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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 ..... secured assets to the borrower or other aggrieved person. The interest of the auction purchaser also requires should be protected - Union Bank of India directed to refund the bid amount with 9% interest, to the auction purchaser, within thirty days from the date of receipt of a copy of this order. Compensation of ₹ 75,000/- awarded by the Debts Recovery Tribunal, is set aside. If the petitioner is dispossessed, auction purchaser and Union Bank of India, are directed to restore possession of the aforementioned property to the writ petitioner, within one month, from the date of receipt of a copy of this order - petition disposed off. - C.R.P (PD).No.3697 of 2017 - - - Dated:- 17-1-2018 - MR. S. MANIKUMAR AND MR. V. BHAVANI SUBBAROYAN, JJ. For The Petitioner : Mr. T. Srinivasaraghavan For The Respondents : Mr.Ramesh And Mr. Srinath Sridevan ORDER (Order of the Court was made by S.MANIKUMAR, J) Challenge in this Civil Revision Petition, is to an order, made in R.A.(SA) No.45 of 2015, dated 10/2/2017, by which the Debts Recovery Appellate Tribunal, Chennai, set aside the order, dated 12/6/2015, made in S.A.No.34 of 2014, by the Debts Rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner. 5. Bank has filed the response. 6. After considering the rival submissions, statutory provisions, in particular, Rules 8 and 9 of the Security Interest (Enforcement) Rules, 2002, which contemplate issuance of paper publication of thirty days, and the decisions submitted by both parties, Debts Recovery Tribunal, Bangalore, vide order, dated 12/6/2015, in S.A.No.34 of 2014, set aside the sale notices, dated 21/9/2013 and 27/9/2013 and also the sale certificate, issued in respect of the residential property, bearing No.19 presently, bearing BBMP Khatha No.80 (Old No.51) PID No.35-08-80 in Ward No.35, situated at 1st Main Road, Marenahalli, Bangalore (carved out of land Sy.No.175 of Marenahalli Village), presently, within the limits of Bruhat Bangalore Mahanagara Palike, measuring East to West 30 ft and North to South 40 ft, totally measuring 1200 sq ft, comprising of Ground Floor, residential building of about 6 squares, with all civil amenities. 7. Debts Recovery Tribunal, Bangalore, has also directed Union Bank of India, Asset Recovery Branch, to refund the entire amount deposited by the auction purchaser, third respondent therein, within fifteen days, from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'ble Supreme Court, in Janak Raj Vs. Gurudial Singh, reported in AIR 1967 SC 608. Bank has further contended that Debts Recovery Tribunal, Bangalore, has failed to consider that the revision petitioner was a recalcitrant litigant. Other directions of the Debts Recovery Tribunal, Bangalore, to pay interest, at the rate of 9% p.a., on the bid amount of the auction purchaser, registration expenses, etc., were also questioned. 12. After considering the rival submissions, earlier round of litigation between the petitioner and the Bank and in particular, the main challenge of the borrower that the appellant Bank had failed to maintain the clear gap of 30 days between the sale notices and thus, there is violation of Rules 8 and 9 of the Security Interest (Enforcement) Rules, 2002, and the decisions in Vasu P.Shetty Vs. Hotel Vandana Palace and Others {(2014) 5 Supreme Court Cases 660}, and Prestige Lights Vs. State Bank of India, reported in 2007 (8) SCC 420, and by observing that the borrower has not shown any intention of payment, there is a lack of bona fides and even on an earlier occasion, when auction notice was challenged, it was unsuccessful and thus, in the abovesaid cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstant case, period of 30 days was not given, between the sale notice and sale. In view of the above said violation, the sale held, on 30/9/2013, is totally invalid and consequently, the sale certificate issued is illegal. 16. He further submitted that the Debts Recovery Appellate Tribunal, has failed to consider that even assuming without admitting that action of the borrower was to protract the proceedings, the secured creditor cannot violate the statutory provisions. The Debts Recovery Appellate Tribunal has failed to consider that whenever there was a move by the first respondent Bank, the petitioner had challenged the same. Thus, the conduct of the petitioner, far from waiving the mandatory requirement, was to confront the first respondent bank, by questioning the validity of its action. The Debts Recovery Appellate Tribunal has failed to note that there is no iota of evidence or material, suggesting any waiver, on the part of the petitioner herein. 17. While referring to the case of Vasu P.Shetty Vs. Hotel Vandana Palace and Others, reported in (2014) 5 SCC 660, the Debts Recovery Appellate Tribunal, at paragraph 8, has misunderstood the ratio of the said judgment and m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner is a chronic defaulter, and not entitled to the relief sought for, he prayed for dismissal of the Civil Revision Petition. 23. Heard the learned counsel for the parties and perused the materials available on record. 24. Firstly, on the preliminary objection, as regards maintainability of the instant petition, that the properties are situated at Bangalore, and that therefore, merely because the appellate Tribunal is situated within the territorial limits of this High Court, said fact alone would not confer the power of judicial review, under Article 226 and 227 of the Constitution of India, reiterating the powers of the High Court over the functioning of the DRT/DRAT, the Hon'ble Supreme Court in Union of India v. Debts Recovery Tribunal Bar Association reported in 2013 (2) SCC 574, at Paragraph 10.2, held as follows: 10. Further, we believe that the High Courts are empowered to exercise their jurisdiction of superintendence under Article 227 of the Constitution of India in order to oversee the functioning of the DRTs and DRATs. Section 18 of the RDDBFI Act leaves no scope for doubt in this behalf. It reads thus: 18. Bar of Jurisdiction.- On and from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on which was contained not only in the Government of India Act 1935 but also in the Government of India Act, 1915, as well as in the High Court Act, 1861, are also omitted from Article 227 of the Constitution of India. The effect of this omission to my mind is to make it clear beyond doubt that all Courts functioning within the territory in relation to which the High Court exercises its jurisdiction were subject to supervisory jurisdiction of High Court. Thus even special Courts set up under Acts of legislature for specific purposes would also be subject to its jurisdiction. It seems to me that in this regard Article 227 has vested the High Court with a greater power than that given to it even under the Government of India Act, 1915, or the High Court Act, 1861. It is also relevent in this connection to note that the Constitution of India has given this supervisory power to the High Court not only over all Courts but also over all tribunals throughout the territories in relation to which it exercises its jurisdiction. The word 'tribunals' did not find a place either in the Government of India Act of 1935 or in the Government of India Act 1915 or in the High Court Act, 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arginal notes inserted in those circumstances have been held to be admissible by a Full Bench decision of the Allahabad-High Court in Ram Saran v. Bhagwat Prasad, A.I.R. 1929 ALL. 53 (F.B.) by a Full Bench decision of the late Chief Court of Avadh in Emperor v. Mumtaz Husain, A. I. E. 1935 Oudh 337 (F.B.) and by a Full Bench decision of the Bombay; High Court in Emperor v. Ismail Sayad Saheb Mujawar, A.I.E. 1933 Bom. 417 (P.B.). In a recent decision of the Bombay High Court reported in the State of Bombay v. Heman Santlal, A.I.R. 1952 Bom. 16, it was held by Chagla C.J. that the marginal notes of the Constitution may be referred to for the purpose of understanding the drift of the Articles. In Suresh Chandra v. Bank of Calcutta Ltd., 54 Cal. W.N 832 at p. 836 the marginal notes of an Indian Act were compared with the corresponding marginal notes of the English Act to elucidate the meaning of the section. The contrary view expressed in the Commr. of Income-Tax Excess Profit Tax v. Parasram Jethanand, A.I.R, 1950 Mad. 631 and Sutlej Cotton Mills Ltd v. Commr, of Income- Tax, West Bengal, A.I.R. 1950 Cal. 551 should not therefore, be accepted without qualification. The opinion which I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstances of superintendence in the administrative field. The use of words without prejudice to the generality of the foregoing provision is not without significance. It seems to imply that the power of superintendence over administrative functions given to the High Court does not in any way derogate from the general power of superintendence given by Clause (1). 12. Clause (a) of Article 227 again enumerates certain specific matters which would fall on the administrative side of the work of a Court. 13. Clause (4) shows that the only Courts exempted from the superintendence of the High Court are Courts or tribunals constituted by or under any law relating to the Armed Force's. A mention of the solitary exemption also emphasises the clear field of superintendence which is left within the jurisdiction of the High Court after exempting the prohibited area covered by the Military Courts or tribunals mentioned therein. 14. A reading of the entire Article 227 of the Constitution of India in the light of the antecedent law on the subject leads one to the irresistible conclusion that the purpose of the constitution makers was to make the High Court responsible for the entire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ental basic principles of justice and fair play or where the order passed results in manifest injustice, that a court can jusitifiably intervene under Article 227 of the Constitution. (iii) The Hon'ble Apex Court in Surya Dev Rai v. Ram Chander Rai and Others reported in (2003) 6 SCC 675 held, a revision could be maintained under certain circumstances, invoking Article 227 of the Constitution of India, and therefore, it is not possible to hold that no revision is maintainable under any provisions of law. In this view, when it is shown that the trial court has failed to exercise its jurisdiction, properly applying the provisions of law, or when it is so that the trial court has wrongly exercised its jurisdiction, offending the statute, then, invoking the supervisory jurisdiction of this Court, can be interfered by this Court. The Hon'ble Supreme Court, at paragraph Nos.6 to 39, held as follows: 6. According to Corpus Juris Secundum (Vol.14, page 121) certiorari is a writ issued from a superior court to an inferior court or tribunal commanding the latter to send up the record of a particular case. 7. H.W.R. Wade C.F. Forsyth define certiorari in these words :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther hand, its application is not narrowly limited to inferior Courts in the strictest sense. Broadly speaking, it may be said that if the act done by the inferior body is a judicial act, as distinguished from being a ministerial act, certiorari will lie. The remedy, in point of principle, is derived from the superintending authority which the Sovereign's Superior Courts, and in particular the Court of King's Bench, possess and exercise over inferior jurisdictions. This principle has been transplanted to other parts of the King's dominions, and operates, within certain limits, in British India. 10. Article 226 of the Constitution of India preserves to the High Court power to issue writ of certiorari amongst others. The principles on which the writ of certiorari is issued are well-settled. It would suffice for our purpose to quote from the 7-Judge Bench decision of this Court in Hari Vishnu Kamath Vs. Ahmad Ishaque and Ors. (1955) 1 SCR 1104. The four propositions laid down therein were summarized by the Constitution Bench in The Custodian of Evacuee Property Bangalore Vs. Khan Saheb Abdul Shukoor etc. (1961) 3 SCR 855 as under :- the High Court was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ills Division and Appeals, Assam Ors., (1958) SCR 1240, the parameters for the exercise of jurisdiction, calling upon the issuance of writ of certiorari where so set out by the Constitution Bench : The Common law writ, now called the order of certiorari, which has also been adopted by our Constitution, is not meant to take the place of an appeal where the Statute does not confer a right of appeal. Its purpose is only to determine, on an examination of the record, whether the inferior tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of the law which it was meant to administer. Mere formal or technical errors, even though of law, will not be sufficient to attract this extra-ordinary jurisdiction. Where the errors cannot be said to be errors of law apparent on the face of the record, but they are merely errors in appreciation of documentary evidence or affidavits, errors in drawing inferences or omission to draw inference or in other words errors which a court sitting as a court of appeal only, could have examined and, if necessary, corrected and the appellate authority under a statute in question has unlimited jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay High Court sitting on the Original Side passed an oral order restraining the Press from publishing certain court proceedings. This order was sought to be impugned by filing a writ petition under Article 226 of the Constitution before a Division Bench of the High Court which dismissed the writ petition on the ground that the impugned order was a judicial order of the High Court and hence not amenable to a writ under Article 226. The petitioner then moved this Court under Article 32of the Constitution for enforcement of his fundamental rights under Article 19(1)(a) and (g) of the Constitution. During the course of majority judgment Chief Justice Gajendragadkar quoted the following passage from Halsbury Laws Of England (Vol.11 pages 129, 130) from the foot- note : ( .in the case of judgments of inferior courts of civil jurisdiction) it has been suggested that certiorari might be granted to quash them for want of jurisdiction [Kemp v. Balne (1844), 1 Dow. L. 885, at p.887], inasmuch as an error did not lie upon that ground. But there appears to be no reported case in which the judgment of an inferior Court of civil jurisdiction has been quashed on certiorari, either for want o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch forbids that court or tribunal or authority to act in excess of its jurisdiction or contrary to law. Both certiorari and prohibition are employed for the control of inferior courts, tribunals and public authorities. 18. Naresh Shridhar Mirajkar's case was cited before the Constitution Bench in Rupa Ashok Hurra's case and considered. It has been clearly held : (i) that it is a wellsettled principle that the technicalities associated with the prerogative writs in English law have no role to play under our constitutional scheme; (ii) that a writ of certiorari to call for records and examine the same for passing appropriate orders, is issued by superior court to an inferior court which certifies its records for examination; and (iii) that a High Court cannot issue a writ to another High Court, nor can one Bench of a High Court issue a writ to a different Bench of the High Court; much less can writ jurisdiction of a High Court be invoked to seek issuance of a writ of certiorari to the Supreme Court. The High Courts are not constituted as inferior courts in our constitutional scheme. 19. Thus, there is no manner of doubt that the orders and proceedings of a judicial c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving the path of justice and removing any obstacles therein. The power under Article 227 is wider than the one conferred on the High Court by Article 226 in the sense that the power of superintendence is not subject to those technicalities of procedure or traditional fetters which are to be found in certiorari jurisdiction. Else the parameters invoking the exercise of power are almost similar. 23. The history of supervisory jurisdiction exercised by the High Court, and how the jurisdiction has culminated into its present shape under Article 227 of the Constitution, was traced in Waryam Singh Anr. Vs. Amarnath Anr. (1954) SCR 565. The jurisdiction can be traced back to Section 15 of High Courts Act 1861 which gave a power of judicial superintendence to the High Court apart from and independently of the provisions of other laws conferring revisionsal jurisdiction on the High Court. Section 107 of the Government of India Act 1915 and then Section 224 of the Government of India Act 1935, were similarly worded and reproduced the predecessor provision. However, sub-section (2) was added in Section 224which confined the jurisdiction of the High Court to such judgments of the inferi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orari is an exercise of its original jurisdiction by the High Court; exercise of supervisory jurisdiction is not an original jurisdiction and in this sense it is akin to appellate revisional or corrective jurisdiction. Secondly, in a writ of certiorari, the record of the proceedings having been certified and sent up by the inferior court or tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may simply annul or quash the proceedings and then do no more. In exercise of supervisory jurisdiction the High Court may not only quash or set aside the impugned proceedings, judgment or order but it may also make such directions as the facts and circumstances of the case may warrant, may be by way of guiding the inferior court or tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the High Court. In appropriate cases the High Court, while exercising supervisory jurisdiction, may substitute such a decision of its own in place of the impugned decision, as the inferior court or tribunal should have made. Lastly, the jurisdiction under Article 226 of the Constitution is capable of being exercised on a prayer made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by Article 227 is to be exercised sparingly and only in appropriate cases in order to keep the subordinate Courts within the bounds of their authority and not for correcting mere errors; (iii) that the power of judicial interference under Article 227 of the Constitution is not greater than the power under Article 226 of the Constitution; (iv) that the power of superintendence under Article 227 of the Constitution cannot be invoked to correct an error of fact which only a superior Court can do in exercise of its statutory power as the Court of Appeal; the High Court cannot, in exercise of its jurisdiction under Article 227, convert itself into a Court of Appeal. 28. Later, a two-judge Bench of this Court in Baby Vs. Travancore Devaswom Board Ors., (1998) 8 SCC 310, clarified that in spite of the revisional jurisdiction being not available to the High Court, it still had powers under Article 227 of the Constitution of India to quash the orders passed by the Tribunals if the findings of fact had been arrived at by non-consideration of the relevant and material documents, the consideration of which could have led to an opposite conclusion. This power of the High Court und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Powers Ordinance, 1932. Chief Justice Beaumont held that even if power of revision is taken away, the power of superintendence over the courts constituted by the ordinance was still available. The Governor-General cannot control the powers conferred on the High Court by an Act of Imperial Parliament. However, speaking of the care and caution to be observed while exercising the power of superintendence though possessed by the High Court, the learned Chief Justice held that the power of superintendence is not the same thing as the hearing of an appeal. An illegal conviction may be set aside under power of superintendence but - we must exercise our discretion on judicial grounds, and only interfere if considerations of justice require us to do so. 31. In Manmatha Nath Biswas Vs. Emperor, (1932-33) 37 C.W.N. 201, a conviction based on no legal reason and unsustainable in law came up for the scrutiny of the High Court under the power of superintendence in spite of right of appeal having been allowed to lapse. Speaking of the nature of power of superintendence, the Division Bench, speaking through Chief Justice Rankin, held that the power of superintendence vesting in the High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould not be a bar on a challenge being made under Article 227 of the Constitution for which an opportunity was prayed to be allowed. The Court observed If any remedy is available to a party, no liberty is necessary to be granted for availing the same. 34. We are of the opinion that the curtailment of revisional jurisdiction of the High Court does not take away and could not have taken away - the constitutional jurisdiction of the High Court to issue a writ of certiorari to a civil court nor the power of superintendence conferred on the High Court under Article 227 of the Constitution is taken away or whittled down. The power exists, untrammelled by the amendment in Section 115 of the CPC, and is available to be exercised subject to rules of self discipline and practice which are well settled. 35. We have carefully perused the Full Bench decision of the Allahabad High Court in Ganga Saran's case relied on by the learned counsel for respondent and referred to in the impugned order of the High Court. We do not think that the decision of the Full Bench has been correctly read. Rather, vide para 11, the Full Bench has itself held that where the order of the Civ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D Ward, Kanpur and Anr., (1965) 3 SCR 536, which have held in no uncertain terms, as the law has always been, that a writ of certiorari is issued against the acts or proceedings of a judicial or quasi-judicial body conferred with power to determine questions affecting the rights of subjects and obliged to act judicially. We are therefore of the opinion that the writ of certiorari is directed against the act, order of proceedings of the subordinate Court, it can issue even if the lis is between two private parties. 38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:- (1) Amendment by Act No.46 of 1999 with effect from 01.07.2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. (2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. (8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. (9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2, at Paragraph 28, this Court held that, 28. Therefore, the consistent judicial pronouncement by the Supreme Court as well as this Court makes it very clear that in case where the lower Court passes an order which cannot be accepted by any prudent sense, it is always open to the High Court under Article 227 of the Constitution of India to correct the same by exercising the right of superintendence. (vi) In B.K.Muniraju v. State of Karnataka and others reported in (2008) 4 SCC 451, the Hon'ble Supreme Court at paragraphs 22 to 25, held as follows: 22. It is settled law that a writ of Certiorari can only be issued in exercise of extraordinary jurisdiction which is different from appellate jurisdiction. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals or authorities in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave mis-carriage of justice. In regard to a finding of fact recorded by an inferior tribunal or authority, a writ of Certiorari can be issued only if in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court , at paragraph Nos.11 to 22, considered a catena of judgments and held as follows: 11. In Waryam Sing v. Amarnath, AIR 1954 SC 215, the Apex Court has held that the power of superintendence conferred by Article 227 of the Constitution is to be exercised more sparingly and only in appropriate case in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors. 12. The above said law is again reiterated by the Apex Court in Singaram Singh v. Election Tribunal, AIR 1955 SC 425 and Nagendra Nath Bora v. Commissioner of Hills Division Appeals, AIR 1958 SC 398. 13. In T.Prem Sagar v. M/s.Standard Vacuum Oil Company, AIR 1965 SC 111, it has been held that in writ proceedings if an error of law apparent on the fact of the records is disclosed and the writ is issue, the usual course to adopt is to correct the error and send the case back to the special Tribunal for its decision in accordance with law. It would be inappropriate for the High Court exercising its writ jurisdiction to consider the evidence for itself and reach its own conclusions in matters which have been left by the legislature to the decisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsgressed its limits of jurisdiction under Article 227 of the Constitution. On the first point, therefore, the High Court was in error. 18. In Ouseph Mathai and others v. M.Abdul Khadir, (2002) 1 SCC 319, the Apex Court in para (4) has held thus:- It is not denied that the powers conferred upon the High Court under Articles 226 and 227 of the Constitution are extraordinary and discretionary powers as distinguished from ordinary statutory powers. No doubt, Article 227 confers a right of superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises the jurisdiction but no corresponding right is conferred upon a litigant to invoke the jurisdiction under the said article as a matter of right. In fact power under this article casts a duty upon the High Court to keep the inferior Courts and Tribunals within the limits of their authority and that they do not cross the limits, ensuring the performance of duties by such Courts and Tribunals in accordance with law conferring powers within the ambit of the enactments creating such Courts and Tribunals. Only wrong decisions may not be a ground for the exercise of jurisdiction under thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in the order of the tribunal or appellate board, it would not be proper to interfere in such order in exercise of jurisdiction under Article 227 of the Constitution. 22. The Superintendence power of the High Court under Article 227 of the Constitution of India, over all Courts and tribunals is basically to keep the subordinate courts/tribunals/appellate authorities constituted under statutes within their bounds and not for correcting mere errors. The exercise of power is limited to want of jurisdiction, errors of law, perverse findings, gross violation of principles of natural justice and like the one. It may be exercised, if it is shown that grave injustice has been done to the person, who has invoked the jurisdiction with such grievance, the Court does not act as an appellate authority to reappraise the evidence and come to a different conclusion. Even if two views are possible, in exercise of power, the Court would not be justified in substituting its own reason for the reasons of the subordinate courts/tribunals or appellate tribunals/boards. Of course, the power of this Court is not taken away, where the statutory appellate tribunal/board brushes aside the evidence on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ale or transfer can be resorted to by a SECURED CREDITOR. In the event of any such sale properly notified after giving 30 days clear notice to the borrower did not take place as scheduled for reasons which cannot be solely attributable to the borrower, the SECURED CREDITOR cannot effect the sale or transfer of the SECURED ASSET on any subsequent date by relying upon the notification issued earlier. In other words, once the sale does not take place pursuant to a notice issued under Rules 8 and 9, read along with Section 13(8) for which the entire blame cannot be thrown on the borrower, it is imperative that for effecting the sale, the procedure prescribed above will have to be followed afresh, as the notice issued earlier would lapse. In that respect, the only other provision to be noted is sub-rule (8) of Rule 8 as per which sale by any method other than public auction or public tender can be on such terms as may be settled between the parties in writing. As far as sub-rule (8) is concerned, the parties referred to can only relate to the SECURED CREDITOR and the borrower. It is therefore, imperative that for the sale to be effected under Section 13(8), the procedure prescribed unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Court also examined the detailed procedure to be followed by the bank/financial institutions under the Rules, 2002. This Court took notice of Rule 8, which relates to Sale of immovable secured assets and Rule 9 which relates to time of sale, issue of sale certificate and delivery of possession etc. With regard to Section 13(1), this Court observed that Section 13(1) of SARFAESI Act, 2002 gives a free hand to the secured creditor, for the purpose of enforcing the secured interest without the intervention of Court or Tribunal. But such enforcement should be strictly in conformity with the provisions of the SARFAESI Act, 2002. Thereafter, it is observed as follows:- 27..... A reading of Section13(1), therefore, is clear to the effect that while on the one hand any SECURED CREDITOR may be entitled to enforce the SECURED ASSET created in its favour on its own without resorting to any court proceedings or approaching the Tribunal, such enforcement should be in conformity with the other provisions of the SARFAESI Act. 13. This Court in Mathew Varghese case, further observed that the provision contained in Section 13(8) of the SARFAESI Act, 2002 is specifically for the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the sale notice and possession, borrower has no right to challenge the subsequent sale notices, dated 21/9/2013 and 27/9/2013 and consequently, the sale certificates, dated 17/10/2013, 22/10/2013 and 23/10/2013 are not tenable, and hence rejected. 32. The main contention of the writ petitioner is that Rules 8 and 9 of the Security Interest (Enforcement) Rules 2002 are mandatory and that in no circumstances, the same can be ignored. Except alleging that the petitioner has not even paid a single penny, from the date of initiation of SARFAESI proceedings, 2002, and in the abovesaid circumstances, the Appellate Tribunal was right in ignoring the mandatory provisions, no other submission has been made by the learned counsel appearing for the Bank. 33. Now, let us consider the auction notices, issued by the Bank. Earlier, notice, dated 28/5/2013, has been issued by the Bank, fixing the auction, on 20/6/2013. Though it was challenged in S.A.No.329 of 2013, on 20/9/2013, the same was dismissed for default. However, Auction, dated 20/6/2013, had not taken place. Sale notice, dated 28/5/2013, had lapsed, on 20/6/2013. We have already observed that the dismissal of S.A.No.329 of 2013, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at No.65/4, Magadi Main Road, Ranganathapuram, Kamakshipalaya, Bangalore 79, the immovable property shown in the schedule below secured in favour of the Bank by M/s. Harrys Meat Mart, M/s. Harrys Military Hotel, M/s. Harrys Chicken, M/s. Harrys Kebab Corner, towards the financial facility offered by Vijaya Nagar Branch. The undersigned acknowledge the receipt of the sale price of ₹ 30,20,000/- (Rupees Thirty lacs twenty 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 Residential building bearing No.14, 3rd Cross, Assessment No.48, Khatha No.1870, Priyadarshini Layout, Malagalu Village, Moodala Palya, Bangalore 560 072 total admeasuring 1200 Sq.ft together with all rights, appurtenances whatsoever whether underneath or above the surface of the property and bounded on the East by: Property of Meena Sudhakar West by: Private property + high tension line North by: 22'' road South by: Property of Munikrishna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the Bank by M/s. Harrys Chicken, V.J.Dhanpal Dhanbagya, towards the financial facility offered by Vijaya Nagar Branch. The undersigned acknowledge the receipt of the sale price of ₹ 76,20,000/- (Rupees Seventy six lacs twenty 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 residential site bearing No.19, presently bearing BBMP Khatha No.80 (Old No.51) PID No.35-08-80 in Ward No.35, situated at I I Main Road, Marenahalli, Bangalore (carved out of land Sy.No.175 of Marenahally Village), presently within the limits of Bruhut Bangalore Mahanagar Palike, Bangalore, measuring East to West 30 ft and North to South 40 ft totally admeasuring 1200 sqft comprising of residential building of about 8 squares with all civil amenities and bounded on East by: Road West by: Property bearing Site No.20 North by: 20th Main road (Marenahalli Main Road) South: Others property 38. Rules 8 and 9 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer and shall be subject to confirmation by the secured creditor. Provided that no sale under this rule shall be confirmed, if the amount offered by sale price is less than the reserve price, specified under sub-rule (5) of Rule 9. Provided further that if the authorised officer fails to obtain a price higher than the reserve price, he may, with the consent of the borrower and the secured creditor effect the sale at such price. (3) On every sale of immovable property, the purchaser shall immediately pay a deposit of 25 percent of the amount of the sale price, to the property shall forthwith be sold again. (4) The balance amount of purchase price payable shall 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 agree upon in writing between the parties. (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 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal, Chennai is contrary to the well settled judicial pronouncements of the Hon'ble Supreme Court. 40. Going through the impugned judgment made in R.A.(SA) No.45 of 2015, we are unable to understand as to how the Appellate Tribunal, having confirmed the sale, in favour of the auction purchaser, still enabled the borrower to pay the entire amount to the Bank to refund to the auction purchaser. Such direction of Debts Recovery Appellate Tribunal, Chennai, is totally against the confirmation of sale. Decision and directions of the Tribunal stated supra, are contradictory. 41. Learned counsel appearing for the petitioner submitted that subsequent to the filing of the instant Civil Revision Petition, borrower has been dispossessed, which submission has been refuted by the Bank. Though the above said submission is disputed, as per Section 17 (3) of the SARFAESI Act, 2002, if the Debts Recovery Tribunal, after examining the facts and circumstances of the case and evidence produced by the parties, comes to be conclusion that any of the measures referred to in sub-section (4) of Section 13, taken by the secured creditor are not in accordance with the provisions of this Act ..... X X X X Extracts X X X X X X X X Extracts X X X X
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