Vimlesh Kumar Shukla, J. - (1.) Smt. Sadhana Birani w/o Late Rakesh Birani as well as Ridhee Sidhee Birani d/o Late Rakesh Birani through her mother natural guardian and next friend Smt. Sadhana Birani representing the interest of Rakesh Birani (since deceased) are before this Court assailing the validity of the judgment and order passed by the learned Single Judge on 9.7.2014 in Writ Petition No. 27483 of 2014, Rakesh Birani (since deceased) & two others v/s. Prem Narain Sehgal & another, wherein learned Single Judge has dismissed the writ petition and affirmed the order passed by the Debt Recovery Tribunal (hereinafter referred to as the 'DRT') dated 19.12.2013 and Debt Recovery Appellate Tribunal (hereinafter referred to as the 'DRAT') dated 21.3.2014 by holding that sale was vitiated on account of non -compliance of Rule 9(4) of Security Interest (Enforcement) Rules, 2002 (hereinafter referred to as the 'Rules 2002').
(2.) Brief background of the case is that a firm in the name and style of Mangall Prasad Lav Kumar had taken loan from the Punjab National Bank and accepted position is that loan account of the said firm has been running irregular and unsatisfactory and the bank concerned in its turn has been sending reminders after reminders for regularizing the loan account but all efforts taken by the bank went in vein and then when the firm in question eventually failed to pay the debts and instalments due and the account of the said firm in respect of such debts were classified by the bank as Non Performing Asset (NPA) on 30.6.2005 in consonance with the directions/guidelines issued by the Reserve Bank of India. The bank in question, thereafter, proceeded to enforce the security interest created in favour of borrowers as well as guarantors in accordance with the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the '2002 Act'). The bank concerned issued notice dated 23.7.2005 under Sec. 13 (2) of the 2002 Act asking the borrowers in writing to discharge in full their liabilities giving details of amount payable by them within sixty days from the date of said notice, the said notice also gives detail of secured asset intended to be enforced by the secure creditor in the event of the non -payment of secured debt, as stated in the said notice. The borrower concerned failed to respond to the said notice within the time frame provided for and then Authorised Officer of the bank in purported exercise of authority under Sec. 13 (4) of the 2002 Act took possession of the secured assets by means of notice dated 3.5.2006 and, thereafter, the bank concerned published possession notice on 10.6.2006 in two widely circulated newspapers and, thereafter, the bank in question proceeded with the process of auction and in the said direction exercise was undertaken by publishing the last auction notice on 6.1.2013 as on the earlier occasions the property in question has not been sold several times due to the lack of purchaser.
(3.) The property in question was put up for auction by the bank by e -mode auction and in the said auction Rakesh Birani, husband of petitioner appellant No. 1 and father of appellant No. 2 participated and in the said auction proceedings held on 14.2.2013 his bid was found highest and the bank accepted his bid vide letter dated 27.2.2013 and also acknowledged 25% of the bid amount to the tune of Rs. 9,60,500/ - and simultaneously directed that balance bid amount of Rs. 28,69,500/ - should be paid by him within 15 days from the date of e -auction. Husband of petitioner appellant No. 1 was also informed that after receiving of full payment the bank will issue sale certificate to the said incumbent and it was also made clear that said acceptance of sale is subject to confirmation by the bank as secured creditor. The balance amount in question was paid on 13.3.2013. This much is also reflected from the record in question that at the point of time when pursuant to the said sale transaction an attempt was made to take possession of the property in question, then the borrowers preferred Writ Petition No. 20653 of 2013 before this Court challenging the auction notice as well as auction, expressing their readiness to pay the amount in instalments. The said writ petition in question was not entertained by this Court on the premises that petitioners have equal efficacious remedy under the 2002 Act to approach DRT for their grievances. Pursuant to the said dismissal, Prem Narain Sahgal, the borrower, has instituted Securitisation Application No. 133 of 2013 before the DRT wherein the bank as well as auction purchaser resisted the claim but DRT has proceeded to set -aside the auction sale vide its order dated 19.12.2013. Against the same appeal in question has been preferred before the DRAT and the appeal in question has also been dismissed on 21.3.2014. Both these orders passed by the DRT and DRAT respectively impelled the petitioner appellant to be before the learned Single Judge of this Court in Writ Petition No. 27483 of 2014 and the learned Single Judge of this Court has also ratified the two decisions, so taken by the DRT and DRAT, and against the said decision, as already indicated above, present special appeal in question has been filed before this Court.;