SARFAESI Act, 2002 — Security Interest (Enforcement) Rules, 2002 — Rule 9(2), Second Proviso — Public auction of secured asset — Highest bid equal to reserve price — Confirmation of sale — Consent of borrower and secured creditor — Mandatory requirement.

 AP High Court Held That 

SARFAESI Act, 2002 — Security Interest (Enforcement) Rules, 2002 — Rule 9(2), Second Proviso — Public auction of secured asset — Highest bid equal to reserve price — Confirmation of sale — Consent of borrower and secured creditor — Mandatory requirement.

When Authorised Officer conducting auction of secured asset fails to secure bid higher than reserve price and highest bid received is exactly equal to reserve price, sale cannot be confirmed without obtaining consent of borrower and secured creditor as contemplated under second proviso to Rule 9(2) of Security Interest (Enforcement) Rules, 2002. Expression “at such price” occurring in second proviso refers to reserve price itself. Confirmation of sale at reserve price without consent of borrower is contrary to statutory mandate and renders sale invalid.
(Paras 11 to 16)

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Statutory Interpretation — Proviso — Harmonious construction — Reserve price — Interpretation of “at such price”.

Rule 9(2) and both provisos appended thereto are required to be interpreted harmoniously. First proviso prohibits confirmation of sale below reserve price, while second proviso governs situation where bid received is not higher than reserve price. Interpretation that expression “at such price” means below reserve price is contrary to statutory scheme and legislative intent.
(Paras 15 and 16)

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FACTS OF THE CASE

1. Secured creditor initiated proceedings under SARFAESI Act for recovery of loan dues by bringing mortgaged secured asset to sale in public auction.
   
2. Reserve price for secured asset was fixed at Rs.3,48,00,000/- and in auction proceedings only one bidder participated.
   
3. Sole bidder offered amount exactly equal to reserve price and no bid higher than reserve price was received in auction.
   
4. Authorised Officer confirmed sale in favour of auction purchaser at reserve price without obtaining consent of borrower.
   
5. Borrower challenged validity of sale before Debts Recovery Tribunal under Section 17 of SARFAESI Act contending that second proviso to Rule 9(2) mandated borrower’s consent where sale was confirmed at reserve price after failure to secure higher bid.
   
6. Debts Recovery Tribunal accepted said contention and set aside sale. Debts Recovery Appellate Tribunal affirmed said finding.
   
7. Bank and auction purchaser separately challenged orders of DRT and DRAT before High Court.
   

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ANALYSIS OF FACTS AND LAW

The High Court examined scope and interpretation of Rule 9(2) of the Security Interest (Enforcement) Rules, 2002 along with its two provisos.

The Court noticed cleavage of judicial opinion among various High Courts regarding interpretation of the second proviso to Rule 9(2). While Madras and Delhi High Courts held borrower’s consent mandatory for confirmation of sale at reserve price, Kolkata and Kerala High Courts had taken contrary view.

After analyzing statutory scheme, the Court identified three distinct situations contemplated under Rule 9(2):
(i) where sale price exceeds reserve price;
(ii) where sale price is below reserve price; and
(iii) where sale price is exactly equal to reserve price.

The Court held that second proviso specifically governs third situation, namely where Authorised Officer fails to obtain price higher than reserve price. In such circumstances, sale may be confirmed only with consent of borrower and secured creditor.

Rejecting contrary interpretation, the Court held that expression “at such price” necessarily means reserve price itself and not a price below reserve price. Any other interpretation would conflict with first proviso which prohibits confirmation of sale below reserve price.

The Court further emphasized that statutory rules framed under SARFAESI Act possess binding statutory force and where law prescribes a particular mode for doing an act, same must be strictly complied with.

Consequently, confirmation of sale at reserve price without borrower’s consent was held invalid.

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RATIO DECIDENDI

Under the second proviso to Rule 9(2) of the Security Interest (Enforcement) Rules, 2002, where the Authorised Officer fails to obtain a bid higher than the reserve price and the highest bid received is exactly equal to the reserve price, sale of the secured asset can be confirmed only with consent of borrower and secured creditor, and confirmation of sale at reserve price without such consent is contrary to the statutory mandate and invalid in law.
(Paras 11 to 16)

SARFAESI Act, 2002 — Security Interest (Enforcement) Rules, 2002 — R.9(2), Second Proviso — Sale of secured asset — Reserve price — Authorised Officer failing to secure bid higher than reserve price — Confirmation of sale exactly at reserve price — Consent of borrower — Mandatory requirement.

 AP High Court Held that 

SARFAESI Act, 2002 — Security Interest (Enforcement) Rules, 2002 — R.9(2), Second Proviso — Sale of secured asset — Reserve price — Authorised Officer failing to secure bid higher than reserve price — Confirmation of sale exactly at reserve price — Consent of borrower — Mandatory requirement.

Where Authorised Officer in public auction fails to obtain bid higher than reserve price and sole bid received is exactly equal to reserve price, sale of secured asset cannot be confirmed without consent of borrower and secured creditor as mandated under second proviso to Rule 9(2) of Security Interest (Enforcement) Rules, 2002. Expression “at such price” occurring in second proviso refers to reserve price itself and not a price below reserve price. Confirmation of sale at reserve price without consent of borrower is contrary to statutory mandate and renders sale invalid.
(Paras 11 to 16)

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Statutory Interpretation — Proviso — Harmonious construction — SARFAESI Rules.

Rule 9(2) and both provisos appended thereto are required to be read harmoniously. First proviso prohibits confirmation of sale below reserve price, while second proviso governs situation where no price higher than reserve price is obtained. Statutory proviso being mandatory in nature must be strictly complied with.
(Paras 13 to 16)

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FACTS OF THE CASE

1. Secured creditor initiated proceedings under the SARFAESI Act against secured asset belonging to borrower consequent upon default in repayment of loan advanced to partnership firm.
   
2. Secured asset was brought to sale in public auction after fixation of reserve price at Rs.3,48,00,000/-.
   
3. In auction proceedings, only one bidder participated and offered bid exactly equal to reserve price. There was no bid higher than reserve price.
   
4. Authorised Officer confirmed sale in favour of sole bidder at reserve price without obtaining consent of borrower.
   
5. Borrower challenged validity of sale before Debts Recovery Tribunal contending that under second proviso to Rule 9(2) of the Security Interest (Enforcement) Rules, consent of borrower was mandatory where Authorised Officer failed to secure price higher than reserve price.
   
6. Debts Recovery Tribunal accepted contention and set aside sale. Appeal before Debts Recovery Appellate Tribunal was dismissed affirming said view.
   
7. Bank and auction purchaser separately approached High Court challenging legality of orders passed by DRT and DRAT.
   

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ANALYSIS OF FACTS AND LAW

The principal issue before the High Court concerned interpretation of the second proviso to Rule 9(2) of the Security Interest (Enforcement) Rules, 2002.

The Court noticed divergence of judicial opinion amongst various High Courts regarding meaning of expression “at such price” used in second proviso to Rule 9(2).

The Court analyzed Rule 9(2) and identified three distinct situations contemplated by statutory scheme:

1. where sale price obtained is higher than reserve price;
2. where sale price is below reserve price;
3. where sale price obtained is exactly equal to reserve price.
   

The Court held that second proviso specifically governs third situation, namely where Authorised Officer fails to obtain price higher than reserve price. In such circumstances, confirmation of sale at reserve price can be effected only with consent of borrower and secured creditor.

Rejecting contrary interpretation adopted by Kolkata High Court and Kerala High Court, the Court held that expression “at such price” necessarily refers to reserve price itself and not to any amount below reserve price.

The judgment emphasized that statutory rules framed under SARFAESI Act possess mandatory force and where statute prescribes that a thing shall be done in a particular manner, it must be done strictly in that manner alone.

The Court therefore concluded that confirmation of sale at reserve price without borrower’s consent was contrary to mandatory statutory requirement and consequently invalid.

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RATIO DECIDENDI

Under the second proviso to Rule 9(2) of the Security Interest (Enforcement) Rules, 2002, where the Authorised Officer conducting auction of secured asset fails to obtain a bid higher than the reserve price and the highest bid received is exactly equal to the reserve price, confirmation of sale can be effected only with consent of borrower and secured creditor, and any confirmation of sale at reserve price without such consent is invalid and contrary to the statutory mandate.
(Paras 11 to 16)

ADVOCATEMMMOHAN: Tender — Government Contracts — Earnest Money Depo...

ADVOCATEMMMOHAN: Tender — Government Contracts — Earnest Money Depo...: advocatemmmohan APEX COURT HELD THAT  Tender — Government Contracts — Earnest Money Deposit — Tender conditions — Interpretation — Out-of-St...

Tender — Government Contracts — Earnest Money Deposit — Tender conditions — Interpretation — Out-of-State bidder furnishing Fixed Deposit Receipt instead of Demand Draft — Tender clauses employing expression “may submit” — Condition held directory and not mandatory — Fixed Deposit Receipt constituting approved interest-bearing security — Disqualification of bidder by treating Demand Draft as compulsory — Unsustainable.

Tender conditions provided different approved modes for furnishing Earnest Money Deposit. Clause relating to out-of-State bidders employed expression “may submit” Demand Draft. Bidder furnished Fixed Deposit Receipt/interest-bearing security in favour of Tendering Authority. High Court treated furnishing of Demand Draft as mandatory and disqualified bidder. Supreme Court held that tender clauses were merely enabling and directory in nature and not mandatory. Fixed Deposit Receipt constituted an approved interest-bearing security within meaning of tender conditions. Court cannot import technical disqualifications not expressly contained in tender document. Disqualification set aside and qualification restored.
(Paras 7 to 10)

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FACTS OF THE CASE

1. A tender was floated by the Water Resources Department for execution of a construction project of substantial value. The tender process contemplated submission of bids in three envelopes, including technical and financial qualifications.
   
2. Under the tender conditions, Earnest Money Deposit (EMD) was required to be furnished in approved forms specified in Clause 2.13 of the tender document.
   
3. The bidder, being an out-of-State participant, furnished a Fixed Deposit Receipt/interest-bearing security in favour of the Executive Engineer concerned instead of a Demand Draft.
   
4. The Tendering Authority initially found the bidder qualified. However, the High Court subsequently disqualified the bidder holding that out-of-State bidders were mandatorily required to furnish EMD only through Demand Draft.
   
5. Before the Supreme Court, it was contended that the tender conditions used permissive language and recognized alternative approved interest-bearing securities, thereby making submission of Demand Draft optional and not mandatory.
   
6. During pendency of proceedings, a subsequent disqualification relating to another stage of technical scrutiny also arose, though the same was not directly under challenge before the Supreme Court.
   

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ANALYSIS OF FACTS AND LAW

The Supreme Court undertook a textual interpretation of the tender conditions governing submission of Earnest Money Deposit. The Court focused particularly upon Clauses 2.13 and 2.15 of the tender document.

The Court observed that the clause applicable to out-of-State bidders repeatedly employed the expression “may submit” while referring to submission of Demand Draft. The use of permissive language indicated that the provision was enabling and directory rather than compulsory.

The Court further noticed that the tender conditions themselves recognized “Approved Interest Bearing Security” as one of the valid forms of EMD. A Fixed Deposit Receipt clearly possessed the character of an interest-bearing security and therefore substantially satisfied the tender requirement.

The judgment emphasizes that in tender jurisprudence, Courts cannot create additional disqualifications by interpretative expansion when the tender document itself does not prescribe such mandatory exclusion. Judicial review must remain confined to the actual stipulations contained in the contract.

The Supreme Court therefore held that the High Court erred in converting an optional mode of payment into a compulsory condition and thereby illegally excluding the bidder from consideration.

The Court also adopted an equitable approach regarding the subsequent disqualification arising at Envelope-B stage by permitting the bidder to approach the authorities afresh after restoration of qualification under Envelope-A.

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RATIO DECIDENDI

Where tender conditions governing Earnest Money Deposit employ permissive language such as “may submit” and simultaneously recognize multiple approved forms of security, furnishing of Fixed Deposit Receipt/interest-bearing security by an out-of-State bidder constitutes substantial compliance with the tender conditions, and Courts cannot treat submission of Demand Draft as a mandatory requirement by importing a disqualification not expressly contained in the tender document.
(Paras 7 to 10)

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HELD

• Judgment of the High Court set aside.
• Bidder’s qualification with respect to Envelope-A restored.
• Liberty granted to approach Tendering Authority regarding subsequent Envelope-B disqualification.
• Supreme Court refrained from adjudicating merits of Envelope-B disqualification.

Where disputes concerning immovable property substantially involve contested questions of title, ownership and possession, and no prima facie cognizable criminal offence is disclosed upon preliminary enquiry, police authorities may legitimately treat the matter as civil in nature, and the High Court in exercise of jurisdiction under Article 226 ordinarily will relegate the parties to appropriate civil remedies rather than compel initiation of criminal proceedings.

 

AP HIGH COURT HELD THAT 

Constitution of India – Article 226 – Writ of Mandamus – Police inaction complaint – Land dispute involving allegations of trespass and crop destruction – Distinction between civil dispute and cognizable criminal offence – Scope of judicial interference in police enquiry where title and possession are disputed.

The petitioner claimed ownership and possession over Ac.2.74 cents of agricultural land in Survey No.43/23 and alleged forcible interference, trespass and destruction of Eucalyptus crop by unofficial respondents. Complaints were submitted to police authorities seeking initiation of criminal proceedings. The police conducted preliminary enquiry and opined that the dispute pertained to title, ownership and possession, and was civil in nature. The High Court disposed of the writ petition granting liberty to approach the competent civil court.

Held:

A. Where dispute substantially relates to title, ownership and possession of immovable property, police authorities may treat matter as civil dispute in absence of prima facie cognizable offence.

The respondent authorities, upon preliminary enquiry, found pending civil disputes regarding possession and title over the subject property and therefore declined criminal intervention. Paras 4-5.

B. Writ jurisdiction under Article 226 is ordinarily not invoked for adjudication of disputed questions relating to possession and title over immovable property.

The Court accepted the submission that adjudication of competing rights over land falls within domain of competent civil court. Para 5.

C. Mere allegations of interference in property disputes do not automatically warrant criminal prosecution when underlying dispute is essentially civil.

The Court did not find grounds to compel initiation of criminal proceedings merely because complaints alleging trespass and interference were submitted. Paras 2 and 4.

D. Liberty reserved to seek appropriate civil remedies.

While disposing of the writ petition, the Court expressly preserved liberty of the petitioner to approach the competent civil court in case of interference with possession. Para 5.

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ANALYSIS OF LAW

1. Scope of Mandamus Against Police Authorities

The petitioner sought:

• direction to police authorities,
• initiation of criminal proceedings,
• protection of possession.

The High Court examined whether:

• police inaction amounted to arbitrary refusal,
  or
• matter primarily involved civil adjudication.

The Court accepted the State’s position that:
the dispute related to:

• title,
• ownership,
• possession.

Thus:
criminal process could not be mechanically invoked.

Paras 1 and 4.

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2. Civil Dispute versus Criminal Proceedings

The judgment reiterates the settled principle that:
property disputes involving competing claims over possession and ownership ordinarily require civil adjudication.

The Court noted:

• mutation proceedings were pending,
• earlier writ proceedings existed,
• parties disputed possession and entitlement.

Therefore:
the police were justified in treating the matter as predominantly civil.

Important principle:

Criminal law cannot become substitute for civil adjudication of land disputes.

Paras 2 and 4.

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3. Limited Scope of Article 226 in Property Disputes

The Court refrained from:

• adjudicating title,
• deciding possession,
• granting substantive injunctive relief.

Instead, the Court relegated parties to:

• competent civil court.

Jurisdictional principle:

Disputed questions of fact concerning immovable property are generally unsuitable for determination under Article 226.

Para 5.

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4. Police Enquiry and Prima Facie Satisfaction

The State authorities submitted that:

• preliminary enquiry was conducted,
• no prima facie cognizable offence emerged,
• matter required civil adjudication.

The Court recorded and accepted this submission.

Legal significance:

Police are not bound to register criminal proceedings in every property-related complaint where essential dispute concerns civil rights.

Para 4.

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ANALYSIS OF FACTS

1. Petitioner’s Claim

The petitioner claimed:

• ownership through registered sale deed,
• possession for nearly 50 years,
• cultivation of commercial crops.

Para 2.

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2. Alleged Interference

According to petitioner:

• unofficial respondents trespassed,
• destroyed Eucalyptus crop,
• attempted forcible dispossession,
• threatened petitioner repeatedly.

Complaints dated:

• 10.12.2025,
• 21.12.2025,
• 27.03.2026

were allegedly ignored.

Para 2.

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3. State’s Stand

The State submitted:

• preliminary enquiry was conducted,
• civil disputes were pending,
• no prima facie cognizable offence was disclosed,
• dispute involved title and possession.

Para 4.

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4. Court’s Final Course

The High Court:

• disposed of writ petition,
• declined coercive direction against police,
• reserved liberty to seek civil remedies.

Para 5.

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RATIO DECIDENDI

Where disputes concerning immovable property substantially involve contested questions of title, ownership and possession, and no prima facie cognizable criminal offence is disclosed upon preliminary enquiry, police authorities may legitimately treat the matter as civil in nature, and the High Court in exercise of jurisdiction under Article 226 ordinarily will relegate the parties to appropriate civil remedies rather than compel initiation of criminal proceedings.

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Final Holding

The High Court disposed of the writ petition after recording the State’s submission that the dispute was civil in nature and granted liberty to the petitioner to approach the competent civil court for appropriate relief in the event of interference with possession.

Criminal Law – Bail under UAPA and NDPS Act – Long incarceration – Speedy trial under Article 21 – Scope of Section 43-D(5) UAPA and Section 37 NDPS Act – Binding effect of larger Bench precedents – Whether statutory embargo overrides constitutional liberty – Grant of bail despite serious allegations of narco-terrorism.

 apex court held that 

Criminal Law – Bail under UAPA and NDPS Act – Long incarceration – Speedy trial under Article 21 – Scope of Section 43-D(5) UAPA and Section 37 NDPS Act – Binding effect of larger Bench precedents – Whether statutory embargo overrides constitutional liberty – Grant of bail despite serious allegations of narco-terrorism.

The appellant was prosecuted under the provisions of the Unlawful Activities (Prevention) Act, 1967, NDPS Act and IPC on allegations of narco-terrorism, terror funding and association with proscribed terrorist organisations. He remained in custody from 11.06.2020. Chargesheet was filed in 2020, charges were framed in 2023 and more than 350 prosecution witnesses remained to be examined. Bail was denied by the Special NIA Court and High Court primarily relying upon Section 43-D(5) UAPA. The Supreme Court examined the constitutional limitations on statutory restrictions governing bail under special statutes.

Held:

A. Constitutional courts retain power to grant bail notwithstanding statutory embargo under Section 43-D(5) UAPA.

The restrictions imposed by Section 43-D(5) UAPA do not oust the jurisdiction of constitutional courts to grant bail where continued incarceration and delay in trial infringe Article 21 of the Constitution. Paras 21-24.

B. Right to speedy trial is integral facet of Article 21 even in cases involving terrorism and national security.

Seriousness of allegations cannot justify indefinite incarceration of an undertrial where trial is unlikely to conclude within a reasonable period. Delay resulting in prolonged pre-trial detention converts detention into punishment. Paras 19, 21-25.

C. Rigours of special statutes “melt down” where trial is unlikely to conclude within reasonable time.

Reaffirming Union of India v. K.A. Najeeb, the Court held that statutory restrictions under special enactments cannot be used to effect wholesale denial of constitutional guarantees. Paras 21-23.

D. Smaller Benches cannot dilute or circumvent binding larger Bench precedents.

The Court criticised attempts by smaller Benches to narrow the effect of larger Bench rulings without express disagreement or reference to larger Bench. Judicial discipline requires adherence to binding precedent. Paras 2, 26-27.

E. Bail jurisprudence under UAPA must harmonise national security concerns with constitutional liberty.

Though allegations relating to terrorism and narco-funding are grave, constitutional courts are required to balance:

• societal security,
• prosecutorial interests,
• personal liberty,
• speedy trial guarantees.

Paras 19-24.

F. Long incarceration coupled with uncertain completion of trial justifies grant of bail.

The Court noted:

• custody exceeding five years and nine months,
• framing of charge after substantial delay,
• over 350 witnesses yet to be examined,
• absence of likelihood of early conclusion of trial.

Such circumstances justified constitutional intervention. Paras 9, 21-25.

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ANALYSIS OF LAW

1. Constitutional Override over Statutory Bail Restrictions

The judgment is a major reaffirmation of constitutional supremacy in bail jurisprudence under special criminal statutes.

The Court examined:

• Section 43-D(5) UAPA,
• Section 37 NDPS Act,
• Article 21.

The Court held:
statutory restrictions do not eclipse constitutional guarantees.

The Court reaffirmed:
constitutional courts retain power to grant bail where:

• incarceration becomes oppressive,
• trial is unduly delayed,
• Article 21 stands violated.

Central constitutional principle:

Procedure established by law cannot become mechanism for indefinite pre-trial punishment.

Paras 21-24.

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2. Reaffirmation of K.A. Najeeb

The Court strongly reaffirmed:
Union of India v. K.A. Najeeb

The judgment emphasised the famous principle from Najeeb:

“the rigours of such provisions will melt down…”

where:

• trial is unlikely to conclude within reasonable time,
• incarceration already undergone is substantial.

The Court clarified:
this was not:

• equitable relaxation,
• fact-specific indulgence,
  but
• binding constitutional doctrine.

Paras 21-23.

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3. Criticism of Judicial Dilution by Smaller Benches

A striking feature of the judgment is its discussion on precedent discipline.

The Court specifically examined:
Gurwinder Singh v. State of Punjab

and observed that:
a smaller Bench cannot:

• dilute,
• distinguish away,
• circumvent

binding larger Bench precedent without reference.

Important doctrinal observation:

Judicial discipline forms part of rule of law.

The Court held:
if disagreement exists,
proper course is:

• reference to larger Bench,
  not
• indirect narrowing.

Paras 2, 26-27.

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4. Article 21 and Speedy Trial

The Court reiterated:
speedy trial is inseparable from:

• personal liberty,
• fair procedure,
• constitutional dignity.

The Court recognised that:
undertrials under special statutes often suffer:

• indefinite incarceration,
• procedural stagnation,
• delayed evidence,
• prosecutorial delay.

Important holding:

Gravity of accusation cannot indefinitely suspend Article 21 protections.

Paras 19-25.

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5. Bail under UAPA and NDPS Act

The judgment harmonises:

• national security concerns,
  with
• constitutional limitations.

The Court did not dilute seriousness of:

• terror allegations,
• narco-terrorism,
• terror funding.

However, it held:
severity of offence alone cannot justify endless custody where:

• trial remains distant,
• prosecution cannot conclude evidence promptly.

Jurisprudential significance:

Preventive detention through delayed trial is constitutionally impermissible.

Paras 20-25.

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ANALYSIS OF FACTS

1. Allegations Against Appellant

The appellant was accused of:

• narco-terror funding,
• heroin smuggling,
• terror financing,
• links with LeT/HM operatives,
• conspiracy under NDPS and UAPA.

Paras 5-6.

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2. Custody and Delay

The appellant remained incarcerated since:
11.06.2020.

Chargesheet:

• filed in 2020.

Charges:

• framed only in 2023.

Witnesses remaining:

• more than 350.

The Court treated these factors as constitutionally significant.

Paras 9, 21-25.

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3. Bail Granted to Co-accused

The appellant relied upon:

• bail granted to co-accused,
• parity principle,
• similar accusations against others already enlarged on bail.

Paras 9.5, 11.1-11.3.

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4. Prosecution Stand

NIA opposed bail on grounds:

• gravity of allegations,
• terror links,
• recovery of narcotics and cash,
• linkage with Pakistan-based operatives.

Paras 10-10.15.

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5. Supreme Court’s Constitutional Concern

The Court ultimately focused on:

• prolonged incarceration,
• absence of near possibility of trial completion,
• constitutional protection of liberty,
• binding nature of K.A. Najeeb.

Paras 21-27.

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RATIO DECIDENDI

The statutory restrictions on grant of bail under Section 43-D(5) of the Unlawful Activities (Prevention) Act, 1967 and similar special enactments do not extinguish the constitutional power of courts to grant bail where prolonged incarceration and undue delay in trial result in violation of the fundamental right to personal liberty and speedy trial guaranteed under Article 21 of the Constitution. A smaller Bench cannot dilute or circumvent binding larger Bench precedent governing such constitutional principles without reference to a larger Bench.

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Final Holding

The Supreme Court held that prolonged incarceration and absence of realistic possibility of early completion of trial warranted constitutional scrutiny notwithstanding statutory embargo under UAPA and NDPS Act. The Court reaffirmed the binding constitutional principles laid down in Union of India v. K.A. Najeeb concerning grant of bail in cases of delayed trial under special statutes.