Madras High Court
Tamilnad Mercantile Bank Limited vs The Sub-Registrar on 29 April, 2021
W.P.(MD).No.8784 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29.04.2021
CORAM:
THE HON'BLE MR.JUSTICE N.ANAND VENKATESH
W.P.(MD).No.8784 of 2021
and W.M.P.(MD).Nos.6599 & 6600 of 2021
Tamilnad Mercantile Bank Limited,
Palliyadi Branch,
25/6D, Vembanavilai,
Kanniyakumari District,
represented by the Authorised Officer,
Mr.G.Uthayakumar ... Petitioner
Vs.
1.The Sub-Registrar,
Palliyadi,
Kanniyakumari District.
2.M/s.Abarna Traders,
Rep. by its Proprietor Mr.T.Kumar,
5/148, Unnavilai,
Kavialoor, Kattathurai Post,
Kanniyakumari District.
3.Mr.T.Kumar
4.Mrs.Ajitha
5.Mrs.R.Gomathy
6.Mr.R.Selvaraj
7.Mr.Rasel Raj
8.V.Mohandhas ... Respondents
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1/10
W.P.(MD).No.8784 of 2021
Prayer: Writ petition is filed under Article 226 of the Constitution of
India, for the issuance of Writ of Mandamus, directing the 1st respondent,
Sub-Registrar, Palliyadi, Kanniyakumari District to register the Sale
Certificate, dated 15.02.2021, issued in respect of the schedule
mentioned property by the petitioner Bank in favour of the 7th respondent
and for a consequential direction to efface/delete the encumbrance
attachment entry, dated 29.04.2010 in Doc.No.8/2010 on the file of the 1st
respondent, Sub Registrar, Palliyadi, Kanniyakumari District as against
the schedule mentioned property.
For Petitioner : Mr.N.Dilip Kumar
For Respondent : Mr.K.Sathiya Singh for R1
Additional Government Pleader
ORDER
This writ petition has been filed for the issuance of writ of
mandamus, directing the first respondent to register the Sale Certificate,
dated 15.02.2021 and to release the document in favour of the 7 th
respondent.
2.The case of the petitioner is that loan facilities were extended to
the second and third respondents and respondents 4 to 6 stood as
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W.P.(MD).No.8784 of 2021
guarantors for the said loan. The further case of the petitioner is that the
third respondent deposited the original title deeds with respect of the
subject property on 29.03.2010, at the time of availing the loan. That
apart the third respondent had also executed a registered mortgage deed,
on 04.06.2010, in favour of the petitioner Bank and the document was
registered before the first respondent as document No.1648/10.
3.The respondents 2 and 3 after having availed the loan, committed
default and their account was classified as a Non – Performing Asset with
effect from 31.12.2014. Thereafter, steps were taken by the petitioner
Bank under the SARFAESI Act and ultimately the subject property was
brought for auction sale.
4.The 7th respondent was the successful bidder in the public
auction that was held on 07.01.2021. Upon the entire sale consideration
being paid, the petitioner Bank issued a Sale Certificate in favour of the
7th respondent on 15.02.2021. The further case of the petitioner Bank is
that the physical possession was also taken, pursuant to the orders passed
under Section 14(1) of the SARFAESI Act.
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W.P.(MD).No.8784 of 2021
5.The grievance of the petitioner is that when the Sale Certificate
was presented for registration before the first respondent, the same was
refused to be registered on the ground that there was an entry regarding
an order of interim attachment that is said to have been passed in a Civil
suit instituted by the 8th respondent in O.S.No.43 of 2010. Aggrieved by
the same, the present Writ petition has been filed before this Court,
seeking for appropriate directions.
6.Heard Mr.N.Dilip Kumar, learned counsel for the petitioner and
Mr.K.Sathiya Singh, learned Additional Government Pleader for the
respondent No.1.
7.The issue that is involved in the present writ petition is squarely
covered by various judgments passed by this Court. One such judgment
was passed in W.P.(MD).No.17254 of 2020, dated 24.03.2021. The
relevant portions in the judgment are extracted hereunder:
“13.The petitioner has also cited the latest
judgment of this Court in the case of Tamil Nadu
Merchantile Bank Limited Vs the Joint-I Sub Registrar
Office, Madurai and others [W.P(MD)Nos.6976 and 1101
of 2021, dated 29.01.2021] and referred to paragraph
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W.P.(MD).No.8784 of 2021
Nos.8,9 and 13, which read as follows:
“8. Considering the similar issue, a Division Bench of
this Court, in which one of us [Hon'ble Mr.Justice
M.M.SUNDRESH] is a party, in a batch of writ
petitions in W.P.(MD)Nos.8546 of 2020, etc., batch, by
order dated 09.09.2020, was pleased to hold that the
proceedings under the SARFAESI Act would have
primacy, especially in a case where the mortgage in
favour of the Bank was earlier. The aforesaid decision
was rendered after taking note of the judgment
rendered by the Division Bench of the Gujarat High
Court in Bank of India v. State of Gujarat
[Manu/GJ/0130/2020] and a Full Bench judgment of
this Court in Assistant Commissioner (CT), Annasalai
III Assessment Circle v. Indian Overseas Bank [(2016)
6 CTC 769].
9. Reliance has been made on the order passed by the
learned Single Judge in Govindhji Jewat & Co., v.
Rukmani Mills Ltd., reported in 2020 (6) CTC 313,
wherein, the aforesaid principle has been reiterated. In
the said case, the learned Single Judge has held that
the mortgage being earlier, it creates a right in favour
of the mortgagee and therefore, even the order of
attachment passed by the Civil Court will have to
yield. In the said judgment also, the learned Single
Judge made reliance upon the judgment of the Division
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W.P.(MD).No.8784 of 2021
Bench in S.Senthamarai Kannan v. Chief Manager,
Canara Bank, Palani Branch, Dindigul District [CDJ
2020 MHC 2555].
13. Therefore, looking from any perspective, we are of
the view that the petitioner Bank cannot be denied the
relief as sought for. In such view of the matter, both the
writ petitions stand allowed. The first respondent in
both the writ petitions are directed to register the sale
certificates issued by the petitioner Bank in favour of
the respondents 7 & 8 in W.P.(MD)No.6976 of 2020
and the 7th respondent in W.P. (MD)No.1101 of 2021.
Consequently, the encumbrance / attachment entry
made on the file of the first respondent with respect to
the properties, which are subject matter of the two
mortgage deeds and the subject matter of these writ
petitions, are directed to be deleted by the first
respondent.”
14.The learned Counsel would thus submit that the
issue has been settled in favour of the petitioner bank,
giving no room for any adjudication in this writ petition,
anymore.
15.Mr.K.Sathiya Singh, learned Additional
Government Pleader appearing for the 1st respondent
would submit that as far as the legal position is
concerned he has nothing to add, as the Courts have
consistently been holding that the secured creditor will
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W.P.(MD).No.8784 of 2021
have precedence over the other attachments. He would
therefore, submit that any direction issued by this Court,
the 1st respondent would comply with the same.
...................
19.In view of the catena of decisions and a few of
which, referred to for the sake of brevity, this Court being
bound by the decisions has to mandatorily follow the
legal precedents on the subject matter. Moreover, there
appears to be no dispute in regard to the factual
narrative as mentioned above and therefore, this Court
has to allow this writ petition without any hesitation.”
8.It is now well settled that the Bank gets priority over all the other
charges and that apart any order of attachment passed by the Civil Court
will bind the parties therein with respect to the transaction, which is the
subject matter in the said suit. Such an order of attachment will never
bind the Bank to which the mortgage has already been created by the
debtor.
9.In the considered view of this Court, the so called order of
attachment obtained by the 8th respondent in a suit can never be put
against the petitioner Bank and the first respondent will have to
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W.P.(MD).No.8784 of 2021
necessarily register the Sale Certificate.
10.In the result, this writ petition is disposed of with a direction to
the first respondent to receive the Sale Certificate, dated 15.02.2021 and
register the same, if it is otherwise in order and the necessary stamp duty
and registration charges are paid. The document shall be released after
registration in favour of the 7th respondent. The first respondent is also
further directed to permit the petitioner Bank to register this order to
ensure that the earlier attachment order that is reflected in the
encumbrance certificate gets reversed. No costs. Consequently,
connected miscellaneous petitions are closed.
29.04.2021
Index :Yes/No
Internet : Yes/No
TM
NOTE: In view of the present lock down owing
to COVID-19 pandemic, a web copy of
the order may be utilized for official
purposes, but, ensuring that the copy of
the order that is presented is the
correct copy, shall be the responsibility
of the advocate/litigant concerned.
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W.P.(MD).No.8784 of 2021
To
1.The Sub-Registrar,
Palliyadi,
Kanniyakumari District.
https://www.mhc.tn.gov.in/judis/
W.P.(MD).No.8784 of 2021
N.ANAND VENKATESH.J.,
TM
W.P.(MD).No.8784 of 2021
29.04.2021
https://www.mhc.tn.gov.in/judis/
