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TMI Blog2022 (2) TMI 1468X X X X Extracts X X X X X X X X Extracts X X X X ..... rded without being bound by the peculiar and singular facts of this case being treated as a precedent. While the Court is conscious of the mandate of the particular statute, it must remain cognizant of the peculiar situation which came to prevail and constrained courts to even stop the march of the statute of limitation. These were times without parallel and require the Courts to formulate novel solutions in equity and to undertake an exercise to balance the interest of parties. The order dated 22 April 2021 of forfeiture of the earnest money deposited by the petitioner as well as the subsequent sale notice of 10 June 2021 are hereby quashed - Petition allowed. - HON'BLE MR. JUSTICE YASHWANT VARMA For the Petitioner: Mr. Alok Jagga with Mr. Chritarth Palli, Adv Respondent: Ms. Seema Gupta, Adv YASHWANT VARMA, J. (ORAL) 1. This petition has been preferred challenging the orders of 22 April and 10 June 2021 passed by the respondent Financial Institution1. By the order of 22 April 2021, the respondent FI had proceeded to apprise the petitioner here that consequent to a failure on its part to pay the balance 15% of the reserve sale price in accordance with the timelines fixed und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely deposited on 18 March 2021. It is this default of one day which forms and constitutes the basis for the impugned action of the respondent Bank. 4. When the writ petition was initially entertained, a learned Judge on 25 June 2021, taking note of the submissions advanced, had by a detailed order provided that the respondents would maintain status quo with respect to the property in question. 5. Upon exchange of pleadings and when this writ petition was taken up for final disposal, a preliminary objection was raised by Ms. Gupta, learned counsel appearing for the respondent Bank, who contends that the jurisdiction of the Court under Article 226 of the Constitution could not have been invoked till such time as the petitioner had availed of the alternative remedy as embodied in Section 17 of the SARFAESI Act. It was her submission that it is well settled in law that the mandate of Section 17 cannot be short circuited, and the jurisdiction of the Court under Article 226 of the Constitution invoked directly. 6. The Court finds itself unconvinced by this submission bearing in mind that the Court had by way of the original interim order entertained the petition and directed parties to e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the outset, it would be apposite to note that sub rule (3) of Rule 9 in imperative terms requires a deposit of 25% being made either on the date when the auction is confirmed in favour of the successful bidder or in any case by the next working day. This is evident from the particular rule employing the expression not later than . Viewed in that light it is evident that sub rule (3) stands on a pedestal which is distinct and different from sub rule (4). Notwithstanding the above, the question which arises for consideration is whether the delay of one day is liable to be viewed as being determinative of the right of the petitioner to seek the opportunity to deposit the entire amount as was bid and to face the consequences of forfeiture as envisaged in Rule 9 in light of the peculiar circumstances which prevailed. 10. In the considered view of this Court while it is true that the statute does mandate and envisage the deposit being made in accordance with the provisions made in sub rule (3), this Court cannot shut its eyes to the unprecedented situation which came to prevail on account of the pandemic outbreak in March 2021. The situation which arose and befell the entire nation, nay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ict interpretation. However, in view of the delay in question only being of 5 days, which cannot be deemed as inordinate, and the exceptional nature of prevailing circumstances, I am of the view that the delay deserves to be condoned. In any event, the Bank also does not seriously object to the prayer for condonation of the five-day delay period in depositing the amount. Even otherwise, the applications under the SARFAESI Act pending before the Tribunal and pertaining to the auction property, were not filed until 17th April 2020, which was 11 days after the petitioner had already deposited the remaining amount with the Bank. Thus, the auction being challenged before the Tribunal cannot also be a valid ground to reject the petitioner s prayer for condonation of delay. Even the decision of the Division Bench dated 24.04.2020 clarifies that the deposit made by the persons challenging the auction shall neither create any equities nor create any fresh rights in their favour. Therefore, the delay of five days occasioned by the petitioner in depositing the remaining amount to the Bank stands condoned. 12. It becomes pertinent to note that in Sanjay Kumar the learned Judge found it expedie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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