Dismissed

Sri M Anil Kumar v. Bank of Baroda

DRT16 May 2023SA/322/2022

Case brief

AI extract

What is this about?

Applicants sought to set aside a bank auction disputing undervaluation and procedural lapses. The Tribunal found the bank followed statutory procedures, the auction sale was completed, and the sale certificate issued. Applicants suppressed prior litigation facts, denying equity. The application for setting aside the auction was dismissed.

What did the court decide?

Application dismissed. Applicants entitled for refund of amount deposited into no-lien account and any excess after adjustment of sale proceeds towards loan account.

Sri M Anil Kumar versus Bank of Baroda — Banking and Recovery | DRT (2023)

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IN THE DEBTS RECOVERYTRIBUNAL- tAT HYDERABAD

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DATED THIS THE 1 6TH DAY OF MAY, 2023

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PRESENT: GUMMADI GOPICHAND, PRESIDING OFFICER

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sA.No.322/2022

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Sri M. Anil Kumar, S/o. Shiva Sharanaiah, Gender: Male, Aged about 42 years,

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Occ: Running Xerox Shop, R/o.H.No. l-4512, Vijay Nagar Colony, Shadnagar, Farooqnagar, Mahabubnagar, Telangana - 5O9 216.

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2, Smt M. Shivakala, W/o. Shiva Sharanaiah, Gender: Female, aged about 60 years, Occ: Housewife, R/o.H.No. 1 -45 I 2, Vljay Nagar Colony, Shadnagar, Farooqnagar, Mahabubnagar, Telangana - 509 216.

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Appliconts.

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Tersus

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Bank of Baroda, Rep. by its Authorized Officer, ROSAR Branch, situated at # 6-l-84 I 13, l"t Floor, Khusru Jung House, Secretariat Road, Saifabad,

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Hyderabad - 500 004.

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Sri Venkatesh Yada, S/o. Sri Bheemaiah Thoka, Male, aged major, R/o. Flat No.301 , Srinivasa Nivas Apartments, Rd.No. 1 /A, Vasavi Colony, Kothapet, Hyderabad-35.

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16 rN 2[n

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Counsel for the Applicants : Counsel for Respondent No.1 : Counsel for Respondent No.2 :

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Sri Amancharla V. Goptala Rao. Sn Sriniuas Chittudu. Sri A. Surender Raj,

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.:ORDER:.

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This application is filed by the Applicant u/s. 17 of the SARFAESI Act, 2OO2, lor declaring the auction of the application schedule property

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SA.No.322/2022

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conducted by the lst Respondent Bank on 24.03.2022, pursuant to the e-Auction Sale Notice dt.09.03.2022, as null and void and to setaside the said auction, including the consequential Sale Certificate dt.10.05.2022, issued by the lst Respondent Bank in favour of the 2.a Respondent and also all the proceedings initiated by the 1"t Respondent Bank against the apptication schedule property.

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The averments made in the apprication, in brief, are as under,-

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i) The Applicant No.1 availed loan of Rs.20.00 lakhs from the l"t Respondent Bank in the year 2oll for running EMU Birds Poultry and the Applicant No.2, who is the mother of Applicant No.1, mortgaged the application schedule property in favour of the lst Respondent Bank as security for the said loan. while so, all of a sudden, the officials of the 1"t Respondent Bank came to the schedule property and handed over a copy of the Sale Notice dt.08.03.2022 and informed the Applicants that the lst Respondent Bank has conducted the auction of the application schedule property on 24.03.2022, wherein the 2"d Respondent stood as highest bidder. Even after payment of Rs.5,00,000/- by the Applicants on ls.r2.2o2l, as advised by the Authorized officer of the lst Respondent Bank, the 1st Respondent Bank has illegally and deliberately with an intention to dispose of the property for a meagre price, has proceeded with the auction.

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ii) The 1"t Respondent Bank has failed to serve Demand Notice ,'1Q(2), Possession Notice u/s.13(4) and the Sale Notice under

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.i .. r voDvDorL/rr rruL.$-tr arrLl Dale l\otlce on [ne scnedule property and 1 8',a$urg$ifuilea rg pubtish the said notices in two newspapers. So

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', ;

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i\6. r^- far, G-r- Sale Centificate'...., ''. " - was alio.-not'delivered to him. The Applicants have so far paid an """-;;-r'. -;..;;'' "" amount of Rs.16.00 lakhs towards the loan account. The

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Applicants are ready and willing to redeem the property. Hence the SA.

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The 1st Respondent Bank filed its Reply statement denying all the adverse allegations made in the application. The contentions of the 1"t Respondent Bank, in brief, are as follows:-

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i) The contention of the Applicants that they learnt about the e- Auction Sale Notice dt.08.03.2o22, issued by the lst Respondent Bank, only on 01. 1 1 .2022 is a blatant false. The Applicant herein already filed sA.No.44l2022 on t5.03.2022 challenging the said e-Auction Notice dt.08.03.2022 and the Applicants are also aware that in the auction of the schedule property conducted on 24.03.2022, the 2"d Respondent stood as highest bidder as he also got impleaded as a party to the said SA.No.44l2o22. The Applicants are also aware of the fact that, the Sale Certificate was already issued in favour of the 2"d Respondent and the physical possession of the application schedule property, which was taken through Advocate commissioner appointed by Ld. cMM vide order dt.27.o9.2022, was delivered to the 2"d Respondent-auction purchaser on 03.1 1 .2022. Suppressing the factum of earlier judicial proceedings would amount to perjury, for which the Applicants are liable for appropriate action. The Applicants never approached the lst Respondent Bank with a proposal to clear the entire dues.

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ii) The lst Respondent Bank initiated proceedings under the r -sA-nraEsr Act by issuing Demand Notice dt.12.06.2015 ,,.,,,f'.^j' ,-;,',,'., ,n '"u/sd3(2},';rAN,he^said Demand Notice, sent to the Applicants, was,]'not ' seivq4; ' 'iiL the lst Respondent Bank published the said Demand Notice-ili The Indian Express'and 'Namasthe Telangana'

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iiiiil ,?&J"o"p*.s' a,.os.o8.2ols and thereby comptied with the requiremeflt of notice u/s.13(2). since, the Applicants failed to ciear the -1 outstanding dues within the statutory period of Demand Nbtice, ., !. the 1"t Respondent Bank issued possession Notice on

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l4-O9.2021 u/s.13(4) of the SARFAESI Act, nearly after 6 years. The said Possession Notice was affixed on the schedule property and was also published in 'Mana Telangana' and 'Business Standard' daily newspapers dt.15.o9.2021. The 1"t Respondent Bank issued notice dt.07.10.2o21 to the Applicants giving 30 days time to redeem the property, failing which the application schedule property would be put to auction. The Applicants having received the said notice on ll.lO.2O2I, failed to redeem the property within 3O days time and thereby the lst Respondent Bank proceeded for sale of the application schedule property.

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iii) The lst Respondent Bank issued first auction notice for sale of the application schedule property on 2l.ro.2o2l and the Applicant No.1 challenged the said notice by liling w.P.No.28o53l2o2l on 05.11.2021, before the Hon'ble High Court for the State of Telangana, and the auction scheduled on 08.12.2022 did not matertalize for want of bidders and thereafter, in view of the alternative remedy available, the said writ petition was disposed of by the Hon'ble High court on 13.12.2021 with a direction to the Applicant No.1 herein to approach the DRT within 30 days.

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iv) The lst Respondent Bank issued second auction notice for sale of the application schedule property on 04.01 .2022 fixing the auction on 29.o1.2o22. The Applicant No.1, instead of ?Pproaching^{the DRT as per the order of the Honble High} Court

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i., ,,.:-;'detfu.i.Q,zozt ..1. . ' : -i :?, ..^{in wp.No.28o53I2O2O,} has challenged the said

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,,;^{.i;, -} :4tr"tiori#,.fotice dt.04.0 1.2022 by filing W.P.No.4 IB2/2022 on it" fu i ubi.ot.2ot; -i.-,.i before^{-- -} the Hon,ble High court for the state of : 16 ?{mmrna.^{Thb Hon'ble High court granted interim orders of stay} 'it,'€). -.1': ',- .:,:^-. ol auction .^-.:- -^_..-r', orr.,condition of depositing of 5o% of the outstanding

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" .'..l.J. ]...', ..-' -- i dues-gdt!in.30^- ' ,.'.ll .!,; days. Pursuant to the said orders, the auction of thg schedtile propert5r was cancelled by the 1"t Respondent Bank. But,' the Applicant has failed to comply with the said interim orders of the Hon'ble High Court.

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v) The 1st Respondent Bank obtained valuation report from its approved valuer in respect of the schedule property on o7.o3.2o22 and thereafter issued third auction notice on o8.o3.2o22, fixing the auction of the schedure property on 24.03.2022. The Applicant No.1 on rs.o3.2o22 has withdrawn the aforesaid pending writ petition i.e., wp.No.4lg2l2o22 and filed SA.No.44l2o22 before this Tribunal on the same day by suppressing the earlier writ orders. This Tribunal on 16.03.2022, in SA.No.44 12022, granted interim orders directing the 1"t Respondent Bank to proceed with the auction and not to conlirm the sale subject to the Applicant depositing Rs.6.00 lakhs within 2 weeks and Rs.10.00 takhswithin 2 weeks thereafter. So, the lst Respondent Bank proceeded with the auction of the schedule property on24.o3.2022, wherein the 2nd Respondent herein stood as successful bidder. Thereafter, the 2nd Respondent-auction purchaser impleaded himself as a party to the said sA.No.44 12022. As the Applicant failed to comply with the aforesaid interim orders granted by this Tribunal, the 1st Respondent Bank confirmed the sale in favour of the 2nd Respondent herein on 05.05 .2022 and upon depositing the entire bid amount on 06.05.2022, the 1"t Respondent Bank has issued Sale certificate dt.10.05.2022 in favour of the 2"d Respondent.

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vi) The l"t Respondent Bank on o4.o7.2o22, initiated proceedings -"'^{Ws.14of the SARFAESIAct for taking physical possession} of the .}rf)-'',',:, .^{"s'dikreU.ule} l*.1*^{...,property before the Ld. cMM, Ranga ReddyDistrict} and tt e f$Vo;ate commissioner appointed by the Ld. cMM vide order lit dt.27.O9:.2O22, has served a notice to the Applicant on , l3 IU0.or.rndz .-,{.. , !,': j j] "."t irrg detivery of the possession. The Applicant on ,'sI'r*-r'^(f. trc.=..* ...:,: tQillQ"?Qz2^.....? liled IA.No. t399 I 2022 in SA.No.4a I 2022 chaltenging ,,r.J -A. .,,...r...h^{' .} the,'.91,oer of the Ld. cMM and the same was dismissed by this ..1 .-r, ,,fribunal^{vide order} dt.1l.lo.2022. Immediately, on 12.1o.2022, the Applicant filed wP.No.38 4oo 12022 challenging the said order of this Tribunal dt.11.ro.2o22 and sought interim directions for

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not taking physical possession of the schedule property by the Advocate Commissioner but, the Hon'ble High Court refused the same. The said WP.No.384OOl2022 was dismissed by the Hon'ble High Court on 12.12.2022. The Advocate Commissioner took physical possession of the application schedule property on 03.11.2022 and same was delivered to the Authorized Officer and in turn same was delivered to the 2nd Respondent herein.

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vii) The Applicant having already filed SA.No.44 12022 challenging the auction notice dt.08.03.2022 before this Tribunal, and having knowledge about the auction of the schedule property conducted on 24.03.2022, the contention raised by the Applicants that he has learnt about the auction notice dt.08.O3.2O22 only on 01. 1 1 .2022 is a blatant false statement only to substantiate false grounds of delay. The third-party interest having been created in favour of the 2nd Respondent-auction purchaser, the 1st Respondent Bank has no right to receive the loan outstanding amount from the Applicants and allow the Applicants to redeem the propert5r, which is already sold to the 2"d Respondent. The averments of the Applicants reveal the total abuse of process of law to defeat the statutory proceedings and hence the present SA filed may be dismissed with exemplary costs.

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The 2nd Respondent-auction purchaser filed his Reply Statement denying all the averments made by the Applicant in the application and raised- similar contentions as raised by the 1.t Respondent Bank 'qt$.";

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in its ReplfipqaqBment. r ,\ :-!t .,. It is submitted by the 2nd Respondent that he became the sdciessful bidder in the auction of the schedule property

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ti ,;1 ' I^u $oli:dtrffij ru(i^{UV -'} ,6e, ;. Ii^{lst -Respondent} Bank on 24.03.2022 for a bid of ;i : ,1ril tf4 .".^{Rs.82,20,8p0/;-g,nd he immediatelypaid2sohof the bid amountand} [-"tt:r-',\ +..i',.,.,.rbV rt' ? O6,r,?#t,?9.M paid the balance 75o/o ofthe bid amount and the lst 't,^;i{ '*lr.Y$$UetlQ(QiBi"aent^tsank^{issued Sale Certificatein his favour on 10.05.2022.} ti'1-s,"at'so averred by him that, the 1st Respondent Bank obtained orders of appointment of Advocate Commissioner from the Ld. CMM,

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Ranga Reddy District in crl.M.p.No.26l2022 and the Advocate commissioner took physical possession of the schedule property on 03.11 .2022 and delivered the physical possession to the Authorized officer, who in turn handed over the possession to the 2nd Respondent. It is further contended by the 2"d Respondent that, in SA.No.44 12022 filed by Applicant No.1, at paragraph No.1o, the Applicant No.1 has clearly stated that on 08.03.2022 a notice under Rule 6(2) and Rule 8(6) of the Security Interest (Enforcement) Rules, 2oo2, was issued and e-auction notice dt.og.o3.2022 was also served on him, putting the property for auction on 24.03.2022. So, it is contended by the 2"d Respondent that the present SA has been filed by the Applicants by suppressing the above SA.No.44 12022 and also wP.No.384ool2022 filed by Applicant No.1 before the Hon'bte High Court.

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The Applicants filed Rejoinder/Reply to the Reply Statements filed by Respondents No.1 & 2, reiterating the averments made in the application and also contending as under:-

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i) The Respondents have perpetrated fraud on the Applicants by undervaluing the property and trying to knock the same for a song. The lst Respondent Bank has locked the house i.e., schedule property, which is a dwelling house of the Applicants and their family members, forcibly on 03.11 .2022 despite

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;:1-.... '?!? ;j;.'i-::t!.quests made by the Applicants that they are ready and willing 'i:i * '_I -.'-i."itQ':ieJear^{off the entire due amount with interest, costsand} etperlses. The possession of the property is still with the lst

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,i ., itl.{ 'If23 neSlqnaent Bank and same was not handed over to the 2.d

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,...f.r.,"h,.-. -...",i ':^r.Applicants '- .Respdndent ',. ,... '^{lhave as this filed Tribunal a Memo passed along with interim a Demand orders. Draft} The +.,fri;r.,i..''..1 ,^. '-'. ;i '{si.:; ;:.i.'., .$earing No.395476, dt.0S. 12.2022, for Rs.63 ,44,t941-, towards '"'> --'- i' ) i''' i' -",-'".' "'ti'j;=-'- ';"":' the outstanding dues mentioned in the notice for redemption of the property and as per the directions of this Tribunal, the said amount was deposited with the 1st Respondent Bank in no-lien

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account. The lst Respondent Bank is all the time ignorant about the mortgagor,s right of redemption engrafted in Sec.60 of the Transfer of Property Act. As per the extant law, it is only on execution of the conveyance and registration of transfer of the mortgagor's interest by registered instrument that the mortgagor's right of redemption will be extinguished and so until the sale is complete by registration, the mortgagor does not lose right of redemption.

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The 2nd Respondent did not pay 2Soh of the bid amount well within the time and he was allowed to pay in instalments, which is unknown to the provisions of the SARFAESI Act. The amounts received under the sale shall have to be reflected in the Applicant's loan account rather than depositing in some strange account. There is no entry evidencing the receipt of sale amounts as stated by the Respondents in their Counter_ afhdavits.

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iii) The 1"t Respondent Bank alleged to have issued notice u/s. 13(2) in the year 2015 for Rs.23,gT,243/- and suddently in the month of September 2021, the l"t Respondent Bank said to have issued notice u/ s. 13(4) for an amount of Rs.63.00 lakhs approximately and the 1"t Respondent Bank has failed to explain as to how there is a change in the dues, when the

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,:\T":or.,^{was declared as NPA and the process of calculating}

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..nsB t is supposed to be stopped and maintain a separate

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rq? t, more so, for the Agri based loan account. The 1st ent Bank filed OA.No. 19ll2OlT claiming an amount of

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1 6 r,t[Y 2lll3 3,252/- with future interest @ 15.60/o p.a., from the date

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lication and this Tribunal allowed the said OA on

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ru*q ssued Recovery Certificate for an amount of calculation for the said account from the date of the decree i.e., 17.OI.2O1A il 20.12.2022, the date when this Tribunal in the

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present SA permitted the Applicants to deposit the DD for

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Rs.63,44,r94/- into the no-rien account of the 1st Respondent Bank, comes to 26,10,4g0/- thus totalling to Rs.60,03,732rand after adjustment of Rs.5.00 lakhs paid by the Applicants, the dues will be only Rs.5s,o3,T32l-. so, the 1st Respondent Bank is holding excess amounts in the said account.

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iu)

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.r
:i<br>1 fi t'lrY 2ll8

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For waiver of the roans to Emu Farmers, the Telangana state Authorized Federation of Emu Farmers have filed wP.No.332rl2o19, in which the rst Respondent Bank herein is a party to it, and the Hon'ble High court while disposing of the said writ petition vide order dt.13. lo.2o2o, directed the state of Telangana to consider the recommendations of the Animal Husbandry Department, Govt. of Telangana on the subject matter and pass appropriate orders on the representation of the Petitioner therein in accordance with law as also in terms of the resolution of the state Level Bankers committee Meeting dt.28.05.2019 insofar it relates to the subject matter, within a period of 8 weeks. The rst Respondent Bank is a co-opted agency for the decisions that have taken by the State of Telangana vide G.o.Rt.No.143 with regard to the Emu bird farming business crisis and in the meeting convened by the committee headed by the special chief Secretary with the co_ opted banks on 2g.05.201g, the rst Respondent Bank has accepted that the borrower has to pay 25%o amount and the n^{,.Pk has to waive and/or write-offremainin g} 2so/o to crose the 'a'a0rrnt. The Applicants being uneducated were never put on about the said Go and the joint meeting herd with the cobanks.

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Act before the Ld. CMM, Ranga Reddy and got appointed Advocate commissioner to take physical possession of the schedule property in a back door method in colrusion with the 2"d Respondent. The 1"t Respondent Bank has grossly

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undervalued the property, which is worth more than Rs.2.50 to Rs.3.00 crores as the property is situated in a highly developed colony.

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Heard arguments on both sides.

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The points that arise for consideration are,_

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whether the Applicants have established any valid grounds for setting aside the e-auction of the application schedule property conducted by the lst Respondent Bank on 24.03.2022, pursuant to the e-Auction Notice dt.0g.03.2022?

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ii) To what relieP

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potnt No.(i):-

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8' During the course of arguments, Ld. Counsel appearing for the Applicants reiterated the version of the Appticants in their application and rejoinderlrepry, as stated supra. He further argued that, the Applicants in order to show their bonafides to redeem the mortgage, they have obtained the Demand Draft for Rs.62,44,rg4 /_ dt'05' 12.2022, which was permitted to be deposited with the lst Respondent Bank into the no-lien account by this Tribunal. He argued that the mortgagor's right to redeem will survive until there has been :"Tplgl"l3l..of^{sale by the mortgageeby a registered deed and since} t,,.1, 1.1!^{is fr$ s,uchtransfer in the present} case in favour of the 2,d il rr, ",t1-Toentthe Applicants are entitled for redemption. In this regard, li '. 1 6 ilfii ffiu""+.placed his reliance on the decisions of the Hon,ble \ S' ,.;^i, tfu.,U.^{s"pr.Tfl-$i1qrtin "Narqndas Karsorud.as vs. s.A. Kamtamand.} \pl;,:^{l?othe,r"i,ffirtedin (rgrz) 3 scc 242 and, in ,,Mathrewvarghese} vs. :--': o...: :.,:._--... etnritfig.:,Kumar', reported , in 2014 (s) scc 610. He further contended that the lst Respondent Bank has undervalued the schedule property and perpetrated fraud on the Applicant and there was no transparency at all in conducting the sale and that the Applicants

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cannot be deprived of their property except in accordance with the provisions of the statute. In this regard, Ld. counsel placed his reliance on a decision of the Hon,ble supreme court in oRam Kishun and others 7s. state of uttar prad.esh and" others,, reported in (2012) 11 SCC 51.

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9' Per contra, Ld. Counsel for the 1st Respondent Bank, while reiterating the versions of the lst Respondent Bank, as stated supra, argued that, the 1st Respondent Bank has scrupulously followed the procedure as laid down under the sARFAESI Act and the Rules made thereunder for conducting the auction of the application schedule propert5r. He further argued that, the property was auctioned on 24.03.2022 and upon deposit of entire sale consideration by the 2nd Respondentauction purchaser, the Sale Certificate was issued and also physical possession of the schedule property was also delivered in his favour and so the sale in atl respects is complete. He further argued that, the Applicants have come up with DD dt.05.12.2022, for redemption of property at a belated stage, which cannot be accepted, particularly in view of the amended provision of Sec.13(g) of the SARFAESI Act. He further strenuously argued that, the Applicant No.1 herein already Iiled SA'No.4412022 on 15.o3.2022 before this Tribunal challenging the said e-Auction Notice dt.08.03.2022 and the Applicants are also aware that in the auction of the schedule propert5r conducted on ,,,24^{.o.3 2022, the 2nd Respondentstood as highest bidder they are also} "^{''s.*',i&f,L$fact that,} the Sale certificate was already issued in favour iQf^{the ,Tr"rondent and the physical} possession of the application schedule 4.rqnerW was also delivered to the 2nd Respondent. He nu i f ifum. :r4 "*s.i6a^{that by suppressingthe factum of earlier judicial} ....: l,rl" , P'oceedingq.i'the Applicants filed the present SA and since the :., ,|nPlieanls^approached this Tribunal with unclean hands they are not , , - e$titlod to any relief court. In this regard, Ld. Counsel has placed his reliance on a decision of the Hon'ble High Court for the State of Telangana in "s. y. Deueropers vs. state Bank of Ind.ia, rep. bg its Branch Manager, Bangarore and. another,', reported in 2022 (4) ALT

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517 (DB) (TS). Accordingly, Ld. Counsel for the l"t Respondent Bank prayed for the dismissal of the present SA.

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Ld. counsel for the 2nd Respondent-auction purchaser reiterated the version of the 2nd Respondent, as stated supra, and he sailed with the arguments of the Ld. Counsel for the 1st Respondent Bank. He further argued that, the 2nd Respondent is a bonalide purchaser of the schedule property in the auction conducted by the lst Respondent Bank and that the 2nd Respondent has deposited 21oh of the bid amount immediately after the auction and the balance 75% within l5 days from the date of confirmation of sale and so there is no violation of Rules, 2OO2. He further argued that, as per Sec.13(g) of the SARFAESI Act, the right of redemption is available before publication of the sale notice and since in the present case sale has already been conducted, saie certificate was also issued, the right of redemption of the Applicants has extinguished long back so they are not entitled for redemption. In this regard, Ld. Counsel has placed his reliance on a decision of the Hon'ble Supreme Court in the case of " Shakeena & anr Vs. Bank of India & ors", reported in 2Ol9 LawSuit(SC) 1491.

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Before delving into the crucial contention of the Ld. counsel for the lst Respondent Bank that the Appricants have approached this Tribunal with unclean hands by suppressing material facts and judicial I would like to go into the undisputed facts of the case, under:-

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Applicdnt^', "fr{o. 1 availed loan of Rs.20.OO lakhs from the lst

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? 5 #d'p{Hpent Hank for running Emu bids poultry business. The Applicant \9;2 mortgaged the application schedule property as ..,.'

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'": security for lhe said loan facility. The Applicant No. 1 sustained losses ' .in ].is business due to bird flu and other viruses, for which reason he

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' ' -', :;'.t , ;.' '' could not pay the loan amount reguiarly to the 1"t Respondent Bank. The 1"t Respondent Bank classified the loan account of the Applicants as NPA and initiated the proceedings under the SARFAESI Act, by

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issuing Demand Notice dt. 12.06.201s u/s. 13(2), followed by Possession Notice dt.14.09.2021 u/s.13(a) of the SARFAESI Act. Thereafter, the lst Respondent Bank issued notice prior to sale under Rule 8(6) dated 07.10.2021 and issued the first auction notice on 2l.IO.2O2l contemplating the auction of the application schedule property on 08.12.2021. The Applicant No.l challenged the said auction notice dt.2l.lO.2O21 by filing WP.No.28OS3l2O21 before the Hon'ble High Court for the State of Telangana and the said writ petition was disposed of by the Honble High Court on 13. l2.2O2l in view of the alternative remedy available to the Applicant. The auction slated on 08.12.2021 did not materialize for want of bidders. The lst Respondent Bank issued second auction notice on 04.0I.2022 fixing the auction of the schedule property on 2g.ol.2o22. Again, the Applicant, without availing the alternative remedy available to him, challenged the said auction notice dt.o4.o 1.2022 by filing WP.No.4l82l2O22 before the Hon'ble High Court for the State of Telangana, wherein the Hon'ble High Court granted interim stay of auction of the schedule property on deposit of 50% of the outstanding dues within 30 days. In view of the said orders, the lst Respondent Bank has cancelled the auction of the schedule property slated on 29'ol-2022. The Applicant failed to comply with the orders passed by the Hon'ble High Court in depositing 50% of the outstanding dues within 30 days.

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,;,: .'i', . ..1 ;,,^... .,T^t-* - .r( rk'13'^{ttt,r"' Rd6pldent} Bank issued third auction notice on 0g.03 .2022 .r. fixing the irlction of the schedule property on 24.03.2022. The );1^{1 il 4iilri8ffdt N"-r thas withdrawnthe aforesaidwp.No.4t8212o22} and' * . filed SA.Ir{o.-+f2o22 before this Tribunal challenging the said auction .' ,^i't ). - ...;^{.,,.:' -'r} :..i:i'--^{n-"tice d,uO8;OS.2022along with petition seeking stay} of auction -' --.ugtg-Apled'on^{24.03.2022.This Tribunal vide orderdt.16.03.2022} permitted the 1st Respondent Bank to proceed with the auction and directed the Bank not to confirm the sale subject to payment of Rs.6.00 lakhs within 2 weeks and Rs.10.00 lakhs within 2 weeks thereafter' The 1"t Respondent Bank conducted the auction of the

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SA.No 322/2A22

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schedule property on 24.O3.2022, wherein the 2.a Respondent stood as successful bidder for an amount of Rs.g2,20,go0/_. Thereafter, the 2nd Respondent got impleaded himself as a party to SA.No.44l2022. As the Applicant No.1 failed to comply with the aforesaid conditional order passed by this Tribunal, the 1st Respondent Bank conhrmed the saie in favour of the 2od Respondent on 05.05.2022. On payment of entire sale consideration by the 2na Respondent, the 1st Respondent Bank issued Sale Certificate in favour of the 2na Respondent on to.o5.2022.

¶102

74' The 1"t Respondent Bank obtained orders of appointment of Advocate Commissioner dated 27.O9.2022, for taking physical possession of the application schedule property from the Ld. CMM, Ranga Reddy District, u/s. 14 of the SARFAESI Act. The Applicant No.1 filed IA.No.1399/2022 in SA.No.44l2022 challenging the order of the Ld. CMM and the said IA was dismissed by this Tribunal vide order dt.1l.l}.2o22. Aggrieved by the said order, the Applicant No.1 filed WP.No.38400 12022 seeking stay of taking physicai possession of the schedule property pursuant to the order of the Ld. cMM but, no relief was granted by the Hon,ble High Court. Later, the said writ petition ended in dismissar. The 1st Respondent Bank took physical possession of the schedule property through Advocate appointed by the Ld. CMM, on 03.11.2022 and handed over the same to the 2nd Respondent. A perusal of the order dt.12.12.2o22, passed by the Hon,ble High Court in WP.No.3B4OO|2O22, filed by the l"t Respondent Bank in its ,^reveals that, the said writ petition was dismissed AS

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there *""thty.p..sentation for the petitioner (Applicant herein), in to him.

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//nv iltP I* I 13 i\ ?- ?fl ,

¶105

A perusa'l :ot the record in SA.No.44/ 2022 fited, by Applicant No. 1 l!.r.e..t"^{befiore thisTribunal,} challenging the auction notice tt,Oa'.O3.2O22, reveals that, rhe said SA.No.44l2O22 was dismissed 06.01.2023, as not pressed by the Applicant.

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SA.No.322/2022

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The contention of the Applicants is that, the lst Respondent Bank is a co'opted agency for the decisions that have taken by the State of Telangana vide G.O.Rt.No. 143 with regard to the Emu bird farming business crisis and in the meeting convened by the committee headed by the Special Chief Secretary with the co_opted banks on 2g.05.2018, the lst Respondent Bank has accepted that the borrower has to pay 250lo amount and the Bank has to waive and/or write-off remaining 25o/o to close the account. The Applicants being uneducated were never put on notice about the said Go and the joint meeting held with the co-opted banks and thereby deprived the Applicants the benefit of waiver. Admittedry, the Applicant No.l ran the business of Emu farming and he is expected to know and foilow-up the developments that are related to his business. The Applicants, nowhere in their application have stated as to when and how they came to know about the said GO and the outcome of the said Committee meeting. From a perusal of the signatures of the Applicants in their application, which are in English, do not appear to be illiterate or uneducated. So, I do not find any merits in the said contention of the Applicants.

¶108

17' The next contention of the Applicants is that, the l"t Respondent bank issued Demand Notice u/s. 13(2) in the year 2O1S claiming an amount of Rs.23,87,2 431 _ and thereafter, suddenly in September, 202 1 issued Possession Notice claiming Rs.63.00 lakhs and odd, without any basis and further as per the Recovery Certificate issued by this Tribunal on 19:93-2018, in OA.No.191/2017, the certificate amount is ,..: ..i^.r-i- -Rs'33,93&52{- with future interest @ 15.60/o p.a. It is further 'f ig'" ct':rlinaeael, after adjustment of all the pavments made by the i i the lodn .rc;1ir"t, the actual dues cannot be more than Rs.55.00 (3,:j'',,,,= '.Il:.l,^{le;i",.;6.Applicantscontend that, the Rule 8(6) Notice} \tiit o'ction Sale Notice dt'08'0 s.2o21, issued bv $^tl",.l- io",""o .tn'. :.:::_ the: lii Respondent bank claiming Rs.64,16,623/_ as outstanding dues are bad in law and ""-. r.. liable to be set_aside.

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SA.No.322/2022

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I have perused the Demand Notice dt.12.o6.2ols. possession Notice dt.14.O9.2O21, and the notice issued under Rule 6(2) and Rule g(6) dt.O7 .1O.2O21, filed by the 1st Respondent bank in its material documents and also a copy of the linal order dt. 17.01.201g, passed by this Tribunal in OA.No.l91l2O1Z, which has been filed by the Applicants along with their Reply. In the Demand Notice dt. 12.06.2015, the amount claimed by the 1"t Respondent bank is Rs.23,87,2431-. Later, the OA.No. 19tl2017 filed by the 1st Respondent bank against the Applicants herein and another guarantor, was decreed on 1T .Ol .2}lg for an amount of Rs.33,93,252/- with future interest @ 15.60/o p.a., from the date of application i.e., 28.o2.2o17 till the date of rearization. Thereafter, i.e., after oA'No. 19112017 was decreed, the lst Respondent bank issued Possession Notice u/s.13(4) of the SARFAESI Act on 14.09,2021, mentioning the Demand Notice dt. 12.06.2015 for Rs.23,g7,2 431_ and claimed an amount of Rs.64,16,6231-. Even in its further notices i.e., notice issued under Rules 6(2) & 8(6) dt.or.lo.2021 and Auction Sale Notice dt.08.03.2o22, same amount was claimed. Upon insistence of the Applicants and as per the directions of this Tribunal, the 1"t Respondent Bank filed a Memo enclosing therewith the statement pertaining to Applicants, loan account, according to which the outstanding dues as on the date of auction i.e., 24.03.2022, are Rs.56,12,245.23ps. Indeed there is a variance in the amount claimed by the lst Respondent Bank in its notices and the actual dues but,

¶111

on that sole aspect, all the proceedings of the Ist Respondent the schedule property cannot be vitiated. The Applicants entitled to the excess amount, if any, realized by the

¶112

,! |.. t :t ,.. ,'r l{I71,,Jl.v Applicants contended that, the 1"t Respondent Bank the property and the value of the property is more -^Rs.3.00 crores, they did not file any document to substantiate the same. The lst Respondent Bank has liled a copy of the Valuation Report dt.OT.O3.2022, obtained from its approved valuer

¶113

SA.No.i22/2022

¶114

Er' K' Ramadas, according to which the market value of the schedule property is Rs.90,l2,oool-, rearrzabre value is Rs.g1,10,g00/- and distress sale value is Rs.72,og,600l-. The 1st Respondent Bank fixed the reserve price of the schedule property as Rs.gl,10,g00/- and the price fetched in the auction conducted by the 1st Respondent Bank is Rs.82,20,800/-. so, I do not find any merits in the contention of the Applicants that the 1"t Respondent Bank has undervalued the schedule property.

¶115

As regards the contention of the Applicants, that the 2.d Respondent_ auction purchaser has not deposited the sale consideration within the time stipulated under the Rules, 2oo2, is concerned, the 2nd Respondent in his Reply Statement, clearly mentioned the dates of payment as well as the mode of payment to the 1st Respondent Bank. As per the said details, the 2"d Respondent deposited an amount of Rs.8,20,0ool- on 24.o3.2022 i.e., the date of auction towards EMD and on the next day i.e.,25.o3.2022 he deposited Rs.12,35 ,2001_ and, thereafter upon confirmation of sale by the lst Respondent Bank vide its e-mail dt.05.05 .2022, he deposited the balance sale consideration on 06.05,2022 vide three transactions i.e., Rs.6,65,6 OO /_, Rs.9,00,0oo / - and Rs.46,oo ,ooo I -. Thus, I find that the 2,d Respondent has deposited the entire sale consideration of /4.,1"1 '' stipulatdd)B'i$er *. e4r?i?&.9Ot within the Rules, time and 2OO2. there is no deviation of the time .:\ i - 1 .- 1,1

¶116

:.F:

¶117

.,sfl

¶118

rt 21.c,U Irrso$pa" ,E;!"rtention of the Applicants that, they are entitled for fl 4#^* redemptig.n,.f;' tne property is concerned, as per the amended I#r.'. . \ .-Jlr^l'b'- . : Sec 13{8) , otr'the SARFAESI Act, upon payment of entire dues, !-' '1 -' "\ rnaiia.giiosts, charges and expenses by the borrowers, at any time before'" publication of sale notice, the secured creditor shall not transfer the secured asset by way of lease, assignment or sale. So, the borrowers can redeem the secured asset only before the publication of the sale notice by the secured creditor. In this context, the decision of the Hon'ble Supreme Court in the case of "shakeena & anr Vs. Bank

¶119

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sA.No.322/2022

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of India & ors", (cited supra), as relied upon by the Ld. counsel for the 2"d Respondent, is relevant and in the said decision, it is held as under:-

¶122

"29. ...Further, the amend.ed. Section 13(B) of the 2002 Act which has come into force w.e.f. 7st September, 2016, will now stare at the face of the appeliants. As per the amended prouision, stingent condition has been stipulated that the terud"er of dues to the secured cred.itor together with all cosrs, charges and" expenses incurred. by him shall be at anu time befor" the ,,dete of publication of notice" for public auction or inuiting quotations or tender from public or piuate d.eed fir trarusfer by utay of lease assessment or sale of ihe secured asse/s. ... "

¶123

22' Admittedly, the 1st Respondent Bank issued and published auction notices three times i.e., on 2r.ro.2o2l, 04.01 .2022 and on 08'03.2022. TL,e Applicants never bothered to tender the dues before publication of the said auction notices. On two occasions i.e., pursuant to the auction notices dt.2l.lO.2021 and 04.01 .2022, auction could not be conducted. When the auction of the schedule property was successfully held on 24.O3.2O22 pursuant to the auction notice dt.08.03.2022 and after issuance of Sale Certificate dt.10.05.2022, in favour of the 2"d Respondent-auction purchaser, the Applicants came with the Demand Draft dt.os. 12.2022 for -,-- R..6i i+J,_r?o^{Ifor redemption of the schedule property, which is at a} 'very ULI6Bg\gge, and same cannot be accepted. t*ti,, t:1 - t'

¶124

-, 1

¶125

,: '1 i^Th? ?0#..^{s1.it.r,tionof the Applicantsis that the lst Respondent} ,Ii,. Bank hu"-,r$',Frved the Demand Notice, Possession Notice and Sale 1'fl,'.,^.-; tjj-r.,"rr'lotic9,gg-fii$:Applicants^{and that the 1st RespondentBankhas failed} l;._i];iito,aff+fh"e.:Pbssession Notice and Sale Notice on the schedule property -;:''and.Iias'also failed to publish the said notices in two newspapers, as per the procedure laid down under the SARFAESI Act and the Rules made thereunder. The 1"t Respondent Bank contended that it has duly followed the procedure laid down under the SARFAESI Act and

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SA.No.322/2022

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the Rules made thereunder, to substantiate its contention has filed material documents along with its Reply statement.

¶129

24' A perusal of the material documents filed by the 1st Respondent Bank reveals that, the lst Respondent Bank issued Demand Notices dt-12.06.2015 u/s.13(2) of the SARFAESI Act, calling upon the Applicants and guarantors to pay the outstanding dues of Rs.23,87,2431- within 60 days. In the said notice, the date of classification of the ioan account has been mentioned as 31.03.2015. As per the copies of postal receipts filed by the lst Respondent Bank, the said Demand Notice dt.12.o6.2015 was sent to the Applicants by registered post on 13.06.2015. According to the 1st Respondent Bank, as the said Demand Notices were not served on the Applicants, the 1"t Respondent Bank carried out publication of the said Demand Notice in 'The Indian Express'and 'Namasthe Telangana' newspapers dated 05'08.2015. So, it is clear that the l"t Respondent Bank has duly complied with the requirement of notice u/s.13(2) of the SARFAESI Act. As regards the Possession Notice is concerned, the 1st Respondent Bank filed a copy of the Possession Notice dt.14.09.2o21, issued u/ s. 13(a) of the SARFAESI Act, along with copies of postal acknowledgements, photographs depicting affixture of possession Notice on the schedule property and also publication of possession Notice in 'Business Standard'and 'Mana Telangana'newspapers dated l5'O9.2O21. From the said documents, it is very clear that the lst "^{1,-:.tne+n,o.".9ent Bank has duly complied with Rule g(1) & g(2) of the} ,:f . l"^.j ,^d;:' ",..i !.^{'i$-b.".i$fo.est} 'has '^also fred\g Jr ', copy^{(Enforcement)} of the 30 days^Rules, notice 2oo2. prior The to 1st sale Respondent dt.07. Io.2o2t,Bank l- 8(6) of the Rules , 2oo2 along with copies of postal 1$ ""PFY@J""de? flule ' ,{1 acknowledgehrents and photographs depicting affixture of the said 't\i*..., ', ,Jj ,,". 'ol,i.. qnthe schedule property, which goes on to prove that the said '\aY-I:.;.?, ,idli.., p.ior to sale has been duly served on the Applicants and has *-;: .'66.r, affixed on the schedule property. The lst Respondent Bank has also Iiled copies of the Auction Sale Notices dt.2r.lo.2021 and 13'12.2021 along with postal acknowledgements and paper

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SA.No.322/2022

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publications. However, the auction failed on both the occasions. Finally, the 1st Respondent Bank issued Auction Sale Notice dt.08.03.2022, fixing the auction of the schedule property on 24'O3.2022. As per the postal acknowledgements, photographs and newspaper publications filed by the lst Respondent Bank in its material documents, the said e-Auction Notice dt.0g.03.2022, was duly served on the Applicants, affixed on the schedule property and was published in 'Business Standard' and 'Mana Telangana, newspapers dated O9.O3.2O22. In the auction of the application schedule property conducted by the 1st Respondent Bank on 08.03.2022, the 2'd Respondent herein stood as successful bidder for an amount 82,2o,8oo l- and upon payment of entire sale consideration, the lst Respondent Bank issued the Sale Certificate dt.10.05.2022 in his favour, a copy of which has been filed by the lst Respondent Bank in its material documents. Thereafter, the lsr Respondent Bank obtained orders of appointment of Advocate commissioner from the Ld. cMM, Ranga Reddy District in Crl'M'P.No.26 of 2022 for taking physical possession of the schedule property and as per the copy of Advocate Commissioner report fited by the 1st Respondent Bank, the Advocate Commissioner took physical possession of the schedule property on 03. tl.2022 and handed over the possession to the Authorized Officer of the 1st Respondent Bank and as per the version of the lst Respondent Bank, the physical ,,r:,lfu."P.l3r'."f^{the schedule property was delivered tothe 2,d} .4."^{REspondelf\r,} ;;r' '' =.\

¶133

:^,tt I^{$"" ffm ,r,.!bit.it is very clear that the lst Respondent Bank has} i', scrupulouslS,to-Ilowed the procedure laid down under the SARFAESI t^gt.. V;:i..r=tct^{.1nd',t6e',.Rulesmade thereunder while enforcing the security} -"{:!:1*fterest,^{over the application} schedure property, being secured asset, =t;--. 1- -:'.--'1-urec6ver its legitimate dues from the Appricants.

¶134

Now, coming to the contention of the 1"t Respondent Bank that, the Applicants have suppressed the material facts and made false

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SA.No.322/2022

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averments in the present SA liied by them and so they are not entitled to any relief is concerned, I would like to extract the averments made by the Applicants in paragraph 2 of the SA, which are as under:_

¶138

"2. It is respectfuily submitted that,thile things stood. thus, ail of a sudd"en, on 01.11.2022 the appticants are sltocked and surprised" to see that the respond.ent bank officials came to the property and trying to take phgsicar possesslon of the property, when the applicants questioned their act on 0r.11.2022, the respond.ent bank emplogees giuen a copa of the sale notice d"ated. 08.03.2022 and informed. that theg had" conducted. the auction on 24.03.2022 and ttrc respondent No.2 stood. as highest bidder in the aboue auction proceedings but so far the sare certificate was not registered in his fauour not deriuered. the phgsicar possession of the property to the respondent No.2.......,,

¶139

27 ' As can be seen from the above paragraph, the Applicants averred that, they came to know about the sale Notice dt.0g.03.2o22 and the auction of the schedule property conducted by the 1"t Respondent Bank and about the 2"d Respondent being the auction purchaser, only on 01.11.2022. In fact, as stated supra, the Applicant No.l herein already filed SA.No.44 12022 on 1s.o3.2o22 before this Tribunal challenging the said e-Auction Notice dt.o8.03. 2022, wherein the 2.d Respondent-auction purchaser herein got impleaded himself as ;.,;-^Respondent No.2 in the said SA.No.44l2o22. They are well aware of " X,lir'. """.{Pg\t"f the schedule property conducted by the 1st Respondent ' Bank. ""4., as srated supra, the Appricant No.1 approached the 1 S i AftJffir. og{f rr st 1,^{I D I}^'lnHdtl(Ele^Hr8tij^cour^{t for theSt}^{ate of Telangana by filing writ petitions,} *1,,1' challeffiffiifhe earlier auction notices dt.2t.tO.2O21 and 04.01 .2022, ti.+t?:i:1,,.iry..-.$,r$v:$.1"t ::..1-i-'f-r-...,.....;'-.1 ;'...',.?' Respondent Bank. The Applicants, I I -------' in the present I-rvuvrrL u1 rSA , 'l'1r,,;-,..-_!_fl.9-s{fppressed all those above facts. The Hon'ble High Court for the State of Telangana in "s.v. Deuelopers vs. state Bank of Ind.ia, rep. by

¶140

SA.No.322/2022

¶141

its Branch Manager, Bangalore and. enother" (cited supra), by referring to the decisions of the Hon'ble supreme court held that, when there is a blatant suppression of material facts by the petitioner, he is not entitled to any relief from the court. The rerevant paragraphs from the said decision are extracted below:-

¶142

"69. This aspect u)as also disanssed" in Ramjas Foundation u. Union of India (11) 201j ALT @eu.) iSl (SC1 = QO10) 14 SCC 38, whereafter Supreme Court held that if a litigant does not come to the court u-tith clean hands, he is ruot entitled" to be heard". It was held. as follows:-

¶143

"The pinciple that a persorl uho does rtot come to the court with clean hands is not entitled to be Lrcard on the merits of his qrieuance ad, in anA case, such person is not entitled to any relief is applicable not only to the petitions filed under Articles 32, 226 antl 136 of the Constitution but also to the cases instituted in others courts and" jud_icial forums.^{The object} underlying the principle is that euery court is not only entitled. but is duty bound to protect itself from unscrupulous litigants utho do not haue any respect for truth and who try to pollute the stream of justice by resorting to falsehood. or by making misstatement or bg suppressing facts^{uthich haue} a bearing on ad.judicatioi of tLrc issue(s/ arising in the case".

¶144

.zrS.'''',,,.,,,^'9SZ'O SupremeCourt inBhaskarLaxman Jad.hau u.

¶145

i : ,:i{ HW,"1.:^{Kakasahebwash Educationsociety (12)} \ (2.01fl li sCC 531 = 20j3 (2) ALT ss2 (DN Se has 1 6 il AY ?rm^{",:trM,'?:: o,';,:;i},;:r'.:"::"? ;*:y"#:?' {:"'"n ; * iUSte,rfat. -lt is tie obligaiion of a litigant to d.isclose all i,;1..',+^ -U':t!!!'Jac;ts^{of a case and leauetLrc d.ecision makingto the} - 't)rl "Pel1,, {- 5 l .', "'^{; -1i;\1,} i,: <sup>;a .'i^{y,#rt "} \i:- "' : -..::.:: /'

¶146

-2g=''-Tf i. u".y clear from the aforesaid decisions of the Hon,ble Supreme court, which .rl. ..f...ed to by the Hon'ble High court of Telangana, when a person does not come to the court with clean hands, he is not entitled to be heard on merits of his grievance and such person is not entitled to any relief. In the present case, as stated supra, there is

¶147

¶148

SA.No.322/2022

¶149

blatant suppression of facts by the Applicants in the present sA filed by them and they did not approach this Tribunal with clean hands and as such they are not entitled to any relief.

¶150

So, considering all the above circumstances, I hold that there are no valid grounds made out by the Applicants for setting aside the auction of the application schedure property conducted by the 1st Respondent Bank on 24.03.2022 under the provisions of the SARFAESI Acr. Accordingly, this point is answered against the Applicants and in favour of the 1st Respondent Bank. The Applicants are entitred for the refund of the amount deposited by them into the no_rien account with the lst Respondent Bank and arso the excess amount, if any, after adjustment of the sale proceeds towards the loan account.

¶151

Point No.(iit:-

¶152

In the result, the present securitization Application is dismissed. consequently, the Interrocutory Applications, pending if any, shal stand disposed of. The Applicants are entitled for the refund of the amount deposited by them into the no-lien account with the r st Respondent Bank and also the excess amount, if &fly, after adjustment of the sare proceeds towards the loan account. No order as to costs.

¶153

communicate a copy of this order to the parties concerned.

¶154

(Dictated to the priuate S ,ni" rii-t-a;i"i ;;.*;;z;;ffry' transcribed bv him, corrected", sisned and. pronounced bs me in the open court on

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Sri M Anil Kumar v. Bank of Baroda

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Sri M Anil Kumar v. Bank of Baroda

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