Allowed

M/S. Csb Bank Ltd. v. Mohankumar M

Kerala HC30 Mar 2023WP(C)/4432/2023

Case brief

AI extract

What is this about?

In a writ petition under Article 226 of the Constitution of India, the High Court directed a Sub Registrar to register a sale certificate issued under the SARFAESI Act without being affected by a later encumbrance attached by a civil court, holding that a prior mortgage takes precedence.

What did the court decide?

The fourth respondent (Sub Registrar) is directed to register the sale certificate Efface the details of encumbrance from the record

M/S. Csb Bank Ltd. Vs Mohankumar M — Cheque Dishonour | 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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THURSDAY, THE 30^TH DAY OF MARCH 2023 / 9TH CHAITHRA, 1945

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WP(C) NO. 4432 OF 2023

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PETITIONER/S:

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M/S. CSB BANK LTD

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FORMERLY KNOWN AS CATHOLIC SYRIAN BANK LTD., REGISTERED
OFFICE AT THRISSUR, WITH BRANCHES AT VARIOUS PLACES
INCLUDING AT CHITTUR, CHITTUR BRANCH, PALAKKAD, REP. BY
ITS PRINCIPAL OFFICER AND CHIEF MANAGER, ZONAL OFFICE
KOZHIKODE, PIN - 673006

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BY ADV C.A.JOY

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RESPONDENTS:

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1MOHANKUMAR M
AGED 51 YEARS
S/O BALAKRISHNAN NAIR, PROPRIETOR, RAJESWARI STORES AND
RESIDING AT MONUSRI, PATTARPALLAM KALAM, MUTHALAMADA
P.O., PALAKKAD, PIN - 678507

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2A.C. BABU
AGED 46 YEARS
S/O CHANDRAN, A.C. HOUSE, KATTUPADAM, MUTHALAMADA P.O,
CHITTUR TALUK, PULAKKAD, PIN - 678507

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3 MOHAMMED SALIM S/O KAMARUDEEN,AGED 35 YEARS, THOTTUMOKKU, VANDITHAVALAM, PALAKKAD, PIN - 678534

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4 THE SUB REGISTRAR

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SUB REGISTRAR OFFICE, CHITTUR, PALAKKAD DISTRICT,
PIN - 678101
5THE VILLAGE OFFICER
VANDITHAVALAM VILLAGE OFFICE, VANDITHAVALAM, CHITTUR,
PALAKKAD, PIN - 678534
BY ADVS.
SARATH M S M S
B.PREMNATH (E)(K/1350/1995)
SMT PREETHA KK, SR.GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
30.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WPC NO.4432 of 2023

J U D G M E N T

The petitioner is a banking company. In brought to sale, an item of property belonged to the first respondent under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act(hereinafter will be referred as SARFAESI Act for convenience) and issued Ext.P3 sale certificate dated 20.09.2022. The petitioner is unable to register the sale certificate in favour of the third respondent (auction purchaser) on account of the fact that there is an encumbrance noted in Ext.P4 encumbrance certificate. The said encumbrance is on account of an attachment obtained over the property in respect of a claim of the second respondent against the first respondent (borrower).

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The learned counsel appearing for the

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petitioner would submit that the issue is covered in favour of the petitioner. It is submitted that the mortgage in this case

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WPC NO.4432 of 2023

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was on 17.3.2015, while the attachment at the instance of the second respondent was on 23.01.2019. It is submitted that going by the decisions of the Division Bench of this Court in

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Secretary, Keechery Service Co-operative Bank Ltd. v. Sajitha Nizar alias Sajitha P.M. and others; 2020 (5) KHC 231 and that of a learned Single Judge of this Court in Madhan v. Sub.Registrar; 2014 (1) KLT 406 , the subsequent attachment has no effect on the proceedings initiated by the bank. It is also pointed out that the amount received by sale of the property is not even sufficient to meet the claim of the bank.

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Heard the learned Government Pleader and

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the learned counsel appearing for the second respondent also.

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The learned counsel appearing for the second respondent would refer to the counter affidavit filed and contends that the present writ petition is not maintainable as there is no demand of refusal justifying the issue of mandamus. It is submitted that, if the petitioner is aggrieved

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WPC NO.4432 of 2023

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in any manner by the order of attachment, the petitioner has to approach the competent civil court and cannot seek relief in proceedings under Article 226 of the Constitution of India. It is, however, not disputed that the order of attachment was only on 23.01.2019.

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Having heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for the official respondents and the learned counsel appearing for the second respondent, I am of the view that the petitioner is entitled to succeed. It is settled by the decisions of this Court referred to above that the attachment from a civil court has no bearing on the proceedings initiated by the bank under the provisions of the SARFAESI Act provided the mortgage is prior to the date of attachment. This has been the consistent view of this Court in the decisions referred to above. Therefore, I am of the view that the petitioner is entitled to the relief sought for.

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Accordingly, this writ petition is allowed and the fourth respondent is directed to register Ext.P3 sale

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WPC NO.4432 of 2023

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certificate without in any manner being affected by the encumbrance obtained by the second respondent and noted in Ext.P4 encumbrance certificate. The fourth respondent shall also efface the details of encumbrance from the record

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of the encumbrance maintained by him.

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Sd/-

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GOPINATH P., JUDGE

rkj

WPC NO.4432 of 2023

APPENDIX OF WP(C) 4432/2023

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PETITIONER EXHIBITS
Exhibit P1TRUE COPY OF THE MEMORANDUM OF DEPOSIT
OF TITLE DEED EXECUTED WITH RESPECT TO
THE 2ND ITEM OF PROPERTY DATED
17.03.2015
Exhibit P2TRUE COPY OF THE POSSESSION NOTICE DATED
13.06.2022 WITH RESPECT TO THE 2ND ITEM
OF PROPERTY
Exhibit P3TRUE COPY OF THE SALE CERTIFICATE DATED
20.09.2022 WITH RESPECT TO THE 2ND ITEM
OF PROPERTY
Exhibit P4TRUE COPY OF THE ENCUMBRANCE CERTIFICATE
DATED 29.09.2022

M/S. Csb Bank Ltd. v. Mohankumar M

Case brief

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M/S. Csb Bank Ltd. v. Mohankumar M

Case brief

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