Disposed

Sabu Varghese v. the Sub Registrar

Kerala HC5 Feb 2019WP(C)/3392/2019

Case brief

AI extract

What is this about?

The Court held that attachment orders issued after a mortgage creation are void following a sale under the SARFAESI Act. It directed the petitioner to apply for deletion of said encumbrances via the Sub Registrar, who must efface them from records after verifying the mortgage date and issuing a fresh certificate. Writ petition disposed of.

What did the court decide?

Petitioner to apply to delete attachments from 1st and 2nd respondents; 1st respondent to efface encumbrances and issue fresh certificate after verified factual inquiry.

Sabu Varghese Vs the Sub Registrar — Property and Title | Kerala HC (2019)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

¶4

TUESDAY, THE 5TH DAY OF FEBRUARY 2019 / 16TH MAGHA, 1940 WP(C).No. 3392 of 2019

¶5

PETITIONER:

¶6

SABU VARGHESE, AGED 50 YEARS, C/O.SOSAMMA SABU, PUTHUKALATHIL KAYALPURAM, PULINKUNNU, KUTTANAD, ALAPPUZHA-688504.

¶7

BY ADV. SRI.S.SUNIL KUMAR (PALAKKAD)

¶8

RESPONDENTS:

¶9

1 THE SUB REGISTRAR, SUB REGISTRAR OFFICE, SREEMOOLANAGARAM, ERNAKULAM-683580.

¶10

2 THE VILLAGE OFFICER, VADAKKUMBAGAM VILLAGE OFFICE, ERNAKULAM-683501.

¶11

3 DEWAN HOUSING FINANCE

¶12

CORPORATION LIMITED, HAVING ITS REGISTERED OFFICE AT WARDEN HOUSE, 2ND FLOOR, SIR P.M.ROAD, MUMBAI-400001, HAVING ITS REGIONAL OFFICE AT 1ST FLOOR, KMM BUILDINGS, PALARIVATTOM, KOCHI682025, REPRESENTED BY ITS AUTHORIZED OFFICER.

¶13

4 BINOY, S/O.K CHANDRAN, KOCHITTY, NORTH PARAVUR, ERNAKULAM-683513.

¶14

5 INDUS IND BANK LIMITED, HOTEL PALACE TOWER, NORTH BUS STAND, THRISSUR680020, REPRESENTED BY ITS AUTHORISED OFFICER.

¶15

6 P J MATHAI, S/O.P M JOHNY, PUNNAKUZHIYIL HOUSE, PUTHUSSERY ROAD, TRIPPUNITHURA, ERNAKULAM- 682301.

¶16

7 EDAKKALATHOOR CHITTIES AND LOANS PVT LTD., PALLITHAZHAM SHOPPING COMPLEX, THRISSUR VILLAGE, THRISSUR-680002, REPRESENTED BY ITS CHAIRMAN.

¶17

SMT.PRIYA SHANAVAS, GOVT.PLEADER

¶18

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶19

ALEXANDER THOMAS, J.

¶20

W.P.(C)No.3392 of 2019

¶21

Dated this the 5^th day of February, 2019

¶22

J U D G M E N T

¶23

The prayers in the above Writ Petition (Civil) are as follows: “

¶24

1. To direct 1^st respondent to approve the Exhibit P7 Draft Sale Deed prepared by the petitioners and register the fair deed of the same in the name of petitioner.

¶25

2. To direct respondents No.1 and 2 to efface the attachments noted after the creation of Exhibit P1 mortgage.

¶26

3. To pass any other order as this Hon'ble Court deems fit. ”

¶27

2. Heard Sri.S.Sunil Kumar, learned counsel appearing

¶28

for the petitioner and Smt.Priya Shanavas, learned Government Pleader appearing for the respondents

¶29

The petitioner is aggrieved by the refusal on the part of the 1^st respondent Sub Registrar in approving and registering Ext.P-7 draft deed on the ground that registration on secured asset was not permissible without lifting the attachments endorsed in Ext.P-6 encumbrance certificate dated 29.8.2018 in respect of the subject property. It is stated that the borrower concerned had availed financial assistance from the 3^rd respondent financial institution after mortgaging his property with that institution on 6.8.2001 pursuant to Ext.P-1 loan

¶30

..3..

¶31

W.P.(C).No.3392/2019

¶32

agreement dated 6.8.2001. And when the borrower had defaulted the 3^rd respondent was constrained to initiate SARFAESI proceedings and by virtue of the powers conferred under Sec.13(2) r/w Sec.32 of the SARFAESI Act had conducted sale of the subject property on 13.6.2018 in respect of 4.30 ares of land in Re-Survey No.328/18 of Vadakkumbhagam Village, Aluva Taluk, Ernakulam Revenue District and it was sold to the petitioner as per Ext.P-5 sale certificate dated 13.6.2018 in accordance with the provisions contained in the SARFAESI Act. The petitioner had also prepared the draft sale deed and presented the same before the 1^st respondent for approval, who on verification had raised objection that any such registration can be considered only after lifting attachments endorsed in Ext.P-6 encumbrance certificate. Further it is stated that the mortgage of the subject property has been created by the borrower in favour of the 3^rd respondent financial institution as per Ext.P-1 loan agreement on 6.8.2001. The details of the attachment orders issued in favour of contesting respondents 4 to 7 which they have secured against the very same borrower as shown in Ext.P-6 encumbrance certificate are tabulated as follows:-

¶33

W.P.(C).No.3392/2019

¶34

..4..

¶35

Respondent No.	Date of Attachments	Serial Number in Exhibit P-6
Respondent No.4 Binoy	27.7.2006	2
Respondent No.7 Edakkalathoor Chitties and Loans Pvt. Ltd.	11.8.2006, 21.8.2006, 21.8.2006 & 9.6.2010	3, 4, 5 & 8
Respondent No.5 Indus Ind Bank Ltd.	23.12.2006 & 26.3.2012	6 & 9
Respondent No.6 P.J.Mathai	24.3.2008	7

¶36

It is specific case of the petitioner that all the impugned attachment orders noted as encumbrances in favour of contesting respondents 4 to 7 in Ext.P-6 encumbrance certificate have been rendered by the appropriate Civil Court/DRT concerned much after the date of mortgage of subject property in favour of the 3^rd respondent. It is by now well established by a series of rulings of this Court as in HDFC v. SRO (2011 (3) KLT 567), Madan v. SRO (2014 (1) KLT 406), etc that attachments effected subsequent to creation of mortgages will have to be effaced after the property is purchased by another in a sale conducted under the provisions of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 and the SARFAESI Act, etc and that where such attachment orders have been issued after the creation of

¶37

W.P.(C).No.3392/2019

¶38

..5..

¶39

mortgage then such attachment orders have no legal efficacy whatsoever and will stand fallen to the ground the moment sale is confirmed in favour of the purchaser under the abovesaid Acts, and that therefore the Sub Registrar and the Village Officer concerned are obliged to efface such attachments effected subsequent to mortgage for the relevant records as otherwise those attachments would remain as permanent taboo prejudicially affecting marketability and title of the property even though they have seized to have any legal efficacies.

¶40

Accordingly it is ordered and declared that if the impugned attachment orders in this case issued in favour of contesting respondents 4 to 7 have been rendered after the creation of mortgage of the subject property in favour of the 3^rd respondent then the said attachment orders noted as encumbrances in Ext.P-6 encumbrance certificate will have no legal efficacy whatsoever and would stand fallen to the ground the moment the same has been confirmed in favour of the purchaser. Accordingly it is ordered that the petitioner will file an appropriate application before the 1^st respondent Sub Registrar seeking deletion of impugned attachments and should also produce a copy

¶41

..6..

¶42

W.P.(C).No.3392/2019

¶43

of Ext.P-6 encumbrance certificate and also a certificate issued by the 3^rd respondent financial institution showing the details of Ext.P-1 loan agreement and also the exact date of creation of mortgage of subject property in favour of subject property, etc. Thereafter the petitioner should also array as a respondent in the said application, affected parties like respondents 4 to 7. Thereafter the 1^st respondent will issue notices to those affected parties who are the beneficiaries of the impugned attachment orders and then will hear the petitioner and the said parties and determine the limited factual issue as to whether the impugned attachment orders have been rendered after the date of creation of mortgage in the instant case.

¶44

If it is so found that the impugned attachment orders have been rendered after the date of creation of mortgage then the 1^st respondent will immediately take steps to make additional entries in Book No.1 in respect of subject property in terms of Sec.89(5) of the Registration Act, 1908 so as to efface and delete such attachments from the encumbrance records. Thereafter the petitioner may make application for issuance of fresh encumbrance certificate and may pay the necessary fee in that regard and

¶45

W.P.(C).No.3392/2019

¶46

..7..

¶47

thereupon the 1^st respondent will issue fresh encumbrance certificate after deletion of such encumbrances and attachments. Thereupon the petitioner may produce a copy of the said fresh encumbrance certificate after deletion of attachments and before the 2^nd respondent Village Officer who will then take steps to efface all such attachments from the relevant village/revenue records.

¶48

With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.

¶49

Sd/-

¶50

ALEXANDER THOMAS, JUDGE

MMG

W.P.(C).No.3392/2019

..8..

APPENDIX

PETITIONER'S EXHIBITS:

¶56

EXHIBIT P1 TRUE COPY OF THE LOAN AGREEMENT DATED 6.8.2001. EXHIBIT P2 TRUE COPY OF THE LETTER DATED 23.11.2016 ISSUED BY THE RESPONDENT NO.3 TO ADVOCATE COMMISSIONER. EXHIBIT P3 TRUE COPY OF THE SALE NOTICE PUBLISHED IN INDIAN EXPRESS DAILY DATED 12.4.2018. EXHIBIT P4 TRUE COPY OF THE SALE NOTICE PUBLISHED IN DEEPIKA DAILY DATED 12.4.2018. EXHIBIT P5 TRUE COPY OF THE SALE CERTIFICATE DATED 13.6.2018. EXHIBIT P6 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE DATED 29.8.2018 ISSUED BY THE 1ST RESPONDENT IN RESPECT OF THE SECURED ASSET. EXHIBIT P7 TRUE COPY OF THE DRAFT SALE DEED PREPARED BY THE PETITIONER.

Sabu Varghese v. the Sub Registrar

Case brief

What is this about?

What did the court decide?

Sabu Varghese v. the Sub Registrar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

V.Reghunathan, Vs the Thahasildar

Sindhu Chandran Vs the State of Kerala

Suju R Vs State of Kerala

Suharabi, Vs the District Collector

Joseph Thomas, Vs the Tahsildar

Siby Mathew @ Sibichan, Vs the State of Kerala