The petitioner is the auction purchaser of 4 ½ cents of property comprised in Sy.No.182/Part of Madakkathara Village, Thrissur. The petitioner purchased the above property in the sale conducted by the 4th respondent under the SARFAESI Act and the petitioner paid the entire sale amount of `13,55,000/-, evidenced by Ext.P1. As part of the business activity, the 4th respondent, as early as on 9/10/2007, had granted housing loan to one Mr.Badhusha.K.M., after creating equitable mortgage by depositing the title deed of his property with the 4trh respondent. Sale was to be registered in the Sub Registry Office of the 2nd respondent and the sale certificate was produced before the 2nd respondent. But the 2nd respondent expressed his inability to register the same stating that three other attachment orders are there over the above property. Those attachment orders are passed by the Munsiff's Court Thrissur, in the suits filed by the 5th and 6th respondents respectively against the said Badhusha. Though the petitioner pointed out before the 2nd respondent that the attachment orders will not affect the sale of the property by the petitioner under the SARFAESI Act, the 2nd respondent did not accept the same and refused to register the sale deed. It is also stated that the 3rd respondent is also not willing to effect mutation, if the sale is registered by the 2nd respondent. Notice was duly served on the 5th and 6th respondents; but the 5th respondent alone entered appearance.
2. The learned counsel for the petitioner cited the decision in Housing Development Finance Corporation v. Sub Registry Officer (2011 (3) KLJ 561) and submits that the issue involved in this writ petition has already been covered by the decision of this Court by the above decision. The learned counsel further drew my attention to paragraph-7 of the above decision, which reads as follows:
“7. After hearing both the sides, this Court finds that there is no dispute with regard to the chronology and the sequence of events, in so far as the specific contention of the petitioners that the mortgage was created in the year 2001 whereas the attachments were ordered by the Civil Court in the years 2007-09 stands unrebutted. The remedy provided in favour of the secured creditor by virtue of the Act is an independent right, which is not adversely affected in any manner by virtue of any other stipulation contained in any other law as discernible from the statute itself, which contains a non-obstante clause as incorporated under Section 13(1). The only reference made in the said provision is Section 69 or Section 69A of the Transfer of Property Act, 1882, which do not come to the rescue of respondents 4 and 5. This Court finds that the 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 provisions of the SARFAESI Act cannot be defeated because of the subsequent attachments ordered by the Civil Courts in 2007-09. As such, the sale conducted on 24.11.2010, leading to issuance of Ext.P4 sale certificate, is complete in all respects and the title stands conveyed to the second petitioner.”
3. Going by the above decision, it is seen that this Court has already considered the effect of attachment of security property by the civil court over the sale conducted by the Debts Recovery Tribunal under the SARFAESI Act and held that right to proceed under the relevant provisions of the SARFAESI Act cannot be defeated by subsequent attachment orders passed by the civil courts. It is also held that sale certificates so obtained can be registered notwithstanding subsequent attachment orders passed by the civil courts. Going by the facts of this case, I find that the above dictum is squarely applicable to this case and the question involved in this case is covered by the above decision. In this case also, the petitioner is a secured creditor whose liability gets priority over the unsecured creditors.
4. In the above view, I am inclined to allow this Writ Petition as prayed for. The 2nd respondent is directed to register the sale certificate in the name of the petitioner when it is presented for registration before him and the 3rd respondent is directed to give effect to necessary mutation in the revenue records accordingly.
This Writ Petition is allowed accordingly.
Sd/-
(K. HARILAL, JUDGE) Nan/ //true copy// P.S. to Judge