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12. It has been argued that the petitioner deposited 10% of the Reserve Price Amount fixed by the Respondent Nos. 4 & 5 i.e., Rs.47,50,000/-on 29.08.2018 vide Demand Draft bearing No. 032417, dated 29.08.2018.

13. The submission of the petitioner is that only the 10% of the reserve price was to be deposited through DD/RTGS/NEFT. This 10% of the reserve price had to be deposited, before the submission of the tender online. There was no such condition attached to the deposit of the remaining 15% amount, which had to be deposited on the same day, or on the next working day. The tender document did not mandate that 15% of the Sale Amount is to be paid through DD/RTGS/NEFT, and there was no bar in the tender document against the making of the payment of the balance 15% through cheque.

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xiii) In case of immovable property, the successful bidder will have to pay 25% of the Sale Price (less 10% EMD amount deposited/ submitted along with the bid) immediately i.e. on the same day or not later than next working day by DD / RTGS / NEFT in favour of India bulls Commercial Credit Limited"

and the balance 75% payment by way of DD / RTGS / NEFT/ Cheque on or before the 15 days of confirmation of sale by the Auctioneer. Auctioneer may, on the written request of the successful bidder, at its discretion allow further time to pay the balance amount as may be agreed between the purchaser and secured creditor, in any case not exceeding three months (from the date of confirmation of sale). In the event of any default in payment of any of these amounts, or if the sale is not completed by reason of any default on the part of the purchaser, the Auctioneer shall be entitled to forfeit all the amounts till then paid by the purchaser and put up the property, in question, for re-auction/resale/disposal in its absolute discretion, and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may be subsequently sold."

28. Respondent No.4 submitted that the deposit of 15% by way of cheque was valid deposit. The Supreme Court in K. Saraswathy (Dead) by LRs vs. P.S.S. Somasundaram Chettiar, (1989) 4 SCC 527, had categorically held that payment by cheque realized subsequently on the cheque being honoured and encashed, relates back to the date of the receipt of the cheque, and in law the date of payment is the date of delivery of the cheque. Moreover, as per the bid form, only 10% EMD was to be paid by DD/RTGS/NEFT, which was compiled by the Petitioner. The incongruity in the Sale Notice and the terms & conditions has to be resolved in the light of the Rules - which do not state that the 15% of the sale price has to be deposited only by DD/ RTGS/ NEFT, and if there was any confusion, it could not be resolved so as to prejudice the rights and interest of the auction purchaser. Hence there is no contravention of any mandatory requirement.

i. The next question which arises for our consideration is whether the petitioner could have tendered the 15% of the initial payment of 25% of the Sale Price by the way of a cheque, or the amount was only to be paid by DD/RTGS/NEFT. A perusal of the Terms and Conditions of Sale provided in the Tender Document for e-auction and the Sale notice dated 24.07.2018 shows that there was some confusion regarding the modes of payment. While the Terms and Conditions of Sale provided in the Tender Document for e-auction provided the mode of payment through DD/RTGS, the sale notice dated 24.07.2018, provides no such mode, and only mentioned that the 25% of the sale price has to be paid „on the same day or not later than the next working day.‟ ii. We are of the view that if there is any confusion amongst the two documents regarding the modalities for sale of the secured asset, the terms of sale of the secured assets that are in consonance with the relevant Rules, and which further the objective of the SARFAESI Act (i.e., to recover the dues of the secured creditor), must be preferred.