TaxTMI 
TaxTMI 
TaxTMI 
2016 (12) TMI 1561
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....shall be paid from the date the amount has been received by the Bank on account of the auction, till the amount is actually paid to the respondents. 2. Brief facts of the case are that the respondent No.1 - Ashok Saxena was a guarantor in respect of loan obtained by the respondent No.2 - M/s Mayunk Industries. The account of respondent No.2 was classified as NPA and the proceeding for auction of mortgaged property was initiated under the provisions of Secularization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short .... "the SARFAESI Act") and, therefore, the auction took place on 11/02/2010 and the property of the respondent No.1 (guarantor) was sold by the appellants - Bank for a sum of Rs. 8....
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....etitioner is a Proprietor is a separate account and there is an independent contract between the respondent No.1 and the Bank in respect of account of M/s. Anita Steel Wire Works. Similarly in respect of account of M/s. Mayunk Industries, there was a separate contract between the Bank and M/s. Mayunk Industries and the respondent No.1 was guarantor in respect of loan granted M/s. Mayunk Industries. There were two separate account altogether and by no stretch of imagination, the surplus amount by taking the shelter of Section 171 of the Indian Contract could have been appropriated with the outstanding amount of M/s. Anita Steel Wire Works and directed the Bank to refund the amount in question along with interest. 7. Learned Senior Counsel f....
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....e sale or under the contract of sale; 9. Learned counsel for the respondent No.1 also submitted that as per Section 171 of the Indian Contract Act, 1872, in mercantile system the Bank has a general lien over all forms of securities in respect of goods bailed to them. He submitted that as per Sub-section 7 of Section 2, the actionable claims and the surplus amount are not goods within the meaning of Section 2(7) of the Sale of Goods Act, 1930 and Section 171 of the Indian Contract Act, 1872 and the issue involved in this writ appeal is squarely covered by the decision of the Apex Court in the case of Axis Bank Vs. SBS Organics Private Ltd. & Anr., passed in Civil Appeal No.4379/2016 decided on 22/04/2016. Para 21 to 24 are relevant which re....
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.... security interest on such pre- deposit in favour of the secured creditor. If that be so, on disposal of the appeal, either on merits or on withdrawal, or on being rendered infructuous, in case, the appellant makes a prayer for refund of the pre- deposit, the same has to be allowed and the pre-deposit has to be returned to the appellant, unless the Appellate Tribunal, on the request of the secured creditor but with the consent of the depositors, had already appropriated the pre-deposit towards the liability of the borrower, or with the consent, had adjusted the amount towards the dues, or if there be any attachment on the pre-deposit in any proceedings under Section 13(10) of the Act read with Rule 11 of The Security Interest (Enforcement) ....
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.... Another [LAWS (SC)-2000-4-120, decided on 10 April, 2000 has held that in 'execution', the jurisdiction of the Recovery Officer is exclusive. Now a procedure has been laid down in the Act for recovery of the debt as per the certificate issued by the Tribunal and this procedure is contained in Chapter V of the Act and is covered by Sections 25 to 30. It is not the intendment of the Act that while the basic liability of the defendant is to be decided by the Tribunal under Section 17, the Banks/Financial institutions should go to the Civil Court or the Company court or some other authority outside the Act for the actual realisation of the amount. The certificate granted under Section 19(22) has, in our opinion, to be executed only by ....