Allowed

State Bank of India v. the Sub Registrar, Adoor

Kerala HC22 Mar 2023WP(C)/1967/2023

Case brief

AI extract

What is this about?

The Court allowed a writ petition filed by a bank challenging the Sub Registrar's refusal to register a Sale Certificate. Relying on precedent, the Court held that a subsequent attachment does not affect a prior mortgage, granting permission to register the certificate and quashing the refusal order.

What did the court decide?

Ext.P6 quashed; 1st respondent directed to register Ext.P5 Sale Certificate and efface encumbrance record.

State Bank of India Vs the Sub Registrar… — Contract and Commercial Disputes | Kerala HC (2023)

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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 GOPINATH P.

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WEDNESDAY, THE 22^ND DAY OF MARCH 2023 / 1ST CHAITHRA, 1945

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WP(C) NO. 1967 OF 2023

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PETITIONER/S:

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STATE BANK OF INDIA

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REPRESENTED BY ITS CHIEF MANAGER, STRESSED ASSETS RECOVERY BRANCH (S.A.R.B), LMS COMPOUND, OPPOSITE MUSEUM WEST GAGE, VIKAS BHAVAN (P.O), THIRUVANANTHAPURAM., PIN - 695033

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BY ADV JAGAN ABRAHAM M.GEORGE

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RESPONDENT/S:

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1 THE SUB REGISTRAR, ADOOR ADOOR (P.O), PATHANAMTHITTA DISTRICT., PIN - 691523

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2 A.ARUN,S/O. ANIRUDHAN, PROPRIETOR, M/S. THADATHIL RUBBERS, THADATHIL VEEDU, ADOOR, MELOODU (P.O), PATHANAMTHITTA DISTRICT., PIN - 691523

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3 BANK OF INDIA REPRESENTED BY ITS MANAGER, 1ST FLOOR, KEERIKKAL COMPLEX, NEAR PARTHASARATHY TEMPLE, ADOOR (P.O), PATHANAMTHITTA DISTRICT., PIN - 691523

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SRI.K.M. ANEESH – FOR RESPONDENT.

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SRI.T. JAYAN – GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P.(C)No.1967/2023

JUDGMENT

The petitioner has approached this Court being aggrieved by the fact that the 1^st respondent has refused to register Ext.P5 Sale Certificate on the ground that there is an attachment over the property covered by the Sale Certificate at the instance of the 3^rd respondent bank.

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The learned counsel appearing for the petitioner submits that the mortgage in favour of the petitioner bank is on 31.3.2009 and the attachment over the property is on 15.5.2015. It is submitted that the law on the point is settled and the 1^st respondent cannot refuse to register the Sale Certificate as the attachment has no effect on the prior mortgage.

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The learned Government Pleader on instructions would submit that the mortgage was prior to the date of the attachment. The learned counsel appearing for the 3^rd respondent would contend firstly that the writ petition is not maintainable. He submits that after a Sale Certificate has been issued, the petitioner bank has no locus standi to file this writ petition in the matter of refusal by the Sub Registrar to register the Sale Certificate. It is submitted that, if at all the only person aggrieved is the auction purchaser and the petitioner bank cannot held to be a person aggrieved to enable it to approach this Court in filing a writ petition under Article 226 of the Constitution of India. It is also pointed out that the impugned communication from the Sub Registrar's Office refers to some other

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W.P.(C)No.1967/2023

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document and not to the document which according to the bank seeks to get registered.

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The learned counsel for the petitioner in reply would submit that when a Sale Certificate issued by the bank, the bank has a duty and responsibility to ensure that the said Sale Certificate is registered in favour of the auction purchaser. It is submitted that the discrepancy regarding the description of the document in Exts.P6 can only be a typographical error with respect to the number of the Sale Certificate and the description of the property shows that it was Ext.P5 Sale Certificate that is sought to be registered.

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Having heard the learned counsel for the petitioner, the learned Government Pleader appearing for the official respondents and the learned Standing Counsel appearing for the 3^rd respondent, I am of the opinion that the petitioner is entitled to succeed. It is settled by the decisions of this Court in Secretary, Keechery Service Cooperative Bank Ltd. v. Sajitha Nizar & Ors; 2020 (5) KHC 231 and Madhan S. v. Sub Registrar, Kollam [2014 (1) KLT 406] that an attachment obtained from the civil Court subsequent to the date of the mortgage cannot affect the mortgage and the petitioner is entitled to bring the property to sale de-hors such attachment. The objection regarding maintainability cannot be accepted on account of the fact that the petitioner had executed the Sale Certificate and therefore, any issue regarding its non-registration is also a matter affecting

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W.P.(C)No.1967/2023

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the petitioner. The discrepancy mentioned in Ext.P5 can only be genuine mistake and should not be treated as giving a right to the 3^rd respondent bank to contend that the communication is in respect of some other property.

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The writ petition is, therefore, allowed. Ext.P6 is quashed and the 1^st respondent is directed to register Ext.P5 Sale Certificate without being in any manner affected by the attachment obtained by the 3^rd respondent. The 1^st respondent shall also efface the record of any encumbrance obtained at the instance of the 3^rd respondent in the record of encumbrance maintained by him.

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Sd/-

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GOPINATH P. JUDGE

acd

W.P.(C)No.1967/2023

PETITIONER EXHIBITS

Exhibit-P1	TRUE COPY OF MEMORANDUM OF DEPOSIT OF TITLE DEED DATED 31-3-2009 WHICH WAS EXECUTED BY THE 2ND RESPONDENT.
Exhibit-P2	TRUE COPY OF THE DEMAND NOTICE DATED 26-5- 2015 ISSUED BY THE STATE BANK OF TRAVANCORE TO THE 2ND RESPONDENT AND THE GUARANTORS.
Exhibit-P3	TRUE COPY OF THE POSSESSION NOTICE DATED 15- 1-2016 ISSUED BY THE AUTHORIZED OFFICER, STATE BANK OF TRAVANCORE TO THE BORROWER.
Exhibit-P4	TRUE COPY OF THE SALE NOTICE DATED 31-12-2021 ISSUED BY THE AUTHORIZED OFFICER OF THE STATE BANK OF INDIA.
Exhibit-P5	TRUE COPY OF THE SALE CERTIFICATE DATED 6-8- 2022 ISSUED BY THE AUTHORIZED OFFICER, STATE BANK OF INDIA TO THE AUCTION PURCHASER.
Exhibit-P6	TRUE COPY OF THE ORDER DATED 29-9-2022 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER DENIED REGISTRATION OF SALE.
Exhibit-P7	TRUE COPY OF THE ENCUMBRANCE CERTIFICATE DATED 12-8-2021 ISSUED BY THE 1ST RESPONDENT.

State Bank of India v. the Sub Registrar, Adoor

Case brief

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State Bank of India v. the Sub Registrar, Adoor

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