Premakumar Damodaran Pillai vs Sub Registrar And Ors

The petitioner, who is the owner in possession of property having an extent of 3.08 Ares comprised in Sy.No.2762/7/5/2 of Kavadiar Village,

together with building bearing TC No.3/678 obtained by way of Ext.P1 sale certificate bearing No.642/2020 of the Sub Registrar Office, Pattom,

dated 05.03.2020, issued under sub-rule (6) of Rule 9 of the Securities Interest (Enforcement) Rules, 2002 executed by M/s.Indiabulls Housing

Finance Limited, represented by its Authorised Officer, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of

mandamus commanding the 1st respondent Sub Registrar, Pattom to efface/delete all the attachment orders reflected in Ext.P3 encumbrance

certificate dated 02.11.2020 on the property covered under Ext.P1 sale certificate.

On 14.12.2020, when this writ petition came up for admission, the learned Government Pleader was directed to get instructions.

A statement has been filed by the 1st respondent Sub Registrar, opposing the reliefs sought for in this writ petition. In the statement, the 1st

respondent has placed reliance on the judgment of a learned Single Judge of this Court in Kuriachan Chacko v. State of Kerala [2012 (3) KLT 600],

wherein it was held that, as evident from Section 89 of the Registration Act, 1908 the Sub-Registrar on his own is not empowered either to pass an

order of attachment or to put an endorsement in the books or registers concerned. He has to place/file the copies of the orders in Book No.1, going by

the provisions of sub-sections (2), (4), (5) and (6) of Section 89, and based on which endorsement can be made. Therefore, the Act does not provide

for exercise of any power suo motu by the Sub-Registrar to make an entry in the relevant register and to carry out the same while issuing the

encumbrance certificate.

Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the respondents.

Ext.P1 sale certificate is one registered pursuant to the direction contained in Ext.P2 judgment of this Court dated 10.12.2018 in W.P.(C)No.16745

of 2018 filed by M/s.Indiabulls Housing Finance Limited. In that writ petition, the specific contention raised by the Secured Creditor was that the

attachments in the encumbrance certificate dated 16.08.2017 (Ext.P11 in that writ petition) were subsequent to the date of mortgage, i.e., 20.11.2012.

In Ext.P2 judgment, this Court directed the the 2nd respondent herein to consider the request of the Secured Creditor for registration of the sale

certificate issued in favor of the petitioner herein in terms of law and register the document, if all the attachments recorded in the relevant books as

well as in the encumbrance certificate, are subsequent to the date of mortgage as asserted by the petitioner therein through the declaration of

acknowledgment of deposit of title document dated 20.11.2012 (Ext. P2(b) in that writ petition). Paragraph 3 and also the operative portion of Ext.P2

judgment read thus;

“3. On a consideration of the afore and since I notice that the petitioner's assertion is that the attachment in Ext.P11 are all subsequent to the

mortgage executed by respondents 1 to 6 in their favor, and since the petitioner appears to have sold the property in question to the 9th respondent

invoking the powers under the SARFAESI Act, I see no reason why the 7th respondent-Sub Registrar should refuse to register the sale document in

favor of the 9th respondent, particularly because he has paid the entire sale consideration as early as in March 2018.

If, as stated by the petitioner, all the attachments are subsequent to the date of mortgage, as they say is evident from Ext.P2(b), then I see no reason

why the 7th respondent should not allow the registration of the sale certificate. If on the contrary, any of the entries in the Encumbrance Certificate or

in the books are found to be prior to the date of mortgage, then alone the registrar will require to enquire further, including by issuing notice to the

party who has obtained such an attachment; but every attachment that is subsequent to the date of mortgage would certainly be only subservient to

the said mortgage and to the first charge of the Financial Institution.

In the result, I order this writ petition directing the 7th respondent to consider the petitioner's request for registration of the Sale Certificate issued by

them in favor of the 9th respondent in terms of law and register the document, if all the attachments recorded in the relevant books as well as in the

Encumbrance Certificate, are subsequent to the date of mortgage as asserted by the petitioner through Ext. P2(b). To facilitate this, I direct the

petitioner to present the Sale Certificate and other attended papers for registration before the 7th respondent within a period of 2 weeks from the date

of receipt of a copy of this judgment and necessary action shall be taken by the 7th respondent, in terms of this judgment, without any further delay

thereafter.â€​

After the registration of Ext.P1 sale certificate, the petitioner approached the 1st respondent Sub Registrar with Ext.P4 request dated 30.11.2020 to

efface/delete all the attachments reflected in Ext.P3 encumbrance certificate on the immovable property covered by Ext.P1 sale certificate. Alleging

inaction on the part of the 1st respondent in effacing/deleting all the attachments reflected in Ext.P3 encumbrance certificate on the immovable

property covered by Ext.P1 sale certificate, the petitioner is before this Court in this writ petition.

In Madhan v. Sub Registrar [2014 (1) KLT 406] the question that came up for consideration before this Court was whether the attachments

effected subsequent to the creation of equitable mortgage will be effaced after the property is purchased by another in a sale conducted by the

Recovery Officer of the Debt Recovery Tribunal. This Court held that, preponderance of judicial opinion leads to the irresistible conclusion that the

sale of the mortgaged property in favour of the petitioner under Ext.P5 sale certificate is free of all encumbrances. The attachments effected

subsequent to the mortgage created in favour of the bank do not affect the title and ownership of the petitioner over the subject property. Such

attachments have no impact on the sale conducted by the Recovery Officer and the same ceases to have any effect or fall to the ground the moment

the sale is confirmed in favour of the petitioner. Therefore, this Court directed the Sub-Registrar and the Village Officer to efface the attachments

effected subsequent to the mortgage from the relevant records.

In Keechery Service Co-operative Bank Ltd. v. Sajitha Nizar [2020 (5) KHC 231] a Division Bench of this Court agreed with the declaration of

law in Madhan. Paragraphs 6 and 7 of that judgment read thus;

“6. The issue was again considered by a Division Bench of this Court in an unreported decision in Ali Asharaf M.M. & another v. Sub Registrar,

Thrissur [W.A.No.612 of 2015]. That was a case where the appellants/writ petitioners purchased property in question in an auction proceedings

conducted under the SARFAESI Act. The appellants - petitioners were constrained to approach this Court by filing W.P.(C)No.23435 of 2014, from

which the said appeal arose, on account of refusal on the part of the Village Officer to effect mutation of the property purchased by them in the

auction under the SARFAESI Act. The reason for not effecting mutation was an order of attachment effected by Munsiff Court, Thrissur in respect

of the same property. The learned Single Judge as per judgment dated 13.10.2014 in W.P. (C)No.23435/2014 directed the writ petitioners to approach

Munsiff Court, Thrissur for vacating the order of attachment in respect of the property purchased by them in the auction sale conducted under the

SARFAESI Act. The Division Bench took note of the indisputable and undisputed fact that the attachment of the property involved therein was

subsequent to the date of mortgage of the said property with the Bank whose Authorised Officer conducted the auction proceedings under the

SARFAESI Act. In the said circumstances, the Division Bench, in full agreement with the dictum laid down in Madhan's case (supra), declared that

the attachments effected by the Munsiff Court, Thrissur after the date of mortgage are invalid and consequently, directed the Sub Registrar and the

Village Officer, concerned to efface the attachments effected after 8.7.2008 that is, the date on which the mortgage of the property was created with

the Bank.

In the light of the aforesaid declaration of law by this Court the order of dismissal of the petition filed for lifting the attachment ordered under

Ext.R7(a) viz., Ext.R7(b) by the Federal Bank would pale into insignificance. We do not find any reason to disagree with the declaration of law in

Madhan's case (supra) which was virtually affirmed by the Division Bench in Ali Asharaf's case (supra). In the said circumstances and taking note of

the fact that the orders of attachment of the property in question were after the creation of equitable mortgage of the same with Federal Bank we do

not find any reason to interfere with the impugned judgment passed by the learned Single Judge following the dictum in Madhan's case (supra),

carrying the directions to effect mutation of the property as also to efface all encumbrance over the property effected after 27. 6.2014, the date on

which the property in question was mortgaged with Federal Bank.â€​

In the instant case, in Ext.P2 judgment, this Court directed the the 2nd respondent herein to consider the request of the Secured Creditor for

registration of the sale certificate issued in favor of the petitioner herein in terms of law and register the document, if all the attachments recorded in

the relevant books as well as in the encumbrance certificate, are subsequent to the date of mortgage as asserted through the declaration of

acknowledgment of deposit of title document dated 20.11.2012 (Ext. P2(b) in that writ petition). After the registration of Ext.P1 sale certificate, the

petitioner approached the 1st respondent Sub Registrar with Ext.P4 request dated 30.11.2020 to efface/delete all the attachments reflected in Ext.P3

encumbrance certificate on the immovable property covered by Ext.P1 sale certificate. Once Ext.P1 sale certificate is registered on a finding that the

attachments recorded in the relevant books as well as in the encumbrance certificate are subsequent to the date of mortgage, the 1st respondent Sub

Registrar and the 2nd respondent Village Officer have to efface/delete all the attachments recorded in the relevant books as well as in Ext.P3

encumbrance certificate on the immovable property covered by Ext.P1 sale certificate.

In the result, this writ petition is disposed of by directing the 1st respondent Sub Registrar and the 2nd respondent Village Officer to efface/delete all

the attachments recorded in the relevant books as well as in Ext.P3 encumbrance certificate on the immovable property covered by Ext.P1 sale

certificate, within a period of six weeks from the date of receipt of a certified copy of this judgment. No order as to costs.