{"id":258346,"date":"2007-03-09T00:00:00","date_gmt":"2007-03-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shakeena-vs-bank-of-india-by-branch-manager-on-9-march-2007"},"modified":"2017-04-27T04:32:56","modified_gmt":"2017-04-26T23:02:56","slug":"shakeena-vs-bank-of-india-by-branch-manager-on-9-march-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shakeena-vs-bank-of-india-by-branch-manager-on-9-march-2007","title":{"rendered":"Shakeena vs Bank Of India By Branch Manager on 9 March, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
Shakeena vs Bank Of India By Branch Manager on 9 March, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 09\/03\/2007\n\nCORAM:\nTHE HONOURABLE MR.JUSTICE A.KULASEKARAN\n\nWP(MD)Nos.634 of 2006\nWP(MD)Nos.635 of 2006\nWPMP(MD)Nos.697 of 2006\nWPMP(MD)Nos.699 of 2006\nWVMP.Nos.105 of 2006\nWVMP.Nos.109 of 2006\n\n1. Shakeena\t\t\tPetitioner in WP.634 of 2006\n\n2. P.Shahul Hameed\t\tPetitioner in WP.635 of 2006\n\nVersus\n\n1. Bank of India by Branch Manager\n    Palayamkottai, Tirunelveli 627 002B\n\n2.Jagathkumar, Authorised Officer\n   Bank of India, Coimbatore Zone\n   324, Oppankara Street\n   Coimbatore 600001\n\nK.Chidambara Manickam\t\t\n\n(R3 impleaded as per Order dated\n15.02.2006 in WPMP Nos. 1543 and\n1544 of 2006)\t\t\t\t\t Respondents in both WPs<\/pre>\n
 \tWP No. 634 of 2006: Petition filed under Art.226<\/a> of the Constitution of
\nIndia to issue a Writ of Certiorarified  Mandamus to call for the records from
\nthe Respondents in respect of the auction of the Petitioners’ properties held in
\npursuance of the auction notice No.Z0:CBE:LAW:VA:848 issued by the 2nd
\nrespondent dated 14.11.2005 and quash the same and to direct the Respondents to
\nreceive the amount paid by the Petitioners towards the petitioners’ loan account
\nand release the properties from the mortgage.\n<\/p>\n
!For Petitioners\t:\tMr. R.S. Ramanathan
\n\t\t\t\tin both the WPs<\/p>\n
For Respondents\t:\tMr. C. Godwin for R1 & R2
\n\t\t\t \tin both the Writ Petitions
\n\t\t\t\tMr. G.R. Swaminathan for
\n\t\t\t\tMiss. AL.Ganthimathi for R3
\n\t\t\t\tin both the Writ Petitions<\/p>\n
:COMMON ORDER<\/p>\n
 \tSince the impugned orders in these Writ Petitions are one and the same and
\nthe secured asset involved are same, further common issue involved in both the
\nWrit Petitions, hence, they are disposed of by this common order.\n<\/p>\n
 \t2.\tThe case of the Petitioners is that that the Petitioners availed
\nloans from the 1st respondent Bank by mortgaging  their properties; that they
\nwere  directed to discharge the loan amount with interest at 11.75 p.a. within a
\nperiod of 60 days; that the petitioner sent representations on 10.12.2004 and
\n30.12.2004, requesting the respondent Bank to consider a one time settlement to
\nsettle the dues; that since there was no reply, the Petitioners filed SA.Nos.21
\nand 22\/2005 before the DRT, which were dismissed; that the 2nd respondent sent a
\nletter dated 11.11.2005, informing that the mortgaged  property  will be brought
\nto sale after the expiry of 30 days from that date by public auction and they
\nbrought the property for auction on 19.12.2005; that the Petitioners approached
\nthe 1st respondent Bank on 2.1.2006 and deposited three cheques for a total sum
\nof Rs.25,21,446\/- to discharge the amount due and payable in respect of the
\nnotice issued to the Petitioners; that the 1st respondent Bank returned the said
\ncheques on 4.1.2006, informing that the property had already been sold and the
\nsale was to be confirmed on or before 17.1.2006; that the Petitioners filed
\nIA.Nos.13 and 14\/2006 for condoning the delay in filing the petition to restore
\nthe said appeals, which were dismissed on the ground that the auction purchaser,
\nwho is the 3rd respondent herein, paid the entire sale consideration and the
\nsale certificate was issued to him on 6.1.2006; that again the Petitioners sent
\na notice dated 13.1.2006, enclosing Demand Drafts for Rs.25,00,000\/- drawn in
\nfavour of the 2nd respondent and informed that the balance amount would be paid,
\nwhich were received by the Respondents; that after having received the said
\nDemand Drafts, instead of setting aside the sale, they sent another notice dated
\n6.1.2006, informing that the successful bidder has remitted the balance amount
\non 4.1.2006; that the Respondents ought to have proceeded with the taking
\npossession of the mortgaged property within 30 days, especially when the
\nmortgagor had paid the entire amount and hence, these Writ Petitions have been
\nfiled.\n<\/p>\n
 \t3. \tThe case of the Respondents is that the Petitioners have availed
\nvarious loans from the 1st respondent; that they defaulted in repayment of the
\ndues of the said loans and consequently the Respondents invoked the provisions
\nof SARFAESI Act<\/a> to recover the dues by proceeding against the secured assets;
\nthat notices of demand under Section 13(2)<\/a> was issued on 1.12.2004; that the
\nPetitioners received the said notices and submitted their reply, seeking time
\nupto 5.2.2005 for payment of the dues, but they have not paid the dues and
\nthereafter, the 1st respondent invoked Section 13<\/a> (4) of the SARFAESI Act<\/a> and
\ntook constructive\/symbolic possession of the secured assets on 8.2.2005; that
\nthe Petitioners challenged the said auction initiated by the Respondents by
\nfiling appeals in SA.Nos.21 and 22\/2005 under Section 17<\/a> of the SARFAESI Act
\nbefore the Debt Recovery Tribunal and in the  said appeal, a conditional order
\nof stay directing the Petitioners to pay a sum of Rs.1.50 lakhs each, which was
\nnot complied with, as a result of which, the interim order granted in the said
\nappeal was vacated and later the said appeals were also dismissed for default on
\n28.9.2005; that the 1st respondent brought the secured assets for sale and the
\npetitioner neither objected to the same nor challenged the same; that the sale
\nwas held on 19.12.2005; that the 3rd respondent was the successful bidder, who
\noffered a sum of Rs.42,51,000\/- and also complied with all the terms and
\nconditions of sale and hence, the sale was confirmed in his favour and the 3rd
\nrespondent also paid the entire sale consideration on 4.1.2006; that a sum of
\nRs.12,40,000\/- was given credit to the loan account of the petitioner in
\nWP.No.634\/2006 and a sum of Rs.12,52,350\/- was given credit to the loan account
\nof the petitioner in WP.No.635\/2006 and their loan accounts were closed; that
\nthe sale certificate was also issued to the 3rd respondent on 6.1.2006; that the
\nPetitioners have filed petitions to restore the SA.No.21 and 22\/2005, which were
\nalso dismissed for non payment court fee on 10.1.2006; that these writ petitions
\nhave been filed at that stage; that after deducting a sum of Rs.10,000\/- towards
\nlegal expenses of the 1st respondent, the balance amount of Rs.17,48,250\/- was
\nlying with the 1st respondent; that the 1st respondent returned a sum of
\nRs.17,25,000\/- to the petitioner in WP.No.634\/2006, which was returned; that the
\nPetitioners forwarded demand drafts for Rs.25,00,000\/- drawn in favour of the
\n2nd respondent, which was received on 17.1.2006 along with a anti dated letter
\n12.1.2006, but the 2nd respondent did not encash the demand draft.\n<\/p>\n
 \t4. \tThe learned Counsel for the Petitioners has submitted that the
\nRespondents failed to appreciate Section 37<\/a> of the SARFAESI Act and Rule 60 of
\nII Schedule to Income Tax Rules, hence they ought to have waited for 30 days to
\nenable the petitioner to pay 5% of the sale amount and other charges. In support
\nof his contention the learned Counsel for the petitioner has relied on the
\njudgement rendered in the case of Mardia Chemicals Limited Vs. Union of India
\n(2004-4-SCC-311), wherein it was held in paragraph 54 as under:-
\n“In so far as the argument advanced on behalf of the Petitioners that by virtue
\nof the provisions contained under sub section 4<\/a> of section13 the borrowers lose
\ntheir right of redemption of the mortgage, in reply it is submitted that rather
\nsuch a right is preserved under sub section 8<\/a> of section 13<\/a> of the Act.  Where a
\nborrower tenders to the creditor the amount due with costs and expenses
\nincurred, no further steps for sale of the property are to take place.  In this
\nconnection, a reference has also been made by the learned Attorney General to
\nthe decision in Naradandas Karsondas Vs. S.A.Kamtam which provides that a
\nmortgager can exercise his right of redemption any time until the final sale of
\nthe property by execution of a conveyance.  Shri Sibal, however, submits that it
\nis the amount due according to the secured creditor which shall have to be
\ndeposited to redeem the property.  May be so, some difference regarding the
\namount due may be there but it cannot be said that right of redemption of
\nproperty is completely lost.  In cases where no such dispute is there, the right
\ncan be exercised and in other cases the question of difference in amount may be
\nkept open and got decided before sale of property”.\n<\/p>\n
     5.   The learned Counsel for the 1st respondent has submitted that under
\nSection 13<\/a> of the SARFAESI Act, if all the dues to the secured creditor with
\ncost, expenses are paid to the secured creditor before the time fixed for
\nauction, the secured asset shall not be sold, however, SARFAESI Act<\/a> does not
\ncontain any provision for setting aside the sale; that once the sale is
\neffected, it is not open to the borrower or guarantor or mortgager to set aside
\nthe same, on any ground, which is also evident from Rule 3, 4 and 9 of the
\nSecurity Interest (Enforcement) Rules, in which the purchaser shall pay 25% of
\nthe sale consideration immediately on the date fixed for sale and the balance
\nsale consideration within 15 days from the date of confirmation of sale; that on
\npayment of the entire sale consideration, the purchaser is entitled to get the
\nsale certificate registered in his favour and prayed for dismissal of these writ
\npetitions.\n<\/p>\n
     6.     The learned Counsel for the 3rd respondent has submitted that the
\n3rd respondent was the highest bidder, whose bid was accepted and he also paid
\nthe entire sale consideration within the time stipulated and the sale
\ncertificate was also issued to him; that the petitioners had filed S.A.s before
\nthe Debt Recovery Tribunal where conditional orders were passed which was not
\ncomplied with and later the same was dismissed;  that after issuance of sale
\ncertificate, the present writ petitions were filed invoking Article 226<\/a> of The
\nConstitution of India; that this Court may not interfere, even if there is a
\ntechnical violation of law and prayed for dismissal of these Writ Petitions.\n<\/p>\n
     7.     This court carefully considered the submissions of the learned
\nCounsel on either side and also perused the material records placed.\n<\/p>\n
     i)     The Section 13(8)<\/a> of the SARFAESI Act reads as under:-\n<\/p>\n
“If the dues of the secured creditor together with all costs, charges and
\nexpenses incurred by him are tendered to the secured creditor at any time before
\nthe date fixed for sale or transfer, the secured asset shall not be sold or
\ntransferred by the secured creditor, and no further step shall be taken by him
\nfor transfer or sale of that secured asset.”\n<\/p>\n
ii)     The Section 35<\/a> of the SARFAESI Act reads as under:\n<\/p>\n
“The provisions of this Act shall have effect, notwithstanding anything
\ninconsistent therewith contained in any other law for the time being in force or
\nany instrument having effect by virtue of any such law.”\n<\/p>\n
   iii)     The Section 37<\/a> of the SARFAESI Act reads as under:-\n<\/p>\n
“The provisions of this Act or the rules made thereunder shall be in addition to
\nand not in derogation of the Companies Act<\/a>, 1956 (1 of 1956) the Securities
\nContracts (Regulation) Act<\/a> 1956 (42 of 1956) the Securities and Exchange Board
\nof India act, 1992 (15 of 1992), the Recovery of Debts Due to Banks and
\nFinancial Institutions Act, 1993 (51 of 1993) or any other law for the time
\nbeing in force.”\n<\/p>\n
     8.     The Rule 9 of the Security Interest (Enforcement) Rules, 2002 read
\nas under:-\n<\/p>\n
Rule (9): Time of Scale, issue of sale certificate and delivery of possession
\netc.: (1) No sale of immovable property under these rules shall take place
\nbefore the expiry of thirty days from the date on which the public notice of
\nsale is published in newspapers as referred to in the provisio to sub rule (6)
\nor notice of sale has been served to the borrower.\n<\/p>\n
(2) the sale shall be confirmed in favour of the purchaser who has offered the
\nhighest sale price in his bid or tender or quotation or offer to the authorised
\nofficer and shall be subject to confirmation by the secured creditor
\nProvided that no sale under this rule shall be confirmed, if the amount offered
\nby sale price is less than the reserve price, specified under sub rule (5) of
\nrule 9.\n<\/p>\n
Provided further that if the authorised officer fails to obtain a price higher
\nthan the reserve price, he may, with the consent of the borrower and the secured
\ncreditor effect the sale at such price.\n<\/p>\n
(3) On every sale of immovable property, the purchaser shall immediately pay a
\ndeposit of twenty five per cent of the amount of the sale price, to the
\nauthorised officer conducting the sale and in default of such deposit, the
\nproperty shall forthwith be sold again.\n<\/p>\n
(4) the balance amount of purchase price payable shall be paid by the purchase
\nto the authorized officer on or before the fifteenth day of confirmation of sale
\nof the immovable property or such extended period as may be agreed upon in
\nwriting between the parties.\n<\/p>\n
(5)In default of payment within the period mentioned in sub rule (4) the deposit
\nshall be forfeited and the property shall be resold and the defaulting purchaser
\nshall forfeit all claim to the property or to any part of the sum for which it
\nmay be subsequently sold
\n(6) On confirmation of sale by the secured creditor and if the terms of payment
\nhave been complied with, the authorised officer exercising the power of sale
\nshall issue a certificate of sale of the immovable property in favour of the
\npurchaser in the Form given in Appendix V to these rules.\n<\/p>\n
(7) Where the immovable property sold is subject to any encumbrances, the
\nauthorised officer may if he things fit, allow the purchaser to deposit with him
\nthe money required to discharge the encumbrances and any interest due thereon
\ntogether with such additional amount that may be sufficient to meet the
\ncontingencies or further cost, expenses and interest as may be determined by
\nhim.\n<\/p>\n
(8) On such deposit of money for discharge of the encumbrances, the authorised
\nofficer may issue or cause the purchaser to issue notices to the persons
\ninterested in or entitled to the money deposited with him and take steps to make
\nthe payment accordingly.\n<\/p>\n
(9)  The authorised officer shall deliver the property to the purchaser free
\nfrom encumbrances known to the secured creditor on deposit of money as specified
\nin sub rule (7) above.\n<\/p>\n
(10) The certificate of sale issued under sub rule (6) shall specifically
\nmention that whether the purchaser has purchased the immovable secured asset
\nfree from any encumbrances known to the secured creditor or not.”s<\/p>\n
 \t9. \tChapter III of Securitisation Act relates to enforcement of security
\ninterest.  Section 13 of Chapter III deals with any security interest is created
\nin favour of any secured creditor may be notwithstanding anything contained in
\nSection 69<\/a> and 69-A<\/a> of Transfer of Property Act be enforced without the
\nintervention of the Court or Tribunal by such creditor in accordance with the
\nprovisions of the said Section.  Sub-section 8 of Section 13 provides that if
\nthe dues of the secured creditor together with all costs, charges and expenses
\nincurred by him are tendered to the secured creditor at any time before the date
\nfixed for sale or transfer, the secured assets shall not be sold or transferred
\nby the secured creditor and no further steps shall be taken by him for transfer
\nor sale of that secured asset.\n<\/p>\n
\t10. \tRule 9 of Security Interest (Enforcement) Rules 2002 relates to time
\nof sale, issues of sale certificate and delivery of possession etc.,  No sale of
\nimmovable property under this Rule shall take place before the expiry of 30 days
\non which public notice of sale is published in newspapers as referred to in the
\nproviso to Sub-rule (6) or notice of sale has been served to the borrower.\n<\/p>\n
 \t11.\t \tSub-rule 3 of Rule 9 says that on every sale of immovable
\nproperty, the purchaser shall immediately pay a deposit of 25% of the amount of
\nthe sale price to the authorised officer conducting the sale and in default of
\nsuch deposit, the property shall forthwith be sold again.\n<\/p>\n
 \t12.\t \tSub-rule (4) of Rule 9 says that the balance amount of
\npurchase price payable shall be paid by the purchaser to the authorised officer
\non or before the 15th day of confirmation of sale of the immovable property or
\nsuch extended period as may be agreed upon in writing between the parties.\n<\/p>\n
\t13.\t \tIn the case on hand, it is not in dispute that the respondent
\nbank issued notice dated 19.10.2004 under Section 13<\/a> (2) of SARFAESI Act<\/a> calling
\nupon the petitioners to discharge the loan in 60 days.  The Petitioners have not
\ncomplied with the said notice.  The respondent bank exercised its powers under
\nSection 13<\/a> (4) of the said Act and took possession of the property on 08.02.2005
\nand issued notice dated 11.11.2005 again calling upon the petitioners to pay the
\narrears in 30 days failing which the property would be brought for auction.  On
\n15.11.2005, the bank issued necessary advertisement in news papers fixing
\nauction dated as 19.12.2005 in terms of Rule 9 of Security Interest
\n(Enforcement) Rule, 2003.\n<\/p>\n
\t 14.\t\tIn \tthe meantime, the petitioners have filed S.A. Nos. 21
\nand 22 of 2005 before the Debt Recovery Tribunal under Section 17<\/a> of the
\nSARFAESI Act and challenging the notice under Section 13<\/a> (4) of the said Act and
\nsought for stay and the same was granted with condition to pay Rs.1,50,000\/-
\neach but the said condition was not complied with, hence the S.A.s were
\ndismissed on 28.09.2005.\n<\/p>\n
 \t15. \tAs scheduled auction was held on 19.12.2005 in which the third
\nrespondent has offered highest amount of Rs.42,51,000\/- which was accepted and
\nhe paid 25% as per Rule 9 (3) of the said Rules and on 04.01.2006 he paid the
\nentire balance amount.  On 06.01.2006 sale certificate was issued to the third
\nrespondent, however, the sale is yet to be registered.\n<\/p>\n
 \t16. \tIn the meantime,the petitioner has filed I.A.s 14 of 2005 and 15 of
\n2005 to restore S.A.s 21 and 22 of 2005, which were dismissed on 10.01.2006, at
\nthat stage, the present writ petitions were filed.\n<\/p>\n
 \t17. \tOn 13.01.2006, the petitioner has issued lawyer’s notice enclosing
\ndemand draft for Rs.25,000\/- drawn in the personal name of the second
\nrespondent, which was received by the second respondent on 17.01.2006.  It is
\nstated that the demand draft was not encashed by the respondents 1 and 2.\n<\/p>\n
 \t18. \tThe argument of the counsel for the petitioner is that the
\npetitioners have sent three cheques for Rs.25,21,246\/- on 02.01.2006 i.e., even
\nprior to the issuance of sale certificate on 06.01.2006 but they were returned
\non the ground that sale was already over and confirmation to be made shortly,
\nwhich is in contravention to the provisions of Sub-section 8 of Section 13 of
\nthe Act.  It is further stated by the learned counsel for the petitioner that if
\nthe dues of the secured creditor, together with all costs, charges and expenses
\nincurred by him are tendered to the secured creditor at any time before the date
\nfixed for sale or transfer, the secured assets shall not be sold or transferred
\nto the secured creditor and no further steps shall be taken by him for transfer
\nor sale of the secured asset.  The learned counsel for the petitioner insisted
\nthe ‘words’ employed in sub-section 8<\/a> that ‘for sale or transfer, sold or
\ntransfer’ indicate that even though auction was over, till the transfer of
\npossession is effected, dues of the secured creditor, together with all costs,
\ncharges and expenses incurred by him are tendered, it should have been received
\nby them, but without doing so, the cheques were returned, hence, the sale in
\nfavour of the third respondent is invalid.  It is further pointed out by the
\ncounsel for the petitioner that the petitioner has sent lawyer’s notice dated
\n13.01.2006 enclosing the demand draft for Rs.25 lakhs, which was received by the
\nrespondent\/bank, but not encashed; that issuance of the cheque dated 02.01.2006
\nand demand draft dated 13.01.2006 made it clear that prior to delivery of
\npossession by the bank to the third respondent, the dues were tendered.  In
\nsupport of this contention, the learned counsel for the petitioner relied on the
\ndecision of the Honourable Supreme Court reported in (Narandas Karsondas vs.
\nS.A. Kamtam and another<\/a>) 1977 (3) Supreme Court Cases 247 wherein in Para Nos.
\n34 and 35, it was held thus:-\n<\/p>\n
\t“34.\tThe right of redemption which is embodied in Section 60<\/a> of the
\nTransfer of Property Act is available to the mortgagor unless it has been
\nextinguished by the act of parties.  The combined effect of Section 54<\/a> of the
\nTransfer of Property Act and Section 17 of the Indian Registration Act is that a
\ncontract for sale in respect of immovable property of the value of more than one
\nhundred rupees without registration cannot extinguish the equity of redemption.
\nIn India it is only on execution of the conveyance and registration of transfer
\nof the mortgagor’s interest by registered instrument that the mortgagor’s right
\nof redemption will be extinguished.  The conferment of power to sell without
\nintervention of the Court in a Mortgage Deed by itself will not deprive the
\nmortgagor of his right to redemption.  The extinction of the right of redemption
\nhas to be subsequent to the deed conferring such power.  The right of redemption
\nis not extinguished at the expiry of the period.  The equity of redemption is
\nnot extinguished by mere contract for sale.\n<\/p>\n
\t35.\tThe mortgagor’s right to redeem will survive until there has been
\ncompletion of sale by the mortgagee by a registered deed.  In England a sale of
\nproperty takes place by agreement but it is not so in our country.  The power to
\nsell shall not be exercised unless and until notice in writing requiring payment
\nof the principal money has been served on the mortgagor.  Further Section 69<\/a> (3)
\nof the Transfer of Property Act<\/a> shows that when a sale has been made in
\nprofessed exercise of such a power, the title of the purchaser shall not be
\nimpeachable on the ground that no case had arisen to authorise the sale.
\nTherefore, until the sale is complete by registration the mortgagor does not
\nlose right of redemption.”\n<\/p>\n
\tRelying on the above said judgment of the Honourable Supreme Court, the
\nlearned counsel for the petitioner argued that the right of redemption which is
\nembodied in Section 60<\/a> of the Transfer of Property Act is available to the
\nmortgagor unless it has been extinguished by the act of parties; that until the
\nsale is complete by registration, the mortgagor does not lose right of
\nredemption.  It is further pointed out by the learned counself or the petitioner
\nthat the respondents in their counter in Para-8 has admitted that ‘later, the
\nrespondents issued sale certificate to the purchaser on 06.11.2006.  However,
\nthe same is yet to be registered”.  The further argument of the counsel for the
\npetitioner is that Rule 60 of II schedule of Income Tax Rule is applicable to
\nSARFAESI Act<\/a>, Section 37<\/a> made it clear that the provisions of SARFAESI Act<\/a> shall
\nbe in addition to and not in derogation of other acts.  The learned counsel for
\nthe petitioner further relied on the decision reported in (Mardia Chemicals Ltd
\nvs. Union of India<\/a>) 2004 4 SCC 311, which is extracted above, wherein their
\nLordships have held that where a borrower tenders to the creditor the amount due
\nwith costs and expenses incurred, no further steps for sale of property are to
\ntake place, for which their Lordships relied on the decision reported in
\n(Narandas Karsondas vs. S.A. Kamtam and another<\/a>) 1977 (3) Supreme Court Cases
\n247 cited supra which provides that mortgagor can exercise his right of
\nredemption any time until the final sale of property by execution of conveyance.
\nEven some difference regarding amount due may be there but it cannot be said
\nthat right of redemption of property is completely lost.\n<\/p>\n
\t19.\tThe learned counsel for the respondents 1 and 2 submitted that the
\nrespondents denied the argument of the petitioner that they deposited three
\ncheques for a total sum of Rs.25,27,446\/-.  In so far as demand draft for Rs.25
\nlakhs was sent along with advocate notice dated 13.01.2006 by the petitioner is
\nconcerned, it is stated by the counsel for the respondents 1 and 2 that the same
\nwas received by them only on 17.01.2006 i.e., after the confirmation made on
\n06.01.2006, however, the same was not encashed.  In so far as the averment
\nregarding denial of receipt of three cheques is concerned, the petitioner has
\nnot filed any reply.\n<\/p>\n
\t20.\tNow, it has to be decided as to whether the demand draft sent by the
\npetitioners along with the advocate notice dated 13.01.2006 which is stated to
\nhave been received by the respondents 1 and 2 on 17.01.2006 would protect the
\nright of redemption of the petitioner or not.  Admittedly, in this case, the
\nconveyance is not executed.  In this context, it would be appropriate to look
\ninto the decision of the Honourable Supreme Court reported in (Narandas
\nKarsondas vs. S.A. Kamtam and another<\/a>) 1977 (3) Supreme Court Cases 247  stated
\nsupra wherein it is held that the mortgagor’s right to redeem survives until
\nthere has been completion of sale by the mortgagee by a registration of sale
\ndeed.  In this context, it is also relevant to refer to Sub-clause 8 of Section
\n13<\/a> of SARFAESI Act wherein it is stated that “if the dues of the secured
\ncreditor together with all costs, charges and expenses incurred by him are
\ntendered to the secured creditor at any time before the date fixed for sale or
\ntransfer, the secured assets shall not be sold or transferred by the secured
\ncreditor and no further steps shall be taken by him for transfer or sale of that
\nsecured asset.”  The words employed in sub-section 8 of Section 13 namely ‘sale
\nor transfer’ connotes execution of the conveyance\/registered sale deed.
\nAdmittedly, in Para-8 of the counter of the respondents 1 and 2, it is mentioned
\nthat ‘sale is yet to be registered’.  In this case, it is not in dispute that
\nthe sale deeds are not executed by the respondents 1 and 2 in favour of the
\nthird respondent till 17.01.2006, on which date, the respondents 1 and 2 have
\nreceived the demand draft for Rs.25 lakhs sent by the petitioner, hence, this
\nCourt is of the considered view that the petitioners right of redemption has not
\nbeen extinguished.  Even if there is some difference with regard to the amount
\ndue to the respondents 1 and 2, it cannot be stated that the right of redemption
\nof property has completely lost.  If there is any amount still payable by the
\npetitioners, after adjusting the sum of Rs.25 lakhs, they are directed to pay
\nthe same within a period of four weeks from today.\n<\/p>\n
\t21.\tIn view of the above said conclusion, this Court is of the view that
\nno finding is necessary in this case, as to whether Rule 60 of Second Schedule
\nto Income Tax Rules is applicable or not and the same is answered accordingly.\n<\/p>\n
\t22.\tAn argument was advanced by the learned counsel for the respondents
\nthat an alternative and efficacious remedy is available to the petitioners
\nbefore the Debt Recovery Tribunal, hence, seeking the relief under Article 226<\/a>
\nof The Constitution of India is not maintainable.  In the instant case, the
\nquestion as to what is the true connotation of the words ‘sale’ or ‘transfer’ or
\n‘sold’ or ‘transferred’ and whether the right of the mortgagor is extinguished
\nby action or execution of conveyance was a question of law, hence, this Court,
\nin order to decide the same, have entertained these writ petitions.  In this
\ncontext, it would be appropriate to refer the decision rendered by the
\nHonourable Supreme Court in (State of U.P. And others vs. M\/s. Indian Home Pipe
\nCo. Ltd<\/a>) AIR 1977 Supreme Court 1132 wherein in Para-4 it was held thus:-\n<\/p>\n
\t“4.\tLastly, it was feebly argued by Mr. Manchanda that the High Court
\nought not to have entertained the writ petition and should have allowed the
\nassessee to avail of the remedies provided to him under the U.P. Sales Tax Act,
\nparticularly when questions of fact had to be determined.  In the instant case,
\nthe question as to what is the true connotation of the words “sanitary fittings”
\nand whether the hume pipes manufactured and sold by the respondent were sanitary
\nfittings within the meaning of that expression was a question of law and since
\nthe entire material on the basis of which this question could be determined was
\nplaced before the Sales Tax Officer and it pointed in one and only one
\ndirection, namely, that the hume pipes were not sanitary fittings and there was
\nnothing to show otherwise, the High Court was justified in entertaining the writ
\npetition.  Moreover, there is no rule of law that the High Court should not
\nentertain a writ petition where an alternative remedy is available to a party.
\nIt is always a discretion with the Court and if the discretion has been
\nexercised by the High Court not unreasonably or perversely, it is settled
\npractice of this Court not to interfere with the exercise of discretion by the
\nHigh Court.  The High Court in the present case entertained the writ petition
\nand decided the question of law arising in it and in our opinion rightly…..”\n<\/p>\n
\t23.\tIn view of the said discussions, the writ petitions are allowed in
\nthe above terms.  No costs.  Consequently, connected Miscellaneous Petitions are
\nclosed.\n<\/p>\n
To<\/p>\n
Bank of India by Branch Manager
\nPalayamkottai, Tirunelveli 627 002<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Shakeena vs Bank Of India By Branch Manager on 9 March, 2007 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09\/03\/2007 CORAM: THE HONOURABLE MR.JUSTICE A.KULASEKARAN WP(MD)Nos.634 of 2006 WP(MD)Nos.635 of 2006 WPMP(MD)Nos.697 of 2006 WPMP(MD)Nos.699 of 2006 WVMP.Nos.105 of 2006 WVMP.Nos.109 of 2006 1. Shakeena Petitioner in WP.634 of 2006 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-258346","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nShakeena vs Bank Of India By Branch Manager on 9 March, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shakeena-vs-bank-of-india-by-branch-manager-on-9-march-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shakeena vs Bank Of India By Branch Manager on 9 March, 2007 - 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