Madras High Court
Suresh Ramakrishnan vs The Sub Registrar on 26 November, 2021
W.P.No.23512 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.11.2021
CORAM
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
W.P. No.23512 of 2021
Suresh Ramakrishnan ... Petitioner
-Vs-
The Sub Registrar,
Sub Registrar Office,
NSK Avenue, Manickam Road,
Kundrathur, Chennai – 600 069. ... Respondent
Prayer :- Writ Petition filed under Article 226 of the Constitution of India
praying for the issuance of a Writ of Mandamus, to direct the respondent
herein to register the sale certificate dated 27.04.2018 issued by M/s.JM
Financial Asset Reconstruction Company Ltd., under the provisions of the
Securitization and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 in respect of property comprised in Survey
No.184/3C ad measuring 163 cents at Kannapalayam Village, Sriperumbudur
Taluk, Kancheepuram District.
For Petitioner : Ms.A.S.Neela Narayani
For Respondent : Mr.Yogesh Kannadasan
Government Advocate.
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Page 1 of 8
W.P.No.23512 of 2021
ORDER
The Writ Petition has been filed to direct the respondent herein to
register the sale certificate dated 27.04.2018 issued by M/s.JM Financial Asset
Reconstruction Company Ltd., under the provisions of the Securitization and
Reconstruction of Financial Assets and Enforcement of Security Interest Act,
2002, (herein after called as “SARFAESI Act”) in respect of property
comprised in Survey No.184/3C ad measuring 163 cents at Kannapalayam
Village, Sriperumbudur Taluk, Kancheepuram District.
2. The case of the petitioner is that the property comprised in survey
No.184/3C ad measuring 163 cent situated at Kannapalayam Village,
Sriperumbudur Taluk, Kancheepuram District was purchased by the petitioner
on auction. The property was originally mortgaged with the State Bank of India
and the secured assets were assigned to M/s.JM Financial Assest
Reconstruction Company Ltd and the said company had conducted the auction.
3. In the said auction, the petitioner purchased the subject property
under the provision of SARFASI Act. The petitioner was issued sale certificate
dated 27.04.2018 and the same was presented before the respondent for
registration. However it was not registered for the reason that the Income Tax
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W.P.No.23512 of 2021
Department has made an attachment in respect of the property. Hence, the
petitioner filed this present Writ Petition with the above said prayer.
4. The learned counsel appearing for the petitioner would submit that
in the light of Section 26E of the SARFASI Act, debts due to any secured
creditor shall be paid in priority over all other debts and all revenues, taxes,
cesses and other rates payable to the Central Government of the State
Government or local authority. In this regard, he relied upon the Full Bench
judgment of this Court report in 2017 (1) MLJ 769 in the case of Assistant
Commissioner (CT) Vs. Indian Overseas Bank & anr., which held that as
follows :-
“2. We are of the view that if there was at
all any doubt, the same stands resolved by view
of the Enforcement of Security Interest and
Recovery of Debts Laws and Miscellaneous
Provisions (Amendment) Act, 2016, Section 41 of
the same seeking to introduce Section 31B in the
Principal Act, which reads as under:-
''31B. Notwithstanding anything contained in
any other law for the time being in force, the
rights of secured creditors to realise secured
debts due and payable to them by sale of assets
over which security interest is created, shall have
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W.P.No.23512 of 2021
priority and shall be paid in priority over all
other debts and Government dues including
revenues, taxes, cesses and rates due to the
Central Government, State Government or local
authority.
Explanation. - For the purposes of this
section, it is hereby clarified that on or after the
commencement of the Insolvency and Bankruptcy
Code, 2016, in cases where insolvency or
bankruptcy proceedings are pending in respect of
secured assets of the borrower, priority to
secured creditors in payment of debt shall be
subject to the provisions of that Code.''
3.There is, thus, no doubt that the rights of
a secured creditor to realise secured 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....”
4.1. She further submitted that in the above judgment this Court
further held that, in respect of the rights of the third party purchaser of the
mortgaged property in question, the same is stated to relate only to auction
sales, which may be carried out in pursuance to the rights exercised by the
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W.P.No.23512 of 2021
secured creditor having a mortgage of the property. This aspect is also covered
by the introduction of Section 31B, as it includes “secured debts due and
payable to them by sale of assets over which security interest is created”.
5. Per contra, the learned Government Advocate on instruction from
the respondent submitted that the subject property was covered by the
attachment order dated 21.07.2011 issued by the Income Tax Department for
the recovery of dues to the tune of Rs.3,69,66,037/-. Further, the said
certificate was executed on 27.04.2018 and the same has to be presented
within a period of four months as contemplated under Section 23 read with
Section 25 of the Registration Act, 1908. Therefore, he prayed for dismissal of
this Writ Petition.
6. Heard Ms.A.S.Neela Narayani, learned counsel appearing for the
petitioner, Mr.Yogesh Kannadasan, learned Government Advocate appearing
for the respondent.
7. Admittedly, the petitioner presented the sale certificate for
registration and not common deed of conveyance. The said sale certificate was
presented to file the same in Book No.1 as contemplated under Section 89(4) of
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W.P.No.23512 of 2021
the Registration Act. The said provision does not have any expressed limitation
to file the sale certificate in Book No.1 under sub-Section 4 of the Section 89 of
the Registration Act. That apart, the petitioner is being a purchaser in the
auction sale, his claim over the property takes precedence over all claims of any
Government department. Therefore, the respondent ought to have accepted the
sale certificate dated 27.04.2018.
8. In view of the above discussions, the petitioner is directed to
re-present the sale certificate dated 27.04.2018 before the respondent and on
receipt of the same, the respondent is directed to file the same in Book No.1
under Section 89(4) of the Registration Act.
9. With the above directions, the Writ Petition stands disposed of.
There shall be no order as to costs.
26.11.2021
Internet : Yes
Index : Yes/No
Speaking order/Non-speaking order
rts
https://www.mhc.tn.gov.in/judis
W.P.No.23512 of 2021
To
The Sub Registrar,
Sub Registrar Office,
NSK Avenue, Manickam Road,
Kundrathur, Chennai – 600 069.
https://www.mhc.tn.gov.in/judis
W.P.No.23512 of 2021
G.K.ILANTHIRAIYAN, J.
rts
W.P. No.23512 of 2021
26.11.2021
https://www.mhc.tn.gov.in/judis
