Madras High Court
Canara Bank vs The Sub Registrar on 28 July, 2021
W.P.(MD).No.12833 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 28.07.2021
CORAM :
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
W.P.(MD).No.12833 of 2021
and
W.M.P.(MD).No.9953 of 2021
Canara Bank,
Represented by its Chief Manager,
Manaparai Branch,
9, Ponnagaram Dindigul Road,
Manapparai,
Trichy-621 306. ...Petitioner
Vs.
1.The Sub Registrar,
Manapparai, Trichy District.
2.Udhayakumar
3.Sannasi
4.N.S.Radhakrishnan
5.M.Anburaj
6.Hemalatha
7.Mohammed Meera
8.Ibrahim Kadhar ... Respondents
1/9
https://www.mhc.tn.gov.in/judis/
W.P.(MD).No.12833 of 2021
Prayer: This Petition filed under Article 226 of the Constitution of India, to
issue a Writ of Certiorarifed Mandamus, calling for records relating to the
impugned order of the first respondent passed in proceedings No.140/19,
dated 16.07.2021 and quash the same and consequently direct the first
respondent to register the sale certificate dated 13.07.2021 in favour of the
seventh and eighth respondents within the time fixed by this Court.
For Petitioner : Mr.C.Deepak
For R-1 : Mr.M.Lingadurai
Government Advocate
ORDER
This Writ Petition has been filed challenging the impugned proceeding
of the first respondent, dated 16.07.2021 and for a consequential direction to
the first respondent to register the sale certificate, dated 13.07.2021, executed
in favour of the 7th and 8th respondents.
2.The case of the petitioner bank is that the second respondent had
borrowed housing loan from the bank and he had executed a registered
memorandum of deposit of title deeds, on 14.01.2015, which was registered
as document No.189 of 2015 before the first respondent. The second
respondent did not repay the loan and his account was declared as a non
performing asset and the petitioner initiated proceedings under SARFAESI
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W.P.(MD).No.12833 of 2021
Act. Ultimately, the property that was mortgaged was brought for sale and the
7th and 8th respondents were declared as the successful bidders in the auction.
The petitioner executed a sale certificate in favour of the 7th and 8th
respondents and this certificate was presented for registration before the first
respondent. The first respondent by virtue of the impugned proceedings,
dated 16.07.2021, refused to register the sale certificate on the ground that
there are existing Court attachment orders passed by the II Additional Sub
Judge, Trichy, in four suits. Aggrieved by the same, the present writ petition
has been filed before this Court.
3.Heard Mr.C.Deepak, learned counsel for the petitioner and
Mr.M.Lingadurai, learned Government Advocate for the first respondent.
4.The issue that is involved in the present case is squarely covered by
the earlier order passed by this Court in W.P.(MD).No.7897 of 2021, dated
16.04.2021. The relevant portions in the order are extracted hereunder:
“6.The issue involved in the present case is
squarely covered by the earlier orders passed by
this Court. It will be relevant to take note of the
order passed by this Court in W.P.No.9037 of 2020,
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W.P.(MD).No.12833 of 2021
dated 10.07.2020. The relevant portions in the
order are extracted hereunder:
“5.The learned counsel for the petitioner
submitted that the property was mortgaged in
favour of the Bank by a registered mortgage
deed dated 20.03.2014, in Document No.
2500/2014. The learned counsel further
submitted that the alleged attachment of the
property had taken place much after the
property was mortgaged, only in the year 2018.
The learned counsel submitted that the
attachment of the property after the property has
already been mortgaged in favour of the Bank,
will not in any way bind the Bank and that is not
a ground for rejecting the registration of the
Sale Certificate.
6.The learned counsel for the petitioner in order
to substantiate his submissions relied upon the
order passed by this Court in WP(MD).No.
4007/2019, dated 28.02.2019 and the relevant
portions of the order is extracted hereunder:
“5.The issue on hand is no longer resintegra.
As rightly pointed out by the learned counsel
appearing for the petitioner, in a catena of
decisions this Court has held that there can
be no bar for registering the sale certificate
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W.P.(MD).No.12833 of 2021
in the case of attachment order passed by the
Civil Court. One such order is enclosed at
Page No.25 of the typed set of papers vide
order dated 24.02.2015 in W.P.No.31061 of
2012. It was held that the Bank being a
secured creditor is entitled to exercise their
power under the SARFAESI Act and execute
the sale certificate in favour of the purchaser
and that the registration cannot be refused by
registering authority on the ground that an
order of attachment has been obtained in
respect of the property in question.”
7.The learned counsel further submitted that the
issue that is involved in the present writ petition
is directly covered by the judgment of this Court
in the case of S.Praveen Bohra vs. Joint-I Sub-
Registrar (In the cadre of District Registrat)
Office of the Registration of Coimbatore, No.
102, State Bank Road, Coimbatore - 641 018
reported in 2016 3 LW 513.
8.Mr.T.M.Pappiah, Special Government Pleader
appearing on behalf of the respondent submitted
that the respondent is barred from entertaining
the Sale Certificate for registration since
admittedly there is an attachment order passed
by a Competent Civil Court and the same is
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W.P.(MD).No.12833 of 2021
reflected in the Encumbrance Certificate. The
learned counsel submitted that in the light of the
order of attachment, if any registration is made,
it may be construed as a violation of the order
passed by a Competent Civil Court. Therefore,
the learned counsel sought for the dismissal of
the writ petition.
9.The issue involved in the present writ petition
is no longer res-integra. It has been consistently
held by this Court that the order of attachment is
not a ground to refuse registration of a Sale
Certificate. In fact this position of law has been
holding the field from the year 2013 onwards
and this Court in the case reported in [2013 1
CTC P 609] has also taken the very same view.
The latest judgment of this Court in the case of
Pegasus Assets Reconstruction Pvt. Ltd. vs.
Inspector of General Registration, Government
of Tamil Nadu is reported in [2019 4 CTC P
851]. Therefore, this Court need not undertake
the exercise and it is enough if the settled law is
once again reiterated.”
7.In the present case, the mortgage was created by
deposit of title deeds in the year 2013. The order of
attachment came to be passed subsequently in the
year 2015 and this order of attachment will not
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W.P.(MD).No.12833 of 2021
bind the bank. The order referred to supra makes
this position very clear. Therefore, the first
respondent cannot refuse to register the Sale
Certificate based on the attachment order passed
by the Civil Court in the year 2015.”
5.In the present case, the mortgage by deposit of title deeds was created
in the year 2015 and the attachment orders came to be passed in the year
2017. Hence, the order of attachment will not bind the bank. Therefore,
based on these attachment orders, the first respondent cannot refuse to
register the sale certificate executed in favour of the 7th and 8th respondents.
6.In view of the above, the impugned proceedings of the first
respondent, dated 16.07.2021, is hereby quashed and there shall be a
direction to the first respondent to entertain the sale certificate presented for
registration and register the same, if it is otherwise in order and necessary
registration fees and stamp duty are paid. The sale certificate shall be released
after registration.
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W.P.(MD).No.12833 of 2021
7.This writ petition is allowed with the above directions. No costs.
Consequently, connected miscellaneous petition is closed.
28.07.2021
Internet : Yes/No
Index : 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.
To
The Sub Registrar,
Manapparai, Trichy District.
https://www.mhc.tn.gov.in/judis/
W.P.(MD).No.12833 of 2021
N.ANAND VENKATESH, J.
TM
Order made in
W.P.(MD).No.12833 of 2021
Dated:
28.07.2021
https://www.mhc.tn.gov.in/judis/
