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TMI Blog2024 (12) TMI 879X X X X Extracts X X X X X X X X Extracts X X X X ..... he Bank s actions under the SARFAESI Act. As discussed by us in the foregoing paragraphs of this judgment, that the Borrower for reasons best known to it, never agitated the validity of the proceedings under the SARFAESI Act including the legality of the 9th auction notice. Not once did the Borrower submit either in the course of its arguments or in its written submissions that the very auction process is allegedly illegal and in contravention of the SARFAESI Act. Since, no challenge had been raised to the measures taken by the Bank under the SARFAESI Act and the 9th auction notice by the Borrower, this Court proceeded to determine only the issue of right of redemption under Section 13 sub-section (8) of the SARFAESI Act. Accordingly, this Court held that under the unamended Section 13(8) of the SARFAESI Act, the right of the borrower to redeem the secured asset was available till the sale or transfer of such secured asset. However, under the amended provisions of Section 13(8) of the SARFAESI Act the right of the borrower to redeem the secured asset would be available only till the date of publication of the notice under Rule 9(1) of the SARFAESI Rules and not till the completion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter ought to have been taken as a ground of attack or defence in the earlier proceedings, the court is indicating that the matter is of such a nature and character and bears such a connection with the controversy in the earlier case that the failure to raise it in that proceeding would debar the party from agitating it in the future. The doctrine itself is based on public policy flowing from the age-old legal maxim interest reipublicae ut sit finis litium which means that in the interest of the State there should be an end to litigation and no party ought to be vexed twice in a litigation for one and the same cause. The Henderson Principle is a core component of the broader doctrine of abuse of process, aimed at enthusing in the parties a sense of sanctity towards judicial adjudications and determinations. It ensures that litigants are not subjected to repetitive and vexatious legal challenges. At its core, the principle stipulates that all claims and issues that could and should have been raised in an earlier proceeding are barred from being raised in subsequent litigation, except in exceptional circumstances. This rule not only supports the finality of judgments but also undersco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Transferee that it is a bona-fide third party purchaser of the Secured Asset since it was neither arrayed as a party to proceedings in the Main Appeals nor issued a notice of the said proceedings either by the petitioner or by the Bank - In Sanjay Verma v. Manik Roy [ 2006 (12) TMI 559 - SUPREME COURT] this Court held that the principle of lis pendens enshrined in Section 52 of the TPA is not only based on equity, good conscience and justice but is also a principle of public policy and as such no party can claim exemption from the application of this doctrine on the ground of bona fide or good faith. Since, in the present case the Special Leave Petitions were already instituted and pending before this Court as on 28.08.2023 i.e., the date of execution of the Assignment Agreement for the transfer of the Secured Asset in favour of the Subsequent Transferee, the said Assignment Agreement dated 28.08.2023 and the transfer thereto is beyond a shadow of doubt hit by lis pendens. The execution of the Assignment Agreement dated 28.08.2023 and the transfer of the Secured Asset in pursuance thereto in favour of the Subsequent Transferee is hit by lis pendens despite the fact that no notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctive, or to frustrate the proceedings of the court, or to enure any undue advantage therefrom would amount to contempt. Attempts to sidestep the court s jurisdiction or manipulate the course of litigation through dishonest or obstructive conduct or malign or distort the decision of the courts would inevitably tantamount to contempt sans any prohibitory order or direction to such effect - the mere conduct of parties aimed at frustrating the court proceedings or circumventing its decisions, even without an explicit prohibitory order, constitutes contempt. Such actions interfere with the administration of justice, undermine the respect and authority of the judiciary, and threaten the rule of law. While the initial acts of the Borrower and the Subsequent Transferee are in violation of this Court s judgment and order dated 21.09.2023, yet the efforts on their part to take steps and make amends by withdrawing the Special Civil Suit No. 5 of 2024 along with their belated unconditional undertaking to comply with any further order that this Court may deem fit and proper to pass, demonstrates their effort and willingness to purge themselves of their contemptuous conducts. Circumstances when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been laid to the 9th auction proceedings on the ground of it being either collusive, fraudulent or vitiated by inadequate pricing or underbidding, thus, the auction cannot be said to suffer from any fundamental procedural error, and as such does not warrant the interference of this Court, particularly when the plea sought to be raised to challenge the same could have been raised earlier. The legality and validity of the 9th auction proceedings conducted pursuant to the notice of sale dated 12.06.2022 is upheld. The sale of the Secured Asset to the petitioner is hereby confirmed and the title conferred through the Sale Certificate dated 27.09.2023 is declared to be absolute - The Borrower and the Bank shall immediately take steps for the cancellation of the Release Deed dated 28.08.2023 within a period of one week from the date of pronouncement - Let this matter be notified once again before this Bench after a period of two weeks to report compliance of the aforesaid directions. - J. B. Pardiwala And Manoj Misra , JJ. JUDGMENT J. B. PARDIWALA, J. For the convenience of exposition, this judgment is divided into the following parts: - INDEX A. FACTUAL MATRIX ....................... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and order. 2. The present petitions have been filed under Section 2(B) of the Contempt of Court Act, 1971 (for short, the Act, 1971 ) read with Article(s) 129 and 142(2) of the Constitution respectively seeking to initiate contempt proceedings against the respondents / alleged contemnors for wilful disobedience of the final judgment and order dated 21.09.2023 passed by this Court in Civil Appeal Nos. 5542-5543 of 2023 respectively captioned as Celir LLP v. Bafna Motors (Mumbai) . 3. For the sake of convenience, we clarify that the petitioner herein is the successful auction purchaser, the respondent no. 1, Mr. Sumati Prasad Bafna is the original borrower (hereinafter referred to as the Original Borrower ), the respondent no. 4 Greenscape IT Park LLP and its director, Mr. Jayesh A. Vavia i.e., the respondent no. 2 herein are the subsequent transferee / thirdparty purchaser (hereinafter referred to as the Subsequent Transferee ) and the respondent no. 3, Union Bank of India is the secured creditor / bank (hereinafter referred to as the Bank ). A. FACTUAL MATRIX i. Facts leading upto the Decision of this Court in Civil Appeal Nos. 5542- 5543 of 2023. 4. The Original Borrower herein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Bank issued a notice of sale of the Secured Asset by way of a public auction slated for 29.04.2022, however, the said sale / auction failed on account of no bids being received. It appears that between April 2022 June 2023, the Bank attempted eight auctions but all failed. 11. It appears that the borrowers informed the Bank that they were trying to sell the secured asset but were not getting good offers. The borrowers informed the Bank that the maximum they might be able to fetch from the sale of the secured asset would be around Rs. 91-92 crore and they were willing to settle the entire account by offering such amount to the Bank. 12. The Bank however decided to go for one more auction. On 14.06.2023, the Bank published the notice of sale in terms of Rule 8(6) of the SARFAESI Rules for the 9th time. The public auction was scheduled to be conducted on 30.06.2023. The terms of the aforesaid notice of sale, inter-alia stipulated that the Secured Asset would be sold on as is what is and whatever there is basis at a reserve price of Rs. 105 crore and that the said auction would be subject to the outcome of the S.A No. 46 of 2022 pending before the DRT. The relevant terms and conditi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd both the Bank and the Borrowers were heard at length, but no consequential orders were passed. 18. On 27.07.23, the petitioner herein deposited the balance sum of the total bid amount which was duly received and accepted by the Bank. On the very same day, the redemption application referred to above was also heard by the DRT. The redemption application was opposed by both the petitioner herein as well as the Bank. The DRT after hearing the parties at length, reserved orders to be pronounced on 02.08.23. 19. While the parties were awaiting for the DRT to pass an appropriate order on the redemption application, the borrowers went to the High Court and filed the Writ Petition No. 9523 of 2023, inter-alia i) challenging the demand notice dated 07.06.2021 and the measures taken by the Bank under the SARFAESI Act more particularly the possession notice dated 04.02.2022 and the initial sale / auction notice dated 25.03.2022 AND ii) further seeking directions to the Bank to permit them to redeem the mortgage of the secured asset. The writ petition was filed on the premise that the Borrowers had strong apprehension that the DRT may reject their redemption application and the entire matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the High Court in more detail in the latter part of this judgment. 21. Before the High Court, the Borrowers expressed their willingness to pay a total sum of Rs. 129 crore for redeeming the mortgage by 31.08.2023. The Bank which had earlier opposed the plea for redemption of mortgage before the DRT for some good reason expressed its willingness before the High Court to accept the offer of the borrowers. The Bank perhaps got lured by the fact that the borrowers were paying almost Rs. 23.95 crore more than what was paid by the petitioner herein and Rs. 5 crore more than the outstanding amount. 22. In the wake of such development, the petitioner herein having come to know about the aforesaid proceedings before the High Court preferred Interim Application (ST) No. 21706 of 2023 for being impleaded in the writ petition. 23. The writ petition along with interim application was heard by the High Court and vide its judgment and order dated 17.08.2023 allowed the writ petition and permitted the borrowers to redeem the mortgage of the secured asset subject to payment of Rs. 25 crore on the same day and the balance amount of Rs. 104 crore on or before 31.08.2023, failing which the sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar, Thane 8 vide Registration No. 19286 of 2023, and franking was completed on the same date. 29. On 01.09.2023, the aforesaid special leave petitions were taken up for hearing. After the arguments from both sides were concluded, leave to appeal was granted, and the matter came to be reserved for judgment by this Court. The parties were further directed to file their written submissions. 30. This Court vide its final judgment and order dated 21.09.2023 in Civil Appeal Nos. 5542-5543 of 2023 inter-alia held that the High Court erred in permitting the Borrower to redeem the mortgage after publication of the notice of sale / auction under Rule 9 sub-rule (1) of the SARFAESI Rules. Accordingly, the High Court s order dated 17.08.2023 was set-aside. Furthermore, in light of the willingness expressed by the petitioner to make good the difference between the total outstanding dues and the bid amount submitted by him, this Court directed the petitioner to pay an additional amount of Rs. 23.95 crore to the Bank within a period of one week from the date of pronouncement, upon which the Bank was to issue the sale certificate for the Secured Asset in accordance with Rule 9(6) of the SARFAESI R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rms of Rule 8(6) and 9(1) of the SARFAESI Rules respectively; iii) Praying to set aside the auction dated 30.06.2023 of the Secured Asset conducted by the Bank upon examination of the validity and propriety of all measures taken by the Bank in terms of Section 13(4) of the SARFAESI Act and Rule 8 and 9 of the SARFAESI Rules respectively. 35. Several more correspondences took place between the petitioner and the Bank herein for handing over of possession and title deeds to the Secured Asset, however they were to no avail. The Bank reiterated its helplessness in providing the aforesaid owing to the non-cooperation of the Borrower and the Subsequent Transferee. In view of the above, the petitioner herein issued a legal notice dated 29.12.2023 to all the respondents herein, calling upon them to (a) handover the physical possession of the Secured Asset along with its original title deeds and (b) to take steps towards cancelling the Release Deed dated 28.08.2023. In response to the above, the Borrower herein vide its letter dated 16.01.2024 inter-alia stated that since the Secured Asset stood transferred to the Subsequent Transferee, it had no role to play in handing over of the possessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Subsequent Transferee it had no role or any concern with the handing over of the physical possession. Thus, while the Borrower on one hand is remarkably contending that it has nothing to do with the failure in handing over of the Secured Asset yet in the same breath, he is purposefully engaging in various acts to subvert any and all attempts of the petitioner and the Bank herein to regain the physical possession. 39. In the suit proceedings, on an application filed by the Subsequent Transferee the Civil Court, Belapur vide its order dated 05.02.2024, directed that status quo be maintained and restrained the Bank from taking any steps towards obtaining the physical possession of the Secured Asset till it filed its written statement. 40. The DRT vide its order dated 28.02.2024 observed that since the decision of this Court in the Civil Appeal Nos. 5542-5543 of 2023 had allowed the sale in favour of the petitioner, the act of the borrower to continue claiming a right to the Secured Asset on the strength of the Release Deed dated 28.08.2023 was highly deplorable. Accordingly, the DRT refused to grant stay of the notice of possession and dismissed the Borrower s IA No. 456 of 202 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous actions of the respondents and the subsequent development that have taken place after the decision of this Court in the Main Appeals, the petitioner is here before this Court with the present contempt petitions. B. SUBMISSIONS OF THE PARTIES i. Submissions of the Successful Auction Purchaser / the petitioner. 47. Mr. Mukul Rohatgi and Mr. Sanjay Kishan Kaul, the learned Senior Counsel appearing for the petitioner submitted that this Court in its decision rendered in the Main Appeals had looked into all the issues at hand regarding the auction and the subsequent transfer, and thereafter had taken a conscious decision to uphold the auction conducted in favour of the petitioner and directed the Bank to issue the Sale Certificate and handover possession of the Secured Asset. However, despite such categorical directions of this Court, till date neither the physical possession nor the original title deeds to the Secured Asset has been handed over by the respondents herein to the petitioner. 48. It was submitted that the petitioner herein as per the directions of this Court had paid an additional amount over and above the bid submitted by it, to the tune of Rs. 24 crore approx. to mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pendency of the Main Appeals before this Court at the time of entering into the Assignment Agreement, rather the only reason why the respondents showed undue haste in entering the aforesaid agreement was because they were well aware of the proceedings pending before this Court. Thus, the conduct and actions of the respondents are highly deplorable and cannot be termed to be bona fide or in good conscience. 52. It was also submitted that after the decision of this Court in the Main Appeals, both the Borrower and the Subsequent Transferee herein committed several acts of contempt in order to circumvent the judgment and order of this Court more particularly the direction to issue the Sale Certificate and complete the sale in respect of the Secured Asset, being as follows: - (i) The Subsequent Transferee vide its letter dated 05.10.2023 asked the Sub-Registrar Office, Nerul Thane to not entertain any request of the petitioner regarding the transfer of the Secured Asset. (ii) The Borrower on 12.10.2023 addressed one letter to the Chief Executive Officer of the Maharashtra Industrial Development Corporation in whose industrial area the Secured Asset was situated, inter-alia requesting t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad been falsely claiming that this Court in its decision in the Main Appeals had directed the refund of the amount paid towards redemption of mortgage to the Borrower and to transfer the vacant possession of the Secured Asset to the petitioner, and that the Bank in collusion with the petitioner had issued the sale certificate to the Secured Asset despite having executed the Release Deed for the mortgage and the pending litigation before the DRT. 53. In light of the above, it was contended by the petitioner that both the Borrower and the Subsequent Transferee have been acting in tandem with each other to frustrate the implementation of the decision of this Court in the Main Appeals by misleading various authorities and by mischievously instituting proceedings before different forums thereby thwart any attempt of the petitioner and the borrower to obtain physical possession and original title deeds to the Secured Asset. 54. As regards the contention of the respondents on the issue of auction that was conducted by the Bank being illegal and contrary to the statutory provisions , it was submitted on behalf of the petitioners that the requirement under Rule 8(6) read with Rule 9(1) to m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed from challenging the legality of the recovery measure taken by the Bank and the consequent 9th Auction conducted by it. In this regard, the petitioner relied upon the decision of this Court in Arce Polymers Private Limited v. Alphine Pharmaceuticals Private Limited Ors., reported in (2022) 2 SCC 221 to contend that if the party relinquishes its right under the SARFAESI Act, then the Borrower is not entitled to subsequently challenge the actions or measures taken under it. 59. In the last, it was submitted that the Sale Certificate of the Secured Asset that was issued by the Bank in favour of the petitioner was never contingent upon or subject to the outcome of the proceedings before the DRT, more particularly S.A. No. 46 of 2022, as this Court in the Main Appeals had upheld the auction and crystalized the rights of the petitioner over the Secured Asset. Placing reliance on paragraph 98 of the Main Appeals, it was contended that once the Sale Certificate is issued, the bank is bound to hand over the physical possession of the property and as such, this Court had concluded the rights of all parties and that nothing remained in S.A. No. 46 of 2022 after the decision of this Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of S.A. No. 46 of 2022 pending before the DRT. Thus, any sale certificate issued in pursuance of such auction would also be subject to such terms of the auctions. 65. He further submitted that, the petitioner herein being fully aware about the aforesaid terms of auction, consciously participated in the auction process, and thus now cannot be permitted to claim either the absolute ownership of the Secured Asset despite the pendency of the proceedings before the DRT or demand physical possession of the same by relying upon the Sale Certificate that was directed to be issued by this Court in the Main Appeals when no such terms were stipulated in the 9th auction notice. He submitted that the Sale Certificate that came to be issued to the petitioner in accordance with the decision of this Court was purely on the basis of the terms of the auction and cannot by any stretch be in derogation of the same. 66. It was also submitted that the present contempt petitions proceed on a fundamental flaw that this Court in the Main Appeals had decided and directed the handing over of physical possession of the Secured Asset. Since physical possession was never the subject matter of the Main Appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner pursued its IA in the aforesaid securitization application and the Subsequent Transferee pursued its suit. None of the parties complained of any contempt for a period of nearly 5-6 months. 71. It was submitted that any order passed by a competent judicial authority having jurisdiction to pass such order can only be challenged by following the due process and cannot be set-aside under the contempt jurisdiction, thus the present contempt petition is completely misconceived. Similarly, since neither the Bank nor the petitioner sought physical possession of the secured asset in the Main Appeals, it cannot be permitted to now seek the same by expanding the scope of the Main Appeals by way of an MA. In this regard, reliance has been placed on the decision of this Court in Supertech Limited v. Emerald Court Owner Resident Welfare Association Ors. reported in (2023) 10 SCC 817 to contend that filing of MA is not permissible to expand the scope of SLP or re-litigate the matter. 72. It was further submitted that since in the Main Appeals, there were no directions passed against the Borrower herein to hand over physical possession, no contempt could be said to have been committed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 5 SCC 660 it was submitted that the 30-day notice to the borrower in terms of Rule 8 and 9 of the SARFAESI Rules respectively is mandatory in nature and non-compliance of the same would render the auction illegal. Similarly, as per the decision of this Court in Govind Kumar Sharma Anr. v. Bank of Baroda Ors. reported in 2024 INSC 326, an auction would be liable to be quashed if no 30-day notice is given by the bank. 76. It was submitted that if S.A. No. 46 of 2022 pending before the DRT is allowed then in light of the decision of this Court in the Main Appeals, the auction would be illegal and the right of redemption of the Borrower would survive and by extension all transactions executed by it in pursuance thereto including the transfer of the Secured Asset in favour of the Subsequent Transferee. 77. It was further submitted that the petitioner s contention that the pending proceedings under S.A. No. 46 of 2022 before the DRT did not survive after the decision of this Court in the Main Appeals more particularly after the issuance of the Sale Certificate is completely misconceived and untenable. In this regard it was submitted that first, the proceedings before this Court in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity. Thus, it was submitted that not only does the cause of action for challenging the validity of the auction proceedings survive but also the proceedings in S.A. No. 46 of 2022 pending before the DRT. 80. In the last, Dr. A.M. Singhvi submitted that the Borrower unconditionally apologises to this Court for any of its actions, if they are perceived to be incorrect or in contempt of its decision in the Main Appeal and that the Borrower undertakes to comply with any further order that this Court may deem fit and proper for the ends of justice. iii. Submissions of the Subsequent Transferee / the respondent nos. 2 4. 81. Mr. Kapil Sibal, the learned Senior Counsel appearing for the Subsequent Transferee at the outset submitted that it unconditionally apologizes for any of its actions that might have been perceived to have contravened any direction/ order of this Court. 82. Mr. Sibal submitted that the Subsequent Transferee is a bona fide third party purchaser of the Secured Asset. He submitted that the Subsequent Transferee was neither arrayed as a party to the proceedings in the Main Appeals nor issued a notice of the said proceedings either by the petitioner or by the Bank, despite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of an appeal does not operate as a stay or suspension of the order appealed against as held in Krishna Sales (supra). Therefore, the Subsequent Transferee is said to have acquired a clear title to the said property. 86. When the Borrower redeemed the mortgage and executed the Release Deed with the Bank in pursuance of the impugned order of the High Court, the Bank relinquished its charge over the property and the very contractual relationship of secured creditor and borrower extinguished and as such the Bank had no authority to transfer any interest in the Secured Asset to the petitioner at the relevant time. Placing reliance on the decision of this Court in the Main Appeals, it was submitted that the factual matrix recorded therein discloses that the Subsequent Transferee had acquired a clear title and possession of the said property prior to the said decision and the Sale Certificate issued in lieu thereof. Since the Bank had already issued a No Dues certificate, provided a No Objection certificate, executed the Release Deed for its charge over the Secured Asset and handed over the original title deeds thereto, the Subsequent Transferee is said to have obtained a clear title ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee ought not to be dispossessed without following due process/ procedure laid down in law as per SARFAESI Act/ Rules. The Bank had rightly pursued its remedy under Section 14 for seeking physical possession in line with the decision of this Court in Blue Coast Hotels (supra) and the parties now cannot be permitted to seek the same in the present contempt petitions and the miscellaneous application. 91. He submitted that the aforesaid application of the Bank under Section 14 came to be allowed, which was later challenged before the DRT wherein the Tribunal refused to stay the same. Against this an appeal was preferred wherein the DRAT granted status quo on the ground that possession notice had not been given by the bank/tehsildar. Rather than challenging the aforesaid order, the petitioner and the Bank have mischievously preferred the present contempt petitions and miscellaneous application respectively as an attempt to short circuit the process of law for obtaining physical possession. 92. He further argued that the scope of proceedings before this Court in the Main Appeals as evident from the questions of law framed therein, primarily related to the cut-off date to exercise right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er are still pending adjudication. 98. In the last, Mr. Sibal submitted that the Subsequent Transferee had to borrow significant amount for purchasing the Secured Asset from its financiers who now have the title deeds to the property as security against the loan taken by it. He submitted that if the reliefs sought by the petitioner are granted grave prejudice and hardship would be caused to the Subsequent Transferee. Accordingly he prayed that the present contempt petition and the miscellaneous applications be dismissed and the Subsequent Transferee be permitted to pursue the S.A. No. 46 of 2022 pending before the DRT. iv. Submissions of the Bank / the respondent no. 3. 99. Mr. Raju Ramachandran, the learned Senior Counsel appearing for the Bank submitted that this Court in its decision in the Main Appeals categorically held that under the amended Section 13(8) of SARFAESI Act, the right of the borrower to redeem a secured asset stands extinguished on the date of publication of public auction notice and overruled the impugned order of the High Court that had allowed the Borrower to redeem the mortgage. 100. He submitted that in the said decision, this Court not only held the redemp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heduled to be taken on 29.02.2024. Against this, the Subsequent Transferee filed an application in the suit for seeking ad-interim injunction and grant of status qua as regards the possession which was allowed, the Bank promptly challenged the same before the High Court. Whereas the Borrower challenged the said possession notice before the DRT which was rejected but in appeal status quo was granted by the DRAT. 107. He submitted that the as per the decision of this Court in the Main Appeals, the Borrower was duty bound to return the possession and title deeds of the secured asset to the Bank for the purpose of handing the same over to the petitioner, and as a natural consequence of the direction to issue the Sale Certificate the Borrower was required to get the Release Deed and the Assignment Agreement cancelled. However, the Borrower in league with the Subsequent Transferee has prevented the implementation of the aforesaid directions as per the judgment of this Court in the Main Appeals and complicated the issue by taking recourse to untenable dilatory litigations against one and all. 108. In light of the above, the Bank was compelled to prefer the present miscellaneous applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different forums, which has left us quite perplexed. 111. It is the case of the Borrower that there is no contempt not to speak of any violation of the decision of this Court rendered in the Main Appeals as the issue of validity of the 9th auction was never touched upon by this Court whilst deciding the right of the Borrower to redeem the mortgage, rather this Court had preserved the right of the Borrower to continue with its challenge to the auction proceedings before the DRT. Thus, in essence it is the case of the Borrower that this Court had adjudicated the right of redemption independent of the validity or legality of the SARFAESI proceedings that involved these rights. 112.When the Bank published the notice of sale for the 9th Auction on 12.06.2023, the Borrower herein on 26.06.2023 preferred two applications before the DRT being I.A. No. 2253 of 2023 and I.A. No. 2254 of 2023 in S.A. No. 46 of 2022 respectively, inter-alia for amending its pleadings to challenge the 9th auction proceedings and for seeking stay of the said auction in the meantime. In the said application, the Borrower inter-alia sought to challenge the 9th Auction on the ground that there was no 30 or 15 days ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay be pleased to quash and set-aside the impugned Auction Sale Notice and Public Notices dated 12th June 2023 and hold all further and consequential measures pursuant to the impugned Auction Sale Notice dated 12th June 2023 as defective and in violation of the SARFAESI Act and Rules made thereunder. 113. While the aforesaid applications were still pending the Borrower decided to move the High Court with Writ Petition No. 9523 of 2023 seeking the indulgence of the High Court to call for the proceedings arising from the S.A. No. 46 of 2022 pending before the DRT-I, Mumbai to itself, and then adjudicating the same by examining the validity of the actions taken by the Bank under the SARFAESI Act and thereafter permit the Borrower to redeem the mortgage. In the alternative, it was prayed that the Bank may be directed to not take any further steps in confirming the sale to the petitioner till the S.A. No. 46 of 2022 is decided by the DRT. Thus, in essence, the prayer of the Borrower before the High Court was two-fold: - (i) Prayer (a) / Para 11(a) of the writ petition: Either to seize the issues arising in the S.A. No. 46 of 2022 before the DRT for itself and decide the same in favour of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same was decided by the DRT. Thus, the Borrower s case at that time was clearly that its right of redemption is not independent of the challenge to the validity of the measures taken by the Bank under the SARFAESI Act and rather was consequential to it, which is why both its primary prayer and its alternative prayer sought for the adjudication of the S.A No. 46 of 2022 on the basis of which its right may then be adjudicated. The prayer made by the Borrower in paragraph 11(b) of its writ petition is particularly interesting, inasmuch as it is seeking a direction from the High Court that it may be permitted to redeem the mortgage during the pendency of the S.A No. 46 of 2022, which further reinforces that until the securitization application was decided it could not have redeemed its mortgage without a specific direction permitting it to do so. 115. The pleadings of the Borrower in the aforesaid writ petition are also significant to the controversy at hand. The Borrower had assailed the demand notice dated 07.06.2021 under Section 13(2), the possession notice dated under Section 13(4) and the e-auction sale notices dated 25.03.2022 issued under the SARFAESI Act on various ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /-. Hereto annexed and marked Exhibit F is a copy of the Sale notice dated 12th June, 2023. 4.29 The Petitioners most respectfully submit that without prejudice to their rights and contentions, the sale process was absolutely erroneous in addition to the defects already committed by the Bank as stated herein above. xxx xxx xxx GROUNDS: - xxx xxx xxx n. that the actions on the part of the Respondent as measures under provisions of SARF AESI Act are entirely illegal, arbitrary, unreasonable and unjustified; xxx xxx xxx r. that, the E-auction sale notice dated 25th March 2022 which was delivered upon the Petitioners only on 3lst March 2022, whereas the Auction is fixed on 29th April 2022 Thus, there is no clear gap of 30 (thirty) days. Being 1st auction Respondent is duty bound to give clear 30 (thirty) day notice to the Petitioners as per the mandate of Rule 8(6) read with Rule 9(1) of the SIE Rules. Thus, the impugned e-auction notice dated 25th March 2022 and all further and consequential action become perverse; s. that, the impugned sale notice dated 25th March 2022 is in violation of Rule 8(7) (b) of SIE Rules. Under Rule 8(7)(b), legislature requires authorized officer to state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no 30 days gap between service of notice and auction; y. that known encumbrance has not disclosed as per Rule 8; z. that sale process is in blatant violation of Rule 8 9; aa. that sale notice has not been pasted at the secured assets and the same is not in statutory format provided at Appendix IV-A; cc. that Rule 8(5) has not been followed in its true spirit as it seems that reserve price is being fixed based on desktop valuation; ( Emphasis supplied ) 116. Even before the High Court, as evident from the impugned order, the Borrower had not canvassed any submissions on the illegality or invalidity of the measures taken by the Bank under the SARFAESI Act including the validity of the 9th auction notice dated 30.06.2023. The specific plea which the Borrower had taken in the present contempt petition, namely the lack of a 30 / 15 days gap between the sale notice and auction is conspicuously absent. On the contrary it appears that the Borrower in the aforesaid writ petition had abandoned its right to challenge the validity of all measures taken by the Bank under the SARFAESI Act. We say so because of the following reasons: - (i) First, before the High Court the Borrower had submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances of the present case, we are of the opinion that considering stand taken by the Respondent Bank [and which is accepted by the Petitioners without any conditions or reservations], it would be in the interest of all concerned if the consensus reached between the Respondent Bank and the Petitioners is taken cognizance of by us. We say this because in the present scenario, by 31st August 2023, the Respondent Bank will receive its entire dues one way or the other. In the event the Petitioners adhere to its promise to pay the entire dues [of 129 crores] by 31st August 2023, then naturally, the Bank will receive its entire money. In contrast, if the Petitioners default in making payment of the entire sum of Rs.129 crores, the sum of Rs. 25 crores to be paid over to the Respondent Bank today, would be appropriated by the Bank towards the outstanding dues of the Petitioners, and the balance Rs.105.05 crores would be received from the Auction Purchaser who has already deposited the entire sale consideration with the Respondent Bank. It is taking these circumstances into consideration that the Respondent Bank has changed its stand from the stand it took before the DRT when it opposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir favour. All formalities in relation to registration of that certificate shall also be done by the Respondent-Bank and the Auction Purchaser. (f) In light of this order, Mr. Khandeparkar has stated that, nothing would survive in Securitization Application No. 46 of 2022 and/or the Interim Applications filed therein and seeks leave to withdraw the same within a period of one week from today. The said statement is accepted as an undertaking given to the Court. It is needless to clarify that even if the Petitioners do not withdraw the Securitization Application, the same shall stand dismissed in light of this order and the Petitioners will not be permitted to litigate any further with the Respondent Bank in relation to the secured asset. In other words, if the Petitioners default in making the balance payment of Rs.104 crores to the Respondent Bank by 31st August 2023, the Auction Purchaser shall get the secured asset free from litigation. As per the statement made by Mr. Khandeparkar, and which is accepted as an undertaking given to the Court, if the Petitioners default in making the balance payment of Rs.104 crores by 31st August 2023, physical, vacant, quiet, and peaceful possess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that since the Borrower has already redeemed the mortgage during the pendency of the Main Appeals in compliance of the High Court s order, the only issue which remained was the refund of the amount deposited by the petitioner pursuant to the auction. After hearing the parties at length, this Court vide its order dated 01.07.2023 reserved the matter for judgment and further directed the parties to file their written submissions. 119. Pursuant to the above, the petitioner herein on 04.09.2023 at 15:40 PM filed its written submissions wherein it inter-alia submitted that since the auction was already completed and the Bank had confirmed the sale of the Secured Asset to the petitioner, a vested right in the Secured Asset had accrued in its favour. It further submitted that of the manner in which the Borrower and the Bank during the pendency of the Main Appeals, had precipitated the matter by hastily entering into private arrangements to overtake the proceedings and undermine the issue involved, prayed that this Court not only set-aside the High Court s impugned order but also inter-alia order the issuance of sale certificate of the Secured Asset and the handing over of its original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s supplied ) 120. On the very next day i.e., 05.09.2023 at 10:32 AM, the Borrower herein filed its written submissions wherein apart from contending that the right of redemption under the amended Section 13(8) of the SARFAESI Act does not get extinguished upon issuance of the notice of sale and that the impugned order of the High Court warranted no interference of this Court in view of the fact that the mortgage has already been redeemed and that even the Secured Asset stood transferred to a third-party, the Borrower interestingly never raised the issue of the illegality of the 9th auction notice. Even though the petitioner herein had contended that it had a vested right in the Secured Asset and prayed for issuance of sale certificate to that effect and handing over of original title deeds, the Borrower remarkably neither disputed the same nor imputed any illegality in the very auction process through which the petitioner claimed its vested right. The Borrower having already waived / abandoned its right to challenge the legality of the auction proceedings before the High Court did not even put forth an alternative plea to preserve its right to pursue S.A. No. 46 of 2022 in the even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Bank of India i.e. the Respondent No.2 and Tata Motors Finance Solutions Limited had a second charge on the said property. The said charge was duly registered with MIDC. Respondent No.1 was constrained to approach the Hon ble High Court invoking extraordinary jurisdiction under Article 226 5. The Respondent No. 1 had approached Debt Recovery Tribunal no 1- Mumbai challenging Auction Proceedings initiated by Respondent no 3 whereby upon urgent mentioning, Securstisation Application no 46/2022 was placed for urgent hearing on 18th June 2023 along with Connected Applications, i.e. Application for Right to Redemption. Despite various hearings taking place, where on multiple occasions, the Respondent No. 1 informed the DRT that a Demand Draft of Rs. 10 Crores is ready (And during course of hearing before the Hon ble DRT Demand Draft totalling Rs. 25,00,00,000/- were ready to be submitted), and the total amount of Rs. 1,24,00,00,000/- would be paid on or before 31.08.2023, no orders came to be passed by the Hon ble DRT 1. This was even prior to the Auction Purchaser 1.e. The Petitioner herein, depositing 100% of the Purchase value, and despite the Auction Purchaser not having paid th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egistrar, Thane 8 having registration No. 19286/2023. Copies of Documents issued/registered/executed subsequent to passing of the Impugned Order are attached herewith as Annexure R-1 (Colly). 9. Since there has been full compliance of the Impugned Order by the Respondent No.1 herein as well as the Respondent No.3 Bank, the SLP has essentially become infructuous. 10. The only issue which remains is the refund of the amount deposited by the Petitioner herein. This is an issue between the Petitioner and the Respondent No.3 Bank and the Respondent No.1 has no reason to come in the way of the refund of the amount to the Petitioner herein. 11. There is a specific direction of the Hon ble High Court that the Respondent Bank shall immediately keep the entire amount of Rs. 105.05 Crores (deposited by the Auction Purchaser/Petitioner herein) in a No Lien Interest Bearing Account and if the Respondent No.1 pays the balance amount of Rs. 104 Crores to the Respondent Bank by 31.8.2023 (which it has), then the Respondent Bank shall refund the amount of Rs. 105.05 Crores deposited by the Auction Purchaser together with accrued interest on or before 7.9.2023. The impugned order correctly interpret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground that no case had arisen to authorize the sale. Therefore, until the sale is complete by registration the mortgagor does not lose right of redemption. 15. This position has also been echoed in the case of Mathew Varghese V/s M. Amrithakumar 2014 5 SCC 610 [Annexure R-3] where this Hon ble Court has held that upon a combined reading of S. 60, 54 of the Transfer of Property Act and S. 17 of the Registration Act, it can be concluded that the extension of the right of redemption comes much later than the sale notice. 16. Though the decision in Mathew Varghese (supra) was prior to the 2016 Amendment to SARFAESI Act, its applicability has been continued to be held valid even after the amendment to the said Act. A Division Bench of the Hon ble High Court of Telangana in the case of Concern Readymix V/s Authorized Officer, Corporation Bank and Anr 2018 SCC OnLine Hyd 783 [Annexure R-4], whereby the Hon ble Court, after juxtaposing the Amended and Unamended provisions of Section 13(8) of the SARFAESI Act, qua the right of redemption available to the Mortgagor held that the Amended S. 13(8) of the SARFAESI Act only puts a restriction on the right of the Mortgagee to deal with the prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibits a secured creditor from proceeding further with the transfer of the secured asset by way of lease, assignment or sale; a restriction on the right of the mortgagee to deal with the property is not exactly the same as the equity of redemption available to the mortgagor, the payment of the amount mentioned in Section 13 (8) of the SARFAESI Act ties the hands of the mortgagee (secured creditor) from exercising any of the powers conferred under the Act; that redemption comes later; extinction of the right of redemption comes much later than the sale notice; and the right of redemption is not lost immediately upon the highest bid made by a purchaser in an auction being accepted. We also hold that such a right would continue till the execution of a conveyance i.e. issuance of sale certificate in favour of the mortgagee. A similar view has been taken by this Branch in M/s Hoshiarpur Roller Flour Mill Private Limited and another V/s Punjab National Bank (CWP No. 1440 of 2021). It would therefore, certainly be available to the Petitioners herein before the issuance of sale certificate in favour of Respondent Nos. 2 and 3. Point (a) is answered accordingly in favour of the Petitioners a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 62 and the same does not affect the applicability of Section 60 of the Transfer of Property Act, 1862. 25. It is thus humbly submitted that the arguments and contentions of the Petitioner are liable to be rejected. Various High Courts have consistently held that the right of redemption has to be exercised in terms of S. 60 of the Transfer of Property Act, 1862 and not u/s 13 (8) of the SARFAESI, 2002 and the amendment to Section 13(8) does not affect or take away this right in any manner. It is therefore respectfully submitted that the present case is not a case warranting exercise of this Hon'ble Court's jurisdiction under Article 136 of the Constitution. 121. What can be discerned from the above is that: - (i) It is true the Borrower had assailed the actions of the Bank under the SARFAESI Act before the DRT by way of S.A. No. 46 of 2022. When the 9th Auction notice came to be issued on 12.06.2023 which the Borrower alleges to have received on 14.06.2023, the same was also challenged in the aforesaid securitization application by way of I.A. No. 2253 of 2023. (ii) Before the DRT could conclude the proceedings, the Borrower on its own volition moved the High Court by way of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... once did the Borrower raise the issue of there being no 30 / 15-days time gap between the notice of sale and the auction nor the issue that as per the terms of the auction, the same was subject to the outcome of the S.A. No. 46 of 2023. (vii) Remarkably, although the Borrower during the course of hearing of the Main Appeals urged that no indulgence of this Court was warranted as it had already complied with the terms of the High Court s impugned order and that the entire matter had been rendered infructuous, yet at the same time, not once did the Borrower even remotely indicate that it was in the process of withdrawing the S.A. No. 46 of 2023 as evinced from its written submissions. (viii) Moreover, the Borrower despite being fully aware of the prayer of the petitioner for seeking confirmation of the sale in its favour and issuance of the sale certificate to the Secured Asset both during the course of hearing and in its written submissions which would have rendered the S.A. No. 46 of 2022 infructuous, it never prayed that in the event sale certificate is issued, its right to pursue S.A. No. 46 of 2022 be preserved, or that the sale certificate be made subject to the outcome of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and/or any proposed action is to be taken and the borrower is aggrieved by any of the actions of the private bank/bank/ARC, borrower has to avail the remedy under the Sarfaesi Act and no writ petition would lie and/or is maintainable and/or entertainable. [...] ( Emphasis supplied ) 126. Thus, the remedy for seeking redemption of mortgage was not only available to the Borrower under Section 17 of the SARFAESI Act but was also availed by him, by way of I.A. No. 2339 of 2023 in S.A. No. 46 of 2022. This application for seeking redemption of mortgage was also heard by the DRT for quite some time, and even orders were reserved. However, suddenly, the Borrower decided to move the High Court for seeking the very same relief that it had sought in the securitization application. 127. As there was virtually no difference between either the scope of proceedings or the prayer sought before the DRT and that before the High Court, once the Borrower had chosen to espouse the same matter already sub-judice in one forum before another, in this case the High Court, it was the duty of the Borrower to bring within the fold of its case all issues and grounds in respect of the 9th auction proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s impermissible for the High Court to allow the Borrower to redeem the same. 132. Thus, this Court only went on to determine the Borrower s right to redeem the mortgage and having done so, this Court inter-alia set-aside the impugned order of the High Court and in view of the fact that the Bank had already confirmed the sale in favour of the petitioner, and in the absence of any challenge to the auction process, further directed that the sale certificate of the Secured Asset be issued to the petitioner. The operative portion of the said decision reads as under: - 106. In the result, both the appeals succeed and are hereby allowed. 107. The impugned judgment and order passed by the High Court is hereby set aside. 108. The respondent Bank shall refund the entire amount deposited by the borrowers i.e., an amount of Rs. 129 crore paid by them in lieu of the redemption of mortgage of the secured asset at the earliest. The appellant herein shall pay an additional amount of Rs. 23.95 crore to the Bank within a period of one week from today and subject to such deposit, the Bank shall issue the sale certificate in accordance with Rule 9(6) of the Rules of 2002. 109. The pending applications ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction, the same parties will not be permitted to reopen the lis in respect of issues which might have been brought forward as part of the subject in contest but were not, irrespective of whether the same was due to any form of negligence, inadvertence, accident or omission. It was further held, that principle of res judicata applies not only to points upon which the Court was called upon by the parties to adjudicate and pronounce a judgement but to every possible or probable point or issue that properly belonged to the subject of litigation and the parties ought to have brought forward at the time. The relevant observations read as under: - In trying this question I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only becaus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, meritsbased judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not [...] ( Emphasis supplied ) (ii) Lord Millett construing the Principle held that it does not belong to the doctrine of res-judicata in the strict sense but rather was analogous to the doctrine, as it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nferred by the common law and guaranteed by article 6 While, therefore, the doctrine of res judicata in all its branches may properly be regarded as a rule of substantive law, applicable in all save exceptional circumstances, the doctrine now under consideration can be no more than a procedural rule based on the need to protect the process of the court from abuse and the defendant from oppression [...] ( Emphasis supplied ) 138. In Virgin Atlantic Airways Ltd. v. Zodiac Seats UK Ltd. reported in [2014] AC 160 Lord Sumption JSC further expounded the Henderson Principle as although separate and distinct from cause of action estoppel or res judicata yet having the same underlying public interest that there should be finality in litigation and that a party should not be twice vexed in the same matter. The relevant observations read as under: - The principle in Henderson v Henderson has always been thought to be directed against the abuse of process involved in seeking to raise in subsequent litigation points which could and should have been raised before. There was nothing controversial or new about this notion when it was expressed by Lord Kilbrandon in the Yat Tung case [1975] AC 581 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e matter ought to have been urged in the earlier proceedings, the court will have due regard to the ambit of the earlier proceedings and the nexus which the matter bears to the nature of the controversy. In holding that a matter ought to have been taken as a ground of attack or defence in the earlier proceedings, the court is indicating that the matter is of such a nature and character and bears such a connection with the controversy in the earlier case that the failure to raise it in that proceeding would debar the party from agitating it in the future. The doctrine itself is based on public policy flowing from the age-old legal maxim interest reipublicae ut sit finis litium which means that in the interest of the State there should be an end to litigation and no party ought to be vexed twice in a litigation for one and the same cause. 141. The Henderson Principle was approvingly referred to and applied by this Court in State of U.P. v. Nawab Hussain reported in (1997) 2 SCC 806 as the underlying principle for res-judicata and constructive res-judicata for assuring finality to litigation. The relevant observations read as under: - 3. The principle of estoppel per rem judicatam is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... helps in raising the bar of res judicata by suitably construing the general principle of subduing a cantankerous litigant. That is why this other rule has some times been referred to as constructive res judicata which, in reality, is an aspect or amplification of the general principle. ( Emphasis supplied ) 142. This Court in Devilal Modi v. Sales Tax Officer, Ratlam Ors. reported in AIR 1965 SC 1150, held that if the underlying rule of constructive res judicata is not applied to writ proceedings, it would be open to the party to take one proceeding after another and urge new grounds every time, and would be inconsistent with considerations of public policy. The relevant observations read as under: - 8. [...] the rule of constructive res judicata which is pleaded against him in the present appeal is in a sense a somewhat technical or artificial rule prescribed by the Code of Civil Procedure. This rule postulates that if a plea could have been taken by a party in a proceeding between him and his opponent, he would not be permitted to take that plea against the same party in a subsequent proceeding which is based on the same cause of action; but basically, even this view is founded o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voked: (i) cause of action estoppel, where the entirety of a decided cause of action is sought to be relitigated; (ii) issue estoppel or, decided issue estoppel, where an issue is sought to be relitigated which has been raised and decided as a fundamental step in arriving at the earlier judicial decision; (iii) extended or constructive res judicata i.e., unraised issue estoppel, where an issue is sought to be litigated which could, and should, have been raised in a previous action but was not raised; (iv) a further extension of the aforesaid to points not raised in relation to an issue in the earlier decision, as opposed to issues not raised in relation to the decision itself. 146. As part of the broader rule against abuse of process, the Henderson principle is rooted in the idea of preventing the judicial process from being exploited in any manner that tends to undermine its integrity. This idea of preventing abuse of judicial process is not confined to specific procedure rules, but rather aligned to a broader purport of giving quietus to litigation and finality to judicial decisions. The essence of this rule is that litigation must be conducted in good faith, and parties should n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings but later abandoned it is deemed waived and cannot be relitigated in subsequent. Allowing such pleas to be resurrected in later cases would not only undermine the finality of judgments but also incentivize strategic behaviour, where parties could withdraw claims in one case with the intention of reintroducing them later. proceedings. Abandonment signifies acquiescence, barring its reconsideration in subsequent litigation. This ensures that judicial processes are not misused for tactical advantage and that litigants are held accountable for their procedural choices. Parties must litigate diligently and in good faith, presenting their entire case at the earliest opportunity. 152. The Henderson principle operates on the broader contours of judicial propriety and fairness, ensuring that the judicial system remains an instrument of justice rather than a platform for procedural manipulation. Judicial propriety demands that courts maintain the finality and integrity of their decisions, preventing repeated challenges to settled matters. Once a matter has been adjudicated, it should not be revisited unless exceptional circumstances warrant such reconsideration. Repeated litigation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in respect of the 9th auction proceedings in the proceedings arising from the writ petition, by virtue of the Doctrine of Merger and Election. Since the prayers that were sought before the DRT had been merged with the prayers before the High Court, the scope of proceedings of the Main Appeals encompassed the issue of validity of the Bank s actions under the SARFAESI Act and by extension the 9th auction notice dated 12.06.2023 which the Borrower for reasons best known to it, and such now cannot be permitted to raise these issued when they ought to have been raised in the Main Appeals. In this regard we may refer to the decision of this Court in Vodafone Idea Cellular Ltd. v. Ajay Kumar Agarwal reported in (2022) 6 SCC 496 which held that as per the Doctrine of Election, once a party has elected to choose remedy under one forum, again the same cause of action cannot be challenged before another forum: - 25. The above position was reiterated in IREO Grace Realtech (P) Ltd. v. Abhishek Khanna13 by a three-Judge Bench of this Court, of which one of us (D.Y. Chandrachud, J.) was a part. Indu Malhotra, J., speaking for the Bench invoked the doctrine of election, which provides that when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the High Court is also significant. The Borrower in the writ petition contended that they have an apprehension that the DRT may reject their redemption application and the entire matter would become infructuous as the Bank at that point of time had already accepted the entire sale consideration for the auction from the petitioners and as such may likely issue the Sale Certificate to the Secured Asset. Thus, the Borrower s themselves were under the impression and understanding that once the Sale Certificate is issued, the sale to the Secured Asset becomes absolute and would in turn render the entire matter infructuous. In such circumstances, the contention of the Borrower as-well as the Subsequent Transferee that the Sale Certificate that was issued in pursuance of the decision in the Main Appeals was always subject to the outcome of the S.A. No. 46 of 2022 pending before the DRT, is nothing but an after-thought which the Borrower now seeks to espouse having lost in the Main Appeals and as such the said contention deserves to be rejected. (v) Even though the petitioner had specifically prayed for the issuance of the Sale Certificate to the Secured Asset, not once did the Borr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings. (viii) Mere reference to the pendency of the DRT Proceedings in the judgment by no means could lead to the inference that this Court had preserved the rights of the Borrower herein to pursue the same. One cannot assume or infer any right by referring to a stray sentence here and a stray sentence there in the judgment. It is trite that judgments of courts are not to be construed as statutes. ii. Applicability of Lis Pendens in the absence of any registration as required under the State Amendment to Section 52 of the TPA. 155. The term lis pendens as explained in the Law Lexicon is as under: - Lis means a suit, action controversy, or dispute, and lis pendens means a pending suit. The doctrine denotes those principles and rules of law which define and limit the operation of the commonlaw maxim pendente lite nihil innovetur, that is, pending the suit nothing should be changed. A pending suit. As soon as proceedings are commenced to recover or charge some specific property [Ex parte Thornton (1867)2 Ch.p.178] there is lis pendens - a pending suit, the consequence of which is that until the litigation is at an end neither litigant can deal with the property to the prejudice of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of lis pendens to apply: - i. There must be a pending suit or proceeding; ii. The suit or proceeding must be pending in a competent court; iii. The suit or proceeding must not be collusive; iv. The right to immovable property must be directly and specifically in question in the suit or proceeding; v. The property must be transferred by a party to the litigation; and vi. The alienation must affect the rights of any other party to the dispute. 159. In short, the doctrine of lis pendens, which Section 52 of the TPA encapsulates, bars the transfer of a suit property during the pendency of litigation. The only exception to the principle is when it is transferred under the authority of the court and on terms imposed by it. Where one of the parties to the suit transfers the suit property (or a part of it) to a third-party, the latter is bound by the result of the proceedings even if he did not have notice of the suit or proceeding. 160. In the landmark decision of the English Court of Chancery in Bellamy v. Sabine reported in (157) 1 De G J 566, Lord Turner underscored and explained the rationale of the principle underlying lis pendens and observed that if any alienation or material cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id proceedings either by the petitioner or by the Bank. 163. In Sanjay Verma v. Manik Roy reported in (2006) 13 SCC 608 this Court held that the principle of lis pendens enshrined in Section 52 of the TPA is not only based on equity, good conscience and justice but is also a principle of public policy and as such no party can claim exemption from the application of this doctrine on the ground of bona fide or good faith. The relevant observations read as under: - 12. The principles specified in Section 52 of the TP Act are in accordance with equity, good conscience or justice because they rest upon an equitable and just foundation that it will be impossible to bring an action or suit to a successful termination if alienations are permitted to prevail. A transferee pendente lite is bound by the decree just as much as he was a party to the suit. The principle of lis pendens embodied in Section 52 of the TP Act being a principle of public policy, no question of good faith or bona fide arises. The principle underlying Section 52 is that a litigating party is exempted from taking notice of a title acquired during the pendency of the litigation. The mere pendency of a suit does not preven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xecuted by the respondents are illegal due to the doctrine of lis pendens the defence of the respondents 1-2 that they are bonafide purchasers for valuable consideration and thus, entitled to protection under Section 41 of the Act of 1882 is liable to be rejected. ( Emphasis supplied ) 166. Thus, the question to be examined is whether the transfer of the secured asset in favour of the Subsequent Transferee is hit by lis pendens or not. It is an undisputed fact that on 25.08.2023 Special Leave Petition Nos. 19523-19524 of 2023 (later renumbered as Civil Appeal Nos. 5542-5543 of 2023) came to be filed by the petitioner challenging the impugned order dated 17.08.2023 passed by the High Court permitting the Borrower herein to redeem the mortgage created over the Secured Asset. It is also not in dispute that on 28.08.2023 the Borrower pursuant to the aforesaid order of the High Court redeemed the mortgage and transferred the said property to the Subsequent Transferee herein on the very same day by executing the aforesaid Assignment Agreement. It is also undisputed that the transfer of the Secured Asset in favour of the Subsequent Transferee was effected by the Borrower on the strength o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 28.08.2023 i.e., the date of execution of the Assignment Agreement for the transfer of the Secured Asset in favour of the Subsequent Transferee, the said Assignment Agreement dated 28.08.2023 and the transfer thereto is beyond a shadow of doubt hit by lis pendens. 169. It has been contended by the Subsequent Transferee that Section 52 of the TPA has a modified application in Maharashtra i.e., the area in which the said property is situated by virtue of the State Amendment made to Section 52 of the TPA by the Bombay Amendment Act, 1939 (Act XIV of 1939). The relevant provision as amended reads as under: - 52. Transfer of property pending suit relating thereto. (1) During the pendency in any court having authority within the limits of India excluding the State of Jammu and Kashmir established beyond such limits by the Central Government, of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, if a notice of the pendency of such suit or proceeding is registered under Section 18 of the Indian Registration Act, 1908, the property after the notice is so registered cannot be transferred or otherwise dealt with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an additional duty to register a notice of pendency in respect of such property so as to caution and put to notice any third-party who might otherwise be unaware of such proceeding or litigation despite the best of due diligence either due to inadvertence or deliberate misleading by one of the parties to the lis and as result might be genuinely considering to purchase or acquire any right in the subject-matter proceeding. The requirement of registration of notice of pendency is to prevent any undue or unwarranted hardship to such third-parties who even after a reasonable due diligence have bona-fidely purchased the property believing it to be free from the encumbrances of any pending proceeding only to later face the adverse consequence of losing their rights by a mechanical application of lis pendens. 172. This additional requirement of registration of notice of pendency is for the benefit of the party claiming any right in such subject-matter property and also for the benefit of any third-party interested in such subject-matter property by enabling the former to claim the benefit of lis pendens as an absolute right after having duly taken steps towards ensuring that the public is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Thus, we are of the considered view that even in the absence of a registered notice of pendency in terms of the amended Section 52 of TPA the said provision will not be rendered ipso-facto inapplicable, at best it would preclude the party seeking benefit of this doctrine to claim it as a matter of right, but by no stretch would it mean that the third-party conversely would be able to as matter of absolute right claim inapplicability of this doctrine. It would be the discretion of the courts to see keeping in mind the peculiar facts of the case to ascertain whether such doctrine ought to be applied or not. Where the courts are satisfied that the third-party had genuinely purchased the subject-matter property after an exercise of a reasonable degree of care and caution and that it was otherwise unaware of the pendency of proceedings, the courts would be circumspect to displace the rights of such bona-fide third-party by a mechanical application of the doctrine of lis pendens. Even otherwise, in view of the peculiar facts of this case, more particularly the fact that the petitioner could not have registered the same being only an auction purchaser and that it was the duty of the Ban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spite the fact that no notice of pendency was registered in terms of the amended Section 52 of the TPA. 177.We are aware of the two decisions of this Court one in the case of Thomson Press (India) Limited v. Nanak Builders and Investors Private Limited Ors. reported in (2013) 5 SCC 397 and T. Ravi Anr. v. B. Chinna Narasimha Ors. reported in (2017) 7 SCC 342. In both these decisions, the view taken is that Section 52 of the TPA does not render transfers affected during the pendency of the suit void but only render such transfers subservient to the rights as may be eventually determined by the court. 178. In Thomson Press (supra), T.S. Thakur, J. (as he then was) in his separate judgment while supplementing the judgment authored by M.Y. Eqbal, J., observed as under: - 53. There is, therefore, little room for any doubt that the transfer of the suit property pendente lite is not void ab initio and that the purchaser of any such property takes the bargain subject to the rights of the plaintiff in the pending suit. Although the above decisions do not deal with a fact situation where the sale deed is executed in breach of an injunction issued by a competent court, we do not see any reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocess of a court or wilful breach of an undertaking given to a court; 183. The Black's Law Dictionary, Sixth Edition, at page 1599, defines willful as hereunder: - Proceeding from a conscious motion of the will; voluntary; knowingly; deliberate. Intending the result which actually comes to pass; designed; intentional; purposeful; not accidental or involuntary. Premeditated; malicious; done with evil intent, or with a bad motive or purpose, or with indifference to the natural consequences; unlawful; without legal justification. An act or omission is willfully done, if done voluntarily and intentionally and with the specific intent to do something the law forbids, or with the specific intent to fail to do something the law requires to be done; that is to say, with bad purpose either to disobey or to disregard the law. It is a word of many meanings, with its construction often influenced by its context. In civil actions, the word (willfully) often denotes an act which is intentional, or knowing, or voluntary, as distinguished from accidental. But when used in a criminal context it generally means an act done with a bad purpose; without justifiable excuse; stubbornly, obstinately, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred on to the law courts power to punish an offender not only for his wilful disobedience but also for contumacious conduct or obstruction to the majesty of law. It further observed that such power has been conferred for the simple reason that the respect and authority commanded by the courts of law are the greatest guarantee to an ordinary citizen that his rights shall be protected and the entire democratic fabric of the society will crumble down if the respect of the judiciary is undermined. The relevant observations read as under: - 11. The contempt jurisdiction conferred on to the law courts power to punish an offender for his wilful disobedience/contumacious conduct or obstruction to the majesty of law, for the reason that respect and authority commanded by the courts of law are the greatest guarantee to an ordinary citizen that his rights shall be protected and the entire democratic fabric of the society will crumble down if the respect of the judiciary is undermined. Undoubtedly, the contempt jurisdiction is a powerful weapon in the hands of the courts of law but that by itself operates as a string of caution and unless, thus, otherwise satisfied beyond reasonable doubt, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered with in any manner. The relevant observations read as under: - 42. The contempt of court is a special jurisdiction to be exercised sparingly and with caution whenever an act adversely affects the administration of justice or which tends to impede its course or tends to shake public confidence in the judicial institutions. This jurisdiction may also be exercised when the act complained of adversely affects the majesty of law or dignity of the courts. The purpose of contempt jurisdiction is to uphold the majesty and dignity of the courts of law. It is an unusual type of jurisdiction combining the jury, the judge and the hangman and it is so because the court is not adjudicating upon any claim between litigating parties. This jurisdiction is not exercised to protect the dignity of an individual judge but to protect the administration of justice from being maligned. In the general interest of the community it is imperative that the authority of courts should not be imperilled and there should be no unjustifiable interference in the administration of justice. It is a matter between the court and the contemner and third parties cannot intervene. It is exercised in a summary manner i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action or inaction on the basis of the representation of such a party and the court ultimately finds that the party never intended to act on such representation or such representation was false. In other words, if on the representation of the respondent herein the Court was persuaded to pass the order dated 5-10-1995 extending the time for vacation of the suit premises, he may be held guilty of contempt of court, notwithstanding non-furnishing of the undertaking, if it is found that the representation was false and the respondent never intended to act upon it. [...] ( Emphasis supplied ) 193. The Borrower and the Subsequent Transferee / the alleged contemnors herein placing reliance on the decision of this Court in Patel Rajnikant (supra) have contended that in the absence of any disobedience or wilful breach of a prohibitory order no contempt could be said to have been committed. It has been further canvased that this Court in the Main Appeals never issued any specific direction either to the Borrower or the Subsequent Transferee, therefore no contempt could be said to have been committed. 194. In Patel Rajnikant (supra) this Court upon examining Section 2(b) of the Act, 1971 held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the authority of the court would amount to contempt because they undermine the respect and trust that the public reposes in judicial institutions. The judicial process relies on the confidence of society, and any act that disrupts or disrespects this process threatens to erode the foundation of justice and order. 197. Contempt jurisdiction exists to preserve the majesty and sanctity of the law. Courts are the guardians of justice, and their decisions must command respect and compliance to ensure the proper functioning of society. When individuals or entities challenge the authority of courts through wilful disobedience or obstructive behaviour, they undermine the rule of law and create the risk of anarchy. Contempt serves as a mechanism to protect the integrity of the courts, ensuring that they remain a symbol of fairness, impartiality, and accountability. 198. When judicial orders are openly flouted or court proceedings are disrespected, it sends a signal that the rule of law is ineffective, leading to a loss of trust in the system. Judicial decisions must remain unimpaired, free from external pressures, manipulation, or circumvention. Acts that attempt to mislead the court, obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore than one interpretation. In Jhareshwar Prasad Paul v. Tarak Nath Ganguly reported in (2002) 5 SCC 352 it was held that if an order does not contain any specific direction regarding a matter or if there is any ambiguity in the directions issued therein then it would be appropriate to direct the parties to approach the court which disposed of the matter for necessary clarification of the order instead of the court exercising its contempt jurisdiction thereby taking upon itself the power to decide the original proceeding in a manner not dealt with by the court passing the judgment or order. The relevant observations read as under: - The contempt jurisdiction should be confined to the question whether there has been any deliberate disobedience of the order of the court and if the conduct of the party who is alleged to have committed such disobedience is contumacious. The court exercising contempt jurisdiction is not entitled to enter into questions which have not been dealt with and decided in the judgment or order... The court has to consider the direction issued in the judgment or order and not to consider the question as to what the judgment or order should have contained. At th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the issuance of the Sale Certificate in terms of Rule 9(6) of the SARFAESI Rules, nothing remained thereafter, as issuance of sale certificate is absolute and as such the proceedings before the DRT had been rendered infructuous. (iii) Having directed not only the issuance of the Sale Certificate to the Secured Asset but also the refund of the amount paid by the Borrower, towards redemption of mortgage, necessarily entailed that the Borrower was duty bound to return the possession and title deeds of the secured asset to the Bank for the purpose of handing the same over to the petitioner. (iv) Having set aside the impugned order passed by the High Court in toto rendered any and all acts done pursuant thereto as null and void, and the Borrower and the Subsequent Transferee herein were required to get the Release Deed and the Assignment Agreement dated 28.08.2023 cancelled. (v) Having expressly directed the issuance of the Sale Certificate it necessarily excluded all other inconsistent and contrary rights and reliefs including the right to pursue the DRT proceedings in view of the maxim Expressio Unius Est Exclusio Alterius. 205. Where a decision is rendered and the impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e very same issues and rather should relegate the parties to seek clarification from the court that passed the order and adjourn further proceedings sine die. 207. We further take note of the fact that both the Borrower and the Subsequent Transferee made several attempts to prevent the effective implementation of the judgement and order dated 21.09.2023 passed by this Court and thereby thwart the attempts of the Bank to hand over the physical possession and the original title deeds of the Secured Asset to the petitioner. (i) First, both the Borrower and the Subsequent Transferee addressed a letter to the MIDC in whose industrial area the Secured Asset was situated asking them not to entertain any request from the Bank or the petitioner regarding the transfer of the leasehold rights of the Secured Asset in favour of the petitioner. (ii) Secondly, the Subsequent Transferee vide its letter dated 05.10.2023 even asked the Sub-Registrar Office, Nerul Thane not to entertain any request of the petitioner regarding the transfer of the Secured Asset. (iii) The self-serving stance of the Borrower to initially contend that it no longer had any role or authority over the secured asset in view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t contempt petition, and thus, deem it fit not to hold them guilty of contempt for the present moment. iv. Circumstances when a sale of property by auction or other means under the SARFAESI Act may be set-aside after its confirmation. 210. We must also address one very important aspect as regards when the sale of secured asset either by auction or any other method under the SARFAESI Act may be challenged or set-aside after its confirmation. 211. In B. Arvind Kumar v. Govt of India Ors. reported in (2007) 5 SCC 745 this Court whilst dealing with a plea to set-aside the sale of the property therein by way of public auction by the official receiver, it was held that when the sale is confirmed by the court, the sale becomes absolute and therefrom the title vests in the auction purchaser. The relevant observations read as under: - 12. [...] When a property is sold by public auction in pursuance of an order of the court and the bid is accepted and the sale is confirmed by the court in favour of the purchaser, the sale becomes absolute and the title vests in the purchaser. A sale certificate is issued to the purchaser only when the sale becomes absolute. The sale certificate is merely the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence, if any one wanted to make a bid in the auction he should have participated in the said auction and made his bid. Moreover, even after the auction the sale was confirmed by the High Court only on 30-7- 2003, and any objection to the sale could have been filed prior to that date. However, in our opinion, entertaining objections after the sale is confirmed should not ordinarily be allowed, except on very limited grounds like fraud, otherwise no auctionsale will ever be complete. xxx xxx xxx 29. [...] It may be mentioned that auctions are of two types (1) where the auction is not subject to subsequent confirmation, and (2) where the auction is subject to subsequent confirmation by some authority after the auction is held. 30. In the first case mentioned above, i.e. where the auction is not subject to confirmation by any authority, the auction is complete on the fall of the hammer, and certain rights accrue in favour of the auction-purchaser. However, where the auction is subject to subsequent confirmation by some authority (under a statute or terms of the auction) the auction is not complete and no rights accrue until the sale is confirmed by the said authority. Once, however, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e effect of the order of the High Court would be again reopening the issues which have achieved finality. 216. In V.S. Palanivel v. P. Sriram reported in 2024 INSC 659 this Court again reiterated unless there are some serious flaws in the conduct of the auction as for example perpetration of a fraud/collusion, grave irregularities that go to the root of such an auction, courts must ordinarily refrain from setting them aside keeping in mind the domino effect such an order would have. The relevant observations read as under: - 36.14. This Court must underscore the well settled legal position that once an auction is confirmed, it ought to be interfered with on fairly limited grounds. (Refer: Valji Khimji and Co. v. Hindustan Nitro Product (Gujarat) Ltd. (Official Liquidator) MANU/SC/3408/2008 : 2008:INSC:925 : (2008) 9 SCC 299 and Celir LLP v. Bafna Motors (Mumbai) Private Limited and Ors. MANU/SC/1042/2023 : 2023:INSC:838 : (2024) 2 SCC 1). Repeated interferences in public auction also results in causing uncertainty and frustrates the very purpose of holding auctions. (Refer : K. Kumara Gupta v. Sri Markendaya and Sri Omkareswara Swamy Temple and Ors. MANU/SC/0213/2022 : 2022:INSC:20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n favour of the petitioner, we find no good reason to interfere with the 9th auction conducted by the Bank. 218. Any sale by auction or other public procurement methods once already confirmed or concluded ought not to be set-aside or interfered with lightly except on grounds that go to the core of such sale process, such as either being collusive, fraudulent or vitiated by inadequate pricing or underbidding. Mere irregularity or deviation from a rule which does not have any fundamental procedural error does not take away the foundation of authority for such proceeding. In such cases, courts in particular should be mindful to refrain entertaining any ground for challenging an auction which either could have been taken earlier before the sale was conducted and confirmed or where no substantial injury has been caused on account of such irregularity. 219. In the present lis, apart from the want of statutory notice period, no other challenge has been laid to the 9th auction proceedings on the ground of it being either collusive, fraudulent or vitiated by inadequate pricing or underbidding, thus, the auction cannot be said to suffer from any fundamental procedural error, and as such does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be permitted to expand the scope of the said proceedings and now seek the relief which it previously did not. In this regard, we may only refer to the decision of this Court in Baranagore Jute Factory Plc. Mazdoor v. Baranagore Jute Factory Plc. reported in AIR ONLINE 2017 SC 410 wherein it was held the court not only has a duty to issue appropriate directions for remedying or rectifying the things done in violation of its orders but also the power to take restitutive measures at any stage of the proceedings. The relevant observations read as under: - ... As held by this Court in Delhi Development Authority v. Skipper Construction Co. (P) Ltd. and another, and going a step further, the Court has a duty to issue appropriate directions for remedying or rectifying the things done in violation of the orders. In that regard, the Court may even take restitutive measures at any stage of the proceedings. [...] ( Emphasis supplied ) 222. Similarly, a Three-Judge Bench of this Court in the case of State Bank of India Ors. v. Dr. Vijay Mallya reported in 2022 SCC Online SC 826, in clear terms said that apart from punishing the contemnor for his contumacious conduct, the majesty of law ..... 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