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2015 (9) TMI 394 - BOMBAY HIGH COURT

2015 (9) TMI 394 - BOMBAY HIGH COURT - TMI - Recovery proceedings - Whether notice for recovery, as contemplated by Rule 2 was served upon the debtor ? - The prayer is, as Bank and Recovery Officer failed to comply with the mandatory provisions of Rules 48, 49, 50 and 52 of Second Schedule appended with the Income Tax Act, 1961, and did not adopt fair and proper procedure, the sale of subject property by auction, be quashed and set aside and property should be restored back to the petitioners < .....

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always having knowledge of the public notices for sell or of proclamations of sale or of reserved price fixed therein. They do not prove that they became aware for the first time in February or March, 2012. They never raised objections either to fixation of the reserved prices or public notices / proclamations for sale. Scheme of Second Schedule as modified by the DRT Act reveal legislative intent to give the defaulter as much latitude as possible till end. He can, under Rule 60, without assign .....

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of India, it is axiomatic that the petitioners will have to make out an exceptional case. They will have to plead & prove their diligence & also steps taken to warn the bidders of their grievances or of status of subject property. They must see that irregularity, if any, is cured at the earliest & can not indulge in fence-sitting or wait till the proceedings are over & then jump in, in an attempt to unsettle it or to frighten the bidders away. When they want financial institutes like the Respond .....

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ban Cooperative Bank on the basis of same property dis-entitles them to any relief in extraordinary jurisdiction under Art. 226 of the Constitution of India. There is no justification to warrant dispensing with the fetters employed in the scheme of Rule 61 of the Second Schedule of the Income Tax Act. The intervention by this Court under Art. 226 is neither possible nor desirable in this matter. - Decided against assessee. - WRIT PETITION NO. 3742 OF 2012 - Dated:- 10-6-2015 - B. P. DHARMADHIKAR .....

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. We have also perused the orders dated 14/02/2013 and 27/06/2013 passed by us in this matter. 2. Petitioner No. 1 - a Hotel establishment and Petitioner No. 2, its proprietor, question before this Court, recovery of loan by Respondent No. 1 - Secured creditor in Recovery Proceedings No. 9 of 2006. The prayer is, as Bank and Recovery Officer failed to comply with the mandatory provisions of Rules 48, 49, 50 and 52 of Second Schedule appended with the Income Tax Act, 1961, and did not adopt fair .....

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on within a period of 30 days of issuance of appropriate writ, order or direction by this Court. Respondent No. 3 before this Court claims to be the auction purchaser and is placed in possession by Respondent Nos. 1 & 2. 3. Petitioner No. 2 borrowed sum of ₹ 15 lakh from Respondent No. 1 and mortgaged the property as described in para 2 of writ petition i.e. Survey No. 7/4 located at Mouza - Kastakhed, Tahsil - Balapur, District - Akola, which holds a Hotel building of Hotel Paras Gard .....

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12 on 18.05.2012. By this notice, he was called upon to hand over possession after auction. 4. Shri Sadavarte, learned counsel submits that as per knowledge of the petitioner, first public notice for sale of property was issued on 20.09.2006 and it was not forwarded to Petitioner No. 2 at his Jalgaon address. After this sale proclamation, there were 9 more sale proclamations and none was received by the petitioners. Last such proclamations is dated 15.02.2012. This proclamation was published in .....

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is contention. He points out that the provisions of Rules 49, 50 and also Rule 68(b) are violated in the matter. He submits that the authorities which conducted sale are quasi judicial and, therefore, they should have taken due care to find out whether the petitioner has been served with auction notice and the sale is being held within stipulated time. He draws support from the judgment in the case of Manchhabhai Fakirbhai v. Tax Recovery Officer [1997] 228 ITR 393 (Guj.), Boeing Co. v. R.M. Inv .....

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titioner was called upon and he deposited with Bank the title deeds but then the said document does not bear any signature of the petitioner and there are no terms and conditions of alleged mortgage. He is relying upon the judgment in the case of State of Haryana v. Narvir Singh [2014] 1 SCC 105. He also submits that without attachments, sale cannot take place. For said purpose, he places reliance on the judgment of in the case of Tikaram & Sons (P.) Ltd. v. CIT [1983] 142 ITR 319 (All). The .....

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nt valuer, valuation of land was ₹ 37,41,900/- and valuation of Hotel building was ₹ 18,23,700/-. As per ready reckoner in the office of Sub- Registrar, valuation was not less than ₹ 44,95,500/-. Hence, sale in favour of Respondent No. 3 for ₹ 18,42,500/- is far too low consideration. 6. The petitioner obtained loan in 2002 and at that time Government valuer had arrived at said figure of ₹ 16,75,000/-. Thereafter land was converted for Non-agricultural purposes and .....

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fered an amount of ₹ 18,42,500/-. There was no other bidder and Respondent No. 2 has recorded accordingly in bidder sheet. The receipt of part payment of purchase money through Demand draft for ₹ 1,67,500/- dated 27.03.2012 was accepted by the Recovery Officer on 28.03.2012. On that date, Respondent No. 3 sought time till 29.03.2012 evening to deposit balance amount of 15% and that time was given by the Recovery Officer. 8. Shri Sadavarte, learned counsel invites attention to Receipt .....

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of Respondent No. 2 for conducting such auctions and to make properties available at throw away prices to persons like Respondent No. 3. Shri Sadavarte, learned counsel argues that the petitioner was never communicated anything about attachments and as per provisions of Rule 68(b)(i), auction has to be within three years of said attachment. Here, auction has been held after several years and as attachment in such situation lapses, auction is illegal. 9. The Recovery Certificate is dated 01.02.2 .....

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Central Bank of India [2012] 10 SCC 271; Pravin Gada (supra); Mahesh Chandra v. Regional Manager, U.P. Financial Corpn. AIR 1993 SC 935; Jammigumpula Sivaiah v. A.P. State Financial Corpn. [2004] 13 SCC 653; Laxmi Devi v. Mukand Kanwar AIR 1965 SC 834; Satyanarain Bajoria v. Ramnarain Tibrewal AIR 1994 SC 1583; Desh Bandhu Gupta v. N.L. Anand & Rajinder Singh [1994] 1 SCC 131. Ram Kishun v. State of U.P. AIR 2012 SC 2288; T.P. Vishnu Kumar v. Canara Bank [2013] 199 SCL 208. He contends that .....

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il that statutory remedy. Respondent No. 1 - Bank got decree ex-parte on 06.01.2006 and with great difficulty could sale property in 2012. He submits that the petitioner's claim on affidavit that he was never served with any notice, is incorrect. He invites attention to counter affidavit filed by Central Bank of India thereto. At least three acknowledgements of service of notice upon the petitioner at Jalgaon are on record and that service is established. The petitioner was also aware of auc .....

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bmitted the title document to the Bank and the document supporting it has been duly registered by paying necessary stamp duty. The petitioner, therefore, cannot contend that there is no creation of equitable mortgage by deposit of title deeds in favour of Respondent No. 1 - Bank. The Newspapers in which advertisement was published, are also shown to this Court. 11. Section 28 of DRT Act is read out to demonstrate that it permits recovery by resorting to "other modes " and attachment by .....

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nuous process. To point out how the legal provisions of DRT Act have been complied with, he relies upon Sections 19(22), 25, 29 and 28(X) of said Act. 12. Shri Ghate, learned counsel appearing on behalf of Respondent No. 3 begins by placing reliance upon the judgment of Delhi High Court in the case of Unified Agro Industries (India) Ltd. v. Debts Recovery 2000 Delhi 394. He points out that ex- parte decree and, therefore, liability fastened upon the petitioners is not questioned by them anywhere .....

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3. The application for setting aside sale was filed by the petitioners on 22.05.2012 and in prayer clause of said application, they sought time to complete payment as required by law. That prayer is repeated even in present writ petition. He invites attention to the provisions of Rule 16 of Schedule II of Income Tax Act to point out two conditions which the petitioner ought to have fulfilled. He contends that lacunae in said application are attempted to be filled in by moving this writ petition. .....

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rial irregularity is shown by them, sale cannot be set aside under Rule 61. Our attention is invited by him to Ground No. 12 of said application to urge that the petitioner no. 2 only pleads ill-health and bed ridden condition as a ground to set aside sale, he nowhere pleads that earlier notices were not served upon him or any legal provision was violated. The challenge to valuation contained in Ground No. 2 thereafter is also read out to show that it is too vague. 14. The order dated 20.06.2012 .....

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n the case of Unified Agro Industries (India) Ltd . (supra) and Bajirao v. Sanjay Prakashchand Kothari [2015] (2) ALL MR 88. 15. Recent cases of Mathew Varghese v. M. Amritha Kumar [2014] 5 SCC 610 & Vasu P. Shetty v. Hotel Vandana Palace [2014] 5 SCC 660 are pressed into service by him to show that there the provisions of Rule 8 & 9 of the Security Interest (Enforcement) Rules, 2002, are looked into and as present auction is under Second Schedule & DRT Act, provisions of Sections 25 .....

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s that it is only Sections 25 to 28 of DRT Act which must be looked into. Due to provision of Rule 60 in Second Schedule, remedy of appeal under Rule 60 is not available in present matter. He points out that though Respondent Nos. 1 & 2 have alleged service of notice upon the petitioner, they have not produced any acknowledgement of such service either before Respondent No. 2 or before this Court. He submits that Respondent No. 2 - Recovery Officer is not competent to look into application o .....

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isions relating to recovery are contained in Chapter-V of DRT Act ie1993 Act. It is titled as "Recovery of Debt Determined by Tribunal". Section 25 therein is about modes of recovery of debts. As per the said provision, Recovery Officer appointed by the Central Government under Section 7(1) for each Tribunal has to commence recovery proceedings after receipt of a certificate under Section 19 thereof. Section 19 is about the procedure of Tribunals and the certificate specifies the amoun .....

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dment or withdrawal thereof. Section 28 is about other modes of recovery. Its sub-section (1) permits recovery officer to proceed to recover the amount of debt by any one or more of the modes provided under Section 28, and it is without prejudice to the above mentioned three modes of recovery specified in Section 25. Here the recovery officer has not taken recourse to Section 28. Section 28 in short enables the recovery officer to claim and adjust the amount which is payable by any other person, .....

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Tax (Certificate Proceeding) Rules, 1962 as in force from time to time shall, as far as possible, apply with necessary modifications as if the said provision and rule referred to amount of debt due under the 1993 Act, instead of Income Tax. It is also not in dispute that the recovery officer here has proceeded under said second schedule against the petitioner. Perusal of the certificate under section 19(22), which is sought to be executed in present matter reveals that it is signed by the presi .....

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x Recovery Officer has to serve upon the defaulter notice requiring said defaulter to pay amounts specified in a certificate for recovery. Here the Debt Recovery Officer therefore has to serve such notice upon the debtor, after he receives the recovery certificate under Section 19(22) of the 1993 Act. Said notice has to give defaulter time of 15 days from its receipt and the recovery officer has to intimate that otherwise steps to realize the amount would be taken in second schedule, as per Rule .....

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y appointing a receiver for the management of defaulter's movable and immovable properties. Part-II of the Second Schedule is about attachment and sale of movable property. Part-III is about attachment and sale of immovable property. In present matter we are concerned with the provisions of Part-III. 20. Rule 48 in Part-III is about attachment. As stipulated therein, attachment shall be made by an order prohibiting the debtor from transferring or charging the immovable property in any way an .....

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ack to and takes effect from the date on which notice to pay the debt was served upon the debtor. 21. Rule 52 of Second Schedule then deals with the sale and its proclamation. Recovery Officer can direct attachment of the immovable property or portion thereof, as may be necessary to satisfy the certificate, to be sold. Proclamation of intended sale is required to be made in the language of the district. As per Rule 53, proclamation of sale needs to be drawn up after notice to defaulter and has t .....

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recovery officer. As per Rule 55, except without consent of the debtor, no sale of immovable property can take place, until after expiration of at least 30 days calculated from the date on which copy of proclamation of sale has been affixed on property or in the office of the recovery officer, which ever is later. As per Rule 56, sale has to be by public auction to the highest bidder and subject to confirmation by the recovery officer. Rule 57 after such sale, requires the purchaser who has bee .....

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e in the auction in certain contingencies. Said Rule is not relevant in this matter. 22. Rule 60 of the Second Schedule is about application to set aside the sale of immovable property on deposit. The debtor has been given option to apply to the recovery officer to set aside the sale within 30 days from the date of sale, on his depositing the amounts specified in the proclamation of sale and for payment to purchaser as penalty, a sum equal to 5% of the purchase money. Rule 61 enables the debtor .....

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rity. The application made by the debtor is to be disallowed unless the debtor deposits amount recoverable from him in execution of the certificate. Rule 63 is about confirmation of sale. When no application for setting aside this sale is made, or such application is disallowed, if purchaser has paid full amount, the recovery officer has to make an order confirming the sale and thereby sale becomes absolute. It is not in dispute before us that the sale in favour of the Respondent no. 3 has becom .....

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nable, as it violates provisions of Rule 68-B of the Second Schedule to Income Tax Act. The said provision has been inserted by the Finance Act 1992 w.e.f. 01.06.1992 and time limit of 3 years stipulated therein has been extended to 4 years on 01.03.1996. These developments are therefore, before coming into force of the 1993 Act, which adopted said Second Schedule for recovery. Perusal of Rule 68B shows that immovable property cannot be sold under part-III of Schedule II, after expiry of 4 years .....

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nts on it have been advanced by any of the parties. Powers under Section 29 of DRT Act, show that the provision of Second Schedule as in force from time to time apply with necessary modifications, as far as possible. These words "as far as possible" and "with necessary modifications", have been interpreted by the Division Bench of Madras High Court in a ruling J.N. Krishnan v. Canara Bank 2011 (4) CTC 698. The Hon'ble Madras High Court has held that this time limit and th .....

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893 observed :- '31. Considering the importance of the matter and as the issue frequently crops up for consideration we proceed to answer question No.2 as well. In our view, we cannot ignore the plain words of the Statute. Section 29 in clearest terms states that provisions of second and third schedule of I.T. Act and 1962 Rules, as in force from time to time, shall far as possible, apply with necessary modifications as if, the said provisions and Rules refer to the amount of debt due under .....

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t and purpose for which the Statute has been enacted and the mischief that is sought to be taken care of and remedied, are factors which would be extremely relevant in determining such issues. In the case of N.K. Chauhan v. State of Gujarat & Ors . reported in AIR 1977 SC 251 the Supreme Court has held that these words are to be assigned one and the same meaning. Whenever, the Legislature says as far as practicable, as far as possible it conveys one and the same meaning. If the purpose of RD .....

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h it is not possible or advisable to lay down a general rule in this behalf. However. Rule 11 need not be completely adhered to by the Recovery Officer always. If the contentions of Shri Naphade are accepted, it would result in investigation of claim or objection to attachment and sale never achieving any finality in proceedings under R.D.B. Act. If outcome of such investigation is made subject to another round of litigation by way of civil suit, then the very purpose of establishing Tribunals a .....

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izure strictly in accordance with the provisions made in that behalf, would not vitiate the seizure itself once the Legislature does not make it obligatory and mandatory to follow the same. Similar analogy can be applied here. The Parliament does not make it mandatory nor compulsory for the recovery officer to apply the second and third Schedule of I.T. Act and 1962 Rules, advisedly because the Legislature has provided safeguards after investigation of claims and objections by recovery officer. .....

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r all this before a civil court is defeating and frustrating the Legislative Intent completely. Investigation and adjudication cannot be endless. That apart, the remedy to approach this Court in appropriate cases by invoking its jurisdiction under Articles 226 and 227 of the Constitution of India is always available. Hence, question No.2 is answered in these terms that it is not obligatory to apply second and third schedule of I.T. Act and 1962 rules while investigating a claim of objection to a .....

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of DRT Act would be to overlook the legislative intent to expedite the recovery. 26. Here the petitioners were aware of loan & its non-payment. They do not plead & prove efforts made to verify the loan position. They do not point out any intimation of the accident suffered by the petitioner no. 2 to the Bank. They are also not aggrieved by the ex-parte adjudication by DRT on 06.01.2006. They also obtain loan from a Cooperative Bank at Jalgaon for very business on security of same proper .....

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oners expressly plead & argue absence of attachment, the Bank or auction purchaser have not urged that an order of attachment is not necessary. On the contrary, the Bank has pleaded that there is a legal & valid order of attachment, in this case. It is obvious that the Bank has to prove the attachment & it has not produced any such order or even pointed out its date. Public notice of sale or its proclamation does not constitute attachment of the subject property as required in the sc .....

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ersonally at his address at Jalgaon. Names of two guarantors resident of Balapur are also shown there at Sr. Nos.3 and 4. After describing the property put to sale, the Recovery Officer has stated that he has ordered for sale of property mortgaged/attached, on as is, where is basis. There is no dispute between the parties about identity of the property. Later public notice dated 28.02.2007 shows petitioner no.1 and in it name of petitioner no.2 with his address at Jalgaon is added by hand. Again .....

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t use either the word 'Mortgage' or 'Attached'. Public notice dated 11.03.2008, is addressed to petitioners as also their guarantors, and it uses the word "mortgaged/attached". Public notice dated 15.09.2008 is addressed to all 4 and uses very same word. Public notices dated 15.06.2009 and 03.09.2009 are again addressed to all 4 on their respective addresses and uses the word "mortgaged/attached". Thereafter there is a proclamation of sale dated 14.03.2011, wh .....

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shed in "Nagpur Times" dated 23.02.2012, does not use the word "mortgaged". Thus, these are the documents produced on record by the petitioners and not in dispute. Respondents have not pointed out any other public notice or proclamation of sale. 28. At this stage, it will be appropriate to consider the arguments of petitioners that subject property was never mortgaged by them with the respondent no.1 Bank. In prayer clause 3 of the memo of writ petition, there is request to d .....

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enjoyment of that property. Petitioner had sought loan on 01.01.2002 and availed it. Before that he gave an affidavit, which is also dated 01.01.2002. Petitioner no.1 in that affidavit has described subject property, his ownership and possession over it. He has also asserted that it is unencumbered. He has declared that if bank sanctions him loan, he would mortgage it with the Bank. Bank has produced before this Court a document by which title documents of subject property were deposited with it .....

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tter of Balapur Branch have been accepted. It is also stated that he deposited all papers with the Bank with an intention to create equitable mortgage for securing loan of ₹ 15 lacs sanctioned to him by Balapur Branch of respondent no.1. It is declared that thus equitable mortgage to secure that loan has been created. Petitioners have urged that this document is not signed by them. However, the fact that title deeds were with the Bank and that he purchased stamp paper of ₹ 5000/- is .....

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loan is secured by mortgage of subject property. The operative part also stipulates that charge for recovery of ₹ 17,30,591/- with future interest @ 15 p.a. from the date of application till recovery is kept on properties mortgaged/hypothecated in favour of the Creditor/Bank. The bank has been given liberty to sell the mortgaged property for realizing the dues two months after the date of said order, This order of DRT has neither been challenged or assailed in the arguments. Therefore, it .....

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f unit has to be by public auction. Valuation of unit for the purpose of determining the adequacy of offer should always be intimated to the unit holder to enable him to file objection. When ever highest offer in tender is accepted, it must be intimated to the unit holder, and if the unit holder offers same price, then he should be given preference. If he brings third party with higher offer, his bonafides can be tested and then highest offer can be accepted. Here, as we have already noted above .....

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Bajoria (supra) relied upon by the petitioners considers the provision of Order 21 Rule 19 and 22 of Code of Civil Procedure. The Hon'ble Apex Court has held that service of notice of execution application as per Rule 22 on judgment debtor must be equally proved and mention thereof in order sheet is not sufficient. Desh Bandhu Gupta (supra), considers the provision of Order 21 Rule 66[2] and 54[1-A] of Civil Procedure Code. It is held that service of notice on judgment debtor is mandatory an .....

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stipulates that notice to judgment debtor is necessary at every stage. When attachment of property and issuance of sale proclamation was done without notice to him, and valuation of property was also not done, the Hon'ble Apex Court has found sale to be vitiated. In Narvir Singh (supra), the Hon'ble Apex Court has declared that when a memorandum is prepared to evidence handing over of deposit of title deeds by borrower to creditor, it does not require registration. However, if the memor .....

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. Vishnu Kumar (supra), the Hon'ble Apex Court has considered the provisions of DRT Act, particularly Section 17 and availability of remedy under Article 226. It has been held that Article 226 of the Constitution of India cannot be resorted to unless there is violation of any statutory provisions resulting into prejudice to the party or where such proceedings or auction is wholly arbitrary, unreasonable and unfair. In Ram Kishun (supra), the Hon'ble Apex Court has held that there has to .....

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lso assume importance. Second Schedule Rule 60 of the Income Tax Act deals with the application to set aside sale of immovable property on deposit. It reads :- "60. Application to set aside sale of immovable property on deposit .- (1) Where immovable property has been sold in execution of a certificate, the defaulter, or any person whose interests are affected by the sale, may, at any time within thirty days from the date of the sale, apply to the Tax Recovery Officer to set aside the sale, .....

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n under Rule 61 for setting aside the sale of his immovable property, he shall not, unless he withdraws that application, be entitled to make or prosecute an application under this rule." Thus this provision nowhere expects the debtor to show any "injury" & gives him absolute right to expunge his loan liability without any obstacles, if he is ready & willing to pay the amounts as prescribed therein. It gives him one more opportunity to clear the liability, before finally s .....

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interests are affected by the sale, may, at any time, within thirty days from the date of the sale, apply to the Tax Recovery Officer to set aside the sale of the immovable property on the ground that notice was not served on the defaulter to pay the arrears as required by this Schedule or on the ground of a material irregularity in publishing or conducting the sale: Provided that- (a) no sale shall be set aside on any such ground unless the Tax Recovery Officer is satisfied that the applicant h .....

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t deposit the amount recoverable from him in execution of the recovery certificate. In either case, applicant has to establish that either (1) notice to pay the arrears was not served upon the defaulter as per the Second Schedule or then, (2) there has been a material irregularity in publishing or conducting the sale. These requirements are made more stringent in as much as the proviso mandates reaching of a satisfaction by the recovery officer & hence, (3) obliges applicants to demonstrate .....

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mes significance. An application which otherwise could have been allowed because the three ingredients noted supra are satisfied, stands rejected i.e. disallowed if the deposit as stipulated in proviso (b) is not made. 33. Latest judgment of Hon'ble Apex Court Vasu P. Shetty (supra) also considers its little earlier judgment in Mathew Varghese (supra). In Vasu P. Shetty (supra) the Hon'ble Apex Court has observed :- "18. It can, thus, be seen that there is no conflict between the tw .....

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fell for consideration in the earlier two judgments. Therefore, we see no force in the contention of the learned Senior Counsel of the appellant that the judgment in Mathew Varghese goes contrary to the law laid down in Ikbal case. 19. The only question, therefore, is as to whether it can be held that the borrower in the present case had also waived the mandatory provisions of Rules 8 and 9 of the Rules. We may remark that it is expressly clarified in Ikbal case itself that the question whether .....

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o non-service of notice or alleged irregularity. Proviso (b) adds one more element or factor i.e. deposit of the amount. We, therefore find substance in the contention of Adv. Ghate that ipso facto, these judgments of the Hon. Apex Court can not be used here. 34. Inconsistent stand on mortgage by the petitioners is already noted by us above. Respondent no. 1 Bank has denied knowledge of the accident suffered by the petitioner no. 2 or then the consequential closure of the business. Despite this, .....

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s & not arbitrary. It was made known to all well in advance & petitioners could have objected to it & pressed their valuation report. Copy of valuation report dated 10/04/2013 prepared by Navin Dhotarkar, Govt. Approved Valuer is produced before this Court with a pursis & without any affidavit on 05.03.2015, Petitioners have not placed before this Court any offer even exceeding the price quoted by Respondent no. 3, though they got period of about three years. In affidavit dated 0 .....

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eds with Respondent 1 was not pointed out to the Mahavir Bank by the petitioners. The petitioners enjoyed loan from both the Banks & kept them in dark about it. In affidavit dated 22/05/2012 filed before the recovery officer for setting aside the sale dated 28/03/2012 as confirmed on 30/04/2012, valuation of subject property at ₹ 1 Crore & ill health or being bed-ridden are the only grounds canvassed by the Petitioners. In impugned order dated 20/06/2012, the recovery officer has r .....

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l injury" has been pleaded, there is no need to delve into it. As the petitioners did not deposit amount as per mandate of proviso "b" to Rule 61, their application was & is liable to be "disallowed". Petitioners before us did not raise any objection at suitable stage though they could have taken it & did not inform the creditor Bank about other loan borrowed against the subject property from Shri Mahavir Urban Cooperative Society Ltd., Jalgaon. Thus, they themse .....

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time of thirty days though they could have done so. They have approached this Court in its extraordinary jurisdiction directly, that too without making any deposit. In prayer clause of the petition, they seek time to deposit, but till date have not chosen to deposit a single naya paisa. Period for which such an extension was sought is also not clearly spelt out. Pleadings in petition show that petitioners were always having knowledge of the public notices for sell or of proclamations of sale or .....

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ime, avoid auction & protect his property. Process becomes difficult & he is asked to meet the ingredients of Rule 61 only thereafter. Thus after stage of Rule 60 is over, right of petitioners/borrowers get diluted & primacy is given to the creditor Bank & interest of the auction purchaser like respondent no. 3 herein. Legislature has till Rule 60 shown some inclination to lean in favour of the borrower who wants to save his property or business. But then it has envisaged an equi .....

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