Sec.5 of Limitation Act - Delay of more than 10 years in filing appeal - No sufficient grounds assigned - simply because in some of the cases filed appeal in time , were given enhanced compensation - there is no obligation on the part of court to condone the delay - Apex court held that the High court correctly dismissed the sec. 5 Limitation petition in filing an appeal = Brijesh Kumar & Ors. … Petitioners Versus State of Haryana & Ors. …Respondents = 2014 ( March. Part ) judis.nic.in/supremecourt/filename=41333

  Sec.5 of Limitation Act - Delay of more than 10 years in filing appeal - No sufficient grounds assigned - simply because  in some of the cases filed appeal in time , were given enhanced compensation - there is no obligation on the part of court to condone the delay - Apex court held that the High court correctly dismissed the  sec. 5 Limitation petition in filing an appeal =

the  judgment  and
      order dated 22.11.2013, passed by the High Court of Punjab  &  Haryana
      at Chandigarh dismissing the Civil Misc. Applications in  RFA  No.5793
      of 2012 for condonation of delay of more than10 years  in  filing  the
      appeal under Section 54 of the Land Acquisition Act, 1894 (hereinafter
      referred to as the ‘Act’).=
petitioners had chosen not to file appeal  at
      the initial stage but filed the same in the year 2012 after a lapse of
      10 years 2 months and 29 days.  
The High Court refused to condone  the
      delay in spite of the fact that other persons who  had  preferred  the
      appeals in time had been given a higher compensation.
           Hence, these petitions.=
11.   The courts should not adopt an  injustice-oriented  approach  in
      rejecting the application for condonation of delay. However the  court
      while allowing such application has  to  draw  a  distinction  between
      delay and inordinate delay for want of bona fides of  an  inaction  or
      negligence would deprive a party of the protection of Section 5 of the
      Limitation Act, 1963. Sufficient cause is a  condition  precedent  for
      exercise of discretion by the Court for  condoning  the  delay.   This
      Court has time and again held that when  mandatory  provision  is  not
      complied with and that  delay  is  not  properly,  satisfactorily  and
      convincingly  explained,  the  court  cannot  condone  the  delay   on
      sympathetic grounds alone.
      12.   It is also a well settled principle of law that if  some  person
      has taken a relief approaching the Court just or immediately after the
      cause of action had arisen, other persons cannot take benefit  thereof
      approaching the court at a belated stage  for  the  reason  that  they
      cannot be permitted to take the impetus of the  order  passed  at  the
      behest of some diligent person.
      13.   In State of Karnataka & Ors. v. S.M. Kotrayya & Ors.,  (1996)  6
      SCC 267, this Court rejected the contention that a petition should  be
      considered ignoring the delay and laches on the ground that  he  filed
      the petition just after coming to know of the relief  granted  by  the
      Court  in  a  similar  case  as  the  same  cannot  furnish  a  proper
      explanation for delay and laches. The Court observed that such a  plea
      is wholly unjustified and cannot furnish any ground for ignoring delay
      and laches.
      14.   Same view has been reiterated by this Court  in  Jagdish  Lal  &
      Ors. v. State of Haryana &  Ors.,  AIR  1997  SC  2366,  observing  as
      under:–
           “Suffice it to state that appellants kept  sleeping  over  their
           rights for long and elected to wake-up when they had the impetus
           from Vir Pal Chauhan and Ajit Singh’s ratios…Therefore desperate
           attempts of the appellants to re-do the seniority, held by  them
           in various cadre.... are not amenable to the judicial review  at
           this belated stage.  The  High  Court,  therefore,  has  rightly
           dismissed the writ petition on the ground of delay as well.”


      15.   In M/s. Rup Diamonds & Ors. v. Union of India & Ors.,  AIR  1989
      SC 674, this  Court considered a case where petitioner wanted  to  get
      the relief on the basis of  the  judgment  of  this  Court  wherein  a
      particular law had been declared ultra vires. The Court  rejected  the
      petition on the ground of delay and laches observing as under:–
           “There is one more ground which basically sets the present  case
           apart. Petitioners are re-agitating claims which they  have  not
           pursued for several years. Petitioners  were  not  vigilant  but
           were content to be


           dormant and chose to sit on the fence till somebody else’s  case
           came to be decided.”

      16.    In  the  instant  case,  after  considering   the   facts   and
      circumstances and the reasons for  inordinate  delay  of  10  years  2
      months and 29 days, the High Court did not find sufficient grounds  to
      condone the delay.


      17.   In view of the facts of the case and the above-cited  judgments,
       we do not find any fault with the impugned judgment.   The  petitions
      lack merit and are accordingly dismissed. 

2014 ( March. Part ) judis.nic.in/supremecourt/filename=41333

                                                        Reportable

                         IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

            SPECIAL LEAVE PETITION (CIVIL) NOS.6609-6613 OF 2014


      Brijesh Kumar & Ors.                         … Petitioners

                                   Versus

      State of Haryana & Ors.                       …Respondents


                                  O R D E R


      1.    These petitions have been filed  challenging  the  judgment  and
      order dated 22.11.2013, passed by the High Court of Punjab  &  Haryana
      at Chandigarh dismissing the Civil Misc. Applications in  RFA  No.5793
      of 2012 for condonation of delay of more than10 years  in  filing  the
      appeal under Section 54 of the Land Acquisition Act, 1894 (hereinafter
      referred to as the ‘Act’).
      2.    The land of  the  petitioners  alongwith  the  lands  of  others
      admeasuring 134 acres, 5 kanals  and  10  marlas  situate  in  revenue
      estate of village Manakpur, Hadbast No.386, Tehsil Jagadhri,  District
      Yamuna Nagar stood notified under Section 4 of the  Act  on  8.9.1993.
      In respect of the same, the award was made  by  the  Land  Acquisition
      Collector on 8.10.1997 assessing the market value of the land  of  the
      petitioners @ Rs.1,75,000/- per acre.
      3.    Aggrieved, the petitioners and other  persons  interested  filed
      references under Section 18 of the Act for enhancement of compensation
      and the Reference Court made  the  award  on  7.9.2001  assessing  the
      market value of the land @ Rs.1,85,000/- per acre and they  were  also
      given other statutory benefits.
      4.    Aggrieved, some of the persons interested filed  appeals  before
      the High Court, however, petitioners had chosen not to file appeal  at
      the initial stage but filed the same in the year 2012 after a lapse of
      10 years 2 months and 29 days.  The High Court refused to condone  the
      delay in spite of the fact that other persons who  had  preferred  the
      appeals in time had been given a higher compensation.
           Hence, these petitions.


      5.     Shri  Shish  Pal  Laler,  learned  counsel  appearing  for  the
      petitioners has submitted that it was a fit case where the delay ought
      to have been condoned and the High Court has committed an error in not
      entertaining the appeal on merit.
      6.    The High Court had given cogent and  valid  reasons  and  relied
      upon large number of judgments  of  this  Court  while  rejecting  the
      application for condonation of delay including Mewa Ram  (Deceased  by
      L.Rs) & Ors. v. State of Haryana, AIR 1987 SC 45; State of Nagaland v.
      Lipok AO & Ors., AIR 2005 SC 2191; and D. Gopinathan Pillai  v.  State
      of  Kerala & Anr., AIR 2007  SC 2624.
      7.     The  issues  of  limitation,  delay  and  laches  as  well   as
      condonation of such delay are being examined and explained  every  day
      by the Courts.
           The law of limitation is enshrined in the legal maxim  “Interest
      Reipublicae Ut Sit Finis Litium” (it is for the general welfare that a
      period be put to litigation). Rules of Limitation  are  not  meant  to
      destroy the rights of the parties, rather the idea is that every legal
      remedy must be kept alive for a legislatively fixed period of time.
      8.    The Privy Council in General Fire and Life Assurance Corporation
      Ltd. v. Janmahomed Abdul  Rahim,  AIR  1941  PC  6,  relied  upon  the
      writings of Mr. Mitra in Tagore Law Lectures 1932 wherein it has  been
      said that “a law of limitation and prescription may appear to  operate
      harshly and unjustly in a particular case, but if the law provides for
      a limitation, it is to be enforced even at the risk of hardship  to  a
      particular party as the Judge cannot, on applicable  grounds,  enlarge
      the time allowed by the law,  postpone  its  operation,  or  introduce
      exceptions not recognised by law.”
      9.    In P.K. Ramachandran v. State of Kerala  &  Anr.,  AIR  1998  SC
      2276,  the Apex Court while considering a case of condonation of delay
      of 565  days,  wherein  no  explanation  much  less  a  reasonable  or
      satisfactory explanation for condonation of delay had been given, held
      as under:–
           “Law of limitation may harshly affect a particular party but  it
           has to be applied with  all  its  rigour  when  the  statute  so
           prescribes and the Courts have no power to extend the period  of
           limitation on equitable grounds.”


      10.    While  considering  a  similar  issue,  this  court   in   Esha
      Bhattacharjee v. Raghunathpur Nafar Academy & Ors. (2013) 12  SCC  649
      laid down various principles inter alia:
           “     x          x           x
           v)     Lack  of  bona  fides  imputable  to  a   party   seeking
           condonation of delay is a significant and relevant fact


             vi) The concept  of  liberal  approach  has  to  encapsule  the
                 conception of reasonableness and it  cannot  be  allowed  a
                 totally unfettered free play


                     x      x           x
           ix)   The conduct, behavior and attitude of a party relating  to
           its inaction or negligence are relevant factors to be taken into
           consideration. It is so as the fundamental principle is that the
           courts are required to weigh the scale of balance of justice  in
           respect of both parties and the said principle cannot be given a
           total go by in the name of liberal approach.


                 x          x           x


           xvii) The increasing tendency to perceive delay as a non-serious
           mater and, hence, lackadaisical propensity can be exhibited in a
           nonchalant manner requires to be curbed, of course, within legal
           parameters.”


      (See also: Basawaraj v. Land Acquisition Officer (2013) 14 SCC 81)


      11.   The courts should not adopt an  injustice-oriented  approach  in
      rejecting the application for condonation of delay. However the  court
      while allowing such application has  to  draw  a  distinction  between
      delay and inordinate delay for want of bona fides of  an  inaction  or
      negligence would deprive a party of the protection of Section 5 of the
      Limitation Act, 1963. Sufficient cause is a  condition  precedent  for
      exercise of discretion by the Court for  condoning  the  delay.   This
      Court has time and again held that when  mandatory  provision  is  not
      complied with and that  delay  is  not  properly,  satisfactorily  and
      convincingly  explained,  the  court  cannot  condone  the  delay   on
      sympathetic grounds alone.
      12.   It is also a well settled principle of law that if  some  person
      has taken a relief approaching the Court just or immediately after the
      cause of action had arisen, other persons cannot take benefit  thereof
      approaching the court at a belated stage  for  the  reason  that  they
      cannot be permitted to take the impetus of the  order  passed  at  the
      behest of some diligent person.
      13.   In State of Karnataka & Ors. v. S.M. Kotrayya & Ors.,  (1996)  6
      SCC 267, this Court rejected the contention that a petition should  be
      considered ignoring the delay and laches on the ground that  he  filed
      the petition just after coming to know of the relief  granted  by  the
      Court  in  a  similar  case  as  the  same  cannot  furnish  a  proper
      explanation for delay and laches. The Court observed that such a  plea
      is wholly unjustified and cannot furnish any ground for ignoring delay
      and laches.
      14.   Same view has been reiterated by this Court  in  Jagdish  Lal  &
      Ors. v. State of Haryana &  Ors.,  AIR  1997  SC  2366,  observing  as
      under:–
           “Suffice it to state that appellants kept  sleeping  over  their
           rights for long and elected to wake-up when they had the impetus
           from Vir Pal Chauhan and Ajit Singh’s ratios…Therefore desperate
           attempts of the appellants to re-do the seniority, held by  them
           in various cadre.... are not amenable to the judicial review  at
           this belated stage.  The  High  Court,  therefore,  has  rightly
           dismissed the writ petition on the ground of delay as well.”


      15.   In M/s. Rup Diamonds & Ors. v. Union of India & Ors.,  AIR  1989
      SC 674, this  Court considered a case where petitioner wanted  to  get
      the relief on the basis of  the  judgment  of  this  Court  wherein  a
      particular law had been declared ultra vires. The Court  rejected  the
      petition on the ground of delay and laches observing as under:–
           “There is one more ground which basically sets the present  case
           apart. Petitioners are re-agitating claims which they  have  not
           pursued for several years. Petitioners  were  not  vigilant  but
           were content to be


           dormant and chose to sit on the fence till somebody else’s  case
           came to be decided.”

      16.    In  the  instant  case,  after  considering   the   facts   and
      circumstances and the reasons for  inordinate  delay  of  10  years  2
      months and 29 days, the High Court did not find sufficient grounds  to
      condone the delay.


      17.   In view of the facts of the case and the above-cited  judgments,
       we do not find any fault with the impugned judgment.   The  petitions
      lack merit and are accordingly dismissed.




                                              ………………………J.
                       (DR. B.S. CHAUHAN)






                                               ………………………J.
                                             (J. CHELAMESWAR)
      New Delhi
      March 24, 2014.



-----------------------
6

Accident claim - Hindu succession Act and M.V. Act - whether the wife after remarriage entitled for compensation - yes and like whether the mother after her remarriage is entitled for compensation even thought not dependant - yes = Their lordships apportioned almost all 3/4 th wife and 1/4 to the mother = Andhra Pradesh State Road Transport Corporation, rep. by its Managing Director,Mushirabad, Hyderabad..... Appellant Smt.Palepu Mamatha,Smt. Manne Gangubai.... Respondents = 2014 (March. Part) judis.nic.in/judis_andhra/filename=10985

Accident claim - Hindu succession Act and M.V. Act - whether the wife after remarriage entitled for compensation - yes and like whether the mother after her remarriage is entitled for compensation even thought not dependant - yes = Their lordships apportioned almost all 3/4 th wife and 1/4 to the mother =
Claim by wife of deceased =
on 05.05.2001 at
about 15:30 hours, when the deceased was proceeding in a Jeep bearing No.ABV   
7114 as driver from Armoor to Shetpally, suddenly a bus bearing No.AP 10 Z 8237
came in high speed from opposite side and dashed against the Jeep.  In the
resultant accident, the deceased and others who were travelling in the Jeep
sustained multiple and grievous injuries and the deceased and three others died
on the spot. 
Mother of deceased /Respondent No.2 =
Regarding 2nd respondent, it is averred that the father of the deceased
died when he was in the womb of his mother/ 2nd respondent and after giving
birth to the child, the 2nd respondent threw away the child in thorny bushes
when he was aged 1 1/2 years and she went away with one Manne Vittal and living 
in Oddiat Village for the past 22 years and she never visited the deceased till
his death. It is further averred that 2nd respondent was not at all depending
upon the income of deceased and she is not entitled for any compensation but she
being the mother, formally added as party to this O.P. = 
VERSES VERSION 
R.2 contended that she is
the real mother of the deceased and she filed separate O.P.No.1086 of 2001
against R.1 and the petitioner.  She denied that she has thrown away her
deceased son and submitted that she remarried after the death of father of
deceased.  R.2 further contended that petitioner got remarried after the death
of deceased and as such the petitioner is not entitled to claim any
compensation. 
APSRTC / RESPONDENT NO.1
The First respondent/APSRTC filed counter and opposed the claim, inter
alia contending that the accident was occurred only due to the fault of driver
of the jeep i.e, deceased but not the driver of the bus.R.1 further
contended that the deceased was not holding any valid driving licence and as
such the Insurer of the Jeep was not made as party to this O.P.  R.1 contended
that this O.P is bad for non-joinder of necessary party i.e, Insurer of the
Jeep.
WHO IS AT FAULT =
Evidence of eye witness and injured witness  which was unshaken overweight the evidence of conductor who is an interested witness and as such Bus driver is at fault 
EFFECT OF ACQUITTAL IN ACCIDENT CASE =
 So
far as the judgment in a criminal case is concerned, law is clear that the same
cannot have a binding force in a civil case and the fault of the concerned
driver has to be decided basing on the evidence produced before the Tribunal.
whether remarriage of a wife
subsequent to the death of her husband in an accident disentitles her to claim
compensation.-= Law cannot be static but dynamic mirroring the needs of society.
Restricting a wife to claim compensation only for the period she remained as
widow is nothing but fettering her growth.  In view of this and the latest law
being in favour of a wife conferring on her full rights to claim compensation
even after her remarrying subsequent to the death of her husband, the view
expressed by the High Court of Orissa and reflected in the decision of the
Single Judge of this Court cannot be followed.  For this reason, it is held,
even if the claimant remarries after the death of her husband she will not lose
her right to claim compensation.  Even otherwise, the record shows that except
making allegation, the R.2 failed to prove that the claimant remarried one
Bojanna after the death of her husband.  Hence she can be still considered as
the wife of deceased. Therefore, either way the claimant is entitled to
compensation. 
Smt.Kasturi Devi vs. Deputy Director of Consolidation and
others7 and observed thus:
"We are, however, unable to agree with the view taken by the Deputy Director of
Consolidation which appears to be contrary to the written text of the Hindu Law.
Mulla in his 'Hindu Law', 14th Edn, while describing the incidents of a mother
regarding inheritance under Clause (iii) observed at p. 116 as follows:
(iii) Unchastity and remarriage---Unchastity of a mother is no bar to her
succeeding as heir to her son, nor docs remarriage constitute any such bar.
4. A large number of authorities have been cited in support of this view. We
find ourselves entirely in agreement with this view. Our attention has not been
invited to any text of the Hindu Law under which a mother could be divested of
her interest in the property either on the ground of unchastity or re-marriage."
18)     So on the same analogy, it can be said that R.2 is also entitled to
compensation.  This point is decided accordingly.
Considering the fact that claimant is the wife and a lonely lady, she is
held entitled to Rs.3,17,000/- and R.2 being mother and having children to look
after held entitled to Rs.1,50,000/-.
2014 (March. Part) judis.nic.in/judis_andhra/filename=10985

THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO          

M.A.C.M.A No.197 of 2009 and batch

10-03-2014

Andhra Pradesh State Road Transport Corporation, rep. by its Managing
Director,Mushirabad, Hyderabad..... Appellant

Smt.Palepu Mamatha,Smt. Manne Gangubai.... Respondents    

Counsel for Appellant:Smt. B.G.Uma Devi

Counsel for Respondent No.1: Sri M. Rajamalla Reddy
Counsel for Respondent No.2: Sri N. Sreedhar Reddy

<Gist:

>Head Note:

? Cases referred:
1. 2013 ACJ 1403
2. 2009 ACJ 1298 = (2009) 6 SCC 121
3. 2004 (1) ALD 117
4. 1987 ACJ 772
5. 2011 ACJ 662
6. (2013) 1 ACC 503
7. AIR 1976 SC 2595

THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO            

M.A.C.M.A Nos.197 and 1675 of 2009  

COMMON JUDGMENT:      
        Aggrieved by the Award dated 01.11.2007 in O.P No.1002 of 2001 passed by
the Chairman, I Additional Motor Accident Claims Tribunal, Nizamabad (for short
"the Tribunal") the Andhra Pradesh State Road Transport Corporation/1st
respondent in the O.P preferred M.A.C.M.A No.197 of 2009 questioning the quantum
of compensation and the claimant preferred M.A.C.M.A No.1675 of 2009 on the
ground of inadequacy of compensation.
2)      The factual matrix of the case is thus:
a)      The claimant-Smt. Palepu Mamatha is the wife of deceased Palepu Gangadhar,  
R/o. Shetpally Village of Morthad Mandal, Nizamabad District and respondent No.2
is mother of the deceased.  The case of the claimant is that on 05.05.2001 at
about 15:30 hours, when the deceased was proceeding in a Jeep bearing No.ABV   
7114 as driver from Armoor to Shetpally, suddenly a bus bearing No.AP 10 Z 8237
came in high speed from opposite side and dashed against the Jeep.  In the
resultant accident, the deceased and others who were travelling in the Jeep
sustained multiple and grievous injuries and the deceased and three others died
on the spot.  It is averred that the accident occurred due to the rash and
negligent driving of the APSRTC bus driver.  It is averred that due to sudden
demise of husband of the claimant, she lost her sole breadwinner.  On these
pleas, the claimant filed O.P.No.1002 of 2001 against APSRTC/1st respondent
claiming Rs.5,00,000/- as compensation under different heads.
b)      Regarding 2nd respondent, it is averred that the father of the deceased
died when he was in the womb of his mother/ 2nd respondent and after giving
birth to the child, the 2nd respondent threw away the child in thorny bushes
when he was aged 1 1/2 years and she went away with one Manne Vittal and living 
in Oddiat Village for the past 22 years and she never visited the deceased till
his death. It is further averred that 2nd respondent was not at all depending
upon the income of deceased and she is not entitled for any compensation but she
being the mother, formally added as party to this O.P.
c)      The First respondent/APSRTC filed counter and opposed the claim, inter
alia contending that the accident was occurred only due to the fault of driver
of the jeep i.e, deceased but not the driver of the bus. It urged that claimant
should be put to strict proof of petition averments.  R.1 further contended that
at the time of the accident, the deceased was carrying more passengers than
permissible under the MV Act and Rules and the bus was going slowly on its left
side of the road and the deceased who was proceeding on wrong side of the road
was unable to control the jeep and dashed against the bus.  R.1 further
contended that the deceased was not holding any valid driving licence and as
such the Insurer of the Jeep was not made as party to this O.P.  R.1 contended
that this O.P is bad for non-joinder of necessary party i.e, Insurer of the
Jeep.
d)      Respondent No.2 filed counter and denied the petition averments and urged
to put the petitioner in strict proof of the same.  R.2 contended that she is
the real mother of the deceased and she filed separate O.P.No.1086 of 2001
against R.1 and the petitioner.  She denied that she has thrown away her
deceased son and submitted that she remarried after the death of father of
deceased.  R.2 further contended that petitioner got remarried after the death
of deceased and as such the petitioner is not entitled to claim any
compensation. 
e)      During trial, PW.1 was examined and Exs.A1 to A4 were marked on behalf of
the claimant.  RWs.1 to 4 were examined and Exs.B.1 to B.3 were marked on behalf
of respondents.
f)      A perusal of the award shows that considering the oral evidence of RW.2 -
eye witness and also the documentary evidence Ex.A1-F.I.R and Ex.A2-charge  
sheet, the Tribunal held that the bus driver was responsible for the accident.
In this regard, Tribunal did not believe the evidence of RW.4 - bus conductor.
g)      Then coming to the quantum of compensation, the Tribunal having observed
that the deceased was aged 23 years and a driver, fixed his monthly income at
Rs.3,000/- and assessed the compensation under different heads as follows:
Loss of dependency                      Rs.4,08,000/-
Funeral expenses                                Rs.     5,000/-
Loss of consortium                      Rs.   15,000/-
     _______________ 
Total                   Rs.4,28,000/-
     _______________ 
        Thus, the Tribunal granted total compensation of Rs.4,28,000/- with
proportionate costs and interest @ 7.5% p.a against 1st respondent.
h)      So far as issue No.2 is concerned, the O.P.No.1086/01 filed by R.2 was
dismissed on 14.07.2005 giving liberty to contest and adduce evidence in the
O.P.No.1002 of 2001. The Tribunal held that claimant and 2nd respondent being
the legal heirs of the deceased, they are entitled to claim the compensation
amount equally.
        Hence, the appeals by respective parties.
3)      Heard arguments of Smt. B.G. Uma Devi, learned standing counsel for
APSRTC/appellant in MACMA No.197 of 2009, Sri M. Rajamalla Reddy, learned  
counsel for claimant/appellant in MACMA No.1675 of 2009 and Sri N. Sreedhar
Reddy, learned counsel for R.2 in both the appeals.
4a)     Learned standing counsel for APSRTC / appellant in MACMA No. 197 of 2009  
firstly argued that the Tribunal erred in holding that the bus driver was
responsible for the accident.  Learned counsel submitted that the evidence of
the bus conductor (RW.4) coupled with Ex.B.3 - judgment in C.C.No.102 of 2002 on
the file of Judicial Magistrate of First Class at Armoor would clearly show that
bus driver drove the bus at slow speed to his left side and on the other hand,
the deceased drove the Jeep at high speed and lost control and dashed the bus
and therefore, the Tribunal ought to have dismissed the claim in limini by
fixing the liability on the deceased.
b)      Secondly, questioning the quantum of compensation, learned counsel argued
that the Tribunal erred in fixing the monthly income of the deceased at
Rs.3,000/- without there being any cogent evidence in this regard.  Learned
counsel submitted, thereby the compensation was unduly escalated.
c)      Thirdly, learned counsel submitted that the claim petition is not
maintainable in view of the fact that the claimant remarried after the death of
the deceased and hence she is no more a legal representative of the deceased.
Learned counsel thus prayed to allow its appeal and dismiss the appeal of
claimant.
5a)     Per contra, learned counsel for claimant/appellant in M.A.C.M.A No.1675 of
2009 firstly argued that the accident was occurred purely due to the rash and
negligent driving of the bus driver and hence the Tribunal has rightly fixed
liability on him.  He submitted that the claimant could establish the fault of
bus driver through RW.2 - an independent eye witness-cum-victim in the accident.
In view of it, the judgment of the criminal court exonerating the bus driver
from the liability cannot be considered.  He further submitted that RW.4 - bus
conductor is only an interested witness to see that his department is exempted
from paying compensation.  Therefore, the oral and documentary evidence adduced
by APSRTC cannot undo the independent evidence of RW.2.  
b)      Secondly regarding quantum of compensation, learned counsel argued that
the Tribunal granted meager compensation and it failed to award compensation
under certain heads.  For instance, he submitted, the Tribunal did not grant
compensation for loss of estate.  Learned counsel further submitted that the
claimant is entitled to Rs.1,00,000/- as compensation for loss of consortium as
per the latest judgment of Hon'ble Supreme Court reported in Rajesh and others
vs. Rajbir Singh and others1.  Regarding compensation for loss of dependency, he
argued that the Tribunal ought to have accepted the monthly income of the
deceased as Rs.5,900/- in view of the evidence of RW.3 coupled with Ex.B.2.  He
further submitted that the Tribunal ought to have accepted '18' as multiplier
instead of '17' following the decision reported in Smt. Sarla Verma and others
vs. Delhi Transport Corporation and another2.
c)      Thirdly, he argued that the 2nd respondent is not entitled to any
compensation as she remarried immediately after the death of father of the
deceased and forlorned him.  Hence compensation awarded to her may be withdrawn  
and granted to the claimant.
        He thus prayed to allow the appeal filed by claimant and dismiss the
appeal filed by APSRTC.
6)      Learned counsel for R.2 argued that the remarriage of the mother will not
deprive her social status as the legal representative of the deceased and hence
she was rightly granted compensation by the Tribunal and in case compensation is
enhanced in the appeal, she may be allotted her due share.
7)      In the light of above rival arguments, now the points for determination in
these appeals are:
1. Whether the accident was occurred due to the fault of driver of APSRTC bus
bearing No. AP 10 Z 8237 or due to the fault of driver of Jeep bearing No. ABV
7114?
2. Whether the claimant and 2nd respondent are the legal representatives of the
deceased and hence entitled to compensation?
3. Whether the compensation granted by the Tribunal is just and reasonable and
needs enhancement?  
8)  POINT No.1: The accident, involvement of the APSRTC bus and jeep and death
of the deceased are all admitted facts.  The point is whether the bus driver or
the deceased as the driver of the Jeep or both were at fault.  It may be noted
that the Tribunal opined that the bus driver was responsible for the accident.
To prove guilt of bus driver, the claimant and 2nd respondent examined RW.2 -
eye witness-cum-victim of the accident.  Whereas APSRTC examined its conductor  
as RW.4 and produced Ex.B.3 - judgment to show that bus driver was not
responsible for the accident.  Hence the aforesaid evidence needs scrutiny.
9)      Admittedly the accident was occurred on 05.05.2001 near Dargah in Chepur
Village in between Armoor and Shetpally.  F.I.R was registered within short time
after the accident on the complaint lodged by one Gajjela Narsaiah who was a
passenger in the Jeep.  His version in Ex.A.1 - F.I.R  is that about 16
passengers were travelling in the Jeep and when the Jeep reached the Dargah, at
that time the RTC bus came in the opposite direction from Godavarikhani side
being driven by its driver at high speed and in a rash and negligent manner and
hit the Jeep and thereby four persons including the Jeep driver died on the spot
and others including RW.2 suffered injuries. He averred that the bus driver was
responsible for the accident.  This is the earliest version regarding the manner
of occurrence of accident.  The complainant was not examined but one of the
passengers in the Jeep i.e, RW.2 was examined by the claimant and R.2.  RW.2
deposed in similar lines to Ex.A.1 and stated that when the Jeep reached
outskirts of Chepur Village on N.H-16 road, the offending bus came from opposite
direction driven by its driver at high speed and in a rash and negligent manner
and dashed their Jeep and thereby the driver and four inmates died on the spot
whereas himself and some others received injuries.  He categorically avouched
that the accident was occurred due to the fault of bus driver.  In the cross-
examination except suggesting that accident was occurred due to the fault of
Jeep driver which he emphatically denied, nothing useful was extracted to
conclude that the bus driver was not at fault and Jeep driver himself was at
fault. It should be noted that RW.2 is an independent witness and in Ex.A.2-
charge sheet he was cited as LW.4 i.e, injured-cum-eye witness.
10)     Against the above evidence, RTC examined its conductor as RW.4.  He
deposed that on seeing the Jeep, the bus driver slowed down the bus and
proceeding on the left side of the road but the Jeep driver who was carrying 20
persons went on wrong side of the road and at high speed and unable to control
the Jeep dashed the bus and thereby the accident was occurred.  He stated that
the bus driver was not at fault.  He stated that at the time of accident, he was
sitting in his seat.  He denied the suggestion that he did not see the manner of
occurrence of the accident.  He also denied the suggestion that bus driver was
at fault and not the Jeep driver.  He produced Ex.B.3 - copy of judgment in
C.C.No.102 of 2002 on the file of Judicial Magistrate of First Class at Armoor
to show that in the resultant criminal case, the bus driver was acquitted.  So
far as the judgment in a criminal case is concerned, law is clear that the same
cannot have a binding force in a civil case and the fault of the concerned
driver has to be decided basing on the evidence produced before the Tribunal.
Here we have the evidence of RW.2 on one hand and RW.4 on the other.  As already
discussed supra, RW.2 is an independent witness and a victim in the accident.
He is not interested towards any of the drivers and therefore, if the Jeep
driver was at fault, there was no need for him to hide the said fact and
attribute the fault to bus driver.  On the other hand, RW.4 belongs to RTC
department and thus an interested witness.  No doubt he was examined on the plea
that bus driver was not in the service of RTC but on his own admission he was
sitting in the conductor's seat and claimed to have witnessed the accident.
Hence due to the distance between his seat and front windshield, his observing
the manner of occurrence of accident is also a doubtful one. So in any view of
the matter, the evidence of RW.2 is reliable than RW.4.  Therefore,
unhesitatingly it can be held that the bus driver was responsible for the
accident.  Thus, the Tribunal was right in holding so.
11)     POINT No.2: Admittedly the claimant and 2nd respondent are the wife and
mother of the deceased - Palepu Gangadhar and they are his legal
representatives.  However the respective rival contentions are that according to
2nd respondent, claimant after the death of deceased married one Bojanna of
Pippera Village and she is no more the L.R of the deceased, whereas the
contention of claimant is that 2nd respondent after the death of her husband
threw away her son i.e, deceased when he was aged about 1 1/2 year and married
one Manne Vittal of Oddiat Village in Morthad Mandal, Nizamabad District and
gave birth to three children and she has been living with them and hence she is
no more the L.R of the deceased.
a)      So far as the claimant is concerned, the Tribunal held that except the
allegation, 2nd respondent failed to prove that the claimant remarried one
Bojanna of Pippera Village.  The Tribunal also perused the decision reported in
National Insurance Company Limited vs. Eda Anjanamma and others3 cited by R.2  
and held that the said decision has no application.
b)      So far as the mother is concerned, the Tribunal considering Sections 8 and
14 of Hindu Succession Act, 1956 observed that the right inherited by her in the
estate of her deceased son became absolute and her remarriage is not a bar for
her to succeed as heir to her son.  Thus, the Tribunal held that both claimant
and 2nd respondent are entitled to compensation and granted the compensation in
equal shares to them.
12)     Now in the appeal again their right is in dispute. Hence their eligibility
to claim compensation needs scrutiny.
13)     In this regard, the first legal point is whether remarriage of a wife
subsequent to the death of her husband in an accident disentitles her to claim
compensation.  The above question came up for consideration in Eda Anjanamma's
case (3 Supra).  In that case one E. Venkata Ramana died in a tractor accident.
His wife, father and mother filed claim petition.  The Insurance Company inter
alia contended that wife is not entitled to claim compensation as she got
remarried during pendency of the claim petition.  The facts proved that 1st
claimant was widow for about three years after the death of deceased and then
remarried.  Learned single judge of this Court placing reliance on the decision
of a Division Bench of Orissa High Court reported in State of Orissa vs. Smt.
Archana Nayak and others4 held thus:
"20. After analyzing the above legal position it is made out that a widow of the
deceased who died in the motor accident is entitled for compensation for loss of
dependency, loss of consortium and the other items of compensation till she
ceases to be the legal representative of her late husband on her remarriage,
therefore, she cannot be denied compensation completely and it has to be reduced
on the basis of the period during which she remained as the widow of the
deceased." 
        It may be noted that the Division Bench of Orissa High Court on which
reliance was placed by the learned judge of this Court, decided that the widow
of the deceased will be entitled to compensation only for the period she
remained as his widow on the observation that under Section 110-A of the M.V.
Act claim application has to be made by all or any of the "legal
representatives" and the expression "legal representative" has not been defined
in the M.V. Act but it has been defined under Section 2(11) of the C.P.C to mean
a person who in law represents the estate of the deceased person and includes
any person who intermeddles with the estate of the deceased.  Orissa High Court
further observed that with the remarriage, the wife ceases to be the legal
representative of her first husband though by virtue of Section 14 of the Hindu
Succession Act, the property of her husband vested in her cannot be divested
i.e, once a widow succeeds to the property of her husband and acquires an
absolute right over the same, she would not be divested of that absolute right
on her remarriage but she would certainly cease to be a legal representative of
the first husband on her remarriage. Under Section 22 of the Hindu Adoption and
Maintenance Act, 1956 she also ceases to be dependent and thus if a widow
remarries after the death of her husband her dependency ends.
14)     So in the view of Orissa High court, though a remarriage will not divest
the right of a Hindu woman in the estate of her husband by virtue of Section 14
of Hindu Succession Act, 1956, still for the purpose of claiming compensation
due to death of her husband in an accident, she cease to be his legal
representative as soon as she remarries and therefore, she will be entitled to
compensation till she remained his widow only.
15)      It must be noted that the right to claim compensation arises out of a
tortuous liability i.e, accident.  Such a right to claim compensation against a
tortfeaser accrues to the wife of a deceased on the date of death of her husband
and not on the date of her subsequent remarriage.  This right which accrued on
her will not be divested due to subsequent remarriage.  If remarriage of a widow
is not a taboo or an offence and on the other hand, it is considered as a symbol
of progress by the social reformers, reinforcing it will lead the society to
regression than progression.  Hence in my view, remarriage of the wife after the
death of a husband cannot be considered as a clog to claim compensation.  In a
similar case reported in New India Assurance Company through it's Branch Manager 
vs. Mona Girish @ Giridhari Chandak and others5, High Court of Bombay (Nagpur
Bench) observed thus:
"Here, one has to bear in mind that claim arises out of tort. As soon as the
tort is committed, the person against whom such tort is committed becomes
entitled to compensation. Therefore, if on the date the tort was committed, the
claimant was entitled to a certain compensation, any subsequent act cannot
deprive him or her of the said entitlement. As soon as the cause of action
arises, the person in whose favour it so arises can prosecute the same. The
provision in the form of Section 166 of the Act is a social Legislation. The
same, therefore, must be interpreted to further the objective of the said
section. The law does not prohibit a widow from remarrying. Claimant No. 1 was
only 25 years of age when her husband died. To my mind, it would be too much of
Insurance Company to expect that, if the claimant wants to have compensation,
she should not remarry and suffer miseries. In fact, a legislation was required
to be brought to overcome the evil of prohibition of remarriage of a widow. If
these aspects of the matter are considered, remarriage cannot be an impediment
in claiming the compensation nor can it be a ground to reduce the compensation
to which the widow is otherwise entitled."
        Madras High Court also expressed the same view in the case of National
Insurance Company Limited rep. by its Branch Manager, Kottai Station Road,
Trichy vs. Nelphona and others6 and observed thus:
"Under Section 166 of the Motor Vehicles Act, it is provided that any of the
legal representatives can file the claim petition. Widow even after remarriage
continues to be the legal representative of her husband as there is no provision
under the Hindu Succession Act or any other law which lays down that after
remarriage she does not continue to be the legal representative. The right of
succession accrues immediately on the death of husband and in the absence of any 
provision she cannot be divested from the property vested in her due to
remarriage."
16)     Law cannot be static but dynamic mirroring the needs of society.
Restricting a wife to claim compensation only for the period she remained as
widow is nothing but fettering her growth.  In view of this and the latest law
being in favour of a wife conferring on her full rights to claim compensation
even after her remarrying subsequent to the death of her husband, the view
expressed by the High Court of Orissa and reflected in the decision of the
Single Judge of this Court cannot be followed.  For this reason, it is held,
even if the claimant remarries after the death of her husband she will not lose
her right to claim compensation.  Even otherwise, the record shows that except
making allegation, the R.2 failed to prove that the claimant remarried one
Bojanna after the death of her husband.  Hence she can be still considered as
the wife of deceased. Therefore, either way the claimant is entitled to
compensation. 
17)     Second respondent is concerned, she admitted that after the death of her
husband, she remarried one Manne Vittal, Oddiat Village and begot three children
and however she denied that she threw away the deceased in thorny buses while he
was a kid.  She further denied that she was not depending on him.  It may be
noted that under Section 8 of Hindu Succession Act, 1956 a mother along with
other Class I heirs, inherits the estate of her deceased son and this right is
an absolute one under Section 14 of the said Act and the said right will not be
divested due to her remarriage.  Hon'ble Supreme Court considered this aspect in
a decision reported in Smt.Kasturi Devi vs. Deputy Director of Consolidation and
others7 and observed thus:
"We are, however, unable to agree with the view taken by the Deputy Director of
Consolidation which appears to be contrary to the written text of the Hindu Law.
Mulla in his 'Hindu Law', 14th Edn, while describing the incidents of a mother
regarding inheritance under Clause (iii) observed at p. 116 as follows:
(iii) Unchastity and remarriage---Unchastity of a mother is no bar to her
succeeding as heir to her son, nor docs remarriage constitute any such bar.
4. A large number of authorities have been cited in support of this view. We
find ourselves entirely in agreement with this view. Our attention has not been
invited to any text of the Hindu Law under which a mother could be divested of
her interest in the property either on the ground of unchastity or re-marriage."
18)     So on the same analogy, it can be said that R.2 is also entitled to
compensation.  This point is decided accordingly.
19)     POINT No.3: This point is concerned, the submission on behalf of claimant
is that the Tribunal granted only Rs.15,000/- for loss of consortium and she
deserves more as per Rajesh's case (1 Supra).  Considering the fact that
claimant lost her husband in the prime of her youth, compensation for loss of
consortium is enhanced to Rs.25,000/- relying on Rajesh's case (1 Supra).
20)     Nextly, it is contended that the Tribunal erred in fixing the monthly
income of the deceased as Rs.3,000/-.  However on perusal of the Paras 21 and 22
of the award, I hold that the Tribunal rightly fixed the earnings of the
deceased as Rs.3,000/- p.m and there is no need to review the same.   Then
multiplier is concerned, the contention of claimant is that '18' instead of '17'
ought to have been taken as multiplier following the decision in Sarla Verma's
case (2 Supra), in view of the fact that the deceased was aged 23 years.  There
is some force in the said contention.  The age of the deceased is consistently
mentioned as 23 years in Ex.A.2- charge sheet and Ex.A.3- postmortem report in
Sarla Verma's case (2 Supra), Hon'ble Apex Court fixed multiplier '18' for the
deceased in the age group of 21 to 25 years  Hence compensation for loss of
dependency has to reassessed basing on the said multiplier. Accordingly, the
annual income of the deceased i.e, Rs.36,000/- is multiplied with '18' which
comes to Rs.6,48,000/-.  From this 1/3rd is deducted towards his personal
expenditure and balance amount of Rs.4,32,000/- is awarded as compensation.
Further a sum of Rs.5,000/- is awarded towards loss of estate as the same was
not granted by the Tribunal. Thus the total compensation payable is stated as
follows:
        Loss of dependency              Rs.4,32,000/-
        Loss of estate                  Rs.     5,000/-
        Loss of consortium              Rs.   25,000/-
        Funeral expenses                        Rs.     5,000/-
   __________________
                Total                           Rs.4,67,000/-
   __________________
        So the compensation is enhanced by Rs.39,000/- (Rs.4,67,000/- minus
Rs.4,28,000/-)
21)     Considering the fact that claimant is the wife and a lonely lady, she is
held entitled to Rs.3,17,000/- and R.2 being mother and having children to look
after held entitled to Rs.1,50,000/-.
22)     In view of the discussion in points 1 to 3 supra, the two appeals are
disposed of accordingly and ordered as follows:
i) M.A.C.M.A. No.197 of 2009 is dismissed and
ii) M.A.C.M.A.No.1675 of 2009 is allowed and compensation is enhanced by
Rs.39,000/- with proportionate costs and simple interest at 7.5% p.a from the
date of O.P till the date of realisation.
iii)  Respondent No.1/APSRTC is directed to deposit the compensation amount
within one month from the date of this judgment, failing which execution can be
taken out against it.
iv)  On such deposit or realisation, claimant in the O.P is entitled to
Rs.3,17,000/- with proportionate costs and simple interest to her share.  She is
permitted to withdraw Rs.1,00,000/- to meet her immediate needs.  Her balance
amount shall be kept in F.D in State Bank of India, Kanteshwar Branch, Nizamabad
for a period of three years.
v) Respondent No.2 in the O.P is entitled to Rs.1,50,000/-.  She is permitted to
withdraw Rs.1,00,000/- to meet her immediate needs.  Her balance amount shall be
kept in F.D in State Bank of India, Kanteshwar Branch, Nizamabad for a period of
three years.
vi)  No order as to costs in the appeals.
As a sequel, miscellaneous applications if any pending in these appeals, shall
stand closed.
___________________________    
U. DURGA PRASAD RAO, J    
Date: 10.03.2014

Sec.13 SARFAESI Act,Rules 8 and 9 of the Rules, 2002 - Sale against the rules are null and void - agreed to sale property under private treaty - Bank sold the property with it's agent with out the knowledge of debtor to the third party Appellant for lower price - just more than Rs.10,000/- on the reserve price - High court and D.B. rightly held that is void as it was done against rule 8 and 9 of Rules 2002 - Since the third party appellant is a bonafide purchaser who paid entire amount and took delivery of possession - Apex court modified the judgement and directed (i) The State Bank of India – Respondent No.3 directed to refund the entire proceeds of the FDR in which the sale consideration was deposited together with accrued interest forthwith.(ii) The Respondent Nos. 1 and 2 will ensure that the entire amount due to the appellants is paid on or before 15th June, 2014.(iii) Upon receipt of the entire amount, the possession shall be delivered to Respondent Nos. 1 and 2.= J.Rajiv Subramaniyan & Anr. …Appellants VERSUS M/s. Pandiyas & Ors. ...Respondents= 2014 (March. Part ) judis.nic.in/supremecourt/filename=41326

  Sec.13  SARFAESI   Act,Rules 8 and  9  of  the Rules, 2002 - Sale against the rules are null and void -  agreed to sale property under private treaty - Bank sold the property with it's agent with out the knowledge of debtor to the third party Appellant  for lower price - just more than Rs.10,000/- on the reserve price - High court and D.B. rightly held that is void as it was done against rule 8 and 9 of Rules 2002 - Since the third party appellant is a bonafide purchaser who paid entire amount and took delivery of possession - Apex court modified the judgement and directed (i)   The State Bank of India – Respondent No.3 directed to refund the entire proceeds of the FDR in which the sale  consideration  was deposited together with accrued interest forthwith.(ii)  The Respondent Nos. 1 and 2 will ensure that the  entire  amount due to the appellants is paid on or before 15th June, 2014.(iii) Upon receipt of the  entire  amount,  the  possession  shall  be delivered to Respondent Nos. 1 and 2.=

 It is not disputed before us that there were no terms  settled  in
      writing between the parties that the sale can be affected  by  Private
      Treaty.  In fact, the borrowers – respondent Nos. 1  and  2  were  not
      even called to the joint meeting between the Bank  –  Respondent  No.3
      and         Ge-Winn held on 8th December, 2006.  Therefore, there  was
      a clear violation of the aforesaid Rules rendering the sale illegal.
   
“27. Therefore, by virtue of the  stipulations  contained  under
           the   provisions   of   the   SARFAESI   Act,   in   particular,
           Section 13(8), any sale or transfer of a SECURED  ASSET,  cannot
           take place without duly informing the borrower of the  time  and
           date of such sale or transfer in order to enable the borrower to
           tender the dues of the SECURED CREDITOR with all costs,  charges
           and expenses and any such  sale  or  transfer  effected  without
           complying  with  the  said  statutory  requirement  would  be  a
           constitutional violation and nullify the ultimate sale.”


      14. As noticed above, this Court also examined Rules 8 and  9  of  the
      Rules, 2002.  On a detailed analysis of  Rules 8 and 9(1), it has been
      held that any sale effected without complying with the same  would  be
      unconstitutional and, therefore, null and void.
      15. In the present case, there is an additional reason  for  declaring
      that sale in favour of the appellant was a nullity.  Rule 8(8) of  the
      aforesaid Rules is as under:-
           “Sale by any method other than public auction or public  tender,
           shall be on such terms as may be settled between the parties  in
           writing.”


    17. It  must  be  emphasized  that  generally  proceedings  under  the
      SARFAESI Act, 2002 against the borrowers are initiated only  when  the
      borrower is in dire-straits.  The provisions of the SARFAESI Act, 2002
      and the Rules, 2002 have been enacted to ensure that the secured asset
      is not sold for a song.   It  is  expected  that  all  the  banks  and
      financial institutions which resort to the extreme measures under  the
      SARFAESI Act, 2002 for sale of the secured assets to ensure, that such
      sale of the asset provides maximum benefit to the borrower by the sale
      of such asset. Therefore, the secured creditors are expected  to  take
      bonafide measures to ensure that there  is  maximum  yield  from  such
      secured assets for the borrowers.  In  the  present  case,  Mr.  Dhruv
      Mehta has pointed out that sale consideration is only Rs.10,000/- over
      the reserve price whereas the property was worth much more.  It is not
      necessary for us to go into this question as, in our opinion, the sale
      is null and void being in violation of the provision of Section 13  of
      the SARFAESI Act, 2002 and Rules 8 and 9 of the Rules, 2002.


      18. We, therefore, have no hesitation in upholding  the  judgments  of
      the learned Single Judge and the Division Bench of the High  Court  to
      the effect that the sale effected in favour of the appellants on  18th
      December, 2006 is liable to be set aside.

  In view of the aforesaid, we hold that the sale  in  favour  of
      the appellants dated 18th December, 2006 and the  subsequent  delivery
      of possession to the  appellants  is  null  and  void.   The  sale  is
      accordingly set aside. The appellants  are  directed  to  deliver  the
      possession of the property purchased by them under the Sale Deed dated
      20th December, 2006 to  Respondent  Nos.  1  and  2  immediately  upon
      receiving the entire amount as directed hereunder:-
      (i)   The State Bank of India – Respondent No.3 directed to refund the
           entire proceeds of the FDR in which the sale  consideration  was
           deposited together with accrued interest forthwith.
      (ii)  The Respondent Nos. 1 and 2 will ensure that the  entire  amount
           due to the appellants is paid on or before 15th June, 2014.
      (iii) Upon receipt of the  entire  amount,  the  possession  shall  be
           delivered to Respondent Nos. 1 and 2.
      29. With these observations, the appeals are disposed of with no order
      as to costs.

  2014 (March. Part ) judis.nic.in/supremecourt/filename=41326
SURINDER SINGH NIJJAR, A.K. SIKRI
                                               REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                       CIVIL APPEAL NO.  3865  OF 2014
                 (Arising out of S.L.P.(C) No.24915 of 2011)




      J.Rajiv Subramaniyan & Anr.                      …Appellants


      VERSUS
      M/s. Pandiyas & Ors.                         ...Respondents
                                 WITH
                CIVIL APPEAL NO.  3866  OF 2014
               (Arising out of S.L.P.(C) No.25448 of 2012)


                               J U D G M E N T


      SURINDER SINGH NIJJAR,J.
      1.  Leave granted.
      2. These special  leave  petitions  are  directed  against  the  final
      judgment and order dated 14th June, 2011 passed  by  the  Madras  High
      Court (Madurai Bench) in W.A.No.417 of 2011 dismissing  the  aforesaid
      Writ Appeal filed by the appellants.
      3. We have heard the learned counsel for the parties at length.
      4.   Mr. Ashok Desai learned senior counsel appearing on behalf of the
      appellants has submitted that although many issues have been raised in
      the SLP, he is not pressing the point that the  High  Court  erred  in
      entertaining the writ petition filed by respondent Nos.1  and  2.  The
      point with regard to the maintainability  of  the  writ  petition  was
      taken on the basis of a judgment of this Court in the case  of  United
      Bank of India vs. Satyawati Tondon & Ors.[1]. It was urged before  the
      High Court that an alternative remedy being  available  to  respondent
      Nos.1 and 2 under the Securitization and Reconstruction  of  Financial
      Assets and Enforcement of Security  Interest  Act,  2002  (hereinafter
      referred to as “SARFAESI Act, 2002), the writ petition  would  not  be
      maintainable. The second issue with regard to the maintainability  was
      based on the fact that earlier respondent Nos. 1 and 2 had filed  Writ
      Petition Nos.5027-28 of 2006 challenging the auction sale notice dated
      23rd May, 2006. However, these writ petitions were  withdrawn  on  3rd
      July, 2006. The High Court did not give any liberty to respondent Nos.
      1 and 2 to file fresh writ petition. Mr. Desai very  fairly  submitted
      that it is not necessary to examine the issues on  maintainability  of
      the writ petition, as the entire issue is before this Court on merits.




      5.     Mr. Ashok Desai has pointed out that respondent Nos.1 and 2 had
      taken  various  loans  from  respondent  No.3-Bank.  Upon  failure  of
      Respondent Nos. 1 and 2 to repay the loan, the  assets  of  respondent
      Nos.1 and 2 which had been mortgaged with  respondent  No.3-Bank  were
      classified as non-performing assets  (NPA).  Inspite  of  such  action
      having been taken by respondent  No.3-Bank,  respondent  Nos.1  and  2
      failed to regularize the bank account. Therefore, on 8th  June,  2005,
      the bank-respondent No.3 issued notice  under  Section  13(2)  of  the
      SARFAESI Act, 2002 followed by a possession notice  on  12th  January,
      2006 under Section 13(4) of the  said  Act.  Respondent  Nos.1  and  2
      challenged the aforesaid two notices  by  filing  Writ  Petition  Nos.
      4174/2006,  4175/2006,  5027/2006  and  5028/2006.  In  the  meantime,
      auction sale was fixed on 7th July, 2006. But no sale  took  place  as
      there were no bidders. On           28th August, 2006, respondent Nos.
      1  and  2  sought  cancellation  of  the  auction  notice  and  sought
      permission of respondent No.3-Bank  to  sell  the  secured  assets  by
      private Treaty. It was stated that as on  that  date  the  outstanding
      balance due to the bank was a sum of Rs.1.57  crores.  A  request  was
      made to break up the aforesaid amount as follows :
      (a) Machineries of M/s. Suruthi Fabrics            -  0.40 lacs
      (b) Land and building of M/s. Suruthi Fabrics  -  0.70 lacs
      (c) Pandias Garment Factory land and Building -  0.47 lacs
          And Suruthi Fabrics 5.51 acres Land


      6.     Permission was sought to sell the assets as stated above within
      six months. On 11th September, 2006, respondent Nos.1  and  2  made  a
      payment of Rs.42 lacs to respondent No.3-Bank,  by  selling  machinery
      with the permission of respondent No.3-Bank. A request was  also  made
      for an extension of two moths for paying the  remaining  amount  after
      selling the secured assets. On     8th December, 2006, respondent No.3-
      Bank gave approval for private sale of the immovable property  to  the
      appellants and for issue of sale certificate. On the very  same  date,
      the secured assets were  sold  in  favour  of  the  petitioner  for  a
      consideration of 123.10 lacs. It is not disputed by Mr.  Vikas  Singh,
      learned senior counsel appearing for Respondent No.3,  that  the  sale
      was affected through Ge-Winn Management  Company,  Resolution  Agents.
      This is also evident from the proceedings of the meeting held  between
      respondent No.3-Bank and        Ge-Winn on 8th December, 2006.


      7.     We may point out here that the reserve  price  of  the  secured
      assets was fixed at 123 lacs. Sale deed was executed in favour of  the
      appellants by respondent No.3 on 20th December, 2006,  as  the  entire
      considerations  have  been  paid  on  15th  December,  2006.  On  21st
      December, 2006, respondent Nos.1 and 2  were  informed  by  respondent
      No.3-Bank that the secured assets had been  sold  for  more  than  the
      amount offered by them in the letter dated 28th August, 2006. At  that
      stage, respondent Nos.1 and 2  filed  Writ  Petition  No.325  of  2007
      without disclosing that the  earlier  Writ  Petition  Nos.5027-28/2006
      challenging the auction notice dated              23rd May,  2006  had
      been withdrawn without the court giving liberty to respondent  Nos.  1
      and 2 to file a fresh writ petition.


      8.    Upon completion of the proceedings inspite  of  the  preliminary
      objections taken by the appellants, the learned Single  Judge  allowed
      the writ petitions. The sale in favour of the petitioner was  held  to
      be vitiated on the ground that respondent No.3-Bank failed  to  follow
      the mandatory provisions of Rules 8(5), 8(6) and 9(2) of the  Security
      Interest (Enforcement) Rules, 2002 (hereinafter referred to as ‘Rules,
      2002’). But a direction was issued to refund the amount  paid  by  the
      petitioner i.e. Rs.1crore 41 lacs with interest at 9% per  annum  from
      April, 2007.


      9.    Aggrieved by the aforesaid  order,  the  appellants  filed  Writ
      Appeal No.4127/2011 in the High Court, which has also been dismissed.


      10. Mr. Ashok Desai  submits  that  the  petitioner  is  a  bona  fide
      purchaser and has paid the full consideration. Sale deed has been duly
      executed. Possession of the property  is  with  the  appellants  since
      2006. Therefore, respondent Nos.1 and 2 should  not  be  permitted  at
      this stage to claim that the sale is vitiated on the  ground  that  it
      has been affected through an agent of respondent No.3-Bank, namely, Ge-
      Winn. Mr. Desai submitted  that  the  Single  Judge  as  well  as  the
      Division Bench have wrongly held that  there  has  been  violation  of
      Rules 8(5), 8(6), 8(8) and 9(2) of the Rules, 2002. Mr. Desai  further
      submitted that it would be equitable to permit the petitioner to  keep
      the plot  which  is  adjacent  to  the  property  of  the  petitioner.
      Respondent Nos.1 and 2 can be permitted to take the other plots.


      11. Mr. Dhruv Mehta, learned senior counsel appearing on behalf of the
      respondent Nos. 1 and 2 relying on  the  judgment  of  this  Court  in
      Mathew Varghese Vs. M.Amritha Kumar & Ors. in C.A.No.1927-1929 of 2014
      decided on 10th February,  2014  submits  that  the  Rules,  2002  are
      mandatory in nature. In the present case, the sale has  been  effected
      in violation of the aforesaid rules. Both the learned Single Judge  as
      well as the Division Bench  have  come  to  the  conclusion  that  the
      provisions of the aforesaid rules have not been followed.  It  is  not
      disputed by any of the parties that  there  is  no  agreement  between
      respondent Nos. 1 and 2  and  respondent  No.3-Bank,  in  writing,  to
      affect the sale by Private  Treaty.        Mr.  Vikas  Singh,  learned
      senior counsel appearing for respondent  No.3-Bank,  however,  pointed
      out that the respondent Nos.1 and 2 had filed  a  review  petition  in
      which it was averred that they may be permitted to  sell  the  secured
      assets by Private Treaty. Therefore, according  to  Mr.  Vikas  Singh,
      respondent Nos. 1 and 2 cannot now be heard to say that they  had  not
      given their consent to affect the  sale  by  Private  Treaty.  We  are
      unable to accept the submission made by Mr. Vikas Singh that there  is
      no violation of the Rules, 2002. In our opinion, the findings recorded
      by the learned Single Judge as well as the Division Bench of the  High
      Court that there has been a violation of  Rules,  2002  are  perfectly
      justified.


      12. This Court in the case of Mathew Varghese Vs.  M.Amritha  Kumar  &
      Ors.[2] examined the procedure required to be followed by the banks or
      other financial institutions when the secured assets of the  borrowers
      are  sought  to  be  sold  for  settlement  of   the   dues   of   the
      banks/financial  institutions.   The  Court  examined  in  detail  the
      provisions of the SARFAESI Act, 2002.  The  Court  also  examined  the
      detailed procedure to be followed by the  bank/financial  institutions
      under the Rules, 2002.  This  Court  took  notice  of  Rule  8,  which
      relates to Sale of immovable secured assets and Rule 9  which  relates
      to time of sale, issue of sale certificate and delivery of  possession
      etc.  With regard to Section 13(1), this Court observed  that  Section
      13(1) of SARFAESI Act, 2002 gives a free hand to the secured creditor,
      for  the  purpose  of  enforcing  the  secured  interest  without  the
      intervention of Court or Tribunal.  But  such  enforcement  should  be
      strictly in conformity with the provisions of the SARFAESI Act,  2002.
      Thereafter, it is observed as follows:-
           “A reading of Section13(1), therefore, is clear  to  the  effect
           that while on the one hand any SECURED CREDITOR may be  entitled
           to enforce the SECURED ASSET created in its favour  on  its  own
           without resorting to any court proceedings  or  approaching  the
           Tribunal, such enforcement should  be  in  conformity  with  the
           other provisions of the SARFAESI Act.”


      13.   This Court further observed  that  the  provision  contained  in
      Section 13(8) of the  SARFAESI  Act,  2002  is  specifically  for  the
      protection of the borrowers in as much as, ownership  of  the  secured
      assets is a constitutional right vested in the borrowers and protected
      under Article 300A of  the  Constitution  of  India.   Therefore,  the
      secured creditor as a trustee of the secured asset can not  deal  with
      the same in any manner it likes and such an asset can be  disposed  of
      only in the manner prescribed in the SARFAESI Act,  2002.   Therefore,
      the creditor should ensure that the borrower was clearly put on notice
      of the date and time by which either the  sale  or  transfer  will  be
      effected in order to provide the required opportunity to the  borrower
      to take all possible steps for retrieving his property.  Such a notice
      is also necessary to ensure that the process of sale will ensure  that
      the secured assets will be sold to  provide  maximum  benefit  to  the
      borrowers.  The notice is also necessary to ensure  that  the  secured
      creditor or any one on its  behalf  is  not  allowed  to  exploit  the
      situation by virtue of proceedings initiated under the  SARFAESI  Act,
      2002.  Thereafter, in Paragraph 27, this Court observed as follows:-


           “27. Therefore, by virtue of the  stipulations  contained  under
           the   provisions   of   the   SARFAESI   Act,   in   particular,
           Section 13(8), any sale or transfer of a SECURED  ASSET,  cannot
           take place without duly informing the borrower of the  time  and
           date of such sale or transfer in order to enable the borrower to
           tender the dues of the SECURED CREDITOR with all costs,  charges
           and expenses and any such  sale  or  transfer  effected  without
           complying  with  the  said  statutory  requirement  would  be  a
           constitutional violation and nullify the ultimate sale.”


      14. As noticed above, this Court also examined Rules 8 and  9  of  the
      Rules, 2002.  On a detailed analysis of  Rules 8 and 9(1), it has been
      held that any sale effected without complying with the same  would  be
      unconstitutional and, therefore, null and void.
      15. In the present case, there is an additional reason  for  declaring
      that sale in favour of the appellant was a nullity.  Rule 8(8) of  the
      aforesaid Rules is as under:-
           “Sale by any method other than public auction or public  tender,
           shall be on such terms as may be settled between the parties  in
           writing.”




      16. It is not disputed before us that there were no terms  settled  in
      writing between the parties that the sale can be affected  by  Private
      Treaty.  In fact, the borrowers – respondent Nos. 1  and  2  were  not
      even called to the joint meeting between the Bank  –  Respondent  No.3
      and         Ge-Winn held on 8th December, 2006.  Therefore, there  was
      a clear violation of the aforesaid Rules rendering the sale illegal.


      17. It  must  be  emphasized  that  generally  proceedings  under  the
      SARFAESI Act, 2002 against the borrowers are initiated only  when  the
      borrower is in dire-straits.  The provisions of the SARFAESI Act, 2002
      and the Rules, 2002 have been enacted to ensure that the secured asset
      is not sold for a song.   It  is  expected  that  all  the  banks  and
      financial institutions which resort to the extreme measures under  the
      SARFAESI Act, 2002 for sale of the secured assets to ensure, that such
      sale of the asset provides maximum benefit to the borrower by the sale
      of such asset. Therefore, the secured creditors are expected  to  take
      bonafide measures to ensure that there  is  maximum  yield  from  such
      secured assets for the borrowers.  In  the  present  case,  Mr.  Dhruv
      Mehta has pointed out that sale consideration is only Rs.10,000/- over
      the reserve price whereas the property was worth much more.  It is not
      necessary for us to go into this question as, in our opinion, the sale
      is null and void being in violation of the provision of Section 13  of
      the SARFAESI Act, 2002 and Rules 8 and 9 of the Rules, 2002.


      18. We, therefore, have no hesitation in upholding  the  judgments  of
      the learned Single Judge and the Division Bench of the High  Court  to
      the effect that the sale effected in favour of the appellants on  18th
      December, 2006 is liable to be set aside.


      19. This now brings us to moulding the relief in  the  peculiar  facts
      and circumstances of this case.


      20.  As noticed earlier, Mr. Ashok Desai had emphasized on  behalf  of
      the appellants that no blame at all can be attributed  to  them.   The
      bank had decided to sell the immovable properties  to  the  appellants
      for Rs.1,23,10,000/- against  the  reserve  price  of  Rs.1,23,00,000.
      This is evident from the joint meeting of the bank held  with  Ge-Winn
      on 10th December, 2006, wherein it is observed as follows:-
           “Referring to the above in the presence of  the  undersigned  it
           has been decided to effect the sale to  M/s.  Susee  Automobiles
           Pvt.  Ltd.,  Madurai  and  Smt.  Nirmala  Jeyablan,   W/o   Shri
           Jayabaaalan, No.4,  S.V.  Nagar,  S.S.  Colony,  Madurai  for  a
           consideration of Rs.123.10 lakhs (Rupees one crore twenty  three
           lakhs and ten  thousand  only)  against  the  reserve  price  of
           Rs.123.00 lakhs and  issue  Sale  Certificate  for  registration
           under private treaty.”


      21. Mr. Desai had also pointed out that the borrowers -Respondent No.1
      and 2 had evaluated the property at Rs.117 lakhs.  The evaluation  was
      acknowledged  by  Respondent  Nos.  1  and  2  in  the  letter   dated
           28th August, 2006.  Therefore, the reserve price was fixed  based
      upon the aforesaid figures.  The appellants bought  the  property  for
      more  than  the  reserve  price.   The  appellants  paid  the   entire
      consideration within three days of the sale, i.e., on  15th  December,
      2006.  The Sale Deed was executed in their favour  on  20th  December,
      2006.   Possession  was  admittedly  delivered   on               20th
      December, 2006 also.  The appellants have  also  incurred  substantial
      loss as they have been  unnecessarily  dragged  into  litigation.   He
      pointed out that the  appellants  have  in  fact  incurred  losses  of
      Rs.3 crores as they were deprived of using the property in view of the
      interim orders passed by the High Court and they were forced  to  take
      other property on monthly rent of Rs.3 lakhs from  January  2007.  He,
      therefore, submitted that the proposal  made  by  the  appellants  for
      being permitted to keep the plot  adjacent  to  the  property  already
      owned by them,  be  accepted.   In  the  alternative,  learned  senior
      counsel submitted that the High Court has  unnecessarily  reduced  the
      amount of interest on the amount deposited by the appellants with  the
      bank would bear only 4% interest.  He submitted  that  the  appellants
      are entitled to 18% compound interest since the date  the  amount  was
      deposited till refund.


      22.    On the other hand, Mr. Dhruv Mehta pointed out that property of
      Respondent No.1 has been sold for a ridiculously  low  price,  as  the
      bank is interested only in regularizing the account of  the  borrower.
      He has submitted  that  respondent  Nos.  1  and  2  are  prepared  to
      compensate the appellants, to a reasonable  extent,  but  not  to  the
      extent claimed by Mr. Desai.


      23.     On the other hand, Mr. Vikas Singh has submitted that in  case
      the sale is to be set aside and the properties have to be returned  to
      the borrowers, the dues of the bank also have to be secured, which are
      now in the region of Rs.4 crores.


      24. We have considered the submissions made by the learned counsel for
      the parties.


      25.  Initially  on  our  suggestion,  respondent  Nos.  1  and  2  had
      quantified the amount in accordance with the directions issued by  the
      learned Single Judge.  The learned Single Judge had ordered refund  of
      Rs.1,41,00,000/-, (Representing Rs.1,23,10,000/-  towards  Sale  Price
      and Rs.18,90,000/- towards Stamp Duty with interest @9% per annum from
      April 2007).  However, since we had accepted  the  second  alternative
      (partially) of Mr. Ashok Desai, the appellants  and  respondents  have
      jointly submitted the following chart:-
|Amount quantified by the    |Interest@ 18%    |Total             |
|Learned Single Judge        |from April 2007  |                  |
|                            |to 15.06.2014    |                  |
|Rs. 1,41,00,000/-           |Rs. 1,84,00,500/-|Rs. 3,25,00,500/- |
|Rs. 1,23,10,000/- Sale Price|                 |                  |
|Rs. 18,90,000/- (Stamp Duty)|                 |                  |


      26.  Mr. Dhruv Mehta has stated that  Respondent  Nos.  1  and  2  are
      prepared to refund the sale amount paid  by  the  appellants  as  Sale
      Price together with 18% simple interest from 1st July, 2007 till  15th
      June, 2014. The total  amount  spent  on  Stamp  Duty  shall  also  be
      refunded to the appellants. The total amount  shall  be  paid  to  the
      appellants by 15th June, 2014.  Mr. Desai had  pointed  out  that  the
      amount deposited with the bank, which is said to be  lying  in  a  FDR
      Bearing 8.25% per annum ought to  be  refunded  by  the  bank  to  the
      appellants.  Upon the entire amount being repaid  to  the  appellants,
      the possession of the property purchased by  the  appellants  will  be
      delivered to the Respondent Nos.1   and  2.
      27.   Insofar as the submission of  Mr.  Vikas  Singh  learned  senior
      counsel  is concerned we are unable to accept the same  in  the  facts
      and circumstances of this case  It would be relevant to point out that
      the learned Single Judge of the High Court after holding that the sale
      in question was invalid, directed making  of  payments  by  respondent
      Nos. 1 and 2 to respondent No.3 bank with clear direction that on such
      payment, insofar as  the  bank  is  concerned  its  dues  shall  stand
      settled.    Not only respondent Nos. 1  and  2  made  the  payment  as
      directed which was  accepted  by  respondent  No.3  bank,  insofar  as
      respondent No.3 bank is concerned it even accepted the  said  judgment
      and did not file any appeal thereagainst.  Only  the  appellant  filed
      the appeal.  Though the order of the learned Single  Judge  about  the
      validity of the sale had been affirmed, the Division Bench  interfered
      with the other direction of the learned Single Judge which should  not
      have been done as bank had not challenged the  order  of  the  learned
      Single Judge.  We are, therefore, of the opinion that in the facts  of
      this case, once the payment is made to  the  appellant  by  respondent
      Nos.1 and 2 in the manner stated hereinafter, the  possession  of  the
      property shall be delivered to the respondent  Nos.1  and  2  with  no
      further liability towards the bank
      28.    In view of the aforesaid, we hold that the sale  in  favour  of
      the appellants dated 18th December, 2006 and the  subsequent  delivery
      of possession to the  appellants  is  null  and  void.   The  sale  is
      accordingly set aside. The appellants  are  directed  to  deliver  the
      possession of the property purchased by them under the Sale Deed dated
      20th December, 2006 to  Respondent  Nos.  1  and  2  immediately  upon
      receiving the entire amount as directed hereunder:-
      (i)   The State Bank of India – Respondent No.3 directed to refund the
           entire proceeds of the FDR in which the sale  consideration  was
           deposited together with accrued interest forthwith.
      (ii)  The Respondent Nos. 1 and 2 will ensure that the  entire  amount
           due to the appellants is paid on or before 15th June, 2014.
      (iii) Upon receipt of the  entire  amount,  the  possession  shall  be
           delivered to Respondent Nos. 1 and 2.
      29. With these observations, the appeals are disposed of with no order
      as to costs.


                                                             ….………………………..J.
                                                     [Surinder Singh Nijjar]






                                                              …………………………..J.
                                                                 [A.K.Sikri]
      New Delhi;
      March 14, 2014.




























                                                     -----------------------
[1]    [2010 (8) SCC 110]
[2]    2014 (2) Scale 331

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