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TMI Blog2015 (3) TMI 281X X X X Extracts X X X X X X X X Extracts X X X X ..... RFAESI Act, 2002 by failing to obtain the consent of the writ petitioner who is the owner of the property put up for sale when extending the time for deposit of the balance purchase price by the purchaser. Such consent of the writ petitioner is mandatory as laid down in J. Rajiv Subramaniyan & Anr. In such circumstances I find that the sale conducted by the secured creditor in respect of the property of the writ petitioner put up for sale by the notice dated April 11, 2014 is vitiated. Such sale is declared as null and void. - Decided in favour of appellant. - W.P. No. 1065 of 2014 - - - Dated:- 2-12-2014 - Debangsu Basak, J. For the Petitioner : Mr. Nimish Mishra, Advocate For the Respondent : Mr. Om Narayan Rai, Advocate JUDGMENT DEBANGSU BASAK, J.:- Measures taken by a secured creditor under the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act, 2002) is under challenge at the instance of the writ petitioner. The writ petitioner is the owner of an immovable put up for sale by the secured creditor under the provisions of the SARFAESI Act, 2002. The writ petitioner cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition not to be admitted by the respondents. Learned Counsel for the respondents submits that, the writ petitioner had an alternative statutory remedy under the provisions of the SARFAESI Act, 2002. She had chosen to waive her right to approach the Debts Recovery Tribunal under the provisions of the SARFAESI Act, 2002 by not approaching the Debts Recovery Tribunal within prescribed period. The actions complained are of May 2014. Relying on the averments at paragraph 19 of the writ petition, it is submitted on behalf of the respondents that, the writ petitioner was aware that the balance of the purchase price was deposited in the month of September 2014. The writ petitioner had a remedy by way of an approach being made to the Debts Recovery Tribunal under Section 17 of the SARFAESI Act, 2002 against the so-called extension of time. She had 45 days from September 2014 to make such application. The writ petitioner allowed the period of 45 days to prefer an appeal under Section 17 of the SARFAESI Act, 2002 to lapse. The writ petitioner having allowed such statutory period of time to elapse, the writ petitioner is deemed to have waived her right. In this regard reliance is placed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date when writ petition was affirmed). In A.V. Venkateswaran (supra) and in K.K. Shrivastava (supra) the Supreme Court was of the view that, if a petitioner had disabled himself from availing of a statutory remedy by his own fault in not doing so within the prescribed time, he cannot be certainly be permitted to urge that as a ground for the Court dealing with his petition under Article 226 to exercise its discretion in his favour. On the factual matrix as that of the present petition I do not find that the writ petitioner has disabled herself from moving a writ by not availing of a statutory remedy within the prescribed period. For the prescribed period under Section 17 of the SARFAESI Act, 2002 to commence, it must be shown by the secured creditor that, the writ petitioner was aware of the measure taken by the secured creditor complained of, and that such measure was taken at a given point of time and that a period of 45 days in terms of Section 17 of the SARFAESI Act, 2002 had expired since the date of such measure being taken. In the instant case, the secured creditor has proceeded to extend the time to deposit the balance purchase price without any reference to the writ pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on that, the purchaser deposited the balance purchase amount in the second week of the month of September 2014. This averment is not denied by the respondents. It is also not denied by the respondents that, the sale was confirmed on May 17, 2014. In G.M., Sri Siddeshwara Co-operative Bank Ltd. Anr. (supra) the Supreme Court considered Rule 9 of the Security Interest (Enforcement) Rules, 2002. In paragraph 14 of such report the Supreme Court was of the view that:- 14. A reading of sub-rule (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, sub-rule (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 ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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