Kerala High Court
Sundaram Home Finance Limited vs Sub Registrar on 21 March, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
WP(C) NO. 33848 OF 2023
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 21ST DAY OF MARCH 2024 / 1ST CHAITHRA, 1946
WP(C) NO. 33848 OF 2023
PETITIONER:
SUNDARAM HOME FINANCE LIMITED
SUNDARAM TOWER, 46, WHITES ROAD,
CHENNAI,PIN - 600 014,
REP. BY ITS AUTHORIZED OFFICER
ABU ROSHAN ANDREWS.
BY ADVS.
P.S. ANISHAD
LIMNA BHASKARAN
VISHNU R.
T.AJITH KUMAR
VISHAL PAVITHRAN
ARCHANA MITHRAN O.K.
RESPONDENTS:
1 SUB REGISTRAR
OFFICE OF THE SUB REGISTRAR, THIRUVALLA,
PATHANAMTHITTA DISTRICT, PIN - 689101.
2 VILLAGE OFFICER,
KAVIYOOR VILLAGE OFFICE,
CHANGANASSERY KAVIYOOR RD,
NEAR GOVT. AYURVEDA HOSPITAL, THIRUVALLA,
PATHANAMTHITTA DISTRICT, PIN - 689 582.
3 LOUYE SEBASTAIN,
S/O. NOT KNOWN TO THE PETITIONER,
AGED NOT KNOWN TO THE PETITIONER,
VALLYARA HOUSE, MADAPPALLY(PO),
KOTTAYAM DISTRICT, PIN - 686 546.
4 AJI GEORGE
S/O. GEORGE, AGED 49 YEARS,
ATTUNKAL HOUSE, YENDAYAR (PO),
KOOTTICKAL,
KOTTAYAM DISTRICT, PIN - 686 514.
WP(C) NO. 33848 OF 2023
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5 TESSY AJI
AGED 48 YEARS
W/O.AJI GEORGE , ATTUNKAL HOUSE,
YENDAYAR (PO), KOOTTICKAL,
KOTTAYAM DISTRICT, PIN - 686 514.
BY ADVS.
THOMAS ABRAHAM (NILACKAPPILLIL)
DEVY A.C
S.SANDEEP (S-3458)(K/000873/2009)
ARUN TOM PHILIP(K/1781/2020)
RUPESH RAVINDRAN(K/003592/2023)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 21.03.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) NO. 33848 OF 2023
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JUDGMENT
This writ petition is filed with following prayers:-
"(i) Issue a Writ of Mandamus directing the 1st respondent to lift the attachments made subsequent to the creation of Mortgage in the properties covered by document number No. 2583/2013 of Thiruvalla SRO.
(ii) Declare that the attachment made in properties covered by document No. 2583/2013 of Thiruvalla SRO is free from all encumbrances.
(iii) Issue such other order or direction as this Honourable Court deems fit considering the facts and circumstances of the case.
(iv) Direct the respondents to pay the cost of the proceedings.
(v) Petitioner also prays that this Hon'ble Court may be pleased to dispense with the English translation of the documents produced in the Vernacular Language".
[SIC]
2. The petitioner is the secured creditor in whose favour secured interest is created by way of mortgage by deposit of title deed, is the submission. The 4th respondent availed a loan from the petitioner and the 5th respondent is the co-borrower of the said loan. The 3rd respondent is the attachment holder of WP(C) NO. 33848 OF 2023 4 the secured property by subsequent transaction of the 3rd respondent. The facility of home loan was availed by the borrowers by creating security interest by way of mortgage by deposit of title deed No.2583/2013 of Thiruvalla SRO, with respect to the property having a total extent of 04.05 Ares of land including a building comprised in Re-Sy.No.488/13-24 and old Sy. No.138/2, Block No.14 situated in Kaviyoor Village, Thiruvalla Taluk in Pathanamthitta District. It is submitted that by execution of loan documents and by creating security interest, the borrowers had been disbursed with a home loan facility. Even though by virtue of the agreement, the borrowers had undertaken to repay the amount, they failed to do so. Resultantly, the account was classified as NPA. The SARFAESI Proceedings were initiated. The possession of the property was taken on 09.05.2018. As per the possession notice the charge against the property was Rs.43,43,061/ as on 09.05.2018. Ext.P2 is the possession notice. WP(C) NO. 33848 OF 2023 5
3. After the property was taken possession, in order to complete the proceedings, the petitioner procured the encumbrance certificate pertaining to the properties. At that stage, it was noted that there is encumbrance reflected in the property as an attachment effected over the mortgaged property by order in O.S.No.317/2012 in EP No.2/2022, EA No.2/2022 of the Sub Court, Thiruvalla on 07.03.2022. Ext.P3 is the encumbrance certificate. It is submitted that encumbrance noted as 04.05 Ares of land covered by title deed No.2583/2013 of Thiruvalla SRO was obtained attachment order from the Sub Court, Thiruvalla by the 3rd respondent. It is also submitted that the encumbrance as noted in Ext.P3 is subsequent to the mortgage, and hence it is unsustainable.
4. According to the petitioner, it is well settled that any encumbrance created subsequent to the creation of security interest will not make any adverse effect to the earlier mortgage. It is also submitted that the said attachment which are subservient to the WP(C) NO. 33848 OF 2023 6 priority interest created by prior mortgage can be effaced and erased without approaching the Court concerned invoking the powers under Article 226 of the Constitution of India. Hence, this writ petition is filed.
5. Heard the Counsel for the petitioner and the Counsel appearing for the respective respondents.
6. It is an admitted fact that the property was mortgaged with petitioner on 21.07.2014 and the attachment shown in the encumbrance certificate was on 07.03.2022 which is admittedly after 21.07.2014.
7. This Court in Phoenix Arc Private Limited Vs. Sub Registrar, Feroke, 2023 KHC Online 9452 , observed that the attachments effected subsequent to the creation of equitable mortgage has lost its efficacy and has to be obliterated from the records, and the same can be done by Sub Registrar by filing a certified copy of the judgment of the Court in his Book No.1.
8. In Travancore Devaswom Board Vs. Deputy Examiner, Local Fund Audit and Others WP(C) NO. 33848 OF 2023 7 2020(3) KHC 129, a Division Bench of this Hon'ble Court observed that the sale carried out either under the SARFAESI ACT or under the RDB Act takes precedence over the statutory charges due to the Government created under KVAT Act or under other State Enactments after the Amendment Act of 2016. This Court also observed that the priority in payment has been statutorily created in favour of a secured creditor over all other debts including taxes payable to the Central Government or State Government on registration of the security interest.
9. In the light of the above principles laid down by this Court, I think that the subsequent attachments is to be effaced by the officer concerned. Therefore, this writ petition is disposed of with following directions.
i The 1st respondent is directed to efface the attachment effected by the Sub Court, Thiruvalla in EA No.2/2022 in EP No.2/2022 in OS No.317/2012 by filing the WP(C) NO. 33848 OF 2023 8 certified copy of the judgment and register the sale certificate, if any, as and when presented on payment of the required stamp duty and registration fee, if the same is otherwise in order.
ii The petitioner shall produce the certified copy of the judgment before the 1st respondent for compliance.
Sd/-
P.V.KUNHIKRISHNAN JUDGE S.M.K. WP(C) NO. 33848 OF 2023 9 APPENDIX PETITIONER'S EXHIBITS Exhibit P1 THE TRUE COPY OF THE NOTICE UNDER SECTION 13(2) OF THE SARFEASI ACT DATED 01.12.2017 Exhibit P2 THE TRUE COPY OF THE POSSESSION NOTICE DATED 09.05.2018 Exhibit P3 THE TRUE COPY OF THE ENCUMBRANCE CERTIFICATE FOR THE PERIOD FROM 01.01.2013 TO 19.11.2022 OF THIRUVALLA SRO Exhibit P4 THE TRUE COPY OF THE NOTICE TO THE 4TH RESPONDENT DATED 10.10.2023 rd 3 RESPONDENT'S EXHIBITS Exhibit R 3 True Copies of the Judgment and decree dated 22.08.2012 in O.S No 317/2012 of Additional Sub Judge, Kottayam Exhibit R 3 (a) True Copy of the Execution Petition dated 10.12.2021 Exhibit R 3 (b) True Copy of the attachment petition filed before the Sub Court, Thiruvalla Exhibit R 3 (c) True Copy of the Order in E.A No 2/2022 in E.P No 2/2022 dated 04.03.2022 of Sub Court Thiruvalla