TMI Blog2014 (1) TMI 1905X X X X Extracts X X X X X X X X Extracts X X X X ..... n - can attachment be effaced after the property is purchased by another in sale conducted by the Recovery Officer of the Debts Recovery Tribunal? - HELD THAT:- The preponderance of judicial opinion leads to the irresistible conclusion that the sale of the mortgaged property in favour of the petitioner under Ext. P5 sale certificate under the Act is free of all encumbrances. The attachments effected subsequent to the mortgage created 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 sale is confirmed in favour of the petitioner. The Sub Reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cover a sum of ₹ 22,18,958.28 with interest thereon till realisation by sale of the property. A recovery certificate was accordingly issued to the Recovery Officer who proceeded to recover the debt in accordance with the provisions of the second schedule to the Income Tax Act, 1961. The provisions of the second schedule to the Income Tax Act, 1961 and the Income-tax (Certificate Proceedings) Rules, 1962 have been made applicable by virtue of Section 29 of the Act. 3. The Recovery Officer proclaimed the mortgaged property for sale under Rule 52 of the second schedule to the Income Tax Act, 1961 on failure of the certificate debtors to pay the amount even after receipt of demand notice. Ext.P2 sale notice published in the 'Malaya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer to remove the entries relating to the encumbrances over the subject property subsequent to the mortgage. Neither the fifth respondent nor respondents 6 to 12 filed any counter affidavit to the writ petition traversing the allegations even though notice was served on them by special messenger. 5. I heard Mr. A.V. Thomas, Senior Advocate on behalf of the petitioner as well as Mr. R.S. Kalkura, Advocate on behalf of the bank in extenso. I also heard Mr. Rafeek V.K., Government Pleader on behalf of the Sub Registrar and Village Officer as well as Mr. P. Parameswaran Nair, Assistant Solicitor General on behalf of the Recovery Officer of the Debts Recovery Tribunal. 6. A brief look at the relevant statutory provisions and the various ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Development Finance Corporation Vs. Sub Registry Officer [2011 (3) KLJ 561] arising under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 as follows: 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 2007-2009. 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 . A division bench of this court after adverting to the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Transfer of Property Act . (iii) Kolappa Pillai Vs. Sukumaran Nair [1987 (2) KLT SN Case No. 54]: Section 64 hits only a private transfer or delivery of the property attached or of any interest therein. The passing of a decree by a court of law declaring a charge on such property or the court sale and delivery of the property in execution of such a decree can in no sense be said to be a private transfer or delivery of the property or of any interest therein . (iv) Francis Vs. Navodaya Kuries and Loans Pvt. Ltd. [2010 (3) KLT 609]: Hence the attachment before judgment though made prior on point of time in O.S. No. 94/1989 ceased to have effect with the court sale in favour of respondent No. 1 (in O.S. No. 1156 of 1991) on 21. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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