TaxTMI 
TaxTMI 
2021 (9) TMI 1532
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....by the High Court of Judicature at Madras in Writ Petition Nos. 30710 and 30712 of 2019 filed by Respondent No. 1-N. Subhash Chand Jain herein (hereinafter referred to as 'the auction purchaser') and in Writ Petition Nos. 28034 and 28036 of 2019 filed by the Appellants herein, thereby disposing of all the four writ petitions. 4. The facts, in brief, giving rise to the present appeals are as under: Ace Concrete Private Limited (hereinafter referred to as 'the borrower') was a company engaged in the manufacture and sale of ready mixed concrete and related business activities. The borrower had availed loans from Respondent No. 5 -Indian Overseas Bank (hereinafter referred to as 'the Respondent-Bank'). The Appellants and Respondent Nos. 2 to 4 herein had mortgaged their four properties as collateral security and executed guarantee for the credit facility granted to the borrower. As per the sanction of the Respondent-Bank dated 30.3.2010, the Respondent-Bank extended financial assistance to the tune of Rs. 21,14,00,000/- to the borrower. The guarantees, which were signed and executed by the Appellants and Respondent Nos. 2 to 4, were for an amount of Rs. 22,....
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....Rs. 12.25 crores was remitted to the Respondent-Bank after sale of the mortgaged property at Item 'B' in the Schedule of Properties. The said sale was through a private treaty. According to the Appellants, they had already deposited an amount of Rs. 50 lakh on 17.8.2011 and 23.8.2011, i.e., prior to the issuance of the First Sale Notice dated 21.1.2012. Vide order dated 2.7.2012, the DRT, Chennai, dismissed S.A. No. 69 of 2012 filed by the Appellants and Respondent Nos. 2 to 4. After the dismissal of S.A. No. 69 of 2012, the Respondent-Bank issued a fresh sale notice dated 9.7.2012 (Second Sale Notice) calling upon the Appellants and Respondent Nos. 2 to 4 to pay the revised outstanding amount of Rs. 11,99,53,926/- within 10 days. The date of sale for the remaining three mortgaged properties was scheduled to be 20.7.2012. Being aggrieved by the said Second Sale Notice dated 9.7.2012, the Appellants and Respondent Nos. 2 to 4 filed S.A. No. 227 of 2012 before the DRT, Chennai, thereby praying to quash the Second Sale Notice dated 9.7.2012, inter alia, on the ground that the auction/sale has been fixed before the expiry of 30 days from the date of service of Second Sale....
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....be issued on 13.9.2012. Being aggrieved by the order passed by the DRT, Chennai, dated 12.9.2012, Civil Revision Petition No. 3487 of 2012 came to be filed before the High Court of Judicature at Madras. Another Civil Revision Petition No. 3597 of 2012 came to be filed against the interim order passed by the DRT, Chennai, dated 7.8.2012 in S.A. No. 227 of 2012 before the Madras High Court. During the pendency of the said Civil Revision Petitions before the Madras High Court, a Third Sale Notice dated 27.9.2012 was issued by the Respondent-Bank for recovery of a sum of Rs. 6,76,07,054/-. The date of sale was scheduled to be 30.10.2012. Vide various interim orders passed in the said Civil Revision Petitions, the Madras High Court restrained the Respondent-Bank and the auction purchaser from taking physical possession of the mortgaged properties. During the pendency of the said Civil Revision Petitions, a sum of Rs. 12 crore was paid to the Respondent-Bank against the sale of mortgaged property at Item 'C' of the Schedule of Properties in First Sale Notice dated 21.1.2012, owned by Respondent No. 3-Shanthi Sivasamy. Vide common order dated 29.7.2013, the High Court dism....
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....r reached upto the High Court, but could not succeed. It appears from the record that in the meantime the third Respondent-Shanthi Sivasamy filed I.A. No. 903 of 2016 in S.A. No. 227 of 2012 seeking refund of the excess amount of Rs. 4.48 crore lying with the Respondent-Bank claiming that she was the owner of the mortgaged property situated at Chrompet, Chennai, that was sold and that the excess money lying with the Respondent-Bank belonged to her. The DRT, Chennai, vide order dated 25.6.2018, allowed S.A. No. 227 of 2012 and set aside the Second Sale Notice dated 9.7.2012 and consequent sale of the mortgaged properties and imposed cost of Rs. 50,000/- on the Respondent-Bank for wilfully violating the provisions of law. Vide the said order dated 25.6.2018, the DRT, Chennai, directed the Respondent-Bank to refund the amounts paid by the auction purchaser along with 10% interest per annum. It further directed the Respondent-Bank to refund the surplus sum of Rs. 4.48 crore to the third Respondent-Shanthi Sivasamy with 10% interest per annum. The aforesaid order dated 25.6.2018 passed by the DRT, Chennai, came to be challenged before the DRAT, Chennai, by the Respondent-Bank as w....
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....ment of this Court in the case of Vasu P. Shetty v. Hotel Vandana Palace and Ors. (2014) 5 SCC 660, Shri K.V. Viswanathan, learned Senior Counsel, would submit that the sale, which is in breach of the mandatory requirements imposed by the Rules, would be null and void. He submits that it has been held by this Court in the case of Vasu P. Shetty (supra) that the earlier attempts of the borrower to thwart the sale would not constitute a waiver, and the Bank could not be relieved from its obligation to follow the mandatory procedure contained in the Rules. He further submits that this Court, in the case of J. Rajiv Subramaniyan and Anr. v. Pandiyas and Ors. (2014) 5 SCC 651, has reiterated the same legal position. Learned Senior Counsel further submits that the Respondent-Bank also understood that even for a subsequent notice, a 30 days' mandatory period has to be provided inasmuch as in the First Sale Notice dated 21.1.2012, and in the Third Sale Notice dated 27.9.2012, aperiod of more than one month has been provided. It is only with regard to the Second Sale Notice dated 9.7.2012, a period of only 10 days has been provided. It is submitted that this has been done in hast....
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....9.7.2012 cannot be construed to be a fresh notice, but a continuation of the First Sale Notice dated 21.1.2012. Learned Senior Counsel submits that the Second Sale Notice dated 9.7.2012 was issued in line with the law laid down by the Division Bench of the Madras High Court in the case of Kalpesh P.C. Surana v. Indian Bank (2010) 3 CTC 287. It is submitted that it has been held in the case of Kalpesh P.C. Surana (supra) that though a 30 days' period is to be provided for auction sale in the First Notice, there is no requirement under the law to provide a 30 day's clear period in the subsequent notice. She further submits that though the DRT, Chennai, the DRAT, Chennai, and the High Court had granted several opportunities to the Appellants to make the payments, they have defaulted to doso. It is submitted that only in pursuance to the directions of the DRT, Chennai, dated 12.9.2012, the sale was completed in favour of the auction purchaser. Learned Senior Counsel therefore submits that since the Respondent-Bank has always acted in compliance with the orders passed by the Tribunals and the High Court, no fault could be attributed to the Respondent-Bank. 8. Shri K.K. Mani, le....
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....onged either to Promoters/Directors or their family members. Learned Counsel submits that since the Third Sale Notice dated 27.9.2012 was only for an amount of Rs. 6,76,07,054/- and in respect of the property owned by the Respondent No. 3, there is no error in directing refund of the excess amount along with interest to the Respondent No. 3. 10. The sheet-anchor of the contentions made on behalf of the Appellants is that even in case of Second Sale Notice dated 9.7.2012, a mandatory period of 30 days has to be provided. It is therefore the submission on behalf of the Appellants that since the Second Sale Notice dated 9.7.2012 does not provide for 30 days' mandatory period and provides for a period of only 10 days, the said notice and the consequent sale is invalid in law. Heavy reliance has been placed on the judgment of this Court in the case of Mathew Varghese (supra). 11. This Court in the case of Mathew Varghese (supra) has elaborately considered the provisions of Section 13(1), 13(8), 35 and 37 of the SARFAESI Act so also Rules 8 and 9 of the said Rules. We, therefore, do not wish to burden the present judgment by reproducing all those provisions since they have already ....
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....ted on 25.9.2007 by six weeks. While doing so, the High Court imposed a condition on the guarantors to deposit a sum of Rs. 10 lakh before the date of sale, i.e., 25.9.2007. As such, the sale, which was scheduled to be held on 25.9.2007, was postponed. Even after the expiry of period of six weeks prescribed in the order of the High Court dated 20.9.2007, the sale was not effected. It was the case of the guarantors that in pursuance of the order passed by the High Court, they had deposited a sum of Rs. 10 lakh with the Respondent-Bank. The said S.A. No. 20 of 2007 came to be dismissed by the DRT vide order dated 27.12.2007. Immediately on the next day, i.e., 28.12.2007, the Respondent-Bank accepted the tender of the Appellant-Mathew Varghese and asked him to deposit 25% of the amount on that day itself, which was accordingly deposited. He was asked to pay the balance amount within 15 days. Mathew Varghese deposited the balance amount on 11.1.2008. After deposit of 25% of the bid amount on 31.12.2007 by Mathew Varghese, the fourth Respondent-Bank confirmed the sale in his favour and granted him further time of 15 days for depositing the balance amount. 13. It is only upon deposit of....
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.... Mr. Koshi Phillip. The High Court therefore by the said order dated 18.6.2010 directed said Mr. Koshi Phillip to deposit an amount of Rs. 2,03,00,000/- before the Respondent-Bank and further directed that on such deposit being made, the sale made by the Respondent-Bank in favour of Mathew Varghese stood cancelled and the Respondent-Bank should effect the sale in favour of said Mr. Koshi Phillip. In this background, Mathew Varghese had approached this Court. 15. It will be relevant to refer to the following observations of this Court in the case of Mathew Varghese (supra): 29.1. A plain reading of Sub-section (8) would show that a borrower can tender to the secured creditor the dues together with all costs, charges and expenses incurred by the secured creditor at any time before the date fixed for sale or transfer. In the event of such tender once made as stipulated in the said provision, the mandate is that the secured asset should not be sold or transferred by the secured creditor. It is further reinforced to the effect that no further step should also be taken by the secured creditor for transfer or sale of the secured asset. The contingency stipulated in the event of the ten....
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....efore, by virtue of the stipulations contained under the provisions of the SARFAESI Act, in particular, Section 13(8), any sale or transfer of a secured asset, cannot take place without duly informing the borrower of the time and date of such sale or transfer in order to enable the borrower to tender the dues of the secured creditor with all costs, charges and expenses and any such sale or transfer effected without complying with the said statutory requirement would be a constitutional violation and nullify the ultimate sale. 31. Once the said legal position is ascertained, the statutory prescription contained in Rules 8 and 9 have also got to be examined as the said Rules prescribe as to the procedure to be followed by a secured creditor while resorting to a sale after the issuance of the proceedings Under Sections 13(1) to (4) of the SARFAESI Act. Under Rule 9(1), it is prescribed that no sale of an immovable property under the Rules should take place before the expiry of 30 days from the date on which the public notice of sale is published in the newspapers as referred to in the proviso to Sub-rule (6) of Rule 8 or notice of sale has been served to the borrower. Sub-rule (6) o....
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....e owner/borrower should have clear notice of 30 days before the date and time when the sale or transfer of the secured asset would be made, as that alone would enable the owner/borrower to take all efforts to retain his or her ownership by tendering the dues of the secured creditor before that date and time. 33.2. Secondly, when such a secured asset of an immovable property is brought for sale, the intending purchasers should know the nature of the property, the extent of liability pertaining to the said property, any other encumbrances pertaining to the said property, the minimum price below which one cannot make a bid and the total liability of the borrower to the secured creditor. Since, the proviso to Sub-rule (6) also mentions that any other material aspect should also be made known when effecting the publication, it would only mean that the intending purchaser should have entire details about the property brought for sale in order to Rule out any possibility of the bidders later on to express ignorance about the factors connected with the asset in question. 33.3. Be that as it may, the paramount objective is to provide sufficient time and opportunity to the borrower to ta....
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....Narandas Karsondas v. S.A. Kamtam and Anr. (1977) 3 SCC 247, this Court in the case of Mathew Varghese (supra) observed thus: 38. On a reading of the above paragraphs, we are able to discern the ratio to the effect that a mere conferment of power to sell without intervention of the court in the mortgage deed by itself will not deprive the mortgagor of his right to redemption, that the extinction of the right of redemption has to be subsequent to the deed conferring such power, that the right of redemption is not extinguished at the expiry of the period, that the equity of redemption is not extinguished by mere contract for sale and that the mortgagor's right to redeem will survive until there has been completion of sale by the mortgagee by a registered deed. The ratio is also to the effect that the power to sell should not be exercised unless and until notice in writing requiring payment of the principal money has been served on the mortgagor. The above proposition of law of course was laid down by this Court in Narandas Karsondas [(1977) 3 SCC 247] while construing Section 60 of the TP Act. But as rightly contended by Mr. Shyam Divan, we fail to note any distinction to be dr....
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....ep should be taken by the secured creditor for transfer or sale of that secured asset. We find no reason to state that the principles laid down with reference to Section 60 of the TP Act, which is general in nature in respect of all mortgages, can have no application in respect of a secured interest in a secured asset created in favour of a secured creditor, as all the abovestated principles apply on all fours in respect of a transaction as between the debtor and secured creditor under the provisions of the SARFAESI Act. 18. It could thus be seen that this Court observed that the equity of redemption is not extinguished by mere contract for sale and that the mortgagor's right to redeem will survive until there has been completion of sale by the mortgagee by a registered deed. This Court further observed that applying the principles stated with reference to Section 60 of the Transfer of Property Act in respect of a secured interest in a secured asset in favour of the secured creditor under the provisions of the SARFAESI Act and the relevant Rules applicable, a free hand is given to a secured creditor to resort to a sale without the intervention of the court or tribunal. It has,....
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....fected Under Section 13(8), the procedure prescribed Under Rule 8 read along with Rule 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 Sections 13(1) and (8) of the said Act. (emphasis supplied) 20. This Court, in unequivocal terms, held that unless and until a clear 30 days' notice is given to the borrower, no sale or transfer can be resorted to by a secured creditor. It further held that in the event of any such sale properly notified after giving a 30 days' clear notice to the borrower did not take place as scheduled for reasons, which cannot be solely attributable to the borrower, the secured creditor cannot effect the sale or transfer of the secured asset on any subsequent date by relying upon the notification issued earlier. This Court held that once the sale does not take place pursuant to a notice issued Under Rules 8 and 9, read with Sec....
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.... and make substantial payment (entire sale consideration) with the bank within 15 days and the balance amount due to the bank will be settled within one month. If an interim injunction is not granted at this juncture, it will cause irreparable injury to the applicants. 5. Hence in the interest of justice interim stay is granted for a period of 30 days restraining the Respondent bank from proceeding further pursuant to the sale notice dated 21.01.2012 subject to deposit of 50% of the outstanding amount within the period. For compliance call on 29.03.2012. 26. It could thus be seen that the counsel for the applicants therein, i.e., the Appellants and the Respondent Nos. 2 to 4 herein submitted that the applicants could sell the property within 15 days and make substantial payment, i.e., the entire sale consideration with the Respondent-Bank within 15 days, and the balance amount due to the Respondent-Bank will be settled within one month. Acting on the said statement made by the Appellants and Respondent Nos. 2 to 4, the DRT, Chennai, granted interim stay for a period of 30 days restraining the Respondent-Bank from proceeding further pursuant to the First Sale Notice dated 21.1.20....
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....nts that the guarantors had immediately challenged the Second Sale Notice dated 9.7.2012 before the DRT, Chennai, by filing S.A. No. 227 of 2012 on 18.7.2012. However, on account of some technical difficulties, S.A. No. 227 of 2012 could be first heard on 24.7.2012. On 24.7.2012, the DRT, Chennai, passed the following order in S.A. No. 227 of 2012: Advanced. Both parties present. Heard. Petitioner agreed to deposit Rs. 1 crore within 2.8.2012 to show their bonafides. They want breathing time to procure prospective purchaser to clear the entire dues within one month from today by selling the remaining property. They want one month time since it is Aady month, no sale would be taken place. Hence for compliance, call on 2.8.2012. 32. It could thus be seen that the guarantors represented to the DRT, Chennai, that they want some breathing time to procure prospective purchaser and that they would clear the entire dues of the Respondent-Bank within one month from that day by selling the remaining property. 33. The matter thereafter came up for hearing on 7.8.2012 on which date the DRT, Chennai, passed the following interim order: 8. The applicants have made out a strong case and the ....
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....e dues to the Bank including the amount deposited by the auction purchaser, without prejudice to their other contentions, and taking into account the fact that the ultimate beneficiary in the Bank in view of the offer of the Petitioners to make the entire payment, we restrain the bank and the auction purchaser from taking physical possession of the properties from the Petitioners and their tenants, until further orders. 37. It could thus be seen that again a representation was made to the Division Bench of the High Court that the Appellants were prepared to pay entire dues to the Respondent-Bank including the amount deposited by the auction purchaser, without prejudice to their other contentions. Acting on the said representation, the Division Bench of the High Court granted interim protection to the Appellants. 38. It appears that in the meantime since the property at Item 'C' belonging to Respondent No. 3 could not be sold in pursuance of the earlier sale notices, a third notice dated 27.9.2012 was issued in respect of property at Item 'C'. It further appears that in the said Civil Revision proceedings, the Division Bench of the Madras High Court was informed ab....
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....s. 6 crore payable by the prospective purchaser, as per our earlier order dated 8.1.2013 shall be paid to the loan account of M/s. Ace Concrete Pvt. Ltd. On such payment, the Bank is permitted to appropriate the said amount. 41. It appears that during the pendency of the proceedings before the High Court, the mortgaged property at Item 'C' was sold by a private treaty, and an amount of Rs. 9 crore was paid by the purchaser M/s. Redbrick Realtors Private Limited on different dates. It is also the contention of the Appellants that an amount of Rs. 3 crore was deposited on 2.4.2013 by late Shri C. Surendran in compliance of the undertaking given to the High Court. 42. When the said Civil Revision Petitions came up for hearing on 30.4.2013, a grievance was made on behalf of the auction purchaser that even after issuance of sale certificate, he was not able to enjoy the fruits of the sale. It was also contended that the guarantors were collecting huge amount of rent of more than Rs. 4 lakh, and though the auction purchaser was the owner of the property, he was deprived of the same. It will be relevant to refer to the following observations of the Division Bench in the said ord....
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....t cannot set aside the sale also in the absence of any challenge to the same, this Court has been pressurized by the learned Senior Counsel appearing for the Petitioners to grant the relief of setting aside the sale, and by this, in the considered opinion of this Court, the time of this Court has been wasted, Whatever be the length of time consumed in advancing arguments with regard to the relief sought in the Civil Revision Petitions, certainly, arguments have to be heard by this Court, But, arguments at length cannot be allowed for a relief which is not sought in these Civil Revision Petitions. 45. It could thus be seen that the Division Bench of the High Court also imposed costs of Rs. 5,000/- on the Petitioners therein as it was of the view that the learned Counsel for the Petitioners therein had exceeded in his limit while arguing the matter. 46. Litigation did not stop right there, rather it came upto this Court by way of Special Leave Petition (Civil) Nos. 28402 and 28403 of 2013. This Court vide order dated 7.7.2014 in the said Special Leave Petitions, passed the following order: Issue notice confined to the question as to whether any excess payment made by the Petition....
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....n S.A. No. 227 of 2012 seeking refund of the excess amount of Rs. 4.48 crore lying with the Respondent-Bank claiming that she was the owner of the mortgaged property situated at Chrompet, Chennai, that was sold and that the excess money lying with the Respondent-Bank belonged to her. 52. The third round of litigation begins with the order passed by DRT, Chennai, dated 25.6.2018 in S.A. No. 227 of 2012 in pursuance of the order of the DRAT, Chennai, dated 10.7.2014 restoring S.A. No. 227 of 2012. The relevant paragraphs of the order dated 25.6.2018 passed by the DRT, Chennai, in S.A. No. 227 of 2012 read thus: 10.8 From the perusal of records and written submissions filed by all the parties, It is evident that the first Respondent bank did not follow the procedure as far as the subject impugned sale notice is concerned as warranted under law and it is settled principle of law that every notice of sale shall have a distinct cause of action and hence requires the statutory compliance of Rule 9(1) of the Security Interest (Enforcement) Rules, 2002, which mandates issuance of 30 days clear notice to the borrowers before initiating the process of sale. As the Respondent bank has faile....
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.....10.2012, and which sale was never challenged and thus attained finality. Therefore, the 1st Respondent bank is directed to refund the said sum of Rs. 4,48,00,000/- (sic however, a sum of Rs. 4,46 crores is claimed by the 4th Appellant in IA No. 903/2013) to the 4th Appellant herein, who is the owner/mortgagor of the said Item 'B' Schedule property since that is the property which has been sold for recovering the overdue amounts after adjusting the payments made by the Appellants, together with subsequent interest @ 10% p.a. (simple) from the date of receipt till the date of actual payment by the 1st Respondent bank. 53. It could thus be seen that the DRT, Chennai, came to the conclusion that the notice dated 9.7.2012, scheduling the sale on 20.7.2012, was contrary to the provisions as contained in Rule 9(1) of the said Rules, and as such, was liable to be set aside. Consequently, the sale purported to have been conducted and confirmed in favour of the auction purchaser over Item 'A' and Item 'C' properties in the Schedule of Properties in Second Sale Notice dated 9.7.2012 was also set aside. Vide the said order dated 25.6.2018, the DRT, Chennai, directed t....
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....he procedure de novo. Therefore, the question, that will have to be considered, is, as to whether the sale, which was notified as per the notice dated 21.1.2012, could not take place on the date scheduled in the said notice for the reasons, which are solely attributable to the guarantors or not. 57. It could be seen that immediately after the notice was issued on 21.1.2012, the guarantors approached the DRT, Chennai, by way of S.A. No. 69 of 2012. The guarantors gave an impression to the DRT, Chennai, that they can sell the property within 15 days and make the payment of the entire consideration within 15 days, and that the balance amount could be settled within one month. Acting on the representation of the guarantors, the DRT, Chennai, vide order dated 27.2.2012 granted interim stay for a period of 30 days, restraining the Respondent-Bank from proceeding further, pursuant to the sale notice dated 21.1.2012. However, this was subject to deposit of 50% of the outstanding amount within the said period. It could thus be seen that the sale as per the notice dated 21.1.2012, which was scheduled to take place on 27.2.2012, could not take place on the scheduled date on account of interi....
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....the same procedure of providing a 30 days' clear notice. In any case, the Respondent-Bank issued a fresh Second Sale Notice on 9.7.2012 to the Appellants, scheduling the sale on 20.7.2012. There is a substantial distinction of facts in the present case as compared to those in the case of Mathew Varghese (supra). In the case of Mathew Varghese (supra) after the dismissal of S.A., the Respondent-Bank had surreptitiously accepted the tender of the auction purchaser on the very next day of dismissal of S.A. without issuing a notice to the guarantors/borrowers and also confirmed the sale, and only after the confirmation of sale and receipt of the entire amount, informed the borrowers/guarantors about the sale being confirmed. It is not the case here. In the present case, after the S.A. was dismissed on 2.7.2012, the Respondent-Bank again issued a fresh Notice on 9.7.2012 scheduling the sale on 20.7.2012. 61. The facts in the case of Mathew Varghese (supra) are also distinguishable inasmuch as though between the date of publication of notice in the newspapers and the date scheduled for sale, a clear 30 days' period was provided, but insofar as the individual notice to the borrow....
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.... that even on this occasion, the Appellants had an opportunity for redemption of the mortgage and clearing their properties from encumbrances. However, the Appellants, even during this period, did not avail of the said opportunity. 65. It is to be noted that in the meanwhile, the auction purchaser had bid for the properties at Items 'A' and 'C' in the Schedule of Properties in the Second Sale Notice dated 9.7.2012 (i.e. the properties at Items 'A' and 'D' in the Schedule of Properties in the First Sale Notice dated 21.1.2012). In the said sale, which was held on 20.7.2012, the auction purchaser was the successful bidder having bid for Rs. 1,45,66,000/- and Rs. 3,40,55,000/- respectively, in all totaling to Rs. 4,86,21,000/-. Upon payment of the entire amount, the sale was confirmed on 21.7.2012. Not only that, the sale was duly registered on 14.9.2012 after the auction purchaser had spent a sum of Rs. 38,89,880/- towards the registration charges. It is to be noted that the Appellants instead of complying with the directions, had filed I.A. No. 437 of 2012 in S.A. No. 227 of 2012 seeking certain directions with regard to deposit of the amount in some....
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....to be held on 27.2.2012 in pursuance of the notice dated 21.1.2012, could not be held. Even after the dismissal of S.A. No. 69 of 2012 on 2.7.2012, the Respondent-Bank again issued a Second Sale Notice on 9.7.2012 scheduling the sale on 20.7.2012 in which the auction purchaser emerged as a successful bidder. It is thus clear that the Appellants had enough time from 21.1.2012 till 2.7.2012 for redemption of their mortgaged properties. However, they did not avail of that opportunity. Even after the auction purchaser emerged successful in the bid and had paid the bid money, an opportunity was given by the DRT, Chennai, vide order dated 7.8.2012, to the Appellants to deposit the amount of Rs. 4.80 crore within one month. However, without complying with the same, the Appellants continued with their dilatory tactics by filing an application being I.A. No. 437 of 2012 in S.A. No. 227 of 2012. Even thereafter, they continued with the proceedings before the High Court, wherein certain interim orders were passed, and finally, the High Court, finding that in view of the sale being confirmed and the sale being registered no interference could be warranted, dismissed the Civil Revision Petition....
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....proposals exchanged between the Bank and the borrower with regard to One Time Settlement ('OTS'). On failure to arrive at OTS, a fresh notice came to be issued. In the said notice, the mandatory period of 30 days from the date of publication was not provided. The matter was proceeded in this background. 73. The present case is totally on different facts. Though the Appellants had ample opportunities for redemption of mortgage, they failed to avail of the said opportunities. 74. Even if viewed from another angle, the claim of the Appellants is not sustainable. The two-judges Bench of this Court in the case of Mathew Varghese (supra), has heavily relied on the judgment of the three-judges Bench of this Court in the case of Narandas Karsondas (supra). It has been held by this Court in the case of Narandas Karsondas (supra), that the right of redemption, which is embodied in Section 60 of the Transfer of Property Act, is available to the mortgagor unless it has been extinguished by the act of parties. It has been held, that only on execution of the conveyance and registration of transfer of the mortgagor's interest by registered instrument, that the mortgagor's right ....
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....h the purpose for securitization and empowering banks and financial institutions to take possession of the securities and to sell them without the intervention of the Court. 77. If we look at the facts in the present case, it would show that, every attempt has been made to frustrate the purpose of the SARFAESI Act. The Respondent-Bank was required to indulge in three rounds of litigations, out of which, the two have reached upto this Court. 78. Though the auction purchaser emerged as the successful bidder, in the bids held on 20.7.2012, and though the sale was confirmed on 21.7.2012, and though the sale has been registered in his favour on 14.9.2012, for a period of last 9 years, he could not enjoy the fruits of the said sale. Not only that, but the Appellants continued to enjoy the rent of the properties, the ownership of which vests in the auction purchaser. 79. In that view of the matter, we do not find any merit insofar as the challenge to the notice dated 9.7.2012 is concerned. 80. That leaves us with the other issue raised by Shri K.V. Viswanathan, learned Senior Counsel. Shri Viswanathan submitted that the amount received by the Respondent-Bank was on account of sale of ....