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TMI Blog2018 (4) TMI 717X X X X Extracts X X X X X X X X Extracts X X X X ..... from Union Bank of India, Bangalore. For the default, account of the borrower was classified as Non-performing Asset. Demand notice, under Section 13 (2) of the SARFAESI Act, 2002, dated 13/5/2012, was issued. Possession notice, dated 20/3/2012, issued under Section 13 (4) of the SARFAESI Act, 2002, was challenged in S.A.No.345 of 2012, before the Debts Recovery Tribunal, Bangalore and the same was dismissed, on 22/1/2013. 4. Union Bank of India, Asset Recovery Branch, Bangalore, has issued a sale notice, dated 29/5/2013, for e-auction, fixing the date of sale, on 30/6/2013. The petitioner herein has challenged the sale notice, in S.A.No.329 of 2013, vide order, dated 20/9/2013, the Debts Recovery Appellate Tribunal, Bangalore, has dismissed the same. Thereafter, Bank has issued auction sale notice, dated 21/9/2013, fixing the date for sale, on 27/9/2013. In the notice, dated 21/9/2013, there were three items of properties in the schedule. On 27/9/2013, items 1 and 2 of the properties in the schedule, were sold. Therefore, Union Bank of India, Asset Recovery Branch, Bangalore, issued another sale notice, dated 21/9/2013, for auctioning the third item of the property, fixing the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also directed the petitioner to pay Rs. 75,000/-, as compensation, to the auction purchaser/third respondent, therein, within fifteen days, from the date of passing the order, in S.A.No.34 of 2014, dated 12/6/2015. 8. Debts Recovery Tribunal, Bangalore has further directed that if the writ petitioner fails to pay the said amount towards the registration charges, interest, bid amount deposited and compensation amount, as aforesaid, to the third respondent/auction purchaser, within fifteen days, from the date of passing of the order, in S.A.No.34 of 2014, Union Bank of India, Asset Recovery Branch, Bangalore will pay the same to the bidder/auction purchaser/third respondent and thereafter, recover the said amount, as part of loan from the revision petitioner, as required under law, together with interest, thereon. 9. Debts Recovery Tribunal, Bangalore has further directed that if the order made in S.A.No.34 of 2014, dated 12/6/2015, is not complied with, the respondent Bank is at liberty to move the Tribunal seeking suitable relief, as required under law. Debts Recovery Tribunal, Bangalore has also made it clear that the Authorised Officer of Union Bank of India, Asset Recovery Br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in favour of the auction purchaser was affirmed. However, quite contrary to the affirmation of sale, the appellate Tribunal has also observed that the borrower/writ petitioner has every right to redeem his property and accordingly, permitted the borrower, to make payment of the entire amount to the Bank, so as to make refund, to the auction purchaser. 13. In the instant Civil Revision Petition, borrower/writ petitioner has challenged the aforesaid order, made in R.A.(SA) No.45 of 2015, dated 10/2/2017, on the file of the Debts Recovery Appellate Tribunal, Chennai. 14. Though several grounds have been raised, inviting the attention of this Court to the auction notices, dated 21/9/2013, and 27/9/2013, published in newspapers, and the date fixed for auction of the sale properties therein, decision of the Hon'ble Supreme Court in Mathew Varghese Vs. M.Amritha Kumar and others {(2014) 5 Supreme Court Cases 610} and Vasu P.Shetty Vs. Hotel Vandana Palace and Others {(2014) 5 Supreme Court Cases 660}, Mr.T.Srinivasa Raghavan, learned counsel for the revision petitioner submitted that in so far as the first auction notice dated 20/9/2013, bringing three items of property for aucti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecovery Branch, first respondent, Mr.Ramesh for Mr.Srinath Sridevan, learned counsel for the Bank submitted that as on 15/9/2013, a sum of Rs. 1,60,32,326/-, was due and payable by the borrower. Earlier, possession notice, dated 20/3/2012, issued under Section 13 (4) of the SARFAESI Act, 2002, was challenged in S.A.No.345 of 2012 and that the same was dismissed by Debts Recovery Tribunal, Bangalore. He further submitted that the sale notice, dated 29/5/2013, was challenged by the borrower, in S.A.No.329 of 2013, and that the same was also dismissed for default, by the Debts Recovery Tribunal, Bangalore, on 20/9/2013. Borrower is a chronic defaulter, not paid any pie, continue to litigate, whenever Bank had taken measures to realise the debt and that therefore, there was no bona fide. 20. Added further, learned counsel for the Bank submitted that properties are situated at Bangalore. Merely because of a portion of cause of action had arisen, within the jurisdiction of this Court, that does not mean that the writ petition is maintainable, on the file of this Court. Thus, he has raised a preliminary objection, as to the exercise of jurisdiction, by this Court, under Article 226 and 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e administrative functioning of these courts and tribunals [Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil [(2010) 8 SCC 329]]. Hence, in light of the above, we expect that all the High Courts shall keep a close watch on the functioning of DRTs and DRAT, which fall within their respective jurisdictions. The High Courts shall ensure a smooth, efficient and transparent working of the said Tribunals. We are confident that through the timely and appropriate superintendence of the High Courts, the Tribunals shall adhere to the rigour of appropriate standards indispensable to the fair and efficient administration of justice." 25. In view of the decision extracted above, objection as to maintainability of the instant Civil Revision Petition, is over ruled. Let us also consider few cases, wherein revisional powers under Article 227 of the Constitution of India, can be exercised. (i) In Jodhey v. State reported in AIR 1952 All. 788, after setting out the history of Article 227 of the Constitution of India, the Allahabad High Court held thus, "9. A comparison of the above provision of law with analogous provisions of law prior to the Constitution of India brings into prominence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nary law of the land. Certain other minor changes in this Article are also noteworthy. A contrast of the marginal note appended to Article 227 of the Constitution of India with the marginal notes of Section 224, Government of the India Act, 1935, Section 107, Government of India Act 1915, and Section 15, High Courts Act, 1861, is instructive. The marginal note of Article 227 of the Constitution of India is "Power of superintendence over all Courts by the High Courts". This may be contrasted with the marginal note of Section 224, Government of India Act, 1935, which was "Administrative functions of the High Court" and the marginal note of Section 107, Government of India Act, 1915, which was "Powers of High Court with respect to subordinate Courts". Similarly, the marginal note of Section 15, High Courts Act, 1861, was "High Courts to superintend and to frame rules of practice for subordinate Courts", The alteration in this marginal note also emphasises the fact that the powers of the High Court under the Constitution extend not merely to administrative functions but embraces all functions, whether administrative or judicial. It also indicates that this power under the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vest the High Court with a power that is not fettered with any restriction and must embrace all aspects of the functions exercised by every Court and tribunal. On a proper interpretation of this clause it is difficult to my mind to hold that the powers of superintendence are confined only to administrative matters. There are no limits, fetters or restrictions placed on this power of superintendence in this Clause and the purpose of this Article seems to be to make the High Court the custodian of all justice within the territorial limits of its jurisdiction and to arm it with a weapon that could be wielded for the purpose of seeing that justice is meted out fairly and properly by the bodies mentioned therein. To fulfil this function it seems to me that the power of superintendence of the High Court over judicial matters is as necessary as over administrative matters. As a matter of fact judicial function of a Court is not less important than its administrative function. In fact it is more necessary to rectify lapses in judicial matters than defects in administrative matters. A judicial error might affect the rights, liberty and freedom of the subject whereas an administrative error ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the High Court. The prohibited area is to be found within the four corners of the constitution itself and nowhere else. 15. The fact that these unlimited powers are vested in the High Court should, however, make the High Court more cautious in its exercise. The self-imposed limits of these powers are established and laid down by the High Courts themselves. It seems to me that these powers cannot be exercised unless there has been an unwarranted assumption of jurisdiction not possessed by Courts or a gross abuse of jurisdiction possessed by them or an unjutifiable refusal to exercise a jurisdiction vested in them by law. Apart from matters relating to jurisdiction, the High Court may be moved to act under it when there has been a flagrant abuse of the elementary principles of justice or a manifest error of law patent on the face of the record or an outrageous miscarriage of justice which calls for remedy. Under this power, the High Court will not be justified in converting itself into a Court of appeal and subverting findings of fact by a minute scrutiny of evidence or interfering with the discretionary orders of Court. Further, this power should not be exercised, if there is so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Crown in motion." (Administrative Law, Eighth Edition, page 591). 8. The learned authors go on to add that problem arose on exercising control over justices of the peace, both in their judicial and their administrative functions as also the problem of controlling the special statutory body which was addressed to by the Court of King's Bench. "The most useful instruments which the Court found ready to hand were the prerogative writs. But not unnaturally the control exercised was strictly legal, and no longer political. Certiorari would issue to call up the records of justices of the peace and commissioners for examination in the King's Bench and for quashing if any legal defect was found. At first there was much quashing for defects of form on the record, i.e. for error on the face. Later, as the doctrine of ultra vires developed, that became the dominant principle of control" (page 592). 9. The nature and scope of the writ of certiorari and when can it issue was beautifully set out in a concise passage, quoted hereafter, by Lord Chancellor Viscount Simon in Ryots of Garabandho and other villages Vs. Zamindar of Parlakimedi and Anr. - AIR 1943 PC 164. "The ancient writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice; (3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of fact reached by the inferior court or tribunal, even if they be erroneous. (4) An error in the decision or determination itself may also be amenable to a writ of certiorari if it is a manifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision." 11. In the initial years the Supreme Court was not inclined to depart from the traditional role of certiorari jurisdiction and consistent with the historical background felt itself bound by such procedural technicalities as were well-known to the English judges. In later years the Supreme Court has relaxed the procedural and technical rigours, yet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt has acted (i) without jurisdiction, or (ii) in excess of its jurisdiction. The want of jurisdiction may arise from the nature of the subject-matter of the proceedings or from the absence of some preliminary proceedings or the court itself may not have been legally constituted or suffering from certain disability by reason of extraneous circumstances. Certiorari may also issue if the court or tribunal though competent has acted in flagrant disregard of the rules or procedure or in violation of the principles of natural justice where no particular procedure is prescribed. An error in the decision or determination itself may also be amenable to a writ of certiorari subject to the following factors being available if the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law but a mere wrong decision is not amenable to a writ of certiorari. 15. Any authority or body of persons constituted by law or having legal authority to adjudicate upon questions affecting the rights of a subject and enjoined with a duty to act judicially or quasi-judicially is amenable to the certiorari jurisdiction of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inding authority for the proposition that a judge sitting on the Original Side of the High Court cannot be called a court 'inferior or subordinate to High Court' so as to make his orders amenable to writ jurisdiction of the High Court. Secondly, the abovesaid passage has been quoted but nowhere the Court has laid down as law by way its own holding that a writ of certiorari by High Court cannot be directed to Court subordinate to it. And lastly, the passage from Halsbury quoted in Naresh Shridhar Mirajkar's case (supra) is from third edition of Halsbury Laws of England (Simond's Edition, 1955). The law has undergone a change in England itself and this changed legal position has been noted in a Constitution Bench decision of this Court in Rupa Ashok Hurra Vs. Ashok Hurra and Anr. - (2002) 4 SCC 388. Justice SSM Quadri speaking for the Constitution Bench has quoted the following passage from Halsbury's Laws of England, 4th Edn.(Reissue) Vol.1 (1) : "103. Historically, prohibition was a writ whereby the royal courts of common law prohibited other courts from entertaining matters falling within the exclusive jurisdiction of the common law courts; certiorari was iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icated arguments or an error in a long-drawn process of reasoning on points where there may conceivably be two opinions cannot be called a patent error. In a writ of certiorari the High Court may quash the proceedings of the tribunal, authority or court but may not substitute its own findings or directions in lieu of one given in the proceedings forming the subject-matter of certiorari. 21. Certiorari jurisdiction though available is not to be exercised as a matter of course. The High Court would be justified in refusing the writ of certiorari if no failure of justice has been occasioned. In exercising the certiorari jurisdiction the procedure ordinarily followed by the High Court is to command the inferior court or tribunal to certify its record or proceedings to the High Court for its inspection so as to enable the High Court to determine whether on the face of the record the inferior court has committed any of the preceding errors occasioning failure of justice. 22. Article 227 of the Constitution confers on every High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction excepting any court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court while proceedings under Article 227 of the Constitution are not original but only supervisory.Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915 excepting that the power of superintendence has been extended by this Article to tribunals as well. Though the power is akin to that of an ordinary court of appeal, yet the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction. 25. Upon a review of decided cases and a survey of the occasions wherein the High Courts have exercised jurisdiction to command a writ of certiorari or to exercise supervis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on experience and expressed by enactments where the Legislature in exercise of its wisdom has deliberately chosen certain orders and proceedings to be kept away from exercise of appellate and revisional jurisdiction in the hope of accelerating the conclusion of the proceedings and avoiding delay and procrastination which is occasioned by subjecting every order at every stage of proceedings to judicial review by way of appeal or revision. So long as an error is capable of being corrected by a superior court in exercise of appellate or revisional jurisdiction though available to be exercised only at the conclusion of the proceedings, it would be sound exercise of discretion on the part of the High Court to refuse to exercise power of superintendence during the pendency of the proceedings. However, there may be cases where but for invoking the supervisory jurisdiction, the jurisdictional error committed by the inferior court or tribunal would be incapable of being remedied once the proceedings have concluded. 27. In Chandrasekhar Singh & Ors. Vs. Siva Ram Singh & Ors., (1979) 3 SCC 118, the scope of jurisdiction under Article 227 of the Constitution came up for the consideration of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution is part of the basic structure of the Constitution, forming its integral and essential feature, which cannot be tampered with much less taken away even by constitutional amendment, not to speak of a parliamentary legislation. A recent Division Bench decision by Delhi High Court (Dalveer Bhandari and H.R. Malhotra, JJ) in Criminal Writ Petition NO.s.758, 917 and 1295 of 2002 - Govind Vs. State (Govt. of NCT of Delhi) decided on April 7, 2003 (reported as [2003] 6 ILD 468 makes an indepth survey of decided cases including almost all the leading decisions by this Court and holds - "The power of the High Court under Article 226 cannot be whittled down, nullified, curtailed, abrogated, diluted or taken either by judicial pronouncement or by the legislative enactment or even by the amendment of the Constitution. The power of judicial review is an inherent part of the basic structure and it cannot be abrogated without affecting the basic structure of the Constitution." The essence of constitutional and legal principles, relevant to the issue at hand, has been correctly summed up by the Division Bench of the High Court and we record our approval of the same. 30. It is interestin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that no man is convicted without a legal reason. A defect of jurisdiction or fraud on the part of the prosecutor or error on the "face of the proceedings" as understood in Indian practice, provides a ground for the exercise of the power of superintendence. The line between the two classes of case must be, however, kept clear and straight. In general words, the High Court's power of superintendence is a power to keep subordinate Courts within the bounds of their authority, to see that they do what their duty requires and that they do it in a legal manner. 32. The principles deducible, well-settled as they are, have been well summed up and stated by a two-judges Bench of this Court recently in State, through Special Cell, New Delhi Vs. Navjot Sandhu @ Afshan Guru and Ors., JT 2003 (4) SC 605, para 28. This Court held : (i) the jurisdiction under Article 227 cannot be limited or fettered by any Act of the state Legislature; (ii) the supervisory jurisdiction is wide and can be used to meet the ends of justice, also to interfere even with interlocutory order; (iii) the power must be exercised sparingly, only to move subordinate courts and Tribunals within the bounds of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rieved party approaches the High Court under Art. 226 of the Constitution against an order passed in civil suit refusing to issue injunction to a private individual who is not under statutory duty to perform public duty or vacating an order of injunction, the main relief is for issue of a writ of mandamus to a private individual and such a writ petition under Art.226 of the Constitution would not be maintainable." 36. It seems that the High Court in its decision impugned herein formed an impression from the abovequoted passage that a prayer for issuance of injunction having been refused by trial court as well as the appellate court, both being subordinate to High Court and the dispute being between two private parties, issuance of injunction by High Court amounts to issuance of a mandamus against a private party which is not permissible in law. 37. The above quoted sentence from Ganga Saran's case cannot be read torn out of the context. All that the Full Bench has said is that while exercising certiorari jurisdiction over a decision of the court below refusing to issue an order of injunction, the High Court would not, while issuing a writ of certiorari, also issue a mandamus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby. (6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... working rules, the fact remains that the parameters for exercise of jurisdiction under Articles 226 or 227 of the Constitution cannot be tied down in a straitjacket formula or rigid rules. Not less than often the High Court would be faced with dilemma. If it intervenes in pending proceedings there is bound to be delay in termination of proceedings. If it does not intervene, the error of the moment may earn immunity from correction. The facts and circumstances of a given case may make it more appropriate for the High Court to exercise selfhttp:// restraint and not to intervene because the error of jurisdiction though committed is yet capable of being taken care of and corrected at a later stage and the wrong done, if any, would be set right and rights and equities adjusted in appeal or revision preferred at the conclusion of the proceedings. But there may be cases where 'a stitch in time would save nine'. At the end, we may sum up by saying that the power is there but the exercise is discretionary which will be governed solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the Judge." (iv) In Following Surya Devi's case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have acted (i) without jurisdiction by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice." 24. It is clear that whether it is a writ of Certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. It is also clear that the High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. 25. As observed in Surya Dev Rai vs. Ram Chander Rai (supra), the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot justify the exercise of its discretionary powers under Article 227of the Constitution as to the finding of fact; unless such finding of fact is clearly perverse and patently unreasonable. 17. In Chandavarkar Sita Ratna Rao v. Ashalata S.Guram, (1986) 4 SCC 447, the Apex Court at page 460, para (4) has held thus:- "It is true that in exercise of jurisdiction under Article 227 of the Constitution the High Court could go into the question of facts or look into the evidence if justice so requires it, if there is any misdirection in law or a view of fact taken in the teeth of preponderance of evidence. But the High Court should decline to exercise its jurisdiction under Articles 226 and 277 of the Constitution to look into the fact in the absence of clear and cut down reasons where the question depends upon the appreciation of evidence. The High Court also should not interfere with a finding within the jurisdiction of the inferior tribunal except where the findings are perverse and not based on any material evidence or it resulted in manifest injustice. Except to the limited extent indicated above, the High Court has no jurisdiction. In our opinion therefore, in the facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However, the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not terms purport to exercise any such discretionary power. It is settled law that this power of judicial superintendence , under Article 227, must be exercised sparingly and only to keep subordinate court and tribunals within the bounds of their authority and not to correct mere errors. Further, where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227could not be exercised "as the cloak of an appeal in disguise". 20. In Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675, the Apex Court has held that exercise of power under Article 226 is available only to correct the error committ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justitiae, i.e. to meet the ends of justice. It is equitable in nature. While exercising supervisory jurisdiction, a High Court not only acts as a court of law but also as a court of equity. It is, therefore, power and also the duty of the Court to ensure that power of superintendence must 'advance the ends of justice and uproot injustice'." 26. Material on record discloses that Bank has resorted to measures under the SARFAESI Act, 2002. Possession notice, dated 20/3/2012, issued under Section 13 (4) of the SARFAESI Act, 2002, has been challenged in S.A.No.345 of 2012. Debts Recovery Tribunal, Bangalore has dismissed the same. Thereafter, e-auction notice, dated 28/5/2013, has been issued by the Bank, fixing the auction, on 20/6/2013. Revision petitioner has challenged the same, in S.A.No.329 of 2013. When the writ petitioner did not appear, on 20/9/2013, Debts Recovery Tribunal, Bangalore, has dismissed S.A.No.329 of 2013 for default. 27. Merely because the writ petitioner had challenged the possession notice, dated 20/3/2012, and failed, and the subsequent challenge to the e-auction notice, dated 28/5/2013, was also dismissed for default, the above do not foreclose the ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e earlier paragraphs, there should have been a fresh notice issued in accordance with Rules 8(6) and 9(1) 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, directed the Appellant to deposit the 25% of the amount on that very day and also directed to deposit the balance amount within 15 days, which was deposited by the appellant on 11-1-2008. 29. In Vasu P. Shetty Vs. Hotel Vandana Palace and Others, reported in {(2014) 5 Supreme Court Cases 660}, the Hon'ble Supreme Court held as follows:- "12. We may point out, at the outset, that the opinion of the High Court on the interpretation of sub-Rules (5)and (6)of Rule 8 of the Rules is flawless. In this behalf it would be pertinent to mention that there is an imprimatur of this court as identical meaning is assigned to these provisions. In the case of Mathew Varghese v. M. Amritha Kumarr & Ors.; 2014 (2) SCALE 331. The aforesaid judgment has been followed by this very Bench of the Court in C.A. No. 3865 of 2014 titled as J. Rajiv Subramaniyan & Anr. v. M/s Pandiyas & Ors. decided on March 14, 2014, wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssets will be sold to provide maximum benefit to the borrowers. The notice is also necessary to ensure that the secured creditor or any one on its behalf is not allowed to exploit the situation by virtue of proceedings initiated under the SARFAESI Act, 2002. 14. Thereafter, in Paragraph 27, the Court observed as follows:- "30. Therefore, by virtue of the stipulations contained under the provisions of the SARFAESI Act, in particular, Section 13(8), any sale or transfer of a SECURED ASSET, cannot take place without duly informing the borrower of the time and date of such sale or transfer in order to enable the borrower to tender the dues of the SECURED CREDITOR with all costs, charges and expenses and any such sale or transfer effected without complying with the said statutory requirement would be a constitutional violation and nullify the ultimate sale." 1 5. As noticed above, this Court also examined Rules 8 and 9 of the Rules, 2002. On a detailed analysis of Rules 8 and 9(1), it has been held that any sale effected without complying with the same would be unconstitutional and, therefore, null and void. 30. Possession of the secured asset, sale, including the right to tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned, in the tender-cum-auction, dated 20/9/2013, have been sold. In respect of the third item of property mentioned in the tender-cum-auction, dated 20/9/2013, another tender cum auction notice, dated 27/9/2013, has been issued to bring the same for auction, on 30/9/2013. Here again, the opening sentence of the tender-cumauction- cum-sale notice, dated 27/9/2013 reads thus:- "In continuation of the e-auction notice published in Indian Express and Kannada Prabha on 29/5/2013, 21/9/2013 under SARFAESI Act, 2002, the property would be sold on 30/9/2013 between 11 am and 12 noon." 36. As stated supra, notice dated 27/9/2013, is stated to be a continuation of the earlier notices, and that there was just three days gap between the tender cum auction notice and sale. 37. Property described as item No.3 in the notice, dated 20/9/2013, is the same, in the notice, dated 27/9/2013. Sale certificates issued on 17/10/2013, 22/10/2013 and 23/10/2013, to the auction purchasers, in respect of the properties, are extracted hereunder:- Schedule 7 Rule 9 (b) SALE CERTIFICATE Whereas The undersigned being the Authorised Officer of the Union Bank of India, Asset Recovery Branch, Avenu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dersigned acknowledge the receipt of the sale price of Rs. 41.65 lacs (Rupees Forty one lacs sixty five thousand only) in full and handed over the delivery and possession of the scheduled property. The sale of the scheduled property was made free from all encumbrances known to the secured creditor listed below on deposit of money demanded by the undersigned. DESCRIPTION OF IMMOVABLE PROPERTY All that piece and parcel of Municipal Site No.10, I B Main Road, Nagarbhavi, 39th Ward, Khatha No.55/5, Yeshwanthpur Hobli, Bangalore North Taluk, measuring East to West 30 ft and North to South by 40 ft totally 1200 sq ft together with all rights, appurtenances whatsoever whether underneath or above the surface of the property and bounded on the East by: Sie No.14 West by: Road North by: Site No.4 South by: Site No.6 * * * * * Schedule 7 Rule 9 (b) SALE CERTIFICATE Whereas The undersigned being the Authorised Officer of the Union Bank of India, Asset Recovery Branch, Avenue Road, Bangalore, under Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, in exercise of the powers conferred under Section 13 read with Rule 9 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de that if the sale of the such secured asset is being effected 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 authorised officer considers it material for a purchaser to know in order to judge the nature and value of the property. 9. Time of same, issues of sale certificate and delivery of possession, etc.- (1) No sale of immovable property under these rules shall take place before the expiry of 30 days from the date on which the public notice of sale is published in newsp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmined by him. [Provided that if after meeting the cost of removing encumbrances and contingencies there is any surplus available out of the money deposited by the purchaser such surplus shall be paid to the purchase within fifteen days from the date of finalisation of the sale. (8) On such deposit of money for discharge of the encumbrances the Authorised Officer shall issue or cause the purchaser to issue notices to the persons interested in or entitled to the money deposited with him and take steps to make the payment accordingly. (9) The authorised officer shall deliver the property to the purchaser free from encumbrances known to the secured creditor on deposit of money as specified in sub-rule (7) above. (10) The certificate of sale issued under sub-rule (6) shall specifically mention that whether the purchaser has purchased the immovable secured asset free from any encumbrances known to the secured creditor or not." 39. Merely because the petitioner has committed default in payment and even taking it for granted that there was dilatory tactics, in repayment, and that the borrower has been litigating, by filing applications before the Tribunal, the same are not tena ..... X X X X Extracts X X X X X X X X Extracts X X X X
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