HIGH COURT ON SARFAESI SALE AND ATTACHMENTS AFTER MORTGAGE
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.ASHOK BHUSHAN
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
FRIDAY,THE 24TH DAY OF JULY 2015/2ND SRAVANA, 1937
WA.No. 612 of 2015 ()
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AGAINST THE JUDGMENT IN WP(C) 23435/2014 DATED 13-10-2014
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APPELLANTS / WRIT PETITIONERS :
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1. ALI ASHARAF M.M., AGED 44 YEARS
S/O.MUSLIYAM VEETIL M.T. MOHAMMED
RESIDING AT HOUSE NO.31/413
KUNNAMKULAM MUNICIPALITY,ALATHOOR DESOM
P.O CHITTANJUR, ANJUR VILLAGE, THALAPPILLY TALUK
THRISSUR DISTRICT, PIN 680 523.
2. SIMIYA ALI ASHARAF, AGED 37 YEARS
W/O.ALI ASHARAF M.M., RESIDING AT HOUSE NO.31/413
KUNNAMKULAM MUNICIPALITY,ALATHOOR DESOM
P.O CHITTANJUR, ANJUR VILLAGE, THALAPPILLY TALUK
THRISSUR DISTRICT, PIN 680 523.
BY ADV. SRI.RAJIT
RESPONDENTS/RESPONDENTS :
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1. THE SUB REGISTRAR,
THRISSUR-680 001.
2. THE TAHSILDAR
TALUK OFFICE, THRISSUR-680 001.
3. THE VILLAGE OFFICER
CHEMBUKKAVU, THRISSUR-680 001.
4. THE SOUTH INDIAN BANK LTD.,
THRISSUR BAZAR BRANCH, SIB BUILDING
THRISSUR MUNICIPAL OFFICE ROAD
THRISSUR - 680 001
REPRESENTED BY THE MANAGER & REGIONAL OFFICE
ROUND SOUTH, THRISSUR - 680 001
REPRESENTED BY THE AUTHORIZED OFFICER.
...2/-
WA.No. 612 of 2015 () -2-
5. MRS. JULIE RAISON
W/O.M.D.RAISON, MUTTICHUKARAN HOUSE
OPPOSITE JUBILEE MISSION MEDICAL COLLEGE
MOOSEPET ROAD, EAST FORT, THRISSUR, PIN - 680 005.
6. M.D.RAISON
S/O.LATE M.K.DEVASSY, MANJALI HOUSE, GOSAYIKUNNU
KURIACHIRA P.O., THRISSUR - 680 006.
7. KERALA KSHEMAM UNIQUE KURIES (P) LTD
WARD 10, DOOR NO.34, EASTERN BAZAR
THRISSUR - 680 001.
8. SAKTHAN KURIES AND LOANS (P) LTD
SAKTHAN TOWERS, X/55/21, PALLIKULAM ROAD
P.B NO.219, THRISSUR - 680 001.
9. HI-WEALTH KURIES (P) LTD
THUSHARA 27/10-1, KARUNAKARAN NAMBIAR ROAD
ASWANI HOSPITAL JN., THRISSUR - 680 020.
10. TRICHUR MONARCH CHIT FUND LTD.,
ADAM BAZAR (RIZE BAZAR), THRISSUR - 680 001.
11. OLARI LITTLE FLOWER KURIES (P) LTD
LITTLE FLOWER CHURCH COMPLEX
OPPOSITE TO CHANDRAMATHI AMMA MEMORIAL HOSPITAL
OLARIKKARA, THRISSUR - 680 012.
12. KERALA KSHEMAM UNIQUE KURIES
WARD 10, DOOR NO.34, EASTERN BAZAR,
THRISSUR - 680 001.
R1 TO R3 BY GOVT. PLEADER SRI. P.I. DAVIS
R4 BY ADV. SRI.GEORGE VARGHESE, SC
R5 BY ADV. SRI.K.I.SAGEER
R7, R8 & R12 BY ADV. SRI.R.SREEHARI
R9 BY ADVS. SRI.NAGARAJ NARAYANAN
SRI.SAIJO HASSAN
SRI.BENOJ C AUGUSTIN
R11 BY ADVS. SRI.G.HARIHARAN
SRI.PRAVEEN H.
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24-07-2015, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Mn
ASHOK BHUSHAN, CJ
&
A.M.SHAFFIQUE, J.
* * * * * * * * * * * * *
W.A.No.612 of 2015
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Dated this the 24th day of July 2015
J U D G M E N T
Shaffique, J
This appeal is filed by the writ petitioner challenging the
judgment dated 13/10/2014 in W.P.C.No.23435/2014 by which
petitioners were directed to approach the Munsiff Court, Thrissur
for vacating the order of attachment in respect of the property
which the petitioner has purchased under the proceedings under
the Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act,2002 (hereinafter referred to
as 'the SARFAESI Act'). Writ petition was filed on account of
refusal on the part of the Village Officer to effect mutation of the
property purchased by the petitioner in an auction sale conducted
under the SARFAESI Act. The reason for not effecting mutation
was on account of the attachments that have been effected by
the Munsiff Court, Thrissur in separate suits. Petitioners also
obtained encumbrance certificate which reflected the attachment
orders issued by the Munsiff Court.
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2. The main contention urged by the petitioners was that
the attachments were subsequent to 08/07/2008, the date of
mortgage and hence the attachment will not invalidate the right
and title of the petitioners in the property and accordingly the
petitioners sought for the following reliefs:
a) Call for the records leading upto Ext.P5 and
issue a writ of Certiorari or any other appropriate Writ
Order or Direction quashing Ext.P5 issued by the 2nd
respondent to the extent that the same directs the
Petitioner to have all the attachments shown in Ext.P6 to
be effaced before effecting mutation in favour of the
petitioner.
b) Declare that the sale of mortgaged property
namely 10 cents (4 Are 05 Square Meters) of property
along with all rights and other improvements in
Sy.No.694/5 of Chembukkavu Village, Thrissur Taluk by the
4th respondent in favour of the petitioner as per Ext.P4 Sale
Certificate, is free of all encumbrances;
c) Declare that attachments effected subsequent
to the mortgage created on 08/07/2008 in favour of the 4th
respondent bank do not affect the title and ownership of
the petitioner over the subject property.
d) Issue a writ of mandamus or any other
appropriate writ, order or direction to respondents 1 to 3 to
remove the entries in their registers relating to
encumbrances over the subject property subsequent to the
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mortgage created on 08/07/2008 and to effect mutation of
the property in favour of the petitioners as expeditiously as
possible preferably within a period of maximum 2 months."
3. The learned Single Judge observed that any right
available to any creditor under the law will not be affected by
transfer of registry and therefore direction was issued to the
Village Officer to effect transfer of registry pursuant to Ext.P4 sale
certificate in favour of the petitioners within a period of three
weeks from the date of receipt of a copy of the judgment.
However, it was observed that the said direction is subject to any
decision of the competent Civil Court. It is further observed that
the petitioners shall move the Munsiff Court for lifting the
attachment.
4. Learned counsel for the appellants, impugning the
aforesaid judgment, submits that in the light of the judgment of
this Court in Madhan v. Sub Registrar [2014(1) KLT 406],
learned Single Judge ought to have issued a declaration in regard
to the right of the petitioners and also should have directed the
Sub Registrar and Village Officer to efface the attachments
effected subsequent to the mortgage from the relevant records.
W.A.No.612/2015 4
5. The learned Government Pleader, on instructions,
would submits that all the attachments effected by the Munsiff
Court, Thrissur in respect of the above property were after the
creation of mortgage on 08/07/2008. This fact is not disputed by
the learned counsel appearing for respondents 4 and 9.
6. Under such circumstances, we are of the view that the
case put forward by the petitioner squarely falls within the law
laid down by the learned Single Judge of this Court in Madhan
(supra) wherein paragraph 7 of the judgment held as under:
"The 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 under the Act 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 under
the Act and the same ceases to have any effect or fall to
the ground the moment the sale is confirmed in favour of
the petitioner. The declaration so sought by the petitioner
is therefore granted and I further direct the Sub Registrar
and the Village Officer to efface the attachments effected
subsequent to the mortgage from the relevant records.
Otherwise those attachments would remain as a
permanent taboo prejudicially affecting the marketability
W.A.No.612/2015 5
and title to the property even though they ceased to have
any legal efficacy. The needful in relation to the property
bought by the petitioner shall be done within a period of
two months from the date of receipt of a copy of this
judgment. The writ petition is allowed. No costs."
7. In the light of the aforesaid factual and legal issues, we
are of the view that the appellants are entitled for a similar order.
Accordingly, we declare that the attachments effected by the
Munsiff Court, Thrissur after the date of mortgage are invalid and
there will be a direction to the Sub Registrar and the Village
Officer to efface the attachments effected after 08/07/2008 in
their registers.
Writ appeal is allowed as above.
(sd/-)
(ASHOK BHUSHAN, CHIEF JUSTICE)
(sd/-)
(A.M.SHAFFIQUE, JUDGE)
jsr
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