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2017 (4) TMI 1547 - HC - Indian LawsRegistration of sale certificate - attachment order for same property passed by Sub Ordinate Judges Court - whether the sale certificate produced by the petitioners is liable to be registered by the first respondent, in view of the attachment order passed by the Sub Ordinate Judges Court, Ernakulam? - HELD THAT - The facts and circumstances of the case reveal that the mortgage was executed by depositing the title deed of the property in question in the year, 2005. The property was purchased by the first petitioner in the auction proceedings in accordance with law on 10.10.2014. However, the attachment in question was secured in the suit proceedings in a suit filed in the year, 2016. Therefore, it is unequivocally clear that a charge was created over the property much prior to securing the attachment of the property in the year, 2016. The sale proceedings also took place prior to the attachment ordered by the court. It is convincingly clear that, there is no order passed by the Sub Registrar enabling the petitioners to prefer an appeal under Section 72. Moreover it is well settled and apposite that merely because there is a statutory remedy available under law, the right conferred on the petitioner under Article 226 of the Constitution of India cannot be taken away, if and when there are sufficient grounds for the petitioner to resort to the said constitutional provision. When a law is laid down by this Court in respect of the issue of registration of documents on the basis of SARFAESI proceedings, Government functionary is duty bound to follow the same. When such a course is not adopted, the action of the statutory authority becomes illegal and arbitrary - petitioners are entitled to invoke the jurisdiction conferred on this Court under Article 226 of the Constitution of India. The petitioners are entitled to succeed in this writ petition - petition allowed.
Issues Involved:
1. Refusal to register the sale certificate. 2. Legal implications of attachment on the property. 3. Applicability of Sections 72 and 77 of the Registration Act, 1908. 4. Judicial review under Article 226 of the Constitution of India. 5. Effacing the attachment from records. 6. Mutation of the property. Issue-wise Detailed Analysis: 1. Refusal to Register the Sale Certificate: The petitioners, South Indian Bank Limited and its authorized officer, sought a direction for the registration of a sale certificate for a property purchased in a SARFAESI auction. The first respondent refused to register the sale certificate due to an attachment order by the Subordinate Judges Court, Ernakulam. The petitioners argued that this refusal was illegal and arbitrary, citing precedents like Housing Development Finance Corporation Ltd. v. Sub Registrar and Madhan v. Sub Registrar, which established that sales under the SARFAESI Act are free of encumbrances. 2. Legal Implications of Attachment on the Property: The property in question was mortgaged in 2005 and auctioned in 2014. The attachment order was secured in 2016, after the mortgage and auction. The petitioners contended that the attachment did not affect the title and ownership of the property, as established in previous judgments. The court agreed, stating that the mortgage and subsequent sale under the SARFAESI Act take precedence over later attachments. 3. Applicability of Sections 72 and 77 of the Registration Act, 1908: The 5th respondent argued that the petitioners should have appealed under Section 72 or filed a suit under Section 77 of the Registration Act, 1908, within the prescribed time limit. However, the court found no formal order of refusal from the Sub Registrar, which would trigger the appeal process under Section 72. The court held that the petitioners were justified in seeking relief under Article 226 of the Constitution, given the absence of a formal refusal and the established legal precedents. 4. Judicial Review under Article 226 of the Constitution of India: The court emphasized that the availability of a statutory remedy does not preclude the exercise of judicial review under Article 226. The court found sufficient grounds to entertain the writ petition, given the illegal and arbitrary refusal to register the sale certificate. The court noted that the statutory authority must follow the law laid down by higher courts. 5. Effacing the Attachment from Records: The petitioners sought to efface the attachment from the records. The court referred to judgments where similar relief was granted and noted that the attachment had no legal sustenance after the sale under the SARFAESI Act. The court directed the respondents to remove the attachment from the relevant records, invoking its powers under Article 226. 6. Mutation of the Property: The petitioners also sought the mutation of the property. The court directed that if an application for mutation is filed, it should be processed in accordance with the law, provided there are no other legal impediments. Conclusion: The writ petition was allowed. The court directed the registration of the sale certificate and the effacing of the attachment from records. The court also addressed the issue of mutation, ensuring that the petitioners' rights were upheld in accordance with established legal principles.
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