Chattisgarh High Court
Ankit Mishra vs Bank Of India on 30 June, 2025
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
2025:CGHC:28833-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WA No. 388 of 2025
1 - Ankit Mishra S/o Vipin Bihari Mishra Aged About 37 Years R/o Plot No.-
149/3, Prayag Vihar Colony (Shikshak Samiti Colony) Near Uslapur Railway
Station, Bilaspur - 495001 (C.G.)
--- Appellant(s)
versus
1 - Bank Of India Head Office - Star House, C-5, G-Block, Bandra Korla
Complex, Bandra East, Mumbai 400051
2 - Bank Of India Raipur Zonal Office, G.D. Shesh Nelayam, Tatya Para
Chowk, Kankali Para Road, Raipur (C.G.)
3 - Authorized Officer Of (B.O.I.) Dharmesh Kumar Sinha Branch Manager,
G.D. Shesh Nelayam, Tatya Para Chowk, Kankali Para Road, Raipur (C.G.)
4 - Branch Manager (B.O.I.) Vyapar Vihar Branch Zone 1, Plot-22, Vyapar
Vihar, Bilaspur - 495004
... Respondent(s)
(Cause Title taken from Case Information System)
For Appellant(s) : Mr. Ravi Ranjan Sinha, Advocate
For Respondent(s) : Mr. Anand Shukla, Advocate
VEDPRAKASH
DEWANGAN
Hon'ble Shri Ramesh Sinha, Chief Justice
Hon'ble Shri Ravindra Kumar Agrawal, Judge
Order on Board
Per Ramesh Sinha, Chief Justice
30/06/2025
1. Heard on I.A. No.1 of 2025, which is an application for condonation of
delay of 60 days in filing the writ appeal. On due consideration and for
the reasons mentioned in the application, the same is allowed, and the
delay of 60 days in filing the appeal is condoned.
2. Heard on admission.
3. The present writ appeal has been filed by the writ appellant, who was
the writ petitioner in the writ petition, against the impugned order dated
03.01.2025, passed by learned Single Judge, in WPC No. 1025 of
2023, whereby the writ petition filed by the writ petitioner is dismissed.
4. The brief facts of the case are that, on 14.08.2022, the
respondents/Bank published an advertisement in Haribhoomi Daily
Newspaper, Raipur with respect to e-auction of a house belongs to one
Ishwari Prasad Sahu, situated at khasra No. 149/1 and 149/2, plot No.
1/32, Village Uslapur, District Bilaspur, admeasuring 2400 sqft including
its four corners having the property ID No. BKIDRAT300422-06. The
writ appellant was also participated in e-auction proceeding. The
petitioner is the successful bidder and his price of Rs. 49.41 lakhs were
accepted after the bidding on 26.09.2022. 25% of the total bid amount
have also been deposited by the writ appellant, which comes to Rs.
12,41,500/-. On 27.09.2022, the respondents/Bank issued a letter,
regarding confirmation of sale and asked the writ appellant to deposit
the balance of 75% of bid amount on or before 12.10.2022. Since the
matter was pending before the District Magistrate, on 10.10.2022, the
writ appellant wrote a letter to the bank that the matter is still pending
for permission of District Magistrate and a clearance certificate is
required for registration of the sale-deed and requested for extension of
time up to 90 days. The request made by the writ appellant was
considered and the bank has permitted the writ appellant to deposit the
rest amount up to 26.12.2022. The writ appellant arranged the
remaining amount and visited to the bank for registration of the deed,
but the bank authorities evading the registration of the deed, because of
pendency of the matter before the District Magistrate. Subsequently, the
writ appellant came to know that a litigation is also pending between the
bank and Ishwari Prasad Sahu before the Debt Recovery Tribunal,
Jabalpur (DRT). On 03.01.2023, the writ appellant served a legal notice
to the bank and in reply thereof, the bank had denied to handover the
possession of the subject property to the writ appellant and informed
that his EMD is liable to be forfeit. The writ appellant has filed a writ
petition seeking a direction to the respondent/ Bank to handover the
possession of the subject property and in alternative the fund of EMD
amount and 25% of the bid amount along with the interest.
5. In the writ petition, the respondents/Bank raised an objection regarding
maintainability of the writ petition on the ground of alternative remedy
under Section 17 of the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest Act, 2002 (in
short 'SARFAESI Act').
6. Learned Single Judge after considering the facts and circumstances of
the case, documents annexed with the petition as well as the judgment
cited by the respective parties, dismissed the writ petition on
03.01.2025 holding that the writ petitioner is having an efficacious
alternative remedy under Section 17 of the SARFAESI Act reserving the
liberty to the writ petitioner to avail remedy as may be available to him
under the SARFAESI Act, if so advised. The order dated 03.01.2025 is
under challenge in the present writ appeal.
7. Learned counsel for the writ appellant would submit that the
respondent/ Bank has committed fraud against the writ appellant and
had not disclosed the litigation between the bank and Ishwari Prasad
Sahu before the DRT. The concealment of the proceedings before the
DRT and initiating the e-auction proceeding are bad in law. The amount
deposited by the writ petitioner in pursuance of the e-auction
proceeding and successful bidder should be refunded to him along with
the interest, as the sale of the house could not be confirmed due to the
fault of the bank. The learned Single Judge has wrongly appreciated the
provisions of Sections 9(5), 13 and 17 of the SARFAESI Act and in the
facts and circumstances of the case, the petitioner is entitled to get his
amount back from the bank, which he has deposited and not at any
fault. The respondents/Bank is at fault for not completing the sale
confirmation process. The petitioner was ready and willing to deposit
the remaining amount of 75%. He would further submit that the learned
Single Judge has also misinterpreted the judgment cited by him,
therefore, the writ appeal may be allowed the impugned order may be
set-aside.
8. On the other hand, learned counsel for the respondents/Bank on
advance copy supported the impugned order.
9. We have heard learned counsel for the parties and perused the
documents annexed with the writ appeal as well as the writ petition.
10. The learned Single Judge considered the provisions of Section 17 of
the SARFAESI Act and the maintainability of the writ petition. While
considering the case of the writ petitioner, the learned Single Judge has
relied upon the judgment passed by Hon'ble Supreme Court in the
matter of "Agrawal Tracom Pvt. Ltd. v. Punjab National Bank and
others" 2018 (1) SCC 626 and the order passed by this Court in WPC
No. 3944 of 2023 (Neeraj Bhusakhare v. Bank of India and another),
decided on 11.09.2023. The learned Single Judge has also considered
the judgment cited by the writ petitioner i.e. "Mohd. Shariq v. Punjab
National Bank and others" 2023 SCC Online SC 392, and relying
upon the judgment of "Agrawal Tracom Pvt. Ltd." (supra), dismissed
the writ petition filed by the petitioner on the ground of availability of
alternative remedy under Section 17 of the SARFAESI Act.
11. It is necessary to reproduce here the consideration of Hon'ble Supreme
Court in "Agrawal Tracom Pvt. Ltd." (supra):-
"25. So far as this case is concerned, sub-rule (5) of
Rule 9 is relevant. It provides that, if the auction
purchaser commits any default in payment of sale
consideration within the time specified, the deposit
made by auction purchaser shall be "forfeited" to the
secured creditor and the auctioned property shall be
resold and the defaulting purchaser shall "forfeit" all
claims to the property or its part of the sum for which
it may be sold subsequently.
26. Reading of the aforementioned Sections and the
Rules and, in particular, Section 17(2) and Rule 9(5)
would clearly go to show that an action of secured
creditor in forfeiting the deposit made by the auction
purchaser is a part of the measures taken by the
secured creditor under Section 13 (4).
27. The reason is that Section 17 (2) empowers the
Tribunal to examine all the issues arising out of the
measures taken under Section 13 (4) including the
measures taken by the secured creditor under Rules 8
and 9 for disposal of the secured assets of the
borrower. The expression "provisions of this Act and
the Rules made thereunder" occurring in sub-
sections (2), (3), (4) and (7) of Section 17 clearly
suggests that it includes the action taken under
Section 13 (4) as also includes therein the action
taken under Rules 8 and 9 which deal with the
completion of sale of the secured assets. In other
words, the measures taken under Section 13 (4)
would not be completed unless the entire procedure
laid down in Rules 8 and 9 for sale of secured assets
is fully complied with by the secured creditor. It is for
this reason, the Tribunal has been empowered by
Section 17 (2),(3) and (4) to examine all the steps
taken by the secured creditor with a view to find out
as to whether the sale of secured assets was made in
conformity with the requirements contained in
Section 13 (4) read with the Rules or not?
28. We also notice that Rule 9(5) confers express
power on the secured creditor to forfeit the deposit
made by the auction purchaser in case the auction
purchaser commits any default in paying installment
of sale money to the secured creditor. Such action
taken by the secured creditor is, in our opinion, a part
of the measures specified in Section 13 (4) and,
therefore, it is regarded as a measure taken under
Section 13 (4) read with Rule 9 (5). In our view, the
measures taken under Section 13 (4) commence with
any of the action taken in clauses (a) to (d) and end
with measures specified in Rule 9.
29. In our view, therefore, the expression "any of the
measures referred to in Section 13 (4) taken by
secured creditor or his authorized officer" in Section
17(1) would include all actions taken by the secured
creditor under the Rules which relate to the measures
specified in Section 13(4).
30. The auction purchaser (appellant herein) is one
such person, who is aggrieved by the action of the
secured creditor in forfeiting their money. The
appellant, therefore, falls within the expression "any
person" as specified under Section 17 (1) and hence
is entitled to challenge the action of the secured
creditor (PNB) before the DRT by filing an application
under Section 17 (1) of the SARFAESI Act."
12. On going through the facts of the present case, it reveals that, Section
17 of the SARFAESI Act empowers the DRT to examine all the issues
arising out of the measures taken under Section 13(4) including the
measure taken by the secured creditors for disposal of the secured
assets of the borrowers. The DRT has been empowered by Sections
17(2), (3) and (4) to examine all the steps taken by the secured creditor
with a view to find out, as to whether the sale of secured assets was in
conformity with the requirements of Section 13 read with the rules or
not.
13. Considering the law laid down by the Hon'ble Supreme Court in the
aforesaid matters, the learned Single Judge has dismissed the writ
petition filed by the writ appellant on the ground of maintainability and
availability of alternative remedy under Section 17 of the SARFAESI Act
reserving the liberty to avail the said remedy.
14. Upon perusing the impugned order, we noticed that the same has been
rendered by the learned Single Judge with cogent and justifiable
reasons. In an intra-court appeal, no interference is usually warranted
unless palpable infirmities are noticed. Learned Single Judge while
dismissing the writ petition by the impugned order has adverted to all
the facts and law applicable to the case. We do not find any fault in the
impugned order passed by the learned Single Judge.
15. In view of the foregoing, the writ appeal lacks merit, liable to be and is
hereby dismissed. No order as to costs.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
ved
