Kerala High Court
The South Indian Bank Limited ... vs Sub Registrar on 14 August, 2023
Author: P Gopinath
Bench: P Gopinath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
MONDAY, THE 14TH DAY OF AUGUST 2023 / 23RD SRAVANA, 1945
WP(C) NO. 22808 OF 2023
PETITIONER:
THE SOUTH INDIAN BANK LIMITED REPRESENTED BY THE CHIEF
MANAGER AUTHORIZED OFFICER
AGED 44 YEARS
DRT CELL 2ND FLOOR SIB BUILDING MARKET ROAD ERNAKULAM,
PIN - 682011
BY ADVS.MOHAN JACOB GEORGE
P.V.PARVATHY (P-41)
REENA THOMAS
NIGI GEORGE
RESPONDENTS:
1 SUB REGISTRAR
OFFICE OF THE SUB REGISTRAR CIVIL STATION BUILDING
PALAKKAD FORT, PALAKKAD, PIN - 678001
2 VILLAGE OFFICER
VILLAGE OFFICE THARAVATHUPADI, PIRAYIRI PALAKKAD,
PIN - 678004
3 JMJ FINANCE REPRESENTED BY ITS DIRECTOR SHAJI T D
DOOR NO.21 349 29 WEST FORT TOWER CIVIL LANE ROAD WEST
FORT JUNCTION POOTHOLE P O, THRISSUR, PIN - 682002
4 UMA MAHESHWARI S.,WIFE OF SELVARAJ P 45 566 PALLIPURAM
P O KALLEKKAD PALAKKAD, PIN - 678006
5 SELVARAJ P.,45 566 PALLIPURAM P O KALLEKKAD PALAKKAD,
PIN - 678006
6 HASEENA,DAUGHTER OF MUHAMMED PADUVANPADAM HOUSE
AKKIPPADAM PAYYANADAM PALAKKAD, PIN - 678583
SMT. DEEPA V. (G.P.)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
14.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)No.22808/2023 2
JUDGMENT
The petitioner has approached this Court being aggrieved by the fact that sale certificate issued by the petitioner under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the SARFAESI Act) is not being registered by the 1 st respondent on the ground that there is an attachment obtained at the instance of the 3 rd respondent from an Arbitrator acting under the provisions of the Arbitration and Conciliation Act in arbitration proceedings initiated by the 3rd respondent against respondents 4 and 5. Respondents 4 and 5 are the borrowers while the 6th respondent is the auction purchaser. Though notice was issued from this Court to respondents 3 to 6 and service is reported as 'complete', there is no representation for respondents 3 to 6.
2. The learned counsel for the petitioner submits that the mortgage in this case was on 23.11.2018 and the order of attachment issued by the arbitrator at the instance of the 3 rd respondent is only on 15.2.2021. It is submitted that the order of attachment by the arbitrator at the instance of the 3 rd respondent cannot have any effect W.P.(C)No.22808/2023 3 on the mortgage created in favour of the petitioner and also in respect of the sale conducted by the petitioner under the provisions of the SARFAESI Act.
3. The learned counsel appearing for the petitioner relies on the judgments of this court in Madhan S. v. Sub Registrar, Kollam; 2014 (1) KLT 406 and Secretary, Keechery Service Co-operative Bank Ltd., v. Sajitha Nizar @ Sajitha; 2020 (6) KLT 68 (DB) to contend that the matter is covered in favour of the petitioner and it has been held that the attachments effected after the date of mortgage cannot affect the mortgage, and consequently the sale under the provisions of the SARFAESI Act.
4. Having heard the learned counsel for the petitioner and the learned Government Pleader appearing for the official respondents, I am of the view that 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 writ petition is allowed and the 1st respondent is directed to register the sale certificate issued by the petitioner in favour of the 6 th respondent W.P.(C)No.22808/2023 4 without in any manner being affected by the attachment obtained by the 3rd respondent. The 1st respondent shall also efface the details of the encumbrance obtained by the 3rd respondent from the Arbitral Tribunal, Thrissur in AOP No.49/2021 from the record of encumbrance maintained by him.
Sd/-
GOPINATH P. JUDGE acd W.P.(C)No.22808/2023 5 APPENDIX OF WP(C) 22808/2023 PETITIONER EXHIBITS ExhibitP-1 TRUE COPY OF SECTION 13(2) NOTICE DATED 08.02.2019 Exhibit P-2 COPY OF THE EM LETTER DATED 26.11.2018 Exhibit P-3 TRUE COPY OF THE POSSESSION NOTICE DATED 31.08.2019 Exhibit P-4 COPY OF THE PAPER PUBLICATION DATED 04.09.2019 MADE IN THE ENGLISH DAILY "DECCAN CHRONICLE"
Exhibit P-4(a) COPY OF THE PAPER PUBLICATION MADE IN THE MALAYALAM DAILY "MANGALAM" DATED 04.09.2019 Exhibit P-5 COPY OF THE TENDER CUM AUCTION SALE NOTICE DATED 12.06.2023 ExhibitP-5(a) COPY OF THE PAPER PUBLICATION DATED 14.06.2023 MADE IN THE ENGLISH DAILY "BUSINESS LINE Exhibit P-5(b) COPY OF THE PAPER PUBLICATION DATED 14.06.2023 MADE IN THE MALAYALAM DAILY "DEEPIKA"
Exhibit P-6 COPY OF THE SALE CONFIRMATION LETTER DATED 05.07.2023 Exhibit P-7 COPY OF THE ENCUMBRANCE CERTIFICATE DATED 19.05.2023