Allowed

Bank of Baroda, v. the Village Officer

Kerala HC18 Nov 2022WP(C)/18217/2022

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the writ petition filed by Bank of Baroda, holding that attachments created after a registered security interest under the SARFAESI Act do not survive. The Court directed the Sub Registrar to efface encumbrance entries and issue the required Certificate of Release and Registration to the Bank.

What did the court decide?

Directed the Sub Registrar to efface encumbrance entries in favour of respondents 6-8 and register the sale certificate; directed the Village Officer to issue the Release and Registration certificate.

Bank of Baroda, Vs the Village Officer — Banking and Recovery | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE T.R.RAVI

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FRIDAY, THE 18^TH DAY OF NOVEMBER 2022/27TH KARTHIKA, 1944

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WP(C) NO. 18217 OF 2022

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PETITIONER:

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BANK OF BARODA, MANNUTHY BRANCH, FIRST FLOOR, ATLAS BUILDING, MANNUTHY MARKET ROAD, MANNUTHY-680 651, REPRESENTED BY ITS CHIEF MANAGER AND AUTHORISED OFFICER SR. OM PRAKASH ANTHIA, JANARDANACHARY, S/O. JANARDANACHARY, AGED 47 YEARS,

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BY ADV SRI LEO GEORGE

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RESPONDENTS:

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1 THE VILLAGE OFFICER, MADAKKATHARA VILLAGE, THRISSUR, PIN 680 651

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2 THE SUB REGISTRAR, SUB REGISTRAR'S OFFICE, OLLUKARA, THRISSUR 680 655.

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3 PRANEESH K S, KUTTIKUTTUPARAMBIL HOUSE, PATTALAKUNNU, MANNUTHY P.O, THRISSUR 680 651.

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4 MINI V.M, W/O. PRANEESH K.S, KUTTIKUTTUPARAMBIL HOUSE, PATTALAKUNNU, MANNUTHY P.O, THRISSUR 680 651.

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5 JIJITH KUMAR K, S/O. K.M. KUMARAN, KAVUNGAL HOUSE, MANNUTHY P.O, THRISSUR 680 651.

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6 AFIFA ASHMI, C/O. CHERUVATHAKATH MUHAMMED HANIFA, ARIYOOR, THEKKUMURI DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN 679 101

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7 GOLD SHORE NIDHI LTD., FORT CITY COMPLEX, THRISSUR- PALKKAD ROAD, KEERANKULANGARA, THRISSUR- 680 005, REPRESENTED BY ITS MANAGING DIRECTOR.

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WP(C) NO.18217 OF 2022 2

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8 YOGAKSHEMAM LOANS LTD., SAVING ADMINISTRATION OFFICE, DOOR NO. 38/315, THIRD FLOOR, OTTAPATH TOWER, ASWANI JUNCTION, PATTURAIKAL, THRISSUR 680 020.

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BY SMT.DEEPA V., GOVT.PLEADR ADV SRI SANTHEEP ANKARATH

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO.18217 OF 2022 3

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T.R. RAVI, J.

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-------------------------------------------- W.P.(C)No.18217 of 2022

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Dated this the 18 th day of November, 2022

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JUDGMENT

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The prayers in the writ petition are; to declare that the petitioner Bank has priority in the matter of recovery of its dues from respondents 3 and 4 over attachments/encumbrances reflected in Ext.P7 encumbrance certificate, being a secured creditor having its security interest registered with the Central Registry as provided in Section 26E of the SARFAESI Act; to direct the 1 st respondent to issue certified copy of RoR to the petitioner as sought for in Ext.P8 after effacing/ignoring the encumbrance/attachments reflected in Ext.P7; to direct the 2 nd respondent to efface the encumbrance/attachments in favour of respondents 6 to 8 as reflected in Ext.P7 encumbrance certificate; to direct the 2 nd respondent to register Ext.P6 sale certificate ignoring/effacing the encumbrance/attachments in favour of respondents 6 to 8 reflected in Ext.P7 encumbrance certificate without insisting for RoR and for other consequential reliefs.

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WP(C) NO.18217 OF 2022 4

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2 . The counsel for the petitioner submits that, having regard to Section 26E of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, no attachment of immovable property subsequent to the creation of the security interest will survive. It is submitted that the mortgage was created on 12.7.2017 and 8.8.2017 and the attachments have been made only on 26.2.2019, 13.7.2020 and 14.12.2020. Reliance is placed on the decision in Madan v. Sub Registrar, Kollam reported in [2014 (1) KLT 406] .

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The contention of the counsel for the petitioner is justified. The writ petition is allowed. The 2 nd respondent is directed to efface the entries regarding encumbrance/attachments in favour of respondents 6 to 8 reflected in Ext.P7 encumbrance certificate, within one month from the date of receipt of a certified copy of this judgment. The 1 st respondent shall consider Ext.P8 application and issue certified copy of RoR to the petitioner, after effacing the entries regarding encumbrance/attachments in favour of respondents 6 to 8 reflected in Ext.P7 encumbrance certificate by the 2 nd respondent. The 2 nd respondent shall take necessary steps to register Ext.P6 sale certificate issued by the petitioner Bank in the name of the 5 th respondent ignoring the

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WP(C) NO.18217 OF 2022 5

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attachments. The above order is without prejudice to the rights, if any, of the respondents 6 to 8, regarding the balance amount,

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if any, available from the sale proceeds after meeting the debt to

the mortgagee Bank.

Sd/-

T.R.RAVI JUDGE

dsn

WP(C) NO.18217 OF 2022 6

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PETITIONER	APPENDIX OF WP(C) 18217/2022 EXHIBITS
EXT.P1	TRUE COPY OF SALE DEED NO. 1281/2017 OF OLLUKKARA SRO.
EXT.P2	TRUE COPY OF MEMORANDUM EVIDENCING DEPOSIT OF TITLE DEEDS EXECUTED BY THIRD RESPONDENT IN FAVOUR OF PETITIONER BANK WITH RESPECT TO THE PROPERTIES WHICH IS THE SUBJECT MATTER OF EXHIBITS P1 DATED 12.07.2017.
EXT.P3	TRUE COPY OF MEMORANDUM EVIDENCING EXTENSION OF MORTGAGE EXECUTED BY THIRD RESPONDENT IN FAVOUR OF PETITIONER BANK WITH RESPECT TO THE PROPERTIES WHICH IS THE SUBJECT MATTER OF EXT.P1 DATED 09.08.2017.
EXT.P4	TRUE COPY OF CERSAI SEARCH REPORT.
EXT.P5	TRUE COPY OF THE DEMAND NOTICE CAUSED BY THE AUTHORISED OFFICER OF THE PETITIONER BANK TO THE THIRD RESPONDENT DATED 19.04. 2021.
EXT.P5(a)	TRUE COPY OF THE DEMAND NOTICE CAUSED BY THE AUTHORISED OFFICER OF THE PETITIONER BANK TO THE FOURTH RESPONDENT DATED 19.04.2021.
EXT.P6	A TRUE COPY OF THE SALE CERTIFICATE ISSUED BY THE AUTHORISED OFFICER OF THE PETITIONER IN FAVOUR OF THE FIFTH RESPONDENT IN RESPECT OF THE PROPERTY COVERED BY EXT.P1 DATED 05.04.2022.
EXT.P7	TRUE COPY OF THE ENCUMBRANCE CERTIFICATE WITH RESPECT TO THE PROPERTY COVERED BY EXT.P1 SALE DEED DATED 03.03.2022.
EXT.P8	TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BANK BEFORE THE FIRST RESPONDENT DATED 20.04.2022.
EXT.P9	TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BANK BEFORE THE SECOND RESPONDENT DATED 20.04.2022.

Bank of Baroda, v. the Village Officer

Case brief

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Bank of Baroda, v. the Village Officer

Case brief

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