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2016 (4) TMI 267 - BOMBAY HIGH COURT

2016 (4) TMI 267 - BOMBAY HIGH COURT - TMI - Recovery proceedings - Auction sale - rejection of application for deferment of the confirmation of sale - Held that:- Immovable property sold in execution of a Recovery Certificate - Held that:- The bid of the highest bidder viz. IPCA Laboratories Ltd. (Respondent No.2) was kept for consideration whereas the other bids were returned. It was also made clear that the sale of the mortgaged property would be concluded only after seeing the order of the I .....

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ial Court and therefore illegal and / or vitiated. As mentioned earlier, on the date when the bids were opened, a copy of the said order of the Industrial Court was not placed before the Recovery officer as is categorically recorded in the roznama. We therefore have no hesitation in rejecting this argument.

Whether the sale of the mortgaged property was vitiated on the ground that the Recovery officer had not followed the mandatory provisions of rule 15(2) of Second Schedule to the In .....

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unt sought to be recovered under the Recovery Certificate is deposited with the Recovery Officer. In the facts of the present case, as mentioned earlier, no such application was ever preferred by the Petitioners and no deposit has been made. The reason for the same is not far to see. It is because the Petitioners were aware that before their application to set aside the sale could be entertained by the Recovery Officer, they would be required to deposit the decretal amount. Since they had no int .....

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pt the submissions of the Petitioners, it would effectively mean that the Petitioners are now allowed to challenge the sale of the mortgaged property without complying with the mandatory provisions of rules 60 and 61 and which sale was never challenged till the filing of this Writ Petition. In this view of the matter, we find absolutely no substance

Whether Recovery Officer erred in confirming the sale of the mortgaged property under rule 56 of the Second Schedule to the Income Tax Ac .....

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ust also mention here that the OTS sanctioned by the Respondent Bank stipulated that the payment of ₹ 3.03 crores had to be made on or before 20th September, 2005. This amount admittedly was not deposited by the aforesaid date and in fact has not been deposited even till date. The facts of this case would clearly reveal that the Petitioners have no intention of paying the dues of the Respondent Bank and are only seeking to thwart the sale of mortgaged property on one pretext or the oth .....

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s that the observations of the Supreme Court have to be read and understood. In the facts of the present case, admittedly, the dues of the Respondent Bank have not been satisfied. We therefore have no hesitation in rejecting this argument of the Petitioners.

The Respondent Bank, has on an earlier occasion, sought to settle the dues with the Petitioners without any success. Despite this, the Respondent Bank once again gave an opportunity to the Petitioners to settle their dues by .....

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res by entering into a One Time Settlement Scheme. We do not read the RBI guidelines to mean that irrespective of the fact that the debtor has already defaulted in making payment of an earlier sanctioned OTS, would still continue to get the benefit of the RBI guidelines indefinitely. In any event, this argument (regarding the OTS being in violation of the RBI guidelines) has been dealt with by the authorities below in great detail and we do not think that the findings of these authorities are in .....

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Counsel with Mr Aditya Shiralkar i/b M/s Shiralkar and Co. JUDGMENT [ Per B. P. Colabawalla J. ] :- 1. By this Writ Petition under Article 226 of the Constitution of India, the Petitioners have challenged the order dated 9th December, 2013 passed by the Debts Recovery Appellate Tribunal, Mumbai (for short, the DRAT ) as well as the orders dated 19th September, 2008 and 27th September, 2005 passed by the Debts Recovery Tribunal (for short, the DRT ) and the Recovery Officer respectively. In addit .....

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date as this Court may deem fit. This Writ Petition was admitted on 11th November, 2014 and the hearing of the same was expedited. This is how the Writ Petition has come up for hearing and final disposal before us. Since Petitioner No.2 appeared in person, we have heard him at length. He has also filed verbose written arguments which we shall deal with later in this judgment. 2. The brief facts giving rise to the present controversy and which are not really in dispute are that Petitioner No.1 i .....

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ilding and other structures, comprising of a built up area of about 18,327 sq.ft. (hereinafter referred to as the mortgaged property ). 3. It is not in dispute that the Petitioners committed defaults in repayment of the credit facilities availed by it. In view thereof, the Respondent - Bank, in 1998 filed a suit in this Court against the Petitioners & others inter alia for recovery of an amount of ₹ 4.14 crores together with interest. Thereafter, in 1999 this suit was transferred to DR .....

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he Respondent - Bank settled the dues of the Petitioners for ₹ 2.25 crores with further interest thereon. In the said consent terms, it was provided that an amount of 2.25 crores was to be paid in the manner set out therein and latest by 31st March, 2003. 5. It is undisputed that the Petitioners failed to abide by the consent terms and pay the amounts within the time-frame stipulated therein. In these circumstances, the Respondent - Bank preferred Miscellaneous Application No.130 of 2002 b .....

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nt, the Presiding Officer on 30th October, 2003 issued a Recovery Certificate which gave rise to Recovery Proceedings No.348 of 2003. 6. Consequent to the Recovery Proceedings being initiated, the Recovery Officer, on 31st March 2004, issued a demand notice on the Petitioners calling upon them to pay the dues under the Recovery Certificate. Admittedly, the Petitioners could not comply with the requisitions of the demand notice and therefore the Recovery Officer on 15th October, 2004 attached the .....

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crores. However, before this bid could be accepted by the Recovery Officer, he was informed of an order of interim injunction passed by the Industrial Court restraining the Bank from selling the mortgaged property. However, a copy of the order was not made available to the Recovery Officer. In view thereof, the Recovery Officer, in all fairness did not accept the bid on that date and deferred the same. Thereafter, the Respondent - Bank approached the Industrial Court and the Industrial Court vi .....

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.2 (IPCA Laboratories Ltd.) deposited the sale price within the time schedule allowed by the Recovery Officer. 8. On the date when the matter was kept for confirmation of sale (i.e. on 26th September, 2005), the Recovery Officer was on leave. Therefore, the matter was adjourned to 27th September, 2005. The Recovery officer on 27th September, 2005 confirmed the sale in favour of Respondent No.2 as they had paid the entire sale consideration and the Petitioners had not moved any application for se .....

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ount of ₹ 3.03 crores by 20th September, 2005. It was however her contention that the letter communicating the acceptance of the OTS was communicated to the Petitioners only on 21st September, 2005 and therefore a request was made to the Respondent - Bank to extend time for payment of the OTS amount to 30th September, 2005. Keeping these facts in mind, she prayed that the Recovery Officer stay/defer the confirmation of sale at least for one month. It is pertinent to note that even though i .....

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er 2005, the Petitioners directly approached this Court in its writ jurisdiction. This Writ Petition was withdrawn with liberty to file an appeal under section 30 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 (for short, the RDDB Act ) before the DRT. 10. Pursuant to the aforesaid liberty, the Petitioners approached the DRT by filing an appeal under section 30 of the RDDB Act challenging the order dated 27th September, 2005 passed by the Recovery Officer. Since the a .....

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or before 9th January, 2006. Admittedly, this amount was not deposited with the Respondent - Bank as directed by the DRAT. Therefore, after 9th January, 2006 there was no impediment in proceeding with the sale of the mortgaged property. In view thereof, the Recovery Officer vide his order dated 20th January, 2006 directed the Petitioners to handover possession of the mortgaged property to the auction purchaser viz. Respondent No.2 and also issued a sale certificate in their favour. Be that as i .....

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lication filed by the Petitioners before the Recovery Officer had become infructuous as the same was for deferment of confirmation of sale but the sale had already been confirmed by the Recovery Officer and the sale certificate was also issued in favour of Respondent No.2. In fact, even possession of the mortgaged property was handed over to Respondent No.2 and therefore, the reliefs sought for by the Petitioners in their application (for deferment of confirmation of sale) had become infructuous .....

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e to the Income Tax Act, 1961 under which the Petitioners could approach the Recovery Officer for setting aside the sale. The Petitioners had deliberately not approached the Recovery Officer by invoking the said provisions as they would have been required to deposit the decretal amount due under the Recovery Certificate before their application for setting aside the sale could be considered. It is only in light of the fact that they had no intention to deposit the aforesaid amount as required un .....

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order dated 19th September, 2008 dismissed the appeal filed by the Petitioners under section 30 of the RDDB Act. 12. Being aggrieved by this order of the DRT, the Petitioners approached the DRAT raising several contentions. One of the primary contentions raised was that the OTS sanctioned by the Respondent - Bank was contrary to the RBI guidelines dated 3rd September, 2005. It was the contention of the Petitioners that the OTS sanctioned by the Respondent - Bank on 16th September, 2005 giving t .....

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hone on the same day by their Deputy General Manager (Mr Bhaskar K. Mahajan). According to the Respondent - Bank, Petitioner No.2 was also informed that as per OTS sanctioned, the Petitioners were required to pay an amount of ₹ 3.03 crores by 20th September, 2005. The reason for the delay in sending the letter sanctioning the OTS was that the same was not signed by the chairman and therefore the same could not be communicated in writing to the Petitioners. It is only for this reason that t .....

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arguments are quite verbose, there are basically five points raised by him in the said written arguments. They are as follows:- (i) The Recovery Officer could not have opened the bids received for sale of the mortgaged property on 27th June, 2005 as there was a stay order granted by the Industrial Court and the same was in operation on the said date. (ii) The Recovery Officer had not followed rule 15(2) of the Second Schedule to the Income Tax Act, 1961 which inter alia stipulates that when the .....

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guidelines issued by the Reserve Bank of India on 3rd September, 2005. (v) Since the mortgaged property has lost its original shape and cannot be returned to the Petitioners in its original form, an appropriate writ of monetary compensation be issued to the auction purchaser (Respondent No.2 herein). 15. Before we deal with the arguments that have been canvassed on behalf of the Petitioners, it would be important to note the scope of the appeals that were filed before the DRT as well as the DRA .....

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in its writ jurisdiction. After this Writ Petition was heard for some time, the same was withdrawn with liberty to file an appeal under section 30 of the RDDB Act before the DRT. As per the said liberty, the Petitioners filed an appeal before the DRT and also made an application for condonation of delay. That application was initially rejected by the DRT on 19th December, 2005 but was allowed by the DRAT vide its order and judgment dated 11th January, 2008. It is pertinent to note that the DRAT .....

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mber, 2008 dismissed the appeal of the Petitioners. Whilst dismissing the appeal, the DRT recorded that the appeal before it was not directed against the refusal by the Recovery Officer to set aside the sale. In fact, in paragraph 10 of the said order, the DRT records that the Petitioners had never made any application for setting aside the sale of the mortgaged property and did not avail of the rights available to it under rule 60 or 61 of the Second Schedule to the Income Tax Act, 1961 from th .....

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the confirmation of sale. This is also clear from the fact that for setting aside the sale, the Second Schedule to the Income Tax Act, 1961 and more particularly, rules 60 and 61, inter alia stipulate that where an immovable property has been sold in execution of the certificate, the defaulter or any person whose interests are affected by the sale may, at any time within 30 days from the date of the sale, apply to the Recovery officer to set aside the sale subject to him fulfilling the condition .....

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7. The first argument canvassed on behalf of the Petitioners was that the Recovery officer could not have opened the bids received for sale of the mortgaged property on 27th June, 2005 as there was a stay order granted by the Industrial Court and the same was in operation on the said date. Firstly, we find that no such argument was canvassed on behalf of the Petitioners either before the DRT or the DRAT in the appeals filed by the Petitioners under the provisions of the RDDB Act. This argument i .....

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e to the Recovery Officer. It is in this light that the Recovery Officer recorded that there was no order before him restraining him from conducting the sale of the mortgaged property despite public notice being given in the newspapers. The Recovery Officer further recorded that taking into account the public interest and the fact that the bidders had deposited the earnest money deposit, he decided to open the bids of both immovable and movable properties. The bid of the highest bidder viz. IPCA .....

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se facts, we are unable to agree with the submission of the Petitioners that the Recovery Officer's actions of opening the bids for sale of the mortgaged property was in the teeth of the stay order granted by the Industrial Court and therefore illegal and / or vitiated. As mentioned earlier, on the date when the bids were opened, a copy of the said order of the Industrial Court was not placed before the Recovery officer as is categorically recorded in the roznama. We therefore have no hesita .....

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he sale itself was vitiated as the sale was in violation of the said rules, was the submission. 19. At the outset, we must note that even this argument that is now canvassed before us was never canvassed either before the DRT or the DRAT. We therefore do not think that it would be fair to allow the Petitioners to canvass this argument for the first time before us in our writ jurisdiction. Be that as it may, even otherwise, we find that in the facts of the present case, the reliance placed on the .....

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uch adjournment shall be made without the leave of the Tax Recovery Officer; (2) Where a sale of immovable property is adjourned under sub-rule (1) for a longer period than one calendar month, a fresh proclamation of sale under this Schedule shall be made unless the defaulter consents to waive it. (3) Every sale shall be stopped if, before that lot is knocked down, the arrears and costs (including the costs of the sale) are tendered to the officer conducting the sale or proof is given to his sat .....

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made unless the defaulter consents to waive it. Sub-rule (3) provides that every sale shall be stopped if, before the lot is knocked down, the arrears and costs (including the costs of the sale) are tendered to the officer conducting the sale or proof is given to his satisfaction that the amount of such arrears and costs have been paid to the Tax Recovery Officer who ordered the sale. In the facts of the present case, admittedly, the decretal amount as provided under sub-rule (3) of rule 15 was .....

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er the confirmation of sale was challenged before the DRT as well as the DRAT. Here it would be important to note the provisions of rules 60 & 61 which inter alia mandate that before a sale can be set aside, the defaulter has to deposit the amount specified in the proclamation of sale with interest thereon. Rule 60 prior to its amendment in 2007 read thus:- 60. Application to set aside sale of immovable property on deposit.-(1) Where immovable property has been sold in execution of a certifi .....

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to the purchaser as penalty, a sum equal to five per cent of the purchase-money, but not less than one rupee. (2) Where a person makes an application 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. (emphasis supplied) 22. Rule 60(1) of the Second Schedule to the Income Tax Act, 1961 clearly stipulates that where an immovable property has been sold in execution .....

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rule 61, he would not be allowed to prosecute his application under rule 60 unless he withdraws his application preferred under rule 61. 23. On similar lines, rule 61 reads as under:- 61. Application to set aside sale of immovable property on ground of non-service of notice or irregularity.-Where immovable property has been sold in execution of a certificate, such Income Tax Officer as may be authorised by the Chief Commissioner or Commissioner in this behalf, the defaulter, or any person whose .....

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has sustained substantial injury by reason of the non-service or irregularity; and (b) an application made by a defaulter under this rule shall be disallowed unless the applicant deposits the amount recoverable from him in the execution of the certificate. (emphasis supplied) 24. Rule 61 provides for an application to set aside a sale of an immovable property on the ground of non-service of notice or any material irregularity in publishing or conducting the sale. Rule 61 stipulates that where an .....

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shall be set aside on any such ground unless the Recovery Officer is satisfied that the applicant has sustained substantial injury by reason of the non-service or material irregularity, as the case maybe and proviso (b) stipulates that an application made by a defaulter under this rule shall be disallowed unless the applicant deposits the amount recoverable from him in the execution of the Certificate. 25. The provisions of rules 60 and 61 are clear and unambiguous. In a nutshell, these rules p .....

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not far to see. It is because the Petitioners were aware that before their application to set aside the sale could be entertained by the Recovery Officer, they would be required to deposit the decretal amount. Since they had no intention to deposit the decretal amount, the Petitioners preferred not to challenge the sale of the mortgaged property but instead only made an application for deferment of the confirmation of sale. Having chosen this course of action all throughout, we cannot permit th .....

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of this Writ Petition. In this view of the matter, we find absolutely no substance in this argument and the decisions of the Supreme Court relied upon by the Petitioners in the case of (i) Mathew Varghese v/s M. Amritha Kumar and others, reported in (2014) 5 SCC 610; (ii) J. Rajiv Subramaniyan and anr. v/s M/s Pandiyas and others, reported in (2014) 5 SCC 651; and (iii) Vasu P. Shetty v/s M/s Hotel Vandana Pvt. Ltd., reported in (2014) 5 SCC 660 are wholly inapplicable to the facts and circumst .....

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espondent - Bank. According to the Petitioners, it was brought to the notice of the Recovery Officer that the Respondent - Bank had sanctioned the OTS and therefore, the Recovery Officer ought to have deferred the confirmation of sale and not proceeded with the same under rule 56 of the Second Schedule to the Income Tax Act, 1961. Firstly, we find that rule 56 deals with sale by public auction. Rule 56 states that the sale shall be by public auction to the highest bidder and shall be subject to .....

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63 stipulates that where no application is made for setting aside the sale under the foregoing rules or where such an application is made and disallowed by the Recovery Officer, he shall (if the full amount of the purchase money has been paid) make an order confirming the sale and thereupon the sale shall become absolute. In the facts of the present case, it has been found as a matter of fact by the authorities below that the application for deferment of sale made by the wife of Petitioner No.2 .....

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the Recovery Officer shall (if the full amount of the purchase money has been paid) make an order confirming the sale. It is not in dispute that no application for setting aside the sale was ever preferred by the Petitioners. In this view of the matter, no fault can be found in the actions of the Recovery officer in confirming the sale in favour of the auction purchaser. This is more so, in view of the fact that the application made for deferment of confirmation of sale was filed before the Rec .....

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wart the sale of mortgaged property on one pretext or the other. We therefore find no substance in this argument. Equally, we find that the reliance placed by the Petitioners on a decision of the Supreme Court in the case of Mohan Wahi v/s CIT, Varanasi and others, reported in (2001) 4 SCC 362 is wholly misplaced. The issue before the Supreme Court was whether the Tax Recovery officer could have confirmed the sale on a particular date when in fact the demand for tax for which the property was so .....

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pay the OTS amount by 20th September, 2005 (i.e. one day before the date on which the OTS was communicated) is contrary to the RBI guidelines issued on 3rd September, 2005 and the actions of the Bank are violative of Article 14 of the Constitution of India. 28. It was urged on behalf of the Petitioners that the OTS that was sanctioned by the Respondent - Bank on 16th September, 2005 required the Petitioners to pay the OTS amount on or before 20th September, 2005. Petitioner No.2 submitted that h .....

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public sector banks. The further submission of the Petitioners was that the actions of the Bank by giving the Petitioners only four days' time to make payment under the said OTS was clearly violative of Article 14 of the Constitution of India inasmuch as to several other parties, time to make payment under their respective OTS was ranging from two months to six months. In this view of the matter, the Petitioners submitted that the Respondent - Bank be ordered and directed to accept the amoun .....

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r, the said suit was transferred in the year 1999 to the DRT and was numbered as Original Application No.2161 of 1999. Whilst this Original Application was pending, the Petitioners and the Respondent - Bank arrived at a settlement. In view of this settlement, consent terms were filed by the parties in the pending Original Application on 19th October, 2001 on the basis of which the Original Application was disposed of. Under the said consent terms, the Petitioners were required to make payment of .....

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ssued a Recovery Certificate in the sum of ₹ 4.14 crores (the decretal amount claimed in the Original Application). 30. These facts would clearly reveal that the Respondent - Bank, has on an earlier occasion, sought to settle the dues with the Petitioners without any success. Despite this, the Respondent - Bank once again gave an opportunity to the Petitioners to settle their dues by paying a sum of ₹ 3.03 crores by 20th September, 2005. Admittedly, no payment was made. In these fact .....

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nd that the authorities below have found as a matter of fact that the sanction of this OTS was communicated to Petitioner No.2 on his mobile phone on the very same day (i.e. 16th September, 2005) by one Mr Bhaskar A. Mahajan, Deputy General Manager, Mumbai City Region, of the Respondent - Bank. Petitioner No.2 was informed of the approval of the OTS and that he had to deposit the OTS amount of ₹ 3.03 crores by 20th September, 2005. The reason for delay in sending the letter approving the O .....

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nt of ₹ 3.05 crores. Admittedly, the same was not deposited. The totality of all these facts would clearly lead to an inference that the Petitioners never had any intention of honouring any settlement arrived at with the Respondent - Bank and these arguments are being canvassed only to somehow thwart the sale of the mortgaged property which has become absolute and the possession of which has also been handed over to the auction purchaser as far back as in January, 2006. In these facts, we .....

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any event, this argument (regarding the OTS being in violation of the RBI guidelines) has been dealt with by the authorities below in great detail and we do not think that the findings of these authorities are in any way perverse and / or arbitrary requiring interference in our extraordinary, equitable and discretionary jurisdiction under Article 226 of the Constitution of India. We therefore do not find any substance in this argument. 32. In view of the fact that we have rejected the arguments .....

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