Madras High Court
Tamil Nadu Mercantile Bank ... vs The Sub Registrar Joint I on 30 April, 2021
W.P.(MD).No.8968 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 30.04.2021
CORAM :
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
W.P.(MD).No.8968 of 2021
and
W.M.P.(MD)No.6760 of 2021
Tamil Nadu Mercantile Bank Limited,
Nagercoil Branch,
229-A, Charles Miller Street,
College Road,
Nagercoil-629 001,
Kanyakumari District,
represented by the Chief Manager/Authorised Officer,
Mr.A.Raja ...Petitioner
Vs.
1.The Sub Registrar Joint I,
Nagercoil,
Kanyakumari District.
2.P.T.Jeyaram
3.J.Mangalam
4.S.Nixon
5.R.Kumar ... Respondents
Prayer: This Petition filed under Article 226 of the Constitution of India, to
issue a Writ of Mandamus, to direct the first respondent, the Sub-Registrar
Joint I, Nagercoil, to register the Sale Certificate, dated 24.02.2021, issued in
respect of the schedule mentioned property by the petitioner Bank in favour
of the fifth respondent and for a consequential direction to efface/delete the
encumbrance attachment entry Doc.No.11/2011, registered on 11.03.2011 on
1/8
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W.P.(MD).No.8968 of 2021
the file of the first respondent, the Sub Registrar Joint I, Nagercoil, as against
the schedule mentioned property.
For Petitioner : Mr.N.Dilip Kumar
For R1 : Mr.K.Sathiyasingh
Additional Government Pleader
ORDER
This writ petition has been filed for issuance of a writ of
mandamus, directing the first respondent to register the Sale Certificate, dated
24.02.2021 and to release the document in favour of the fifth respondent.
2. The case of the petitioner is that loan facilities were extended
to the second respondent and the third respondent stood as guarantor 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
13.04.2007, at the time of availing the loan. That apart, the third respondent
had also executed a registered mortgage deed, on 17.04.2007, in favour of the
petitioner Bank and the document was registered before the first respondent
as document No.1255/2007.
3. The respondent Nos.2 and 3 after having availed the loan,
committed default and their account was classified as a Non – Performing
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W.P.(MD).No.8968 of 2021
Asset with effect from 25.01.2008. Thereafter, steps were taken by the
petitioner Bank under the SARFAESI Act and ultimately the subject property
was brought for auction sale.
4. The fifth respondent was the successful bidder in the public
auction that was held on 25.01.2021. Upon the entire sale consideration
being paid, the petitioner Bank issued a Sale Certificate in favour of the fifth
respondent on 24.02.2021.
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 fourth respondent in O.S.No.125 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.
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W.P.(MD).No.8968 of 2021
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 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].
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W.P.(MD).No.8968 of 2021
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 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
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W.P.(MD).No.8968 of 2021
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 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 fourth respondent in a suit can never be put
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W.P.(MD).No.8968 of 2021
against the petitioner Bank and the first respondent will have to 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 24.02.2021 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 fifth 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, the connected
miscellaneous petition is closed.
30.04.2021
Internet : Yes/No
Index : Yes/No
tsg
To
The Sub Registrar Joint I,
Nagercoil, Kanyakumari District.
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.8968 of 2021
N.ANAND VENKATESH, J.
tsg
Order made in
W.P.(MD).No.8968 of 2021
Dated:
30.04.2021
https://www.mhc.tn.gov.in/judis/
