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TMI Blog2015 (1) TMI 461X X X X Extracts X X X X X X X X Extracts X X X X ..... er. Though, such a detailed consideration of the legal issues was not made by the Division Bench while setting aside the sale effected in favour of the Appellant, having regard to the construction of the provisions of the SARFAESI Act, the RDDB Act and the relevant Rules, we are convinced that the Judgment of the Division Bench [2010 (3) TMI 1050 - KERALA HIGH COURT], was perfectly justified and we do not find any infirmity with the same. Judgment passed in Writ Appeal No.1555 of 2009 dated 08.03.2010, was a self contained one and due to the failure of the 1st and 2nd Respondents in not handing over the Demand Draft for ₹ 2,00,00,000/- to the Appellant within the stipulated time limit, namely, on or before 08.06.2010, the sale effected in favour of the Appellant stood confirmed Inasmuch as we have found there was absolutely no justifiable grounds for the Division Bench to grant further time in its Order dated 18.06.2010, we are of the view that it will be travesty of justice if the earlier Judgment dated 08.03.2010, which worked itself out on 08.05.2010, is to be reversed for the flimsy grounds raised by the 1st and 2nd Respondents that they could not raise funds in spite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant was ₹ 1,27,00,101/-, the price ultimately fetched at the instance of the 1st and 2nd Respondents was ₹ 2,03,00,000/-. Therefore, after giving credit to ₹ 1,27,00,000/-, the Appellant would still be liable to pay a further sum of ₹ 76,00,000/- to the 1st and 2nd Respondents. - Decided partly in favour of appellants. - C.A. 1927 OF 2014 - - - Dated:- 10-2-2014 - Fakkir Mohammed Kalifulla, J. JUDGMENT Leave granted. 2. This appeal by the purchaser, in a tender-cum-auction sale held by the 4th Respondent-Bank, is directed against the judgments and final orders dated 08.03.2010 in Writ Appeal No. 1555 of 2009, Order dated 18.06.2010 in I.A. No.437 of 2010 in Writ Appeal No.1555 of 2009 and Order dated 08.07.2010 in I.A. No. 507 of 2010 in Writ Appeal No. 1555 of 2009 passed by the High Court of Kerala at Ernakulam. 3. The interesting but very serious question that arises for consideration in this appeal is as regards the interpretation of Section 13(8) of the SARFAESI Act, read with Rules 8 and 9 of the Security Interest (Enforcement) Rules, 2002 (hereinafter referred to as the Rules, 2002 ). 4. The 1st and 2nd Respondents herein stood ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30.08.2007 and 01.09.2007. 7. On 20.09.2007, the 1st and 2nd Respondents filed W.P. No.27182 of 2007 challenging the proceedings initiated under the SARFAESI Act. The said writ petition was disposed of by a learned Single Judge of the Kerala High Court by Order dated 20.09.2007. By the said order, the High Court after taking note of the O.A. filed by the 4th Respondent-Bank, as well as S.A. filed by the 1st and 2nd Respondents, directed the DRT to hear the parties and dispose of both the cases or at least the Securitisation Application filed by the 1st and 2nd Respondents without any delay. The High Court also noted that at that point of time, the DRT had fixed 12.10.2007 as the date for disposal of both the applications. While issuing the said directions, the learned Judge gave liberty to the parties to settle the liability and also directed the 4th Respondent-Bank to defer the sale posted on 25.09.2007 by six weeks, by imposing a condition on Respondents 1 and 2 to deposit a sum of ₹ 10,00,000/- before the date of sale. i.e., 25.09.2007. It was also observed therein that since the 4th Respondent-Bank had agreed for OTS in a sum of ₹ 55,00,000/-, the bank should wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Order dated 12.06.2009, on the ground that the Respondents 1 and 2 got an alternative efficacious remedy available under the SARFAESI Act. As against the said Order, Respondents 1 and 2 filed Writ Appeal No.1555 of 2009, on 16.07.2009. In the meantime, on 24.06.2009, the 4th Respondent-Bank transferred the property in favour of the Appellant under a duly registered certificate of sale. 10. By the order impugned, the Division Bench took the view that the sale was not conducted in a fair and proper manner, that when the sale was initially postponed by six weeks from 25,09.2007, the Bank ought to have renotified the sale or at least extended the time for receiving further tenders, particularly when only one valid tender was received on the last date notified for sale. The Division Bench further held that the sale was not even informed to Respondents 1 and 2 and they were informed only after the confirmation of the sale and after receipt of their full consideration. The Division Bench, therefore, set aside the sale which was already executed in favour of the Appellant by imposing a condition that Respondents 1 and 2 furnish a Demand Draft of ₹ 2,00,00,000/- from a local branch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20.06.2010. Subsequently, in I.A. No.507 of 2010, the Division Bench after noting that the Appellant had not withdrawn the amounts deposited with the 4th Respondent-Bank by stating that he has approached this Court by way of a Special Leave Petition and after finding that mere steps taken by the Appellant for filing the Special Leave Petition need not stand in the way of executing the sale deed in favour of the 8th Respondent who had deposited the entire amount. In effect, the said I.A. No.507 of 2010 in Writ Appeal No. 1555 of 2009 was allowed and the Bank was directed to execute the sale deed in favour of the 8th Respondent for the sale consideration of ₹ 2,03,00,000/-. 13. As against the judgment in Writ Appeal No. 1555 of 2009 and the orders passed in LA Nos.437 of 2010 and 507 of 2010, the Appellant has come forward with these appeals. 14. We heard. Mr. Krishnan Venugopal, Senior Counsel for the Appellant, Mr. Shyam Divan, Senior Counsel for the 8th Respondent and Mr. C.U. Singh, Senior Counsel for the Respondents 1 and 2. Mr. Krishnan Venugopal, Senior Counsel for the Appellant in his submissions after referring to Section 13(8) of the SARFAESI Act and Rules 8 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Counsel also contended that once the sale has been effected and confirmed in accordance with law, merely because someone else can offer a higher amount, the Court should not have interfered with the already confirmed sale as that would become an unending affair if such approach made by parties are entertained. In support of his submissions, the learned Senior Counsel relied upon Valji Khimji Co. v. Official Liquidator of Hindustan Nitro Product (Gujarat) Ltd. (2008) 9 SCC 299 and United Bank of India v. Satyawati Tondon [2010] 8 SCC 110. The learned Senior Counsel also contended that in any event, once the Division Bench ultimately directed Respondents 1 and 2 to deposit the sum of ₹ 2,00,00,000/- within two months, i.e. on or before 08.05.2010, and the Respondents 1 and 2 failed to comply with the said condition, the order worked itself out and the Writ Appeal stood dismissed without any further reference to the Court. According to the counsel, the extension of further time granted by the Division Bench in a belated application of Respondents 1 and 2. and modification of the conditional payment to be made by the 8th Respondent, was beyond the powers of the Court and cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffecting the sale and transfer, the borrower ought to have been mandatorily put on notice as prescribed under Section 13(8) of the SARFAESI Act. The learned Senior Counsel also relied upon Order XXI Rules 64 to 69 and submitted that in common law as well, when once a sale is adjourned to a specified date, a future proclamation was the requirement as that alone would enable the mortgagor to ensure that his valuable right of ownership is not frittered away without providing any opportunity for redemption. 19. The learned Senior Counsel by relying upon Section 29 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as the RDDB Act ) and Section 37 of the SARFAESI Act, read along with Rule 15 of the Second Schedule of the Income Tax (Certificate Proceedings Rules, 1962) (hereinafter referred to as the Income Tax Rules, 1962 ), contended that even under the provisions of the SARFAESI Act, there is a statutory requirement for re-notification to effect the sale and, therefore, the non-compliance of the said requirement would render the sale effected by the Bank on 28.12.2007 invalid in law. 20. The learned Senior Counsel pointed out t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. 22. Having heard the learned counsel for the respective parties and having perused the Judgments and the Orders impugned in these appeals and other material papers, in the first instance, we wish to deal with the appeal filed against the Judgment dated 08.03.2010 in Writ Appeal No.1555 of 2009. The Division Bench, after holding that the sale was not conducted in a fair and reasonable manner and thereby the borrowers' rights have been seriously infringed, set aside the sale effected on 28.12.2007, in favour of the Appellant and directed the borrowers to give a Demand Draft for ₹ 2,00,00,000/- drawn on a local branch of a Nationalised Bank in favour of the Appellant and hand over the same to him within a period of two months from the date of the Judgment. It further held that if the payment was not made, as directed, the sale in favour of the Appellant would stand confirmed and the writ appeal would stand dismissed. 23. In order to examine the correctness of the impugned Judgment of the Division Bench, a serious look into Section 13, in particular sub-section (8) of the SARFAESI Act along with Rules 8 and 9 of the Rules, 2002 is required. We, therefore, deem it ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... secured assets or otherwise interested in buying the such assets; or (b) by inviting tenders from the public; (c) by holding public auction; or (d) by private treaty. (6) The authorised officer shall serve to the borrower a notice of thirty days for sale of the immovable secured assets, under sub-rule (5): Provided that if the sale of such secured asset is being effected by either inviting tenders from the public or by holding public auction, the secured creditor shall cause a public notice in two leading newspapers one in vernacular language having sufficient circulation in the locality by setting out the terms of sale, which shall include, - (a) The description of the immovable property to be sold, including the details of the encumbrances known to the secured creditor; (b) the secured debt for recovery of which the property is to be sold; (c) reserve price, below which the property may not be sold; (d) time and place of public auction or the time after which sale by any other mode shall be completed; (e) depositing earnest money as may be stipulated by the secured creditor; (f) any other thing which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be made to appreciate the legal issue involved and the submissions made by the respective counsel on the said provision. A plain reading of sub-section (8) would show that a borrower can tender to the SECURED CREDITOR the dues together with all costs, charges and expenses incurred by the SECURED CREDITOR at any time before the date fixed for sale or transfer. In the event of such tender once made as stipulated in the said provision, the mandate is that the SECURED ASSET should not be sold or transferred by the SECURED CREDITOR. It is farther reinforced to the effect that no further step should also be taken by the SECURED CREDITOR for transfer or sale of the SECURED ASSET. The contingency stipulated in the event of the tender being made by a debtor of the dues inclusive of the costs, charges, etc., would be that such tender being made before the date fixed for sale or transfer, the SECURED CREDITOR should stop all further steps for effecting the sale or transfer. That apart, no further step should also be taken for transfer or sale. When we analyse in depth the stipulations contained in the said sub-section (8), we find that there is a valuable right recognized and asserted in f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal violation and nullify the ultimate sale. 28. Once the said legal position is ascertained, the statutory prescription contained in Rules 8 and 9 have also got to be examined as the said rules prescribe as to the procedure to be followed by a SECURED CREDITOR while resorting to a sale after the issuance of the proceedings under Section 13(1) to (4) of the SARFAESI Act. Under Rule 9(1), it is prescribed that no sale of an immovable property under the rules should take place before the expiry of 30 days from the date on which the public notice of sale is published in the newspapers as referred to in the proviso to sub-rule (6) of Rule 8 or notice of sale has been served to the borrower. Sub-rule (6) of Rule 8 again states that the authorized officer should serve to the borrower a notice of 30 days for the sale of the immovable SECURED ASSETS. Reading sub-rule (6) of Rule 8 and sub-rule (1) of Rule 9 together, the service of individual notice to the borrower, specifying clear 30 days time gap for effecting any sale of immovable SECURED ASSET is a statutory mandate. It is also stipulated that no sale should be affected before the expiry of 30 days from the date on which the public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said property, any other encumbrances pertaining to the said property, the minimum price below which one cannot make a bid and the total liability of the borrower to the SECURED CREDITOR. Since, the proviso to sub-rule (6) also mentions that any other material aspect should also be made known when effecting the publication, it would only mean that the intending purchaser should have entire details about the property brought for sale in order to rule out any possibility of the bidders later on to express ignorance about the factors connected with the asset in question. Be that as it may, the paramount objective is to provide sufficient time and opportunity to the borrower to take all efforts to safeguard his right of ownership either by tendering the dues to the creditor before the date and time of the sale or transfer, or ensure that the SECURED ASSET derives the maximum price and no one is allowed to exploit the vulnerable situation in which the borrower is placed. 31. At this juncture, it will also be worthwhile to refer to Rules 8(1) to (3) and in particular sub-rule (3), in order to note the responsibility of the SECURED CREDITOR vis-a-vis the SECURED ASSET taken posses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat simply because a secured interest in a SECURED ASSET is created by the borrower in favour of the SECURED CREDITOR, the said asset in the event of the same having become a NON-PERFORMING ASSET cannot be dealt with in a light-hearted manner by way of sale or transfer or disposed of in a casual manner or by not adhering to the prescriptions contained under the SARFAESI Act and the abovesaid Rules mentioned by us. 32. Having analyzed the relevant statutory prescriptions under the SARFAESI Act, as well as, the Rules, 2002 it will be necessary to refer to the decisions placed before us on the above aspects, before examining the manner in which the sale of the SECURED ASSET of the 1st and 2nd Respondents was dealt with by the 4th Respondent-Bank and by effecting the sale in favour of the Appellant herein. 34. Mr. Shyam Divan, learned Senior Counsel relied upon the decision in Narandas Karsondas (supra), in which the right of a mortgagor as prescribed under Section 60 of the T.P. Act has been spelt out. Under Section 60 of the T.P. Act, at any time after the principal money fell due, there is a right in the mortgagor on payment or tender at a proper time and place of the mortgage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are able to discern the Ratio to the effect that a mere conferment of power to sell without intervention of the Court in the mortgage deed by itself will not deprive the mortgagor of his right to redemption, that the extinction of the right of redemption has to be subsequent to the deed conferring such power, that the right of redemption is not extinguished at the expiry of the period, that the equity of redemption is not extinguished by mere contract for sale and that the mortgagor's right to redeem will survive until there has been completion of sale by the mortgagee by a registered deed. The ratio is also to the effect that the power to sell should not be exercised unless and until notice in writing requiring payment of the principal money has been served on the mortgagor. The above proposition of law of course was laid down by this Court while construing Section 60 of the T.P. Act. But as rightly contended by Mr. Shyam Divan, we fail to note any distinction to be drawn while applying the above said principles, even in respect of the sale of SECURED ASSETS created by way of a secured interest in favour of the SECURED CREDITOR under the provisions of the SARFAESI Act, read al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eral in nature in respect of all mortgages, can have no application in respect of a secured interest in a SECURED ASSET created in favour of a SECURED CREDITOR, as all the abovestated principles apply in all fours in respect of a transaction as between the debtor and SECURED CREDITOR under the provisions of the SARFAESI Act. 37. Reliance was also placed upon the decision in Mardia Chemicals Ltd. v. Union of India (2004) 4 SCC 311. In paragraph 54, while dealing with the contention raised on behalf of the SECURED CREDITOR that the right of redemption would be available to the mortgagor only if the amount due according to the SECURED CREDITOR is deposited, this Court held as under: 54....Shri Sibal, however, submits that it is the amount due according to the secured creditor which shall have to be deposited to redeem the property. Maybe so, some difference regarding the amount due may be there but it cannot be said that right of redemption of property is completely lost. In cases where no such dispute is there, the right can be exercised and in other cases the question of difference in amount may be kept open and got decided before sale of property. (Emphasis supplied) 38. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t though the recovery of public dues should be made expeditiously, it should be in accordance with the procedure prescribed by law and that it should not frustrate a Constitutional Right, as well as the Human Right of a person to hold a property and that in the event of a fundamental procedural error occurred in a sale, the same can be set aside. 41. Before taking up the facts of the case on hand, it is necessary to refer to certain other provisions referred to and relied upon by Mr. Shyam Divan, learned Senior Counsel appearing for the 8th Respondent. The learned Senior Counsel referred to Section 37 of the SARFAESI Act, Section 29 of the RDDB Act and Rule 15 of the Income Tax Rules, 1962. The said provisions have to be noted in detail and therefore, the same are extracted hereunder: Section 37 - Application of other laws not barred. The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Companies Act, 1956 (1 of 1956), the Securities Contracts (Regulation) Act, 1956 (42 of 1956), the Securities and Exchange Board of India Act, 1992 (15 of 1992), the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d upon, the decision in Transcore v. Union of India (2008) 1 SCC 125. In paragraph 64 it is stated as under after referring to Section 37 of the SARFAESI Act. ..According to American Jurisprudence, 2d, Vol. 25, p. 652, if in truth there is only one remedy, then the doctrine of election does not apply. In the present case-as stated above, the NPA Act is an additional remedy to the DRT Act. Together they constitute one remedy and, therefore, the doctrine of election does not apply. Even according to Snell's Principles of Equity (31st Edn., p. 119), the doctrine of election of remedies is applicable only when there are two or more co-existent remedies available to the litigants at the time of election which are repugnant and inconsistent. In any event, there is no repugnancy nor inconsistency between the two remedies, therefore, the doctrine of election has no application. (Emphasis supplied) 43. A reading of Section 37 discloses that the application of SARFAESI Act will be in addition to and not in derogation of the provisions of the RDDB Act. In other words, it will not in any way nullify or annul or impair the effect of the provisions of the RDDB Act. We are also forti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r conclusion that the application of the SARFAESI Act will be in addition to, in the present case to Section 29 of the RDDB Act. Once we steer clear of the said position without any hesitation, it can be held that whatever stipulations contained in Section 29 as regards the application of certain provisions of the Income-tax Act, 1961 in particular Schedule 2 Part I Rule 15 of the Income-tax Rules, 1962 for effecting a sale or transfer would apply automatically. We have already extracted Section 29 of the RDDB Act, as well as Schedule 2 Part I Rule 15 of the Income-tax Rules, 1962. Therefore, what is to be considered is as to what is the mode prescribed under the above provisions, namely, Rule 15 prescribed under Schedule 2 Part 1 of the Income Tax Rules, 1962. 46. Section 29 of the RDDB Act is an enabling provision under which the Second and Third schedule to the Income-tax Act, 1961 (43 of 1961) and the Income-tax Rules, 1962 can be applied as far as possible with necessary modifications as if the provisions and the rules are preferable to the DEBT DUE, instead of the income tax due. Therefore, fictionally, by virtue of Section 29 of the RDDB Act, the mode and method by which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n particular Section 13 or Rules 8 and 9. In fact there is no provision relating to grant of adjournment or issuance of a fresh proclamation for effecting the sale after the earlier date of sale was not adherered to in the SARFAESI Act. In such circumstances going by the prescription contained in Section 37 of the SARFAESI Act, as we have reached a conclusion that the provision contained in Section 29 of the RDDB Act will be in addition to and not in derogation of the provisions of the SARFAESI Act, the provisions contained in Rule 15, which is applicable by virtue of the stipulation contained in Section 29 of the RDDB Act, whatever stated in sub-rule (2) of Rule 15 should be followed in a situation where a notice of sale notified as per Rules 8 and 9(1) of the Securitisation Trust Rules, read along with Section 13(8) gets postponed. In our considered view such a construction of the provisions, namely, Sections 37, 13(8) and 37 of the SARFAESI Act, read along with Section 29 with the aid of Rule 15 could alone be made and in no other manner. 49. We, therefore, hold that unless and until a clear 30 days notice is given to the borrower, no sale or transfer can be resorted to by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact, on this score itself it can be held that if the sale had been effected on 25.09.2007, it would not have been in accordance with Section 13(8) of the SARFAES1 Act, read along with Rules 8 and 9(1). But at the intervention of the Court, namely, the orders passed in Writ Petition 27182 of 2007 dated 20.09.2007, the sale date fixed on 25.09.2007 was adjourned by six weeks. In any case, the sale was not effected even after the six weeks period expired as directed in the said Order dated 20.09.2007. The Securitisation Application No.20 of 2007, came to be disposed of by the DRT only on 27.12.2007. 51. Therefore, once the Securitisation Application of the borrowers, namely, Respondents 1 and 2 was dismissed on 27.12.2007, even assuming that there was no impediment for the SECURED CREDITOR, namely, the 4th Respondent-Bank to resort to sale under the provisions of the SARFAESI Act, as held by us in the earlier paragraphs, there should have been a fresh notice issued in accordance with Rules 8(6) and 9(l) of the Rules, 2002. Unfortunately, the 4th Respondent-Bank stated to have effected the sale on 28.12.2007 by accepting the tender of the Appellant and by way of further process, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant's property in favour of the fifth respondent will stand set aside and the sale deed shall stand invalidated on condition that appellant gives a DD for ₹ 2 crore from a local Branch of a Nationalised Bank in favour of the fifth respondent and the same will be handed over to him within two months from now. If payment is not made as above, sale in favour of the fifth respondent will stand confirmed and Writ Appeal will stand dismissed. (ii) If appellant makes payment as above, and sale gets cancelled by operation of judgment, then on giving DD the fifth respondent will hand over original sale deed obtained by him from the Bank to the appellant for the appellant to produce before the Sub Registry and revenue authorities for cancellation of registration, mutation, if any effected, and for restoration of property in the records of the Sub Registry and revenue authorities in favour of the appellant. (iii) The Bank will remit the excess amount available with them to the Tax Recovery Officer in pursuance to the demand to be credited in the account of the appellant, and it is for the appellant to claim refund, if eligible for him. (iv) We leave it open to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 2 to claim for refund if they were eligible. Liberty was also given to Respondents 1 and 2 to claim refund of stamp duty if eligible. 55. The said period of two months stipulated in sub-para (i) of paragraph 5 expired by 08.05.2010. It was pointed out to us by Mr. Krishnan, learned Senior Counsel for the Appellant that the very application seeking further six weeks time from 08.05.2010 for giving the Demand Draft of ₹ 2,00,00,000/- to the Appellant as per the Judgment dated 08.03.2010, was filed only on 10.06.2010 and that the Division Bench thereafter passed the present Order dated 18.06.2010 in I.A.437, i.e. more than a month after the expiry of the initial two months period, namely, 08.05.2010. Before adverting to the details of the Order dated 18.06.2010 passed in I.A. 437 of 2010, at the very outset it will have to be stated that having regard to the specific direction contained in sub-para (i) and (ii) of para 5 of the Judgment dated 08.03.2010 in Writ Appeal 1555 of 2009, by 08.05.2010, when Respondents 1 and 2 failed to hand over the Demand Draft of ₹ 2,00,00,000/-, as directed by the Division Bench to the Appellant, the Writ Appeal stood dismissed witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 010. While directing the Registry to list the SLP on the notified date, the parties were directed to maintain status quo with regard to the impugned order of the High Court dated 08.03.2010 till then. Thereafter, on 09.08.2010, service of notice on the Respondent was dispensed with since a caveat was entered on behalf of the 1st and 8th Respondents. While granting time for filing counter affidavit, as well as rejoinder, the Interim Order dated 30.07.2010, was directed to be continued. Vide Order dated 08.08.2013, while declining to vacate Status Quo Order dated 30.07.2010, the Special Leave Petition itself was directed to be listed for final hearing. Though the 8th Respondent is stated to have deposited the sum of ₹ 2,03,00,000/- with the 4th Respondent-Bank, as per the Order dated 18.06.2010 in IA No.437 of 2010, the other directions in the main Order dated 08.03.2010 in Writ Appeal No. 1555 of 2009 and the subsequent directions contained in the Orders dated 18.06.2010 and 08.07.2010, were not carried out. The sale which was already fixed in favour of the Appellant continued to remain in force and the sum of ₹ 2,03,00,000/-deposited by the 8th Respondent remains with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference to the right of ownership of the 1st and 2nd Respondents with reliance upon Article 300A of the Constitution would equally apply to the Appellant as well in such a situation. Therefore, such a right which accrued in favour of the Appellant ought not to have been interfered with by the Division Bench and the Orders passed in the interim application filed at the instance of the 1st and 2nd Respondents, along with the 8th Respondent herein are not justified. Therefore, while upholding the Judgment of the Division Bench dated 08.03.2010 passed in Writ Appeal 1555 of 2009, for the reasons stated herein, the Orders dated 18.06.2010 and 08.07.2010 passed in I.A. Nos.437 and 507 of 2010 are set aside. 59. Though we have found good grounds in favour of the Appellant to set at naught the above Orders passed in I.A. Nos.437 and 507 of 2010, we cannot also ignore one other very relevant factor, namely, that the value of the property which was knocked out in favour of the Appellant in a sum of ₹ 1,27,00,101/- by confirming the sale by the 4th Respondent-Bank on 31.12.2007 and 11.01.2008, the same was found to be not in accordance with the provisions of the SARFAESI Act. Sinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be for the 1st and 2nd Respondents to claim for refund if eligible. If there is no tax due, the 4th Respondent - Bank shall release the said sum of ₹ 76,00,000/- forthwith on deposit being made by the Appellant to Respondents 1 and 2. (D) Such deposit of ₹ 76,00,000/- shall be made by the Appellant within four weeks from the date of receipt of the copy of this Judgment. As and when the Appellant deposit the sum of ₹ 76,00,000/- towards the sale price of the property transferred in its favour, necessary receipt for the said payment by way of additional sale price shall be executed by the 4th Respondent-Bank along with the 1st and 2nd Respondents and whatever stamp duty and registration charges payable for that purpose shall be borne by the Appellant. (E) If the Appellant fails to deposit the balance sale consideration of ₹ 76,00,000/- within the stipulated time limit, as directed in paragraph 60(D), the sale already effected by the 4th Respondent-Bank shall stand cancelled automatically without any further reference to this Court. Eventually, the sale consideration deposited by the Appellant with the 4th Respondent-Bank shall be refunded to him ..... X X X X Extracts X X X X X X X X Extracts X X X X
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