Allowed

Navaskhan S v. the Sub Registrar, Thrikkakara

Kerala HC21 Mar 2023WP(C)/2412/2023

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a writ petition filed by an auction purchaser seeking registration of a sale certificate issued under the SARFAESI Act. The court held that attachments obtained after the mortgage date cannot hinder the bank's action or prevent the registration of the sale certificate.

What did the court decide?

The 1st respondent is directed to register the sale certificate and efface the attachment details from the encumbrance record.

Navaskhan S Vs the Sub Registrar, Thrikkakara — Banking and Recovery | Kerala HC (2023)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE GOPINATH P.

¶4

TUESDAY, THE 21^ST DAY OF MARCH 2023 / 30TH PHALGUNA, 1944

¶5

WP(C) NO. 2412 OF 2023

¶6

PETITIONER:

¶7

NAVASKHAN S AGED 37 YEARS S/O SULAIMAN SAIT, 2/659 N, 2/950, BARATH NAGAR, CHETTIMANDAPAM, KUMBAKONAM, THANJAVUR. TAMIL NADU, 612001, REPRESENTED BY HIS WIFE AND POWER HOLDER RESHMA BANU J, AGED 27 YEARS, 34/64, N R HOUSE, CHALIPARAMBU, NGO QUARTERS ROAD, THRIKKAKARA, ERNAKULAM, PIN - 682021 BY ADVS. P.T.THAJMINA ANTONY CHARLES DCRUZ SANJEEV KUMAR M.

¶8

RESPONDENTS:

¶9

1 THE SUB REGISTRAR, THRIKKAKARA SUB REGISTRAR OFFICE, THRIKKAKARA, KAKKANAD, ERNAKULAM, PIN - 682030 2 THE VILLAGE OFFICER, VAZHAKALA VILLAGE OFFICE, VAZHAKALA ERNAKULAM DISTRICT, PIN - 682121 3 STATE BANK OF INDIA ASSET RECOVERY MANAGEMENT BRANCH, R S BUILDING, M G ROAD, ERNAKULAM, REPRESENTED BY ITS CHIEF MANAGER SMT. LAKSHMI G, PIN - 682016 4 M/S GENERAL METALS MARKET ROAD, IRINJALAKUDA, REPRESENTED BY ITS MANAGING PARTNER C. C PAULY, AGED 51 YEARS, S/O LATE C. V CHACKO, CHUKKIRIYAN HOUSE, IRINJALAKUDA, , THRISSUR DISTRICT, PIN - 680021 5 M/S GENERAL METALS MARKET ROAD, IRINJALAKUDA, REPRESENTED BY ITS MANAGING PARTNER C. J JOY, AGED 66 YEARS, CHUKKIRIYAN HOUSE, MARKET, IRINJALAKUDA, THRISSUR DISTRICT, PIN – 680121

¶10

W.P (C) No.2412/2023

¶11

-2-

¶12

6 M/S BORN BUILDERS PVT LTD REPRESENTED BY ITS MANAGING DIRECTOR, KANDATHIL VARKEY SOMAN, AGED 53 YEARS, 2/362, DESIYA KAVALA, VAZHAKALA, THRIKKAKARA ROAD, ERNAKULAM, PIN - 682021

¶13

7 KANDATHIL VARKEY SOMAN AGED 53 YEARS, 2/362, DESIYA KAVALA, VAZHAKALA, THRIKKAKARA ROAD, ERNAKULAM, PIN - 682021

¶14

8 UMA SOMAN W/O KANDATHIL VARKEY SOMAN, 2/362, DESIYA KAVALA, VAZHAKALA, THRIKKAKARA ROAD, ERNAKULAM, PIN - 682021

¶15

BY ADVS. V.RAJENDRAN (PERUMBAVOOR) N.RAJESH(K/1717/1999) GOPAKUMAR P.(K/1116-C/2011)

¶16

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P (C) No.2412/2023

-3-

J U D G M E N T

The petitioner is the auction purchaser in respect of 2.02 Ares of land in ReSy No.348/3 in Block No.8 of Vazhakkala Village in a sale conducted by the 3^rd respondent bank under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (hereinafter referred to as the SARFAESI Act). The sale certificate is not being registered by the 1^st respondent on the ground that there are attachments obtained by respondents 4 and 5 against respondents 6, 7 and 8 (borrowers).

¶21

The learned counsel appearing for the petitioner would submit that the subsequent attachment obtained by respondents 4 and 5 cannot affect the mortgage and the sale certificate issued by the 3^rd respondent has to be registered by the 1^st respondent. She relies on the judgments of this court in Secretary, Keechery Service Co-operative Bank Ltd., v. Sajitha Nizar @ Sajitha; 2020 (6) KLT 68 (DB) and Madhan S. v. Sub Registrar, Kollam; 2014 (1) KLT 406 to contend that the matter is covered in her favour and it has been held that the attachments effected after the date of mortgage cannot affect the mortgage.

¶22

Heard the learned Government Pleader and the learned counsel for respondents 4 and 5 also. The learned counsel for respondents 4 and 5 does not dispute the fact that the attachment was effected after the date of mortgage.

¶23

Having regard to the facts and circumstances of the case, this writ petition is liable to be allowed. It is settled by the judgment of this court in Secretary, Keechery Service Co-operative Bank Ltd., (supra) that the attachments are obtained after the date of mortgage cannot have any bearing on the action taken by the bank under the provisions of the SARFAESI Act. Therefore, this

¶24

W.P (C) No.2412/2023

¶25

-4-

¶26

writ petition is allowed and the 1^st respondent is directed to register the sale certificate issued by the 3^rd respondent in favour of the petitioner without in any manner being affected by the attachment obtained by respondents 4 and 5 against respondents 6 to 8. The 1^st respondent shall also efface the details of such

¶27

attachment from the record of encumbrance maintained by him.

¶28

Sd/- GOPINATH P. JUDGE

AMG

W.P (C) No.2412/2023

-5-

APPENDIX OF WP(C) 2412/2023

¶33

PETITIONER EXHIBITS

¶34

ExhibitP1 THE TRUE COPY OF THE POWER OF ATTORNEY EXECUTED BY THE PETITIONER DATED 27.12.2022

¶35

ExhibitP2 THE TRUE COPY OF SAID SALE CERTIFICATE ISSUED BY THE 3RD RESPONDENT DATED 17.12.2022 ExhibitP3 . THE TRUE COPY OF ENCUMBRANCE CERTIFICATE NO.197/2023 DATED 06.01.2023

Navaskhan S v. the Sub Registrar, Thrikkakara

Case brief

What is this about?

What did the court decide?

Navaskhan S v. the Sub Registrar, Thrikkakara

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ksr Alankar Hotels and Resorts (P) Ltd. Vs the Deputy Director General

M.S. Anil Vs State Co-Operative Election Commission (Scec)

Ravichandran R. Vs .the Secretary Chalakudy Town Co. –Operative Bank

Sasi.C. Vs Kattakada Primary Co-Operative Agricultural and Rural Development Bank

Sisildas Vs Kattakkada Primary Co-Operative Agricultural & Rural Development Bank Ltd.

Ratheesh A.D Vs Irinjalakuda Co-Operative Agricultural and Rural Development Bank Ltd. No.R. 312