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TMI Blog2024 (7) TMI 450X X X X Extracts X X X X X X X X Extracts X X X X ..... her reveals that neither compliance of the mandatory pre-deposit as required under Rules 60 61 of Schedule II to the Income Tax Act has been made, nor any material has been brought on record to show that the mandatory requirement of pre-deposit was made good. Once the mandatory condition was not fulfilled, the DRT ought not to have entertained the appeal and passed the impugned order - In Bishan Paul [ 1965 (3) TMI 112 - SUPREME COURT] , the Apex Court has held that the sale certificate, though issued later, mentioned the date of confirmation of sale and the title, does not remain in abeyance till the certificate is issued and title, therefore, was not in abeyance till the certificate was issued but passed on the confirmation of sale. The intention behind the rules appears to be that title shall pass when the full price is realised. Once the effect and operation of the interim order wipes out on final order being passed thereon, all consequential proceeding goes. This vital aspect of the matter was brought to the notice of the Tribunal, but in stead of taking note of the said fact, the appeal of the petitioner was dismissed on that ground, which cannot be permissible in law. The im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e loan, the respondent Bank instituted Original Application No. 111 of 1999 before the Debt Recovery Tribunal, Jabalpur under section 19 of the Act for recovery of the dues amounting to Rs. 38,36,871/- together with cost, further and pendentelite interest. The aforesaid original application was decreed vide order dated 21.12.1999 in favour of the respondent Bank entitling it to recover a sum of Rs. 38,36,871/- together with cost from the defendants jointly and severally. The respondent Bank was also entitled to recover interest @ 18.5% per annum with quarterly rest from 22.03.1999 till the date of realization of the decreetal amount. Further, the respondents were restrained from transferring, alienating or otherwise dealing with or disposing of the property in question without permission of the Debt Recovery Tribunal (hereinafter referred to as, 'the DRT') in respect of movable and immovable properties. 5. On the basis of the recovery certificate and change of jurisdiction, the case came up before the DRT, Lucknow and it was registered as DRC No. 155/2002/LKO. Against the judgement passed in OA NO. 111 of 1999, the borrower filed an application for setting aside the judgeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idering the rival submissions, the DRT, Lucknow passed an order dated 29.04.2005 in Appeal No. 1/2004 setting aside the entire auction proceedings. 7. Against the order dated 29.04.2005 passed by the DRT, the auction purchaser (the petitioner herein) preferred Appeal No. 525/2005 before the DRAT, Allahabad, which has been dismissed vide judgement order dated 19.10.2005. Hence, the present writ petition. 8. Ms. Shreya Gupta, learned counsel for the petitioner submits that the appeal preferred before the DRT was not maintainable as the judgement debtor failed to challenge the order of attachment, proclamation of sale, auction proceedings and sale of immovable properties. She further submits that the appeal was confined to challenge the confirmation of sale of immovable properties vide order dated 09.01.2004 as well as the certificate of sale of immovable properties, Form 20 passed by the Recovery Officer, DRT in DRC No. 155/2002/LKO. She further submits that the judgement debtor never claimed relief for setting aside of the auction proceedings and the sale of properties and failed to make good the mandatory pre-deposit as required under Rules 60 61 of Schedule II to the Income Tax Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecurities were mortgaged to avail such facilities and therefore, if there was any discrepancy, the petitioner cannot be permitted to suffer. 12. She further submits that it is not in dispute that the property had been mortgaged, which is admitted between the parties, if some part of the non-mortgaged properties are sold, the same will not make any difference. The Bank is at liberty to recover the amount due to it from the mortgaged and non-mortgaged properties. If this technical objection is accepted by the Tribunal, then the purpose of the Act will frustrate. She further submits that in Appeal No. 366/2003, some compromise was entered by which the judgement debtor was required to pay a sum of Rs. 26 lacs, but the judgement debtor even could not adhere to the same and ultimately, the compromise could not be materialized and Appeal No. 366/2003 was dismissed as withdrawn. Once the appeal was dismissed as withdrawn, the DRAT ought not to have set aside the auction sale. In support of her submission, she has placed reliance on the judgements in AIR 1932 PC 165 and AIR 1932 All. 490. 13. She further submits that upon withdrawal of Appeal No. 366/2003 by the judgement debtor, the stay o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RAT. He further submits that admittedly, the loan was taken and thereafter, its credit limit was enhanced upto Rs. 12 lacs. The auction sale and confirmation of the property was beyond the mortgaged properties, which is not permissible in law. He further submits that various other irregularities had been committed by the respondent Bank in hurriedly auctioning the properties. He further submits that neither the valuation report, nor the publication was made in accordance with law. In the auctioning proceedings, only single bidder was there, i.e., the petitioner. He further submits that these irregularities were pointed out before the authorities below in detail and after considering the above facts, the authorities below have passed the orders in accordance with law. Shri Tiwari further submits that in spite of the interim order dated 23.12.2003 passed in Appeal No. R-366/2003, not only auction was taken place, but also the same was confirmed. The said action of the Recovery Officer was in gross violation of the settled principles of law. He further submits that the auction notice was published in Dainik Jagaran Hindi newspaper, which was in English, which was against the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able property order dated 9th January, 2004 as well as the certificate of sale of immovable property, form No. 20 passed by the Recovery Officer, Debts Recovery Tribunal Lucknow in DRC No. 155/2002/LKO be set aside. (b) . (c) . 20. The record further reveals that neither compliance of the mandatory pre-deposit as required under Rules 60 61 of Schedule II to the Income Tax Act has been made, nor any material has been brought on record to show that the mandatory requirement of pre-deposit was made good. Once the mandatory condition was not fulfilled, the DRT ought not to have entertained the appeal and passed the impugned order. In Bishan Paul (supra), the Apex Court has held that the sale certificate, though issued later, mentioned the date of confirmation of sale and the title, does not remain in abeyance till the certificate is issued and title, therefore, was not in abeyance till the certificate was issued but passed on the confirmation of sale. The intention behind the rules appears to be that title shall pass when the full price is realised. In the case of D. Duraisrinivassan (supra), the Madras High Court has held as under:- ... No person can take advantage of the confirmation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e State or the College to consider his case for admission yet the High Court went a step further and straightway issued a writ of mandamus directing the College to admit him to M.S. course and thus granted relief to the respondent which he himself never prayed for and could not have been prayed for . Again, in Om Prakash vs. Ram Kumar [(1991) 1 SCC 441], this Court observed, A party cannot be granted a relief which is not claimed, if the circumstances of the case are such that the granting of such relief would result in serious prejudice to the interested party and deprive him of the valuable rights under the statute . 22. Further, in the case of Rm. N.N. Nagappa (supra), the Apex Court has held as under:- ....It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint the court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case. The allegations on which the plaintiff claimed relief in respect of these shares are clear and emphatic. There was no suggestion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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