Ali Asharaf M.M. Vs. Sub Registrar, Thrissur - Court Judgment

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,THE24H DAY OF JULY20152ND SRAVANA, 1937 WA.No. 612 of 2015 () -------------------------- AGAINST THE JUDGMENT

IN WP(C) 23435/2014 DATED1310-2014 --------------- APPELLANTS / WRIT PETITIONERS : ------------------------------------------------------ 1. ALI ASHARAF M.M., AGED44YEARS 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, PIN680523.

2. SIMIYA ALI ASHARAF, AGED37YEARS 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, PIN680523. BY ADV. SRI.RAJIT RESPONDENTS/RESPONDENTS : ------------------------------------------------- 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 WARD10 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 THUSHARA2710-1, 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 WARD10 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 ON2407-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ASHOK BHUSHAN, CJ & A.M.SHAFFIQUE, J.

* * * * * * * * * * * * * W.A.No.612 of 2015 ---------------------------------------- Dated this the 24th day of July 2015

JUDGMENT

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. W.A.No.612/2015 2 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 W.A.No.612/2015 3 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) KLT406, 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 W.A.No.612/2015 6 W.A.No.612/2015 7 W.A.No.612/2015 8