On the ground that the Applicant/ Auction Purchaser has made the full and final payment of the auction amount alongwith interest in terms of the order dated 12.05.2020 passed by this Court in M.A. No.922 of 2020. (Para 1)
Appellant on 13.06.2019 had issued a notice for e-auction sale of the said property under the SARFAESI Act, scheduling the auction sale on 04.07.2019. (Para 2(iii))
Preferred a Writ Petition being (ST No.29319 of 2019). The Bombay High Court vide the order dated 25.11.2019 relegated the Respondent no.1 to the statutory remedy of appeal before the Debt Recovery Appellate Tribunal (for short ‘DRAT’). It was observed in the said order by the High Court that: – “the petitioner has an efficacious alternate remedy of appeal before the learned DRAT, where no pre-deposit is required.” (Para 2(vi))
Pending the said Writ Petition before the High Court, the auction having taken place, the Respondent no.6 M/s. Sunview Assets Pvt. Ltd. (the Applicant herein) claimed to be the highest bidder for a sum of Rs.65.62 Crores. The Bombay High Court therefore vide the order dated 20.11.2019 permitted the Respondent no.6 to be impleaded in the said Writ Petition. (Parab 2(vii))
The Applicant–Auction Purchaser preferred M.A. No.894 of 2020 in the said disposed of Civil Appeal No.1902 of 2020 seeking extension of time for payment of balance sale price of Rs.49,21,50,000/- (Rupees Forty-Nine Crores Twenty-One Lakhs Fifty Thousand Only) on the ground that due to Covid-19 pandemic the Applicant could not raise the required balance sale price. The Court vide order dated 20.03.2020 allowed the extension of time to deposit the balance sale consideration by 30.04.2020, further observing that: – “No further extension shall be granted.” (Para 2(xi))
Another M.A. No.922 of 2020 came to be filed by the Applicant/ Auction Purchaser seeking further extension of time on the ground that there was no improvement in the pandemic situation. This Court vide order dated 12.05.2020 considering the lockdown declared on account of the Covid-19, extended the time to deposit the remaining amount till two months after lifting of lockdown. In the said order the court directed the Applicant to pay interest at the lending rate for the period starting from 20.03.2020 till the date of deposit. (Para 2(xii))
In view of the said order passed by the court on 11.07.2022, the Applicant deposited further amount of Rs.34,41,50,000/- (Rupees Thirty-Four Crores Forty-One Lakhs Fifty Thousand Only) after deducting 1 percent TDS of the total auction purchase value with the bank on 22.07.2022. (Para 2(xvii))
The Respondent no.1 Rajat Infrastructure has mainly contended that the Miscellaneous Application filed in the disposed of Civil Appeal, seeking directions to the bank for issuing the sale certificate is not maintainable, more particularly when the Applicant has failed to comply with the orders passed by this Court from time to time and when the Applicant has also not complied with the provisions contained in Rule 9 of the said Rules. The Respondent no.1 has also alleged collusion between the Applicant and the Appellant Bank. The other Respondents no.2 to 5 have also broadly supported the contentions raised by the Respondent no.1. The Appellant Bank has filed the affidavit in reply on 23.11.2022 relying upon its earlier affidavit filed with regard to the status report dated 06.08.2022 (Annexure A7 of the M.A. paper book). It has been contended inter alia that even if the lockdown was considered to be in operation till the end of February 2022, then also the full payment as per the Court’s order dated 12.05.2020 should have been made on or before 30.04.2022, but the same was not made. (Para 3)
Whether the extension of time sought by the Applicant in the successive applications was permissible in the eye of law, and even if permissible, whether the Applicant had in fact complied with the orders passed by the Court from time to time in the said applications. (Para 5)
At this juncture, it would also be necessary to refer to Rule 9 of the said Rules which deals with “Time of sale, issue of sale certificate and delivery of possession etc.,” with regard to the sale of immovable secured assets through e-auction mode. (Para 6)
As discernible from the afore-stated sub-rule (4) of Rule 9, the balance amount of purchase price payable by the purchaser to the authorized Officer has to be paid on or before the fifteenth day of confirmation of sale of the immovable property or such extended period as may be agreed upon in writing between the purchaser and the secured creditor, in any case not exceeding three months. Sub-rule (5) thereof states that in default of payment within the period mentioned in sub-rule (4), the deposit shall be forfeited to the secured creditor and the property shall be resold, and that defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may be subsequently sold. As per sub-rule (6) thereof, on the confirmation of sale by the secured creditor and if the terms of payment have been complied with, the authorized Officer exercising the power of sale would issue a certificate of sale of the immovable property in favour of the purchaser in the form prescribed under the Rules. (Para 7)
Now, it is well settled proposition of law that when a statute requires a particular thing to be done in a particular manner, it must be done in that manner or not at all, and other methods of performance are necessarily forbidden. (Para 8)
In the instant case, out of the total bid amount of Rs.65.62 Crores finalized on the date of auction sale i.e., 11.11.2019, the Applicant had deposited an amount of Rs.31,20,50,000/- (Rupees Thirty-One Crores Twenty Lakhs Fifty Thousand) only with the bank and was required to deposit the balance amount with the authorized officer of the bank on or before the fifteenth day of the confirmation of sale of the subject property i.e., on or before 26.11.2019 as per Rule 9(4) of the said Rules. However, this Court while disposing of the said Civil Appeals Nos. 1902 & 1903 of 2020 vide the order dated 02.03.2020 permitted the Respondent No.6 (Applicant herein) to deposit the balance of sale amount till 20.03.2020. (Para 9)
From the afore-stated state of affairs, it appears that the extension of time granted by the court vide the order dated 12.05.2020, which was selflimiting, had lapsed or expired at least by 30.04.2022 as per the version of the Appellant Bank. Thereafter, there was no order passed by the court specifically extending the time limit. Significantly, there is no clarification made by the Applicant M/s. Sunview Assets Pvt. Ltd., as to how the deposit of Rs.34,41,50,000/- on 22.07.2022 and the deposit of Rs.7,17,02,859.45/- on 26.08.2022 made with the Appellant Bank were in due compliance of the orders passed by the Court from time to time and particularly of the order dated 12.05.2020. When the Court had passed the order on 12.05.2020 extending the time to deposit the remaining amount till two months after lifting of the lockdown and to pay interest at the lending rate for the period starting from 20.03.2020 till the date of the deposit, it was incumbent on the part of the Applicant to state as to when exactly the lockdown was lifted, what was the lending rate of interest at the relevant time, and how much amount the Applicant was required to pay towards the balance sale price and towards the interest for the period starting from 20.03.2020 till the deposit was made. (Para 15)
It is pertinent to note that the instant Miscellaneous Application has been filed by the Applicant seeking substantive prayer/ direction against the Appellant Bank for the issuance of the sale certificate on the ground that the Applicant has made full and final payment of auction amount with interest in terms of the order dated 12.05.2020 passed in M.A. No.922 of 2020. Apart from the fact that the Applicant had not complied with the orders passed by this Court from time to time in the successive applications filed by it, and more particularly the order dated 12.05.2020 passed in M.A. No.922 of 2020, such an application in the disposed of Civil Appeal No.1902 of 2020, to pursue its strategies and to avoid judicial adjudication in the substantive proceedings, would not be even maintainable in the eye of law. Such a trend emerging in this Court of filing repeated applications, styled as Miscellaneous Applications, without any legal foundation has been strongly deprecated by this Court (Para 18)
SUPREME COURT OF INDIA
2023 STPL(Web) 308 SC
[2023 INSC 869]
Union Bank Of India Vs.Rajat Infrastructure Pvt. Ltd. & Ors.
Miscellaneous Application No.1735 of 2022 in Civil Appeal No.1902 of 2020-Decided on 4-10-2023
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