Allowed

Vijayee Bhava Properties Ltd. v. M/S.Vaokundam Rubbers Company

Kerala HC2 Nov 2018Co.Appl./196/2017

Case brief

AI extract

What is this about?

This court held that confirmation of a sale under the RDDBFI Act extinguishes prior attachment orders if a mortgage predates the attachment. The applicant's title is clear, and directives were issued to erase the attachment from records and return the bank guarantee.

What did the court decide?

Attachment logic quashed as extinguished by confirmed sale order; Sub Registrar directed to erase entry from Book No.1 and issue fresh certificate; Village Officer directed to efface from village reco

Vijayee Bhava Properties Ltd. Vs M/S.Vaokundam… — Execution and Attachment | Kerala HC (2018)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

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(Original Jurisdiction)

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In the matter of the Companies Act, 1956 and

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In the matter of CONCERT SPICES & EXPORTS LIMITED(IN LIQUIDATION)

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Co.Appl.No.499/2007 in CS No.18/2004 ARISING OUT OF CP No.3/1999

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(THE CAUSE TITLE OF CA No.499/2007 IS AMENDED AND CORRECTED AS

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CA NO.499/2007 IN COMPANY SUIT (CS)No.18/2004 ARISING OUT OF CP NO.3/1999 AS PER ORDER DATED 25/10/2018 IN CA NO.171/2017)

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Before :

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS Friday, the 2nd day of November 2018/11th Karthika, 1940

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APPLICANT

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M/S.VIJAYEE BHAVA PROPERTIES LTD., IX/256,SIDCO BUILDINGS, SIDCO INDUSTRIAL ESTATE, POST PERINGANDOOR,THRISSUR REPRESENTED BY ITS MANAGING DIRECTOR MR.T.R.RAGHULAL

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RESPONDENTS

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1. OFFICIAL LIQUIDATOR,HIGH COURT OF KERALA,ERNAKULAM

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2. THE CHIEF GENERAL MANAGER, VAIKUNDAM RUBBER COMPANY, GEETHA VIHAR,11/3309,CHALAKKUDI ROAD, PATTAM PALACE,THIRUVANANTHAPURAM. ADDL.RESPONDENTS 3 AND 4 IMPLEADED

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ADDL.R3 THE SUB REGISTRAR, O/O.THE SUB REGISTRAR, KUTTANELLORE, COLEGE RD., HILL GARDENS HOUSING COLONY, KUTTANELLORE, THRISSUR DT., KERALA 680 014.

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ADDL.R4 THE VILLAGE OFFICER,

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OLLUR VILLAGE,CHRISTOPHER, OLLUR THRISSUR DISTRICT, KERALA 680 306.

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Addl.R3 and R4 are impleaded as per order dated 2/11/2018 in CA No.1/2018 in CA No.499/2007.

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Company Application under Rule 9 of the Company(Court)Rules,1959 filed by the applicant above named praying for an order to release the attachment ordered by the District Court, Ernakulam in respect of 2.66 Acres of land and the building thereon comprised in Sy.Nos.128/1,130 and 159 of Ollur Village, Thrissur Taluk, Ollukkara Sub District, which was owned by the Company in liquidation and purchased by the Applicant herein as evidenced by Annexure A1 Sale Certificate and to pass necessary orders.

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This Company Application coming on for orders on this day upon hearing SRI.T.A.SHAJI, Senior Advocate along with SRI.M.A.ASIF,Advocates for the applicant and SRI.K.MONI, Standing Counsel for the Official Liquidator and SRI.PHILIP MATHEW, Advocate for R2 and SRI.JUSTIN MATHEW-GOVERNMENT PLEADER, the court passed the following:

¶21

C.A.No.499/2007 in C.S. No.18/2004 in C.P.No.3/1999 & C.A.No.196/2017 in C.S.No.18/2004 in C.P.No.3 of 1999

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IN THE HIGH COURT OF KERALA AT ERNAKULAM (Original Jurisdiction)

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In the matter of the Companies Act, 1956 and

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In the matter of CONCERT SPICES & EXPORTS LIMITED(IN LIQUIDATION)

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Co.Appl.No.196/2017 in COMPNAY SUIT No.18/2004 (CO.O.S.No.718/2002) IN CP No.3/1999

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Before :

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS Friday, the 2nd day of November 2018/11th Karthika, 1940

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APPLICANT

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M/S.VIJAYEE BHAVA PROPERTIES LTD., IX/256,SIDCO BUILDINGS, SIDCO INDUSTRIAL ESTATE, PERINGANDOOR,THRISSUR REPRESENTED BY ITS MANAGING (LEGAL) BINDHU SHYAM

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RESPONDENTS

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1. M/S.VAIKUNDAM RUBBERS COMPANY

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GEETHA VIHAR, 11/3309,CHALAKKUDI ROAD, PATTAM PALACE, THIRUVANANTHAPURAM 695 004,REPRESENTED BY ITS

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THE CHIEF GENERAL MANAGER.

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2. M/S.CONCERT SPICES & EXPORTS LTD.,

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(IN LIQUIDATION) REPRESENTED BY THE OFFICIAL LIQUIDATOR, HIGH COURT OF KERALA, ERNAKULAM, 682 021.

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Company Application under Order XXXVIII Rule 9 R/.W Section 151 of code of civil procedure read with Rule 9 of the Companies (Court) Rules, 1959 filed by the applicant above named praying for ana order to lift the attachment over the properties purchased by the Company, having an extent of 31 cents in Sy.No.128/1,79 cents in Sy.No.130 and 156 cents in Sy.No.159 of the properties in Ollur Village, Thrissur District and to communicate the same to the Sub Registry, Kuttanellore.

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This Company Application coming on for orders on this day

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upon hearing SRI.T.A.SHAJI,Senior Advocate along with SRI.M.A.ASIF,Advocates for the applicant and and SRI.PHILIP MATHEW ,Advocate for the respondents, the court passed the following:-

¶39

C.A.No.499/2007 in C.S. No.18/2004 in C.P.No.3/1999 & C.A.No.196/2017 in C.S.No.18/2004 in C.P.No.3 of 1999

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(CR)

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ALEXANDER THOMAS, J.

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C.A.No.499/2007 in Company Suit (C.S.) No.18/2004 in C.P.No.3/1999 & C.A.No.196/2017 in C.S.No.18/2004 in

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C.P.No.3 of 1999

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Dated this the 2^nd day of November, 2018 ORDER

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The above said C.A.No.499/2007 is taken as the

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lead matter.

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2. The Company (Liquidation), M/s.Concerts Spice and Exports Limited (R1) in this C.A., had taken a loan for principal amount coming to about Rs.95 lakhs from the Bank of India, Ernakulam branch by creating an equitable mortgage by deposit of the title deeds in respect of the property in question. The mortgage in question was created by the Company (liquidation) in favour of the Bank of India on

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31.3.1994. Later, the Company had defaulted in

¶49

C.A.No.499/2007 in C.S. No.18/2004 in C.P.No.3/1999 & C.A.No.196/2017 in C.S.No.18/2004 in C.P.No.3 of 1999

¶50

payment of the said loan account and pursuant thereto, the bank had set in motion proceedings before the Debt Recovery Tribunal, Ernakulam under the provisions contained in the Recovery of Debts due to Banks and Financial Institutions Act, 1993 for recovery of said loan dues. Accordingly, the Debt Recovery Tribunal had ordered for sale of the

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above said property in question and the applicant herein had purchased the said property in such sale proceedings and the sale proceedings in that regard was duly confirmed on 17.4.2006.

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3. R2 in the C.A. is an unsecured creditor of the Company (Liquidation) and R2 had filed Original Suit, O.S.No.718/2002 before the Sub Court, Ernakulam for recovery of the dues, wherein the Company has been arrayed as the sole the defendant therein. The prayer in the suit was for recovery of

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an amount of Rs.9,75,842/- along with interest thereon from 15.9.1997 onwards. In the said civil suit proceedings, R2 had secured attachment before

¶54

C.A.No.499/2007 in C.S. No.18/2004 in C.P.No.3/1999 & C.A.No.196/2017 in C.S.No.18/2004 in C.P.No.3 of 1999

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judgment in respect of the very same property as per order dated 28.12.2002 rendered by the trial court. Later, the Company was ordered to be wound up as per order dated 11.8.2003 in C.P.No.3/1999 rendered by this Court. The above said secured creditor, the Bank of India had stood outside the winding up proceedings.

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4. Thereafter, R2 had filed an application before the Company Court to transfer the said suit to the Company Court. Thereupon this Court had passed order dated 8.9.2004 ordering the transfer of the above said O.S.No.718/2002 from the file of the trial Court concerned to the Company Court. The said Original Suit, thereafter, re-numbered by the Company Court as the above referred Company Suit No.18/2004 in C.P.No.3/1999. Later, the Company Suit was decreed by this Court on 25.8.2005 for a sum of Rs.9,75,842/- with interest from the due date (15.9.1997) upto the date of the winding up order (8.8.2003). So, it can be seen that by virtue of

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C.A.No.499/2007 in C.S. No.18/2004 in C.P.No.3/1999 & C.A.No.196/2017 in C.S.No.18/2004 in C.P.No.3 of 1999

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the mandate contained in Order XXXVIII of Rule 11 of C.P.C., the above said attachment before judgment rendered on 28.12.2002 in the said suit will continue to have its efficacy pursuant to the decree in the Company Suit. Later, the applicant had filed an application to amend the cause title of the above said C.A. by filing C.A.No.171/2017 in C.A.No.499/2007 and this Court had passed order dated 25.10.2018 in the said C.A.No.171/2017 by allowing the amendment of the cause title of C.A.No.499/2007 and it was specifically ordered that the cause title of “C.A.No.499/2007” may be shown as “C.A.No.499/2007 in Company Suit, C.S.No.18/2004 arising out of C.P.3/1999” instead of the earlier cause title C.A.No.499/2007 in C.P.No.3/1999. Thereafter, the above said amendments of the cause title of C.A.499/2007 have been duly effected.

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5. The contention raised by the applicant is that as the mortgage of the property in question was effected as early as on 31.3.1994, which is long

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C.A.No.499/2007 in C.S. No.18/2004 in C.P.No.3/1999 & C.A.No.196/2017 in C.S.No.18/2004 in C.P.No.3 of 1999

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prior to the date of the attachment order dated 28.12.2002 rendered by the Civil Court in the above suit, the property purchased by him in the sale proceedings conducted by the Debt Recovery Tribunal

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under the above said Act is free from all encumbrances the moment the sale has been confirmed under that Act and that therefore, the attachment order has lost its efficacy and that hence, this Court may direct the additional respondent Nos. 4 and 5 in the C.A., viz., Sub Registrar concerned and the Village Officer concerned to take steps for ensuring the effacement of that attachment order from the encumbrance records and the village records respectively, as otherwise the marketability of the property purchased by the applicant will be unnecessarily clouded even though that has been lost its efficacy.

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6. The learned Senior Counsel for the

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applicant would submit that though the prayers sought for in the above C.A. is for lifting the

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C.A.No.499/2007 in C.S. No.18/2004 in C.P.No.3/1999 & C.A.No.196/2017 in C.S.No.18/2004 in C.P.No.3 of 1999

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attachment, it is not necessary for this Court to grant that prayer as the attachment order has lost

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its legal efficacy and that directions as aforestated as ordered by this Court in the judgments as in Madhan’s case (supra)need alone be issued by this Court. Per contra, Shri. Philip Mathew, learned counsel appearing for R2 would urge that the various decisions of this Court as in “Rajalekshmi Amma” (2013 (4) KLT 443). “HDFC” (2011 (3) KLJ 561), “Madhan” (2014 (1) KLT 406), etc do not lay down the correct legal position and has placed reliance on certain judgments, more particularly that of the Madras High Court.

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7. At the stage admission, this Court had passed an interim order dated 3.1.2008 in C.A.No.928/2007, whereby it was ordered as an interlocutory arrangement that the impugned attachment order will stand lifted for the time being, if the applicant would furnish the bank guarantee to the tune of Rs.9,75, 842/- which is the

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C.A.No.499/2007 in C.S. No.18/2004 in C.P.No.3/1999 & C.A.No.196/2017 in C.S.No.18/2004 in C.P.No.3 of 1999

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principal amount covered by the decree in the above said Company Suit. The applicant has, thereafter, furnished the bank guarantee for the said amount and it appears that the same has been extended from time

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to time. Initially the institution of C.A.No.499/2007 was as of it was filed by the applicant in C.P.No.3/1999 later as per the order rendered by this Court.

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8. Heard Sri.T.A. Shaji, the learned Senior Counsel instructed by Sri. Abhilash Vishnu, the learned counsel appearing for the applicant, Sri. K. Mony, the learned Standing Counsel for the Official Liquidator representing the Company (liquidation), Sri. Philip Mathew, the learned counsel appearing for R2 (unsecured creditor), who is the decree holder and the beneficiary of the impugned attachment order and Sri. Jestin Mathew, the learned Government Pleader appearing for R4 and R5 (SRO concerned and the Village Officer concerned).

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9. Various contentions have been made by both

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C.A.No.499/2007 in C.S. No.18/2004 in C.P.No.3/1999 & C.A.No.196/2017 in C.S.No.18/2004 in C.P.No.3 of 1999

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sides regarding the tenability or otherwise of the prayers sought for in these Company Applications. Though Shri. Philip Mathew, learned counsel appearing for R-2 has endeavoured in his persuasive, soft but firm submissions that the aforecited judgments of this Court do not lay down the correct legal position and that the sale under the above

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said Act is not free from encumbrances, etc., this Court is constrained to overrule the said contentions. After hearing both sides, this Court is in respectful concurrence with the considered views of this court in those decisions. This Court is of the considered view that the prayer sought for by the applicant in the C.A for lifting the impugned attachment is not really called for as the matter in issue is covered by the dictum laid down by this Court in the judgments as in Rajalekshmi Amma v.

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Basheer [2013 (4) KLT 443 (DB)], Housing Development Finance Corporation v. Sub Registry Officer [2011 (3) KLJ 561 = [2011 KHC 851] and

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C.A.No.499/2007 in C.S. No.18/2004 in C.P.No.3/1999 & C.A.No.196/2017 in C.S.No.18/2004 in C.P.No.3 of 1999

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Madhan v. SRO [ 2014 (1) KLT 406]. In the

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judgment in Rajaleshmi’s case (supra), the

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Division Bench of this Court has held as follows:

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“3.When a mortgage is created in terms of the provisions of the TP Act, it amounts to an encumbrance. An order of attachment before judgment creates no charge. There is nothing in the RR Act or in the SFC Act, which changes the jurisprudential content of a mortgage, in terms of the TP Act when the provisions of either of those legislations are invoked by the KFC. Equally, the quality of the mortgage created in favour of KFC does not, in any manner, get extinguished or reduced in terms of its legal character and statutory potency in terms of the TP Act, by the fact that alternate modes of recovery were resorted to by KFC, rather than by a suit in terms of Section 67 of the TP Act. The quality of the mortgage as an encumbrance does not get watered down to be subservient to by an order of attachment by the civil court under Code of Civil Procedure. That order of attachment does not override or deserves to be preferred over the rights of a mortgagee or the effect of the mortgage as an encumbrance.

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4. For the aforesaid reasons, the existence of an attachment by the civil court from 11.08.1992 had no impact whatsoever on the sale under the RR Act, which stood confirmed on 23.12.1994, notwithstanding whether that sale is to be free of all encumbrances or not. Under such circumstances, we do not find any ground to interfere with the impugned

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C.A.No.499/2007 in C.S. No.18/2004 in C.P.No.3/1999 & C.A.No.196/2017 in C.S.No.18/2004 in C.P.No.3 of 1999

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order. This appeal fails.

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In the judgment in HDFC’s cas e (supra), this Court had considered the effect of attachment order in respect of a property which was mortgaged prior to the said attachment order, wherein the same was considered under the provisions of SARFAESI Act. It was held by this Court that the rights conferred on the creditor/bank by mortgage of security property and the right to conduct the sale of the property under the SARFAESI cannot be defeated by the subsequent attachments ordered by the Civil Court

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and the sale certificate so obtained can be registered and the auction purchaser is entitled to remit the property tax and obtain possession certificate, irrespective of the attachment effected subsequent to the mortgage. It is pertinent to refer to paragraphs 7 and 8 of the above said judgment of this Court in HDFC’s case (supra), which reads as follows:

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“7. After hearing both the sides, this Court finds that there is no dispute with regard to the chronology and the

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C.A.No.499/2007 in C.S. No.18/2004 in

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C.P.No.3/1999 & C.A.No.196/2017 in C.S.No.18/2004 in C.P.No.3 of 1999

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sequence of events, in so far as the specific contention of the petitioners that the mortgage was created in the year 2001 whereas the attachments were ordered by the Civil Court in the years 2007- 09 stands unrebutted. The remedy provided in favour of the secured creditor by virtue of the Act is an independent right, which is not adversely affected in any manner by virtue of any other stipulation contained in any other law as discernible from the statute itself, which contains a non – obstante clause as incorporated under Section 13(1). The only reference made in the said provision is Section 69 or Section 69A of the Transfer of Property Act, 1882, which do not come to the rescue of respondents 4 and 5. This Court finds that the rights and liberties conferred on the creditor/Bank by virtue of mortgage created in the year 2001 and the right to proceed under the relevant provisions of the SARFAESI Act cannot be defeated because of the subsequent attachments ordered by the Civil Courts in 2007-09. As such, the sale conducted on 24.11.2010, leading to issuance of Ext.P4 sale certificate, is complete in all respects and the title stands conveyed to the second petitioner.

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8. In the above circumstances, the first respondent is directed to register Ext.P4 sale certificate as and when the same is presented, subject to satisfaction of the necessary requirements, if the same is otherwise in order. On registering the sale certificate as above, it goes without saying that the second petitioner will be at liberty to enjoy the property with

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C.A.No.499/2007 in C.S. No.18/2004 in

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C.P.No.3/1999 & C.A.No.196/2017 in

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C.S.No.18/2004 in C.P.No.3 of 1999

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absolute ownership, exclusive possession and clear and marketable title as conveyed. The second petitioner, as a consequence, is at liberty to remit the basic tax in respect of the property and he is entitled to have a possession certificate in this regard. As such, if any request is made by the second petitioner for accepting the basic tax and for issuance of possession certificate, after effecting transfer of registry as per the Transfer of Registry Rules, 1966, necessary steps shall be taken and the same shall be finalised, by the concerned revenue authorities, as early as possible at any rate, within two weeks thereafter . The writ petition is allowed. No cost.”

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In the decision in Madhan’s case (supra), this Court had considered the specific question as to whether the attachments effected subsequent to the creation of equitable mortgage be effaced after the property is purchased in sale proceedings conducted by the Recovery Officer of DRT under the provisions of the Debts and Recovery due to Banks and Financial Institutions Act,1993. It was held by this Court categorically that preponderance of judicial opinion leads to the irresistible conclusion that the sale of the mortgaged property in favour of the purchaser

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C.A.No.499/2007 in C.S. No.18/2004 in C.P.No.3/1999 & C.A.No.196/2017 in C.S.No.18/2004 in C.P.No.3 of 1999

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under sale certificate issued under the said Act is free from all encumbrances. That the attachment orders effected subsequent to the creation of the mortgage in favour of the financial institution do not affect the title and ownership of the purchaser of the subject property. Such attachments have no impact on the sale conducted under the Act and attachments ceases to have any effect or fall to the ground the moment the sale is confirmed in favour of the purchaser. The declaration in that regard so sought for by the purchaser therein was granted by this Court and it was further directed that the Sub

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Registrar concerned and the Village Officer concerned should efface attachments effected subsequent to the mortgage from the relevant records, otherwise, it was held that those attachments would remain as a permanent taboo prejudicially affecting the marketability and title to the property even though they ceased to have any legal efficacy. It will be pertinent to refer to

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C.A.No.499/2007 in C.S. No.18/2004 in C.P.No.3/1999 & C.A.No.196/2017 in C.S.No.18/2004 in C.P.No.3 of 1999

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paragraphs 1, 6, 7 and 9 of the above said judgment

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of this Court in Madhan’s case (supra), which reads as follows:

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Can the attachments effected subsequent to the creation of equitable mortgage be effaced after the property is purchased by another in sale conducted by the Recovery Officer of the Debts Recovery Tribunal?

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6. A brief look at the relevant statutory provisions and the various judicial decisions would throw an insight to the points canvassed by the petitioner and the reliefs sought for in the writ petition. Section 64 of the Code of Civil Procedure, 1908 ('the CPC' for short) reads as under: “64. Private alienation of property after attachment to be void.- (1) Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to he judgment-debtor of any deb, dividend or other moneys contrary to the such attachment, shall be void as against all claims enforceable under the attachment.

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[(2) Nothing in this section shall apply to any private transfer or delivery of the property attached or of any interest therein, made in pursuance of any contract for such transfer or delivery entered into and registered before the attachment.] Explanation- For the purpose of this section, claims enforceable under an attachment include claims for the rateable distribution of assets.(emphasis supplied).

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C.A.No.499/2007 in C.S. No.18/2004 in

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C.P.No.3/1999 & C.A.No.196/2017 in

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C.S.No.18/2004 in C.P.No.3 of 1999

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Similarly Order XXXVIII Rule 10 CPC reads thus:

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“10. Attachment before judgment not to affect rights or strangers, nor bar decree-holder from applying for saleAttachment before judgment shall not affect the rights, existing prior to the attachment, of persons not 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.”(emphasis supplied)

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7. It was observed in Housing Development Finance Corporation Vs. Sub Registry Officer [2011 (3) KLJ 561] arising under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 as follows: “This court finds that the rights and liberties conferred on the creditor/bank by virtue of mortgage created in the year 2001 and the right to proceed under the relevant provisions of the SARFAESI Act cannot be defeated because of the subsequent attachments ordered by the civil courts in 2007-2009. As such, the sale conducted on 24.11.2010, leading to issuance of Ext.P4 sale certificate, is complete in all respects and the title stands conveyed to the second petitioner”. A Division Bench of this court after adverting to the provisions of the Kerala Revenue Recovery Act, 1968 and the CPC observed in Rajalekshmi Amma Vs. Basheer [2013 (4) KLT 443] as follows: “When a mortgage is created in terms of the provisions of the T.P. Act, it amounts to an encumbrance. An order of attachment before judgment creates no charge. x x x x

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C.A.No.499/2007 in C.S. No.18/2004 in C.P.No.3/1999 & C.A.No.196/2017 in C.S.No.18/2004 in C.P.No.3 of 1999

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x x x x x x x x x x x xx x x x x x x x x x x x x x x x x x xxx The quality of the mortgage as an encumbrance does not get watered down to be subservient to by an order of attachment by the civil court under Code of Civil Procedure. That order of attachment does not override or deserves to be preferred over the rights of a mortgagee or the effect of the mortgage as an encumbrance”.

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9. The preponderance of judicial opinion leads to the irresistible conclusion that the sale of the mortgaged property in favour of the petitioner under Ext. P5 sale certificate under the Act is free of all encumbrances. The attachments effected subsequent to the mortgage created in favour of the bank do not affect the title and ownership of the petitioner over the subject property. Such attachments have no impact on the sale conducted under the Act and the same ceases to have any effect or fall to the ground the moment the sale is confirmed in favour of the petitioner. The declaration so sought by the petitioner is therefore granted and I further direct the Sub Registrar and the Village Officer to efface the attachments effected subsequent to the mortgage from the relevant records. Otherwise those attachments would remain as a permanent taboo prejudicially affecting the marketability and title to the property even though they ceased to have any legal efficacy. The needful in relation to the property bought by the petitioner shall be done within a period of two months from the date of receipt of a copy of this judgment. The Writ Petition is allowed. No costs.”

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10. In the instant case, it is beyond any

¶117

C.A.No.499/2007 in C.S. No.18/2004 in C.P.No.3/1999 & C.A.No.196/2017 in C.S.No.18/2004 in C.P.No.3 of 1999

¶118

factual controversy that the mortgage in question was created in favour of the Bank of India on 31-3-

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1994 pursuant to which the property was purchased in sale proceedings by the applicant. It is that mortgaged property, which was purchased in sale proceedings conducted under the above said Act by the applicant. It is also not beyond dispute that the attachment order was issued only on 28.12.2002 in favour of R2 by the Civil Court concerned in the Original Suit, as against the above said property. It is also beyond dispute that the sale of the property has been confirmed in favour of the applicant in accordance with the provisions contained in the Recovery of Debts due to Banks and Financial Institutions Act. Hence, it is only to be ordered and declared that the attachment order in question has no impact on the sale conducted in favour of the applicant under the above said Act and the attachment orders ceases to have any effect and would stand fallen to the ground the moment the sale

¶120

C.A.No.499/2007 in C.S. No.18/2004 in C.P.No.3/1999 & C.A.No.196/2017 in C.S.No.18/2004 in C.P.No.3 of 1999

¶121

was confirmed in favour of the applicant, in the light of the legal principles laid down in the

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aforecited decisions.

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11. Sub Section 5 of Section 89 of the

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Registration Act, 1908 provides as follows:

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“89. Copies of certain orders, certificates and instruments to be sent to registering officers and filed.- (1) xx xx

(2) xx xx xx

(3) xx xx xx

(4) xx xx xx

(5) Every Court passing-

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(a) any decree or order creating, declaring, transferring, limiting or extinguishing any right, title or interest to or in immovable property in favour of or of any person, or

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(b) an order for the attachment of immovable property or for the release of any immovable property from attachment,

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shall send a copy of such decree or order together with a memorandum describing the property, as far as may be practicable in the manner required by Section 21, to the Registering Officer within the local limits of whose jurisdiction the whole or any part of the immovable property

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C.A.No.499/2007 in C.S. No.18/2004 in C.P.No.3/1999 & C.A.No.196/2017 in C.S.No.18/2004 in C.P.No.3 of 1999

¶134

comprised in such decree or order is situate, and such officer shall file the copy and memorandum in his Book NO.1.”

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12. Going by sub Section 5 of Section 89, the registration officials like the 3^rd respondent Sub Registrar will have to make necessary entries as encumbrances in book No.1 as and when he receives authenticated copies of orders of Civil Court regarding attachment orders as one in question. So also, the 3^rd respondent is obliged to make consequential entries in Book No.1 as soon as he receives orders lifting the attachment or orders altering the effect of such attachment orders issued by superior courts. Accordingly, it is ordered that the 3^rd respondent Sub Registrar will pass necessary additional entries in Book No.1 effacing the attachment order in relation to this case as encumbrance in respect of the property in question and it may be noted that such effacement has been so effaced in compliance with the directions issued by

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this Court in this order. Thereafter the 3^rd

¶137

C.A.No.499/2007 in C.S. No.18/2004 in C.P.No.3/1999 & C.A.No.196/2017 in C.S.No.18/2004 in C.P.No.3 of 1999

¶138

respondent Sub Registrar will issue fresh encumbrance certificate showing the effacement of the said attachment order in respect of the above said property, if proper application for issuance of such certificate is submitted by the applicant and after payment of the requisite fee in that regard if any. It is also ordered that the 4^th respondent Village Officer should also efface the above said attachment order shown as encumbrance in the Village records and shall issue necessary communications in that regard to the applicant. Necessary steps shall be taken by the 3^rd respondent SRO and the 4^th respondent Village Officer in compliance with the above said directions to ensure the effacement of the above said attachment orders as afore directed, within a period of ten days from the date of production of a certified copy of this order.

¶139

13. Consequently, it is ordered that there is no necessity for this Court to pass any orders for lifting the attachment in the light of the above

¶140

C.A.No.499/2007 in C.S. No.18/2004 in C.P.No.3/1999 & C.A.No.196/2017 in C.S.No.18/2004 in C.P.No.3 of 1999

¶141

said legal position as aforestated and in the light of the specific directions issued by this Court hereinabove. However, it is ordered that the Registry will ensure that the bank guarantee furnished by the petitioner in compliance with the order dated 3.1.2008 rendered by this Court in C.A.No.928/2007 shall be returned to the applicant without any further delay.

¶142

14. In view of the above said directions issued by this Court in C.A.No.499/2007, no further orders are required in C.A.No.196/2017.

¶143

With these observations and directions, the above Company Application will stand finally disposed of.

¶144

Sd/- ALEXANDER THOMAS, JUDGE.

¶145

acd

Vijayee Bhava Properties Ltd. v. M/S.Vaokundam Rubbers Company

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Vijayee Bhava Properties Ltd. v. M/S.Vaokundam Rubbers Company

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