REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s). 8470 OF 2022
(Arising out of Special Leave Petition (C) No(s).30038 of 2019)
VARIMADUGU OBI REDDY ….APPELLANT(S)
VERSUS
B. SREENIVASULU & ORS. ….RESPONDENT(S)
J U D G M E N T
Rastogi, J.
1. Leave granted.
2. The instant appeal has been preferred at the instance of the
auction purchaser (appellant herein) assailing the impugned
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judgment and order dated 20 November, 2019 passed by the High
Signature Not Verified
Digitally signed by
Jayant Kumar Arora
Date: 2022.11.16
17:55:46 IST
Reason:
Court for the State of Telangana at Hyderabad setting aside the e
auction sale held by the respondent Bank (secured creditor) under
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the provisions of the Securitisation and Reconstruction of Financial
Assets and Enforcement of Security Interest Act, 2002 (hereinafter
being referred to as the “SARFAESI Act, 2002”).
3. The relevant facts in brief to appreciate the controversy are
that respondent nos.13 have availed three loan facilities vide
Mortgage Loan of Rs.10 lakhs, Cash Credit Loan of Rs.8 lakhs and
Car Loan of Rs.8 lakhs from the respondent Bank (secured
creditor) after executing necessary security documents.
Respondent No.4 herein stood as guarantor and created equitable
mortgage over her immovable property as security for due
repayment of the said loan amount.
4. After availing the above loan facilities, the respondent
borrowers have committed default in repaying the outstanding loan
amount and have also failed to pay the interest accrued to the loan
accounts from time to time. Finally, the loan accounts have been
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classified as NonPerforming Assets (NPAs) on 30 September,
2012 and in furtherance, the respondent Bank initiated recovery
proceedings under the provisions of the SARFAESI Act, 2002 and
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issued demand notice dated 15 November, 2012 calling upon the
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respondent borrowers/guarantor to repay and discharge the
outstanding loan amount with interest and costs within 60 days.
After following the procedure as contemplated under the provisions
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of the SARFAESI Act, 2002 and Rules made thereunder, on 14
February, 2013, the respondent Bank published a possession
notice in the daily newspapers under Section 13(4) of the
SARFAESI Act, 2002 and obtained the order from the District
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Collector on 23 June, 2013 to take physical possession of the
scheduled property from the respondent borrowers/ guarantor and
hand over to the respondent Bank (secured creditor).
5. These proceedings came to be challenged by the respondent
borrowers by filing a Securitization Application (SA) before the
Debts Recovery Tribunal which finally came to be dismissed by the
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Tribunal by order dated 12 December, 2014 and it is on record
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that no appeal was preferred against the order dated 12
December, 2014 passed by the Debts Recovery Tribunal and that
became final.
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6. After taking possession of the mortgaged property, on 29
November, 2014, the respondent Bank (secured creditor) issued a
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notice prior to eauction to the respondent borrowers after
obtaining valuation of the subject property from an approved
valuer in terms of Rules 8(5) and 8(6) of the Security Interest
(Enforcement) Rules, 2002 (hereinafter being referred to as the
“Rules, 2002”) calling upon the borrowers/guarantor to repay the
outstanding loan amount as demanded. When the respondent
borrowers/guarantor failed to respond, the respondent bank
proceeded further and issued eauction sale notice dated
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25 February, 2015 fixing the date of auction of the schedule
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property on 28 March, 2015 and the said notice was widely
published in Indian Express (English) and Eenadu (Telugu) daily
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newspapers dated 26 February, 2015.
7. That the aforesaid eauction sale notice came to be challenged
by the respondent borrowers before the Debts Recovery Tribunal
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and by an interim order dated 26 March, 2015, the Tribunal
directed the respondent Bank (secured creditor) to proceed with the
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auction sale of the secured asset scheduled on 28 March, 2015
with a further direction not to issue the sale certificate provided the
respondent borrowers deposits Rs.6 lakhs within 15 days from the
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date of the said order. It was made clear that in the event of
respondent borrowers fail to deposit the said amount, the
respondent Bank will be at liberty to issue the sale certificate in
favour of the highest bidder. It is not disputed that in terms of the
interim order passed by the Tribunal, the respondent borrowers
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had to deposit Rs.6 lakhs by 9 April, 2015 but failed to deposit
the said amount and at this stage, the respondent borrowers filed
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an application on 9 April, 2015 seeking extension of further 15
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days’ time from 10 April, 2015 to deposit the amount of Rs.6
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lakhs and the Tribunal by an order dated 17 April, 2015 granted
extension of 15 days’ time to deposit the sum of Rs.6 lakhs with
direction to the respondent Bank (secured creditor) and the
respondent borrowers to maintain statusquo.
8. The fact to be noticed at this stage is that since the dispute
was ongoing before the Tribunal and the respondent borrowers
have failed to comply with the interim order of the Tribunal dated
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26 March, 2015 to deposit Rs.6 lakhs within 15 days from the
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date of passing of the order by 10 April, 2015, the respondent
Bank (secured creditor) proceeded with the auction sale pursuant
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to the eauction sale notice dated 25 February, 2015 in terms of
liberty granted by the Tribunal.
9. The present appellant had initially deposited the earnest
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money of Rs.5,54,000/ on 26 March, 2015 and after being
declared the highest bidder with an offer of Rs.64,23,000/, further
deposited a sum of Rs.10,51,750/ which comes to Rs.16,05,750/
i.e. 25% of the total auction price and the balance 75% of the bid
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amount i.e. Rs.48,17,250/ was deposited by the appellant on 15
April, 2015 and sale certificate was issued in favour of the
appellant (auction purchaser). It is to be noticed that the day when
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the order came to be passed by the Tribunal on 17 April, 2015
granting further extension of 15 days’ time to the respondent
borrowers to deposit a sum of Rs.6 lakhs, auction sale was
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finalised and sale certificate dated 15 April, 2015 was issued in
favour of the appellant (auction purchaser).
10. Respondent borrowers raised two primary objections before
the Tribunal that there was an error in the description of
mortgaged property indicated in the eauction sale notice dated
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25 February, 2015 and to be more specific, the scheduled
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property bearing Door No.12339, 3 Cross, Sai Nagar,
Ananthapuramu was mortgaged as a security for the aforesaid loan
while in the eauction sale notice, the property was described as
Door No.”123393” instead of “12339” and this, according to
the respondent borrowers was the manifest error committed by the
respondent Bank and because of the wrong description of the
property put to auction, that property could not have fetched the
value which it ought to have fetched in the course of business.
11. In addition, further objection raised by the respondent
borrowers was that in terms of Rule 9(4) of the Rules, 2002, the
auction price was to be deposited by the auction purchaser within
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15 days which expired on 10 April, 2015 but it was admittedly
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deposited by the auction purchaser (appellant) on 15 April, 2015
which is in clear breach of Rule 9(4) of the Rules 2002, in
consequence thereof, the eauction sale notice and all further
proceedings initiated pursuant thereto deserve to be declared null
and void.
12. The contentions were repelled by the Tribunal and the
Tribunal dismissed the applications filed by the respondent
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borrowers. Although it was an appealable order before the Debts
Recovery Appellate Tribunal, still the respondent borrowers
approached the High Court under Article 226 of the Constitution
and the Division Bench of the High Court reversed the findings
returned by the Tribunal on the premise that there was an error in
the description of the scheduled property in eauction sale notice
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dated 25 February, 2015 and that was considered to be a serious
infirmity in the process and cannot be sanctified and further held
that since the appellant (auction purchaser) failed to deposit
balance 75% of the bid amount within the stipulated time of 15
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days which ought to have been deposited by him on or before 10
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April, 2015, that admittedly deposited by him on 15 April, 2015,
is in clear breach of Rule 9(4) of the Rules, 2002 and accordingly,
set aside all the proceedings initiated from the stage of Section
13(2) of the SARFAESI Act, 2002 till the delivery of physical
possession of the scheduled property to the auction purchaser
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(appellant) by the respondent Bank by an order dated 23
November, 2018, which is the subject matter of challenge before
us.
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13. Learned counsel for the appellant submits that so far as the
description of the scheduled property put to auction is concerned,
from the stage when the initial notice was issued by the respondent
Bank (secured creditor) under Section 13(2) of the SARFAESI Act,
2002, the mortgaged property was described as “Door No.123
393” instead of “Door No.12339”, but it was never the case of the
respondent borrowers either before the Tribunal or before the High
Court that the description in the eauction sale notice indicating
the boundaries, measurement, ward number, block number, TS
number and extent of land, etc. left any ambiguity or confusion in
the minds of the participants in the eauction bid and it was also
not the case of the respondent borrowers that there is some other
property in the locality/vicinity with the number as indicated in the
eauction sale notice i.e. “123393”. Thus, in the given facts and
circumstances, merely because there appears to be a typographical
inadvertent human error in reference to door number of the subject
property may not leave ambiguity with regard to mortgaged
property put to auction and this typographical error is
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inconsequential and does not vitiate the eauction sale proceedings
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held on 28 March, 2015.
14. So far as the noncompliance of Rule 9(4) of the Rules, 2002 is
concerned, learned counsel for the appellant submits that during
pendency of eauction proceedings initiated pursuant to eauction
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sale notice dated 25 February, 2015, the sale of the scheduled
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property was to be held on 28 March, 2015 and the said notice
was published in Indian Express (English) and Eenadu (Telugu)
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daily newspapers dated 26 February, 2015 and this process was
initiated after giving full opportunity and notice to the respondent
borrowers in compliance of Rule 8(6) of Rules, 2002 and the
appellant was held to be the highest bidder and auction bid was
much higher than the reserve price indicated in the eauction sale
notice which was Rs.64,23,000/ and he has complied with all the
conditions of eauction sale notice.
15. Learned counsel submits that the appellant was ready and
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willing to deposit the balance of 75% of auction bid before 11
April, 2015 but because of the intervention made by the Tribunal
that created confusion in the mind of the appellant and for the
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aforesaid reason, delay of four days was caused in depositing the
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balance 75% of the bid amount which was deposited on 15 April,
2015 and the time under Rule 9(4) of Rules, 2002 is not that
sacrosanct. This fact has not been noticed by the High Court and
in the given circumstances, the finding recorded by the High Court
in the impugned judgment, is not sustainable in law and deserves
to be set aside.
16. Learned counsel further submits that the conduct of the
respondent borrowers is equally to be looked into for the reason
that when the eauction sale notice came to be published by the
respondent Bank, simultaneously, application was filed by the
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respondent borrowers before the Tribunal on 23 March, 2015 and
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interim order was passed by the Tribunal on 26 March, 2015 to
see the bonafides of the respondent borrowers, they were directed
to deposit Rs.6 lakhs within 15 days from the date of order but
admittedly, the respondent borrowers have failed to deposit with
the respondent Bank and sought further time to deposit, on which
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order came to be passed on 17 April, 2015 and they are only
interested to nullify the eauction proceedings initiated by the
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respondent Bank either by taking legal recourse or by any other
mechanism, which is possible under the law and after failed to
deposit the amount as directed by the Tribunal at least, they are
not entitled to seek any indulgence from the High Court in the writ
jurisdiction filed at their instance under Article 226 of the
Constitution.
17. Per contra, learned counsel for the respondents, while
supporting the finding returned by the High Court submits that
once the appellant has failed to deposit the balance 75% of the bid
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amount by 11 April, 2015, which was the deadline in terms of e
auction sale notice published by the respondent Bank and
admittedly 75% of the bid amount was deposited by the appellant
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on 15 April, 2015 which is in violation of Rule 9(4) of Rules, 2002
and that itself is sufficient to nullify the eauction sale initiated by
the respondent Bank and in support of his submission, placed
reliance on the judgement of this Court in
General Manager, Sri
Siddeshwara Cooperative Bank Limited and Another vs. Ikbal
12
1
and Others . Para 14 of the judgment is relevant for the purpose
and is extracted below:
| “14. | | A reading of subrule (1) of Rule 9 makes it manifest that the | |
|---|
| provision is mandatory. The plain language of Rule 9(1) suggests | | | |
| this. Similarly, Rule 9(3) which provides that the purchaser shall | | | |
| pay a deposit of 25% of the amount of the sale price on the sale of | | | |
| immovable property also indicates that the said provision is | | | |
| mandatory in nature. As regards balance amount of purchase | | | |
| price, subrule (4) provides that the said amount shall be paid by | | | |
| the purchaser on or before the fifteenth day of confirmation of sale | | | |
| of immovable property or such extended period as may be agreed | | | |
| upon in writing between the parties. The period of fifteen days in | | | |
| Rule 9(4) is not that sacrosanct and it is extendable if there is a | | | |
| written agreement between the parties for such extension. What is | | | |
| the meaning of the expression “written agreement between the | | | |
| parties” in Rule 9(4)? The 2002 Rules do not prescribe any | | | |
| particular form for such agreement except that it must be in | | | |
| writing. The use of the term “written agreement” means a mutual | | | |
| understanding or an arrangement about relative rights and duties | | | |
| by the parties. For the purposes of Rule 9(4), the expression | | | |
| “written agreement” means nothing more than a manifestation of | | | |
| mutual assent in writing. The word “parties” for the purposes of | | | |
| Rule 9(4) we think must mean the secured creditor, borrower and | | | |
| auctionpurchaser.” | | | |
18. Learned counsel for the respondent borrowers further submits
that description of the scheduled property has also created a
confusion in the minds of the participants in the eauction sale
notice and in support thereof, submits that when the property was
mortgaged and security interest was created, the value of the
property assessed was much higher in value than what being
indicated as the reserve price by the respondent bank in the
1 (2013) 10 SCC 83
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eauction sale notice pursuant to which the auction proceedings
were initiated and because of the wrong description of the property
put to auction, certainly inference can be drawn that property could
not have fetched the value it ought to have fetched and that is the
reason the High Court has interfered with and set aside the notice
under Section 13(2) of the SARFAESI Act, 2002 and all other
consequential proceedings initiated by the respondent Bank, and
therefore, needs no further interference of this Court.
19. Learned counsel for the respondent Bank (secured creditor)
has raised an objection that order of the Tribunal was appealable
order before the Debts Recovery Appellate Tribunal under Section
18 of the SARFAESI Act, 2002 and the petition filed by the
respondent borrowers directly before the High Court against the
order of the Tribunal was not maintainable and for the delay in
depositing the balance 75% of the bid amount, respondent Bank
has tendered a reasonable justification and also filed a counter
affidavit before this Court wherein, it has specifically stated that
though the auction purchaser was ready to pay the balance of 75%
of the bid amount on time, it is the respondent Bank who requested
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the auction purchaser to wait for some time because the respondent
borrowers were negotiating with the Bank at that point of time in
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light of the interim order dated 26 March, 2015 passed by the
Tribunal and that was the reason for which the delay of four days
was caused in depositing the balance 75% of the bid amount, which
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ought to have been paid by 11 April, 2015 but actually deposited
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by 15 April, 2015.
20. Learned counsel for the respondent Bank further submits that
the auction proceedings were initiated under Section 13(2) of the
SARFAESI Act, 2002 in reference to the scheduled property and
although there was a factual inadvertent error indicated in the door
number in the notice issued under Sections 13(2) and 13(4) of the
SARFAESI Act, 2002 mentioned as “Plot No.65” with the schedule of
property with boundaries, ward number, block number, T.S.
number, etc., there is no door number existing in the
locality/vicinity as “Door No.123393”, but no prejudice has been
caused to the respondent borrowers that vitiate the auction
proceedings and further submits that after depositing 75% of
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auction bid amount on 15 April, 2015, sale certificate was issued
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and possession was later transferred to the auction purchaser
(appellant herein). In the given facts and circumstances,
interference made by the High court was not valid and deserves to
be interfered by this Court.
21. To complete the facts, learned counsel for the respondent Bank
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further submits that on 15 April, 2015 after receiving the complete
bid amount of Rs.64,23,000/ the value of property under eauction
and after adjustments of the outstanding loan accounts and other
ancillary charges, the surplus amount remain payable to the
borrowers of Rs.16,30,000/ which was offered to the respondent
borrowers and since they failed to accept the balance amount, it
was accordingly kept in FDR and at present, the aforesaid amount
is lying in FDR and with accumulation of interest, the said amount
has come to approximately Rs.18.80 lakhs, which is due and
payable to the respondent borrowers and it can be transferred to
the borrowers/guarantor in compliance of the order of this Court.
22. We have heard the learned counsel for the parties and with
their assistance perused the material available on record.
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23. The indisputed facts which manifest from the record are that
the respondent borrowers availed three loan facilities from the
respondent Bank (secured creditor) to the tune of Rs.26 lakhs after
executing necessary security documents. Respondent no.4 stood as
guarantor and created equitable mortgage over her immovable
property as security for due payment of the said loan amounts.
The property is a residential building of 266 sq. yards of land. The
description of the property mortgaged can be identified from the
notice issued in the first instance under Section 13(2) of the Act as
follows:
| Borrowers Names &<br>Addresses (1) | Properties under<br>Mortgage (2) | Guarantors<br>Name &<br>Addresses (3) | Outstanding<br>amount due |
|---|
| 1)Sri Bandi Srinivasulu,<br>S/o Late B. Narasimhulu<br>2) Smt. Bandi Swarna<br>Latha, W/o B. Srinivasulu,<br>D.No.123393, 3rd Cross,<br>Sai Nagar, Anantapur<br>A/C. Nos.31758622533;<br>32344540051;<br>31684374998 | Property situated in<br>the RD and SRD of<br>Anantapur and within<br>the Anantapur<br>Municipal Limits.<br>Ward No.4, Block<br>No.18, T.S.<br>No.2005,Paiki Ac. 0.05<br>Cents, Plot No.65.<br>Present Door No.123<br>393, Assessment<br>No.1001035935<br>Measurements: East<br>West: 33 Ft and North<br>South:66 Ft.;<br>Boundaries: East: Plot<br>of Pushpavathamma;<br>West: House of<br>Yaganti; North: Road; | Smt. Bandi<br>Jaya<br>Lakshmamma,<br>W/o Late B.<br>Narasimhulu,<br>D.No.123393,<br>3rd Cross, Sai<br>Nagar,<br>Anantapur. | 24,87,616.00 as<br>on 08.11.2012 +<br>future interest &<br>expenses. |
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| South: Plot of<br>Pushpavathamma. | | |
|---|
| Place: Anantapur<br>Date: 05122012 | Sd/ Authorised Officer,<br>State Bank of India, Gandhi Bazar<br>Branch | | |
24. On account of default, the loan amounts of the respondent
borrowers were classified as NonPerforming Assets (NPAs) and the
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bank issued a demand notice dated 15 November, 2012 under
Section 13(2) of the Act which later came to be published in Hindu
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(English) and Eenadu (Telugu) daily newspapers on 5 December,
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2012 and later possession notice dated 14 February, 2013 came
to be published in Hindu (English) and Eenadu (Telugu) daily
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newspapers on 20 February, 2013 and after initiating proceedings
under Section 14 of the Act, the respondent Bank took possession
of the scheduled property under the orders of the District Collector
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from the respondent borrowers on 23 June, 2013.
25. At this stage, the proceedings initiated by the respondent bank
came to be assailed by the respondent borrowers before the Debts
Recovery Tribunal of Andhra Pradesh at Hyderabad under Section
17(1) of the Act. It may be relevant to note that in the description
of the property under Sections 13(2) and 13(4) of the Act, door
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number indicated was “123393” in place of “12339” and this
question about the alleged error in the door number of the
mortgaged property was available to the borrowers in the first
round of litigation before the Tribunal, if at all, it has any material
bearing in reference to the proceedings initiated by the respondent
Bank (secured creditor), but the proceedings initiated at the
instance of the respondent borrowers before the Tribunal came to
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be dismissed by a judgment dated 12 December, 2014 and no
further appeal was preferred and accordingly it has attained
finality.
26. The eauction notice came to be published by the respondent
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Bank on 25 February, 2015 fixing the date of auction as
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28 March, 2015 with a reserve price of Rs.55,33,000/ and
eauction notice was widely published in Indian Express (English)
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and Eenadu (Telugu) daily newspapers dated 26 February, 2015.
27. That eauction notice came to the challenged by the respondent
borrowers in the fresh proceedings instituted before the Tribunal
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on 23 March, 2015. Pursuant thereto, interim order came to be
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passed by the Tribunal on 26 March, 2015 with a direction that
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the sale certificate shall not be issued in favour of the highest
bidder provided the borrower deposit a sum of Rs.6 lakhs.
Relevant extract of the order of the Tribunal is quoted below:
“The Respondent Bank is hereby permitted to proceed with the
auction sale of the schedule property on 28.03.2015 in pursuance of
the Auction Notice dt. 25.02.2015 and however the Respondent Bank
is hereby directed not to issue the sale certificate in favour of the
highest bidder in the auction subject to the condition that the
Applicant shall deposit a sum of Rs.6.00 lakhs directly with the
Respondent Bank within 15 days from today. It is made clear that in
the event the Applicant fails to deposit the amount, as stated supra,
the Respondent Bank shall be at liberty to issue the sale certificate in
favour of the highest bidder in the auction and such sale shall be
subject to the result of the above SA.”
28. In terms of the aforesaid order, respondent borrowers were to
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deposit the sum of Rs.6 lakhs on or before 9 April, 2015, but
admittedly, the borrowers failed to deposit the aforesaid amount
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and on the said date i.e. 9 April, 2015 I.A. No.1687 of 2015 came
to filed before the Tribunal seeking extension of time period by
another 15 days to deposit the sum of Rs.6 lakhs and extension of
15 days’ time was granted by the Tribunal to deposit the sum of
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Rs.6 lakhs to the borrowers by an order dated 17 April, 2015.
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The extract of the order dated 17 April, 2015 is reproduced
hereinbelow:
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“The Applicant is hereby directed to deposit the said sum of Rs.6.00
lakhs into the ‘interest bearing nolien account’ with the Respondent
Bank within 15 days from 10.04.2015, as sought by the Applicant,
and accordingly, the Respondent Bank and the Auction Purchaser
are hereby directed to maintain statusquo. Accordingly, the present
IA is disposed of.”
29. It may be relevant to note that in the interregnum period,
since the respondent Bank (secured creditor) was permitted to
proceed with the auction proceedings, appellant deposited initially
the earnest money of Rs.5,54,000/ for participating in the
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proposed eauction sale on 26 March, 2015 and after the auction
purchaser was declared as the highest bidder with the offer of
Rs.64,23,000/, further sum of Rs.10,51,750/ totalling
Rs.16,05,750/ was deposited (25% of Rs.64,23,000/) on
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28 March, 2015.
30. In terms of Rule 9(4) of the Rules, 2002, the balance 75% of the
bid amount being Rs.48,17,250/ was to be deposited by the
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appellant auction purchaser on or before 11 April, 2015, but prior
thereto, an application was filed by the respondent borrowers on
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9 April, 2015 seeking extension of time and as the matter was
subjudice before the Tribunal, the balance 75% of the bid amount
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could not have been deposited on 11 April, 2015, but it was
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deposited by the appellant on 15 April, 2015 and the sale
certificate was issued in favour of auction purchasers and as there
was factual error in the door number of the subject property, which
was indicated as “123393” instead of “12339”, rectification deed
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dated 21 April, 2015 was executed with the correct description of
the scheduled property.
31. That since the respondent borrowers failed to deposit a sum of
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Rs.6 lakhs in the extended period granted by an order dated 17
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April, 2015, the Tribunal by its order dated 1 May, 2015 granted
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further time to the respondent borrowers till 10 May, 2015 to
deposit the amount of Rs.6 lakhs, but by that time the auction
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proceedings were finalised and the sale certificate dated 15 April,
2015 was duly registered and the physical possession of scheduled
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property was handed over to the appellant on 23 November, 2018.
The Tribunal, after taking into consideration the socalled alleged
description of mortgaged property in reference to which there was
great emphasis that Door No.“123393” was mentioned instead of
“12339” and so also the breach of Rule 9(4) of the Rules, 2002,
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the Debts Recovery Tribunal dismissed the application by an order
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dated 1 August, 2019.
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32. The order of the Tribunal dated 1 August, 2019 was an
appealable order under Section 18 of the SARFAESI Act, 2002 and
in the ordinary course of business, the borrowers/person aggrieved
was supposed to avail the statutory remedy of appeal which the
law provides under Section 18 of the SARFAESI Act, 2002 in the
absence of efficacious alternative remedy being availed, there was
no reasonable justification tendered by the respondent borrowers
in approaching the High Court and filing writ application assailing
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order of the Tribunal dated 1 August, 2019 under its jurisdiction
under Article 226 of the Constitution without exhausting the
statutory right of appeal available at its command.
33. This Court in the judgment in United Bank of India vs.
2
was concerned with the argument
Satyawati Tondon & Others ,
of alternative remedy provided under the SARFAESI Act, 2002 and
dealing with the argument of alternative remedy, this Court had
observed that where an effective remedy is available to an aggrieved
2 (2010) 8 SCC 110
23
person, the High Court ordinarily must insist that before availing
the remedy under Article 226 of the Constitution, the alternative
remedy available under the relevant statute must be exhausted.
Paras 43, 44 and 45 of the said judgment are relevant for the
purpose and are extracted below:
| “43. | | Unfortunately, the High Court overlooked the settled law that | |
|---|
| the High Court will ordinarily not entertain a petition under Article | | | |
| 226 of the Constitution if an effective remedy is available to the | | | |
| aggrieved person and that this rule applies with greater rigour in | | | |
| matters involving recovery of taxes, cess, fees, other types of public | | | |
| money and the dues of banks and other financial institutions. In | | | |
| our view, while dealing with the petitions involving challenge to the | | | |
| action taken for recovery of the public dues, etc. the High Court | | | |
| must keep in mind that the legislations enacted by Parliament and | | | |
| State Legislatures for recovery of such dues are a code unto | | | |
| themselves inasmuch as they not only contain comprehensive | | | |
| procedure for recovery of the dues but also envisage constitution of | | | |
| quasijudicial bodies for redressal of the grievance of any aggrieved | | | |
| person. Therefore, in all such cases, the High Court must insist | | | |
| that before availing remedy under Article 226 of the Constitution, a | | | |
| person must exhaust the remedies available under the relevant | | | |
| statute. | | | |
| 44. | | While expressing the aforesaid view, we are conscious that the | |
|---|
| powers conferred upon the High Court under Article 226 of the | | | |
| Constitution to issue to any person or authority, including in | | | |
| appropriate cases, any Government, directions, orders or writs | | | |
| including the five prerogative writs for the enforcement of any of | | | |
| the rights conferred by Part III or for any other purpose are very | | | |
| wide and there is no express limitation on exercise of that power | | | |
| but, at the same time, we cannot be oblivious of the rules of self | | | |
| imposed restraint evolved by this Court, which every High Court is | | | |
| bound to keep in view while exercising power under Article 226 of | | | |
| the Constitution. | | | |
| 45. | | It is true that the rule of exhaustion of alternative remedy is a |
|---|
| rule of discretion and not one of compulsion, but it is difficult to | | |
| fathom any reason why the High Court should entertain a petition | | |
| filed under Article 226 of the Constitution and pass interim order | | |
24
| ignoring the fact that the petitioner can avail effective alternative | |
|---|
| remedy by filing application, appeal, revision, etc. and the | |
| particular legislation contains a detailed mechanism for redressal | |
| of his grievance.” | |
34. In the instant case, although the respondent borrowers
initially approached the Debts Recovery Tribunal by filing an
application under Section 17 of the SARFAESI Act, 2002, but the
order of the Tribunal indeed was appealable under Section 18 of
the Act subject to the compliance of condition of predeposit and
without exhausting the statutory remedy of appeal, the
respondent borrowers approached the High Court by filing the writ
application under Article 226 of the Constitution. We deprecate
such practice of entertaining the writ application by the High
Court in exercise of jurisdiction under Article 226 of the
Constitution without exhausting the alternative statutory remedy
available under the law. This circuitous route appears to have
been adopted to avoid the condition of predeposit contemplated
nd
under 2 proviso to Section 18 of the Act 2002.
35. The High Court under the impugned judgment has nonsuited
the present appellant (auction purchaser) on the premise that
there is an error in the description of the door number of the
25
property and instead of “12339”, it was indicated as “123393”,
although there was no error in the description of the property
rather the dimensions with measurement and boundaries were
properly indicated of the mortgaged property and on the premise
that Rule 9(4) of the Rules has not been followed by the appellants
by depositing 75% of the bid amount which ought to have been
th th
deposited by 11 April, 2015, instead it was deposited on 15
April, 2015.
36. We find substance in the submissions made by the learned
counsel for the appellant for the reason that so far as the error in
the description of door number of the property is concerned, which
admittedly indicated throughout as “123393” instead of “123
39”, but the fact is that the description of the mortgaged property
from the commencement of the proceedings under Section 13(2) of
the SARFAESI Act, 2002, due to human error instead of “12339”,
door number was indicated as “123393”, but admittedly the fact
is that there is no such property available in the locality/vicinity
with Door no.”123393” and as full description of the mortgaged
property was mentioned/indicated, although there was a
26
typographical error, but the respondent borrowers failed to
demonstrate any prejudice being caused on account of the
inadvertent error being caused in description of the mortgaged
property. At the same time, the borrower failed to demonstrate
that because of a typographical inadvertent error in door number,
as indicated above, the property could not have fetched the value
as it ought to have fetched and that apart, there was no
documentary evidence placed on record to substantiate the kind of
prejudice, if any, being caused.
37. It is true that the secured creditor is under an obligation to
undertake the exercise and crosscheck the description of the
mortgaged property at the stage when the initial proceedings
under Section 13(2) are initiated or in the later consequential
proceedings, but at the same time, mere typographical error due
to inadvertence which has not caused any prejudice to the
borrowers, that in itself could not be considered to be the ground
to annul the process held by the secured creditor which, in our
view, is in due compliance with the requirement as contemplated
under the provisions of Rules, 2002 and this was extensively
27
considered by the Tribunal and that apart, it is not the case of the
respondents that participants in eauction sale are misguided
because of the error in description of the property put to auction
and when there is no ambiguity with regard to the detailed
description of the mortgaged property put to auction, mere
mentioning of the door number “123393” instead of “12339” is
inconsequential and does not vitiate the auction proceedings held
th
on 28 March, 2015.
38. So far as the second objection raised by the respondent, which
prevailed upon before the High Court regarding the breach of Rule
9(4) of Rules, 2002 is concerned, it will be apposite to note Rules
9(4) and 9(5) of the Rules 2002 (preamended) which reads as
under:
“ 9. Time of sale, issues of sale certificate and delivery of
possession, etc.
…….
(4) The balance amount of purchase price payable shall be paid by
the purchaser to the authorised officer on or before the fifteenth day
of confirmation of sale of the immovable property or such extended
period as may be agreed upon in writing between the parties.
(5) In default of payment within the period mentioned in subrule
(4), the deposit shall be forfeited and the property shall be resold
and the defaulting purchaser shall forfeit all claim to the property or
to any part of the sum for which it may be subsequently sold.
……..”.
28
39. It will be relevant to note that amendment was made in Rule
9(4) and Rule 9(5) of the Rules, 2002 of which reference has been
rd
made by GSR No.1046(E) dated 3 November, 2016 effective from
th
4 November, 2016 and it reads as under:
“ 9. Time of sale, issue of sale certificate and delivery of
possession, etc.
…….
(4) The balance amount of purchase price payable shall be paid by
the purchaser to the authorised officer on or before the fifteenth
day of confirmation of sale of the immovable property or such
extended period [as may be agreed upon in writing between the
purchaser and the secured creditor, in any case not exceeding
three months].
(5) In default of payment within the period mentioned in subrule
(4), the deposit shall be forfeited [to the secured creditor] and the
property shall be resold and the defaulting purchaser shall forfeit
all claim to the property or to any part of the sum for which it may
be subsequently sold.
……..”.
40. It clearly manifests that the preamended Rule 9(4) refers to
the period of 15 days for confirmation of sale or such extended
period, but the outer limit has not been defined and that appears
to be not as sacrosanct and the period can be extended, as agreed
upon in writing between the parties. In sequel thereto, if the time
stands extended, the auction purchaser would not be considered
29
to be a defaulter as referred to under Rule 9(5) of the Rules and if
the amended provisions are being taken note of, of which reference
th
has been made, effective from 4 November, 2016, however, may
not be relevant as the auction in the instant case was held in
March 2015, but the fact remains that by an amendment, the
legislature with its consciousness has clarified that the agreement
has to be between the purchaser and the secured creditor
exceeding 15 days but in any case may not exceed three months
although who are the parties to the agreement are not clear in the
preamended Rule 9(4) of the Rules.
41. This Court, while examining the preamended Scheme of Rule
9(4) in judgment in General Manager, Sri Siddeshwara
Cooperative Bank Limited (supra) was of the view that the
period which is referred to in Rule 9(4) is not that sacrosanct and
may be extended if there is a written agreement between the
parties and since parties to the written agreement is not defined in
Rule 9(4), this Court was of the view that it covers into its fold the
secured creditor, the auction purchaser and the borrower, but
later the legislature taking into consideration the judgment of this
30
Court made its intention clear by making an appropriate
amendment in Rule 9(4) of the Rules, 2002 which came into effect
rd th
by a notification dated 3 November, 2016 effective from 4
November, 2016.
42. In the instant case, although there was no written consent by
all the three partners, namely, secured creditors, borrowers and
auction purchaser, as being referred to by this Court in General
(supra),
Manager, Sri Siddeshwara Cooperative Bank Limited
but this fact cannot be ruled out that in the instant case, the
peculiar situation has come forward when the respondent
borrowers in the first instance approached the Tribunal assailing
the eauction notice issued by the respondent Bank (secured
creditor) and were able to secure an interim order from the
th
Tribunal dated 26 March, 2015 permitting the auction
proceedings to continue, subject to the condition that the borrower
shall deposit Rs.6 lakhs directly with the respondent Bank within
th
15 days from the date of order, which admittedly expired on 9
April, 2015 and the respondent borrowers failed to deposit the
aforesaid amount.
31
th
43. On the last date when the period was to expire on 9 April,
2015, I.A. No.1687 of 2015 was filed seeking extension of time
period by 15 days for depositing the sum of Rs.6 lakhs and as
there was no stay in withholding the eauction proceedings, the
appellant deposited not only the earnest money but 25% of the bid
th
amount in the first instance on 28 March, 2015, the balance 75%
th
of the bid amount was deposited on 15 April, 2015 and the
interregnum period was in incomplete phase of flux as to what will
be the fate of the auction purchaser pending proceedings before
the Tribunal, more so when the application was filed by the
th
respondent borrowers on 9 April, 2015 seeking extension of time
and that being the situation, 75% of the bid amount was deposited
th
on 15 April, 2015 and sale certificate was issued and still
thereafter when the Tribunal granted extension of 15 days’ of time
th
to the respondent borrowers by an order dated 17 April, 2015 to
deposit the sum of Rs.6 lakhs, the respondent borrowers failed to
deposit the aforesaid amount and as it reveals from the record, a
further time was granted to the respondent borrowers to deposit a
st
sum of Rs.6 lakhs by an order dated 1 May, 2015 and much
32
before that, the auction proceedings were finalised and even the
st
rectification deed came to be executed on 21 April, 2015.
44. In the given facts and circumstances, the four days’ delay
which was caused in terms of the original auction notice, in no
manner, would frustrate or annul the auction proceedings and the
Debts Recovery Tribunal has rightly held that because in such
state of flux, particularly when the bank/secured creditor
requested the auction purchaser to wait for some time because the
borrowers are negotiating with the bank in the light of interim
th
order dated 26 March, 2015 of the Tribunal, delay in depositing
75% of the bid amount by four days in no manner would frustrate
the rights of the parties inter se, more so, when the conduct of the
borrowers in getting extension orders on two different occasions
and still not depositing Rs.6 lakhs in terms of the order of the
Tribunal would clearly reflect that the intention of the borrowers
was only to frustrate the auction sale by one reason or the other,
which they could not succeed.
45. In our considered view, the finding returned by the Tribunal
was well reasoned and duly supported with the material on record
33
and the interference made by the High Court under the impugned
judgment while recording a finding that it was in breach of Rule
9(4) of the Rules, 2002 is not legally sustainable in law and
deserves to be set aside.
46. Before we finally conclude, it is brought to our notice that after
sale of property under eauction, the respondent Bank received a
total sum of Rs.64,23,000/ and after due adjustment of the three
NPA accounts of the respondent borrowers with other ancillary
charges, a balance sum of Rs.16,30,000/ is lying with the
respondent bank and the said amount has been deposited by the
bank in FDRs and with accumulation of interest, the said amount
has come to approx. Rs.18,80,000/. We make it clear that the
original sum of Rs.16,30,000/ with interest yielded over the said
amount upto date shall be transferred to the account of the
borrower/guarantors, as the case may be, with their written
consent as to in whose account the money is to be transferred.
The bank shall transfer the money in the account of
borrower/guarantor within eight weeks.
34
47. Consequently, the appeal deserves to succeed and is
accordingly allowed. The judgment impugned of the High Court
th
dated 20 November, 2019 is hereby quashed and set aside with
the aforesaid observations.
48. There shall be no order as to costs.
49. Pending application(s), if any, shall stand disposed of.
…………………………….J.
(AJAY RASTOGI)
…………………………….J.
(C.T. RAVIKUMAR)
NEW DELHI;
NOVEMBER 16, 2022.
35