Authority: High Court of Kerala at Ernakulam
Order Date: 12 January 2024
Case Overview
- Petitioner: Union Bank of India, Kothamangalam Branch, represented by Branch Manager Mathew Vargheese Tharakan.
- Respondents: 1) Sub Registrar Office, Kothamangalam; 2) Tahsildar, Kothamangalam; 3) Village Officer, Thrikkariyoor; 4) Aswathy Kaniyamkudi Pulluvazhi; 5) Chitra V.K. Karukappillikudy.
- The fourth and fifth respondents obtained a housing loan of Rs 7,00,000 on 2 December 2015, secured by an equitable mortgage over 2.83 ares in Survey No. 89/9, Thrikkariyoor Village (Ext.P1).
- Upon default, the bank invoked the SARFAESI Act, enforced the mortgage and sold the property; a sale certificate (Ext.P5) in favour of the fifth respondent was issued on 11 August 2023.
- An attachment order dated 6 April 2018, entered by the Family Court, Muvattupuzha (I.A.No.383 of 2018, O.S.No.215 of 2018), appears on the encumbrance certificate (Ext.P6). The bank argues that because the mortgage predates the attachment, the attachment must be effaced and the sale certificate registered.
- The bank relied on precedents: Madhan S. v. Sub Registrar (2014 KHC 249), Secretary, Keechery Service Co‑operative Bank Ltd. v. Sajitha Nizar (2020 KHC 231), and Ali Asharaf M.M. & Another v. Sub Registrar, Thrissur (2015), which hold that post‑mortgage attachments are void for SARFAESI sales. The court also cited Phoenic ARC Pvt. Ltd. v. Sub Registrar, Feroke (2023) regarding removal of such encumbrances.
Final Outcome
- The Court directs the Sub‑Registrar (first respondent) to efface the 2018 attachment recorded in Ext.P6 and to register the sale certificate Ext.P5, provided it is otherwise in order.
- The Court also directs the Village Officer (third respondent) to effect mutation of the property in the name of the fifth respondent upon registration.
- The directions are to be complied with within two months from receipt of the judgment.
- The writ petition is disposed of with these directions.
Topics: Property Registration; Banking Regulation