VASU P. SHETTY Vs. HOTEL VANDANA PALACE
LAWS(SC)-2014-4-56
SUPREME COURT OF INDIA (FROM: KARNATAKA)
Decided on
April 22,2014
Vasu P. Shetty
Appellant
VERSUS
Hotel Vandana Palace
Respondents
Referred Judgements :-
STATE OF PUNJAB VS. DAVINDER PAL SINGH BHULLAR [REFERRED TO]SIDDESHWARA CO-OPERATIVE BANK LTD. VS. IKBAL [REFERRED TO]
MATHEW VARGHESE VS. AMRITHA KUMAR [REFERRED TO]
Cited Judgements :-
STATE OF MADHYA PRADESH VS. SUPRATECH HOSPITAL PVT LTD [LAWS(MPH)-2021-4-52] [REFERRED TO]THE DISTRICT COLLECTOR VS. K.K. DINAKARAN [LAWS(MAD)-2014-7-218] [REFERRED TO]
BHARAT BROADBAND NETWORK LIMITED VS. UNITED TELECOMS LIMITED [LAWS(SC)-2019-4-75] [REFERRED TO]
RAVINA WIRE PRODUCTS VS. STATE BANK OF INDIA [LAWS(P&H)-2021-1-6] [REFERRED TO]
TINABHAI BHIKHABHAI VS. JT SECRETARY (APPEALS) REVENUE DEPT [LAWS(GJH)-2014-10-29] [REFERRED TO]
SRI AMBIKA SOLVEX LTD VS. STATE BANK OF INDIA AND OTHERS [LAWS(MPH)-2015-12-75] [REFERRED]
PAHWA BUILDTECH PVT. LTD VS. JAGMOHAN SINGH ARORA [LAWS(DLH)-2022-6-1] [REFERRED TO]
DEVELOPMENT CORPORATION OF KONKAN LIMITED VS. SAIDHARA DCK AGRO PRODUCT & PLANTATION LIMITED [LAWS(BOM)-2015-2-113] [REFERRED TO]
VASANTH COLOUR LABORATORIES PVT. LTD. VS. DIVYA DEVI [LAWS(KAR)-2016-1-205] [REFERRED TO]
SYNDICATE BANK VS. THE DEPUTY COMMISSIONER OF COMMERCIAL TAXES (RECOVERY-1) [LAWS(KAR)-2014-7-106] [REFERRED TO]
ASHIRBAD SEEDS AND OTHERS VS. PUNJAB NATIONAL BANK [LAWS(UTN)-2015-11-59] [REFERRED]
SOLITHRO PRIVATE LIMITED VS. DEBT RECOVERY TRIBUNAL-I [LAWS(APH)-2018-7-14] [REFERRED TO]
CHHOTEY LAL KASERA VS. KANHAIYA LAL KASERA [LAWS(ALL)-2014-8-299] [REFERRED TO]
S. KARTHIK VS. N. SUBHASH CHAND JAIN [LAWS(SC)-2021-9-85] [REFERRED TO]
AMITI GUPTA VS. STATE BANK OF INDIA [LAWS(P&H)-2019-4-330] [REFERRED TO]
PRAKASH RAMDAS KAMAT VS. INDIA BANK [LAWS(KAR)-2020-8-226] [REFERRED TO]
HOTEL PARAS GARDEN AND ORS. VS. CENTRAL BANK OF INDIA AND ORS. [LAWS(BOM)-2015-6-20] [REFERRED TO]
MUNEER ENTERPRISES VS. RAMGAD MINERALS AND MINING LTD [LAWS(SC)-2015-3-21] [REFERRED TO]
RAM PRAVESH RAI ESTATE PVT LTD VS. BIHAR STATE FINANCIAL CORPORATION [LAWS(PAT)-2018-5-102] [REFERRED TO]
DEEPAK APPARELS PVT. LTD. AND ORS. VS. CITY UNION BANK LTD. AND ORS. [LAWS(KAR)-2016-3-110] [REFERRED TO]
RAMKISHORE BALDAWA VS. R. SUDHAKAR RAO AND ORS. [LAWS(NCD)-2015-7-17] [REFERRED TO]
SMT. SWATI PATEL VS. BANK OF INDIA AND OTHERS [LAWS(MPH)-2018-2-184] [REFERRED TO]
V J DHANAPAL VS. UNION BANK OF INDIA [LAWS(MAD)-2018-1-746] [REFERRED TO]
PADMAVATHY VS. AUTHORISED OFFICER DHANALAKSHMI BANK LTD. [LAWS(MAD)-2017-8-56] [REFERRED TO]
PUNJAB NATIONAL BANK VS. MITHILANCHAL INDUSTRIES PVT LTD [LAWS(GJH)-2020-8-536] [REFERRED TO]
ANIL S/O GOVINDRAO KALE VS. MAHARASHTRA ACADEMY OF ENGINEERING AND EDUCATION RESEARCH, PUNE [LAWS(BOM)-2017-3-129] [REFERRED TO]
USHA OFFSET PRINTERS (P.) LTD. VS. BANK OF MAHARASHTRA [LAWS(BOM)-2016-2-201] [REFERRED TO]
UNNATI INORGANICS PRIVATE LIMITED VS. UNION OF INDIA [LAWS(GJH)-2020-10-24] [REFERRED TO]
SMT. R.VIMALA VS. STATE BANK OF INDIA [LAWS(APH)-2016-8-12] [REFERRED TO]
HOTEL J K VS. BIHAR STATE FINANCIAL CORPORATION [LAWS(PAT)-2016-9-74] [REFERRED]
AUTHORIZED OFFICER VS. PRESIDING OFFICER, DEBTS RECOVERY TRIBUNAL, COIMBATORE AND OTHERS [LAWS(MAD)-2018-7-1625] [REFERRED TO]
SONALI MOHAPATRA VS. STATE BANK OF INDIA AND ORS. [LAWS(ORI)-2016-1-31] [REFERRED TO]
PURNIMA MAZUMDAR VS. UNITED BANK OF INDIA AND ORS. [LAWS(CAL)-2015-8-49] [REFERRED TO]
AVSHESH JAISWAL VS. BRANCH MANAGER [LAWS(ALL)-2019-1-276] [REFERRED TO]
RAJENDRASINH HARBHAMJI JADEJAS HEIRS VS. MANSUKHLAL PREMCHAND MEHTAS HEIRS [LAWS(GJH)-2014-10-22] [REFERRED TO]
JMC ATEPL JOINT VENTURE VS. BANGALORE METRO RAIL CORPORATION LIMITED [LAWS(KAR)-2021-2-87] [REFERRED TO]
LAXMI PRIYA RICE MILL, GUNTUR DISTRICT VS. STATE BANK OF HYDERABAD AND OTHERS [LAWS(APH)-2016-7-26] [REFERRED TO]
HOTEL PARAS GARDEN VS. CENTRAL BANK OF INDIA [LAWS(BOM)-2015-6-18] [REFERRED TO]
BLUE COAST HOTELS LIMITED VS. IFCI LIMITED AND ORS [LAWS(BOM)-2016-1-251] [REFERRED]
HARI TRADING CORPORATION VS. BANK OF BARODA [LAWS(BOM)-2015-2-341] [REFERRED TO]
DEEPAK NIKHALJE VS. STATE OF MAHARASHTRA AND OTHERS [LAWS(BOM)-2018-3-284] [REFERRED TO]
HOTEL PERAL CITY VS. DEBTS RECOVERY TRIBUNAL [LAWS(APH)-2017-11-80] [REFERRED TO]
EDELWEISS ASSET RECONSTRUCTION COMPANY LIMITED VS. SATURN REALTORS PVT. LTD. [LAWS(KAR)-2022-9-595] [REFERRED TO]
P MOHAN VS. AUTHORISED OFFICER INDIAN OVERSEAS BANK REGIONAL OFFICE [LAWS(MAD)-2018-6-693] [REFERRED TO]
P.M. ABUBAKAR VS. STATE OF KARNATAKA AND ORS. [LAWS(SC)-2016-11-18] [REFERRED TO]
K. NAGESWARA RAO VS. DEBTS RECOVERY APPELLATE TRIBUNAL [LAWS(APH)-2017-7-22] [REFERRED TO]
V RAJESWARI AND ORS VS. S B I TIRUPATHI AND ORS [LAWS(APH)-2017-8-57] [REFERRED TO]
BLUE COAST HOTELS LIMITED VS. IFCI LIMITED AND ORS. [LAWS(BOM)-2016-3-127] [REFERRED TO]
SKYTONE ELECTRICALS (INDIA) LIMITED VS. CANARA BANK [LAWS(P&H)-2022-5-213] [REFERRED TO]
SATISH KUMAR RATHORE VS. STATE OF M.P. AND OTHERS [LAWS(MPH)-2018-3-386] [REFERRED TO]
IAA HOSPITAL PVT. LTD VS. AUTHORIZED OFFICER [LAWS(P&H)-2014-7-474] [REFERRED TO]
JUDGEMENT
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(1.)Leave granted.
(2.)Respondent No. 1 herein had taken loan from Syndicate Bank (hereinafter to be referred as the 'Bank'). Because of its default in repaying the said loan, the bank took action under the provisions of the Securitization and Re-construction of Financial Asset and Enforcement of Security Interest Act, 2002 (SARFAESI Act). After taking formal possession of the mortgaged property which was given as a surety for due discharge of the loan, the said property was put to sale. The appellant herein was the highest bidder whose bid was accepted resulting into issuance of the sale certificate. Respondent No. 1 (hereinafter referred to as the 'borrower') challenged the said sale by filing application before the Debt Recovery Tribunal (DRT). This application was dismissed. The borrower filed Writ Petition before the High Court of Karnataka against the order of DRT. The learned Single Judge dismissed the Writ Petition as well. Undeterred, the borrower appealed against the order of the learned Single Judge. This time it triumphed, as the Division Bench has set aside the sale of the property in favour of the appellant. The reason given is that the public notice issued for the said sale was defective as 30 days time which is mandatorily required under Rules 8 and 9 of SARFAESI Act was not given. Concededly the public notice was published in the newspaper on 28.4.2006, fixing the date for sale as 8.5.2006, inviting tenders from prospective buyers at 2.00 p.m. on 6.5.2006.
(3.)This fact that insufficient notice was given, is, therefore, not in dispute. Legal position about the mandatory nature of Rule 8 & 9 is also not agitated. Notwithstanding this legal possession, the appellants viz auction purchaser as well as the Bank maintain that the sale was valid because of the reason that delay was entirely attributable to the borrower who by its conduct waived the said mandatory requirement of the Rules. In this backdrop, the question that arises for consideration is as to whether there could be a waiver of the aforesaid mandatory condition If so, whether this waiver can be discerned in the present case Before we answer these questions it would be apposite to have a thorough glimpse of the facts on record.
(2.)Respondent No. 1 herein had taken loan from Syndicate Bank (hereinafter to be referred as the 'Bank'). Because of its default in repaying the said loan, the bank took action under the provisions of the Securitization and Re-construction of Financial Asset and Enforcement of Security Interest Act, 2002 (SARFAESI Act). After taking formal possession of the mortgaged property which was given as a surety for due discharge of the loan, the said property was put to sale. The appellant herein was the highest bidder whose bid was accepted resulting into issuance of the sale certificate. Respondent No. 1 (hereinafter referred to as the 'borrower') challenged the said sale by filing application before the Debt Recovery Tribunal (DRT). This application was dismissed. The borrower filed Writ Petition before the High Court of Karnataka against the order of DRT. The learned Single Judge dismissed the Writ Petition as well. Undeterred, the borrower appealed against the order of the learned Single Judge. This time it triumphed, as the Division Bench has set aside the sale of the property in favour of the appellant. The reason given is that the public notice issued for the said sale was defective as 30 days time which is mandatorily required under Rules 8 and 9 of SARFAESI Act was not given. Concededly the public notice was published in the newspaper on 28.4.2006, fixing the date for sale as 8.5.2006, inviting tenders from prospective buyers at 2.00 p.m. on 6.5.2006.
(3.)This fact that insufficient notice was given, is, therefore, not in dispute. Legal position about the mandatory nature of Rule 8 & 9 is also not agitated. Notwithstanding this legal possession, the appellants viz auction purchaser as well as the Bank maintain that the sale was valid because of the reason that delay was entirely attributable to the borrower who by its conduct waived the said mandatory requirement of the Rules. In this backdrop, the question that arises for consideration is as to whether there could be a waiver of the aforesaid mandatory condition If so, whether this waiver can be discerned in the present case Before we answer these questions it would be apposite to have a thorough glimpse of the facts on record.
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