IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 7798 of 2010(Y)
1. SAJAD, S/O.SHAHUL HAMEED, AGED 42 YEARS,
... Petitioner
2. THE HOUSING DEVELOPMENT FINANCE
Vs
1. THE SUB REGISTRAR, SUB-REGISTRY OFFICE
... Respondent
2. THE VILLAGE OFFICER,
3. THE TAHSILDAR, TALUK OFFICE,
4. STATE OF KERALA, REPRESENTED BY THE
5. MR.SUDEVAKUMARAN NAIR,
6. MANOHARAN, `NISHA SADAN',
For Petitioner :SRI.K.K.CHANDRAN PILLAI
For Respondent : No Appearance
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :07/12/2010
O R D E R
ANTONY DOMINIC, J
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W.P.(C).No. 7798 OF 2010
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Dated this the 7th day of December, 2010
JUDGMENT
The 2nd petitioner, extended credit facility to late Suresh and
his wife K.Padmakumari Amma for the purchase of 4.60 Ares of
property in RS.No.133/24 in Block No.4 (old Sy.No.226/10) of
Pallichal Village in Neyyattinkara Taluk. The mortgage was
created during July 2007. Default was committed. As a result,
the 2nd respondent initiated proceedings under the Securitization
And Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 (SARFAESI ACT). Property was taken
over and was finally sold in auction, in which the 1st petitioner who
had offered Rs.12,40,000/- was the highest bidder. Accordingly,
the sale was confirmed in his favour and sale certificate was
issued and possession was also handed over to him. However,
when the sale certificate was presented for registration to the 1st
respondent along with an application for getting the property
mutated, that was refused to be accepted for the reason that
respondents 5 and 6 had obtained attachment over the
mortgaged property by filing Civil Suits before the Sub Court,
W.P.(C).No. 7798 OF 2010
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Neyyattinkara, which encumbrances are also shown in Ext.P5
Encumbrance Certificate. It is thereupon, this writ petition has
been filed, praying to direct the 1st respondent to register the sale
certificate of the property when presented for registration and to
effect mutation in the revenue records.
2. Although, notice was served on respondents 5 and 6,
there is no appearance on their behalf.
3. Evidently, the property mentioned above along with
the building therein was mortgaged to the 2nd petitioner bank in
July 2007. It was during the subsistence of the mortgage,
attachment was obtained by respondents 5 and 6, during 2008
and 2009. Respondents have not challenged the sale conducted
by the authorized officer and by any other process known to law.
If that be so, claim of respondents 5 and 6 can at best be for
surplus in the sale proceedings, which is also stated to be absent.
4. Irrespective of any such claim, as at present sale in
favour of the 1st petitioner has resulted in a sale certificate and if
such a certificate is presented before the 1st respondent, it is
liable to be registered. Therefore, the refusal of the 1st
respondent to register the sale certificate pertaining to the
W.P.(C).No. 7798 OF 2010
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property mentioned in Ext.P1 cannot be upheld and in that view
of the matter I dispose of this writ petition directing that on the
production of the sale certificate pertaining to the property
mentioned in Ext.P1, the same shall be accepted for registration
provided it is otherwise valid in all respects. Necessarily,
application if any made by the 1st petitioner for mutation will also
be dealt with in accordance with the provisions of the Transfer of
Registry Rules.
5. Petitioner to produce a copy of this judgment before
the 1st respondent for compliance.
ANTONY DOMINIC
JUDGE
dmb