IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 7TH DECEMBER 2010 / 16TH AGRAHAYANA 1932 WP(C).No. 7798 of 2010(Y) ------------------------- PETITIONER(S): ----------------------- 1. SAJAD, S/O.SHAHUL HAMEED, AGED 42 YEARS, RESIDING AT T.C.1907 (60/1031), 39, CHALAI, THIRUVANANTHAPURAM. 2. THE HOUSING DEVELOPMENT FINANCE CORPORATION LIMITED, H.D.F.C. HOUSE P.B.NO.2288, VAZHUTHAKKAD, THIRUVANANTHAPURAM REPRESENTED BY ITS AUTHORISED OFFICER. BY ADV. SRI.K.K.CHANDRAN PILLAI SRI.A.S.SAJUSH PAUL SRI.THOMAS JAMES MUNDACKAL SRI.BOBBY THOMAS RESPONDENT(S): ------------------------ 1. THE SUB REGISTRAR, SUB-REGISTRY OFFICE BALARAMAPURAM, NEYYATTINKARA. 2. THE VILLAGE OFFICER, PALLICHAL VILLAGE, PALLICHAL, NEYYATTINKARA. 3. THE TAHSILDAR, TALUK OFFICE, NEYYATTINKARA, THIRUVANANTHAPURAM DISTRICT. 4. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 5. MR.SUDEVAKUMARAN NAIR, KADAKKARATHALA, `PUNARTHAM', PALLICHAL P.O., NARUVAMOODU, THIRUVANANTHAPURAM. * 6. MANOHARAN, `NISHA SADAN', PALLICHAL P.O., THIRUVANANTHAPURAM. * Respondent No.6 deleted from the party array as per order in I.A.No.13094/10 dated 4.10.10. * Addl.R6. MANOHARAN, 'NISHA SADAN', PALLICHAL P.O., THIRUVANANTHAPURAM. * Additional R6 impleaded as per order in I.A.No.14326/10 dated 13.10.10. GOVERNMENT PLEADER MR.DILIP MOHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt WP(C).No. 7798 of 2010 APPENDIX Petitioner's Exhibits :- Ext.P1 :- Copy of sale deed dated 11.7.2007 of the Sub-Registry Office Balaramapuram. Ext.P2 :- Copy of possession notice served on Pankajakshi Amma dated 12.10.09. Ext.P3 :- Copy of communication dated 7.12.2009 issued to the 1st petitioner. Ext.P4 :- Copy of receipt evidencing taking possession of the property by the 1st petitioner dated 12.12.2009. Ext.P5 :- Copy of Encumbrance Certificate dated 8.12.2009 taken from the Sub- Registry Office, Balaramapuram. Ext.P6 :- Copy of document showing the date of creation of mortgage in favour of the 2nd petitioner dated 27.7.2007. Respondent's Exhibits :- NIL //True Copy// P.A. to Judge ANTONY DOMINIC, J -------------------------------------- W.P.(C).No. 7798 OF 2010 ------------------------------------------------------------- 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 2 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 3 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