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2018 (3) TMI 198

ed creditor are tendered together with costs, charges and expenses before the date fixed for sale or transfer that the secured asset is not to be sold or transferred. - The appellant, is however, entitled to a refund of his deposit of ₹ 7,00,000 with interest at 9% per annum from the date of deposit till payment - appeal allowed in part. - Civil Appeal No 000148 of 2018 (@ Special Leave Petition (C) No 26428 of 2016) - Dated:- 6-3-2018 - Mr. Dipak Misra, Mr. A M Khanwilkar And Dr D Y Chandrachud For the Appellant : Mr. Rameshwar Prasad Goyal, AOR For the Respondents : Mr. T. Mahipal, AOR JUDGMENT Dr D Y CHANDRACHUD, J 1 The appellant was a guarantor to a loan sanctioned for educational purposes to one Jitendra Kumar. Under the let .....

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February 2016 during the course of which the appellant stated that he would move a redemption application within three days. The proceedings were adjourned to 4 February 2016. No stay was granted on the confirmation of the sale. The sale was confirmed on 2 February 2016. The appellant moved a redemption proposal on 3 February 2016. During the pendency of the proceedings before the DRT, the appellant filed a writ petition before the Allahabad High Court (Writ (C ) 10877 of 2016). The following order was passed on 15 March 2016 by a Division Bench of the Allahabad High Court: Learned counsel for the petitioner upon instructions states that the petitioner is ready and wiling to deposit the entire loan amount within a month. He further submits .....

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oresaid facts sought leave of the Court to permit withdrawal of the writ petition with the liberty to pursue before the Debts Recovery Tribunal. Prayer made is allowed. Writ petition stands dismissed as withdrawn. After the dismissal of the writ petition, the sale certificate was issued on 5 April, 2016 in favour of the auction purchaser. After the confirmation of the sale the bank executed a registered sale deed against the receipt of a total consideration of ₹ 54,41,500. The auction purchasers (respondent nos 3 and 4) took possession of the property. 2 The appellant filed a writ petition before the Allahabad High Court contending that since he was ready and willing to clear the outstanding dues of the bank, he has a right of redempt .....

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t the appellant did not obtain an interim order before the DRT was not a circumstance within his control and the appellant demonstrated his willingness by making a part payment of ₹ 7,00,000. 4 On the other hand, the learned counsel appearing on behalf of the bank and for the auction purchasers supported the order of the High Court. It was urged that despite moving the DRT, the appellant sought relief before the Allahabad High Court in proceeding under Article 226 of the Constitution. After the High Court passed an order on 15 March 2016 recording the statement that the appellant would deposit an amount of ₹ 7,00,000 by 28 March 2016 and the balance by 30 April 2016 the writ petition was withdrawn on 28 March 2016 with liberty t .....

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above principles stated with reference to Section 60 of the T.P. Act in respect of a secured interest in a secured asset in favour of the secured creditor under the provisions of the SARFAESI Act and the relevant Rules applicable, under Section 13(1), a free hand is given to a secured creditor to resort to a sale without the intervention of the Court or Tribunal. However, under Section 13(8), it is clearly stipulated that the mortgagor, i.e. the borrower, who is otherwise called as a debtor, retains his full right to redeem the property by tendering all the dues to the secured creditor at any time before the date fixed for sale or transfer. Under Sub-section (8) of Section 13, as noted earlier, the secured asset should not be sold or trans .....

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deed until 15 March 2016. The stay was extended till 28 March 2016 by which date the appellant was to deposit an amount of ₹ 7,00,000. The balance was required to be deposited by 30 April 2016. While appellant deposited an amount of ₹ 7,00,000 with the bank, he failed to deposit the balance in accordance with the provisions of Section 13(8). Even after the writ proceedings before the High Court was withdrawn, the appellant did not deposit the balance due together with the costs, charges and expenses. The sale was confirmed, a sale certificate was issued and a registered sale deed was executed on 12 April 2016. The appellant failed to ensure compliance with Section 13(8). The right to redemption stands extinguished on the executi .....

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