Madhya Pradesh High Court
Smt. Swati Patel vs Bank Of India on 9 April, 2025
NEUTRAL CITATION NO. 2025:MPHC-JBP:17549
1 WP-2829-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJEEV SACHDEVA
&
HON'BLE SHRI JUSTICE VINAY SARAF
ON THE 9 th OF APRIL, 2025
WRIT PETITION No. 2829 of 2024
SMT. SWATI PATEL
Versus
BANK OF INDIA AND OTHERS
Appearance:
Shri Hare Krishana Upadhyay, learned counsel for the petitioner.
Shri Praveen Kumar Chaturvedi, learned counsel for the respondent
no.1 & 2.
Shri R.D. Padraha, learned Government Advocate for the respondent
no.3.
Shri Rajesh Maindiratta, learned counsel for the respondent/intervener.
ORDER
Per: Justice Vinay Saraf
1. The petitioner, who obtained loan from respondent/Bank and
mortgaged her property has preferred the present petition seeking following
reliefs:
"i. That, this Hon'ble Court may kindly be pleased to
issue a writ of mandamus directing the bank authorities
to accept the amount and redeem the "mortgage of the
secured assets i.e. the house of the petitioner, in the
interest of justice, equity and good conscience.
ii. Any other relief which this Hon'ble High Court
NEUTRAL CITATION NO. 2025:MPHC-JBP:17549
2 WP-2829-2024
deems fit and proper may also be granted."
2. With the consent of parties, final arguments were heard for the
purpose of final disposal of the petition.
3. The facts sufficient to decide the present petition are as under:
3.1 In 2003-2004, the petitioner availed the housing loan of Rs.12
lacs from the respondent/Bank of India after executing requisite documents
mortgaging the house with the Bank.
3.2 As the petitioner failed to pay the installments in time, the Bank
declared the petitioner's account as non performing assets (NPA) on
19.10.2009 and issued a notice under Section 13(2) of the Securitization and
Reconstruction of Financial Assets and Enforcement of Security Interest Act,
2002 ( for short, 'the SARFAESI Act') on 06.11.2009 calling upon the
petitioner to pay due amount of Rs.10,67,236/- along with interest within a
period of 60 days.
3.3 The petitioner failed to make payment of the demanded amount,
resultantly, the Bank issued a notice under Section 13 (4) of the SARFAESI
Act on 01.02.2010, which was also published in two daily news paper
namely; Dainik Bhaskar and Desh Bandhu on 07.02.2010.
3.4 An auction notice was also published for the purpose of sale of
secured asset on 13.08.2010 in two news papers mentioning that the auction
will be conducted on 13.09.2010.
3.5 After publication of auction notice, the petitioner approached to
Debts Recovery Tribunal by filing S.A.No.137/2010 assailing the notice
under Section 13 (4) of the Act which was dismissed on 13.12.2010.
NEUTRAL CITATION NO. 2025:MPHC-JBP:17549
3 WP-2829-2024
3.6 Meanwhile, fresh auction notice was published in two daily news
paper namely; Patrika and Desh Bandhu on 12.11.2010 intimating that the
auction will be conducted on 22.11.2010.Thereafter, the auction was
conducted on 22.11.2010 and the said asset was auctioned and sold for the
sum of Rs.30.62 lacs.
3.7 The said amount was deposited by auction purchaser and the
Bank after adjusting the loan amount issued a cheque in the sum of
Rs.9,63,387/- with a communication dated 28.12.2010 in favour of the
petitioner under registered AD post which was deposited in some other Bank
and was cleared and encashed on 22.01.2011 through clearance. Thereafter,
sale certificate was issued in favour of the auction purchaser.
3.8 Petitioner challenged the auction proceeding conducted in
pursuance of the notice published on 12.11.2010 on various grounds
interalia; the auction was conducted in violation of the Rule 8 and 9 of the
Security Interest (Enforcement) Rules, 2002 which contemplate that auction
can be conducted only after expiry of 30 days but the auction was conducted
within ten days from the date of publication of notice and consequently the
same was in violation of the statutory rules.
3.9 The Debt Recovery Tribunal by order dated 25.09.2012
dismissed S.A.No.95/2011 filed under Section 17(1) of the SARFAESI Act
seeking quashment of the recovery proceedings initiated by the Bank and to
set aside the sale of the secured assets.
3.10 The order passed by the DRT, Jabalpur was assailed by the
petitioner before DRAT, Allahabad in Appeal No.R-163/2012 which was
NEUTRAL CITATION NO. 2025:MPHC-JBP:17549
4 WP-2829-2024
dismissed by Appellate Tribunal by order dated 30.11.2012 whereby the
action of the respondent/Bank as well as the order passed by DRT was
upheld.
3.11 The petitioner assailed the order passed by the DRAT dated
30.11.2012 and the auction sale by filing petition under Article 227 of the
Constitution of India bearing W.P.No.239/2013 before the Division Bench of
this Court seeking relief to set aside the order passed by the DRAT,
Allahabad on 30.11.2012 and to issue directions to the respondent/Bank to
accept the auction bid amount along with interest from the petitioner and
quash the auction sale as well the sale certificate.
3.12 The said W.P.No.239/2013 was dismissed by coordinate
Division Bench by order dated 19.02.2018 holding that the petitioner has
waived her right inasmuch as she has accepted the excess amount over the
loan outstanding.
3.13 The order passed in W.P.No.239/2013 was assailed by the
petitioner in Special Leave to Appeal No.7644/2018 which was disposed of
by order dated 06.04.2018 with liberty to the petitioner to move to High
Court by way of filing the review petition, if so advised. The Supreme Court
also granted leave to the petitioner to approach the Supreme Court once
again in the event if it become so necessary. The said order was passed after
recording the statement of the counsel for the petitioner that a contention was
raised before the High Court that the excess amount was received by
fictitious person who had opened bank account in the name of the petitioner
and the petitioner has not received the said amount and the High Court has
NEUTRAL CITATION NO. 2025:MPHC-JBP:17549
5 WP-2829-2024
decided the writ petition on the premise that the petitioner has received
payment of excess/surplus amount realised upon auction sale without
recording any finding on the issue raised by the petitioner.
3.14 Thereafter, the petitioner preferred R.P.No.680/2018 which was
dismissed as withdrawn in the presence of the petitioner and her counsel on
01.07.2022 and in this way, the challenge to the auction has come to an end.
3.15 Thereafter the Bank approached this Court by filing
W.P.No.27173/2023 aggrieved by inaction on the part of Tahsildar-cum-
Executive Magistrate, Gorakhpur District Jabalpur to execute order of
District Magistrate, Jabalpur passed on 13.04.2011 under Section 14 of the
Act by which the Tahsildar was directed to extend the assistance for
obtaining the possession of the secured assets.
3.16 The said petition was disposed of by the Coordinate Division
Bench of this Court by order dated 06.11.2023 and direction was issued to
execute the order passed by the District Magistrate within 45 days from the
date of receipt of the copy of the order.
3.17 Thereafter, once again petitioner approached this Court seeking
directions to the respondent/Bank to accept the due amount and to redeem
the mortgage of secured assets by way of filing the present writ petition.
4. Learned counsel for the petitioner submits that the petitioner
applied for loan facilities and mortgaged her property in favour of the
respondent/Bank and due to losses occurred in business, the petitioner could
not deposit the loan amount therefore, her bank account was declared as
NPA and the Bank initiated the action under the provision of the SARFAESI
NEUTRAL CITATION NO. 2025:MPHC-JBP:17549
6 WP-2829-2024
Act however, till today, the possession of the secured asset has not been
handed over to the auction purchaser and the petitioner is ready to pay the
entire dues to the Bank and consequently as per the unamended provisions of
Section 13 (8) of the SARFAESI Act, the right of the borrower to redeem the
secured assets is still available. He further submits that the petitioner's right
of redemption could not be terminated on account of auction sale of the
secured assets itself and the same is still alive as the transfer of the property
has not been completed by handing over the possession to the auction
purchaser. He further submits that in the earlier round of litigation, the
petitioner assailed the validity of the action taken by the respondent/Bank as
well as illegality committed in auction sale but the same does not take away
the right of the petitioner to seek redemption of the mortgaged property as
the petitioner is still in the possession of the secured assets.
4.1. To bolster his submission, learned counsel for the petitioner has
relied on the provision of Section 60 of the Transfer of Property Act and the
judgment delivered by the Supreme Court in the matter of Narandas
Karsondas v. S.A Kamtam And Another (1977) 3 SCC 247 whereby
Supreme Court has held that Section 60 of the Transfer of Property Act
reserves the right of the mortgagor to redeem the property till the stage of the
same being conveyed/transferred to the third party. The relevant paragraphs
read as under:
"34. The right of redemption which is embodied in
Section 60 of the Transfer of Property Act is available
to the mortgagor unless it has been extinguished by the
act of parties. The combined effect of Section 54 of the
Transfer of Property Act and Section 17 of the
NEUTRAL CITATION NO. 2025:MPHC-JBP:17549
7 WP-2829-2024
Indian Registration Act is that a contract for sale in
respect of immovable property of the value of more
than one hundred rupees without registration cannot
extinguish the equity of redemption. In India it is only
on execution of the conveyance and registration of
transfer of the mortgagor's interest by registered
instrument that the mortgagor's right of redemption will
be extinguished. The conferment of power to sell
without intervention of the Court in a mortgage deed by
itself will not deprive the mortgagor of his right
to redemption. The extinction of the right of redemption
has to be subsequent to the deed
conferring such power. The right of redemption is not
extinguished at the expiry of the period. The equity of
redemption is not extinguished by mere contract for
sale.
35. The mortgagor's right to redeem will survive until
there has been completion of sale by the mortgagee by a
registered deed. In England a sale of property takes
place by agreement but it is not so in our country. The
power to sell shall not be exercised unless and
until notice in writing requiring payment of the
principal money has been served on the mortgagor.
Further Section 69(3) of the Transfer of Property Act
shows that when a sale has been made in professed
exercise of such a power, the title of the purchaser shall
not be impeachable on the ground that no case had
arisen to authorise the sale. Therefore, until the sale is
complete by registration the mortgagor does not lose
right of redemption."
4.2. He further relied on the judgment delivered by the Apex Court
in the matter of Mathew Vargese Vs. M. Amritha Kumar & Ors. (2014) 5
SCC 610 wherein the Supreme Court upon a combined reading of Section 60
and 54 of the Transfer of Property Act with Section 17 of the Registration
Act, 1908 has held that the extension of the right of redemption comes much
later than the sale notice.
4.3 Counsel for the petitioner relied upon the judgment delivered by
NEUTRAL CITATION NO. 2025:MPHC-JBP:17549
8 WP-2829-2024
the Supreme Court in the matter of Celir LLP Vs. Bafna Motors (Mumbai)
Pvt. Ltd. & Ors. reported in 2024 (2) SCC 1 wherein the Apex Court has
held that in accordance with the unamended Section 13 (8) of the Act, the
right of the borrower to redeem the secured asset was available till the sale or
transfer of secured asset i.e. the borrower's right of redemption did not stand
terminated on the date of the auction sale of the secured asset itself and
remain alive till the transfer or sale of the secured asset or is contemplated in
favour of the auction purchaser. He relied on the conclusion recorded by the
Apex Court in respect of the unamended Section 13 (8) of the SARFAESI
Act which reads as under:
"110.3. In accordance with the unamended Section 13(8) of
the Sarfaesi Act, the right of the borrower to redeem the secured
asset was available till the sale or transfer of such secured asset. In
other words, the borrower's right of redemption did not stand
terminated on the date of the auction-sale of the secured asset
itself and remained alive till the transfer was completed in favour
of the auction-purchaser, by registration of the sale certificate and
delivery of possession of the secured asset."
4.4 Learned counsel for the petitioner further submits that even after
auction sale and issuance of sale certificate, in view of the fact that the
property is still in possession of the petitioner, the sale/transfer is not
complete and therefore, the petitioner is still having the right of redemption
of mortgage as in the present matter the sale was held in the year 2011 and
the provision of Section 13(8) of the SARFAESI Act were amended w.e.f.
01.09.2016 therefore, the unamended Section 13(8) would be applicable to
the present case and the Bank may be directed to accept the auction bid
amount along with interest and expenses and redeem the property.
NEUTRAL CITATION NO. 2025:MPHC-JBP:17549
9 WP-2829-2024
5. Learned counsels appearing on behalf of respondent/Bank as well
as on behalf of auction purchaser vehemently opposed the petition and
argued that present petitioner is a defaulter and challenged the auction
conducted by the Bank at every stage unsuccessfully. The Bank auctioned
the property and after adjusting the dues amount, the surplus auction money
has been returned to the petitioner through a banker's cheque which was
deposited by the petitioner in the bank account and cleared in the year 2011
itself. Therefore, after such a long period when the sale certificate of sale was
affected in the year 2011, the petitioner has now no right to challenge the
same as the challenge to the sale came to an end when the petitioner had
withdrawn the review petition no.660/2018 on 01.07.2022. They further
submit that by way of the present petition the petitioner is trying to challenge
the auction sale again indirectly. It is further submitted that the challenge of
the petitioner that she had not received the surplus amount and someone else
has received the surplus amount, has also come to an end. The petitioner has
already waived her right of redemption and therefore, in the interest of
justice, equity and good conscience, no relief can be granted to the petitioner.
They further submit that the present petition is abuse of process of law and
deserves to be dismissed with exemplary cost.
5.1 Learned counsel for the auction purchaser further submits that
the property has already been auctioned in favour of the auction purchaser
and the auction purchaser has purchased the said property in the year 2010
and paid the complete auction amount at the same time and despite that he
has not been permitted to enjoy the fruits of the property purchased by him.
NEUTRAL CITATION NO. 2025:MPHC-JBP:17549
10 WP-2829-2024
He further submits that petitioner has no right to claim the redemption of
mortgage as the petitioner herself has executed the sale deed in favour of one
Smt. Sandhya Verma on 13.01.2011 by which she transferred her all the
alleged rights to Smt. Sandhya Verma.
6. We considered the arguments advanced by learned counsels for
the parties and perused the documents available on record.
6.1 In the present matter, it is not in dispute that the petitioner had
obtained loan and credit facilities in the year 2003-2004 and mortgaged the
secured asset which is Plot No.204 admeasuring 2740 Sq ft. situated at 2-A
Phase II of JDA Mauza Badanpur, Shakti Nagar, Ekta Vihar, Saheed Gulab
Singh Ward Tahsil and District Jabalpur in favour of the respondent/Bank on
02.01.2004. It is also not in dispute that the petitioner failed to repay the loan
amount and Bank classified the account as NPA w.e.f. 19.10.2009 and
thereafter issued notice to the petitioner under Section 13(2) of the
SARFAESI Act followed by the notice issued under Section 13(4) of the
SARFAESI Act on 01.02.2010 and thereafter issued auction notice on
07.02.2010. It is also not in dispute that the petitioner challenged the action
of the Bank before DRT in S.A. No.137/2010 which was dismissed on
13.12.2010. The second auction notice was published in the news paper on
12.11.2010 and auction was conducted on 22.11.2010 which was also
challenged by the petitioner before DRT in S.A.No.95/2011 and which was
also dismissed by the order dated 25.09.2012. The said order was assailed by
the petitioner before DRAT, Allahabad in Appeal No.R-163/2012 which was
dismissed by order dated 13.11.2012.
NEUTRAL CITATION NO. 2025:MPHC-JBP:17549
11 WP-2829-2024
6.2 The coordinate Bench of this Court by order dated 19.02.2018
passed in W.P.No.239/2013 decided the issues raised by the petitioner and
upheld the order passed by DRT and DRAT after considering the judgment
relied on by the counsel for the petitioner delivered by Supreme Court in the
matter of Mathew Vargese (supra) and recording the findings that the
petitioner had waived her right inasmuch as she has accepted the excess
amount over the loan outstanding. The relevant paragraph of the judgment
reads as under :
"14. In the light of the aforesaid judgments, the
question required to be examined is: whether the
petitioner 'has waived her right to dispute the auction in
not depositing the amount after the notice under Section
13 (2) was issued on 06.11.2009 and withdrawing the
excess amount over the outstanding dues against the
petitioner on 22.01.2011? We find that the petitioner
has waived her right inasmuch as she has accepted the
"excess amount over the loan outstanding. Still further,
in terms of Mathew Vargese's case, the purpose of
Rules 8 and9 is to give sufficient time to the borrower to
settle the outstanding loan amount. However, the loan
amount was not settled after the notice under Section 13
(2) was issued on 06.11.2009. The petitioner did not file
any objections under Section 13 (3A) of the Act as
well. The petitioner deposited a cheque in the sum of
Rs.3,50,000/- but the said cheque was dishonored. Not
only. that, the petitioner has not challenged the auction
in a separate proceedings before the Debts Recovery
Tribunal but was satisfied to file an
interlocutory application in a challenge to proceedings
under Section 14 of the Act. Thus, the conduct of the
petitioner is of non-compliance of the provisions of
the statute one after another."
6.3 In S.L.P. No.7644/2018 by order dated 06.04.2018, the Supreme
NEUTRAL CITATION NO. 2025:MPHC-JBP:17549
12 WP-2829-2024
Court granted liberty to the petitioner to move the review petition before this
Court and also granted liberty to approach the Supreme Court once again in
the event it becomes so necessary. Thereafter the petitioner availed the
remedy of review petition which was preferred mainly on the ground that the
excess amount was not received by the petitioner and the said amount was
received by fictitious person who has opened the bank account in the name
of the petitioner and the petitioner had not received the said amount.
Thereafter the review petition was withdrawn on 01.07.2022 without any
liberty. Meaning thereby; the challenge to the issue that the petitioner has not
received the excess amount came to an end. During oral arguments, counsel
for the petitioner has fairly accepted before this Court that now the petitioner
is not challenging this issue that petitioner has not received the excess
amount paid to the petitioner by bankers cheque issued by respondent, Bank
and the said amount was duly received by the petitioner.
7 . The sole question involved in the present petition requires to be
answered is "whether the petitioner has any right to seek redemption of the
mortgaged property even after receipt of the excess auction amount?"
7.1 Section 60 of the Transfer of Property Act provides a right to the
mortgagor to redeem the mortgage at any time after the principal money has
become due by making payment or tender the same at proper time and place
of the mortgage money, provided that right conferred by this Section has not
been extinguished by act of the parties or by decree of the Court. The right to
redeem may be extinguished by an act of the parties or by a decree of the
Court. The mortgagor's right of redemption is to be exercised by the payment
NEUTRAL CITATION NO. 2025:MPHC-JBP:17549
13 WP-2829-2024
or tender to the mortgagee at the proper time and at the proper place of the
mortgage money and when it is extinguished by the act of the parties, the act
must take the shape and observe the formalities which the law prescribes.
The expression 'act of parties' refers to some transactions subsequent to the
mortgage and standing apart from mortgage transaction. If a mortgagee
exercises his right to auction the mortgaged property and after receipt of the
auction money and adjusting the total due amount pay the balance surplus
money to the mortgagor and the mortgagor accepts the same, said act of the
parties extinguishes the right of the mortgagor to redeem the mortgage.
7.2 Even in the judgment relied upon by the petitioner delivered by
the Supreme Court in the matter of Narandas (supra), the Supreme Court has
held that the right of redemption is available to the mortgagor unless it has
been extinguished by the act of the parties. Meaning thereby; right of the
redemption is not absolute and the same can be extinguished by the act of the
parties. The power to auction the property should not be exercised by the
mortgagee until and unless notice is issued in writing requiring the payment
of principal money has been served on the mortgagor. In the case at hand, the
respondent/Bank i.e. mortgagee issued a notice under Section 13 (2) of the
SARFAESI Act on 06.11.2009 calling upon the petitioner to pay the due
amount with interest within a period of 60 days and thereafter issued another
notice under Section 13 (4) of the Act on 01.02.2010. In this way, the
petitioner was put to knowledge that in case of failure to make the payment,
the property will be auctioned. The sale has already been held valid by the
DRT and the order passed by the DRT has already been upheld by DRAT
NEUTRAL CITATION NO. 2025:MPHC-JBP:17549
14 WP-2829-2024
and by the Coordinate Bench of this Court and the excess sale amount have
been paid to the petitioner. Under these circumstances petitioner has
extinguished her right to redeem the mortgage.
7.3 The Apex Court in the matter of Mathew Vargese (supra) found
no inconsistency between the unamended Section 13(8) of the SARFAESI
Act and general right of redemption under Section 60 of the Transfer of
Property Act, 1882 and held that the right of the borrower to redeem the
secured assets was available to sale and transfer of some secured assets until
and unless by the act of the parties, the same has been extinguished. Similar
view was taken by the Apex Court in the matter of Celir LLP (supra) and it
is held that it is equally well settled that the rights credited for the benefit of
the borrower under the SARFAESI Act can be waived by expressed act of
the parties or by implied conduct of the parties. The relevant paragraphs
read as under:
"64. We are of the view that the failure on the part of
the borrower in tendering the entire dues including the
charges, interest, costs, etc. before the publication of the
auction-notice as required by Section 13(8) of
the Sarfaesi Act, would also sufficiently constitute
extinguishment of right of redemption of mortgage by
the act of parties as per the proviso to Section 60 of the
1882 Act. Furthermore, in the case on hand, there was
no claim for right of redemption by the borrower either
before the publication of the auction-notice or even
thereafter. The borrowers entered into the fray only after
coming to know of the confirmation of auction. Be that
as it may, once Section 13(8) stage was over and
auction stood concluded, it could be said that there was
an intentional relinquishment of his right of redemption
under Section 13(8), whereby the Bank declared the
NEUTRAL CITATION NO. 2025:MPHC-JBP:17549
15 WP-2829-2024
appellant as the successful auction-purchaser having
offered the highest bid in accordance with the terms of
the auction-notice.
65. The Sarfaesi Act is a special law containing an
overriding clause in comparison to any other law in
force. Section 60 of the 1882 Act, is a general law vis-
à-vis the amended Section 13(8) of the Sarfaesi Act
which is special law. The right of redemption is clearly
restricted till the date of publication of the sale notice
under the Sarfaesi Act, whereas the said right continues
under Section 60 of the 1882 Act till the execution of
conveyance of the mortgaged property. The legislative
history has been covered in the preceding paragraphs of
this judgment and how Parliament desired to have
express departure from the general provision of Section
60 of the 1882 Act. The Sarfaesi Act is a special law of
recovery with a paradigm shift that permits expeditious
recovery for the banks and the financial institutions
without intervention of courts. Similarly, Section 13(8)
of the Sarfaesi Act is a departure from the general right
of redemption under the general law i.e. the 1882 Act.
Further, the legislature has in the Objects and Reasons
while passing the amending Act specifically stated "to
facilitate expeditious disposal of recovery applications,
it has been decided to amend the said Acts...". Thus,
while interpreting Section 13(8) vis-à-vis Section 60 of
the 1882 Act, an interpretation which furthers the said
Objects and Reasons should be preferred and adopted. If
the general law is allowed to govern in the manner as
sought to be argued by the borrowers, it will defeat the
very object and purpose as well as the clear language of
the amended Section 13(8).
66. In Mathew Varghese [Mathew Varghese v. M.
Amritha Kumar, (2014) 5 SCC 610 : (2014) 3 SCC
(Civ) 254] this Court had interpreted the unamended
Section 13(8) of the Sarfaesi Act and Section 60 of the
1882 Act respectively. However, thereafter the
legislature amended Section 13(8) of the Sarfaesi Act.
Thus, on this score, the decision in Mathew
Varghese [Mathew Varghese v. M. Amritha Kumar,
(2014) 5 SCC 610 : (2014) 3 SCC (Civ) 254] could be
said to have been partially legislatively overruled as the
NEUTRAL CITATION NO. 2025:MPHC-JBP:17549
16 WP-2829-2024
substratum of the verdict stands altered/amended.
67. Even otherwise, we should not lose sight of the fact
that in Mathew Varghese [Mathew Varghese v. M.
Amritha Kumar, (2014) 5 SCC 610 : (2014) 3 SCC
(Civ) 254] the Court held in regard to the right of
redemption that both the Sarfaesi Act and the 1882 Act
are complementary to each other and equally
applicable. It had held this because, the words "before
the date fixed for transfer" in the unamended Section
13(8), amongst other things also means and connotes
the date of conveyance of the secured asset by a
registered instrument (which is the ordinary process of
extinguishment of right of redemption under the 1882
Act). Since, this Court observed that the stipulation or
expression "date fixed for transfer" could also mean the
date of conveyance/transfer of such secured asset and
being so, is not much different from the ordinary
process of redemption under the 1882 Act, it could not
be said that there was any material inconsistency
between the Sarfaesi Act and the 1882 Act, and thus it
found no reason or hesitation to hold that the 1882 Act
is inapplicable and thus made an endeavour of
harmonising the two.
68. It appears that while considering the right of
redemption of mortgage under the unamended Section
13(8), this Court in Mathew Varghese [Mathew
Varghese v. M. Amritha Kumar, (2014) 5 SCC 610 :
(2014) 3 SCC (Civ) 254] only went so far to say that in
the absence of any material inconsistency between
the Sarfaesi Act and the 1882 Act, there was no good
reason to hold that the 1882 Act would not be
applicable and as such, held that general right of
redemption of mortgage contained in Section 60 of the
1882 Act would apply even in respect of
the Sarfaesi Act."
7.4 In the instant case, the coordinate Division Bench in
W.P.No.239/2013 has categorically recorded the findings that borrower has
accepted the surplus amount of sale consideration after adjusting the loan
amount and thus it amounts to waiver. Said judgment was challenged by the
NEUTRAL CITATION NO. 2025:MPHC-JBP:17549
17 WP-2829-2024
petitioner before the Supreme Court and liberty was granted by the Supreme
Court to file a review petition on the plea that some fictitious person has
encashed the cheque, which review was filed by the petitioner but the same
was withdrawn without any liberty on 01.07.2022. Now the findings
recorded by the Coordinate Bench in earlier round of litigation in
W.P.No.239/2013 has attained finality and therefore, the petitioner has
extinguished her right of redemption by the act of accepting the surplus
amount and is now precluded from claiming the right of redemption. Even
otherwise petitioner cannot be permitted to approach the Court again and
again on the same set of facts. When the action of the Bank taken under the
provisions of the SARFAESI Act was held appropriate and the auction sale
and issuance of sale certificate have already been upheld, no relief for
redemption of mortgage can be granted.
7.5 In the present matter, by the order passed by the Coordinate
Bench in W.P.No.239/2013, the alleged right of the petitioner for redemption
of mortgage has been closed. If the petitioner is permitted to claim the right
of redemption at this stage, that will amount to review of the order passed in
W.P.No.239/2013 whereas the review has already been withdrawn by the
petitioner on 01.07.2022.
8. In the above conspectus, we do not find any merit in the petition.
The petitioner is not entitled for the relief sought by her in the instant
petition. The alleged right of redemption of mortgage has already been
extinguished by the act of the parties and the order of the coordinate Bench
passed in W.P.No.239 of the 2013 has attained finality. Petitioner is not
NEUTRAL CITATION NO. 2025:MPHC-JBP:17549
18 WP-2829-2024
entitled to claim right of redemption of mortgage after accepting the surplus
of auction money. The question involved in the present matter is answered
accordingly.
8.1 Consequently, the present petition sans merit and is hereby
dismissed. There shall be no order as to costs.
(SANJEEV SACHDEVA) (VINAY SARAF)
JUDGE JUDGE
P/-
