TaxTMI 
TaxTMI 
TaxTMI 
2015 (3) TMI 281
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....writ petitioner claims that, the secured creditor did not obtain her consent when the secured creditor extended the time to put in the balance purchase price by the purchaser, in terms of Rule 9 of the Security Interest (Enforcement) Rules, 2002 and, therefore, the sale by the secured creditor of the immovable property concerned is null and void. In support of the proposition that, Rule 9 of the Security Interest (Enforcement) Rules, 2002 is mandatory, reliance is placed on 2014 Volume 5 Supreme Court Cases page 651(J. Rajiv Subramaniyan & Anr. v. Pandiyas & Ors.) as well as 2014 Volume 5 Supreme Court Cases page 610 (Mathew Varghese v. Amritha Kumari) in this regard. Relying on 2013 Volume 10 Supreme Court Cases page 83 (G.M., Sri Siddesh....
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....writ petition. It is submitted on behalf of the respondents that, the petition can be disposed of without inviting affidavits by treating the averments made in the petition not to be admitted by the respondents. Learned Counsel for the respondents submits that, the writ petitioner had an alternative statutory remedy under the provisions of the SARFAESI Act, 2002. She had chosen to waive her right to approach the Debts Recovery Tribunal under the provisions of the SARFAESI Act, 2002 by not approaching the Debts Recovery Tribunal within prescribed period. The actions complained are of May 2014. Relying on the averments at paragraph 19 of the writ petition, it is submitted on behalf of the respondents that, the writ petitioner was aware that ....
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.... exercise its jurisdiction under Article 226 of the Constitution of India with greater caution, care and circumspection. This judgment, in my view, cannot be read to mean that, the jurisdiction of the High Court under Article 226 of the Constitution of India in respect of an infraction committed by a secured creditor in its exercise of powers under the SARFAESI Act, 2002 stands ousted. The learned Counsel for the respondents contend that, the writ petitioner has waived her right to challenge the action of the respondents since the writ petitioner did not approach the writ Court within the time limits specified under Section 17 of the SARFAESI Act, 2002. He refers to paragraph 19 of the writ petition and contends that, the writ petitioner w....
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....secured creditor that, the writ petitioner was aware of the measure taken by the secured creditor complained of, and that such measure was taken at a given point of time and that a period of 45 days in terms of Section 17 of the SARFAESI Act, 2002 had expired since the date of such measure being taken. In the instant case, the secured creditor has proceeded to extend the time to deposit the balance purchase price without any reference to the writ petitioner. The secured creditor has not been able to establish any particular date on which the writ petitioner derived such knowledge and that a period of 45 days has elapsed therefrom prior to the filing of the writ petition. The next issue is whether the sale conducted by the secured creditor ....
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...., 2002 as well as three authorities of the Supreme Court on behalf of the writ petitioner. Rule 9(4) of the Security Interest (Enforcement) Rules, 2002 requires that the balance amount of purchase price to be paid by the purchaser to the authorized officer on or before the 15th day of confirmation of the sale of the immovable property or such other extended period as may be agreed upon in writing between the parties. The factual matrix of the instance case will demonstrate that, the sale was confirmed in favour of the purchaser on May 17, 2014. It is alleged in paragraph 19 of the writ petition that, the purchaser deposited the balance purchase amount in the second week of the month of September 2014. This averment is not denied by the resp....
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.... of Rule 9(4), the expression "written agreement" means nothing more than a manifestation of mutual assent in writing. The word "parties" for the purposes of Rule 9(4) we think must mean the secured creditor, borrower and auction-purchaser." The learned Counsel for the respondents contends that, the observation made by the Supreme Court is obiter dicta. I am afraid, I am not in a position to agree with such contention as the reading of the report does not sustain the same. In Mathew Varghese (supra) the Supreme Court was of the view that, the secured creditor was entitled to enforce the secured asset in conformity with the provisions of the SARFAESI Act, 2002. In J. Rajiv Subramaniyan & Anr. (supra) the Supreme Court considered Mathew Var....