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2017 (4) TMI 1547 - HC - Indian Laws


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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