Allahabad High Court
Sharp Industries vs Bank Of Maharashtra And 3 Others on 14 March, 2024
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:46053-DB Court No. - 40 Case :- SPECIAL APPEAL No. - 220 of 2023 Appellant :- Sharp Industries Respondent :- Bank Of Maharashtra And 3 Others Counsel for Appellant :- Kumar Kartikeya,Vinayak Mithal Counsel for Respondent :- Gaurav Singh,Shruti Malviya,Vivek Yadav Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Syed Qamar Hasan Rizvi,J.
1. This special appeal is directed against judgment and order dated 2.3.2023 passed by the learned Single Judge whereby challenge made to the auction proceedings has been rejected after returning a finding that the appellant-petitioner was aware of its liability and also the transfer of property to the highest bidder.
2. The instant appeal has been filed stating that the right of the appellant-petitioner to redeem the mortgage has been violated in derogation of the applicable provisions. Finding substance in such contention, we passed a detailed order on 5.1.2024, giving an opportunity to the appellant-petitioner to avail its right of redemption of mortgage. Paras 32, 34 and 35 of the order dated 5.1.2024, are extracted hereinafter for reference:-
"32. It is, however, discernible that after the auction was conducted on 10.9.2018 the auction purchaser has deposited the entire amount and has also been issued a sale certificate. This was done in September, 2018. A period of more than five years has expired since then. The auction purchaser is before this Court and it is submitted on its behalf that for no fault of the auction purchaser it has been denied the fruits of the auction settled in its favour.
34. The right of redemption only allows an opportunity to the borrower to repay the entire dues and redeem the secured asset. We are of the view that this Court must ascertain as to whether the appellant is willing to opt for the right of redemption and for such purposes whether it is willing to offer repayment of the dues alongwith interest on the date of notice under Rule 8(6). Records reveal that a sum of Rs. 2,32,03,637/- was the amount due and payable by the appellant as on 5.4.2016, as per the notice sent on the incorrect address i.e. on 16.8.2018. This liability has already been specified. We are of the view that an opportunity ought to be given to the appellant to exercise its right of redemption by offering to pay the entire amount due to the bank in terms of the notice dated 16.8.2018. For such purposes we call upon the appellant to produced a bank draft/banker?s cheque for the aforesaid amount within a period of thirty days which is the statutory time frame available to a borrower for redemption of the secured asset. It is provided that in the event appellant exercises such right this Court will nullify the subsequent acts in terms of the order passed by the appellate tribunal.
35. Let this matter appear once again as fresh on 5.2.2024, in order to extend an opportunity to the appellant to avail its right of redemption of secured asset."
3. A perusal of the above observations would go to show that this Court had protected the right of the appellant-petitioner to apply for redemption and time, in accordance with law, was allowed for such purposes so that the equities could be adjusted. This was particularly so as the property had otherwise been put to auction and sale certificate had been issued.
4. When the matter is taken up today learned counsel for the petitioner stated that the part of the dues are proposed to be cleared, but it is admitted that the entire amount in terms of the notice issued under Section 13(4) of the SARFAESI Act, 2002 dated 16.8.2018 has not been cleared. We, therefore, find that the appellant-petitioner has failed to avail of the right of redemption of mortgage.
5. In that view of the matter, we are of the view that no further relief can be granted in the present appeal to the appellant-petitioner. This special appeal, consequently, fails and is dismissed.
Order Date :- 14.3.2024 RA