Decided on January 13,2014

Anil Kumar Batla and Ors.,Smt. Archana Mishra Appellant
Allahabad Bank And Ors. Respondents


S.N.H. Zaidi, J. (Chairperson) - (1.) BOTH these appeals have been directed against the order dated 19.11.2010 of DRT -II, Delhi whereby S.A. No. 47/2008 has been disposed of with the direction that on payment of the dues of Rs. 1,72,14,846/ - along with interest and cost by the S.A. applicant within 30 days, the sale of mortgaged property and the sale certificate would be cancelled and the sale proceeds deposited with the bank would be refunded to the auction purchasers along with interest but, in the event of non -payment of the amount, the S.A. applicant would hand over the possession of the mortgaged property to the bank. The facts giving rise to these appeals, in brief, are that in February 2004 Allahabad bank had sanctioned a credit facility of Rs. 2.10 crores to M/s. Sudha Fashions Pvt. Ltd. to which Smt. Archana Mishra stood as guarantor and also mortgaged her property bearing No. 353, Sector -19, Faridabad, Haryana, hereinafter referred to as the property in question. Mr. Ashok Kumar Dubey also stood as guarantor and mortgaged his property. When the borrower company defaulted in repayment of loan amount, the bank declared the account as Non Performing Asset (NPA) on 31.5.2006 and issued the demand notice dated 1.9.2006 under section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, the SARFAESI Act) to the borrower, guarantors and mortgagors claiming an amount of Rs. 1,72,14,846/ -. The bank took symbolic possession of the property in question on 4.7.2007 and published the possession notice in the newspapers. On 22.7.2008, the bank issued a notice for the sale of the property in question with a reserve price of Rs. 75 lacs and invited sealed bids by 29.8.2008. The sale notice was published on 26.7.2008 in Delhi edition's of the newspapers, namely, 'The Economic Times' and 'Rashtriya Sahara'. Being aggrieved by the actions of the bank, Smt. Archana Mishra filed S.A. No. 47/2008 before DRT -II, Delhi on 19.8.2008 challenging the sale notice and the actions of the bank. As no interim relief qua the property in question was granted by the DRT, the proposed auction took place as per schedule on 29.8.2008 and the highest bid of Anil Kumar Batla and Randhir Singh Yadav for Rs. 84.2 lacs was accepted and after the confirmation of sale and deposit of sale consideration, the sale certificate was issued in their favour on 3.10.2008. On 5.12.2008, the bank took the actual physical possession of the property in question with the assistance of the police in pursuance of the order of the District Magistrate passed under section 14 of the SARFAESI Act.
(2.) THE bank thereafter filed an application (I.A. No. 880/2008) for dismissal of the S.A. on the ground that since the property in question had been sold, entire sale consideration had been received and the sale certificate had been issued, the S.A. had become infructuous. Smt. Archana Misra also filed application (I.A. No. 887/2008) challenging the auction, confirmation of sale and also asked for a direction to the bank to de -seal the property in question. She also filed a writ petition [W.P(C) No. 8968/2008] before the Delhi High Court but the writ petition was dismissed as withdrawn with liberty to the petitioner to approach the DRT for the relief available under the law and a direction that the status quo of the property in question be maintained. Smt. Archana Mishra thereafter filed application (I.A. No. 14/2009) for setting aside the sale as well as for restoring the possession of the property and redemption of mortgage was also prayed for on payment of Rs. 95 lacs against the sale price of Rs. 84.20 lacs. She filed another application (I.A. No. 16/2009) for impleading the auction purchasers in the S.A. and for restraining the bank from handing over the possession to them. The application (I.A. No. 14/2009) was disposed of by the DRT with the direction to the bank that if she would deposit Rs. 95 lacs within 15 days, the possession of the property in question be restored to her. The said amount was deposited by her, as per the order dated 9.6.2009. This order was assailed by the auction purchasers in Appeal No. 164/2009 before the DRAT and this Tribunal, vide order dated 2.7.2009, directed Smt. Archana Mishra not to create any third -party interest in the property in question but the prayer for the delivery of possession of the property to them was declined. On 18.7.212, the bank restored the possession of the property back to Smt. Archana Mishra. Being aggrieved with the order dated 2.7.2009 of this Tribunal as well as restoration of the possession of the property in question to the S.A. applicant, the auction purchasers filed a writ petition [W.P(C) No. 10262/2009] before the Delhi High Court and the Hon'ble Court disposed it off with a direction to this Tribunal to dispose of Appeal No. 164/2009. The said appeal, preferred by the auction purchasers, was allowed by this Tribunal vide order dated 5.7.2010 and Smt. Archana Mishra was directed to return the possession of the property in question to the bank. Smt. Archana Mishra assailed that order before the Delhi High Court in W.P(C) No. 4434/2010 and the Hon'ble Court stayed the delivery of the possession as directed by this Tribunal. The S.A. was contested by both the bank and the auction purchasers and the Tribunal below disposed it off by the order impugned with the directions as stated above. Feeling aggrieved with that order and the directions, both the auction purchasers and the S.A. applicant have preferred these appeals, which are being disposed of by a common order.
(3.) I have heard Mr. Amrendra Kumar Singh, the learned counsel appearing for the appellant/auction purchasers, Mr. B.S. Nagar, the learned counsel for the appellant Smt. Archana Mishra and Mr. M.K. Manav, the learned counsel for the Allahabad Bank and perused the record. No arguments have, however, been put forth by the learned counsel for respondent Nos. 3 to 5 in both the appeals.;

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