Madras High Court
R. Kalaiselvan vs The Chief Manager on 26 October, 2021
W.P.No.22941 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.10.2021
CORAM:
THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
W.P.No.22941 of 2021
R. Kalaiselvan ... Petitioner
Versus
1. The Chief Manager,
State Bank of India,
Namakkal Branch,
Namakkal.
2. The Sub-Registrar,
Suramangalam,
Bodinayakkanpatty Village,
Salem West, Salem. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India praying to issue a Writ of Certiorarified Mandamus to call for the
records of the 2nd respondent herein vide refusal check slip with refusal
number RFL/Suramangalam2/2019 dated 19.07.2019 quash the same and
consequently, to direct the 2nd respondent to register the sale certificate
dated 09.05.2019 issued by the 1st respondent in favour of the petitioner.
Page No.1 of 8
https://www.mhc.tn.gov.in/judis
W.P.No.22941 of 2021
For Petitioner : Mr. K.Sathish Kumar
For Respondents : Mr. Yogesh Kannadasan
Government Advocate
ORDER
Heard Mr.K. Sathish Kumar, learned counsel appearing for the
petitioner and Mr. Yogesh Kannadasan learned Government Advocate,
takes notice on behalf of the respondents, by consent both parties, this
writ petition taken up for final disposal at the admission stage itself.
2. The petitioner seeks for the issuance of a writ of certiorarified
mandamus to quash the impugned proceedings dated 19.07.2019 passed
by the second respondent refusing to entertain the registration of the Sale
Certificate executed in favour of the petitioner by the first respondent
pursuant to the auction initiated under the Securitisation and
Reconstruction of Financial Assets and Enforcement of Security Interest
Act, 2002 [SARFAESI Act] on the ground that there is an attachment by
the Civil Court prior to the Sale Certificate being executed in favour of
https://www.mhc.tn.gov.in/judis
W.P.No.22941 of 2021
the petitioner.
3. The issue raised in this writ petition is squarely covered by the
earlier decision passed by this Court wherein an identical issue was
considered. At this stage, it will be useful to refer the operative portion
of the said order passed by this Court dated 01.09.2014 in W.P.(MD)
No.14388 of 2014:
"4. Section 71 of the Registration Act, 1908
deals with reasons for refusal to register which has to
be recorded. In terms of Sub Section (1) of Section
71, every Sub Registrar refusing to register a
document, except on the ground that the property to
which it relates is not situate within his Sub District,
shall make an order of refusal and record his reasons
for such order in his Book No.2 and endorse the
words ''registration refused'' on the document, and on
application made by any person executing or
claiming under the document, shall, without payment
and unnecessary delay, give him a copy of the
reasons so recorded. In terms of Sub Section (2), no
registering officer shall accept for registration a
document so endorsed unless and until, under the
provisions hereinafter contained, the document is
https://www.mhc.tn.gov.in/judis
W.P.No.22941 of 2021
directed to be registered.
5. In such circumstances, merely because there
is an order of attachment passed by a Civil Court, the
same cannot be a ground to refuse to register the
Memorandum of Deposit of Title Deeds. If any
deposit of title deeds is created in respect of the said
property pursuant to the right acquired by the
petitioner, vide Settlement deed, dated 04.07.2011, it
is always subject to further orders to be passed by
the Civil Court. The petitioner's case is that she
acquired title by way of settlement deed dated
04.07.2011, much prior to the order of attachment.
Further, the learned counsel appearing for the
petitioner placed reliance on Order 38, Rule 10 CPC
stating that attachment before Judgment shall not
affect the rights, existing prior to the attachment, of
persons not 4 parties to the suit, nor bar any person
holding a decree against the defendant from applying
for the sale of the property under attachment in
execution of such decree. The lending bank namely,
Canara Bank, Vadamadurai if satisfies with the title
of the petitioner over the property, can request the
Registrar to register the document. In such
https://www.mhc.tn.gov.in/judis
W.P.No.22941 of 2021
circumstances, merely because an order has been
passed by the Civil Court effecting attachment,
cannot be a bar for entertaining a document for
registration. Hence, the reasons assigned by the
respondent refusing to register, vide his memo, dated
25.07.2014, is not in accordance with law beyond
the scope of Section 71 of the Act.
6. For the above reasons, the writ petition is
allowed and the respondent is directed to accept the
Memorandum of Deposit of Title Deeds dated
24.07.2014 and register the same within a period of
four weeks from the date of receipt of a copy of this
order. It is made clear that mere registration of the
Memorandum of Deposit of Title Deeds will not in
any manner affect any order of attachment, which
was already effected and placed in the Encumbrance
Certificate. No costs."
4. The above decision of this Court is applicable to the facts and
circumstances of this case and the first respondent-Bank, being a secured
Creditor is entitled to exercise their power and in exercise of such power,
https://www.mhc.tn.gov.in/judis
W.P.No.22941 of 2021
they have brought the property for sale by invoking the provisions of the
SARFAESI Act and executed the Sale Certificate in favour of the writ
petitioner.
5. In such circumstances, the question of refusing to register the
same does not arise though there was an order of attachment obtained in
respect of the property in question.
6. In the light of the above, this writ petition is allowed and the
impugned order is set aside and the second respondent is directed to
register and release the Sale Certificate produced by the petitioner within
a period of four weeks from the date of receipt of a copy of this order and
it is made clear that the registration and release of the Sale Certificate
will not in any manner affect any order of attachment. Consequently,
W.M.P.Nos.24154 and 24156 of 2021 are also closed. No costs.
26.10.2021
Index: Yes/No
https://www.mhc.tn.gov.in/judis
W.P.No.22941 of 2021
Internet: Yes/No
sp/msm
To
1. The Chief Manager,
State Bank of India,
Namakkal Branch,
Namakkal.
2. The Sub-Registrar,
Suramangalam,
Bodinayakkanpatty Village,
Salem West, Salem.
https://www.mhc.tn.gov.in/judis
W.P.No.22941 of 2021
V.BHAVANI SUBBAROYAN, J.
sp/msm
W.P.No.22941 of 2021
26.10.2021
https://www.mhc.tn.gov.in/judis
