Kerala High Court
Jose P.A vs Sub Registrar on 29 May, 2019
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 29TH DAY OF MAY 2019 / 8TH JYAISHTA, 1941
WP(C).No. 11138 of 2019
PETITIONERS:
JOSE P.A
AGED 66 YEARS, S/O. ANTONY P.R.,
RESIDING AT T C7/1295.A.9,
ARCHANA NAGAR, PONGUMMOODU,
TRIVANDRUM,
KERALA - 695 011
BY ADV. SRI.P.PAULOCHAN ANTONY
RESPONDENTS:
1 SUB REGISTRAR,
KUTTANELLUR SUB REGISTRAR OFFICE
COLLEGE ROAD, HILL GARDENS HOUSING COLONY,
KUTTANELLUR,
THRISSUR - 680 014
2 THE VILLAGE OFFICER
NADATHARA VILLAGE OFFICE,
ERAVIMANGALAM,
THRISSUR - 680 751
3 AUTHORIZED OFFICER
CATHOLIC SYRIAN BANK LTD,
ZONAL OFFICE, POST BOX NO.502,
CSB BHAVAN, COLLEGE VIEW,
W.P.(C) 11138/2019
-:2:-
ST. MARYS COLLEGE ROAD,
THRISSUR - 680 020
4 FEATHER TOUCH KURIES PRIVATE LTD
TMC XXII/826, 2ND FLOOR,
KRISHNA COMPLEX, BY-PASS JUNCTION,
NADATHARA P.O,
THRISSUR - 680 751,
REPRESENTED BY ITS CHAIRMAN
5 INVEST GOLD AND GENERAL FINANCE PRIVATE
LIMITED
VII/159, INVEST COMPLEX,
URAKAM. P.O,
THRISSUR - 680 562,
REPRESNTED BY ITS CHAIRMAN
6 GURUKRIPA KURIES PVT LTD
ROOM NO-V/51A(10),
RIGHTEN CHAMBERS, HERBERT ROAD,
OPPOSITE TOWN HALL, KUNNAMKULAM,
THRISSUR - 680 503,
REPRESENTED BY ITS CHAIRMAN
7 NEW MILLENIUM KURIES PVT LTD
1ST FLOOR, C. JANARDHANA SMARAK MANHIRAM,
BEHIND RAGAM THEATRE, MANNADUAR LANE, THRISSUR
- 680 001, REPRESENTED BY ITS CHAIRMAN
8 BHAGYARATNA KURIES INDIA PVT LTD
IX/401, MISSION QUARTERS JUNCTION,
THRISSUR - 680 001,
REPRESENTED BY ITS CHAIRMAN
9 MALEYAM KURIES PVT LTD
2ND FLOOR, S.H. CHURCH COMPLEX,
NADATHARA. P.O,
THRISSUR - 680 751,
REPRESENTED BY ITS CHAIRMAN
10 THRISSIVA KURIES AND LOANS PRIVATE LTD.
KAK BUILDING, ROOM NO.XXVI/1065/19,
RICE BAZAR,
THRISSUR - 680 001,
REPRESENTED BY ITS CHAIRMAN (DELETED FROM
PARTY ARRAY AND ADDITINAL RESPONDENT
W.P.(C) 11138/2019
-:3:-
IMPLEADED)
*10
THRISSIVA KURIES PRIVATE LTD.
CHEMBUKAVU VILLAGE
THERATTIL PUDUKKADAN AIPU BUILDING,
RICE BAZAR,
THRISSUR - 680 001,
REPRESENTED BY ITS CHAIRMAN
*(10TH RESPONDENT DELETED FROM THE PARTY ARRAY
AT THE RISK OF THE PETITIONER AS PER ORDER
DATED 11.4.2019 IN I.A. NO.1/2019 AND THE
RESPONDENT HEREIN IS IMPLEADED AS THE
ADDITIONAL 10TH RESPONDENT AS PER ORDER DATED
11.4.2019 IN I.A. NO.2 OF 2019)
BY ADV. SRI.ROBSON PAUL
SMT.REKHA C. NAIR-SR.GOVT. PLEADER
SRI. C.A JOY, SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
29.05.2019, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C) 11138/2019
-:4:-
JUDGMENT
The petitioner says that he purchased certain property in a sale conducted by the authorised officer of the Catholic Syrian Bank Ltd., Thrissur, under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as "the SARFAESI" for short). He says that he has deposited the entire sale consideration and that the bank has issued Ext.P6 sale certificate to him.
2. The petitioner's allegation in this writ petition is that, when he tried to register the sale certificate by presenting it before the first respondent, Sub Registrar, Thrissur, it was declined merely by saying that there are attachments reflected in the encumbrance certificate with respect to the property at the hands of respondents 4 to 10. The petitioner says that all these attachments, as is clear from Ext.P7, are much after the mortgage had been created in favour of the bank and one of them being after the sale. W.P.(C) 11138/2019 -:5:- He, therefore, prays that Ext.P6 sale certificate and the consequent sale deed to be presented before the first respondent, be directed to be registered in accordance with law.
3. Sri.C.A.Joy, learned standing counsel appearing for the respondent bank, affirms the submissions of the petitioner and adds that the mortgage was created in favour of his client as early as in the year 2007; while the attachments effected on the property at the instance of respondents 4 to 10 are much later. He, therefore, asserts that the bank has first charge over the property and they are entitled to bring it to sale, without hindrance from any of the other attaching parties. He also, thus prays that the first respondent be directed to register the sale certificate and the sale deed to be presented before him by the parties, in terms of law.
4. Even though notice has been served validly on respondents 4 to 10 from this Court, for some reason, they have chosen not to be present in person or to be represented through counsel; guiding me to the conclusion W.P.(C) 11138/2019 -:6:- that they concede to all the averments in the writ petition and they have nothing to offer in answer to the various allegations contained therein. I am, therefore, persuaded to dispose of this writ petition, even being able to hear them.
5. The learned Senior Government Pleader, Smt.Rekha C.Nair, appearing on behalf of the official respondent, submits that if attachments effected on the property, at the instance of respondents 4 to 10, are much after the mortgage, then certainly the bank is entitled to sell the property and the petitioner is entitled to purchase the same, without any subsisting encumbrance. She says, therefore, that when the petitioner presents the sale deed in terms of law before the said Registering Authority, he will consider the same and register it, as is required under the applicable statutory Rules and Regulations.
6. Taking note of the afore submissions, I order this writ petition, particularly because respondents 4 to 10 have chosen not to appear, directing the first respondent to register the sale certificate and the sale deed, to be produced before him by the petitioner, as per law, W.P.(C) 11138/2019 -:7:- notwithstanding the attachments on the said property, as are reflected in Ext.P7 encumbrance certificate. After the registration of the sale deed is completed, he shall also efface all the attachments from the records, so as to enable the petitioner to deal with the property without any issue in future.
7. Needless to say, if there are any amounts with the bank in surplus of what is due to them after the sale, the said amounts can be claimed by respondents 4 to 10 in terms of their orders of attachment. I, however, record the submissions of Sri.C.A.Joy, learned standing counsel appearing for the bank, that they have received only Rs.25,00,001/- as sale consideration, while the amounts due to them was over Rs.26,00,000/-
This writ petition is ordered accordingly.
Sd/-
DEVAN RAMACHANDRAN, JUDGE vps W.P.(C) 11138/2019 -:8:- APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE LOAN AGREEMENT DATED 24.08.2007 EXHIBIT P2 TRUE COPY OF THE POSSESSION NOTICE DATED 20.01.2018 EXHIBIT P3 TRUE COPY OF THE PROOF OF SERVICE OF POSSESSION NOTICE DATED 20.01.2018 EXHIBIT P4 TRUE COPY OF THE SALE NOTICE DATED 23.11.2018 EXHIBIT P5 TRUE COPY OF THE PAPER PUBLICATION EXHIBIT P6 TRUE COPY OF THE SALE CERTIFICATE DATED 01.02.2019 EXHIBIT P7 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE DATED 02.07.2018 ISSUED BY THE 1ST RESPONDENT EXHIBIT P8 TRUE COPY OF DRAFT SALE DEED DATED 20.02.2019 SUBMITTED BEFORE THE 1ST RESPONDENT RESPONDENT'S/S' EXHIBITS:
NIL