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TMI Blog2018 (4) TMI 1247X X X X Extracts X X X X X X X X Extracts X X X X ..... deposited by the petitioner may be adjusted towards the future bid to held on 8th May, 2017; d) That the impugned order contained in Annexure P-10 and P-13 may kindly be quashed and set aside; e) The record of the case may be called for." 2. Undisputed facts necessary for adjudication of the petition are that respondent No.4-Authorized Officer, HDFC Bank Ltd., initiated action under SARFAESI Act against M/s Shivansh Autozone Pvt. Ltd., i.e., its borrower for not repaying the dues of respondent No.2-Bank availed against credit facilities. In this process, respondent No.4 in its capacity as the authorized officer of the bank proceeded under Section 13(4) of SARFAESI Act and took symbolic possession of the property i.e., Commercial Showroom, NH 21, Village Bagla Muhalchalah, Chakkar, Badbast No. 207, Sub Tehsil Bath, Tehsil Sadar, Mandi, District Mandi, H.P. Thereafter respondent No.4 invited bid for auction of the said commercial property by issuing advertisement Annexure P-1. Reserve price of the property was fixed at Rs. 4,50,00,000/-. 29.11.2016 was the date of inspection on which date, property could be inspected between 12:00 noon to 3:00 p.m. The date and time of aucti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the impugned act of respondent- Bank forfeiting the amount so deposited by the petitioner and further putting the property to e-auction is prima facie arbitrary, as the petitioner had already made necessary arrangements for the payment of the entire amount as would be evident from Annexure P-11 and P- 12 appended with the writ petition which demonstrate that petitioner stood granted term loan of Rs. 375.00 lacs for purchase of property in issue by TATA Capital Financial Services Limited which amount was to be disbursed in the month of March, 2017 itself. According to learned Senior Counsel despite petitioner's having made respondent- Bank aware of the fact that the entire amount would be deposited by the month of April, 2017, the impugned action was taken by respondent-Bank to the deterrent of the petitioner. Learned Senior Counsel further argued that there was no undue delay in making the payment on behalf of the petitioner, as petitioner was making arrangements in this regard and delay if any was caused by respondent-bank as there was no confirmation of sale in favour of the petitioner so made by respondents No.2 and 4 to facilitate the petitioner's obtaining the loan for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise of powers conferred by Sub Section (1) and Clause (b) of Sub Section (2) of Section 38 read with Sub Sections (4), (10) and (12) of Section 13 of The Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. Amendment was carried out in these Rules vide SO 1046 (E) dated 3.11.2016 which amendment has come into force w.e.f. 4.11.2016. As per the said amendment, Rule 9 as it stands post amendment reads as under: "9. Time of sale, Issue of sale certificate and delivery of possession, etc.- [(1) No sale of immovable property under these Rules, in first instance shall take place before the expiry of thirty days from the date on which the public notice of sale is published in newspapers as referred to in the proviso to sub-Rule (6) of Rule 8 or notice of sale has been served to the borrower: PROVIDED FURTHER that if the sale of immovable property by any one of the methods specified by sub Rule (5) of Rule 8 fails and sale is required to be conducted again, the authorized officer shall serve, affix and publish notice of sale of note less than fifteen days to the borrower, for any subsequent sale.] (2) The sale shall be confi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... available out of the money deposited by the purchaser such surplus shall be paid to the purchaser within fifteen days, from date of finalisation of the sale.] (8) On such deposit of money for discharge of the encumbrances, the authorised officer [shall] issue or cause the purchaser to issue notices to the persons interested in or entitled to the money deposited with him and take steps to make, the payment accordingly. (9) The authorised officer shall deliver the property to the purchaser free from encumbrances known to the secured creditor on deposit of money as specified in sub-Rule (7) above. (10) The certificate of sale issued under sub-Rule (6) shall specifically mention that whether the purchaser has purchased the immovable secured asset free from any encumbrances known to the secured creditor or not." 11. Sub Rule (4) of Rule 9 as it stands post amendment envisages that the balance amount of purchase price shall be paid by the purchaser to the authorized officer on or before 15th day of confirmation of immovable property or such extended period as may be agreed upon in writing between the purchaser and secured creditor which in any case will not exceed three month ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount that may be sufficient to meet the contingencies or further cost, expenses and interest as may be determined by him. [Provided that if after meeting the cost of removing encumbrances and contingencies there is any surplus available out of money deposited by the purchaser such surplus shall be paid to the purchaser within fifteen day, from date of finalisation of the sale.] (8) On such deposit of money for discharge of the encumbrances, the authorised officer 15[shall] issue or cause the purchaser to issue notices to the persons interested in or entitled to the money deposited with him and take steps to make, the payment accordingly. (9) The authorised officer shall deliver the property to the purchaser free from encumbrances known to the secured creditor on deposit of money as specified in sub-Rule (7) above. (10) The certificate of sale issued under sub-Rule (6) shall specifically mention that whether the purchaser has purchased the immovable secured asset free from any encumbrances known to the secured creditor or not." 13. Sub Rule (4) of un-amended Rule 9 thus, inter alia, provided that the balance amount of purchase shall be paid by the purchaser to the au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that unless a contrary intention appears, a legislation is presumed not to be intended to have a retrospective operation. The idea behind the Rule is that a current law should govern current activities. Law passed today cannot apply to the events of the past. If we do something today, we do it keeping in view the law of today and in force and not tomorrow's backward adjustment of it. Our belief in the nature of the law is founded on the bed rock that every human being is entitled to arrange his affairs by relying on the existing law and should not find that his plans have been retrospectively upset. This principle of law is known as lex prospicit non respicit : law looks forward not backward. As was observed in Phillips vs. Eyre, a retrospective legislation is contrary to the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of past transactions carried on upon the faith of the then existing law. 29. The obvious basis of the principle against retrospectivity is the principle of 'fairness', which must be the basis of every legal Rule as was observe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trol over the subject matter." Though this decision has been rendered by Hon'ble Supreme Court in a service matter, however, the principle of law laid down by the Hon'ble Supreme Court is that every Statute or Statutory Rule is prospective unless it is expressly or by necessary implication made to have retrospective effect and amendment of Rule cannot adversely affect the rights of a party pertaining to a process which already stood commenced before amending Rules came into force. 17. A three Judges' Bench of Hon'ble Supreme Court of India in K. Kuppusamy and another Vs. State of T.N. and others (1998) 8 Supreme Court Cases 469 has held:- "3. The short point on which these appeals must succeed is that the Tribunal fell into an error in taking the view that since the Government had indicated its intention to amend the relevant Rules, its action in proceeding on the assumption of such amendment could not be said to be irrational or arbitrary and, therefore, the consequential orders passed have to be upheld. We are afraid this line of approach cannot be countenanced. The relevant Rules, it is admitted, were framed under the proviso to Article 309 of the Constitution. They are sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w.e.f. 4.11.2016 and the contention of the respondent-Bank that the said bank cannot extend time to the purchaser to deposit amount in excess of three months is ill-founded. 20. Now we will address the second issue as to whether the act of respondents No.2 and 4 of forfeiting the amount so deposited by the petitioner and thereafter subjecting the property to re-auction is arbitrary or not. In our considered view, the impugned acts of respondents No.2 and 4 are arbitrary. This is for the reason that the petitioner had brought it into the notice of respondent Bank on 28.2.2017 that he had funds to pay the entire bid amount to the respondent-bank and that the entire amount shall be paid by the month of April, 2017. Respondent-Bank rather than permitting the petitioner to deposit the balance amount, of course along with interest for the delayed period, went ahead to re-auction the property. Now the reauction was slated for the month of May, 2017 i.e. subsequent to the month in which petitioner had assured respondents No.2 and 4 that he shall be paying the entire purchase amount to the bank. In this view of the matter, according to us, the act of the respondent-bank forfeiting the amou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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