TaxTMI 
TaxTMI 
2018 (4) TMI 717
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....hicken, which availed financial assistance, from Union Bank of India, Bangalore. For the default, account of the borrower was classified as Non-performing Asset. Demand notice, under Section 13 (2) of the SARFAESI Act, 2002, dated 13/5/2012, was issued. Possession notice, dated 20/3/2012, issued under Section 13 (4) of the SARFAESI Act, 2002, was challenged in S.A.No.345 of 2012, before the Debts Recovery Tribunal, Bangalore and the same was dismissed, on 22/1/2013. 4. Union Bank of India, Asset Recovery Branch, Bangalore, has issued a sale notice, dated 29/5/2013, for e-auction, fixing the date of sale, on 30/6/2013. The petitioner herein has challenged the sale notice, in S.A.No.329 of 2013, vide order, dated 20/9/2013, the Debts Recovery Appellate Tribunal, Bangalore, has dismissed the same. Thereafter, Bank has issued auction sale notice, dated 21/9/2013, fixing the date for sale, on 27/9/2013. In the notice, dated 21/9/2013, there were three items of properties in the schedule. On 27/9/2013, items 1 and 2 of the properties in the schedule, were sold. Therefore, Union Bank of India, Asset Recovery Branch, Bangalore, issued another sale notice, dated 21/9/2013, for auctioning....
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....hird respondent. Debts Recovery Tribunal, Bangalore, also directed the petitioner to pay Rs. 75,000/-, as compensation, to the auction purchaser/third respondent, therein, within fifteen days, from the date of passing the order, in S.A.No.34 of 2014, dated 12/6/2015. 8. Debts Recovery Tribunal, Bangalore has further directed that if the writ petitioner fails to pay the said amount towards the registration charges, interest, bid amount deposited and compensation amount, as aforesaid, to the third respondent/auction purchaser, within fifteen days, from the date of passing of the order, in S.A.No.34 of 2014, Union Bank of India, Asset Recovery Branch, Bangalore will pay the same to the bidder/auction purchaser/third respondent and thereafter, recover the said amount, as part of loan from the revision petitioner, as required under law, together with interest, thereon. 9. Debts Recovery Tribunal, Bangalore has further directed that if the order made in S.A.No.34 of 2014, dated 12/6/2015, is not complied with, the respondent Bank is at liberty to move the Tribunal seeking suitable relief, as required under law. Debts Recovery Tribunal, Bangalore has also made it clear that the Auth....
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....e file of the Debts Recovery Tribunal, Bangalore. Sale concluded in favour of the auction purchaser was affirmed. However, quite contrary to the affirmation of sale, the appellate Tribunal has also observed that the borrower/writ petitioner has every right to redeem his property and accordingly, permitted the borrower, to make payment of the entire amount to the Bank, so as to make refund, to the auction purchaser. 13. In the instant Civil Revision Petition, borrower/writ petitioner has challenged the aforesaid order, made in R.A.(SA) No.45 of 2015, dated 10/2/2017, on the file of the Debts Recovery Appellate Tribunal, Chennai. 14. Though several grounds have been raised, inviting the attention of this Court to the auction notices, dated 21/9/2013, and 27/9/2013, published in newspapers, and the date fixed for auction of the sale properties therein, decision of the Hon'ble Supreme Court in Mathew Varghese Vs. M.Amritha Kumar and others {(2014) 5 Supreme Court Cases 610} and Vasu P.Shetty Vs. Hotel Vandana Palace and Others {(2014) 5 Supreme Court Cases 660}, Mr.T.Srinivasa Raghavan, learned counsel for the revision petitioner submitted that in so far as the first auction ....
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....m. 19. Based on the counter affidavit filed by the Chief Manager, Asset Recovery Branch, first respondent, Mr.Ramesh for Mr.Srinath Sridevan, learned counsel for the Bank submitted that as on 15/9/2013, a sum of Rs. 1,60,32,326/-, was due and payable by the borrower. Earlier, possession notice, dated 20/3/2012, issued under Section 13 (4) of the SARFAESI Act, 2002, was challenged in S.A.No.345 of 2012 and that the same was dismissed by Debts Recovery Tribunal, Bangalore. He further submitted that the sale notice, dated 29/5/2013, was challenged by the borrower, in S.A.No.329 of 2013, and that the same was also dismissed for default, by the Debts Recovery Tribunal, Bangalore, on 20/9/2013. Borrower is a chronic defaulter, not paid any pie, continue to litigate, whenever Bank had taken measures to realise the debt and that therefore, there was no bona fide. 20. Added further, learned counsel for the Bank submitted that properties are situated at Bangalore. Merely because of a portion of cause of action had arisen, within the jurisdiction of this Court, that does not mean that the writ petition is maintainable, on the file of this Court. Thus, he has raised a preliminary objecti....
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....tories interrelation to which it exercises jurisdiction. This power of superintendence also extends to the administrative functioning of these courts and tribunals [Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil [(2010) 8 SCC 329]]. Hence, in light of the above, we expect that all the High Courts shall keep a close watch on the functioning of DRTs and DRAT, which fall within their respective jurisdictions. The High Courts shall ensure a smooth, efficient and transparent working of the said Tribunals. We are confident that through the timely and appropriate superintendence of the High Courts, the Tribunals shall adhere to the rigour of appropriate standards indispensable to the fair and efficient administration of justice." 25. In view of the decision extracted above, objection as to maintainability of the instant Civil Revision Petition, is over ruled. Let us also consider few cases, wherein revisional powers under Article 227 of the Constitution of India, can be exercised. (i) In Jodhey v. State reported in AIR 1952 All. 788, after setting out the history of Article 227 of the Constitution of India, the Allahabad High Court held thus, "9. A comparison o....
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....rtue of the fact that they do not come within the strict category of civil, revenue, or criminal Courts as known under the ordinary law of the land. Certain other minor changes in this Article are also noteworthy. A contrast of the marginal note appended to Article 227 of the Constitution of India with the marginal notes of Section 224, Government of the India Act, 1935, Section 107, Government of India Act 1915, and Section 15, High Courts Act, 1861, is instructive. The marginal note of Article 227 of the Constitution of India is "Power of superintendence over all Courts by the High Courts". This may be contrasted with the marginal note of Section 224, Government of India Act, 1935, which was "Administrative functions of the High Court" and the marginal note of Section 107, Government of India Act, 1915, which was "Powers of High Court with respect to subordinate Courts". Similarly, the marginal note of Section 15, High Courts Act, 1861, was "High Courts to superintend and to frame rules of practice for subordinate Courts", The alteration in this marginal note also emphasises the fact that the powers of the High Court under the Constitution extend not merely to administrative func....
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....ourts and tribunals throughout the territories in relation to which it exercises jurisdiction. It is couched in a language which would vest the High Court with a power that is not fettered with any restriction and must embrace all aspects of the functions exercised by every Court and tribunal. On a proper interpretation of this clause it is difficult to my mind to hold that the powers of superintendence are confined only to administrative matters. There are no limits, fetters or restrictions placed on this power of superintendence in this Clause and the purpose of this Article seems to be to make the High Court the custodian of all justice within the territorial limits of its jurisdiction and to arm it with a weapon that could be wielded for the purpose of seeing that justice is meted out fairly and properly by the bodies mentioned therein. To fulfil this function it seems to me that the power of superintendence of the High Court over judicial matters is as necessary as over administrative matters. As a matter of fact judicial function of a Court is not less important than its administrative function. In fact it is more necessary to rectify lapses in judicial matters than defects i....
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.... or the fact chat the body performing judicial functions is special tribunal constituted under a Statute cannot be set up as a bar to the exercise of this power by the High Court. The prohibited area is to be found within the four corners of the constitution itself and nowhere else. 15. The fact that these unlimited powers are vested in the High Court should, however, make the High Court more cautious in its exercise. The self-imposed limits of these powers are established and laid down by the High Courts themselves. It seems to me that these powers cannot be exercised unless there has been an unwarranted assumption of jurisdiction not possessed by Courts or a gross abuse of jurisdiction possessed by them or an unjutifiable refusal to exercise a jurisdiction vested in them by law. Apart from matters relating to jurisdiction, the High Court may be moved to act under it when there has been a flagrant abuse of the elementary principles of justice or a manifest error of law patent on the face of the record or an outrageous miscarriage of justice which calls for remedy. Under this power, the High Court will not be justified in converting itself into a Court of appeal and subver....
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....ties have only limited jurisdiction or powers and must be kept within their legal bounds. This is the concern of the Crown, for the sake of orderly administration of justice, but it is a private complaint which sets the Crown in motion." (Administrative Law, Eighth Edition, page 591). 8. The learned authors go on to add that problem arose on exercising control over justices of the peace, both in their judicial and their administrative functions as also the problem of controlling the special statutory body which was addressed to by the Court of King's Bench. "The most useful instruments which the Court found ready to hand were the prerogative writs. But not unnaturally the control exercised was strictly legal, and no longer political. Certiorari would issue to call up the records of justices of the peace and commissioners for examination in the King's Bench and for quashing if any legal defect was found. At first there was much quashing for defects of form on the record, i.e. for error on the face. Later, as the doctrine of ultra vires developed, that became the dominant principle of control" (page 592). 9. The nature and scope of the writ of certiorari and....
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....was considered by this Court in Hari Vishnu Kamath Vs. Ahmad Ishaque 1955-I S 1104 : ((s) AIR 1955 SC 233) and the following four propositions were laid down :- "(1) Certiorari will be issued for correcting errors of jurisdiction; (2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice; (3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of fact reached by the inferior court or tribunal, even if they be erroneous. (4) An error in the decision or determination itself may also be amenable to a writ of certiorari if it is a manifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision." 11. In the initial years the Supreme Court was not inclined to depart ....
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....had disregarded certain executive instructions not having the force of law, there is not case for the exercise of the jurisdiction under Article 226." 14. The Constitution Bench in T.C. Basappa Vs. T. Nagappa & Anr., (1955) 1 SCR 250, held that certiorari may be and is generally granted when a court has acted (i) without jurisdiction, or (ii) in excess of its jurisdiction. The want of jurisdiction may arise from the nature of the subject-matter of the proceedings or from the absence of some preliminary proceedings or the court itself may not have been legally constituted or suffering from certain disability by reason of extraneous circumstances. Certiorari may also issue if the court or tribunal though competent has acted in flagrant disregard of the rules or procedure or in violation of the principles of natural justice where no particular procedure is prescribed. An error in the decision or determination itself may also be amenable to a writ of certiorari subject to the following factors being available if the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law but a mere wrong de....
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....te that in England the judicial orders passed by civil Courts of plenary jurisdiction in or in relation to matters brought before them are not held to be amenable to the jurisdiction to issue writs of certiorari." 17. A perusal of the judgment shows that the above passage has been quoted "incidentally" and that too for the purpose of finding authority for the proposition that a judge sitting on the Original Side of the High Court cannot be called a court 'inferior or subordinate to High Court' so as to make his orders amenable to writ jurisdiction of the High Court. Secondly, the abovesaid passage has been quoted but nowhere the Court has laid down as law by way its own holding that a writ of certiorari by High Court cannot be directed to Court subordinate to it. And lastly, the passage from Halsbury quoted in Naresh Shridhar Mirajkar's case (supra) is from third edition of Halsbury Laws of England (Simond's Edition, 1955). The law has undergone a change in England itself and this changed legal position has been noted in a Constitution Bench decision of this Court in Rupa Ashok Hurra Vs. Ashok Hurra and Anr. - (2002) 4 SCC 388. Justice SSM Quadri speaking f....
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....ord can be corrected by certiorari. The broad working rule for determining what is a patent error or an error apparent on the face of the record was well set out in Satyanarayan Laxminarayan Hegde and Ors. Vs. Mallikarjun Bhavanappa Tirumale, (1960) 1 SCR 890. It was held that the alleged error should be self-evident. An error which needs to be established by lengthy and complicated arguments or an error in a long-drawn process of reasoning on points where there may conceivably be two opinions cannot be called a patent error. In a writ of certiorari the High Court may quash the proceedings of the tribunal, authority or court but may not substitute its own findings or directions in lieu of one given in the proceedings forming the subject-matter of certiorari. 21. Certiorari jurisdiction though available is not to be exercised as a matter of course. The High Court would be justified in refusing the writ of certiorari if no failure of justice has been occasioned. In exercising the certiorari jurisdiction the procedure ordinarily followed by the High Court is to command the inferior court or tribunal to certify its record or proceedings to the High Court for its inspection so ....
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....idth and vigour unprecedented. Difference between a writ of certiorari under Article 226 and supervisory jurisdiction under Article 227. 24. The difference between Articles 226 and 227 of the Constitution was well brought out in Umaji Keshao Meshram and Ors. Vs. Smt. Radhikabai and Anr., (1986) Supp. SCC 401. Proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original but only supervisory.Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915 excepting that the power of superintendence has been extended by this Article to tribunals as well. Though the power is akin to that of an ordinary court of appeal, yet the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) ha....
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....nal jurisdiction being exercised in the garb of exercise of supervisory jurisdiction under Article 227 of the Constitution, the courts have devised self-imposed rules of discipline on their power. Supervisory jurisdiction may be refused to be exercised when an alternative efficacious remedy by way of appeal or revision is available to the person aggrieved. The High Court may have regard to legislative policy formulated on experience and expressed by enactments where the Legislature in exercise of its wisdom has deliberately chosen certain orders and proceedings to be kept away from exercise of appellate and revisional jurisdiction in the hope of accelerating the conclusion of the proceedings and avoiding delay and procrastination which is occasioned by subjecting every order at every stage of proceedings to judicial review by way of appeal or revision. So long as an error is capable of being corrected by a superior court in exercise of appellate or revisional jurisdiction though available to be exercised only at the conclusion of the proceedings, it would be sound exercise of discretion on the part of the High Court to refuse to exercise power of superintendence during the pendency....
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....act on jurisdiction under Articles 226 and 227? 29. The Constitution Bench in L. Chandra Kumar Vs. Union of India & Ors., (1997) 3 SCC 261, dealt with the nature of power of judicial review conferred by Article 226 of the Constitution and the power of superintendence conferred by Article 227. It was held that the jurisdiction conferred on the Supreme Court under Article 32 of the Constitution and on the High Courts under Articles 226 and 227 of the Constitution is part of the basic structure of the Constitution, forming its integral and essential feature, which cannot be tampered with much less taken away even by constitutional amendment, not to speak of a parliamentary legislation. A recent Division Bench decision by Delhi High Court (Dalveer Bhandari and H.R. Malhotra, JJ) in Criminal Writ Petition NO.s.758, 917 and 1295 of 2002 - Govind Vs. State (Govt. of NCT of Delhi) decided on April 7, 2003 (reported as [2003] 6 ILD 468 makes an indepth survey of decided cases including almost all the leading decisions by this Court and holds - "The power of the High Court under Article 226 cannot be whittled down, nullified, curtailed, abrogated, diluted or taken either by judicial prono....
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....The power of superintendence is a power of known and well- recognised character and should be exercised on those judicial principles which give it its character. The mere misconception on a point of law or a wrong decision on facts or a failure to mention by the Courts in its judgment every element of the offence, would not allow the order of the Magistrate being interfered with in exercise of the power of superintendence but the High Court can and should see that no man is convicted without a legal reason. A defect of jurisdiction or fraud on the part of the prosecutor or error on the "face of the proceedings" as understood in Indian practice, provides a ground for the exercise of the power of superintendence. The line between the two classes of case must be, however, kept clear and straight. In general words, the High Court's power of superintendence is a power to keep subordinate Courts within the bounds of their authority, to see that they do what their duty requires and that they do it in a legal manner. 32. The principles deducible, well-settled as they are, have been well summed up and stated by a two-judges Bench of this Court recently in State, through Special Cell,....
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....it of certiorari. The Full Bench added that every interlocutory order passed in a civil suit is not subject to review under Article 226 of the Constitution but if it is found from the order impugned that fundamental principle of law has been violated and further such an order causes substantial injustice to the party aggrieved the jurisdiction of the High Court to issue a writ of certiorari is not precluded. However, the following sentence occurs in the judgment of the Full Bench:- "where an aggrieved party approaches the High Court under Art. 226 of the Constitution against an order passed in civil suit refusing to issue injunction to a private individual who is not under statutory duty to perform public duty or vacating an order of injunction, the main relief is for issue of a writ of mandamus to a private individual and such a writ petition under Art.226 of the Constitution would not be maintainable." 36. It seems that the High Court in its decision impugned herein formed an impression from the abovequoted passage that a prayer for issuance of injunction having been refused by trial court as well as the appellate court, both being subordinate to High Court and the di....
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....ors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice. (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the e....
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....e act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case. 39. Though we have tried to lay down broad principles and working rules, the fact remains that the parameters for exercise of jurisdiction under Articles 226 or 227 of the Constitution cannot be tied down in a straitjacket formula or rigid rules. Not less than often the High Court would be faced with dilemma. If it intervenes in pending proceedings there is bound to be delay in termination of proceedings. If it does not intervene, the error of the moment may earn immunity from correction. The facts and circumstances of a given case may make it more appropriate for the High Court to exercise selfhttp:// restraint and not to intervene because the error of jurisdiction thou....
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.... evidence which is legally inadmissible, or has refused to admit an admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. It is needless to mention that a pure error of fact, however grave, cannot be corrected by a writ. 23. It is useful to refer the decision of this Court in Surya Dev Rai vs. Ram Chander Rai and Others, (2003) 6 SCC 675 wherein, in para 38, held as under: "38.(3) Certiorari, under A rticle 226 o f the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice." 24. It is clear that whether it is a writ of Certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the f....
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.... 14. In Joint Registrar of Co-Operative Societies, Madras & others v. P.S.Rajagopal Naidu, Govindarajulu and others, AIR 1970 SC 992, the Apex Court has held that the High Courts should not act as a Court of appeal and re-appraise and re-examine the relevant facts and circumstances which led to the making of order. 15. In Muni Lal and others v. Prescribed Authority and others, AIR 1978 SC 29, it has been held that the High Court cannot re-appreciate the evidence and come to its own conclusion different from that of the prescribed Authority. 16. In Ganpat Ladha v. Sashikant Vishnu Shinde, AIR 1978 SC 955, the Apex Court has held that the High Courts cannot justify the exercise of its discretionary powers under Article 227of the Constitution as to the finding of fact; unless such finding of fact is clearly perverse and patently unreasonable. 17. In Chandavarkar Sita Ratna Rao v. Ashalata S.Guram, (1986) 4 SCC 447, the Apex Court at page 460, para (4) has held thus:- "It is true that in exercise of jurisdiction under Article 227 of the Constitution the High Court could go into the question of facts or look into the evidence if justice so requir....
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....the wrong is referable to grave dereliction of duty and flagrant abuse of power by the subordinate courts and tribunals resulting in grave injustice to any party" 19. In State v. Navjot Sandhu, (2003) 6 SCC 641, the Apex Court, at page 656, para (28) has held as under:- "Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and to seeking that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However, the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not terms purport to exercise any such discretionary power. It is settled law that this power of judicial superintendence , unde....
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....njunctures and without giving cogent reasons, which would result in error apparent on the face of the records. Unless, the errors questioned are apparently error, perverse and the findings are not supported by any materials, the exercise of power under Article 227 of the Constitution to interfere with in such orders may not be available." (viii) In Ramesh Chandra Sankla v. Vikram Cement reported in AIR 2009 SC 712, at paragraph 81, held as follows: "81. The power of superintendence under Article 227 of the Constitution conferred on every High Court over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction is very wide and discretionary in nature. It can be exercised ex debito justitiae, i.e. to meet the ends of justice. It is equitable in nature. While exercising supervisory jurisdiction, a High Court not only acts as a court of law but also as a court of equity. It is, therefore, power and also the duty of the Court to ensure that power of superintendence must 'advance the ends of justice and uproot injustice'." 26. Material on record discloses that Bank has resorted to measures under the SARFAESI Act, 2002. Po....
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....ed under Rule 8 read along with 9(1) has to be necessarily followed, inasmuch as that is the prescription of the law for effecting the sale as has been explained in detail by us in the earlier paragraphs by referring to Sections 13(1), 13(8) and 37, read along with Section 29 and Rule 15. In our considered view any other construction will be doing violence to the provisions of the SARFAESI Act, in particular Section 13(1) and (8) of the said Act. 55. Therefore, once the Securitisation Application of the borrowers, namely, Respondents 1 and 2 was dismissed on 27.12.2007, even assuming that there was no impediment for the SECURED CREDITOR, namely, the 4th Respondent-Bank to resort to sale under the provisions of the SARFAESI Act, as held by us in the earlier paragraphs, there should have been a fresh notice issued in accordance with Rules 8(6) and 9(1) of the Rules, 2002. Unfortunately, the 4th Respondent-Bank stated to have effected the sale on 28.12.2007 by accepting the tender of the Appellant and by way of further process, directed the Appellant to deposit the 25% of the amount on that very day and also directed to deposit the balance amount within 15 days, which was dep....
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....ifically for the protection of the borrowers in as much as, ownership of the secured assets is a constitutional right vested in the borrowers and protected under Article 300A of the Constitution of India. Therefore, the secured creditor as a trustee of the secured asset can not deal with the same in any manner it likes and such an asset can be disposed of only in the manner prescribed in the SARFAESI Act, 2002. Therefore, the creditor should ensure that the borrower was clearly put on notice of the date and time by which either the sale or transfer will be effected in order to provide the required opportunity to the borrower to take all possible steps for retrieving his property. Such a notice is also necessary to ensure that the process of sale will ensure that the secured assets will be sold to provide maximum benefit to the borrowers. The notice is also necessary to ensure that the secured creditor or any one on its behalf is not allowed to exploit the situation by virtue of proceedings initiated under the SARFAESI Act, 2002. 14. Thereafter, in Paragraph 27, the Court observed as follows:- "30. Therefore, by virtue of the stipulations contained under the provis....
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....sal of S.A.No.329 of 2013, would not prohibit the borrower/guarantor, to challenge any subsequent sale notice. Sale notice, dated 20/9/2013, bringing three items of property, on 27/9/2013, is extracted supra. In the opening sentence of the tender-cum-auction sale notice, it is stated as hereunder"- "In continuation of the e-auction notice, published in Indian Express and Kannada Prabha, on 29/5/2013, under SARFAESI Act, 2002 the under mentioned property items will be sold on 27/9/2013 at 11 a.m to 12 noon. 34. Reading of the above, tender cum auction notice, dated 20/9/2013, has been issued, in continuation of the earlier notice, dated 29/5/2013. Between the subsequent sale notice and sale, there was only seven days notice. 35. Writ petitioner has contended that item Nos.1 and 2 of the schedule mentioned, in the tender-cum-auction, dated 20/9/2013, have been sold. In respect of the third item of property mentioned in the tender-cum-auction, dated 20/9/2013, another tender cum auction notice, dated 27/9/2013, has been issued to bring the same for auction, on 30/9/2013. Here again, the opening sentence of the tender-cumauction- cum-sale notice, dated 27/9/2013 reads th....
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.... North by: 22'' road South by: Property of Munikrishna * * * * * Schedule 7 Rule 9 (b) SALE CERTIFICATE Whereas The undersigned being the Authorised Officer of the Union Bank of India, Asset Recovery Branch, Avenue Road, Bangalore, under Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, in exercise of the powers conferred under Section 13 read with Rule 9 of the Security Interest Enforcement Rules, 2002, sold on behalf of Union Bank of India, Asset Recovery Branch, in favour of Smt.S.Manjula, W/o. Nagaraj, T.A, aged 40 years, No.8, 4th Cross, Maruthi Nagar, Chandra Lay Out, Bangalore 560 072, the immovable property shown in the schedule below secured in favour of the Bank by M/s. Harrys Meat Mart, Mr.V.J.Dhanapal Naidu & Mrs. Dhanabhagya G.K towards the financial facility offered by Vijaya Nagar Branch. The undersigned acknowledge the receipt of the sale price of Rs. 41.65 lacs (Rupees Forty one lacs sixty five thousand only) in full and handed over the delivery and possession of the scheduled property. The sale of the scheduled property was made free from all encumbrances known....
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....perty bearing Site No.20 North by: 20th Main road (Marenahalli Main Road) South: Others property 38. Rules 8 and 9 of the Security Interest (Enforcement) Rules, 2002 are extracted hereunder:- "8. Sale of immovable secured assets: (1) to (4).......... (5) Before effecting sale of the immovable property referred to in sub-rule (1) of rule 9 the Authorised Officer shall obtain valuation of the property from an approved valuer and in consultation with the secured creditor, fix the reserve price of the property and may sell the whole or any part of such immovable secured asset by any of the following methods:- (a) By obtaining quotations from the persons dealing with similar secured assets or otherwise interested in buying the such assets; (b) By inviting tenders from the public. (c) By holding public auction; or (d) By private treaty. 6) The authorised officer shall serve to the borrower a notice of 30 days for sale of the immovable secured assets, under sub-rule (5): Provide that if the sale of the such secured asset is being effected either inviting tenders from the public or by holding publi....
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....officer on or before the fifteenth day of confirmation of sale of the immovable property or such extended period (as may be agreed upon in writing between the purchaser and the secured creditor, in any case not exceeding three months). (5) In default of payment within the period mentioned in sub- rule (4), the deposit shall be forfeited and the property shall be resold and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may be subsequently sold. (6) On confirmation of sale by the secured creditor and if the terms of payment have been complied with, the Authorised Officer exercising the power of sale shall issue a certificate of sale of the immovable property in favour of the purchaser in the form given in Appendix V to these rules. (7) Where the immovable property sold is subject to any encumbrances, the authorised officer may, if the thinks fit, allow the purchaser to deposit with him the encumbrances and any interest due thereon together with such additional amount that may be sufficient to meet the contingencies or further cost, expenses and interest as may be determined by him. [Provided that if ....