Kerala High Court
Sundaram Bnp Paribas Home Finance ... vs Sub Registrar on 14 January, 2019
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
MONDAY ,THE 14TH DAY OF JANUARY 2019 / 24TH POUSHA, 1940
WP(C).No. 1059 of 2019
PETITIONER/S:
SUNDARAM BNP PARIBAS HOME FINANCE LIMITED
SUNDARAM TOWER, 46, WHITES ROAD,
CHENNAI - 600 014, REP. BY ITS AUTHORIZED
OFFICER VISHNU.R.
BY ADV. SRI.T.RAJESH
RESPONDENT/S:
1 SUB REGISTRAR
SUB REGISTRAR OFFICE, ALUVA,
ERNAKULAM - 682 011.
2 EMMANUAL MOTORS SERVICE
ALUVA - 683 101.
3 MUTHOOT LEASING FINANCE LTD.
ALUVA - 683 101.
4 MUHAMMED PANANJIKUZHI VEETTIL
REP. M.T.SUBASH MULLASERIKUNNILATTIL,
PARAVOOR - 683 101.
5 FEDERAL BANK LTD.
EDAPPALLY ROAD, PLARIVATTOM - 682 025.
OTHER PRESENT:
SRI.SAIGI JACOB PALATTY,SR.GOVT.PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
14.01.2019, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C)No.1059/2019 2
ALEXANDER THOMAS, J.
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W.P.(C) No.1059 of 2019
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Dated this the 14th day of January, 2019
JUDGMENT
The prayers in the above Writ Petition (Civil) are as follows:
"i. Issue a Writ of Mandamus compelling the 1 st respondent to remove the attachments made subsequent to the creation of Mortgage in the properties having an extent of 9.92 Ares properties comprising in 142/6/3 (old Sy.no.404/13) of Aluva west village, Ernakulamk District.
ii. Declare that the attachment made in properties having an extent of 9.92 Ares properties comprising in 142/6/3 (old Sy. no.404/13) of Aluva west village Ernakulam District is free from all encumbrances."
2. Heard Sri.T. Rajesh, the learned counsel appearing for the petitioner and Sri. Saigi Jacob Palatty, the learned Government Pleader appearing for the official respondent No.1. In the nature of the orders proposed to be passed in this writ petition, notice to contesting respondents 2 to 5 will stand dispensed with.
3. The petitioner is stated to be a financial institution, who is a secured creditor in whose favour security interest was created as early as on 30.5.2009 and due to default in repayments of the 2nd respondent borrower concerned, the account has been classified as 'Non Performing Asset'. That the petitioner had completed all the procedural formalities and taken possession of W.P.(C)No.1059/2019 3 the secured assets and conducted sale of the secured asset and the same could not be transferred due to subsequent attachments effected by the civil court. The petitioner would state that, being the secured creditor in whose favour the security interest has been credited on 30.5.2009, which is much before the date on which the attachment orders have been rendered by the civil court concerned, the said attachment orders are liable to be effaced and deleted etc. It has now been held by this Court in series of cases as in Madhan v. Sub Registrar reported in 2014 (1) KLT 406 that the preponderance of judicial opinion leads to the irresistible conclusion that sale of the mortgaged property in favoaur of the purchaser under the sale certificate issued under the enactments like the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, SARFAESI Act etc., is free from all encumbrances and that attachments effected subsequent to the mortgage created in favour of the financial institution do not affect the title and ownership of the purchaser over the subject property. That such attachment will have no impact on the sale conducted under the said Act and the same ceases to have the effect or fall to the ground the moment the sale is confirmed in favour of the purchaser. Accordingly, this Court has directed that Sub Registrar concerned W.P.(C)No.1059/2019 4 and the Village Officer concerned should efface and delete the attachments effected subsequent to the mortgage from the relevant records as otherwise those attachments would remain as a permanent taboo prejudicially affecting the marketability and title of the property even though they ceased to have no legal efficacy.
4. Accordingly, it is ordered and declared that in case the mortgage of the subject property in question has been effected in favour of the petitioner prior to the impugned attachment orders, then such attachment orders will have no legal efficacy and would fall to the ground the moment the sale has been confirmed under the Act and the Sub Registrar and the Village Officer concerned are liable to delete and efface such attachments from the encumbrance records as otherwise it would affect the marketability of the title etc. It is submitted that the property of the 2nd respondent borrower obtained by them on basis of Ext.P1 title deed dated 12.06.2018 was mortgaged with the petitioner on 30.5.2009. It is seen that, not all the beneficiaries of the attachment orders issued by the civil court after effecting of the mortgage have been made as parties herein. Accordingly it is ordered that the petitioner may file an appropriate petition before the 1st respondent Sub Registrar giving the details of the subject property as well as the mortgage W.P.(C)No.1059/2019 5 and should produce the certificate showing the exact date of creation of the mortgage and should also array in the said petition as respondents the beneficiaries of the order of the impugned attachment, which has sought to be deleted. Thereafter, the 1 st respondent will issue notices of hearing to the petitioner and such beneficiaries of attachment orders and will determine the limited factual issue as to whether the impugned attachment orders have been rendered after the date of creation of the mortgage. If it is found that the impugned attachment orders have been rendered after the creation of the mortgage, then the 1 st respondent will immediately take steps to ensure that the additional entries are made in Book No.1 as envisaged in Section 89(5) of the Registration Act, 1908 and so as to delete and efface such attachments from the encumbrance records. The petitioner may, thereafter, apply for a fresh encumbrance certificate after deletion of such encumbrances and the 1 st respondent will issue a fresh encumbrance certificate, but subject to payment of fee/cost for issuance of such encumbrance certificate. The entire process in this regard should be duly completed by the 1st respondent Sub Registrar within six weeks from the date of submission of such representation of the petitioner along with certified copy of this W.P.(C)No.1059/2019 6 judgment.
5. After getting such fresh encumbrance certificate deleting the impugned attachments, the petitioner may produce a copy of the fresh encumbrance certificate before the competent Village Officer concerned, who will also thereafter delete and efface such attachment orders from the Village records.
With these observations and directions, the above writ petition (civil) will stand finally disposed of.
sd/-
ALEXANDER THOMAS, JUDGE acd W.P.(C)No.1059/2019 7 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE TITLE DOCUMENT NO.3533 OF 2016 OF ALUVA SRO.
EXHIBIT P2 THE TRUE COPY OF THE 13(2) NOTICE
DATED 14/7/2016 ISSUED BY THE
PETITIONER.
EXHIBIT P3 THE TRUE COPY OF THE POSSESSION NOTICE
ISSUED BY THE PETITIONER.
EXHIBIT P4 THE TRUE COPY OF THE ENCUMBRANCES
CERTIFICATE ISSUED BY THE 1ST
RESPONDENT IN REGARD TO THE SECURED
ASSET.
EXHIBIT P5 THE JUDGMENT OF THIS HON'BLE COURT IN
WP(C) 35979/2018 DATED 5/11/2018.
TRUE COPY
P.S. TO JUDGE.