Madras High Court
M/S.Kotak Mahindra Bank Ltd vs The Sub Registrar on 21 November, 2023
Author: P.Velmurugan
Bench: P.Velmurugan
W.P.No.16279 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.11.2023
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
W.P.No.16279 of 2023
and
W.M.P.No.15666 of 2023
M/s.Kotak Mahindra Bank Ltd.,
Reg. office at No.27, BKC-C-27
G Block, Bandra Kurla Complex
Bandra (W), Mumbai - 400 051
and its branch office at
No.185, 2nd Floor, Anna Salai,
Mount Road, Chennai-600 006
represented by its Authorised Officer
Mr.K.Velmurugan ... Petitioner
versus
1. The Sub Registrar
Tambaram - 600 073.
2. G.Kavitha .....Respondents
Writ Petition filed under Article 226 of Constitution of India, to issue
a Writ of Mandamus directing the first respondent herein to consider the
request and register the sale certificate dated 27.03.2023 issued by the
petitioner in accordance with law.
Pg.Nos.1/8
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W.P.No.16279 of 2023
For Petitioner : Mr.V.Balasubramani
For Respondents : Mr.Yogesh Kannadasan
Special Government Pleader for R1
No appearance for R2
ORDER
This Writ Petition has been filed seeking for issuance of a Writ of
Mandamus directing the first respondent herein to consider the request and
register the Sale Certificate dated 27.03.2023 issued by the petitioner in
accordance with law.
2.1 The petitioner is a Banking company incorporated under the
Companies Act, 1956 and registered under the Securitization and
Reconstruction of Financial Assets and Enforcement of Security Interest Act,
2002 and in exercise of powers conferred under Section 13 read with Rules
8 and 9 of the Security Interest (Enforcement) Rule 2002, has sold the
subject property in favour of the second respondent.
2.2 Originally, the subject property was secured in favour of the
assignor M/s.Bajaj Finance Limited by their borrowers Senthil Joothi.A,,
S.Divya Shree and M/s.Divya Shree Enterprises, Proprietor Senthil Joothi.A,
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securing financial facility advanced to them by the assignor M/s.Bajaj
Finance Ltd., which is assigned debt due and payable by the borrowers to it
along with the mortgaged securities and the documents in favour of the
petitioner, vide Assignment Agreement dated 23.04.2019. As per the said
Assignment Agreement, the petitioner-Bank is legally entitled to receive the
re-payment of the loans or any part thereof from the borrowers. Since the
borrowers have created default in payment of dues, the petitioner-Bank had
issued demand notice under Section 13(2) of SARFAESI Act, however, the
borrowers have not come forward to settle the dues, and hence, the
petitioner-Bank issued possession notice on 28.12.2020. Thereafter, the
petitioner-Bank conducted an auction and had selected the second
respondent as the highest bidder for purchase of the mortgaged property to
the tune of Rs.33,10,000/- and handed over the subject property to the
second respondent. Hence, the petitioner-Bank issued the Sale Certificate
dated 27.03.2023 in favour of the second respondent herein as the
successful bidder. When the petitioner approached the first respondent to
register the Sale Certificate in favour of the second respondent, the petitioner
came to know that subject property was attached in the Court of the Sub-
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Judge, Tambaram in E.P.No.12 of 2022 in O.S.No.219 of 2018, dated
20.02.2023 and the same was registered, vide Document No.2 of 2023 dated
22.02.2023 on the file of the first respondent. Hence, the first respondent
refused to register the said Sale Certificate which was presented for
registration on 26.04.2023. Despite repeated requests made by the
petitioner, the first respondent has not considered the same and hence, the
petitioner is before this Court.
3. The learned counsel for the petitioner submits that the petitioner is
the secured creditor and their mortgage has been created much before the
attachment created by the third party and hence, the petitioner is having first
claim over the said mortgaged property. He further submitted that there are
numerous judgments where the rights of the secured creditor to the
mortgaged property would have priority over other creditors and certain
directions are issued to the Sub Registrar to remove the attachment in
encumbrance in respect of the property in order to facilitate and registration
of document presented by the secured creditor for Registration. He further
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submitted that it would be suffice if a direction is issued to the first
respondent to consider the request of the writ petitioner.
4. Heard the learned counsel for the petitioner and the learned
Special Government Pleader appearing for the first respondent and perused
the materials available on record.
5. Despite service of notice on the second respondent and her name is
being printed in the cause list, she has not chosen to enter appearance either
through a counsel or in person.
6. The petitioner, who is the Financial Institution has approached the
first respondent for registering the Sale Certificate issued under SARFAESI
Act in favour of the second respondent and since there is no action on the
side of the first respondent, the petitioner-Bank filed this Writ Petition. The
Hon'ble Supreme Court and this Court, in W.P.No.13282 of 2021 in the
case of Tamilnadu Mercantile Bank Ltd., Vs. The Sub Registrar,
Tiruchengode Taluk, Namakkal District and others, has held that the
secured creditor will have a priority to realize the debt over all the other
Government dues and unsecured creditors and it also observed that if any
Registering Authority refuses to register the sale, it would be deemed to be
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violation of Court's order amounting to contempt and the aggrieved parties
can always initiate contempt proceedings before this Court.
7. However, considering the limited prayer sought for in this Writ
Petition and also considering the settled proposition of law as stated supra,
the first respondent is directed to register the Sale Certificate dated
27.03.2023, by considering the on-line application dated 26.04.2023, if it is
otherwise in order, within a period of two weeks from the date of receipt of a
copy of this order.
8. With the above directions, this Writ Petition is disposed of.
Consequently, connected miscellaneous petition is closed. There shall be no
order as to costs.
21.11.2023
(1/2)
Index: Yes/No
Speaking Order/Non-Speaking Order
Neutral Citation Case : Yes/No
ms
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To
The Sub Registrar
Tambaram - 600 073.
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P.VELMURUGAN, J.
ms
21.11.2023
(1/2)
https://www.mhc.tn.gov.in/judis
