Wp(C)/4654/2022 Of Jithin Jameel v. Income Tax Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. FRIDAY, THE 1 DAY OF JULY 2022 / 10TH ASHADHA, 1944 WP(C) NO. 4654 OF 2022 PETITIONER: JITHIN JAMEEL,AGED 42 YEARS,S/O. ABOOBACKER SAINULABDEEN, RESIDING AT KUMBALATH HOUSE, PALLIPATTUMURI, THRIKKUNNAPPUZHA P.O., ALAPPUZHA - 690 515. BY ADVS.ZAKEER HUSSAINK.A.SANJEETHA RESPONDENTS: 1INCOME TAX OFFICER, INCOME TAX DEPARTMENT, OFFICE OF THE TAX RECOVERY OFFICER, TRO, KOZHIKODE, MANANCHIRA, KOZHIKODE - 673 001.2SUB REGISTRAR, THRIKKAKKARA SUB REGISTRY OFFICE, THRIKKAKKARA, KAKKANAD - 682 030.3THE VILLAGE OFFICER, THRIKKAKKARA VILLAGE OFFICE, KAKKANAD - 682 030.4FEDERAL BANK LTD ., LCRD/ERNAKULAM DIVISION, GROUND FLOOR, FEDERAL TOWERS, MARINE DRIVE , KOCHI - 682 031, REPRESENTED BY ITS AUTHORISED OFFICER.5REGGI MATHEW, AGED 54 YEARS,S/O. JOY MATHEW, C-6, HIG APARTMENT, GANDHI NAGAR, KADAVANATHARA, ERNAKULAM - 682 020.6SHANIL ABOOBACKER, AGED 36 YEARSS/O. ABOOBACKER.M., KOLLATHODY HOUSE, VELIPPURAM, RAMANATTUKARA P.O, KOZHIKODE - 673 633. BY ADVS.CHRISTOPHER ABRAHAM, INCOME TAX DEPARTMENT 2 MOHAN JACOB GEORGE, SCREENA THOMASNIGI GEORGEADV. K.B. SONY (GP) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSIONON 01.07.2022, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: JUDGMENT The petitioner has approached this Court being aggrieved bythe fact that a property purchased by him in a sale conducted bythe 4[th] respondent Bank under the provisions of the SARFAESI Actis not being registered in his name on account of an attachmenteffected by the Income Tax Department and also on account of thefact that the original mortgagor had transferred the property to the6[th] respondent after creating the mortgage in favour of the 4[th]respondent. 2.The learned counsel for the petitioner submits that asale under the SARFAESI Act is free from all encumbrances. It ispointed out that the Income Tax Department had filed a statementin this Court stating that the attachment effected by the IncomeTax Department can be effaced. It is submitted that the purchaseof the mortgaged property by the 6[th] respondent can only besubject to the mortgage to the 4[th] respondent and all that the 6[th]respondent obtained was the equity of redemption. It is statedthat on the property being brought to sale by the 4[th] respondentBank and the sale being confirmed in favour of the petitioner, thatequity of redemption was also lost. It is, therefore, submitted that 4 the 2[nd] respondent may be directed to register the sale certificatecum sale deed executed in favour of the petitioner and the 3[rd]respondent may be directed to effect mutation. The learnedcounsel also points out that the possession of the property is withthe petitioner. 3.I have heard the learned Standing Counsel appearingfor the Income Tax Department, the learned Government Pleaderappearing for respondents 2 and 3 and the learned StandingCounsel appearing for the 4[th] respondent. 4.The notice issued from this Court to the 5[th] respondent(original mortgagor) has been returned with the endorsement“addressee left”. The notice issued by this Court to the 6[th]respondent has been served. However, there is no appearance forthe 6[th] respondent. 5.Having heard the learned counsel appearing for thepetitioner, the learned Government Pleader for respondents 2 and3 and the respective Standing Counsel for the 1[st] and 4[th]respondents, I am of the opinion that the petitioner is entitled tosucceed. There is merit in the contention raised by the learnedcounsel for the petitioner that since the sale by the 5[th] respondent 4.The notice issued from this Court to the 5[th] respondent(original mortgagor) has been returned with the endorsement“addressee left”. The notice issued by this Court to the 6[th]respondent has been served. However, there is no appearance forthe 6[th] respondent. 5.Having heard the learned counsel appearing for thepetitioner, the learned Government Pleader for respondents 2 and3 and the respective Standing Counsel for the 1[st] and 4[th]respondents, I am of the opinion that the petitioner is entitled tosucceed. There is merit in the contention raised by the learnedcounsel for the petitioner that since the sale by the 5[th] respondent to the 6[th] respondent was subsequent to the creation of mortgagewith the 4[th] respondent, the only right that was transferred to the6[th] respondent is the equity of redemption. The said equity ofredemption is lost when the property was brought to sale by the 4[th]respondent under the provisions of the SARFAESI Act and theproperty was purchased by the petitioner. Therefore, the 6[th]respondent has no existing right over the property in question. Imust also note that despite the 4[th] respondent having takenpossession of the secured asset under the provisions of theSARFAESI Act, before sale, the 6[th] respondent has not raised anyclaim and has not initiated any litigation against the 4[th] respondentin that regard. The possession of the property is also stated to bewith the petitioner. The Income Tax Department has also filed astatement stating that they have no objection in the attachmenteffected on the property at their instance being effaced. 6.Taking all the aforesaid facts cumulatively intoconsideration, I am of the view that the petitioner is entitled tosucceed. Accordingly, this writ petition is allowed and 2[nd]respondent is directed to register Ext.P1 sale certificate cum saledeed in favour of the petitioner subject to compliance with usualformalities. The 3[rd] respondent shall also effect mutation on WP(C) NO. 4654 OF 2022 6 application by the petitioner. The writ petition is disposed of as above. DK Sd/-GOPINATH P.JUDGE APPENDIX OF WP(C) 4654/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE SALE CERTIFICATE DATED 02/12/2019 ISSUED BY THE BANK. Exhibit P2 TRUE COPY OF THE SALE DEED NO. 574/2001 OF THRIKKAKKARA SUB REGISTRY OFFICE IN RESPECT OF 36.014 ARES OF PROPERTY. Exhibit P3 TRUE COPY OF THE SALE DEED NO. 576/2001 OF THRIKKAKKARA SUB REGISTRY OFFICE IN RESPECT OF 36. 421 ARES OF PROPERTY. Exhibit P4 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE DATED 28/01/2022 ISSUED BY THE THRIKKAKKARA SUB REGISTRY OFFICE. Exhibit P5 TRUE COPY OF THE UNDERTAKING DATED 12/1/2011 SUBMITTED BY THE MORTGAGER TO THE BANKp