1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO 000148 OF 2018
(@ Special Leave Petition (C )No 26428 of 2016)
DWARIKA PRASAD ..Appellant
VERSUS
STATE OF UTTAR PRADESH AND ORS ..Respondents
J U D G M E N T
Dr D Y CHANDRACHUD, J
1 The appellant was a guarantor to a loan sanctioned for educational
purposes to one Jitendra Kumar. Under the letter of sanction dated 20 June
2009, there was a ‘repayment holiday’ of 24 months (comprised of a grace
period of 12 months and an additional 12 months) or six months after the
borrower obtained a job, whichever was earlier. Repayment was to commence
from 20 June 2011. In order to secure the liability, the appellant created an
equitable mortgage in respect of an immovable property bearing Khasra
Nos.185, 186 and 188, Central Doon, Dehradun. At the request of the
appellant, the period prescribed for repayment was extended by two periods
REPORTABLE
2
each of six months (29 June 2011 to 20 December 2011 and again upto 30
June 2012). The loan was not repaid. The account was classified as a nonperforming
asset on 3 September 2013. Corporation bank (the second
respondent) which had disbursed the loan initiated proceedings by issuing a
recall notice under Section 13(2) of the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest Act, 2002 (‘SARFAESI
Act’) on 12 September 2013. Neither was a representation made nor was any
money deposited. The bank took symbolic possession on 14 February 2015.
The property was put to e-auction on 30 March 2015. No bid was received. A
second e-auction was scheduled on 30 January 2016. After the bank received
one bid in response to the auction, the appellant initially proposed to deposit
the amount of Rs 2,00,000 as against the dues of Rs.36 lakhs. This was not
acceptable. The proceedings before the DRT were listed on 1 February 2016
during the course of which the appellant stated that he would move a
redemption application within three days. The proceedings were adjourned to
4 February 2016. No stay was granted on the confirmation of the sale. The
sale was confirmed on 2 February 2016. The appellant moved a redemption
proposal on 3 February 2016. During the pendency of the proceedings before
the DRT, the appellant filed a writ petition before the Allahabad High Court (Writ
(C ) 10877 of 2016). The following order was passed on 15 March 2016 by a
Division Bench of the Allahabad High Court:
“Learned counsel for the petitioner upon instructions states
that the petitioner is ready and wiling to deposit the entire loan
amount within a month. He further submits that on or before
28.3.2016 the petitioner will deposit Rs. 7,00,000/- and the
3
remaining amount as may be intimated by the Bank would be
deposited on or before 30.4.2016
Put up this case as a fresh case on 28.3.2016. By the said date
the petitioner will fill a supplementary affidavit annexing proof
of receipt of deposit of Rs. 7,00,000/- with the respondent
Bank.
The execution of the sale deed will remain stayed till
28.3.2016”
From the record it is not in dispute that the appellant paid the amount of Rs
7,00,000 by demand drafts of the State Bank of India. However, on 28 March
2016 the attention of the court was drawn to the fact that the appellant had
already initiated proceedings before the DRT. The objection raised by the bank
to the maintainability of the writ petition being noted, the appellant sought leave
to withdraw the writ petition and to pursue the proceedings initiated by him
before the DRT. Hence, on 28 March 2016, the following order was passed:
“Sri Shashi Dhar Sahai, learned counsel for the respondentBank
on the basis of instructions has brought to our notice that
petitioner who is a guarantor to the loan has already initiated
proceedings before the Debt Recovery Tribunal, Lucknow for
the same relief which is being claimed in the writ petition and
same cause of action. An application for temporary relief has
also been moved before the Debt Recovery Tribunal,
Lucknow, which is pending.
Learned counsel for the petitioner when confronted with the
aforesaid facts sought leave of the Court to permit withdrawal
of the writ petition with the liberty to pursue before the Debts
Recovery Tribunal.
Prayer made is allowed.
Writ petition stands dismissed as withdrawn.”
4
After the dismissal of the writ petition, the sale certificate was issued on 5 April,
2016 in favour of the auction purchaser. After the confirmation of the sale the
bank executed a registered sale deed against the receipt of a total consideration
of Rs 54,41,500. The auction purchasers (respondent nos 3 and 4) took
possession of the property.
2 The appellant filed a writ petition before the Allahabad High Court
contending that since he was ready and willing to clear the outstanding dues of
the bank, he has a right of redemption to the mortgaged property and that the
auction sale without considering his offer for redemption was illegal and void.
The Division Bench of the High Court rejected the writ petition, placing reliance
on the provisions of Section 13(8) of the SARFAESI Act. The High Court held
that the exercise of the right of redemption is permissible before the execution
of the sale in favour of the auction purchaser. In this view, once the sale was
complete and was registered, it was not open to the appellant to exercise the
equity of redemption. The High Court has relied on the judgment of this Court
in Mathew Varghese v M. Amritha Kumar1
.
3 The learned counsel appearing on behalf of the appellant submits that
prior to the confirmation of the sale, the appellant voluntarily offered to defray
an amount of Rs 36,00,000 towards claim of the bank and indicated his
willingness to make an initial deposit of Rs 6,00,000. Though before the DRT
1
(2014) 5 SCC 610
5
the bank had on 1 February 2016 stated that the appellant should apply for
redemption, when the application was moved on 3 February 2016 it was
arbitrarily rejected. Thereafter in pursuance of the order of the High Court dated
15 March 2016, the appellant deposited a sum of Rs 7,00,000 and was ready
to deposit the balance within 30 days, the time stipulated in the order dated 15
March 2016. Hence it was urged that there was no reason or justification for
the bank to issue a certificate of sale on 12 April 2016. The fact that the
appellant did not obtain an interim order before the DRT was not a circumstance
within his control and the appellant demonstrated his willingness by making a
part payment of Rs 7,00,000.
4 On the other hand, the learned counsel appearing on behalf of the bank
and for the auction purchasers supported the order of the High Court. It was
urged that despite moving the DRT, the appellant sought relief before the
Allahabad High Court in proceeding under Article 226 of the Constitution. After
the High Court passed an order on 15 March 2016 recording the statement that
the appellant would deposit an amount of Rs 7,00,000 by 28 March 2016 and
the balance by 30 April 2016 the writ petition was withdrawn on 28 March 2016
with liberty to pursue the proceedings before the Tribunal. At no stage did the
Tribunal interdict the issuance of a certificate of sale. The sale certificate was
issued and was followed by the registration of the sale deed in April 2016. The
bank had advertised the proposed sale by auction and followed all requisite
procedure under law. The appellant failed to comply with the provisions of
6
Section 13(8). Having failed to do so, the appellant cannot assert an equity of
redemption upon the completion of the sale and the registration of the sale
deed.
5 Section 13(8) of the SARFAESI Act provides as follows:
“(8) If the dues of the secured creditor together with all
costs, charges and expenses incurred by him are tendered
to the secured creditor at any time before the date fixed for
sale or transfer, the secured asset shall not be sold or
transferred by the secured creditor, and no further step shall
be taken by him for transfer or sale of that secured asset.”
These provisions have fallen for interpretation before this Court in Mathew
Varghese (supra). Dwelling on Section 60 of the Transfer of the Property Act,
this Court held that the right of redemption is available to a mortgagor unless it
stands extinguished by an act of parties. The right of the mortgagor to redeem
the property survives until there has been a transfer of the mortgagor’s interest
by a registered instrument of sale. Applying these principles in the context of
the SARFAESI Act this Court held as follows:
“39. When we apply the above principles stated with
reference to Section 60 of the T.P. Act in respect of a
secured interest in a secured asset in favour of the secured
creditor under the provisions of the SARFAESI Act and the
relevant Rules applicable, under Section 13(1), a free hand
is given to a secured creditor to resort to a sale without the
intervention of the Court or Tribunal. However, under
Section 13(8), it is clearly stipulated that the mortgagor, i.e.
the borrower, who is otherwise called as a debtor, retains
his full right to redeem the property by tendering all the
dues to the secured creditor at any time before the date
fixed for sale or transfer. Under Sub-section (8) of Section
13, as noted earlier, the secured asset should not be sold
7
or transferred by the secured creditor when such tender is
made by the borrower at the last moment before the sale
or transfer. The said Sub-section also states that no further
step should be taken by the secured creditor for transfer or
sale of that secured asset. We find no reason to state that
the principles laid down with reference to Section 60 of the
T.P. Act, which is general in nature in respect of all
mortgages, can have no application in respect of a secured
interest in a secured asset created in favour of a secured
creditor, as all the above-stated principles apply in all fours
in respect of a transaction as between the debtor
and secured creditor under the provisions of the
SARFAESI Act”.
6 In the present case, the appellant failed to comply with the provisions of
Section 13(8). The statute mandates that it is only where the dues of the secured
creditor are tendered together with costs, charges and expenses before the date
fixed for sale or transfer that the secured asset is not to be sold or transferred.
The appellant was aware of the proceedings initiated by the bank for asserting
its right to recover its dues by selling the property. The appellant moved the
DRT in Securitization Application 176 of 2015. During the pendency of those
proceedings, orders were passed by the Tribunal on 1 February 2016 and 3
February 2016. The appellant moved the Allahabad High Court which by its
order dated 9 March 2016 restrained the bank and the auction purchaser from
executing the sale deed until 15 March 2016. The stay was extended till 28
March 2016 by which date the appellant was to deposit an amount of Rs
7,00,000. The balance was required to be deposited by 30 April 2016. While
appellant deposited an amount of Rs 7,00,000 with the bank, he failed to deposit
the balance in accordance with the provisions of Section 13(8). Even after the
writ proceedings before the High Court was withdrawn, the appellant did not
8
deposit the balance due together with the costs, charges and expenses. The
sale was confirmed, a sale certificate was issued and a registered sale deed
was executed on 12 April 2016. The appellant failed to ensure compliance with
Section 13(8). The right to redemption stands extinguished on the execution of
the registered sale deed. This is also the view which has been expressed in the
judgment in Mathew Varghese (supra).
7 The appellant, is however, entitled to a refund of his deposit of Rs
7,00,000 with interest at 9% per annum from the date of deposit till payment.
The bank has in its counter affidavit stated that it was at all times ready and
willing to do so. The bank shall refund this amount of Rs 7,00,000 with interest
at 9% per annum within 8 weeks. For the above reasons, save and except for
the above direction to refund Rs 7,00,000 with interest, we find no merit in the
appeal. The appeal shall accordingly stand disposed of. There shall be no order
as to costs.
...........................................CJI
[DIPAK MISRA]
...........................................J
[A M KHANWILKAR]
...........................................J
[Dr D Y CHANDRACHUD]
New Delhi;
March 06, 2018
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO 000148 OF 2018
(@ Special Leave Petition (C )No 26428 of 2016)
DWARIKA PRASAD ..Appellant
VERSUS
STATE OF UTTAR PRADESH AND ORS ..Respondents
J U D G M E N T
Dr D Y CHANDRACHUD, J
1 The appellant was a guarantor to a loan sanctioned for educational
purposes to one Jitendra Kumar. Under the letter of sanction dated 20 June
2009, there was a ‘repayment holiday’ of 24 months (comprised of a grace
period of 12 months and an additional 12 months) or six months after the
borrower obtained a job, whichever was earlier. Repayment was to commence
from 20 June 2011. In order to secure the liability, the appellant created an
equitable mortgage in respect of an immovable property bearing Khasra
Nos.185, 186 and 188, Central Doon, Dehradun. At the request of the
appellant, the period prescribed for repayment was extended by two periods
REPORTABLE
2
each of six months (29 June 2011 to 20 December 2011 and again upto 30
June 2012). The loan was not repaid. The account was classified as a nonperforming
asset on 3 September 2013. Corporation bank (the second
respondent) which had disbursed the loan initiated proceedings by issuing a
recall notice under Section 13(2) of the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest Act, 2002 (‘SARFAESI
Act’) on 12 September 2013. Neither was a representation made nor was any
money deposited. The bank took symbolic possession on 14 February 2015.
The property was put to e-auction on 30 March 2015. No bid was received. A
second e-auction was scheduled on 30 January 2016. After the bank received
one bid in response to the auction, the appellant initially proposed to deposit
the amount of Rs 2,00,000 as against the dues of Rs.36 lakhs. This was not
acceptable. The proceedings before the DRT were listed on 1 February 2016
during the course of which the appellant stated that he would move a
redemption application within three days. The proceedings were adjourned to
4 February 2016. No stay was granted on the confirmation of the sale. The
sale was confirmed on 2 February 2016. The appellant moved a redemption
proposal on 3 February 2016. During the pendency of the proceedings before
the DRT, the appellant filed a writ petition before the Allahabad High Court (Writ
(C ) 10877 of 2016). The following order was passed on 15 March 2016 by a
Division Bench of the Allahabad High Court:
“Learned counsel for the petitioner upon instructions states
that the petitioner is ready and wiling to deposit the entire loan
amount within a month. He further submits that on or before
28.3.2016 the petitioner will deposit Rs. 7,00,000/- and the
3
remaining amount as may be intimated by the Bank would be
deposited on or before 30.4.2016
Put up this case as a fresh case on 28.3.2016. By the said date
the petitioner will fill a supplementary affidavit annexing proof
of receipt of deposit of Rs. 7,00,000/- with the respondent
Bank.
The execution of the sale deed will remain stayed till
28.3.2016”
From the record it is not in dispute that the appellant paid the amount of Rs
7,00,000 by demand drafts of the State Bank of India. However, on 28 March
2016 the attention of the court was drawn to the fact that the appellant had
already initiated proceedings before the DRT. The objection raised by the bank
to the maintainability of the writ petition being noted, the appellant sought leave
to withdraw the writ petition and to pursue the proceedings initiated by him
before the DRT. Hence, on 28 March 2016, the following order was passed:
“Sri Shashi Dhar Sahai, learned counsel for the respondentBank
on the basis of instructions has brought to our notice that
petitioner who is a guarantor to the loan has already initiated
proceedings before the Debt Recovery Tribunal, Lucknow for
the same relief which is being claimed in the writ petition and
same cause of action. An application for temporary relief has
also been moved before the Debt Recovery Tribunal,
Lucknow, which is pending.
Learned counsel for the petitioner when confronted with the
aforesaid facts sought leave of the Court to permit withdrawal
of the writ petition with the liberty to pursue before the Debts
Recovery Tribunal.
Prayer made is allowed.
Writ petition stands dismissed as withdrawn.”
4
After the dismissal of the writ petition, the sale certificate was issued on 5 April,
2016 in favour of the auction purchaser. After the confirmation of the sale the
bank executed a registered sale deed against the receipt of a total consideration
of Rs 54,41,500. The auction purchasers (respondent nos 3 and 4) took
possession of the property.
2 The appellant filed a writ petition before the Allahabad High Court
contending that since he was ready and willing to clear the outstanding dues of
the bank, he has a right of redemption to the mortgaged property and that the
auction sale without considering his offer for redemption was illegal and void.
The Division Bench of the High Court rejected the writ petition, placing reliance
on the provisions of Section 13(8) of the SARFAESI Act. The High Court held
that the exercise of the right of redemption is permissible before the execution
of the sale in favour of the auction purchaser. In this view, once the sale was
complete and was registered, it was not open to the appellant to exercise the
equity of redemption. The High Court has relied on the judgment of this Court
in Mathew Varghese v M. Amritha Kumar1
.
3 The learned counsel appearing on behalf of the appellant submits that
prior to the confirmation of the sale, the appellant voluntarily offered to defray
an amount of Rs 36,00,000 towards claim of the bank and indicated his
willingness to make an initial deposit of Rs 6,00,000. Though before the DRT
1
(2014) 5 SCC 610
5
the bank had on 1 February 2016 stated that the appellant should apply for
redemption, when the application was moved on 3 February 2016 it was
arbitrarily rejected. Thereafter in pursuance of the order of the High Court dated
15 March 2016, the appellant deposited a sum of Rs 7,00,000 and was ready
to deposit the balance within 30 days, the time stipulated in the order dated 15
March 2016. Hence it was urged that there was no reason or justification for
the bank to issue a certificate of sale on 12 April 2016. The fact that the
appellant did not obtain an interim order before the DRT was not a circumstance
within his control and the appellant demonstrated his willingness by making a
part payment of Rs 7,00,000.
4 On the other hand, the learned counsel appearing on behalf of the bank
and for the auction purchasers supported the order of the High Court. It was
urged that despite moving the DRT, the appellant sought relief before the
Allahabad High Court in proceeding under Article 226 of the Constitution. After
the High Court passed an order on 15 March 2016 recording the statement that
the appellant would deposit an amount of Rs 7,00,000 by 28 March 2016 and
the balance by 30 April 2016 the writ petition was withdrawn on 28 March 2016
with liberty to pursue the proceedings before the Tribunal. At no stage did the
Tribunal interdict the issuance of a certificate of sale. The sale certificate was
issued and was followed by the registration of the sale deed in April 2016. The
bank had advertised the proposed sale by auction and followed all requisite
procedure under law. The appellant failed to comply with the provisions of
6
Section 13(8). Having failed to do so, the appellant cannot assert an equity of
redemption upon the completion of the sale and the registration of the sale
deed.
5 Section 13(8) of the SARFAESI Act provides as follows:
“(8) If the dues of the secured creditor together with all
costs, charges and expenses incurred by him are tendered
to the secured creditor at any time before the date fixed for
sale or transfer, the secured asset shall not be sold or
transferred by the secured creditor, and no further step shall
be taken by him for transfer or sale of that secured asset.”
These provisions have fallen for interpretation before this Court in Mathew
Varghese (supra). Dwelling on Section 60 of the Transfer of the Property Act,
this Court held that the right of redemption is available to a mortgagor unless it
stands extinguished by an act of parties. The right of the mortgagor to redeem
the property survives until there has been a transfer of the mortgagor’s interest
by a registered instrument of sale. Applying these principles in the context of
the SARFAESI Act this Court held as follows:
“39. When we apply the above principles stated with
reference to Section 60 of the T.P. Act in respect of a
secured interest in a secured asset in favour of the secured
creditor under the provisions of the SARFAESI Act and the
relevant Rules applicable, under Section 13(1), a free hand
is given to a secured creditor to resort to a sale without the
intervention of the Court or Tribunal. However, under
Section 13(8), it is clearly stipulated that the mortgagor, i.e.
the borrower, who is otherwise called as a debtor, retains
his full right to redeem the property by tendering all the
dues to the secured creditor at any time before the date
fixed for sale or transfer. Under Sub-section (8) of Section
13, as noted earlier, the secured asset should not be sold
7
or transferred by the secured creditor when such tender is
made by the borrower at the last moment before the sale
or transfer. The said Sub-section also states that no further
step should be taken by the secured creditor for transfer or
sale of that secured asset. We find no reason to state that
the principles laid down with reference to Section 60 of the
T.P. Act, which is general in nature in respect of all
mortgages, can have no application in respect of a secured
interest in a secured asset created in favour of a secured
creditor, as all the above-stated principles apply in all fours
in respect of a transaction as between the debtor
and secured creditor under the provisions of the
SARFAESI Act”.
6 In the present case, the appellant failed to comply with the provisions of
Section 13(8). The statute mandates that it is only where the dues of the secured
creditor are tendered together with costs, charges and expenses before the date
fixed for sale or transfer that the secured asset is not to be sold or transferred.
The appellant was aware of the proceedings initiated by the bank for asserting
its right to recover its dues by selling the property. The appellant moved the
DRT in Securitization Application 176 of 2015. During the pendency of those
proceedings, orders were passed by the Tribunal on 1 February 2016 and 3
February 2016. The appellant moved the Allahabad High Court which by its
order dated 9 March 2016 restrained the bank and the auction purchaser from
executing the sale deed until 15 March 2016. The stay was extended till 28
March 2016 by which date the appellant was to deposit an amount of Rs
7,00,000. The balance was required to be deposited by 30 April 2016. While
appellant deposited an amount of Rs 7,00,000 with the bank, he failed to deposit
the balance in accordance with the provisions of Section 13(8). Even after the
writ proceedings before the High Court was withdrawn, the appellant did not
8
deposit the balance due together with the costs, charges and expenses. The
sale was confirmed, a sale certificate was issued and a registered sale deed
was executed on 12 April 2016. The appellant failed to ensure compliance with
Section 13(8). The right to redemption stands extinguished on the execution of
the registered sale deed. This is also the view which has been expressed in the
judgment in Mathew Varghese (supra).
7 The appellant, is however, entitled to a refund of his deposit of Rs
7,00,000 with interest at 9% per annum from the date of deposit till payment.
The bank has in its counter affidavit stated that it was at all times ready and
willing to do so. The bank shall refund this amount of Rs 7,00,000 with interest
at 9% per annum within 8 weeks. For the above reasons, save and except for
the above direction to refund Rs 7,00,000 with interest, we find no merit in the
appeal. The appeal shall accordingly stand disposed of. There shall be no order
as to costs.
...........................................CJI
[DIPAK MISRA]
...........................................J
[A M KHANWILKAR]
...........................................J
[Dr D Y CHANDRACHUD]
New Delhi;
March 06, 2018
