14518 & 37310 OF 2023
4
KUDAPPANAKKUNNU VILLAGE OFFICE,
THIRUVANANTHAPURAM, PIN - 695005
5 K. GOPALAKRISHNAN IAS
S/O. M.P. KALIANNAN, 5/231 MARIAMMAN KOIL
THOTTAM, MUSAL NAICKAN PALAYAM,
PARAMATHI VELUR T.K., NAMAKKAL DISTRICT,
TAMIL NADU, PIN - 637203
6 RESERVE BANK OF INDIA
CENTRAL OFFICE, MUMBAI REPRESENTED BY THE CHIEF
GENERAL MANAGER,
RESERVE BANK OF INDIA,
DEPARTMENT OF REGULATION, CENTRAL OFFICE,
WORLD TRADE CENTRE, CUFFE PARADE,
MUMBAI, PIN - 400005
7 RAIJU K. THOMAS
MRA 95, RC 21C/1235, THONDALIL EDENS,
MANNADI KANE, KUDAPPANAKUNNU,
PEROORKADA PO, THIRUVANANTHAPURAM,
PIN - 695005
8 SILVIA RAIJU
MRA 95, RC 21C/1235, THONDALIL EDENS,
MANNADI KANE, KUDAPPANAKUNNU,
PEROORKADA PO, THIRUVANANTHAPURAM,
PIN - 695005
9 ASM BUSINESS SOLUTIONS INDIA PVT. LTD.
REPRESENTED BY ITS DIRECTOR RAIJU K. THOMAS,
MRA 95, RC 21C/1235,
THONDALIL EDENS, MANNADI KANE,
KUDAPPANAKUNNU, PEROORKADA PO,
THIRUVANANTHAPURAM, PIN - 695005
BY ADV JANI A
GP - SREEJITH. V. S
A.S.P.KURUP-SC-R1
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 08.02.2024, ALONG WITH WP(C).14518/2023, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO.14518 & 37310 OF 2023
5
JUDGMENT
Dated this the 8th day of February, 2024
W.P.(C) No.14518 of 2023 has been filed by the Union
Bank of India seeking to declare that attachment effected over
the secured asset by the 4 th respondent will stand effaced in
view of the sale held under the Securitisation and
Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002. The petitioner further seeks to
direct the 1st respondent to efface the attachment effected
over the property covered by Exts.P2 and P3, as reflected in
Ext.P4 Encumbrance Certificate and register the Sale
Certificate issued by the petitioner-Bank to the 5 th respondent
on presentation of the same on payment of requisite stamp
WP(C) NO.14518 & 37310 OF 2023
duty.
2. W.P.(C) No.37310 of 2023 has been filed by the 4 th
respondent in W.P.(C) No.14518 of 2023. The 4 th respondent
is the person, in whose favour the Civil Court has passed the
attachment order. In W.P.(C) No.37310 of 2023, the 4 th
respondent seeks to set aside the sale of the property, which
is the secured asset of the Bank in favour of the 5 th
respondent pursuant to Ext.P6 sale notice and to cancel the
sale certificate issued to the 5th respondent by the 1st
respondent.
3. I have heard the learned counsel for the petitioners,
the learned Standing Counsel Counsel for the 1st respondent
in W.P.(C) No.37310 of 2023, the learned Government
Pleader representing respondents 1 to 3 in W.P.(C)
No.14518 of 2023 and respondents 2 to 4 in W.P.(C)
No.37310 of 2023, the learned counsel appearing for the 5 th
respondent in W.P.(C) No.37310 of 2023 and W.P.(C)
WP(C) NO.14518 & 37310 OF 2023
No.14518 of 2023 and the learned counsel appearing for
respondents 7 to 9 in W.P.(C) No.37310 of 2023.
4. The pleadings and arguments in the writ petitions
would show that the secured assets were mortgaged to the
Union Bank of India, who is the petitioner in W.P.(C)
No.14518 of 2023. The mortgage was created on 28.10.2014.
5. Subsequently, at the instance of the 4 th respondent
in W.P.(C) No.14518 of 2023 (who is the petitioner in W.P.(C)
No.37310 of 2023) the District Court, Trivandrum passed an
attachment order over the secured asset in I.A.No.1 of 2022 in
O.S.No.2 of 2022 of the Additional Sub Court,
Thiruvananthapuram.
6. The Bank approached the Sub Registrar Officer
and the Village Officer for effacing the said attachment order
from the Revenue records based on the judgment of this
Court in Madhan v. Sub Registrar [2014 (1) KLT 406].
WP(C) NO.14518 & 37310 OF 2023
7. In the judgment in Madhan (supra), this Court held
that attachment effected subsequent to the creation of
equitable mortgage will be effaced after the property is
purchased by another person in sale conducted by the
Recovery Officer of the Debts Recovery Tribunal. Such
attachment will not affect the title and ownership of the
purchaser over the subject property.
8. Counsel for the 4th respondent in W.P.(C)
No.14518 of 2023 (who is the petitioner in W.P.(C) No.37310
of 2023) argued that even in Ext.P5 terms and conditions of
sale of immovable secured assets, the Bank at serial No.4,
had made it clear that the bidders are required to make
thereon enquiry and verify encumbrance from Registrar
Office. In Clause 15 thereof, it was specifically stated that the
Authorised Officer may, where the property sold is subject to
any encumbrances, if he thinks fit, allow the purchaser to
deposit with him the money required to discharge the
WP(C) NO.14518 & 37310 OF 2023
encumbrance and any interest due thereon together with such
additional amount that may be sufficient to meet the
contingencies or further costs, expenses and interest as may
be determined by him. On such deposit of money for
discharge of encumbrance, the Authorised Officer may issue
or cause the purchaser to issue the notices to the persons
interested in or entitled to the money deposited with him and
take steps to make the payment accordingly. In view of the
categorical provisions published in Ext.P5, the 5 th respondent
ought to have verified with the Registry regarding the
encumbrance on the property occurred in view of the
attachment obtained by the 4th respondent. Failure of the 5th
respondent will make the property purchased by him subject
to the attachment passed by the Civil Court.
9. Counsel for the 4th respondent in W.P.(C)
No.14518 of 2023 further submitted that whether any
attachment orders passed by the competent Civil Court
WP(C) NO.14518 & 37310 OF 2023
should be effaced from Revenue records or encumbrance
records is a matter affecting civil rights. The officials including
Sub Registrars cannot be given power to efface such court
attachment. The Bank or Secured Creditors or the purchasers
of the property, will have to approach the competent Civil
Court to get the effacement involved.
10. I have considered the arguments advanced by the
4th respondent. A Division Bench of this Court has considered
the issue in the judgment in Ali Ashraf v. The Sub Registrar
[2015 (3) KLT Online 1117]. The Division Bench, after
considering the law laid down by this Court in the case of
Madhan (supra), has declared that attachments effected by
the Court in such circumstances are invalid. Consequently,
the Division Bench gave necessary direction to the Sub
Registrar and the Village Officer to efface the attachments
effected after the mortgage. In the present case, it is not
disputed that the attachment ordered by the Court was
WP(C) NO.14518 & 37310 OF 2023
subsequent to the mortgage.
11. In the circumstances, I do not find any reason not
to direct the Sub Registrar and the Village Officer to efface the
attachment from the records.
12. W.P.(C) No.14518 of 2023 is therefore disposed of
directing the 1st respondent-Sub Registrar to efface the
attachment effected over property covered by Exts.P2 and P3
as reflected in Ext.P4 Encumbrance Certificate and register
the Sale Certificate issued by the petitioner-Bank to the 5 th
respondent on presentation of the same on payment of
requisite stamp duty.
In view of the above findings, the relief prayed for in
W.P.(C) No.37310 of 2023 cannot be granted. The writ
petition is however, disposed of reserving the rights of the
petitioner in the suit pending before the Court.
Sd/-
N.NAGARESH
JUDGE
hmh
WP(C) NO.14518 & 37310 OF 2023
APPENDIX OF WP(C) 14518/2023
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE DEMAND PROMISSORY
NOTE DATED 28.10.2014 FOR RS. 70 LAKHS
EXECUTED BY THE BORROWER
Exhibit P2 A TRUE COPY OF THE SALE DEED NO
1236/2011 OF PATTOM SUB REGISTRY
Exhibit P3 A TRUE COPY OF THE MEMORANDUM OF
DEPOSIT OF TITLE DEED DATED 28.10.2014
EVIDENCING MORTGAGE OF THE PROPERTY
Exhibit P4 TRUE COPY OF THE ENCUMBRANCE
CERTIFICATE DATED 31.3.2023 ISSUED FROM
PATTOM SUB REGISTRY
Exhibit P5 A TRUE COPY OF THE SALE NOTICE DATED
6/3/2023 ISSUED BY THE PETITITONER
Exhibit P6 A TRUE COPY OF LETTER DATED 17/4/2023
ISSUED BY THE 5TH RESPONDENT TO THE
PETITIONER
RESPONDENT EXHIBITS
R4(A) PHOTOSTAT COPY OF THE PLAINT IN OS
2/2022 FILED BEFORE THE HON'BLE
VACATION COURT (DISTRICT COURT),
THIRUVANANTHAPURAM DATED 24.12.2021
R4(B) PHOTOSTAT COPY OF THE ATTACHMENT
PETITION ALONG WITH THE AFFIDAVIT IN IA
1/2021 IN OS 2/2022 OF THE HON'BLE
VACATION COURT (DISTRICT COURT),
THIRUVANANTHAPURAM DATED 24.12.2021
R4(C) PHOTOSTAT COPY OF THE ORDER IN IA
1/2022 IN OS 2/2022 DATED 04.12.2021 OF
THE HON'BLE VACATION COURT (DISTRICT
COURT), THIRUVANANTHAPURAM
R4(D) PHOTOSTAT COPY OF THE OBJECTION FILED
BY THE DEFENDANTS IN IA NO.1/2022 IN OS
WP(C) NO.14518 & 37310 OF 2023
R4(E) PHOTOSTAT COPY OF THE WRITTEN STATEMENT
FILED BY THE DEFENDANTS IN OS NO.
WP(C) NO.14518 & 37310 OF 2023
APPENDIX OF WP(C) 37310/2023
PETITIONER EXHIBITS
Exhibit P1 PHOTOSTAT COPY OF THE PLAINT IN OS
2/2022 FILED BEFORE THE HON'BLE
VACATION COURT (DISTRICT COURT),
THIRUVANANTHAPURAM DATED 24.12.2021
Exhibit P2 PHOTOSTAT COPY OF THE ATTACHMENT
PETITION ALONG WITH THE AFFIDAVIT IN IA
1/2021 IN OS 2/2022 OF THE HON'BLE
VACATION COURT (DISTRICT COURT),
THIRUVANANTHAPURAM DATED 24.12.2021
Exhibit P3 PHOTOSTAT COPY OF THE ORDER OF THE
HON'BLE VACATION COURT (DISTRICT
COURT), THIRUVANANTHAPURAM DATED
04.12.2021
Exhibit P4 PHOTOSTAT COPY OF THE OBJECTION FILED
Exhibit P5 PHOTOSTAT COPY OF THE WRITTEN STATEMENT
FILED BY RESPONDENTS 7 TO 9 IN OS NO.
Exhibit P6 THE PHOTOSTAT COPY OF THE SALE NOTICE
DATED 06.03.2023 ISSUED BY THE 1ST
RESPONDENT BANK TO RESPONDENTS 7 TO 9,
AS PRODUCED BY THE 1ST RESPONDENT IN
