Allowed

The Csb Bank Ltd., v. the Sub Registrar

Kerala HC23 Mar 2022WP(C)/5241/2022

Case brief

AI extract

What is this about?

Petitioner Bank sought to clear attachment entries in Encumbrance Certificate to register a sale of mortgaged property. Court applied precedent allowing bank's earlier mortgage to override subsequent attachmen

What did the court decide?

Directed Sub Registrar to efface attachment entries after 01.10.2014 from Encumbrance Certificate and register sale certificate. Liberty granted to apply provision for balance appropriation by attachi

The Csb Bank Ltd., Vs the Sub Registrar — 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 DEVAN RAMACHANDRAN

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WEDNESDAY, THE 23RD DAY OF MARCH 2022 / 2ND CHAITHRA, 1944

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WP(C) NO. 5241 OF 2022

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PETITIONER:

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THE CSB BANK LTD.,
(FORMERLY KNOWN AS CATHOLIC SYRIAN BANK LIMITED) PONKUNNAM
BRANCH, KOTTAYAM, KERALA-686506, REPRESENTED BY ITS
AUTHORISED OFFICER, KAVITHA RAMACHANDRAN, ASSET RECOVERY
BRANCH, ERNAKULAM.

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BY ADVS.
MADHU RADHAKRISHNAN
M.D.JOSEPH
NELSON JOSEPH
DEEPAK ASHOK KUMAR

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RESPONDENTS:

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1 THE SUB REGISTRAR, KANJIRAPPALLY, KOTTAYAM-686507.

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2 THE VILLAGE OFFICER, CHIRAKKADAVE, KOTTAYAM-686520S.

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3 M/S. NATIONAL FASHIONS, NATIONAL COMPLEX, K.K. ROAD, NH 220, PONKUNNAM -686506, THROUGH ITS MANAGING PARTNER RUBY JOYICE.

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4 M/S. NATIONAL JEWELLERS, NATIONAL COMPLEX, K.K. ROAD, NH 220, PONKUNNAM-686506, THROUGH ITS MANAGING PARTNER JOYICE E. JAMES.

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5 M/S. NATIONAL BANKERS, NATIONAL COMPLEX, K.K. ROAD, NH 220, PONKUNNAM-686506, THROUGH ITS MANAGING PARTNER JOYICE E. JAMES.

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W.P.(C) No. 5241 of 2022

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6 JOYICE E. JAMES, AGED 71 YEARS S/O. ELAMTHOTTATHIL CHACKO, ELAMTHOTTAM HOUSE, CHIRAKKADAVU (EAST) P.O., PONKUNNAM-686520.

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7RUBY JOYICE,
AGED 67 YEARS
W/O. JOYICE, ELAMTHOTTAM HOUSE, CHIRAKKADAVU (EAST)
P.O., PONKUNNAM-686520.

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8 LITTY JOBIN, AGED 40 YEARS W/O. JOBIN JOYICE, ELAMTHOTTAM HOUSE, CHIRAKKADAVU (EAST) P.O., PONKUNNAM-686520.

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9 JERRIN JOYICE, AGED 40 YEARS

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S/O. JOYICE E. JAMES, ELAMTHOTTAM HOUSE, CHIRAKKADAVU
(EAST) P.O., PONKUNNAM-686520.

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10 JULIN JOYICE, AGED 32 YEARS

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S/O. JOYICE E JAMES, ELAMTHOTTAM HOUSE, CHIRAKKADAVU
(EAST) P.O., PONKUNNAM-686520.

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11 JOBIN JOYICE, AGED 42 YEARS S/O. JOYICE E JAMES, ELAMTHOTTAM HOUSE, CHIRAKKADAVU (EAST) P.O., PONKUNNAM-686520.

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12 JIBY JERRIN, ELAMTHOTTAM HOUSE, CHIRAKKADAVU (EAST) P.O., PONKUNNAM-686520.

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13 GEORGE E. JAMES, AGE NOT KNOWN ELAMTHOTTAM HOUSE, CHIRAKKADAVU (EAST) P.O., PONKUNNAM-686520.

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14 THRESSIAMMA JAMES, AGE NOT KNOWN ELAMTHOTTAM HOUSE, CHIRAKKADAVU (EAST) P.O.,

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W.P.(C) No. 5241 of 2022

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PONKUNNAM-686520.

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15 CHERIAN KATTAKAYAM,AGE NOT KNOWN KATTAKAYAM HOUSE, SOUTH VAZHAKULAM P.O., ALUVA683105.

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16 JOSEPH THOMAS,AGE NOT KNOWN URUMBIL, PONKUNNAM, KOTTAYAM-686506.

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17 VALSA VASANTH, MULAMUTTIL NARAYANANI, P.O. PONKUNNAM, PIN-686506.

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BY ADVS.
Pranoy K. Kottaram Kottaram
C.R.SURESH KUMAR
SIVARAMAN P.L(K/1457/2020)

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SMT K K PREETHA, SR GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No. 5241 of 2022

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JUDGMENT

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Dated this the 23rd day of March, 2022 .

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The CSB Bank Ltd., which is a Banking Company registered under the provisions of the Companies Act, 1956, has approached this Court seeking a direction to the 1^st respondent to register the Sale Certificate with respect to the property involved in this case as and when it is presented for such purpose, after effacing the entries of attachment reflected in the Encumbrance Certificate, which have been brought on it by respondents 15 to 17.

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Shri.Madhu Radhakrishnan, learned counsel appearing for the petitioner – Bank, vehemently asserts that the law covering this field has been well settled by this Court in various judgments, including in

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Secretary, Keechery Service Co-operative

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W.P.(C) No. 5241 of 2022

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Bank Ltd.v. Sajitha Nizar Alias Sajitha P.M.

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[2020 (6) KLT 68], explaining that his client had obtained equitable mortgage over the property in question as early as on 01.10.2014, while the attaching creditors - namely respondents 15 to 17 - brought out orders of attachments over it only in the years 20192020. He submitted that, therefore, going by the well settled precedents, it is now incumbent upon the 1^st respondent to efface all orders of attachment reflected in the Encumbrance Certificate after 01.10.2014 and to thus enable his client to present the Sale Certificate with respect to the property in question for registration without delay. He thus prayed that the reliefs sought for in this writ petition be granted.

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I notice from the endorsements available on

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this file that the summons issued to respondents 3 to 14

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W.P.(C) No. 5241 of 2022

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have either not been accepted or have not been returned.

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However, since they are the partners of the

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borrower, as also the guarantors of the loan availed of from the Bank, I am of the firm view that this Court will be justified in disposing of this writ petition even in their absence, because the directions I propose herein will not cause them any legal prejudice.

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As far as respondents 15 to 17 are concerned, Sri.Pranoy K.Kottaram appears for the 15^th ; while Sri.C.R.Suresh Kumar appears for the 17^th . There is, however, no appearance on behalf of the 16^th respondent.

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Sri.Parnoy K.Kottaram and Sri.C.R.Suresh Kumar both took the contention that this writ petition is not maintainable and is premature because the

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W.P.(C) No. 5241 of 2022

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petitioner is yet to sell the property or to present the Sale Certificate for registration. Their specific argument was that their clients have obtained orders from the Competent Civil Courts against the property and therefore, that the prayer for effacement of the same from the Encumbrance Certificate is without basis and purpose. They argued that even if the petitioner – Bank proceeds against the property in question, it will have to be as per law and that any balance after satisfaction of their loan account will certainly be entitled to be appropriated by their clients as per the orders of attachment. They thus, prayed that this writ petition be dismissed, or it be ordered solely on the afore terms.

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Smt.K.K.Preetha – learned Senior Government Pleader appearing for the official respondents, submitted that 1^st respondent has been incapacitated from

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W.P.(C) No. 5241 of 2022

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acceding to any of the requests of the petitioner because all the entries in the Encumbrance Certificate are consequent to the orders from the competent Civil Courts. She, however, added that if this Court is inclined to hold otherwise, the 1^st respondent will adhere with any direction to be issued.

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When I consider the afore submissions, as rightly argued by Sri.Madhu Radhakrishnan, Sajitha Nizar Alias Sajitha P.M (supra) squarely applies to this case, since the petitioner Bank has obtained mortgage over the property as early as in the year 2014, while respondents 15 to 17 have, admittedly, brought out the orders of the attachment only in the years 2018 or 2020. Indubitably, therefore, such orders of attachment cannot have an over – riding effect over the equitable mortgage claimed by the petitioner; and pertinently, they do not

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W.P.(C) No. 5241 of 2022

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have any such case either.

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In the afore circumstances and being guided implicitly by Sajitha Nizar Alias Sajitha P.M (supra), I order this writ petition and direct the 1^st respondent to efface all the entries of attachment reflected in the Encumbrance Certificate with respect to the property which have been brought on it after 01.10.2014; consequentially, either reissuing the same or issuing a fresh one to the petitioner, without any avoidable delay, but not later than two weeks from the date of receipt of a copy of this judgment.

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As far as the property is concerned, the petitioner will certainly be at liberty to bring it to sale under the provisions of the applicable law, subject to the right of respondents 15 to 17 to proceed against any balance that may be available after adjustment of the loan

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W.P.(C) No. 5241 of 2022

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account; for which purpose all their contentions are left open.

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It also goes without saying that 1^st respondent will register the sale certificate, subject to all other statutory conditions being complied with; and l also leave liberty to the petitioner to approach the 2^nd respondent – Village Officer for transfer of Registry of the property in favour of the auction purchasers, which shall be acceded to without any avoidable delay thereafter.

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Sd/DEVAN RAMACHANDRAN JUDGE

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Raj/23.03.2022.

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W.P.(C) No. 5241 of 2022

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APPENDIX OF WP(C) 5241/2022

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PETITIONER EXHIBITS

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`Exhibit P1`	`A TRUE COPY OF THE SANCTION LETTER DATED` `29/9/2014.`
`Exhibit P2`	`A TRUE COPY OF THE SANCTION LETTER ISSUED` `TO THE 4TH RESPONDENT DATED 30/9/2014.`
`Exhibit P3`	`TRUE COPY OF THE LETTER OF CONFIRMATION` `OF DEPOSIT OF TITLE DEEDS NOS.1292/2007,` `702/2003, AND ITS PRIOR DEEDS BY THE 6TH` `& 7TH RESPONDENTS DATED 1/10/2014.`
`Exhibit P4`	`TRUE COPY OF THE LETTER OF CONFIRMATION` `OF DEPOSIT OF TITLE DEEDS NOS.4074/2007,` `1086/2004, 2909/2003, 3067/2006 &` `5178/2006 BY THE 6TH RESPONDENT DATED` `1/10/2014.`
`Exhibit P5`	`A TRUE COPY OF THE SANCTION LETTER DATED` `5/9/2016.`
`Exhibit P6`	`TRUE COPY OF THE LETTER OF CONFIRMATION` `ISSUED BY THE 6TH & 7TH RESPONDENTS.`
`Exhibit P7`	`TRUE COPY OF THE LETTER OF CONFIRMATION` `ISSUED BY THE 6TH RESPONDENT.`
`Exhibit P8`	`A TRUE COPY OF THE LETTER OF CONFIRMATION` `OF DEPOSIT OF TITLE DEEDS DATED` `29/09/2016 BY THE RESPONDENTS 13 & 14.`
`Exhibit P9`	`TRUE COPY OF THE ENCUMBRANCE CERTIFICATE` `NO.8661/2021.`
`Exhibit P10`	`TRUE COPY OF THE ENCUMBRANCE CERTIFICATE` `NO.8665/2021.`

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W.P.(C) No. 5241 of 2022

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`Exhibit P11`	`TRUE COPY OF THE` `NO.8668/2021.`	`ENCUMBRANCE CERTIFICATE`
`Exhibit P12`	`TRUE COPY OF THE` `NO.8671/2021.`	`ENCUMBRANCE CERTIFICATE`
`Exhibit P13`	`TRUE COPY OF THE` `NO.8664/2021.`	`ENCUMBRANCE CERTIFICATE`
`Exhibit P14`	`TRUE COPY OF THE` `NO.8662/2021.`	`ENCUMBRANCE CERTIFICATE`
`Exhibit P15`	`TRUE COPY OF THE` `15/01/2022.`	`SALE NOTICE DATED`
`Exhibit P16`	`THE TRUE COPY OF` `16745/2018 DATED` `THIS HON'BLE COUR`	`THE JUDGMENT IN WPC` `10/12/2018 PASSED BY` `T.`
`Exhibit P17`	`TRUE COPY OF THE` `HON'BLE COURT IN` `11/2/2019.`	`JUDGMENT PASSED BY THIS` `WPC NO.3956/2019 DATED`
`Exhibit P18`	`THE TRUE COPY OF` `NO.27827/2020 DAT` `THIS HON'BLE COUR`	`THE JUDGMENT IN WPC` `ED 21/1/2021 PASSED BY` `T.`

The Csb Bank Ltd., v. the Sub Registrar

Case brief

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The Csb Bank Ltd., v. the Sub Registrar

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