2018 (12) TMI 1704 - HC - Indian Laws

Refusal to register the sale certificate - rejection on the ground that there were adverse encumbrances/attachments available against the said property - HELD THAT - The order of attachment before judgment cannot be a bar for the first respondent to register the sale certificate in respect of the property in question and hence there cannot be any impediment for the first respondent to register the sale certificate dated 20.03.2018 issued in favor of the fifth respondent. Petition allowed.

Summary

Issues:
Challenge to attachment entry and refusal to register sale certificate.

Analysis:
The Writ Petition challenged the attachment entry registered on 06.02.2017 in response to an order of attachment issued by the Seventh Additional Court. The petitioner sought the deletion of the adverse encumbrance entry and registration of a sale certificate executed by the petitioner bank in favor of the fifth respondent. The petitioner provided details of credit facilities extended to the second and third respondents, leading to a default and classification of the loan account as a Non-Performing Asset. The petitioner proceeded with a sale notice, and the fifth respondent emerged as the successful bidder. The sale certificate was issued but faced refusal for registration due to the adverse encumbrance entry.

The Court considered the rights of secured creditors under the Enforcement of Security Interest and Recovery of Debts Laws and Miscellaneous Provisions (Amendment) Act, 2016. Referring to a previous judgment, the Court emphasized that the rights of a secured creditor to realize debts due and payable by the sale of assets have priority over all other debts and government dues. The Court highlighted Section 26-E of the SARFAESI Act, which prioritizes debts due to secured creditors over other debts and government dues. The judgment clarified that an order of attachment before judgment should not hinder the registration of a sale certificate by the first respondent.

In conclusion, the Court allowed the writ petition, quashed the impugned order, and directed the first respondent to register the sale certificate within a specified timeframe. The decision was based on the priority of secured creditors' rights and the legal provisions governing the realization of debts due to them. The judgment reaffirmed the precedence of secured creditors in recovering debts through the sale of secured assets, emphasizing the importance of upholding such rights in financial transactions.