AMBALATHUVEETTIL KUNHIMON NOORDEEN SHAH Vs. STATE OF KERALA

JUDGEMENT

(1.) As these writ petitions involve a common issue, they are taken up for consideration together and disposed by this common judgment.

(2.) These writ petitions have been preferred by persons, who had purchased apartments from the 4th respondent builder, in an apartment complex by name 'Atlas Celestial Park'. Through the purchase effected by Ext.P1 sale deed, the petitioner obtained property of the apartment together with a fraction of the undivided share in the land, common areas and facilities. In the writ petition the grievance of the petitioners is essentially with regard to Ext.P2 Encumbrance Certificate that was issued to them where, apart from the purchase of the apartment by the petitioners being shown as an encumbrance to the property, subsequent attachments effected at the instance of the revenue, as also at the instance of the various creditors of the builder, have been noted as encumbrances to the property purchased by the petitioners. It is a specific case of the learned counsel for the petitioners that the attachments made through the civil court have since been lifted and what remains now is the revenue attachments consequent to the revenue recovery proceedings initiated against the builder for default of tax amounts. It is the case of the petitioners that these attachments cannot be mentioned in an Encumbrance Certificate pertaining to their property since none of the liabilities shown through the entries point to an encumbrance on their property.

(3.) On a consideration of the facts and circumstances of the case and the submissions made across the Bar, I find force in the contentions of the learned counsel for the petitioners that the encumbrances noted against the builder of the property cannot find mention in the Encumbrance Certificate issued to the petitioners, more so, when the petitioners are not defaulters in respect of any tax. Any default occasioned by the builder, subsequent to the sale of the apartment to the petitioners, cannot prejudicially affect the petitioners' proprietary rights over the property in question. Accordingly, these writ petitions are allowed by quashing Ext.P2 Encumbrance Certificate in all the writ petitions, and directing the 3 rd respondent to issue fresh Encumbrance Certificates to the petitioners, that do not reflect any of the liabilities of the 4 th respondent or any other person, incurred subsequent to the date of purchase of the property by the petitioners. The 3 rd respondent shall, while issuing the fresh Encumbrance Certificates, as directed, also make consequential changes in the original records at the Sub Registrar's Office, Angamaly. The 3 rd respondent should do the needful to comply with the directions in this judgment within three weeks from the date of receipt of a copy of this judgment.