{"id":80872,"date":"2007-08-10T00:00:00","date_gmt":"2007-08-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/k-chidambara-manickam-vs-shakeena-on-10-august-2007"},"modified":"2017-07-24T17:33:09","modified_gmt":"2017-07-24T12:03:09","slug":"k-chidambara-manickam-vs-shakeena-on-10-august-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/k-chidambara-manickam-vs-shakeena-on-10-august-2007","title":{"rendered":"K. Chidambara Manickam vs Shakeena on 10 August, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
K. Chidambara Manickam vs Shakeena on 10 August, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\n\nDATED : 10\/08\/2007\n\n\nCORAM\nTHE HONOURABLE MR. JUSTICE P.D.DINAKARAN\nAND\nTHE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR\n\n\nW.A.(MD)No.145 of 2007\nW.A.(MD)No.146 of 2007\nand\nM.P(MD)Nos.1+1 and 2+2 of 2007\n\n\nK. Chidambara Manickam,\nNo.2\/37, Maravar Mela Street,\nAlanganeri (Post),3\nThachanallur Via,\nTirunelveli. \t\t...\t\tAppellant in\n\t\t\t\t\tboth W.As\n\n\nVs\n\n\nShakeena,\nW\/o. P.Shahul Hameed,\nNo.18-A, A9, 4th Main Road,\nMaharaja Nagar,\nTirunelveli - 11.\t...\t\tFirst Respondent\n\t\t\t\t\tin W.A.No.145 of 2007\n\nP.Shahul Hameed,\nS\/o. Pakkir Mohideen Rowther,\nNo.18-A, A9, 4th Main Road,\nMaharaja Nagar,\nTirunelveli - 11.  \t...\t\tFirst Respondent\n\t\t\t\t\tin W.A.No.146 of 2007\n\nBank of India,\nrep. By its Branch Manager\nPalayamkottai,\nTirunelveli - 627 002.\n\nB. Jagathkumar,\nAuthorised Officer,\nBank of India, Coimbatore Zone,\n324, Oppanakara Street,\nCoimbatore - 1.   \t...\t\tRespondents 2 and 3\n\t\t\t\t\tin both W.As\n\nPRAYER\n\n\nAppeals filed under Clause 15 of the Letters Patent against the orders\nof the learned single Judge dated 09.03.2007 made in W.P(MD)Nos.634 and 635 of\n2006.\n\n!For Appellant\t\t...\tMr. AR. L. Sundaresan\n\t\t\t        Senior Counsel for\n\t\t\t\tM\/s. AL. Ganthimathi\n\n^For Respondents\t...\tMr. R.S.Ramanathan for R-1\n \t\t\t\tMr. F.B.Benjamin George for \t\t\n\nR-2 and R-3\n\n\n:JUDGMENT\n<\/pre>\n
(Judgment was delivered by P.D.DINAKARAN, J.)<\/p>\n
\tThese writ appeals have been preferred by the appellant against the common
\norder dated 09.03.2007 of the learned Single Judge made in W.P.(MD)Nos.634 and
\n635 of 2006.\n<\/p>\n
\t2. Brief facts, sans unnecessary details, leading to the filing of these
\nwrit appeals are stated herein under:-\n<\/p>\n
\t2.1. The first respondent in both the writ appeals, who have  obtained a
\nloan of Rs.10,00,000\/- each from the second respondent\/bank, are hereinafter
\nreferred to as “borrowers”.  As they defaulted in repayment, the second
\nrespondent\/bank issued notices dated 19.10.2004  and 01.12.2004 under Section
\n13(2) of the Securitisation and Reconstruction of Financial Assets and
\nEnforcement of Security Interest Act, 2002 (for brevity, “SARFAESI Act”) to the
\nborrowers, calling upon them to discharge the loan within sixty days.\n<\/p>\n
\t2.2. As the borrowers have not complied with the said demand, the second
\nrespondent\/Bank, alleging that as on 31.10.2004, a sum of Rs.10,72,483\/- was due
\nfrom each of them, directed the borrowers to discharge the loan amounts with
\ninterest at the rate of 11.75% per annum within a period of sixty days.  In
\nreplication, the borrowers by representations dated 10.12.2004 and 30.12.2004
\nrequested the second respondent\/bank to consider their case for one time
\nsettlement.   The borrowers invoking Section 17 of the SARFAESI Act filed
\nS.A.Nos.21 and 22 of 2005 before the Debts Recovery Tribunal II, Chennai,
\nchallenging the said notices issued by the second respondent\/Bank, but the same
\nwere dismissed on 28.09.2005.\n<\/p>\n
\t2.3. In view of the default in discharging the loans by the borrowers, the
\nsecond respondent\/bank, exercising its powers under Section 13(4) of the
\nSARFAESI Act issued the impugned notice dated 14.11.2005 informing the borrowers
\nthat constructive possession of the secured assets were taken over by them on
\n09.02.2005 and the same would be brought for sale after the expiry of 30 days
\nfrom that date, by way of public auction.\n<\/p>\n
\t2.4. In the absence of any headway by the borrowers in repayment, the
\nthird respondent, who is the authorised officer of the second respondent bank,
\nbrought the property for public auction on 19.12.2005.\n<\/p>\n
\t2.5. On 02.01.2006, the borrowers, however, approached the second
\nrespondent\/bank and deposited three cheques for a total sum of Rs.25,21,445\/- to
\ndischarge the amount due and payable in respect of the notices issued to them.
\nThe second respondent\/Bank, by informing the borrowers that the secured assets
\nhave already been sold and the sale was to be confirmed on or before 17.01.2006,
\nreturned the cheques on 04.02.2006.\n<\/p>\n
\t2.6. The borrowers filed I.A.Nos.13 and 14 of 2006 for condoning the delay
\nin filing petitions to restore S.A.Nos.21 and 22 of 2005 and also filed
\npetitions to restore S.A.Nos.21 and 22 of 2005 and for stay of the confirmation
\nof the auction sale. The Debts Recovery Tribunal II, Chennai, by an order dated
\n10.01.2006, recording the submission of the second respondent\/bank that the
\nauction purchaser had paid the entire sale consideration and sale certificate
\nwas issued to him on 06.01.2006, dismissed the applications of the borrowers
\nwith liberty to pursue their remedies.\n<\/p>\n
\t2.7. The borrowers, thereafter, sent a lawyer’s notice dated 13.01.2006 by
\nenclosing a Demand Draft for a sum of Rs.25,00,000\/- drawn in favour of the
\nsecond respondent\/bank. The second respondent bank, after receiving the demand
\ndraft, without setting aside the sale, sent another notice dated 18.01.2006 to
\nthe borrowers, directing them to remove the articles found in the secured assets
\nwithin three days.\n<\/p>\n
\t2.8. Contending that when the borrowers had paid the entire loan amount,
\nthe second respondent\/bank cannot proceed with taking of possession of the
\nsecured assets, the borrowers filed W.P(MD)Nos.634 and 635 of 2006 for issue of
\nWrit of Certiorarified Mandamus to call for the records of the respondent in
\nrespect of the auction of their properties held in pursuance to the auction
\nnotice dated 14.11.2005,  to quash the same and to direct the second and third
\nrespondents to receive the amount paid by them.\n<\/p>\n
\t2.9. The second and third respondents filed a detailed common counter
\ndenying the case of the borrowers.\n<\/p>\n
\t2.10. The appellant herein, who is the auction purchaser,  got himself
\nimpleaded as 3rd respondent in both the writ petitions and contested the case
\npleading his right over the properties purchased in the public auction.
\n\t2.11. Learned Single Judge, after hearing the counsel on either side,
\naccepting the argument of the learned counsel for the borrowers that, the
\nborrowers, by exercising their right of redemption under Section 60 of the
\nTransfer of Property Act, have approached the second respondent for repayment of
\nentire loan dues before the completion of the sale by registration of sale
\ndocuments, allowed the writ petitions, as prayed for. Hence, these writ appeals.\n<\/p>\n
\t3. We have heard Mr.AR.L.Sundaresan, learned Senior Counsel appearing for
\nthe appellant\/auction purchaser, Mr.R.S.Ramanathan, learned counsel appearing
\nfor the first respondents\/borrowers and Mr. F.B.Benjamin George, learned counsel
\nappearing for respondents 2 and 3\/the secured creditor.\n<\/p>\n
\t4.1. Mr.AR.L.Sundaresan, learned senior counsel appearing for the
\nappellant submits that the borrowers, having invited a conditional order from
\nDebts Recovery Tribunal II, Chennai directing them to pay a sum of Rs.1,50,000\/-
\nfor staying all further proceedings pursuant to notice under Section 13(2) of
\nthe SARFAESI Act, have not complied with the order and allowed the applications
\nto be dismissed on 28.09.2005 for non-prosecution, are not liable to maintain
\nthe writ petitions.\n<\/p>\n
\t4.2. The  learned senior counsel for the auction purchaser\/appellant,
\ncontends that when there is no provision under the SARFAESI Act empowering the
\nsecured creditor, either to cancel or set aside the sale certificate already
\nissued to the auction purchaser, the further course open to the borrowers is to
\nfile an appeal before the Tribunal as provided under SARFAESI Act and therefore,
\nwhen there is an effective alternative remedy  available under SARFAESI Act, the
\nwrit petitions themselves are not maintainable.\n<\/p>\n
\t4.3. The next submission of the learned senior counsel for the appellant
\nis that once the borrowers failed to pay or tender the entire dues to the second
\nrespondent\/bank before the date fixed for sale, viz., 19.12.2005, and allowed
\nthe second respondent to proceed with the sale as per the provisions contained
\nin sub-section (8) of Section 13 of the SARFAESI Act, it is not open to them to
\nseek for cancellation or setting aside of the sale certificates issued to the
\nappellant\/auction purchaser on 06.01.2006 by approaching the secured creditor,
\nwho has no power under the Act to cancel such sale certificate already issued,
\nat a belated stage and therefore, the prayer of the borrowers is liable to be
\nrejected.\n<\/p>\n
4.4. It is  the further contention of the learned senior counsel that the
\nprovision contained in Section 13(8) of the SARFAESI Act is not in derogation of
\nSection 60 of the Transfer of Property Act as the validity of the said provision
\nof SARFAESI Act has been upheld by the Supreme Court in the decision in Mardia
\nChemicals Limited  vs.  Union of India<\/a>  – 2004 (4) SCC 311 and therefore, if the
\ncontention of the borrowers is accepted, it would defeat the entire object for
\nwhich SARFAESI Act was enacted by the Parliament.   Argued that if the sale
\ncertificates issued to the bona fide purchasers in the public auction as per the
\nprovisions of the law are sought to be cancelled at a belated stage, it would
\ncause great prejudice to those who have invested huge sums for purchasing the
\nproperties in public auction and the very purpose of auctioning would become
\nredundant.\n<\/p>\n
\t4.5. The learned senior counsel for the appellant has submitted that if
\nthe dues of the secured creditor together with all costs, charges and expenses
\nincurred are tendered to the secured creditor before the date fixed for sale or
\ntransfer, under Section 13(8) of the  SARFAESI Act, the secured asset shall not
\nbe sold or transferred by the bank or financial institutions and no further
\nsteps shall be taken in that regard.  In this case, the borrowers have failed to
\ndischarge their liability in full before the date fixed for sale, and therefore,
\nthe second respondent\/bank brought the property for public auction on
\n19.12.2005, the sale was confirmed in favour of the highest bidder, sale
\ncertificate was issued on 06.01.2006 and thus, the sale has become absolute and
\ncomplete.\n<\/p>\n
\t4.6. The learned senior counsel further submitted that the appellant was
\nthe highest bidder in the public auction, whose bid was accepted and he has also
\npaid the entire sale consideration within the time stipulated and the sale
\ncertificate was also issued to him.  Once the sale certificate was issued, the
\nregistration of sale is only a formality and it cannot be contended that the
\nsale or transfer has not been effected and once the sale certificate is issued,
\nthere is no provision under the  SARFAESI Act to set aside the sale and the sale
\nwould become final and is binding on the parties.\n<\/p>\n
\t5.1. The learned counsel for the borrowers has submitted that even prior
\nto the issuance of the sale certificate to the appellant herein on 06.01.2006,
\nthe borrowers have sent three cheques for Rs.25,21,246\/- on 02.01.2006  to the
\nsecond respondent bank, but by letter dated 02.01.2006, the second respondent
\nbank stating that the mortgaged property  was sold in the auction and the
\nhighest bidder has paid 25% of the amount and the mortgaged property will be
\ntransferred to the successful bidder immediately after the payment of the
\nremaining amount, returned the cheques on 04.01.2006, and the same is in
\ncontravention to the provisions of Section 13(8) of the  SARFAESI Act.
\n\t5.2. The further contention of the learned counsel for the borrowers is
\nthat under Section 13(8) of the  SARFAESI Act,  if the dues of the second
\nrespondent together with all costs, charges and expenses incurred are tendered
\nto them before the date fixed for sale or transfer,  the secured asset shall not
\nbe sold or transferred by the bank or financial institutions to the asset
\nreconstruction company and no further steps shall be taken in that regard.
\nLearned counsel for the first respondent took a firm stand that the words
\nemployed in Section 13(8) of the  SARFAESI Act that “…..for sale or
\ntransfer….” and “…..Sold or transfer…” indicate that even though auction
\nwas over and sale certificate was issued, till the transfer of possession is
\neffected by registration, the dues of the secured creditor together with all
\ncosts, charges and expenses incurred by him are tendered has to be accepted by
\nthe second respondent\/bank. But, even though the first respondent tendered three
\ncheques for a sum of Rs.25,21,246\/- on 02.01.2006, the second respondent\/bank
\nreturned the cheques and therefore, the sale in favour of the appellant herein
\ncannot be contended as valid.\n<\/p>\n
\t5.3. The learned counsel for the borrowers further argued that the right
\nof redemption which is embodied in Section 60 of the Transfer of Property is
\navailable to the mortgagor unless it has been extinguished by the act of the
\nparties. It cannot be held that the mortgagor lost the right of redemption just
\nbecause the property was put to auction. The mortgagor has a right to redeem
\nunless the sale of the property was complete by registration in accordance with
\nthe provisions of the Registration Act. He added that even if there is some
\ndifference regarding amount, it cannot be said that right of redemption of
\nproperty is completely lost. He has also placed reliance upon the decision
\nreported in MARDIA CHEMICALS LIMITED v. UNION OF INDIA<\/a> (2004 (4) S.C.C. 311) and
\nNARANDAS KARSONDAS v. S.A.KAMTAM AND ANOTHER<\/a> (1977 (3) S.C.C. 247).\n<\/p>\n
\t5.4. The learned counsel for the borrowers further contends that when they
\napproached the second respondent\/bank and deposited three cheques for a total
\nsum of Rs.25,21,445\/- to discharge the amount due and payable, the second
\nrespondent\/ bank informed the borrowers that the mortgaged property has already
\nbeen sold and the sale was to be confirmed and returned the cheques on
\n04.02.2006, and this act of the second respondent\/bank is arbitrary,
\nunreasonable,  amounts to unjustified enrichment and is opposed to equity,
\njustice and good conscience.\n<\/p>\n
\t6.1. Learned counsel appearing for respondents 2 and 3 has submitted that
\nthe borrowers have obtained various loans from the second respondent\/bank, but
\nthey have defaulted in repayment. Hence, the second respondent\/bank issued
\nnotice dated 19.10.2004 under Section 13(2) of the  SARFAESI Act, calling upon
\nthe borrowers to discharge the loan amount within a period of sixty days. Since
\nthe borrowers have not complied with the said notice, the second respondent\/bank
\nexercising its powers under Section 13(4) of the  SARFAESI Act took possession
\nof the property on 09.02.2005 and issued another notice dated 14.11.2005,
\ncalling upon the borrowers to pay the arrears within 30 days, failing which the
\nproperty would be brought for auction. On 14.11.2005, the second respondent\/bank
\nissued necessary advertisement in newspapers fixing the auction date as
\n19.12.2005 in terms of Rule 9 of the Security Interest (Enforcement) Rule 2002
\n(hereinafter referred to as “the Rules”).  The respondents 2 and 3, therefore,
\nfollowed the procedure  contemplated under law.\n<\/p>\n
\t6.2. The learned counsel for respondents 2 and 3 has submitted that the
\nprovisions of  SARFAESI Act, as per Section 35, shall have effect
\nnotwithstanding anything inconsistent therewith contained in any other law for
\nthe time being in force and by virtue of Section 13(4) read with Section 13(6),
\nthe mortgaged assets shall vest with the bank free from all encumbrances. He has
\nalso placed reliance upon the decision reported in TRANSCORE v. UNION OF INDIA<\/a>
\n(2006 (5) C.T.C. 753).\n<\/p>\n
\t6.3. The learned counsel for respondents 2 and 3 has submitted that the
\nborrowers, challenging the possession notice dated 09.02.2005, by invoking
\nSection 17 of the SARFAESI Act filed S.A.Nos.21 and 22 of 2005 before the Debts
\nRecovery Tribunal II, Chennai which were subsequently dismissed on 28.09.2005.
\nThe auction was held on 19.12.2005, in which the appellant has offered highest
\namount of Rs.42,51,000\/-, which was accepted and he paid 25% and on 04.01.2006,
\nhe paid the entire balance amount and on 06.01.2006, sale certificate was issued
\nto him.  He added that the borrowers sent three cheques for a sum of
\nRs.25,27,446\/- on 02.01.2006. As the mortgaged property was sold in the auction
\nand the highest bidder paid 25% of the amount, the second respondent\/bank
\nreturned the cheques to the borrowers.  With regard to the Demand Draft for a
\nsum of Rs.25 lakhs sent by the borrowers along with a lawyer’s notice dated
\n13.01.2006, learned counsel for respondents 2 and 3 has submitted that the same
\nwas received by them only on 17.01.2006 i.e., after the confirmation of sale
\nmade on 06.01.2006, however the same was not encashed.\n<\/p>\n
\t7. We have carefully considered the rival submissions of the learned
\ncounsel for the appellant and the respondents.\n<\/p>\n
\t8.  The core and primal points that arise and require to be answered in
\nthese appeals are that:\n<\/p>\n
(i) Whether  the sale of the secured asset in public auction as per Section
\n13(4) of SARFAESI Act, which ended in issuance of a sale certificate as per Rule
\n9(7) of the Security Interest (Enforcement) Rules, 2003 (in short “the Rules”)
\nis a complete and absolute sale for the purpose of SARFAESI Act or whether the
\nsale would become final only on the registration of the sale certificate?\n<\/p>\n
(ii)Whether the action of the second  respondent in not accepting the amounts
\npaid by the borrowers and not cancelling the sale certificate before the
\nregistration of the sale is in derogation of Section 60 of the Transfer of
\nProperty Act, in view of the Section 37 of SARFAESI Act? and<\/p>\n
(iii) Whether Section 35 of the SARFAESI Act has the effect of overriding
\nSection 37 of the SARFAESI Act?\n<\/p>\n
\t9.1. Before delving deep into the issues to be decided, it would be
\nrelevant to say about the object and purpose for which SARFAESI Act was enacted
\nby the Parliament.\n<\/p>\n
\t9.2. The prime propellant for the promulgation has been, of course, the
\nworrisome state of the financial sector, where the snag of bad debt has almost
\nsnowballed into a crisis.  The SARFAESI Act, however, also aims to smoothen the
\ndebts recovery process by enabling secured creditors to resort to self-help in
\ncertain specified circumstances. The SARFAESI Act is arguably the last in the
\nset of measures that the Government has initiated over the past few years for
\ncurbing the evil of non-performing assets (NPAs), as the amnesty scheme
\nannounced for settlement, the setting up of Debts Recovery Tribunals, etc.
\nfailed to provide any comprehensive solution.\n<\/p>\n
\t9.3. SARFAESI Act is enacted to regulate securities and reconstruction of
\nfinancial assets and enforcement of security interest and for matters connected
\ntherewith. The Act enables the Banks and Financial Institutions to realise long
\nterm assets, manage problems of liquidity, asset liability mismatch and to
\nimprove recovery of debts by exercising powers to take possession of securities,
\nsell them and thereby reduce non-performing assets by adopting measures for
\nrecovery and reconstruction. The Act further provides for setting up of asset
\nreconstruction companies which are empowered to take possession of secured
\nassets of the borrower including the right to transfer by way of lease,
\nassignment or sale. The said Act also empowers the said asset reconstruction
\ncompanies to take over the management of the business of the borrower.\n<\/p>\n
\t9.4. The Constitutional validity of SARFAESI Act has been upheld in the
\ncase of MARDIA CHEMICALS LIMITED v. UNION OF INDIA<\/a> (2004 (4) S.C.C. 311). In the
\nsaid judgment, the Supreme Court has held that in cases where the Secured
\nCreditor has taken action under Section 13(4), it would be open to any person,
\nincluding the borrower to file an appeal under Section 17 of the Act.\n<\/p>\n
\t9.5. Taking note of the fact that liquidity of finances and flow of money
\nis essential for any healthy and growth oriented economy, that law should not be
\nin derogation of the rights which are guaranteed to the people under the
\nConstitution, that the procedure should be fair, reasonable and valid, and
\nkeeping in mind the above owed object of the SARFAESI Act, we proceed to deal
\nwith the points raised for consideration.\n<\/p>\n
 \t10.1. Point (i): Whether  the sale of the secured asset in public auction
\nas per Section 13(4) of SARFAESI Act, which ended in issuance of a sale
\ncertificate as per Rule 9(7) of the Rules is a complete and absolute sale for
\nthe purpose of SARFAESI Act or whether the sale would become final only on the
\nregistration of the sale certificate.\n<\/p>\n
\t10.2. In this case, admittedly, the notices under Section 13(2) of the Act
\nwere issued to the borrowers  on 19.10.2004 and on 01.12.2004 requiring them to
\npay the outstanding dues within 60 days.  As the borrowers did not settle the
\ndues, sale notices, as provided under Section 13(4) of the Act, were issued on
\n14.11.2005 stating that constructive possession of the secured assets was taken
\nover by the second respondent\/ secured creditor on 09.02.2005 and also informing
\nthat to realise the dues the secured assets would be brought for sale after
\nexpiry of 30 days from the date thereof.  It is not disputed that the said
\nnotices were received by the borrowers and the sale was held on 19.12.2005.\n<\/p>\n
\t10.3. It is the case of the borrowers that even prior to the issuance of
\nthe sale certificate to the appellant herein on 06.01.2006, they have sent three
\ncheques for Rs.25,21,246\/- on 02.01.2006  to the second respondent\/bank, which
\nwere returned on  04.01.2006, which is in contravention to the provisions of
\nSection 13(8) of the  SARFAESI Act.  For better appreciation of the said
\ncontention, Section 13(8) of  SARFAESI Act needs extraction and it reads as
\nunder.-\n<\/p>\n
“Section: 13(8): If the dues of the secured creditor together with all costs,
\ncharges and expenses incurred by him are tendered to the secured creditor at any
\ntime before the date fixed for sale or transfer, the secured asset shall not be
\nsold or transferred by the secured creditor, and no further step shall be taken
\nby him for transfer or sale of that secured asset.”\n<\/p>\n
 (emphasis supplied)<\/p>\n
\t10.4. Sub-section (8) of Section 13 of the Act gives an opportunity to the
\nborrowers to redeem the property given in security to the secured creditor by
\npaying the dues on or before the date fixed for sale, in the instant case, on or
\nbefore 19.12.2005, and if the payment is made, the secured creditor shall not
\nproceed with the sale or transfer.  But, in the case on hand, the borrowers did
\nnot come forward to settle the dues on or before 19.12.2005, viz., the date
\nfixed for sale.  The borrowers approached the secured creditor, by way of three
\ncheques to the value of 25,21,446\/- only on 02.01.2006, i.e., after the sale was
\nconfirmed and therefore, got concluded by the authorised officer in favour of
\nthe appellant, who is the highest bidder and therefore, the secured creditor
\nrightly returned those cheques on 04.01.2006 stating that the sale was already
\nover and sale certificate alone was to be issued, which would be done shortly.
\nSubsequently, the sale certificate came to be issued by the third
\nrespondent\/authorised officer on 06.01.2006 as per sub-rule (7) of Rule 9 of the
\nRules.\n<\/p>\n
\t10.5. When the matter stood thus, on 13.01.2006, the borrowers sent a
\nletter dated 13.01.2006 to the authorised officer, enclosing a demand draft for
\nRs.25,00,000\/- drawn in favour  of the second respondent\/Bank and requested the
\nauthorised officer to set aside the sale certificate.  However, the authorised
\nofficer refused to accept the demand drafts and returned the same stating that
\nsale certificate had already been issued and there is no scope for setting aside
\nor  canceling the sale certificate. Thereafter, the borrowers have approached
\nthis Court seeking to quash the auction notice dated 14.11.2005 and for a
\nconsequential direction to receive the amount paid by the borrowers towards the
\nloan account and release the properties from the mortgage.\n<\/p>\n
\t10.6. For an in depth analysis of this point, some additional relevant
\nfacts need emphasis. On issuance of notices under Section 13(2) of the Act, the
\nborrowers approached the Debts Recovery Tribunal under Section 17 of the Act.
\nThe Tribunal, as a pre-condition to stay the said notices, directed the
\nborrowers to pay a sum of Rs.1,50,000\/- in each case and as the borrowers failed
\nto pay the amount, the petitions filed by them were dismissed by the Tribunal.
\nThereafter, the borrowers did not pursue the matter further before the Tribunal.
\nLater, when the sale was completed, the borrowers again approached the Tribunal
\nto restore the original petitions dismissed for default along with petitions to
\ncondone the delay and when the matter came up before the Tribunal on 10.01.2006,
\nthe Tribunal dismissed the petitions filed by the borrowers recording the
\nstatement of the second respondent\/Bank that sale has already completed and sale
\ncertificate was issued to the highest bidder\/appellant herein.  At this stage,
\ninstead of filing an appeal before the Appellate Tribunal, the borrowers have
\ncome before this Court by way of filing writ petitions, seeking the relief
\nreferred supra.\n<\/p>\n
\t10.7. At the outset, it is to be  stated that nothing survives in the
\nnotice dated 14.11.2005 to adjudicate, as, on the date of filing of the writ
\npetitions, the entire proceedings under Section 13(4) of the Act have come to an
\nend and become final, by issuance of sale certificate under sub-rule (7) of Rule
\n9 of the Rules on 06.01.2006.  The writ petitions have been prepared and signed
\nby the parties only on 19.01.2006.  In such circumstances, the proper course for
\nthe borrowers would be to prefer an appeal before the Appellate Tribunal against
\nthe order of the Tribunal dated 10.01.2006 under the provisions of the SARFAESI
\nAct.  The borrowers, however, have approached this Court invoking Article 226 of
\nthe Constitution of India.\n<\/p>\n
\t10.8.  The learned Single Judge, accepting the argument of the learned
\ncounsel for the borrowers that though they have sent three cheques for
\nRs.25,21,246\/- on 02.01.2006 i.e. prior to the issuance of sale certificate on
\n06.01.2006, the second respondent has returned those  cheques, in contravention
\nof sub-section (8) of Section 13 of the Act on the ground that sale was already
\nover and confirmation of the same was to be made shortly,  allowed the writ
\npetitions.\n<\/p>\n
\t10.9. In our considered view, the borrowers should have approached the
\nsecured creditor or the authorised officer before the date fixed for sale and
\nnot after the sale, as provided under sub-section (8) to Section 13 of the
\nSARFAESI Act.  As discussed earlier, only if the borrowers approach the secured
\ncreditor or the authorised officer before the date fixed for sale or transfer
\nand tender or pay all the dues to the secured creditor, the Section creates a
\nbar on the secured creditor or authorised officer to proceed further with the
\nproposed sale or transfer.   In this case, admittedly, the date fixed for the
\nsale was 19.12.2005.  But, even according to the version of the  borrowers, they
\napproached the secured creditor only on 02.01.2006.  In such circumstances, the
\ncontention of the learned counsel for the borrowers is without any basis and
\ncontrary to the provisions contained in sub-section (8) of Section 13 of the
\nAct.\n<\/p>\n
\t10.10. The contention of the learned senior counsel appearing for the
\nappellant\/auction purchaser is that once sale certificate is issued to the
\nauction purchaser after accepting his bid and confirming the sale on him, as per
\nthe provisions of the Act and Rules,  the auction purchaser becomes the absolute
\nowner of the property and all the rights in relation to that property vest with
\nthe auction purchaser and no registration is required as the sale  certificate
\nhas been issued by the authorised officer of the secured creditor in the
\nproceedings under SARFAESI Act.\n<\/p>\n
    10.11. The crux of the contention of the learned senior counsel for the
\nappellant is that after issuance of sale certificate, the borrowers, who allowed
\ntheir property being sold in public auction, cannot claim the right of
\nredemption placing reliance under Section 60 of the Transfer of Property Act,
\nwhich right they should have exercised before the initiation of proceedings or
\nbefore the date fixed for sale.\n<\/p>\n
\t10.12. The learned Single Judge, agreeing with the argument advanced by
\nthe learned counsel for the borrowers that the right of redemption which is
\nembodied in Section 60 of the Transfer of Property Act is available to the
\nmortgagor, unless it has been extinguished by the act of parties and until the
\nsale is complete by registration, and that the mortgagor does not lose their
\nright of redemption, came to the conclusion that the sale takes complete shape
\nonly after it gets registered and it does not come to end by issuance of a sale
\ncertificate.  But, after considering the relevant provisions in the Registration
\nAct, 1908, we are not in agreement with the conclusion arrived by the learned
\nSingle Judge in allowing the writ petitions.\n<\/p>\n
\t10.13. Part-III of the Registration Act speaks of the Registration of
\ndocuments. Section 17(1) of the Registration Act enumerates the documents which
\nrequire compulsory Registration.   However,  Section Sub-Section (2) of Section
\n17 sets out the documents to which clauses (b) and (c) of sub-section 1 of
\nSection 17 do not apply.  Clause (xii) of sub-section 2 of Section 17 of the
\nRegistration Act reads as under:\n<\/p>\n
“Section:17(2)(xii) – any certificate of sale granted to the purchaser of any
\nproperty sold by public auction by a Civil or Revenue Officer.”\n<\/p>\n
\t10.14. A Division Bench of this Court in  Arumugham, S. & 2 others  v.
\nC.K.Venugopal Chetty & 5 others, 1994-1-L.W.491  held that the property
\ntransferred by Official Assignee, under order of court, does not require
\nregistration under Section 17 of the Registration Act.  The Division Bench has
\nheld as follows:\n<\/p>\n
“Under Ex.D-7, the Court permitted the Official Assignee to transfer to the
\nguarantor the assets of the insolvent that are in excess.  Being a transfer by
\norder of Court, the document does not require registration under S.54 of the
\nTransfer of Property Act, since S.2(d) of the Transfer of Property Act says that
\nnothing in the Act (except S.57 and Chapter IV) applies to transfers by orders
\nof Court.  The document in question does not require registration and there was
\na valid conveyance of the 2nd defendant’s 1\/4th share to G.”\n<\/p>\n
\t10.15. When the effect and validity of the sale certificate issued to a
\npurchaser of a property sold in public auction came up for consideration before
\nthe Supreme Court in the recent decision in B.Arvind Kumar  vs.  Government of
\nIndia and Others, MANU\/SC\/2834\/2007, the Supreme Court,<\/a> after referring to
\nSection 17(2)(xii) of the Registration Act,  held that when a property is sold
\nin public auction in pursuance of an order of the court and the bid is accepted
\nand the court confirms the sale in favour of the purchaser, the sale becomes
\nabsolute and the title vests in the purchaser.  The  relevant portion of the
\njudgment of the Supreme Court is as under:\n<\/p>\n
“10. …  When a property is sold by public auction in pursuance of an order of
\nthe court and the bid is accepted and the sale is confirmed by the court in
\nfavour of the purchaser, the sale becomes absolute and the title vests in the
\npurchaser.  A sale certificate is issued to the purchaser only when the sale
\nbecomes absolute.  The sale certificate is merely the evidence of such title.
\nIt is well settled that when an auction purchaser derives title on confirmation
\nof sale in his favour, and a sale certificate is issued evidencing such sale and
\ntitle, no further deed of transfer from the court is contemplated or required.
\nIn this case, the sale certificate itself was registered, though such a sale
\ncertificate issued by a court or an officer authorized by the court, does not
\nrequire registration.  Section 17(2)(xii) of the Registration Act, 1908
\nspecifically provides that a certificate of sale granted to any purchaser of any
\nproperty sold by a public auction by a civil or revenue officer does not fall
\nunder the category of non testamentary documents which require registration
\nunder Sub-section (b) and (c) of Section 17(1) of the said Act.  We therefore
\nhold that the High Court committed a serious error in holding that the sale
\ncertificate did not convey any right, title or interest to plaintiff’s father
\nfor want of a registered deed of transfer.”\n<\/p>\n
(emphasis supplied)<\/p>\n
\t10.16. In this case, the authorised officer of the secured creditor,
\nexercising the power conferred on him by SARFAESI Act, pursuant to the
\nproceedings initiated by him  brought the secured assets of the borrowers for
\nsale in public auction, and, in view of the default in repayment of the loan,
\nconfirmed the sale in favour of the highest bidder, the appellant herein and
\nissued the sale certificate on 06.01.2006.\n<\/p>\n
\t10.17. The ratio laid down by the Division Bench of this Court in
\nArumugham, S. & 2 others  v.  C.K.Venugopal Chetty & 5 others and the Supreme
\nCourt in B.Arvind Kumar  vs.  Government of India and Others,<\/a> referred supra,
\nsquarely applies to the case on hand and we, therefore, have no incertitude to
\nhold that the sale which took place on 19.12.2005 has become final when it is
\nconfirmed in favour of the auction purchaser and the auction purchaser is vested
\nwith rights in relation to the property purchased in auction on issuance of the
\nsale certificate and he has become the absolute owner of the property.  Further,
\nas held by the Division Bench of this Court in Arumugham, S. & 2 others  v.
\nC.K.Venugopal Chetty & 5 others and the Supreme Court in B.Arvind Kumar  vs.
\nGovernment of India and Others,<\/a> referred supra, the sale certificate issued in
\nfavour of the appellant does not require any registration in view of Section
\n17(2)(xii) of the Registration Act as the same has been granted pursuant to the
\nsale held in public auction by the authorised officer under SARFAESI Act.\n<\/p>\n
\t10.18. The finding of the learned Single Judge that the sale is not
\ncomplete without registration of sale certificate, therefore, is not sustainable
\nin law and the same is liable to be set aside.\n<\/p>\n
\t10.19. If the argument of the borrowers that even after the issuance of
\nthe sale certificate, prior to registration, they are entitled to redeem the
\nproperty is accepted, it would make the provisions of the SARFAESI Act redundant
\nand the very object of the SARFAESI Act enabling the Banks and Financial
\nInstitutions to realise long term assets, manage problems of liquidity, asset
\nliability mismatch and to improve recovery of debts by exercising powers to take
\npossession of securities, sell them and thereby reduce non-performing assets by
\nadopting measures for recovery and reconstruction would fail and would open a
\npandora’s box for the litigations upsetting the sale confirmed in favour of the
\nbonafide auction purchasers, who invested huge money.\n<\/p>\n
\t10.20. In view of our finding on this point, we hold that the sale of the
\nsecured asset in public auction as per Section 13(4) of SARFAESI Act, which
\nended in issuance of a sale certificate as per Rule 9(7) of the Rules is a
\ncomplete and absolute sale for the purpose of SARFAESI Act and same need not be
\nregistered under the provisions of the Registration Act.\n<\/p>\n
\t11.1. Point (ii): Whether the action of the second  respondent in not
\naccepting the amounts paid by the borrowers and not cancelling the sale
\ncertificate before the registration of the sale is in derogation of Section 60
\nof the Transfer of Property Act,  in view of the Section 37 of SARFAESI Act?\n<\/p>\n
\t11.2. To decide this point, a reference to Section 37 of SARFAESI Act,
\nwhich reads as follows, is apposite:\n<\/p>\n
“Section:37 – Application of other laws not barred.– The provisions of this Act
\nor the rules made thereunder shall be in addition to, and not in derogation of
\nthe Companies Act, 1956 (1 of 1956), the Securities Contracts (Regulation) Act,
\n1956 (42 of 1956), the Securities and Exchange Board of India Act, 1992 (15 of
\n1992), the Recovery of Debts Due to Banks and Financial Institutions Act, 1993
\n(51 of 1993) or any other law for the time being in force.”\n<\/p>\n
(emphasis supplied)<\/p>\n
\t11.3. It is the contention of the learned counsel for the borrowers that
\nwhen the provisions of SARFAESI Act are not in derogation of the other laws for
\nthe time being in force, as per Section 60 of the Transfer of Property Act, the
\nborrowers being the mortgagors are entitled to the right of redemption available
\nto them before the sale is completed by a registered deed and in this case as
\nthe borrowers have approached the second respondent\/Bank with a demand draft for
\nRs.25,00,000\/- on 13.01.2006 for discharge of the loan and when the sale
\ncertificate issued on 06.01.2006 was not registered, the second respondent
\nshould have accepted the payment and released the mortgage and re-delivered the
\npossession of the property and failure to do so is against the provisions of
\nSection 37 of SARFAESI Act.\n<\/p>\n
\t 11.4. We have more than one reasons to reject the said  contention of the
\nlearned counsel for the borrowers.\n<\/p>\n
\t 11.5.1. Firstly, as held by us, while answering point (i)  the sale in
\nthis case has become absolute and complete on the date when the sale was
\nconfirmed on the appellant\/auction purchaser and he is vested with all the
\nrights in relation to the property purchased by him in the public auction on
\nissuance of sale certificate on 06.01.2006, i.e., prior to the date on which the
\nborrowers have approached the second respondent for repayment, contrary to the
\nprovisions of Section 13(8) of the SARFAESI Act.\n<\/p>\n
\t11.5.2. Secondly, the sale certificate issued in this case does not
\nrequire any registration as per Section 17(2)(xii) of the Registration Act, 1908
\nand our said view is fortified with the decisions of the Division Bench of this
\nCourt in Arumugham, S. & 2 others  v.  C.K.Venugopal Chetty & 5 others and the
\nSupreme Court in B.Arvind Kumar  vs.  Government of India and Others,<\/a> referred
\nsupra.\n<\/p>\n
\t11.5.3.1. Thirdly, it is true that the borrowers have the right of
\nredemption as provided under Section 60 of the Transfer of Property Act, 1882,
\nin view of Section 37 of SARFAESI Act and to substantiate the said stand, the
\nlearned counsel for the borrowers relies on the decision of the Supreme Court in
\nNarandas Karsondas  vs.  S.A.Kamtam and<\/a> another, (1977) 3 SCC 247  wherein it is
\nheld that the mortgagor has a right to redemption unless the sale of the
\nproperty was complete by registration in accordance with the provisions of the
\nRegistration Act.\n<\/p>\n
\t11.5.3.2. With great respect, we are of the view that the decision of the
\nSupreme Court in Narandas Karsondas  vs.  S.A.Kamtam and<\/a> another, referred
\nsupra, is not applicable to the facts of this case.  Even as held by the Supreme
\nCourt in Narandas Karsondas  vs.  S.A.Kamtam and<\/a> another, referred supra,  the
\nright of the mortgagor to redemption continues only till such time the sale of
\nthe property was complete by registration.  In this case, our finding, following
\nthe decision of the  Division Bench of this Court in Arumugham, S. & 2 others
\nv.  C.K.Venugopal Chetty & 5 others and the Supreme Court in B.Arvind Kumar  vs.
\nGovernment of India and Others,<\/a> referred supra, is that  the  sale in this case
\nhas become absolute and complete by the issuance of sale certificate on
\n6.1.2006.  Further, Section 17(2)(xii) of the Registration Act,  1908 does not
\nrequire registration of a sale certificate granted to any purchaser of any
\nproperty sold in public auction by a civil or revenue officer and it is the
\nfinding of the Supreme Court in B.Arvind Kumar  vs.  Government of India and
\nOthers,<\/a> referred supra, that the sale certificate issued by a civil or revenue
\nofficer in respect of a property sold in public auction does not fall under the
\ncategory of non-testamentary documents which require registration under Sub-
\nsection (b) an (c) of Section 17(1) of the Registration Act, 1908.\n<\/p>\n
\t11.5.4. Fourthly, the right to redeem the mortgage, as provided in Section
\n60 of the Transfer of Property Act, is, of course, a very valuable right
\npossessed by the mortgagor.  At the same time,  such a right to redeem the
\nmortgage can be exercised before it is foreclosed, or the estate is sold.   It
\nhas been held that the mortgagor can adopt the course provided under Section 60
\nof the Transfer of Property Act only before the mortgagee has filed a suit for
\nenforcement of the mortgage and not thereafter, vide Poulose and another  vs.
\nState Bank of Travancore, AIR 1989 Kerala 79.   In this case, as discussed
\nearlier, the borrowers approached the second respondent\/Bank only after
\ninitiation of the proceedings under Section 13(4) of the SARFAESI Act, and that
\ntoo after the property was sold in public auction and the sale was confirmed in
\nfavour of the appellant.\n<\/p>\n
\t11.6. We, accordingly, find no irregularity or illegality in the procedure
\nfollowed by respondents 2 and 3.\n<\/p>\n
\t12.1. Point (iii): Whether Section 35 of the SARFAESI Act has the effect
\nof overriding Section 37 of the SARFAESI Act?\n<\/p>\n
\t12.2. A comparative study of Sections 35 and 37 of the SARFAESI Act, which
\nread as under, is indispensable to decide this point:\n<\/p>\n
“Section:35.The provisions of this Act to override other laws.–The provisions
\nof this Act shall have effect, notwithstanding anything inconsistent therewith
\ncontained in any other law for the time being in force or any instrument having
\neffect by virtue of any such law.”\n<\/p>\n
“Section:37 – Application of other laws not barred.– The provisions of this Act
\nor the rules made thereunder shall be in addition to, and not in derogation of
\nthe Companies Act, 1956 (1 of 1956), the Securities Contracts (Regulation) Act,
\n1956 (42 of 1956), the Securities and Exchange Board of India Act, 1992 (15 of
\n1992), the Recovery of Debts Due to Banks and Financial Institutions Act, 1993
\n(51 of 1993) or any other law for the time being in force.”\n<\/p>\n
\t12.3. The Apex Court has also upheld the validity of the SARFAESI Act in
\nthe case of Mardia Chemicals  Ltd.  V. Union of India,<\/a> 2004 (4) SCC 311, except
\nsub-section (2) of Section 17.\n<\/p>\n
\t12.4. As per Section 37 of the SARFAESI Act, the provisions of this Act
\nshall be “in addition to” and “not in derogation of” any other law for the time
\nbeing in force.  There is no ambiguity in the understanding the legislative
\nintent behind the framing of this section.\n<\/p>\n
\t12.5. On behalf of the borrowers it is contended that a right of
\nredemption available to them before the sale is completed by way of a registered
\ndeed under the Transfer of Property Act, a law for the time being in force, is
\nnot taken away by the introduction of the SARFAESI Act, by virtue of Section 37
\nof the SARFAESI Act, as the provisions of the SARFAESI Act and the Rules framed
\nthereunder shall be in addition to and not in derogation of the right of
\nredemption conferred under the Transfer of Property Act.  But, we have already
\nrendered a finding that the registration of sale certificate as per Section
\n17(2)(xii) of the Registration Act is not mandatory for the completion of the
\nsale pursuant to the public auction and issuance of the sale certificate under
\nthe scheme of the SARFAESI Act.   Assuming, the right of redemption conferred
\nunder the Transfer of Property Act is protected under Section 37 of the SARFAESI
\nAct, and independently available without reference to the registration of the
\nsale certificate under Section 17(2)(xii) of the Registration Act, the sale
\nalready effected satisfying the conditions contemplated under Section 13(8) of
\nthe SARFAESI Act, shall, by virtue of Section 35 of the SARFAESI Act, prevail
\nover such other rights, much less the right of redemption conferred under
\nTransfer of Property Ac, which is protected under Section 37 of the SARFAESI
\nAct, in view of the non obstante clause provided under Section 35 of the
\nSARFAESI Act, because a non obstante clause provided under Section 35 of the
\nSARFAESI Act makes it clear that even though there are inconsistencies to such
\nother rights conferred under any other law for the time being in force that are
\nprotected under Section 37 of the SARFAESI Act, the action initiated under the
\nprovisions of the SARFAESI Act shall have the overriding effect as per Section
\n35 of the SARFAESI Act, because SARFAESI Act is a Special Act which aims to
\naccelerate the growth of economy of our country empowering the lenders, namely
\nNationalised Banks, Private Sector Banks and other Financial Institutions to
\nrealise their dues from the defaulted borrowers who are very lethargic in
\nrepayment of the loans borrowed by them,  by exercising their right of
\nexpeditious attachment and foreclosure for the enforcement of security and
\ntherefore, Sections 35 and 37 of the SARFAESI Act have to be read conjointly to
\nachieve the object of the SARFAESI Act, but not to defeat the same and
\ntherefore, we do not see any conflict between them.\n<\/p>\n
\t12.6. That apart, a non obstante clause is a legislative device which is
\nusually implied to give overriding effect to certain provisions over some
\ncontrary provisions that may be found either in the same enactment or some other
\nenactment, that is to say, to avoid the operation of all contrary provisions,
\nvide Union of India v. G.M.Kokil,<\/a> 1984 Supp. SCC 196.\n<\/p>\n
\t12.7. For the reasons aforesaid, point (iii) is answered in affirmative.\n<\/p>\n
\tResultantly, these appeals are  allowed and the order of the learned
\nSingle Judge dated  09.03.2007 made in W.P(MD)Nos.634 and 635 of 2006 is set
\naside and the writ petitions are dismissed.  No costs.  Consequently, connected
\nmiscellaneous petitions are closed.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court K. Chidambara Manickam vs Shakeena on 10 August, 2007 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 10\/08\/2007 CORAM THE HONOURABLE MR. JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR W.A.(MD)No.145 of 2007 W.A.(MD)No.146 of 2007 and M.P(MD)Nos.1+1 and 2+2 of 2007 K. Chidambara Manickam, No.2\/37, Maravar Mela Street, Alanganeri […]<\/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-80872","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nK. 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