9911796707
TMI Blog2017 (4) TMI 1547X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - WP(C). No. 3875 of 2017 (H) - - - Dated:- 4-4-2017 - THE HONOURABLE MR. JUSTICE SHAJI P.CHALY For the Appellant : ADVS.SRI.K.K.CHANDRAN PILLAI (SR.), SMT.S.AMBILY, SMT.ELSA DENNY PINDIS, SRI.K.V.KRISHNAKUMAR, SRI.ABILASH THOMAS, SMT.NAMITHA NAMBIAR, SRI.P.R.HARI KISHAN For t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Crores and one Thousand. The stamp duty and registration charges payable for registration will be around ₹ 40 lakhs. However, when Encumbrance Certificate was taken it shows an attachment dated 24.11.2016. Therefore, the second petitioner met the first respondent and discussed about the same and requested for registration of sale certificate without reference to the attachment. However, it was conveyed to the second petitioner that he will not register the sale certificate in view of the attachment. Therefore, the stand taken, according to the petitioners, by the first respondent is illegal and arbitrary. It is also against the law laid down by this Court in Housing Development Finance Corporation Ltd. v. Sub Registrar [2011 (3) KLJ 561 and Madhan v. Sub Registrar [2014(1) KLT 406]. Other contentions are also raised in respect of consequential actions after registration of the document. 3. The 5th respondent has filed a counter affidavit refuting the allegations, claims and demands raised by the petitioners. According to the 5th respondent, going by the pleadings in the writ petition the refusal by the registrar to register the sale certificate in view of the attachment wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in favour of the bank do not affect the title and ownership of the petitioner over the subject property. Such attachments have no impact on the sale conducted under the Act and the same ceases to have any effect or fall to the ground the moment the same is confirmed in favour of the petitioner. The declaration so sought by the petitioner is therefore granted and I further direct the Sub Registrar and the Village Officer to efface the attachments effected subsequent to the mortgage from the relevant records. Otherwise, those attachments would remain as a permanent taboo prejudicially affecting the marketability and title to the property even though they ceased to have any legal efficacy and thereby it was directed to register the sale certificate in a time bound manner. According to the learned senior counsel the said judgment was rendered taking into account the proposition of law laid down in Housing Development Finance Corporation Ltd. (supra) arising under the SARFAESI Act itself, wherein, it was held that this Court finds that rights and liberties conferred on the creditor/Bank by virtue of mortgage created in the year 2001 and the right to proceed under the relevant prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the petitioner under Section 72 of the Registration Act, 1908. Having not resorted to such a course of action the writ petition is not maintainable under law. That apart, it is contended that, if in any case of failure, under Section 72, Section 77 of the said Act itself provides a further remedy of filing a suit. Therefore,the contention of the learned counsel for the 5th respondent is that, when a track is provided under the Act, the petitioners were duty bound to proceed in accordance with the said provisions of the Registration Act, 1908. In this regard learned counsel has relied on a Division Bench judgment of this Court in District Executive Officer v. Abel (2006 KHC 705). That apart learned counsel also contended that, since a period of limitation is prescribed under the Registration Act, 1908 in order to entertain an appeal and the period prescribed thereunder is over, petitioners have no statutory remedy created under law and therefore, the attempt of the petitioners is to get over the limitation prescribed under the Registration Act, 1908. In order to canvass the said proposition of law, judgments rendered by this Court in T.Krishnan and another v. State of Kerala and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. Taking into account all these aspects and reckoning the law in the subject as discussed above I have no hesitation to hold that petitioners are entitled to succeed in this writ petition. Consequentially there will be a direction to the second respondent to register the sale certificate, if the same is produced within three weeks from the date of receipt of a copy of this judgment. 9. Be that as it may, question remains to be considered is whether as held by this Court in Madhan.S (supra) the attachment registered by the first respondent can be effaced or not. Learned counsel for the 5th respondent, in that regard invited by attention to three judgments of a learned single Judge of this Court rendered in W.P.(C)No.31316/2014, W.P.(C) No.25488/2014 and W.P.(C)No.33319/2014 dated 24.11.2014, 13.10.2014 and 11.12.2014, respectively. I find from the facts and circumstances of the case that, the said writ petitions were filed after the registration of the sale certificate, and seeking to remove only the attachment registered by the concerned Sub Registrars. However, in this case, the petitioners have made a specific prayer to efface the attachment ordered by the Sub Ordinate Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
