IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 22ND AUGUST 2011 / 31ST SRAVANA 1933 WP(C).No. 15736 of 2011(N) -------------------------- PETITIONER(S): --------------- SAJI JOHN KARAPPARA VETTIYIL, MOUNT WARDHA,MUTTAMBALAM POST, KOTTAYAM. BY ADV. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY RESPONDENT(S): --------------- 1. THE SUB REGISTRAR, ETTUMANOOR. 2. THE STATE BANK OF TRAVANCORE, REGION I, ZONAL OFFICE, KOTTAYAM, REP.BY ITS CHIEF MANAGER. * ADDL.R3 TOMS SEBASTIAN, S/O.SEBASTIAN PANTHALLUPARAMBIL HOUSE, MANNANAM POST & KARA ATHIRAMPUZHA VILLAGE, KOTTAYAM. * ADDL.R4 RAJ MOHAN, S/O.BALAKRISHNAN NAIR KAROTTUPULICKAL HOUSE, KIDANGOOR VILLAGE & POST, MEENACHIL TALUK. * ADDL.R5 CANARA BANK, HEAD OFFICE AT JAYACHAMRAJENDRA ROAD, BANGALORE-2, KARNATAKA STATE, MAIN BRANCH AT KOTTAYAM KOTTAYAM DISTRICT. (ADDL.R3, R4 & R5 ARE IMPLEADED AS PER ORDER DT 3.8.2011 IN IA.NO.12758/2011) ADV. SRI.K.S.DILIP FOR R2 GOVERNMENT PLEADER SRI.M.H.HARIKUMAR SRI.R.PARTHASARATHY FOR R3 SMT.SEEMA FOR R3 SRI.M.NARENDRA KUMAR FOR R4 SRI.N.D.PREMACHANDRAN FOR R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/08/2011, ALONG WITH WPC NO. 15742 OF 2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.15736/2011 APPENDIX PETITIONER'S EXHIBITS : EXT.P1 COPY OF THE CONFIRMATION OF SALE DT 1.2.2011. EXT.P2 COPY OF THE ENCUMBRANCE CERTIFICATE. RESPONDENTS' EXHIBITS: EXT.R3(A) COPY OF THE DECREE IN OS.231/09. EXT.R(4)(A) COPY OF THE AGREEMENT DT 28.8.09. EXT.R4(B) COPY OF THE PLAINT IN OS.101/10. // True Copy // P.A. To Judge ANTONY DOMINIC, J. ``````````````````````````````````````````````````````````` W.P.(C) Nos. 15736 & 15742 of 2011 ``````````````````````````````````````````````````````````` Dated this the 22nd day of August, 2011 J U D G M E N T ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ These writ petitions are filed by a common petitioner. 2. In so far as W.P.(C) No.15736/2011 is concerned, an extent of 1.2.70 Ares of property situated in Survey No.489/9/2 of Kaippuzha village was mortgaged by its owner to the second respondent Bank. Default was committed and proceedings under the SARFAESI Act were initiated. Sale of the mortgaged property was conducted on 24.12.2010 and the petitioner purchased the property for `3,00,000/-. Finally, Ext.P1 sale certificate was issued by the authorised officer of the Bank and the petitioner complains that the first respondent refused to register the sale certificate, on the ground that attachment over the property has been obtained by additional respondents 3, 4 W.P.(C) Nos.15736&15742/2011 : 2 : and 5. It is with this complaint, the writ petition has been filed. Seeking a direction to the first respondent to register the sale certificate. 3. In so far as additional respondents 3, 4 and 5 are concerned, counter affidavits have been filed by them. The third respondent submits that, against the owner of the property, he had filed O.S.No.231/2009 and obtained Ext.R3 (a) decree from the Munsiff's Court, Ettumanoor. It is stated that pending the suit, an attachment in respect of the property sold in favour of the petitioner was obtained. Similarly, the fourth respondent also has filed a counter affidavit, contending that he had filed O.S.No.101/2010 before the Sub Court, Kottayam and that the suit is pending. It is stated that, since he had paid `3,00,000/- as advance for the property in question, he is entitled to the benefit of Section 55(6)(b) of the Transfer of Property Act. In the counter affidavit of the fifth respondent Bank, it is stated that the Bank has filed W.P.(C) Nos.15736&15742/2011 : 3 : O.S.No.630/2009 before the Sub Court, Kottayam and has obtained a decree. It is further stated that, the Bank has also obtained attachment of the property by order dated 17.02.2011 from the Execution Court. Pointing out the above, the aforesaid respondents, objected to the prayer of the petitioner for registration of the sale certificate. 4. Coming to the facts of W.P.(C) No.15742/2011 is concerned, Ext.P1 is the confirmation of sale of immovable property issued by the second respondent, whereby an extent of 1.4.40 Ares of land in R.S.No.489/11 and 0.93 Ares in R.S.No.489/7 of Kaippuzha village with the house therein has been sold in favour of the petitioner. As in the previous case, here also respondents 3 to 5 have filed O.S.Nos.414/2009, 126/2010 and 63/2009 before the Sub Court, Kottayam and have obtained orders of attachment. Pointing out the above, the respondents herein are also objecting to the registration of the sale certificate. It is to be mentioned that the third W.P.(C) Nos.15736&15742/2011 : 4 : respondent, the plaintiff in O.S.No.414/2009, also contends that he is entitled to the benefit of Section 55(6)(b) of the Transfer of Property Act. 5. The learned Government Pleader, who has obtained instructions in the matter, submits that it is only because of the pendency of the attachment orders that the first respondent had to decline registration of the documents in question. It is also contended that in fact, the sale certificates in question were not presented for registration. 6. In this case, the limited issue which arises for resolution is whether when attachments ordered by Civil Courts are in force, the first respondent can refuse registration of a sale certificate issued in a SARFAESI proceedings. To decide that issue, I do not think it necessary for this Court to pronounce on the respective claims by the respondents, who have also approached the civil courts, which are ceased of the respective litigations. The issue W.P.(C) Nos.15736&15742/2011 : 5 : whether an attachment in force can be a justification to decline registration of sale certificate has already been considered by this Court in the judgments in W.P.(C) Nos.7798/2010 and 2684/2011. In both the judgments, it is held that, even in spite of an attachment held by the civil court, if sale certificate which is valid in all other respects has been presented for registration, the same is liable to be registered. In that view of the matter, the petitioner is entitled for a direction from this Court that in the event he presents the sale certificate for registration, the same shall be registered. 7. Therefore, these writ petitions are disposed of, directing that if the petitioner presents the sale certificates pertaining to the properties referred to above for registration, the first respondent shall accept the same and register the documents, provided the sale certificates are otherwise eligible for registration. Once the document is registered, it will be open to the petitioner to seek mutation, which will also W.P.(C) Nos.15736&15742/2011 : 6 : be carried out by the concerned authority. It is clarified that while issuing the aforesaid direction, this Court has not pronounced on the respective rights of the party respondents and it is for them to agitate their rights before the civil courts. Sd/- (ANTONY DOMINIC, JUDGE) aks/23/08 The figures “1.2.70 Ares” occurring in line 2 of paragraph 2 and “1.4.40 Ares” occurring in line 4 of paragraph 4 of the judgment dated 22.08.2011 in W.P.(C) Nos.15736/2011 and 15742/2011 are corrected and substituted as “2.74 Ares” and “4.40 Ares” respectively as per order dated 11.10.2011 in I.A.No.15760/2011 in W.P.(C) No.15736/2011. Sd/- Registrar(Judicial) // True Copy // P.A. To Judge