The High Court of Kerala directed a Sub Registrar to register a sale certificate in favor of a bonafide auction purchaser. The petitioner argued that an attachment order issued by a civil court later than the mortgage rendered the attachment ineffective.
Direction to 1st respondent Sub Registrar to effect registration of the sale certificate immediately.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
MONDAY, THE 9TH DAY OF JULY 2018 / 18TH ASHADHA, 1940
WP(C).No. 22823 of 2018
PETITIONER:
SHAHUL HAMEED, AGED 45 YEARS, S/O.KOCHUMUHAMMED, PUTHEN PURAYIL HOUSE, THALAYOLAPARAMBU P.O., VAIKKOM, KOTTAYAM DISTRICT.
BY ADVS.SRI.BINU GEORGE SMT.HEMALATHA
RESPONDENT(S):
1. SUB REGISTRAR, KOTTARAKKARA SUB REGISTRAR OFFICE, KOLLAM, PIN-691 506. 2. STATE OF KERALA, REPRESENTED BY SECRETARY TO REGISTRATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. 3. AUTHORIZED OFFICER, INDIAN BANK, THYCADU BRANCH, THIRUVANANTHAPURAM, PIN-695014.
R1 & R2 BY SENIOR GOVERNMENT PLEADER SRI.SAIGI JACOB PALATTY R3 BY SRI.S.EASWARAN, SC, INDIAN BANK
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
mbr/
WP(C).No. 22823 of 2018 (C)
APPENDIX
| PETITIONERS' ------------- |
EXHIBITS: --------- |
|
|---|---|---|
| EXHIBIT P1 | A TRUE | COPY OF SALE CERTIFICATE DATED 10.10.2011. |
| EXHIBIT P2 |
A TRUE DATED |
COPY OF ENCUMBRANCE CERTIFICATE 11.04.2012. |
| EXHIBIT P3 |
A TRUE DATED |
COPY OF ENCUMBRANCE CERTIFICATE 17.10.2015. |
| EXHIBIT P4 |
A TRUE THE AF KOLLAM |
COPY OF IMPLEADING PETITION ALONG WITH FIDAVIT IN OS NO.955/2011 OF SUB COURT, . |
| EXHIBIT P5 |
A TRUE PETITI |
COPY OF WRITTEN STATEMENT FILED BY THE ONER IN OS NO.955/2011 OF SUB COURT, KOLLAM. |
| EXHIBIT P6 |
A TRUE OS.NO. |
COPY OF JUDGMENT DATED 18.10.2014 IN 955/2011 OF SUB COURT, KOLLAM. |
RESPONDENTS' EXHIBITS: NIL ---------------------
/TRUE COPY/
P.S.TO JUDGE
mbr/ 09.07.2018.
ALEXANDER THOMAS, J. ======================== W.P.(C)No.22823 of 2018
=========================
Dated this the 09th day of July, 2018
JUDGMENT
It is averred that the petitioner is a bonafide auction purchaser of land and property, comprising Block No.22, in Re-survey No.220/4 of Kottarakara Village, Kottarakara Taluk, Kollam Revenue District for an extent of 01.62 Ares (4 cents), from the 3rd respondent-Authorized Officer, Indian Bank, Thycadu Branch, Thiruvananthapuram as per Sale Certificate dated 10.10.2011. The 3rd respondent-Authorised Officer had sold the abovesaid property on behalf of the Indian Bank, Thycadu Branch, Thiruvananthapuram in exercise of the powers conferred under Sec.13(12) read with rule 9 of the Security Interest (Enforcement) Rules, 2002, in proceedings under the Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, in favour of the petitioner. That immediately after the sale confirmation, the petitioner had given application for registration of the abovesaid property before the Principal Sub Registrar’s Office, Kottarakara for getting registration of the sale certificate. But that the 2nd respondent-Sub Registrar, SRO,
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Kottarakara has rejected the petitioner’s request and informed it that there is an attachment effected with the auction of the scheduled property by one Janamma.K on 13.12.2011 through Sub Court, Kollam in O.S.No.955/2011. The petitioner would place reliance on Exts.P-3 and P-5 Encumbrance Certificates to aver that at the time of auction sale, the scheduled property was made free from all encumbrances known to the secured creditor. On knowing the abovesaid facts, the petitioner had filed an impleading application in the abovesaid original suit O.S.No.955/2011 before the Sub Court, Kollam and Shahul Hameed was impleaded as additional 5th defendant in that suit and thereafter the plaintiff in the original suit had withdrawn the O.S No.955/2011 as borne out by Ext.P-6 judgment dated 18.10.2014 in that O.S rendered by the above sub court. It is pointed out that the scheduled property was originally mortgaged to the 3rd respondent-Bank by the mortgagee, on 29.08.2009 and that the attachment orders rendered in the abovesaid suit only on 13.12.2011 and that at the time of mortgage, the property was made free from all encumbrances. The petitioner states that he is a bonafide purchaser of the abovesaid property
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and that the 1st and 2nd respondents are duty bound to effect the registration of Ext.P-1 Sale Certificate in favour of the petitioner, without any delay. It is in light of the factual averments, the petitioner had filed the instant Writ Petition (Civil) with the following prayers :
the writ petitioner, Sri.Saigi Jacob Palatty, learned Sr.Government Pleader appearing for official respondents 1 and 2 and Sri.S.Easwaran, learned counsel appearing for R3 (Authorized Officer, Indian Bank). The petitioner would state that the impugned attachment order was rendered by the civil court concerned only on 13.12.2011 whereas the mortgage in respect of
W.P.(C)No.22823 of 2018
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the abovesaid property was effected by the 3rd respondent Bank on 29.08.2009 and therefore, going by the legal position well settled by this Court in a series of decision in Madhan v. Sub Registrar reported in 2014 (1) KLT 406 , the attachment loses its efficacy, as the mortgage is prior to the attachment etc. Further, it is stated that even as per the entries in Ext.P-2 Encumbrance Certificate, the attachment has been rendered in O.S.No.955/2011 on the file of the Sub Court, Kollam and that later as per Ext.P-6 judgment dated 18.10.2014, the said court had dismissed the said original suit as withdrawn and therefore, the attachment has no relevance or legal efficacy whatsoever. In the light of these indisputable aspects, this Court is of the considered view that the stand taken by the 1st respondent Sub Registrar that the property cannot be registered merely on account of the abovesaid attachment is bereft of any merit. In that view of the matter, it is ordered that the 1st respondent Sub Registrar, SRO, Kottarakara will take steps to ensure the registration of Ext.P-1 Sale Certificate, immediately on its presentation, if it is otherwise in order. The petitioner may present Ext.P-1 for registration
W.P.(C)No.22823 of 2018
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before the SRO, without any further delay with the certified copy of this judgment.
With these observations and directions, the above Writ Petition (Civil) will finally stand disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE
vgd/10.07.18
2 issues framed by the court
Whether a Sub Registrar is justified in refusing registration of a sale certificate due to an attachment order dated after the mortgage.
Whether the attachment loses efficacy as the mortgage pre-dated the attachment.
Colour shows how this judgement treated each authority
Madhan v. Sub RegistrarRelied on¶36
Madhan v. Sub Registrar reported in 2014 (1) KLT 406
Shahul Hameed
Sub Registrar, Kottarakkara Sub Registrar Office
State of Kerala, represented by Secretary to Registration Department
Authorized Officer, Indian Bank, Thycadu Branch
Alexander Thomas
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
