TaxTMI 
TaxTMI 
2017 (4) TMI 1547
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....ffected on the above property by the Subordinate Judges Court, Ernakulam in I.A.No.1920/2016 in O.S.No.104/2016, and also for other related reliefs. 2. Necessary facts for the disposal of the writ petition are as follows:- In this writ petition, petitioners are challenging the illegal refusal of the first respondent to register the sale certificate in respect of an item of property purchased by the bank in the SARFAESI sale conducted by the second petitioner. Various credit facilities were availed by a company, functioning in the name and style of M/s.P.T.Mathai Construction Company Pvt.Ltd. from the first respondent. For securing repayment of the same different items of properties belonging to the borrowers as well as promoters/ directors and their relatives, who are guarantors were mortgaged with the bank. Several items of the secured properties were purchased in SARFAESI auction by the bank on failure to get bidders for the same. One of such items of property is 8.09 Ares situate in Elamkulam Village, Kanayannur Taluk, Ernakulam District. The property was bid in auction in the year, 2014. Equitable mortgage of the property was created in favour of the bank in the year, 200....
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.... in any any manner affected by attachment order under Order XXXVIII of the Code of Civil Procedure, 1908, remedy is provided under Rule 10 of Order XXXVIII of the CPC and no reasons are assigned by the petitioners for not availing the same remedy. It is also stated that, the attachment effected is not under challenge in this writ petition and the challenge is only with respect to the consequential act done by the registering authority as mandated under Section 89(5) of the Registration Act, 1908. According to the 5th respondent, 5th respondent is taking all steps to challenge the judgment in W.A.No.2349/2016. Other contentions are also raised to canvass the proposition that petitioners have not made out a case warranting interference of this Court exercising the power of judicial review under Article 226 of the Constitution of India. 4. Heard learned senior counsel for the petitioners Sri.K.K.Chandran Pillai, learned Government Pleader Sri.Ron Bastian and learned counsel for the 5th respondent, Sri.Manu Govind. 5. The question to be decided is whether the sale certificate produced by the petitioners is liable to be registered by the first respondent, in view of the attachment....
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....rder of attachment before judgment creates no charge, x x x x (omitted as is not relevant to the context) . The quality of the mortgage as an encumbrance does not get watered down to be subservient to by an order of attachment by the Civil Court under Code of Civil Procedure. That order of attachment does not override or deserves to be preferred over the rights of a mortgagee or the effect of the mortgage as an encumbrance". 6. Various other judgments were relied on before laying down the law in Madhan S (supra). Therefore, according to the learned senior counsel the law in this regard is well settled. 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 attach....
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....istration Act, it is clear that an appeal under Section 72 can be preferred, from an order of a Sub Registrar refusing to admit the document to registration, if preferred within 30 days from the date of the order. Therefore, 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. Therefore, in my considered opinion petitioners are entitled to invoke the jurisdiction conferred on this Court under Article 226 of the Constitution of India. In that view of the matter also it cannot be said that the w....