- (1.) The petitioner in this art.226 petition dated November 24, 2009 (sic) is questioning a sale certificate dated April 7, 2010 (at p.17) issued by the authorised officer of Punjab National Bank. After issuing a notice under s.13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 the authorised officer of the bank took measure under s.13(4) with respect to possession of the property. Feeling aggrieved the petitioner lodged an appeal with the Debts Recovery Tribunal under s.17. By an order dated March 23, 2009 (at p.16) the appeal was dismissed for non-appearance of the petitioner. Then the petitioner filed M.A. No.21 of 2009 (para.8) for restoration of the appeal to file. During pendency of the restoration application the authorised officer of the bank took steps for sale of the property and finally issued the impugned sale certificate. M.A. No.21 of 2009 is still pending before the Tribunal. Counsel for the petitioner has argued as follows. The property was sold in contravention of the provisions of r.8 of the Security Interest (Enforcement) Rules, 2002, because before effecting sale the authorised officer did not serve to the borrower any notice, fix the reserve price, and consult with the petitioner for any purpose. Against the sale the petitioner is not entitled to lodge an appeal under s.17. Hence the petitioner s only remedy is before the Writ Court. Counsel for the bank has submitted as follows. The art.226 petition is not maintainable. In view of the Supreme Court decision in United Bank of India v. Satyawati Tondon & Ors.,2010 2 CLJ 280 the Writ Court should not interfere in the matter at all. If the petitioner was aggrieved by the order dismissing her s.17 appeal, her remedy, was an appeal under s.18 of the Act. Once the appeal was dismissed the bank became entitled to effect sale of the property.
(2.) The principal question is what is the petitioner s remedy when she is alleging that the sale was effected in contravention of the provisions of r.8 of the Rules.
(3.) It cannot be the position that questioning the validity of the sale the petitioner cannot approach any forum under the Act. There is no reason to hold that once the s.17 appeal was dismissed the bank became free to effect sale of the property in the manner it wished. It was required to effect the sale according to the provisions of the Act and the Rules. Hence it cannot be said that since her appeal was dismissed, the petitioner cannot question the validity of the sale. I do not find any reason to accept the argument that in such a case as this validity of the sale is to be challenged only before the Writ Court. In my opinion, the petitioner was entitled to lodge a fresh appeal under s.17 questioning the validity of the sale. Sub-section(4) of s.13 confers on a secured creditor several rights, while one of them is to sell the secured assets, to take possession thereof is yet another right not essentially to be followed by the right to sell them. It is evident from the provisions of s.17 using the expression aggrieved by any of the measures that exercise of every right under sub-s.(4) of s.13 may give rise to an independent s.17 appeal. Besides, I think here the petitioner ought to have requested the Tribunal to decide her application for restoration immediately. There is nothing to show that she was very anxious to get her restoration application decided. The s.17 appeal was dismissed as back as March 23, 2009. It is not known when the M.A. was filed. Admittedly, till April 7, 2010 it was not disposed of. For these reasons, the petition is dismissed. No costs. Certified xerox.;