Madras High Court
R.Ramesh vs The Sub-Registrar on 7 January, 2021
W.P.(MD)No.8407 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.01.2021
CORAM
THE HONOURABLE MR.JUSTICE M.M.SUNDRESH
AND
THE HONOURABLE MRS.JUSTICE S.ANANTHI
W.P.(MD)No.8407 of 2020
R.Ramesh ... Petitioner
Vs.
1.The Sub-Registrar,
Budalur SRO,
Thanjavur District.
2.The Manager,
Indian Overseas Bank,
Abishekapuram Branch,
Main Road,
Mannarpuram,
Trichy – 620 020. ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
seeking for issuance of a Writ of Mandamus, directing the first respondent to
register the Sale Certificate, dated 09.03.2020, executed by the second
respondent in favour of the petitioner, which is assigned a number as
P/Budalur/2/2020, vide Receipt No.567/2020, dated 11.03.2020 and to return
the same to the petitioner after registration.
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W.P.(MD)No.8407 of 2020
For Petitioner : Mr.E.Om Prakash
Senior Counsel
for Mr.A.Arivazhagan
For R1 : Mr.K.Sathiya Singh
Additional Government Pleader
For R2 : Mr.D.Dhanapal
*****
ORDER
(Order of the Court was made by M.M.SUNDRESH, J.)
The petitioner is the successful bidder in the E-Auction conducted on
09.12.2019 by respondent No.2. Upon his payment of entire sale consideration,
a Sale Certificate was issued on 09.03.2020. The petitioner presented the said
Sale Certificate for registration before respondent No.1 on 11.03.2020. Upon
taking the same on file, respondent No.1 kept it as pending document without
registering it on the premise that an attachment before judgment has been
registered pursuant to the order dated 03.09.2015, passed by the learned III
Additional District Judge, Trichy, in O.S.No.81 of 2014 and I.A.No.400 of
2014.
2.The learned Senior Counsel appearing for the petitioner submitted
that in law, respondent No.1 cannot decline registration of the Sale Certificate.
The mortgage of the property with respondent No.2 was on 24.10.2008. It was
also registered. Therefore, it is the encumbrance registered subsequently by
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W.P.(MD)No.8407 of 2020
way of an order of the Court, which cannot be sustained in the eye of law. The
petitioner does not seek to set aside the attachment before the encumbrance
made, but merely, to register the Sale Certificate. Under those circumstances,
there is no need to implicate either the plaintiff or the borrower in the suit.
3.The learned counsel appearing for respondent No.2 also concurred
with the submissions made by the learned Senior Counsel appearing for the
petitioner.
4.The learned Additional Government Pleader appearing for
respondent No.1 submitted that the remedy open to the petitioner is to approach
the Civil Court and set aside the order of attachment passed. Being the
Statutory Authority, respondent No.1 duly complied with the order of the Court.
5.The facts as narrated are not in dispute. The property was
mortgaged on 24.10.2008 by the borrower. It was accordingly, registered.
Therefore, respondent No.2 / Bank [Mortgagee] now, for non-payment of dues,
brought up the property for sale and thereafter, sold the same in favour of the
petitioner. The borrower can never challenge the sale. The said sale has
become final. The petitioner has paid the entire sale consideration. It is
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W.P.(MD)No.8407 of 2020
subsequently alone, i.e., in the year 2015, the learned III Additional District
Judge, Trichy, has passed the order of attachment. Furthermore, the petitioner
does not seek to set aside the encumbrance made by way of attachment before
judgment and seeks only registration of Sale Certificate.
6.The learned Senior Counsel appearing for the petitioner has placed
reliance upon the order passed by a Division Bench of this Court in Central
Bank of India Vs. The Joint Sub-Registrar and others [W.P.(MD)No.10724
of 2018, dated 06.12.2018] reported in MANU/TN/7117/2018, wherein at
Paragraphs 9 and 10, it has been held as follows:-
''9. In the light of the judgment of the Full Bench of this Court
reported in 2016 (6) CTC 769 (cited supra) and on a conjoint reading of
Section 26-E of the SARFAESI Act and Section 31-B of the Recovery
of Debts Due to Banks and Financial Institutions Act, 1993, there
cannot be any doubt that the rights of a secured creditor to realise the
debts due and payable by sale of assets over which security interest is
created, would have priority over all debts and Government dues
including revenues, taxes, cesses and rates due to the Central
Government, State Government or Local Authority, inasmuch as
Section 31-B of the Recovery of Debts Due to Banks and Financial
Institutions Act, 1993, was introduced with a ''notwithstanding'' clause
and it has also come into force from 01.09.2016.
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W.P.(MD)No.8407 of 2020
10. In such view of the matter, we are of the opinion that the
order of attachment before judgment cannot be a bar for the first
respondent to register the sale certificate in respect of the property in
question and hence, there cannot be any impediment for the first
respondent to register the sale certificate dated 14.03.2018 issued in
favour of the tenth respondent.''
7.In such view of the matter, we do not find any need to implead
either the borrower or the plaintiff in the suit. The borrower does not have any
right in a case of divested property. He has also not questioned the attachment
before judgment. Insofar as the plaintiff is concerned, nothing has been
discussed in the proceedings about the order obtained for attachment before
judgment and he cannot have any grievance over the registration of the Sale
Certificate by the petitioner. We are not deciding the inter se rights of the
parties, though we have quoted the order of the Division Bench of this Court.
8.In such view of the matter, respondent No.1 is directed to register
the Sale Certificate, dated 09.03.2020, executed by respondent No.2 and
presented by the petitioner, within a period of four weeks from the date of
receipt of a copy of this order, after duly complying with the other requisite
formalities.
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W.P.(MD)No.8407 of 2020
9.This Writ Petition is disposed of with the above direction. No costs.
Index :Yes/No [M.M.S.J.,] [S.A.I.J.,]
Internet :Yes 07.01.2021
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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.
To
1.The Sub-Registrar,
Budalur SRO,
Thanjavur District.
2.The Manager,
Indian Overseas Bank,
Abishekapuram Branch,
Main Road,
Mannarpuram,
Trichy – 620 020.
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W.P.(MD)No.8407 of 2020
M.M.SUNDRESH, J.
AND
S.ANANTHI, J.
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W.P.(MD)No.8407 of 2020
07.01.2021
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