For the convenience of exposition, this judgment is divided into the following
parts: -
INDEX
i. Facts leading upto the Decision of this Court in Civil Appeal Nos. 5542-
ii. Developments during the pendency of Civil Appeal Nos. 5542-5543 of
iii. Subsequent Developments and the Acts alleged to be in contempt
i. Submissions of the Successful Auction Purchaser / the petitioner. .... 20
ii. Submissions of the Borrower / the respondent no. 1........................... 28
iii. Submissions of the Subsequent Transferee / respondent nos. 2 & 4. . 38
iv. Submissions of the Bank / the respondent no. 3. ................................. 45
i. Concept of Abuse of Process of Court and Collateral challenge to
a. The Decision of this Court in Celir LLP v. Bafna Motors & Ors. (2023 INSC 838)
b. The ‘Henderson’ Principle as a corollary of Constructive Res- Judicata. ............ 83
ii. Applicability of Lis Pendens in the absence of any registration as
required under the State Amendment to Section 52 of the TPA. ..... 104
iii. Whether any contempt is said to have been committed by the
iv. Circumstances when a sale of property by auction or other means
under the SARFAESI Act may be set-aside after its confirmation. . 138
1.Since the issues raised in both the captioned petitions are same and the parties are also the same, they were taken up for hearing analogously and are being disposed of by this common judgment and order.
2.The present petitions have been filed under Section 2(B) of the Contempt of Court Act, 1971 (for short, the “Act, 1971”) read with Article(s) 129 and 142(2) of the Constitution respectively seeking to initiate contempt proceedings against the respondents / alleged contemnors for wilful disobedience of the final judgment and order dated 21.09.2023 passed by this Court in Civil Appeal Nos. 5542-5543 of 2023 respectively captioned as ‘Celir LLP v. Bafna Motors (Mumbai)’.
3.For the sake of convenience, we clarify that the petitioner herein is the successful auction purchaser, the respondent no. 1, Mr. Sumati Prasad Bafna is the original borrower (hereinafter referred to as the ‘Original Borrower’), the respondent no. 4 ‘Greenscape IT Park LLP’ and its director, Mr. Jayesh A. Vavia i.e., the respondent no. 2 herein are the subsequent transferee / thirdparty purchaser (hereinafter referred to as the ‘Subsequent Transferee’) and the respondent no. 3, ‘Union Bank of India’ is the secured creditor / bank (hereinafter referred to as the ‘Bank’). A. FACTUAL MATRIX i. Facts leading upto the Decision of this Court in Civil Appeal Nos. 5542-5543 of 2023.
4.The Original Borrower herein had availed credit facility from the Bank. Accordingly, the Bank on 03.07.2017 sanctioned Lease Rental Discounting (for short, ‘the LRD’) credit facility to the tune of Rs. 100 crore in favour of the Borrowers. The Bank vide its letter dated 02.01.2020 further sanctioned an additional amount of Rs. 6.77 Crore towards the said LRD term loan.
5.Against the aforesaid term loan, a simple mortgage was created over a parcel of land admeasuring 16200 sq. metres having buildings and ancillary structures on it at plot Nos. D-105, D 110 and D-111 respectively situated at the Trans Thane Creek Industrial Area MIDC Village Shirwane, Thane, Belapur Road, Nerul, Navi Mumbai, Thane, Maharashtra (hereinafter referred to as the “Secured Asset”) belonging to the Borrower vide a Mortgage Deed dated 28.01.2020 in lieu of the sanctioned credit.
6.The Borrower defaulted in repayment of the said loan amount and accordingly on 31.03.2021 the Borrower’s LRD Term Loan Account was declared as a Non-Performing Asset (NPA).
7.The Bank on 07.06.2021 issued a demand notice under Section 13 subsection (2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (for short, the ‘SARFAESI Act’) for repayment of the principal amount along with interest, cost, charges, etc. As of 30.04.23, an aggregate sum of Rs. 123.83 crore was due and payable by the borrowers to the Bank.
8.Owing to the failure of the Borrower & the guarantor in repaying the outstanding amount referred to above, the Bank proceeded to take measures for possession of the Secured Asset under the SARAFESI Act. The Bank on 04.02.2022 issued a possession notice under Section 13(4) read with Rule 8 of the Security Interest (Enforcement) Rules, 2002 (for short, the “SARFAESI Rules”) to the Borrower and took symbolic possession of the Secured Asset.
9.Aggrieved by the aforesaid, the Borrower preferred a Securitization Application being S.A. No. 46 of 2022, under Section 17 of the SARFAESI Act before the Debt Recovery Tribunal (for short, the ‘DRT’), assailing the aforesaid notice dated 07.06.2021 under Section 13(2), and the notice dated 04.02.2022 under Section 13(4), by the Bank, classifying the Borrower’s Account as an NPA and taking symbolic possession of the Secured Asset,
10.In the meantime, the Bank decided to put the Secured Asset to auction. On 25.03.2022, the Bank issued a notice of sale of the Secured Asset by way of a public auction slated for 29.04.2022, however, the said sale / auction failed on account of no bids being received. It appears that between April 2022 & June 2023, the Bank attempted eight auctions but all failed.
11.It appears that the borrowers informed the Bank that they were trying to sell the secured asset but were not getting good offers. The borrowers informed the Bank that the maximum they might be able to fetch from the sale of the secured asset would be around Rs. 91-92 crore and they were willing to settle the entire account by offering such amount to the Bank.
12.The Bank however decided to go for one more auction. On 14.06.2023, the Bank published the notice of sale in terms of Rule 8(6) of the SARFAESI Rules for the 9th time. The public auction was scheduled to be conducted on 30.06.2023. The terms of the aforesaid notice of sale, inter-alia stipulated that the Secured Asset would be sold on ‘as is what is and whatever there is basis’ at a reserve price of Rs. 105 crore and that the said auction would be subject to the outcome of the S.A No. 46 of 2022 pending before the DRT. The relevant terms and conditions of the aforesaid e-auction specified in the notice of sale dated 12.06.2023 read as under: -“TERMS AND CONDITIONS OF SALE OF IMMOVABLE SECURED ASSETS: “19. The Authorized Officer will deliver the property on the basis of Symbolic possession taken on as is where is basis to the purchaser free from encumbrances, known to the Secured Creditor on deposit of money by the purchaser towards the discharge of such encumbrances. 26, The above movable / immovable secured assets will be sold in "As is where is", "As is What is" and "whatever there is" condition. 29. The sale is subject to outcome of S.A No. 46/2022 pending before DRT, Mumbai.”
13.The Borrower herein on 26.06.2023 preferred two applications before the DRT being I.A. No. 2253 of 2023 and I.A. No. 2254 of 2023 in S.A. No. 46 of 2022, respectively inter-alia seeking to amend amending its pleadings for the purpose of challenging the 9th auction proceedings and for seeking stay of the said auction in the meantime, respectively.
14.Pursuant to the 9th notice of sale, the auction proceedings were conducted on 27.06.2023. The petitioner herein participated in the same and submitted its bid of Rs. 105.05 crore, along with a deposit of Rs. 10.5 crore as earnest money.
15.In the said 9th auction conducted by the Bank, the petitioner herein was declared as the highest bidder. The Bank on 30.06.2023 vide its email sent a “Sale Confirmation Letter” to the petitioner, declaring him as the highest bidder / H1 in the auction of the secured asset and called upon the petitioner. to deposit 25% of the bid amount by 01.07.2023 and the balance amount on or before 15.07.2023.
16.On 01.07.2023, the petitioner as per the terms and conditions of the auction notice deposited an amount of Rs, 15,76,25,000/- (INR Fifteen Crore Seventy-Six Lac Twenty-Five Thousand) as 25% of the total sale consideration to the Bank, excluding the EMD already paid.
17.The Borrower realizing that the 9th auction being successful and that the Secured Asset was likely to be sold off, it hurriedly filed an Interlocutory Application bearing No. 2339 of 2023 in the S.A. No. 46 of 2022 on 05.07.2023, seeking to redeem the mortgage created over the Secured Asset by paying of the total outstanding sum of Rs. 123.83 crore (approx..) in lieu of the LRD Term Loan. Over the next few weeks, the aforesaid application was taken up by the DRT and both the Bank and the Borrowers were heard at length, but no consequential orders were passed.
18.On 27.07.23, the petitioner herein deposited the balance sum of the total bid amount which was duly received and accepted by the Bank. On the very same day, the redemption application referred to above was also heard by the DRT. The redemption application was opposed by both the petitioner herein as well as the Bank. The DRT after hearing the parties at length, reserved orders to be pronounced on 02.08.23.
19.While the parties were awaiting for the DRT to pass an appropriate order on the redemption application, the borrowers went to the High Court and filed the Writ Petition No. 9523 of 2023, inter-alia i) challenging the demand notice dated 07.06.2021 and the measures taken by the Bank under the SARFAESI Act more particularly the possession notice dated 04.02.2022 and the initial sale / auction notice dated 25.03.2022 AND ii) further seeking directions to the Bank to permit them to redeem the mortgage of the secured asset. The writ petition was filed on the premise that the Borrowers had strong apprehension that the DRT may reject their redemption application and the entire matter would become infructuous more particularly, as the Bank had accepted the entire amount of the bid from the petitioner herein towards the sale consideration. The relevant prayers sought by the Borrowers in the aforesaid writ petition are reproduced hereunder: -“11. THE PETITIONERS, THEREFORE, PRAY: (a) That this Hon'ble Court be pleased to issue Writ of Certiorari or Writ in the nature of Certiorari or any other appropriate Writ, calling upon the papers and proceedings of the Securitization Application No. 46 of 2022 pending before the Hon'ble DRT I, Mumbai and after examining the legality, validity and propriety thereof, be pleased to allow the Petitioners to redeem the mortgage as per schedule provided in the Interim Application No. 2339 of 2023 filed before the Hon DRT I, Mumbai or within such reasonable period as this Hon'ble Court may deem fit and proper; (b) That this Hon’ble Court be pleased to direct the Respondent to issue “No Dues Certificate” and release All piece and parcel of leasehold land to the extent of 16200 sq. mtrs various buildings and ancillary structures at amalgamated plot no. D-105, D-110 and D-111, Trans Thane Creek Industrial Area, MIDC, Village Shirwane, Thane- Belapur Road, Navi Mumbai, Dist- Thane, Maharashtra, 400706, after getting the entire redemption amount; (c) In the alternate, that this Hon’ble Court be pleased to direct the Respondent not to take any further steps for issuance of the sale Certificate by confirming the sale until the hearing and final disposal of the Securitization Application No. 46 of 2022 pending before the Hon’ble DRT I, Mumbai;”
20.Interestingly, the Borrower herein never challenged the legality or propriety of the 9th Auction that was conducted by the Bank in the aforesaid writ petition before the High Court of judicature at Bombay. Although, in the aforesaid writ petition, the Borrower had itself stated that the 9th notice of sale was published on 12.06.2023 and auction thereto was conducted on 30.06.2023, yet far from imputing procedural impropriety as regards the valuation of the Secured Asset in the said 9th Auction, no challenge was ever made to the manner in which the notice of sale dated 12.06.2023 came to be issued i.e., there was no challenge to the validity of the said notice. We shall discuss the pleadings of the Borrower herein and the scope of proceedings before the High Court in more detail in the latter part of this judgment.
21.Before the High Court, the Borrowers expressed their willingness to pay a total sum of Rs. 129 crore for redeeming the mortgage by 31.08.2023. The Bank which had earlier opposed the plea for redemption of mortgage before the DRT for some good reason expressed its willingness before the High Court to accept the offer of the borrowers. The Bank perhaps got lured by the fact that the borrowers were paying almost Rs. 23.95 crore more than what was paid by the petitioner herein and Rs. 5 crore more than the outstanding amount.
22.In the wake of such development, the petitioner herein having come to know about the aforesaid proceedings before the High Court preferred Interim Application (ST) No. 21706 of 2023 for being impleaded in the writ petition.
23.The writ petition along with interim application was heard by the High Court and vide its judgment and order dated 17.08.2023 allowed the writ petition and permitted the borrowers to redeem the mortgage of the secured asset subject to payment of Rs. 25 crore on the same day and the balance amount of Rs. 104 crore on or before 31.08.2023, failing which the sale of the Secured Asset in favour of the petitioner herein would be confirmed. ii. Developments during the pendency of Civil Appeal Nos. 5542-5543 of 2023.
24.Aggrieved by the aforesaid, the petitioner herein preferred Special Leave Petition Nos. 19523-19524 of 2023 (later renumbered as Civil Appeal Nos. 5542-5543 of 2023) before this Court, challenging the final judgment and order dated 17.08.2023 passed by the High Court. The aforesaid Special Leave Petitions were instituted on 21.08.2023 and it is pertinent to note that there was a caveat at the end of the Borrower herein, and thus the Borrower was fully aware of the aforesaid Special Leave Petition pending before this Court.
25.On 25.08.2023, the aforesaid special leave petitions were taken up for hearing by this Court for the first time and the Borrower herein was also present during the hearing through his counsel. However, since the judgment and order dated 17.08.2023 passed by the High Court was not made available, this Court vide its order dated 25.08.2023 adjourned the matter to 01.09.2023. It is material to note that there was no interim stay or status quo operating between the parties.
26.On 26.08.2023, the judgment and order dated 17.08.2023 passed by the High Court was uploaded and made available to the parties, and the Borrower pursuant to the said order of the High Court transferred a sum of Rs. 104 crore to the Bank for redeeming its mortgage.
27.The Bank on 28.08.2023 issued a ‘No Dues Certificate’ to the Borrower, and a Release Deed was executed between the parties for discharge of the mortgage over the Secured Asset, upon which the original title deeds and related documents were returned to the Borrower. It appears from the material on record that there was a second charge created over the said Secured Asset in favour of one Tata Motors Financial Solutions Ltd. which came to be released pursuant to payment of Rs. 15 crore by the Borrower on the same date vide a Dead of Release registered before the Joint Sub Registrar, Thane 8 having Registration No. 19283 of 2023.
28.On the very same day i.e., 28.08.2023, the Borrower entered into an Agreement of Assignment of Leasehold Rights with a third-party viz. M/s Greenscape I.T. Park LLP i.e., the Subsequent Transferee herein for the transfer of leasehold rights in the Secured Asset. The said agreement was registered before the Joint Sub Registrar, Thane 8 vide Registration No. 19286 of 2023, and franking was completed on the same date.
29.On 01.09.2023, the aforesaid special leave petitions were taken up for hearing. After the arguments from both sides were concluded, leave to appeal was granted, and the matter came to be reserved for judgment by this Court. The parties were further directed to file their written submissions.
30.This Court vide its final judgment and order dated 21.09.2023 in Civil Appeal Nos. 5542-5543 of 2023 inter-alia held that the High Court erred in permitting the Borrower to redeem the mortgage after publication of the notice of sale / auction under Rule 9 sub-rule (1) of the SARFAESI Rules. Accordingly, the High Court’s order dated 17.08.2023 was set-aside. Furthermore, in light of the willingness expressed by the petitioner to make good the difference between the total outstanding dues and the bid amount submitted by him, this Court directed the petitioner to pay an additional amount of Rs. 23.95 crore to the Bank within a period of one week from the date of pronouncement, upon which the Bank was to issue the sale certificate for the Secured Asset in accordance with Rule 9(6) of the SARFAESI Rules. The Bank was further directed to refund the entire amount paid by the Borrower towards redemption of the mortgage of the Secured Asset upon receipt of the balance amount from the petitioner herein. iii. Subsequent Developments and the Acts alleged to be in contempt thereof.
31.On 26.09.2023, the Borrower preferred a review against the aforesaid final judgment and order dated 21.09.2023 passed by this Court in Civil Appeal Nos. 5542-5543 of 2023 being R.P. (C) Nos. 611-612 of 2024. On 27.09.2023, the petitioner herein paid the remaining amount of Rs. 23.95 crore in terms of the aforesaid judgment of this Court whereupon Sale Certificate for the Secure Asset came to be issued by the Bank.
32.It is alleged that the Bank on the very same day addressed one letter to the Borrower requesting for the cancellation of the Release Deed dated 28.08.2023 and for returning the original title deeds to the Secured Asset in order to refund the amount paid towards redemption of the mortgage. However, the Borrower on the other hand disputed the receipt of the aforesaid letter. Nevertheless, the Bank on 18.10.2023 addressed one another letter calling upon the Borrower to execute a Deed of Cancellation of the aforesaid Release Deed and to handover the original title documents of the Secured Asset.
33.Thereafter, the petitioner herein sent several reminders to the Bank inter-alia to handover the physical possession of the Secured Asset along with its original title deeds. The Bank in response reiterated from time to time that it was actively taking steps for the purchase of complying with the directions passed by this Court in its judgment dated 21.09.2023 in Civil Appeal Nos. 5542-5543 of 2023. It further informed that it had filed an application under Section 14 of the SARFAESI being S.A. No. 787 of 2023 for obtaining physical possession of the Secured Asset, and that the said application was pending before the District Magistrate, Thane, Mumbai.
34.In the interregnum, the Borrower filed I.A. No. 3220 of 2023 in S.A. No. 46 of 2022 for amendment of pleadings in the securitization application interalia for the purpose of: -i) Bringing on record the subsequent development that had taken place; ii) For challenging the Notice of Sale dated 12.06.2023 on the ground of want of a 30-days period between the date of issuance of the notice of sale and the date of auction in terms of Rule 8(6) and 9(1) of the SARFAESI Rules respectively; iii) Praying to set aside the auction dated 30.06.2023 of the Secured Asset conducted by the Bank upon examination of the validity and propriety of all measures taken by the Bank in terms of Section 13(4) of the SARFAESI Act and Rule 8 and 9 of the SARFAESI Rules
35.Several more correspondences took place between the petitioner and the Bank herein for handing over of possession and title deeds to the Secured Asset, however they were to no avail. The Bank reiterated its helplessness in providing the aforesaid owing to the non-cooperation of the Borrower and the Subsequent Transferee. In view of the above, the petitioner herein issued a legal notice dated 29.12.2023 to all the respondents herein, calling upon them to (a) handover the physical possession of the Secured Asset along with its original title deeds and (b) to take steps towards cancelling the Release Deed dated 28.08.2023. In response to the above, the Borrower herein vide its letter dated 16.01.2024 inter-alia stated that since the Secured Asset stood transferred to the Subsequent Transferee, it had no role to play in handing over of the possession or the original title deeds of the same. Whereas, the Bank vide its Reply dated 23.01.2024 stated that as per the terms of the auction, the Bank was obliged only to provide the symbolic possession of the Secured Asset which had already been delivered. It further assured that the Bank was exploring all options for handing over the original title deeds. In regards to the physical possession, the Bank informed that it had already filed an application under Section 14 of the SARFESI Act, which was still pending and that until appropriate orders were passed, it was not possible to handover the physical possession of the Secured Asset.
36.On the other hand, the Subsequent Transferee upon receipt of the aforesaid legal notice, instituted a suit being the Special Civil Suit No. 5 of 2024 against the petitioner inter-alia seeking a declaration that (a) they are the owners and title-holder of the Secured Asset; (b) the Assignment Agreement dated 28.08.2023 is legal and valid and (c) they are entitled to the physical possession of the Secured Asset. It has been alleged that the Subsequent Transferee was constrained to prefer the above suit, as the petitioner herein had attempted to take forceful possession of the Secured Asset. The Bank on 16.01.2024 filed an application in the aforesaid suit for rejection of plaint under Order VII, Rule 11 of Code of Civil Procedure, 1908 (for short, the “CPC”).
37.The District Magistrate vide its order dated 02.02.2024 in S.A. No. 787 of 2023 allowed the Banks’ application under Section 14 of the SARFAESI and the Tehsildar, Thane was appointed to take physical possession of the Secured Asset and the document relating thereto. Pursuant to the aforesaid, the Tehsildar, Thane on 14.02.2024 issued a notice of possession stipulating that in the event the Subsequent Transferee does not handover physical possession of the Secured Asset and the original title deeds within 15-days, then the possession shall be taken over forcefully with the assistance of the local police.
38.In light of the above, the Borrower herein preferred a Securitization Application under Section 17 of the SARFAESI Act for seeking stay of the aforesaid notice of possession dated 02.02.2024 and restraining the Bank from taking any further coercive steps in this regard, even though, it had earlier taken the stance that since the Secured Asset stood transferred by him to the Subsequent Transferee it had no role or any concern with the handing over of the physical possession. Thus, while the Borrower on one hand is remarkably contending that it has nothing to do with the failure in handing over of the Secured Asset yet in the same breath, he is purposefully engaging in various acts to subvert any and all attempts of the petitioner and the Bank herein to regain the physical possession.
39.In the suit proceedings, on an application filed by the Subsequent Transferee the Civil Court, Belapur vide its order dated 05.02.2024, directed that status quo be maintained and restrained the Bank from taking any steps towards obtaining the physical possession of the Secured Asset till it filed its written statement.
40.The DRT vide its order dated 28.02.2024 observed that since the decision of this Court in the Civil Appeal Nos. 5542-5543 of 2023 had allowed the sale in favour of the petitioner, the act of the borrower to continue claiming a right to the Secured Asset on the strength of the Release Deed dated 28.08.2023 was highly deplorable. Accordingly, the DRT refused to grant stay of the notice of possession and dismissed the Borrower’s IA No. 456 of 2024 in S.A. No. 53 of 2024.
41.The Borrower preferred an appeal against the aforesaid order being Misc. Appeal (D) No. 429 of 2024 before the Debts Recovery Appellate Tribunal, Mumbai (for short, the “DRAT”). It appears from the material on record that the DRAT vide its order dated 29.02.2024 granted status quo and deferred the proceedings for physical possession, and further directed the Bank to deposit Rs. 129 crore paid by the Borrower before it, in contrast to the order of this Court in Civil Appeal Nos. 5542-5543 of 2023 wherein the said amount was ordered to be refunded in clear terms.
42.On 01.03.2024, the present contempt petition came to be filed before this Court seeking initiation of contempt proceedings against the respondents for wilful disobedience of this Court’s order in Civil Appeal Nos. 5542-5543 of 2023 and further praying for i) handing over of the physical possession and original title deeds to the Secured Asset, ii) annulment of the Release Deed, the No Dues Certificate and the Deed of Assignment in favour of the Subsequent Proceedings and iii) the quashing of all proceedings pending in respect of the Secured Asset before the DRT, DRAT and the suit proceedings of the Subsequent Transferee.
43.It further emerges from the materials on record that in the suit proceedings the Civil Court, Belapur vide its order dated 05.03.2024 rejected the Bank’s application under Order VII, Rule 11 of the CPC and further extended the status quo granted earlier.
44.In the wake of such developments, the Bank on 12.03.2024 filed a miscellaneous application before this Court being M.A. No. 600 of 2024 in Civil Appeal Nos. 5542-5543 of 2023 seeking directions to the Borrower herein to handover the physical possession of the Secured Asset and all original title deeds related thereto in compliance of the decision of this Court in the Main Appeals.
45.The Borrower filed two applications in its Review Petitions that were pending before this Court being I.A. No. 92135 of 2024 and I.A. No. 92136 of 2024 in R.P. (C) Nos. 611-612 of 2024 respectively seeking permission to file additional grounds for review and for open court hearing. The aforesaid Review Petitions along with the interlocutory applications against the Main Appeals came to be dismissed by this Court vide its order dated 18.07.2024.
46.In such circumstances referred to above more particularly the dubious actions of the respondents and the subsequent development that have taken place after the decision of this Court in the Main Appeals, the petitioner is here before this Court with the present contempt petitions. B. SUBMISSIONS OF THE PARTIES i. Submissions of the Successful Auction Purchaser / the petitioner.
47.Mr. Mukul Rohatgi and Mr. Neeraj Kishan Kaul, the learned Senior Counsel appearing for the petitioner submitted that this Court in its decision rendered in the Main Appeals had looked into all the issues at hand regarding the auction and the subsequent transfer, and thereafter had taken a conscious decision to uphold the auction conducted in favour of the petitioner and directed the Bank to issue the Sale Certificate and handover possession of the Secured Asset. However, despite such categorical directions of this Court, till date neither the physical possession nor the original title deeds to the Secured Asset has been handed over by the respondents herein to the petitioner.
48.It was submitted that the petitioner herein as per the directions of this Court had paid an additional amount over and above the bid submitted by it, to the tune of Rs. 24 crore approx. to match the difference between the sale consideration and the amount towards redemption of the mortgage, which the petitioner duly complied with. In such circumstances, the petitioner placing reliance on para 98 of the decision in the Main Appeals, submitted that once the entire bid price is paid and there is no stay granted by any forum known to law, the secured creditor is duty bound to issue a valid sale certificate and handover the physical possession of the secured asset.
49.It was further submitted that the Borrower and the Subsequent Transferee have not only refused to hand over the possession and original title deeds to the Secured Asset in complete defiance of the decision in the Main Appeals but have also resorted to frivolous and malicious proceedings before various forums to undermine and circumvent the decision of this Court. It was highlighted that inasmuch as three different proceedings have been instituted by the respondents for seeking prayers which are in teeth of the decision of this Court in the Main Appeals. The details are as under: -i. Securitization Application No. 46 of 2022 along with I.A. Nos.3199 of 2023 & 3220 of 2023 before the DRT-I, Mumbai. ii. Securitization Application No. 53 of 2024 along with I.A. No. 456 of 2024 before the DRAT, Mumbai iii. Special Civil Suit No. 5 of 2024 before the Civil Court, Belapur.
50.It was submitted that the above acts of abject refusal to comply with the directions passed in the Main Appeals and the act of initiation of proceedings in different forums with prayers contrary to the decision of this Court by the respondents, constitutes contempt in itself.
51.It was further submitted that the acts of the Borrower and the Subsequent Transferee to immediately enter into the Assignment Agreement after redeeming the mortgage of the Secured Asset had been done only to undermine the authority of this Court. The contention of the respondents that they were well within their rights to enter into the above transaction since there was no stay or prohibitory order by this Court is patently erroneous and devoid of merit. It was submitted that on the first day of hearing since the impugned order of the High Court was not available, no effective hearing took place and as such this Court had no occasion to grant or refuse stay. It was further submitted that it is not the case that the respondents were unaware of the pendency of the Main Appeals before this Court at the time of entering into the Assignment Agreement, rather the only reason why the respondents showed undue haste in entering the aforesaid agreement was because they were well aware of the proceedings pending before this Court. Thus, the conduct and actions of the respondents are highly deplorable and cannot be termed to be bona fide or in good conscience.
52.It was also submitted that after the decision of this Court in the Main Appeals, both the Borrower and the Subsequent Transferee herein committed several acts of contempt in order to circumvent the judgment and order of this Court more particularly the direction to issue the Sale Certificate and complete the sale in respect of the Secured Asset, being as follows: -(i) The Subsequent Transferee vide its letter dated 05.10.2023 asked the Sub-Registrar Office, Nerul Thane to not entertain any request of the petitioner regarding the transfer of the Secured Asset. (ii) The Borrower on 12.10.2023 addressed one letter to the Chief Executive Officer of the Maharashtra Industrial Development Corporation in whose industrial area the Secured Asset was situated, inter-alia requesting them to not entertain any request from the Bank or the petitioner regarding the transfer of the leasehold rights of the Secured Asset in favour of the petitioner. (iii) Similarly, the Subsequent Transferee vide its letter dated 17.10.2023 asked the Executive Officer of the Maharashtra Industrial Development Corporation to not take any action regarding the transfer of the Secured Asset to the petitioner. (iv) In November, 2023, the Borrower filed I.A. No. 3220 of 2023 in S.A. No. 46 of 2022 to amend the securitization application for inter-alia challenging the issuance of sale certificate by the Bank as directed by this Court on the ground that such issuance is contrary to the provisions of the SARFAESI Act, as the property no longer vested with the Bank in view of the No Dues Certificate and the Release Deed that was executed during the pendency of the Main Appeal, and that the Bank deliberately suppressed this fact from this Court. (v) On 05.01.2023, the Subsequent Transferee filed Special Civil Suit No. 5 of 2024 inter-alia for seeking a declaration that it is the rightful owner of the property, as the Sale Certificate issued to the petitioner does not confer ownership right and title in respect of the property by contending that this Court in its decision in the Main Appeals did not declare either directly or indirectly that the sale transaction in its favour is void or not binding. It has further contended in its plaint that the interpretation of this Court as to the right of redemption of the Borrower in the Main Appeals cannot be applied post-exfacto to the sale executed in its favour so as to declare the transaction as invalid. (vi) That the Borrower in its response dated 16.01.2024 to the petitioner’s legal notice outrightly refused to handover the physical possession and the original title deeds to the Secured Asset by contending that it no longer had any role to play or authority over the property in view of its transfer to the Subsequent Transferee. However, when the Tehsildar, Thane in pursuance of the Bank’s application for obtaining physical possession of the Secured Asset issued a notice to the Subsequent Transferee, the Borrower filed an application for seeking a stay of the same. (vii) That the Subsequent Transferee on 17.01.2024 also sought for registration of FIR against the Bank and the petitioner herein inter-alia alleging that the Bank had been falsely claiming that this Court in its decision in the Main Appeals had directed the refund of the amount paid towards redemption of mortgage to the Borrower and to transfer the vacant possession of the Secured Asset to the petitioner, and that the Bank in collusion with the petitioner had issued the sale certificate to the Secured Asset despite having executed the Release Deed for the mortgage and the pending litigation before the DRT.
53.In light of the above, it was contended by the petitioner that both the Borrower and the Subsequent Transferee have been acting in tandem with each other to frustrate the implementation of the decision of this Court in the Main Appeals by misleading various authorities and by mischievously instituting proceedings before different forums & thereby thwart any attempt of the petitioner and the borrower to obtain physical possession and original title deeds to the Secured Asset.
54.As regards the contention of the respondents on the issue of auction that was conducted by the Bank being illegal and contrary to the statutory provisions , it was submitted on behalf of the petitioners that the requirement under Rule 8(6) read with Rule 9(1) to maintain a 30-day gap between the notice to the borrower and the notice of sale is mandatory only for the first auction. Placing reliance on the Proviso to Rule 9(1) it was submitted that for any subsequent auctions after the first auction fails, only 15-days’ time period is required between the notice of sale and the date of auction.
55.It was submitted that in the present case, since the Bank had already conducted a total of 8 auctions prior to the auction in which the petitioner emerged as the successful bidder, the same only required a 15-days’ statutory notice period. As the notice of sale for the 9th auction was published on 12.06.2023 and the ultimate auction held on 30.06.2023, the statutory 15-day time period was duly maintained. Thus the 9th auction was in due compliance of the statutory requirements and constituted a valid sale.
56.Reliance was also placed on the decision of this Court in Valji Khimji and Company v. Official Liquidator of Hindustan Nitro Product (Gujarat) Ltd. & Ors, reported in (2008) 9 SCC 299 to canvass that a sale by way of public auction cannot be set aside until there is any material irregularity and/or illegality committed in holding the auction or if such sale was vitiated by any fraud or collusion.
57.It was further submitted on behalf of the petitioner that at no point before the DRT or DRAT did the Borrower contend that there was any material irregularity or fraud in connection with the 9th auction that was conducted by the Bank or the sale of the Secured Asset arising therefrom. Even in the Main Appeals before this Court, it was never the case of the Borrower that the 9th Auction was invalid or illegal and that no pleadings to this effect were made by the Borrower before this Court.
58.In such circumstances, it was submitted that the stance taken by the Borrower in the S.A No. 46 of 2022 and S.A. No. 53 of 2024 respectively after the decision of this Court in the Main Appeals is unscrupulous and self-serving. It was further pointed out that the Borrower in the Assignment Agreement with the Subsequent Transferee had provided an undertaking to withdraw the aforesaid S.A No. 46 of 2022. Thus, in view of the aforesaid coupled with the fact that the Borrower never questioned the validity of the 9th auction in the Main Appeals, it was submitted that the Borrower had waived of its right under the SARFAESI Act and is now estopped from challenging the legality of the recovery measure taken by the Bank and the consequent 9th Auction conducted by it. In this regard, the petitioner relied upon the decision of this Court in Arce Polymers Private Limited v. Alphine Pharmaceuticals Private Limited & Ors., reported in (2022) 2 SCC 221 to contend that if the party relinquishes its right under the SARFAESI Act, then the Borrower is not entitled to subsequently challenge the actions or measures taken under it.
59.In the last, it was submitted that the Sale Certificate of the Secured Asset that was issued by the Bank in favour of the petitioner was never contingent upon or subject to the outcome of the proceedings before the DRT, more particularly S.A. No. 46 of 2022, as this Court in the Main Appeals had upheld the auction and crystalized the rights of the petitioner over the Secured Asset. Placing reliance on paragraph 98 of the Main Appeals, it was contended that once the Sale Certificate is issued, the bank is bound to hand over the physical possession of the property and as such, this Court had concluded the rights of all parties and that nothing remained in S.A. No. 46 of 2022 after the decision of this Court. ii. Submissions of the Borrower / the respondent no. 1.
60.Dr. A.M. Singhvi the learned Senior Counsel appearing for the Borrower submitted that this Court in its decision in the Main Appeals only decided the issue of interpretation of Section 13(8) of the SARFAESI Act, and rightly chose not to decide either the validity of the 9th auction process or to interfere with the proceedings emanating from S.A. No. 46 of 2022 that was pending before the DRT.
61.He further submitted that since the terms of the auction more particularly clause 29 therein specifically stipulated that the auction is subject to the outcome of the proceedings in S.A. No. 46 of 2022 pending before the DRT, this Court rightly never decided the validity of the auction proceedings and left it for the DRT to decide.
62.It was submitted that in the Main Appeals, this Court held that writ jurisdiction ought not to have been invoked by the Borrower having already availed the statutory remedy and rightly did not decide the issue of validity of the auction conducted by the Bank as such remedy was available to the Borrower to avail in the S.A. No. 46 of 2022 pending before the DRT.
63.It was also submitted that the issues involved in the S.A. No. 46 of 2022 as to the validity of the measures taken by the Bank under the SARFAESI Act, is still pending and to this date no court or judicial authority has examined the same, and any interference with the said proceedings would render the Borrower remediless and infringe its rights under Article 21 and 300A of the Constitution. It was further submitted that this Court ought not to decide the validity of such measures in view of the fact that S.A. No. 46 of 2022 is pending before the DRT which is the competent authority to decide these issues.
64.It was submitted that the auction of the Secured Asset was conducted on the basis of a symbolic possession and that said auction was subject to the validity of such auction. Placing reliance on the terms and conditions of the auction, it was submitted that as per clause 19, it was specified that only symbolic possession of the Secured Asset would be delivered. As per clause 26 it was stipulated that the Secured Asset would be sold to the auction purchaser on ‘as is where is’ and ‘as is what is and whatever there is’ basis and lastly, as per clause 29, it was stipulated that such sale would be subject to the outcome of S.A. No. 46 of 2022 pending before the DRT. Thus, any sale certificate issued in pursuance of such auction would also be subject to such terms of the auctions.
65.He further submitted that, the petitioner herein being fully aware about the aforesaid terms of auction, consciously participated in the auction process, and thus now cannot be permitted to claim either the absolute ownership of the Secured Asset despite the pendency of the proceedings before the DRT or demand physical possession of the same by relying upon the Sale Certificate that was directed to be issued by this Court in the Main Appeals when no such terms were stipulated in the 9th auction notice. He submitted that the Sale Certificate that came to be issued to the petitioner in accordance with the decision of this Court was purely on the basis of the terms of the auction and cannot by any stretch be in derogation of the same.
66.It was also submitted that the present contempt petitions proceed on a fundamental flaw that this Court in the Main Appeals had decided and directed the handing over of physical possession of the Secured Asset. Since physical possession was never the subject matter of the Main Appeals and no prayer to this effect was made by the petitioner, merely because physical possession has not been handed over it cannot be said that any contempt of this Court’s decision has been committed and thus, the present contempt petitions are misconceived.
67.It was further submitted that the petitioner was well aware that as per the terms of auction it was not entitled to obtain physical possession and thus, in its written submissions had only prayed that the Bank be directed to issue a Sale Certificate and carry all other necessary acts under the SARFAESI Act. Even this Court in the Main Appeals only directed the issuance of the Sale Certificate and not the delivery of physical possession of the Secured Asset.
68.He also submitted that where an auction is conducted on symbolic possession, the correct approach for obtaining physical possession of the secured asset is to initiate proceedings before the District Magistrate in terms of Section 14 of the SARFAESI Act. In this regard, reliance was placed on the decision of this Court in ITC Ltd. v. Blue Coast Hotels Limited & Ors. reported in (2018) 15 SCC 99.
69.He further submitted that in the present case the Bank had rightly filed an application under Section 14 of the SARFAESI Act for seeking physical possession and had even obtained a favourable order on 02.02.2024. Since, any order passed under Section 14 of the SARFAESI Act is challengeable before the DRT and appealable before the DRAT, the Borrower herein was well within its rights to challenge the order dated 02.02.2024 before the DRT by way of S.A. No. 53 of 2024 which came to be rejected. Against which, the Borrower filed an appeal before the DRAT, wherein status quo was granted. He submitted that the Bank and the petitioner herein instead of challenging the order passed by the DRAT as required under the statutory provisions, decided to take law in their hands by filing the present contempt petition and MA, which is completely in negation of the statutory provisions of the SARFAESI Act.
70.It was further submitted that after the decision of this Court in the Main Appeals all the parties proceeded to pursue their remedies in accordance with the statutory provisions. The Bank pursued its application under Section 14 of the SARFAESI Act to obtain physical possession of the Secured Asset, the Borrower pursued the S.A. No. 46 of 2022 before the DRT, the petitioner pursued its IA in the aforesaid securitization application and the Subsequent Transferee pursued its suit. None of the parties complained of any contempt for a period of nearly 5-6 months.
71.It was submitted that any order passed by a competent judicial authority having jurisdiction to pass such order can only be challenged by following the due process and cannot be set-aside under the contempt jurisdiction, thus the present contempt petition is completely misconceived. Similarly, since neither the Bank nor the petitioner sought physical possession of the secured asset in the Main Appeals, it cannot be permitted to now seek the same by expanding the scope of the Main Appeals by way of an MA. In this regard, reliance has been placed on the decision of this Court in Supertech Limited v. Emerald Court Owner Resident Welfare Association & Ors. reported in (2023) 10 SCC 817 to contend that filing of MA is not permissible to expand the scope of SLP or re-litigate the matter.
72.It was further submitted that since in the Main Appeals, there were no directions passed against the Borrower herein to hand over physical possession, no contempt could be said to have been committed. Similarly, the transfer of the Secured Asset to the Subsequent Transferee during the pendency of the Main Appeals also does not amount to contempt as the same was done in compliance of the High Court’s impugned order. Since the High Court had allowed the Borrower to redeem the mortgage on the condition that it tenders the entire dues payable by 31.08.2023 failing which the amount of Rs. 25 crore paid by it would be forfeited, & the entire dues would not have paid the Borrower would have not only lost the amount already paid by it but would have also been in contempt of the order passed by the High Court.
73.Thus, in order to comply with the High Court’s order to its letter and spirit, the Subsequent Transferee paid the remaining dues to the Bank on behalf of the Borrower and thereafter the Secured Asset was transferred to it. He further submitted that, since during the pendency of the Main Appeals, there was no prohibitory order or stay by this Court, the transferring of ownership by way of the Assignment Agreement does not amount to contempt. In this regard, reliance has been placed on the decision of this Court in Collector of Customs, Bombay v. Kirshna Sales (P) Ltd. reported in (1994) Supp 3 SCC 73 that merely filing an appeal does not amount to a stay of the order and the decision in Patel Rajnikant Dhulabhai & Anr. v. Patel Chandrakant Dhulabhai & Ors. reported in (2008) 14 SCC 561 that without a prohibitory order, there can be no contempt of court.
74.He further submitted that this Court in its decision in the Main Appeals held that a notice of auction can be published in the newspaper only after serving a 30-days clear notice to the borrower. It was submitted that the mandatory nature of the period prescribed is not a mere formality but a safeguard to the borrower to ensure that its right of redemption is given meaningful expression. Since in the present case both the notice to the borrower as-well as the auction notice were made on 14.06.2023, the auction proceedings is said to have taken place contrary to the mandate of law, and the sale of the Secured Asset in favour of the petition pursuant to such auction is illegal and void.
75.Placing reliance on the decisions of this Court in General Manager, Sri Siddeshwara Cooperative Bank Limited & Anr. v. Ikbal & Ors. reported in (2013) 10 SCC 83 and Vasu P. Shetty v. Hotel Vandana Palace & Ors. reported in (2014) 5 SCC 660 it was submitted that the 30-day notice to the borrower in terms of Rule 8 and 9 of the SARFAESI Rules respectively is mandatory in nature and non-compliance of the same would render the auction illegal. Similarly, as per the decision of this Court in Govind Kumar Sharma & Anr. v. Bank of Baroda & Ors. reported in 2024 INSC 326, an auction would be liable to be quashed if no 30-day notice is given by the bank.
76.It was submitted that if S.A. No. 46 of 2022 pending before the DRT is allowed then in light of the decision of this Court in the Main Appeals, the auction would be illegal and the right of redemption of the Borrower would survive and by extension all transactions executed by it in pursuance thereto including the transfer of the Secured Asset in favour of the Subsequent Transferee.
77.It was further submitted that the petitioner’s contention that the pending proceedings under S.A. No. 46 of 2022 before the DRT did not survive after the decision of this Court in the Main Appeals more particularly after the issuance of the Sale Certificate is completely misconceived and untenable. In this regard it was submitted that first, the proceedings before this Court in the Main Appeals emanated from an interlocutory stage and secondly, both the auction and the Sale Certificate issued in pursuance thereto does not vest in the petitioner an absolute ownership in the Secured Asset.
78.He submitted that S.A. No. 46 of 2022 was filed by the Borrower assailing the validity of the measures taken by the Bank under the SARFAESI Act and the same was still pending. When the 9th auction came to be conducted, the Borrowers filed an interlocutory application in the aforesaid securitization application for seeking redemption of mortgage, wherein orders were reserved. Against the aforesaid, the Borrower filed a writ petition before the High Court for seeking redemption of mortgage which was allowed. The same came to be challenged before this Court in the Main Appeals, wherein only the right of redemption in terms of Section 13 sub-section (8) of the SARFAESI Act was decided. Thus, the very proceedings before this Court in the Main Appeals emanated from an interlocutory stage and all other issues except the right of redemption continued to survive in the S.A. No. 46 of 2022. As a fortiorari, it was submitted that if the Borrower had not filed the writ petition which culminated into the proceedings before this Court in the Main Appeals, then the petitioner would have never claimed that DRT cannot examine the validity of the auction. Thus, it was submitted that this Court never intended to take away the aforesaid right of the Borrower to contest S.A. No.46 of 2022 before the DRT.
79.He further submitted that this Court whilst directing the Bank to issue the Sale Certificate in the Main Appeals never intended to uphold the legality of the auction, and that no such issue was also framed by it. Since, the terms of auction were clear that it would be subject to the outcome of the proceedings in S.A. No. 46 of 2022 before the DRT, the issuance of the Sale Certificate neither confirms the sale of the secured asset in favour of the petitioner sans the validity of the auction proceedings nor vests any absolute ownership in the same. In this regard, reliance has been placed on the decision of this Court in Valji Khimji (supra) to contend that where the auction is subject to subsequent confirmation by some authority (in this case the DRT) the auction cannot be said to be completed and no rights would accrue until the sale is confirmed by the said authority. Thus, it was submitted that not only does the cause of action for challenging the validity of the auction proceedings survive but also the proceedings in S.A. No. 46 of 2022 pending before the DRT.
80.In the last, Dr. A.M. Singhvi submitted that the Borrower unconditionally apologises to this Court for any of its actions, if they are perceived to be incorrect or in contempt of its decision in the Main Appeal and that the Borrower undertakes to comply with any further order that this Court may deem fit and proper for the ends of justice. iii. Submissions of the Subsequent Transferee / the respondent nos. 2 & 4.
81.Mr. Kapil Sibal, the learned Senior Counsel appearing for the Subsequent Transferee at the outset submitted that it unconditionally apologizes for any of its actions that might have been perceived to have contravened any direction/ order of this Court.
82.Mr. Sibal submitted that the Subsequent Transferee is a bona fide third party purchaser of the Secured Asset. He submitted that the Subsequent Transferee was neither arrayed as a party to the proceedings in the Main Appeals nor issued a notice of the said proceedings either by the petitioner or by the Bank, despite the fact that they were aware of the transactions entered into by the Borrower for the transfer of the Secured Asset in its favour. He further submitted that prior to entering into the transaction there was no prohibitory order or interim order of stay concerning the said Secured Asset either by this Court or any other court. Since, the transaction which led to the purchase of the said property by it was completed and duly registered with the knowledge and cooperation of the Bank before the decision of this Court in the Main Appeals, they are neither in breach or violation of this Court’s decision and as such the present contempt proceedings deserves to be dismissed qua the Respondent. It was further submitted that the title to the Secured Asset in favour of the Subsequent Transferee was never questioned or challenged before any forum or impeached in any manner known to law even after the decision of this Court in the Main Appeals.
83.He further submitted that when the Subsequent Transferee tendered the entire consideration for the Secured Asset, there was admittedly neither any lis pendens in respect of the property registered as per due diligence conducted on its behalf nor had the petitioner acquired any rights to the said property. He submitted that as per the State amendment to Section 52 of the Transfer of Property Act, 1882 (for short, the “TPA”) lis pendens will not apply if a notice is not registered. He submitted that the consequence of this omission in registration would be that lis pendens will not apply.
84.Since, in the present case admittedly there was no registration of lis pendens by the petitioner as mandated in Maharashtra under the mandatory provisions of Section 52 (1) of TPA, the Subsequent Transferee did not come across any legal impediment or restrictions or prohibitions to purchase of the Secured Asset and accordingly paid the consideration to lawfully acquire the same as a bona-fide purchaser.
85.He submitted that even if lis pendens is assumed to apply then too, it cannot affect the Assignment Agreement in its favour as the matter was neither subjudice as against it nor was there any prohibitory / stay order for the transfer of the said property at the time of execution of the aforesaid Assignment Agreement. It was submitted that the aforesaid agreement was a lawful transaction pursuant to the High Court’s order and that mere filing of an appeal does not operate as a stay or suspension of the order appealed against as held in Krishna Sales (supra). Therefore, the Subsequent Transferee is said to have acquired a clear title to the said property.
86.When the Borrower redeemed the mortgage and executed the Release Deed with the Bank in pursuance of the impugned order of the High Court, the Bank relinquished its charge over the property and the very contractual relationship of secured creditor and borrower extinguished and as such the Bank had no authority to transfer any interest in the Secured Asset to the petitioner at the relevant time. Placing reliance on the decision of this Court in the Main Appeals, it was submitted that the factual matrix recorded therein discloses that the Subsequent Transferee had acquired a clear title and possession of the said property prior to the said decision and the Sale Certificate issued in lieu thereof. Since the Bank had already issued a No Dues certificate, provided a No Objection certificate, executed the Release Deed for its charge over the Secured Asset and handed over the original title deeds thereto, the Subsequent Transferee is said to have obtained a clear title of the property. He further argued that since there was a second charge over the said property, the Bank could have only confirmed a conditional sale of the Secured Asset. Consequently, even if the auction was completed, the said property would not have been free from all encumbrances and the petitioner would have been required to redeem the second charge to acquire a clear title. Since it is the Subsequent Transferee who undertook the necessary steps to redeem the second charge, it is said to have acquired a clear title both in law and in equity.
87.It was submitted that the Subsequent Transferee was constrained to prefer the Special Civil Suit No. 5 of 2023 as the petitioner herein had attempted to take forceful possession of the Secured Asset. It was further submitted that the said suit had to be filed to protect its right and prevent its dispossession without following the due process of law. However, in terms of the undertaking given to this Court during the course of proceedings on 18.10.2024, it was submitted that the Subsequent Transferee has instructed its counsel to unconditionally withdraw the aforesaid suit.
88.He further submitted that the petitioner and the Bank are seeking to expand the scope of the present proceedings by claiming physical possession as a relief in the present contempt matter, when in fact such relief was never prayed in the Main Appeal. As the substantive relief seeking physical possession of the Secured Asset was not sought in the Main Appeals, the said relief cannot be obtained in the present contempt petitions.
89.He also submitted that the auction process with respect to the Secured Asset was only on the basis of symbolic possession and not physical possession of the said property and as such the parties while transacting as part of an auction process are bound by the process and the mandatory terms laid down therein. Even the Bank in the present miscellaneous application has admitted that it only had symbolic possession, and not the actual physical possession of the said property.
90.He further submitted that the process for obtaining physical possession of the Secured Asset is only by way of initiating a subsequent and completely different proceeding in terms of the statutory procedure laid down in Section 14 of the SARFAESI Act which was never the subject matter before this Court and as such the Subsequent Transferee ought not to be dispossessed without following due process/ procedure laid down in law as per SARFAESI Act/ Rules. The Bank had rightly pursued its remedy under Section 14 for seeking physical possession in line with the decision of this Court in Blue Coast Hotels (supra) and the parties now cannot be permitted to seek the same in the present contempt petitions and the miscellaneous application.
91.He submitted that the aforesaid application of the Bank under Section 14 came to be allowed, which was later challenged before the DRT wherein the Tribunal refused to stay the same. Against this an appeal was preferred wherein the DRAT granted status quo on the ground that possession notice had not been given by the bank/tehsildar. Rather than challenging the aforesaid order, the petitioner and the Bank have mischievously preferred the present contempt petitions and miscellaneous application respectively as an attempt to short circuit the process of law for obtaining physical possession.
92.He further argued that the scope of proceedings before this Court in the Main Appeals as evident from the questions of law framed therein, primarily related to the cut-off date to exercise right of redemption under Section 13(8) of the SARFAESI Act and not regarding the validity of the measures taken under the SARFAESI Act, 2002, including the auction process.
93.Since the auction conducted by the Bank by which the Sale Certificate was issued to the petitioner was subject to the outcome of S.A. No. 46 of 2022 pending before the DRT, the petitioner ought not to be permitted to extend the scope of the matter to overcome these proceedings pending in the DRT.
94.He submitted that it is the bona fide understanding of the Subsequent Transferee that the auction by which the petitioner claims its rights is illegal, having regard to the law laid down by this Court in the Main Appeals. He argued that the auction was bad in law as the Bank has violated mandatory statutory requirements for the auction process, more particularly the mandatory 30-days period required to be maintained between the notice to the borrower and the sale notice in terms of Rule 8(6) and 9(1) of the SARFAESI Rules. In the present case both the aforesaid notices were issued on the same date i.e., 12.06.2023 thereby rendering the auction null and void. Thus, the petitioner at based could be said to have acquired only inchoate rights to the Secured Asset subject to the terms of the auction and the validity of the auction proceedings.
95.In light of the above, he submitted that it is the Bonafide understanding of the Subsequent Transferee that the Borrower’s right of redemption stood revived in view of the illegality of the auction proceedings and thus, authenticated and crystalized the Assignment Agreement executed in its favour.
96.He further submitted that neither this Court nor the High Court in the writ petition has delved into the aspect of legality of the auction proceedings, and thus, prayed that this Court be pleased to relegate the parties to an appropriate forum in accordance with law for adjudication of several issues relating to the said property and the illegal process of auction conducted thereto to safeguard its constitutional right enshrined under Article 300A of the Constitution.
97.He submitted that the entire gamut of proceedings before this Court in the Main Appeals have emanated from an interlocutory application filed in S.A. No. 46 of 2022 and that the very substantive and procedural aspects relating to the Bank’s measures the under SARFAESI Act and Rules thereunder are still pending adjudication.
98.In the last, Mr. Sibal submitted that the Subsequent Transferee had to borrow significant amount for purchasing the Secured Asset from its financiers who now have the title deeds to the property as security against the loan taken by it. He submitted that if the reliefs sought by the petitioner are granted grave prejudice and hardship would be caused to the Subsequent Transferee. Accordingly he prayed that the present contempt petition and the miscellaneous applications be dismissed and the Subsequent Transferee be permitted to pursue the S.A. No. 46 of 2022 pending before the DRT. iv. Submissions of the Bank / the respondent no. 3.
99.Mr. Raju Ramachandran, the learned Senior Counsel appearing for the Bank
submitted that this Court in its decision in the Main Appeals categorically
held that under the amended Section 13(8) of SARFAESI Act, the right of
the borrower to redeem a secured asset stands extinguished on the date of
publication of public auction notice and overruled the impugned order of the
High Court that had allowed the Borrower to redeem the mortgage.
100.He submitted that in the said decision, this Court not only held the
redemption of mortgage after auction notice as unlawful but also confirmed
the right of the auction purchaser to the Secured Asset and directed the refund
of the entire amount paid by the Borrower towards redemption, and further
directed the Bank to issue the sale certificate in favour of the petitioner in
accordance with Rule 9(6) of the SARFAESI Rules upon payment of an
additional amount of Rs. 23.5 crore by it.
101.He submitted that the implied effect of this decision is that the Release Deed
executed by the Bank and the Assignment Agreement executed by the
Borrower had to be cancelled and the original title deeds to the Secured Asset
were to be returned to the bank so that they may be handed over to the
petitioner.
102.He submitted that the Bank in compliance of this Court’s decision in the
Main Appeals, issued the Sale Certificate for the Secured Asset to the
petitioner and on the same day addressed a letter to the Joint Sub-Registrar,
Thane, requesting it to take immediate steps for cancellation of the aforesaid
Release Deed. The Bank also addressed a letter to the Borrower requesting it
to take steps for cancellation of the aforesaid deed and provide the title
document to the said property along with the bank details to refund its money.
103.The Bank on 06.10.2023 further took steps and got the Sale Certificate issued
in favour of the petitioner registered before the Joint Sub-Registrar, Thane–
8 vide Registration No. 22540 of 2023.
104.He submitted that the Bank further addressed another letter to the Borrower
requesting it to take immediate steps for cancellation of the Release Deed
and to hand-over the title documents of the property to the Bank to enable it
to initiate the refund of its money, however the same were to no avail.
105.When the Subsequent Transferee instituted the suit for seek a declaration of
title to the Secured Asset in its favour, the Bank immediately took steps by
entering appearance and filing an application under Order VII Rule 11 of the
CPC inter-alia contending that the reliefs claimed is in violation of the
decision of this Court in the Main Appeals.
106.He further submitted that the Bank in order to recover the physical possession
of the subject property filed an application under Section 14 of the
SARFAESI Act before the District Magistrate, Thane. The said application
came to be allowed on 02.02.2024 and possession was scheduled to be taken
on 29.02.2024. Against this, the Subsequent Transferee filed an application
in the suit for seeking ad-interim injunction and grant of status qua as regards
the possession which was allowed, the Bank promptly challenged the same
before the High Court. Whereas the Borrower challenged the said possession
notice before the DRT which was rejected but in appeal status quo was
granted by the DRAT.
107.He submitted that the as per the decision of this Court in the Main Appeals,
the Borrower was duty bound to return the possession and title deeds of the
secured asset to the Bank for the purpose of handing the same over to the
petitioner, and as a natural consequence of the direction to issue the Sale
Certificate the Borrower was required to get the Release Deed and the
Assignment Agreement cancelled. However, the Borrower in league with the
Subsequent Transferee has prevented the implementation of the aforesaid
directions as per the judgment of this Court in the Main Appeals and
complicated the issue by taking recourse to untenable dilatory litigations
against one and all.
108.In light of the above, the Bank was compelled to prefer the present
miscellaneous application before this Court for seeking directions for the
implementation of the decision of this Court in the Main Appeals and inter-
alia declare the Release Deed dated 28.08.2023 executed by the Bank in
compliance of the High Court’s impugned order and the Assignment
Agreement dated 28.08.2023 executed by the Borrower in favour of the
Subsequent Transferee as null and void and further direct the Borrower to
return the original title documents of the subject property to the along with
the details for initiating refund of its money paid towards redemption of
mortgage, and to direct the District Magistrate Thane to immediately take
possession of the secured asset and handover the same to the Bank.
C. ISSUES FOR DETERMINATION
109.Having heard the learned counsel appearing for the parties and having gone
through the materials on record, the following questions fall for our
consideration: -
I. Whether any act of contempt could be said to have been committed by
the respondent nos. 1 to 4 respectively of the judgment and order dated
21.09.2023 passed by this Court in Civil Appeal Nos. 5542-5543 of
2023? In other words, whether the respondents herein in light of the
aforesaid decision of this Court were duty bound to cancel the Release
Deed dated 28.08.2023 and hand over the physical possession along
with the original title deeds of the Secured Asset to the petitioner
herein?
II. Whether, the proceedings arising out of S.A. No. 46 of 2022 could
have continued after this Court’s judgment and order dated 21.09.2023
directing the issuance of the Sale Certificate of the Secured Asset to
the petitioner herein? In other words, whether the petitioner by virtue
of the Sale Certificate dated 27.09.2023 is said to have acquired a clear
title to the said property?
III. Whether the transfer of the Secured Asset in favour of the Subsequent
Transferee by way of the Assignment Agreement dated 28.08.2023 is
hit by lis pendens? In other words, whether the absence of any
registration in accordance with Section 52 of the TPA as amended by
the State of Maharashtra renders the lis pendens inapplicable?
D. ANALYSIS
i. Concept of Abuse of Process of Court and Collateral challenge to
judgments that have attained finality.
110.Before we proceed with the analysis, it is necessary to understand the stance
of the Borrower throughout the present litigation, as discernible from their
pleadings before different forums, which has left us quite perplexed.
111.It is the case of the Borrower that there is no contempt not to speak of any
violation of the decision of this Court rendered in the Main Appeals as the
issue of validity of the 9th auction was never touched upon by this Court
whilst deciding the right of the Borrower to redeem the mortgage, rather this
Court had preserved the right of the Borrower to continue with its challenge
to the auction proceedings before the DRT. Thus, in essence it is the case of
the Borrower that this Court had adjudicated the right of redemption
independent of the validity or legality of the SARFAESI proceedings that
involved these rights.
112.When the Bank published the notice of sale for the 9th Auction on 12.06.2023,
the Borrower herein on 26.06.2023 preferred two applications before the
DRT being I.A. No. 2253 of 2023 and I.A. No. 2254 of 2023 in S.A. No. 46
of 2022 respectively, inter-alia for amending its pleadings to challenge the
9th auction proceedings and for seeking stay of the said auction in the
meantime. In the said application, the Borrower inter-alia sought to
challenge the 9th Auction on the ground that there was no 30 or 15 days
between the ‘service’ of the notice of sale and the date of auction, and thus
was in violation of the statutory rules. The relevant grounds sought to be
included by way of amendment of pleadings are as under: -
IN GROUNDS:
After Ground No. G: Insertion of Ground Nos. G(i) to G(viii)
G-(i) Undisputedly, in the 1st auction proceeding under sale
notice dated 25th March, 2022, the Respondent failed to give a
clear 30 (thirty) days of notice. Likewise, in the 2nd auction
proceeding under sale notice dated 30th April 2022, the
Respondent failed to give a clear 15 (fifteen) days of notice.
Additionally, there were several glaring defects and illegalities
in both the sale notices. Therefore, the sale notices dated 25th
March 2022 and 30th April, 2022 cannot be treated and terms as
lawful sale notices. The Respondent suo-moto cannot be
considered to have conducted the 1st or 2nd auction and failed.
According to the Applicants, the Respondent never conducted
the 1st and / or 2nd lawful auction/s process as per law. Therefor,
the Respondent is duty bound to give a clear 30 (thirty) days gap
as the 1st auction notice was never conducted nor termed as
lawful. Thus, the impugned Auction Sale Notice dated 12th June
2023 has failed.
G-(v) That, the sale notice dated 12th June 2023 is bad in law
and not issued in accordance with the provisions of SARFAESI
Act and rules thereunder. More particularly, the impugned Sale
Notice is perverse for the following reasons;
a. There is no 30/15 days gap between service of the notice
and the auction as under law this is first auction.
b. Known encumbrance has not been disclosed as per Rule
8 of the SIE Rules.
c. Sale process is in blatant violation of Rule 8 & 9 of the
SIE Rules.
d. Sale notice has not been pasted at the secured assets.
e. It is not in a statutory format provided at Appendix IV-A.
f. Rule 8(5) of the SIE Rules has not been followed in its true
spirit as it seems that reserve price is being fixed based on
desktop valuation. “
Accordingly, the Borrower by way of the aforesaid application for
amendment sought an additional prayer for quashing and setting-aside of the
Auction Sale Notice dated 12th June 2023 and all further and consequential
measures pursuant thereto. The prayer sought reads as under: -
IN RELIEFS SOUGHT:
After Paragraph No. 6(b): Insertion of Paragraph No. 6-(b)-i
6-(b)-i That, this Hon’ble Tribunal may be pleased to quash and
set-aside the impugned Auction Sale Notice and Public Notices
dated 12th June 2023 and hold all further and consequential
measures pursuant to the impugned Auction Sale Notice dated 12th
June 2023 as defective and in violation of the SARFAESI Act and
Rules made thereunder.”
113.While the aforesaid applications were still pending the Borrower decided to
move the High Court with Writ Petition No. 9523 of 2023 seeking the
indulgence of the High Court to call for the proceedings arising from the S.A.
No. 46 of 2022 pending before the DRT-I, Mumbai to itself, and then
adjudicating the same by examining the validity of the actions taken by the
Bank under the SARFAESI Act and thereafter permit the Borrower to
redeem the mortgage. In the alternative, it was prayed that the Bank may be
directed to not take any further steps in confirming the sale to the petitioner
till the S.A. No. 46 of 2022 is decided by the DRT. Thus, in essence, the
prayer of the Borrower before the High Court was two-fold: -
(i) Prayer (a) / Para 11(a) of the writ petition: Either to seize the issues
arising in the S.A. No. 46 of 2022 before the DRT for itself and decide
the same in favour of the Borrower and consequentially permit it to
redeem the mortgage of the Secured Asset or;
(ii) Prayer (b) & (c) / Para 11(b) (c) of the writ petition: Alternatively,
stay the confirmation of the sale under the 9th auction by the Bank till
the S.A. No. 46 of 2022 is decided by the DRT along with a further
direction that the Borrower be given the liberty to tender the remaining
amount and redeem the mortgage i.e., prayers 11(c) and 11(b)
At the cost of repetition, the relevant prayers sought by the Borrower
in the writ petition before the High Court are reproduced hereunder: -
11. THE PETITIONERS, THEREFORE, PRAY:
(a) That this Hon'ble Court be pleased to issue Writ of
Certiorari or Writ in the nature of Certiorari or any other
appropriate Writ, calling upon the papers and proceedings
of the Securitization Application No. 46 of 2022 pending
before the Hon'ble DRT I, Mumbai and after examining the
legality, validity and propriety thereof, be pleased to allow
the Petitioners to redeem the mortgage as per schedule
provided in the Interim Application No. 2339 of 2023 filed
before the Hon DRT I, Mumbai or within such reasonable
period as this Hon'ble Court may deem fit and proper;
(b) That this Hon’ble Court be pleased to direct the Respondent
to issue “No Dues Certificate” and release All piece and
parcel of leasehold land to the extent of 16200 sq. mtrs
various buildings and ancillary structures at amalgamated
plot no. D-105, D-110 and D-111, Trans Thane Creek
Industrial Area, MIDC, Village Shirwane, Thane- Belapur
Road, Navi Mumbai, Dist- Thane, Maharashtra, 400706,
after getting the entire redemption amount;
(c) In the alternate, that this Hon’ble Court be pleased to direct
the Respondent not to take any further steps for issuance of
the sale Certificate by confirming the sale until the hearing
and final disposal of the Securitization Application No. 46
of 2022 pending before the Hon’ble DRT I, Mumbai;”
114.What can be discerned from the above is that the initial stance of the
Borrower before the High Court was that its right of redemption was wholly
dependent upon the adjudication of S.A No. 46 of 2022. In such
circumstances, it had prayed before the High Court to either decide the said
securitization application itself and thereupon permit the redemption of
mortgage or otherwise to stay the auction proceedings till the same was
decided by the DRT. Thus, the Borrower’s case at that time was clearly that
its right of redemption is not independent of the challenge to the validity of
the measures taken by the Bank under the SARFAESI Act and rather was
consequential to it, which is why both its primary prayer and its alternative
prayer sought for the adjudication of the S.A No. 46 of 2022 on the basis of
which its right may then be adjudicated. The prayer made by the Borrower
in paragraph 11(b) of its writ petition is particularly interesting, inasmuch as
it is seeking a direction from the High Court that it may be permitted to
redeem the mortgage during the pendency of the S.A No. 46 of 2022, which
further reinforces that until the securitization application was decided it could
not have redeemed its mortgage without a specific direction permitting it to
do so.
115.The pleadings of the Borrower in the aforesaid writ petition are also
significant to the controversy at hand. The Borrower had assailed the
demand notice dated 07.06.2021 under Section 13(2), the possession notice
dated under Section 13(4) and the e-auction sale notices dated 25.03.2022
issued under the SARFAESI Act on various grounds. Pertinently, the
Borrower in its writ petition never imputed any illegality or perversity to the
9th Auction notice. From a plain reading of the aforesaid writ petition, the
following position emerges: -
(i) Although the Borrower at paragraph 4.28 has stated that the aforesaid
auction notice was issued on 12.06.2023 scheduling the auction for
30.06.2023, yet there is nothing to indicate that the Borrower had
assailed the said notice on the ground of want of a 30 / 15 days period
of notice in terms of Rule 8 and 9 of the SARFAESI Rules.
(ii) In the very next paragraph i.e., at paragraph 4.29, although the
Borrower has stated that the sale process is absolutely erroneous, yet
it has not laid any specific challenge to the 9th auction notice dated
12.06.2023. Thus, far from a mere bald assertion that the sale process
is erroneous, no specific plea as regards the absence of a 30 / 15 days
gap between the sale notice and auction was taken, which the
Borrower now seeks to espouse in the present contempt petition.
(iii) Pertinently, in the grounds, the Borrower has left no stone unturned for
challenging the demand notice, the possession notice, the first sale
notice, the valuation of the Secured Asset by the Bank etc. Yet again,
the plea which the Borrower seeks to take in the present contempt
petition is conspicuously absent. The ground taken by the Borrower at
paragraph ‘x’ again at best can be construed as seeking to challenge
the validity of the first sale notice and not the 9th auction notice.
(iv) The only ground which remotely touches the validity of the 9th auction
notice dated 12.06.2023 appears to be at paragraph hh. which again
does not contain the plea which the Borrower has taken in the present
contempt petition as regards the validity of the said sale notice, rather,
the Borrower’s contention in the said paragraph is plain & simple that
due to the infirmities in the earlier measures taken by the Bank under
the SARFAESI Act, namely the demand notice, the possession notice
and the first sale notice, all subsequent actions are also rendered illegal
and contrary to the provisions of the Act.
The relevant paragraphs of the Borrower’s writ petition referred to
above are reproduced hereunder: -
“4.28 On 12th June, 2023, Respondent No. 1 has published Sale
Notice scheduling auction of the said property on 30th June, 2023
with a Reserve Price of Rs. 105,50,00,000/-. Hereto annexed and
marked Exhibit “F” is a copy of the Sale notice dated 12th June,
2023.
4.29 The Petitioners most respectfully submit that without
prejudice to their rights and contentions, the sale process was
absolutely erroneous in addition to the defects already committed
by the Bank as stated herein above.
GROUNDS: -
n. that the actions on the part of the Respondent as measures under
·provisions of SARF AESI Act are entirely illegal, arbitrary,
unreasonable and unjustified;
r. that, the E-auction sale notice dated 25th March 2022 which
was delivered upon the Petitioners only on 3lst March 2022,
whereas the Auction is fixed on 29th April 2022 Thus, there is no
clear gap of 30 (thirty) days. Being 1st auction Respondent is duty
bound to give clear 30 (thirty) day notice to the Petitioners as per
the mandate· of Rule 8(6) read with Rule 9(1) of the SIE Rules.
Thus, the impugned e-auction notice dated 25th March 2022 and
all further and consequential action become perverse;
s. that, the impugned sale notice dated 25th March 2022 is in
violation of Rule 8(7) (b) of SIE Rules. Under Rule 8(7)(b),
legislature requires authorized officer to state the "secured debt
for recovery of which the property is to be sold". Perusal of the
impugned auction notice, demonstrates that Respondent has
recorded alleged outstanding as on 28th February 2022 and failed
to state exact outstanding as on the date of sale notice for which
the property is getting sold. The amount of dues mentioned in the
purported auction· notice is uncertain and vague. In these
peculiar circumstances it is more than enough to prove that there
is basic and patent illegality in the. entire E-auction proceeding;
t. that, as per the mandate of Rule 8(6)(f), mandates of the secured
creditor/authorized officer to disclose the encumbrances known to
the Respondent. Herein, admittedly the Secured creditor was fully
aware about the encumbrances of Rs.2,08,40;362/- (Rupees· Two
Crores Eight Lakhs Forty Thousand Three Hundred and Sixty-
Two Only) OR Rs.2,53,40,362/- (Rupees Two Crores Fifty-Three
Lakhs Forty Thousand Three Hundred and Sixty-Two Only).
towards property tax bill which was found pasted by the
Respondent during their site visit as, duly recorded in a Bank's
letter dated 14th January 2022. 0nce, again, Petitioner vide letter
dated 17th January 2022 confirmed that the property tax dues are
pending and Corporation has pasted the notice for an
encumbrance of Rs. 2,53,40,362/- (Rupees Two Crores Fifty-
Three Lakhs Forty Thousand Three Hundred and Sixty Two
Only);
u. that moreover, the Rule 9(10) of the Security Interest
(Enforcement) Rule states that the certificate of sale to be issued
by the Authorised Officer shall specifically mention that whether
purchaser has purchased the immovable secured asset free from
any encumbrance known to the secured creditor or not. A plain
reading of the SARFAESI. Act/Rules casts a duty upon the, Bank /
Financial Institution to furnish those encumbrances which are
known to them on the property which are sold by them. As stated
above, despite having fully known about the encumbrances of
property tax, Authorized Officer at clause 4 of the impugned sale
notice has falsely and misleadingly recorded that ''NOT
KNOWN". On this ground alone, impugned sale notice dated 25
March, 2022 fails in its entirety;
w. that, sale notice dated 25th March, 2022 is bad in law and not
issued in accordance with the provisions of SARFAESI Rules
thereunder. Impugned Sale Notice is perverse for following
reasons;
x. that there is no 30 days gap between service of notice and
auction;
y. that known encumbrance has not disclosed as per Rule 8;
z. that sale process is in blatant violation of Rule 8 & 9;
aa. that sale notice has not been pasted at the secured assets and
the same is not in statutory format provided at Appendix IV-A;
cc. that Rule 8(5) has not been followed in its true spirit as it seems
that ·reserve· price is being fixed based· on desktop valuation;”
116.Even before the High Court, as evident from the impugned order, the
Borrower had not canvassed any submissions on the illegality or invalidity
of the measures taken by the Bank under the SARFAESI Act including the
validity of the 9th auction notice dated 30.06.2023. The specific plea which
the Borrower had taken in the present contempt petition, namely the lack of
a 30 / 15 days gap between the sale notice and auction is conspicuously
absent. On the contrary it appears that the Borrower in the aforesaid writ
petition had abandoned its right to challenge the validity of all measures
taken by the Bank under the SARFAESI Act. We say so because of the
following reasons: -
(i) First, before the High Court the Borrower had submitted that if they
are unable to pay the entire dues for redemption of mortgage by
31.08.2023, then the possession of the Secured Asset would be
voluntarily handed over to the petitioner. The relevant observations
“5. Today, Mr. Shinde, the learned Advocate appearing
for the Respondent Bank, on instructions, has stated that
if the Petitioners are willing to pay the entire amount of
Rs. 129 crores on or before 31st August 2023 and subject
to them paying over to the Bank a sum of Rs. 25 crores
today [by Demand Drafts], they have no difficulty in
allowing the Petitioners to redeem the mortgage. The
further condition that Mr. Shinde put forth for accepting
this offer was that the Securitization Application filed
before the DRT would stand dismissed on the passing of
this order, and if the payment is not made by 31st August
2023, possession of the secured asset would be handed
over by the Petitioners to the Auction Purchaser on 5th
September 2023.
6. Mr. Khandeparkar, on taking instructions, has fairly
stated that in the event the entire amount of Rs. 129 crores
is not paid by the Petitioners on or before 31st August
2023, then the Petitioners shall voluntarily hand over
vacant, peaceful, and quiet possession of the secured asset
to the Auction Purchaser on or before 5th September
2023.”
(ii) Secondly, the High Court in view of the aforesaid categorically held
that on passing of the impugned order the entire challenge laid to the
actions of the Bank under the SARFAESI Act would come to an end.
It further held that even if the Borrower failed to redeem the mortgage
even then no challenge could be laid to the sale of the secured asset
and that the physical, vacant and quiet possession would be handed
over to the auction purchaser. The relevant observations are
reproduced hereunder: -
“11. We have heard the learned Counsel for the parties at
some length. We have also perused the papers and
proceedings in the above Writ Petition. It is not in dispute
that the Petitioners have approached the DRT by filing an
application for redemption of the mortgage. As mentioned
earlier, this application is an Interim Application filed in
Securitization Application No. 46 of 2022 and which is
also pending. Considering these facts, under normal
circumstances, we would not have entertained the above
Writ Petition. However, in the peculiar facts and
circumstances of the present case, we are of the opinion
that considering stand taken by the Respondent Bank [and
which is accepted by the Petitioners without any
conditions or reservations], it would be in the interest of
all concerned if the consensus reached between the
Respondent Bank and the Petitioners is taken cognizance
of by us. We say this because in the present scenario, by
31st August 2023, the Respondent Bank will receive its
entire dues one way or the other. In the event the
Petitioners adhere to its promise to pay the entire dues [of
129 crores] by 31st August 2023, then naturally, the Bank
will receive its entire money. In contrast, if the Petitioners
default in making payment of the entire sum of Rs.129
crores, the sum of Rs. 25 crores to be paid over to the
Respondent Bank today, would be appropriated by the
Bank towards the outstanding dues of the Petitioners, and
the balance Rs.105.05 crores would be received from the
Auction Purchaser who has already deposited the entire
sale consideration with the Respondent Bank. It is taking
these circumstances into consideration that the
Respondent Bank has changed its stand from the stand it
took before the DRT when it opposed the Petitioners'
application for redemption. Another reason why the
Respondent Bank has changed its stand is because the
entire litigation will come to an end on the passing of this
order. In other words, on the passing of this order itself,
the entire challenge laid by the Petitioners to the actions
of the Bank [under the provisions of the SARFAESI Act,
2002] comes to an end. Therefore, even if the Petitioners
default in making payment by 31st August 2023, no
challenge can be laid to the sale of the secured asset to
the Auction Purchaser. Further, as per the statement of
Mr. Khandeparkar, in the event the Petitioners fail to pay
the entire dues of Rs.129 crores to the Respondent Bank
by 31st August 2023, vacant, quiet, and peaceful
possession of the secured asset would be handed over by
the Petitioners to the Auction Purchaser and the Bank
would then issue a sale certificate in favour of the Auction
Purchaser. When one looks at all these facts, we find that
the arrangement referred to above is in the interest of all,
including the Auction Purchaser. We say this because, by
31st August 2023, the Auction Purchaser will either get
the secured asset free from litigation or will get a refund
of the entire amount paid by it to the Respondent Bank for
agreeing to purchase the secured asset.”
(iii) Lastly, the High Court whilst permitting the Borrower to redeem the
mortgage specifically noted, that in light of its order nothing survived
in the S.A. No. 46 of 2022 pending before the DRT and that the sale
of the Secured Asset shall stand confirmed in favour of the petitioner.
Furthermore, the High Court treated the Borrower’s leave to withdraw
the aforesaid securitization application and not challenge the validity
of the measures taken under the SARFAESI Act as an undertaking to
the High Court. The relevant observations read as under: -
“15. In light of the foregoing discussion, the following
order is passed: -
(e) In the event the balance amount of Rs. 104 crores are
not paid by the Petitioners to the Respondent-Bank on or
before 31st August 2023, the Respondent Bank shall then
be entitled to appropriate the money from the No Lien
interest bearing account towards the dues payable by the
Petitioners and the sale of the secured asset shall be
confirmed in favour of the Auction Purchaser and a sale
certificate shall be issued in their favour. All formalities
in relation to registration of that certificate shall also be
done by the Respondent-Bank and the Auction Purchaser.
(f) In light of this order, Mr. Khandeparkar has stated
that, nothing would survive in Securitization Application
No. 46 of 2022 and/or the Interim Applications filed
therein and seeks leave to withdraw the same within a
period of one week from today. The said statement is
accepted as an undertaking given to the Court. It is
needless to clarify that even if the Petitioners do not
withdraw the Securitization Application, the same shall
stand dismissed in light of this order and the Petitioners
will not be permitted to litigate any further with the
Respondent Bank in relation to the secured asset. In other
words, if the Petitioners default in making the balance
payment of Rs.104 crores to the Respondent Bank by 31st
August 2023, the Auction Purchaser shall get the secured
asset free from litigation. As per the statement made by
Mr. Khandeparkar, and which is accepted as an
undertaking given to the Court, if the Petitioners default
in making the balance payment of Rs.104 crores by 31st
August 2023, physical, vacant, quiet, and peaceful
possession of the secured asset shall be handed over to the
Auction Purchaser on or before 5th September 2023.”
117.What can be discerned from the above is that although the Borrower in its
writ petition had initially prayed for adjudication of the S.A. No. 46 of 2022
either by the High Court itself or in the alternative by the DRT subject to the
auction proceedings being stayed, yet during the hearing it had effectively
waived of its right to pursue the said securitization application and to
challenge the actions taken by the Bank under the SARFAESI Act including
the 9th auction notice. Similarly, although the High Court permitted the
Borrower to redeem the mortgage yet its right to challenge the validity of the
sale had been foreclosed by the High Court irrespective of whether the
Borrower is able to actually tender the dues for redemption or not. Moreover,
the proceedings under the said S.A. No. 46 of 2022 did not merely come to
an end as a consequence of the impugned order of the High Court but rather
due to the unconditional undertaking of the Borrower to withdraw the same
within a period of 1-week, independent to the exercise of its right of
redemption. Thus, effectively the Borrower at that stage had waived its right
to pursue the S.A. No. 46 of 2022 on its own accord, and at no point of time
did it contend before the High Court to preserve this right in the event it was
unable to redeem the mortgage.
118.Thereafter the said matter travelled to this Court. Manifold submissions were
made by the Borrower, the Bank and the petitioner on the issue of redemption
of mortgage in terms of Section 13(8) of the SARFAESI Act. The petitioner
herein assailed the impugned order of the High Court permitting the borrower
to redeem the mortgage inter-alia on the ground that it was contrary to the
amended Section 13(8) of the SARFAESI Act, and that once the sale stood
confirmed by the Bank, the sale certificate of the Secured Asset could not
have been withheld. Accordingly, the petitioner prayed that not only the
impugned order of the High Court be set-aside, but the Bank be further
directed to issue the sale certificate for the Secured Asset. In response, the
Borrower herein inter-alia contended that no error not to speak of any error
law could be said to have been committed by the High Court in the
interpretation of Section 13(8) of the SARFAESI Act, and that since the
Borrower has already redeemed the mortgage during the pendency of the
Main Appeals in compliance of the High Court’s order, the only issue which
remained was the refund of the amount deposited by the petitioner pursuant
to the auction. After hearing the parties at length, this Court vide its order
dated 01.07.2023 reserved the matter for judgment and further directed the
parties to file their written submissions.
119.Pursuant to the above, the petitioner herein on 04.09.2023 at 15:40 PM filed
its written submissions wherein it inter-alia submitted that since the auction
was already completed and the Bank had confirmed the sale of the Secured
Asset to the petitioner, a vested right in the Secured Asset had accrued in its
favour. It further submitted that of the manner in which the Borrower and the
Bank during the pendency of the Main Appeals, had precipitated the matter
by hastily entering into private arrangements to overtake the proceedings and
undermine the issue involved, prayed that this Court not only set-aside the
High Court’s impugned order but also inter-alia order the issuance of sale
certificate of the Secured Asset and the handing over of its original title deeds
along with reversal of all steps taken by the Bank and the Borrower pursuant
to the High Court’s order. The relevant portion of the petitioner’s written
submissions are reproduced hereunder: -
“5.6 Knowing that the Supreme Court may consider the legality
of what was being attempted, the Borrowers and the Bank have
precipitated matters with the intention of letting events overtake
this Hon’ble Court’s scrutiny. Not only has the Bank accepted
payment of Rs. 129 crore but it has also hastily proceeded to sign
and register the mortgage cancellation documents and issue a
no-dues certificate.
5.7 No regard has been shown for this Hon’ble Court
considering the matter. One can understand that the Borrowers
would pay the Rs. 129 crores by 31.08.2023. However, the haste
with which steps have been taken thereafter is for everyone to
see. The petitioner has obviously refused refund of its money,
pending the decision of this Hon’ble Court.
5.8 However, considering the illegality which the Impugned
Judgment has permitted and that steps have been taken to
implement the Impugned Judgment during the pendency of this
SLP, the Petitioner respectfully submits that to do complete
justice, this Hon’ble Court must not only set aside the Impugned
Judgment but must also order that:
i) All steps taken pursuant to the Impugned Judgment be
reversed;
ii) The registered documents executed pursuant to the
Impugned Judgment be cancelled;
iii) The borrowers be ordered to handover the title documents
of the secured asset back to the Bank;
iv) The Bank be ordered to pay to the Borrowers, a sum of
Rs. 129 crores;
v) The Bank be permitted to cancel its no-dues certificate
issued to the Borrowers and also be permitted to take
recourse to whatever remedies it has in law to recover the
remained of its outstandings from the Borrowers;
vi) The Bank be ordered to issue in the Petitioner’s favour, a
sale certificate; have the same registered and do and
carry out all other acts necessary under the SARFAESI
Act and the Security Interest Rules.
5.9 It is only because the High Court has interfered in the matter
and every step has been taken by the Borrowers and the Bank to
defeat the vested rights of the Petitioner, that such extra-
ordinary orders are warranted. This is the only manner in which
the Petitioner’s vested right as an auction purchaser can be
protected and given effect to.”
120.On the very next day i.e., 05.09.2023 at 10:32 AM, the Borrower herein filed
its written submissions wherein apart from contending that the right of
redemption under the amended Section 13(8) of the SARFAESI Act does not
get extinguished upon issuance of the notice of sale and that the impugned
order of the High Court warranted no interference of this Court in view of
the fact that the mortgage has already been redeemed and that even the
Secured Asset stood transferred to a third-party, the Borrower interestingly
never raised the issue of the illegality of the 9th auction notice. Even though
the petitioner herein had contended that it had a vested right in the Secured
Asset and prayed for issuance of sale certificate to that effect and handing
over of original title deeds, the Borrower remarkably neither disputed the
same nor imputed any illegality in the very auction process through which
the petitioner claimed its vested right. The Borrower having already waived
/ abandoned its right to challenge the legality of the auction proceedings
before the High Court did not even put forth an alternative plea to preserve
its right to pursue S.A. No. 46 of 2022 in the event this Court held that it had
no right to redeem the mortgage. The entire written submissions of the
Borrower is being reproduced hereunder: -
WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT
NO. 1
1. The present Special Leave Petition arises out of the impugned
order dated 17.08.2023 (uploaded on 26.8.2023) in Writ Petition
No. 9523 of 2023 along with Interim Application Stamp No. 21706
of 2023 before the Hon’ble High Court of Judicature at Bombay.
2. Vide the impugned order, the Hon’ble High Court has allowed the
original Petitioners i.e. Respondent No.1 herein, to exercise their
right of redemption upon property being Plot No. D-105, D-110
and D-111, Trans Thane Creek Industrial Area, MIDC Village
Shirwane, Thane, Belapur Road, Nerul, Navi Mumbai, Thane,
Maharashtra 400906 (for short “the secured asset”), prior to the
issue of the Sale Certificate, in lieu of repayment of the Entire
Mortgage Amount on Ledger Balance (Principal+Interest+Penal
Interest+ Overdue Charges + Costs) of the Secured Creditor i.e.
Respondent No. 3, Union Bank of India. .
3. Through the said Writ Petition, the Hon'ble High Court rightly, in
the peculiar facts and circumstances (as noted in para 11 of the
impugned order) exercised its in extraordinary jurisdiction under
Article 226, passed the following directions favour of Respondent
No.1 herein:-
a. The Respondent No.1 herein shall hand over a sum of Rs. 25
Crores to the Respondent Bank today i.e. on 17.8.2023 (in
compliance with this direction, the Counsel for the Respondent
before High Court handed over three Demand Drafts in the
sum of Rs. 10 Crores, 10 Crores and 5 Crores respectively to
the Advocate appearing on behalf of which was duly
acknowledged by him);
b. The balance amount of Rs. 104 Crore shall be paid by the
Respondent No.1 herein to the Respondent Bank on or before
31%* August 2023 in the designated account (Already
Complied with on 28" August 2023);
c. If the amount of Rs. 104 Crores is paid in the said account on
or before 31.8.2023, the same shall be appropriated by the
Respondent Bank towards the dues of the Respondent No.1
herein. The Bank shall then return the original title deeds of
the secured asset to the Respondent No.1 herein, execute all
such documents for cancellation of mortgage, and issue a ‘No
Dues Certificate’ to the Respondent No.1 herein.
4. It is necessary to note that the said land was mortgaged with
Union Bank of India i.e. the Respondent No.2 and Tata Motors
Finance Solutions Limited had a second charge on the said
property. The said charge was duly registered with MIDC.
Respondent No.1 was constrained to approach the Hon’ble High
Court invoking extraordinary jurisdiction under Article 226
5. The Respondent No. 1 had approached Debt Recovery Tribunal
no 1- Mumbai challenging Auction Proceedings initiated by
Respondent no 3 whereby upon urgent mentioning, Securstisation
Application no 46/2022 was placed for urgent hearing on 18th
June 2023 along with Connected Applications, i.e. Application for
Right to Redemption. Despite various hearings taking place,
where on multiple occasions, the Respondent No. 1 informed the
DRT that a Demand Draft of Rs. 10 Crores is ready (And during
course of hearing before the Hon’ble DRT Demand Draft
totalling Rs. 25,00,00,000/- were ready to be submitted), and the
total amount of Rs. 1,24,00,00,000/- would be paid on or before
31.08.2023, no orders came to be passed by the Hon’ble DRT 1.
This was even prior to the Auction Purchaser 1.e. The Petitioner
herein, depositing 100% of the Purchase value, and despite the
Auction Purchaser not having paid the balance 75% purchase
fees.
6. It is DRT), relevant to note that before the Mumbai Debt Recovery
Tribunal-I (the Respondent No. 1 had carried a draft for Rs. 10
crores and also expressed it willingness to make the balance
payment by 31.8.2023 See para 4.31 of Writ Petition at pg. 133 of the SLP (as has
been eventually directed by the High Court in the impugned
order). Since Respondent No.1, the borrower, has a subsisting
right of redemption till a sale certificate is issued (as detailed
hereinbelow), it was constrained to approach the High Court by
way of a writ petition, as there was a genuine apprehension that
the right of redemption would be extinguished pending the
hearing and final disposal of the Interim Application in the
Secutitization Application No. 46/2022.
Subsequent events have rendered the SLP infructuous:
7. The present SLP, at the time of its filing, has been rendered
infructuous due to the following events.
8. That after the impugned order was dictated in open court on
17.8.2023 and subsequently uploaded on the website of Hon’ble
Bombay High Court on 26.8.2023, the following developments
have taken place:
a. The Respondent No.1 and Respondent no.2 transferred an
amount of Rs. 104 Crores to the Respondent No. 3 i.e. Union
Bank of India vide RTGS, having UTR No.
HDFCR52023082882894716.
b. This was followed by the Respondent No.3 1.e. Union Bank of
India issuing a No Dues Certificate dated 28.08.2023 thereby
acknowledging that the Respondent No.1 does not owe any
further amount to the Bank and releasing the personal
guarantees as well.
c. Further, after the No Dues Certificate was issued by
Respondent No. 3, Respondent No.1 executed a registered
Deed of Release with Tata Motors Financial Solutions Limited
registered with the Joint Sub Registrar, Thane 8 having
registration No. 19283/2023, whereby the second charge that
Tata Motors Finance Solutions Limited had on the second
property came to be released, pursuant to payment of Rs. 15
Crores (Rs. 10 Crores on 18.08.2023 and Rs. 5 Crores on
22.08.2023 ), which came to be duly acknowledged by Tata
Motors Finance Solutions Limited.
d. Following this, the Respondent No. 1 has also entered into a
registered Agreement of Assignment of Leasehold Rights for
transfer of leasehold rights in the secured asset with M/s
Greenscape L.T. Park LLP on 28.8.2023, which came to be
registered before the Joint Sub Registrar, Thane 8 having
registration No. 19286/2023. Copies of Documents
issued/registered/executed subsequent to passing of the
Impugned Order are attached herewith as Annexure R-1
(Colly).
9. Since there has been full compliance of the Impugned Order by
the Respondent No.1 herein as well as the Respondent No.3 Bank,
the SLP has essentially become infructuous.
10. The only issue which remains is the refund of the amount
deposited by the Petitioner herein. This is an issue between the
Petitioner and the Respondent No.3 Bank and the Respondent
No.1 has no reason to come in the way of the refund of the amount
to the Petitioner herein.
11. There is a specific direction of the Hon’ble High Court that the
Respondent Bank shall immediately keep the entire amount of Rs.
105.05 Crores (deposited by the Auction Purchaser/Petitioner
herein) in a ‘No Lien Interest Bearing Account’ and if the
Respondent No.1 pays the balance amount of Rs. 104 Crores to
the Respondent Bank by 31.8.2023 (which it has), then the
Respondent Bank shall refund the amount of Rs. 105.05 Crores
deposited by the Auction Purchaser together with accrued interest
on or before 7.9.2023.
The impugned order correctly interprets Section 13(8) of the
Securitisation and Reconstruction of Financial Assets and
Enforcement of Security interest Act,2002 (SARFAESI Act):
12. During the arguments on 01.9.2023, the main issue of contention
that arose was till what stage does the right of redemption survive,
more so, in the light of the 2016 Amendment which amended
Section 13(8) of the SARFAESI Act, 2002.
13. It is stated by the Respondents that the right of redemption is
nowhere mentioned in the SARFAESI Act, and one has to refer to
Section 60 of the Transfer of Property Act, 1882, which has been
interpreted to reserve the right of Mortgagor to redeem the
property fill the stage of the same being conveyed / transferred to
a third party.
14. This interpretation has been upheld in the landmark case of
Nardas Karsondas V/s S.A. Kamtam and Anr [Annexure R-2]
(1977) 3 SCC 247 where it has been held that:
“34. The right of redemption which is embodied in
Section 60 of the Transfer of Property Act is available
to the mortgagor unless it has been extinguished by of
parties. The combined effect of Section 54 of the
Transfer of Property Act and Section 17 of the Indian
Registration Act is that a contract for sale in respect of
immovable property of the value of more than one
hundred rupees without registration cannot extinguish
the equity of redemption. In India, it is only on
execution of the conveyance and registration of transfer
of the Mortgagor’s interest by registered instrument
that the mortgagor’s right of redemption will be
extinguished. The conferment of power to sell without
intervention of the Court in a Mortgage Deed by itself
will not deprive the mortgagor of his right t redemption.
The extinction of the right of redemption is not
extinguished at the expiry of the period. The equity of
redemption is not extinguished by mere contract for
sale.
35. The mortgagor’s right to redeem will survive until
there has been completion of sale by the mortgagee by
a registered Deed. In England a sale of property takes
place by agreement but it is not so in our country. The
power to sell shall not be exercised unless and until
notice in writing requiring payment of the principal
money has been served on the mortgagor. Further
Section 69(3) of the Transfer of Property Act shows that
when a sale has been made in professed exercise of
such a power, the right of the purchaser shall not be
impeachable on the ground that no case had arisen to
authorize the sale. Therefore, until the sale is complete
by registration the mortgagor does not lose right of
redemption.”
15. This position has also been echoed in the case of Mathew
Varghese V/s M. Amrithakumar 2014 5 SCC 610 [Annexure R-3]
where this Hon’ble Court has held that upon a combined reading
Registration Act, it can be concluded that the extension of the right
of redemption comes much later than the sale notice.
16. Though the decision in Mathew Varghese (supra) was prior to the
2016 Amendment to SARFAESI Act, its applicability has been
continued to be held valid even after the amendment to the said
Act. A Division Bench of the Hon’ble High Court of Telangana in
the case of Concern Readymix V/s Authorized Officer,
Corporation Bank and Anr 2018 SCC OnLine Hyd 783 [Annexure R-4],
whereby the Hon’ble Court, after juxtaposing the Amended and
Unamended provisions of Section 13(8) of the SARFAESI Act, qua
the right of redemption available to the Mortgagor held that the
Amended S. 13(8) of the SARFAESI Act only puts a restriction on
the right of the Mortgagee to deal with the property and does not
speak in express terms about the equity of redemption available
to the Mortgagor (at para 13). It was further held that the danger
of interpreting Section 13(8) as though it relates to the right of
redemption, is that if payments are not made as per Section 13
(8), the right of redemption may get lost even before the sale is
be complete in all respects and that holding that the right of
redemption would extinguished at the stage of issue of notice
under Rule 9(1) would be tantamount to annulling the relevant
provision of the Transfer of Property Act, 1862 which do not
stand expressly excluded insofar as the question of redemption
is concerned (para 14). The said judgment was challenged before
this Hon’ble Court vide SLP (Civil) Diary No. 28967/2019 and
the same came to be dismissed, hence, confirming the said
judgment.
17. The view expressed in Concern Readymix (supra) was echoed by
a Division Bench of the High Court of Punjab and Haryana in the
case of M/s Pal Alloys & Metal India Private Limited and others
V/s Allahabad Bank and Ors.CWP No. 6402 0£2019 (O & M) dated 23.12.2021
[Annexure R-5] wherein the Hon’ble High Court, inter alia,
considered the specific issue “(a) till what time and date can the
right of redemption of the Mortgage can be exercised by the
Mortgagors / Borrowers in the light of the amendment to Section
13 (8) of the SARFAESI Act”.
18. While answering the said question, the Court considered the
report of the Joint Committee on the Enforcement of Security
Interest and Recovery of Debts Laws and Miscellaneous
Provisions (Amendment) Bill, 2016 (the Report) as well as the law
laid down by this Hon’ble Court in Mathew Varghese (supra) and
the judgment in Concern Readymix (supra), in order to determine
whether the said right of redemption was available up to the date
of transfer of the asset or only up to the date of publication of the
sale notice. On a consideration of Section 60 of the Transfer of
Property Act as well as the judgment in Nardas Karsondas
(supra), it was observed that:
“Thus even if the sale of secured assets is under a
special statute like State Financial Corporations Act,
there is no deviation from the general principle that the
mortgagor’s right of redemption is not extinguished till
the execution of conveyance.”
19. It was ultimately held as below:-
“that the amended Section 13 (8) of the SARFAESI Act
merely prohibits a secured creditor from proceeding
further with the transfer of the secured asset by way of
lease, assignment or sale; a restriction on the right of
the mortgagee to deal with the property is not exactly
the same as the equity of redemption available to the
mortgagor, the payment of the amount mentioned in
Section 13 (8) of the SARFAESI Act ties the hands of
the mortgagee (secured creditor) from exercising any
of the powers conferred under the Act; that redemption
comes later; extinction of the right of redemption comes
much later than the sale notice; and the right of
redemption is not lost immediately upon the highest bid
made by a purchaser in an auction being accepted. We
also hold that such a right would continue till the
execution of a conveyance i.e. issuance of sale
certificate in favour of the mortgagee. A similar view
has been taken by this Branch in M/s Hoshiarpur Roller
Flour Mill Private Limited and another V/s Punjab
National Bank (CWP No. 1440 of 2021).
It would therefore, certainly be available to the
Petitioners herein before the issuance of sale certificate
in favour of Respondent Nos. 2 and 3. Point (a) is
answered accordingly in favour of the Petitioners and
against the Respondents.”
20. The said judgment also considered and distinguished the
judgment of this Hon’ble Court in Shakeena and Anr. V/s Bank
of India and Ors. (2021) SCC 761 [Annexure R-6] holding that that
the said case did not consider the concept of redemption u/s 60 of
the Transfer of Property Act, 1882. It is submitted that the
observations in para 30 of Shakeena are in the nature of obiter
dicta as in the said case the auction had concluded prior to the
amendment of Section 13(8) and in any event the sale certificate
had already been issued. Thus, the question of interpretation of
Section 13(8) was not directly in issue.
Effect of amendment to S. 13(8) of the SARFAESI Act, 2002
21. It was vehemently argued by the Petitioners that the amended
provisions of Section 13(8) of the SARFESI Act, 2002 puts a
positive restriction upon the Mortgagor to restrict its right of
redemption until the date of publication of the notice.
22. A perusal of the Report The report of Joint Committee on the Enforcement of Security
Interest and Recovery of Debts Laws and Miscellaneous Provisions (Amendment) Bill, 2016
[Annexure R-7], more particularly para 24, shows that the proposed
amendment to S. 13(8) of the Act was intended to deal with: -
“Provisions to stop secured creditor to lease or assignment or
sale in the prescribed conditions”. The important thing to note is
also that the report does not indicate that the Committee had
considered the effect of Section 60 of the Transfer of Property Act,
1882, which is a general law regarding redemption of mortgage
vis a vis the provisions of SARFAESI.
23. The focus of the Committee in the said reply is on the obligations
of the Mortgagee to not create third party rights up to a certain
time-period, but it is silent on the rights of the Mortgagor to
exercise its redemption for which Section 60 of the Transfer of
Property Act, 1882 is the relevant provision.
24. It is further necessary to note that the non obstante clause in
Section 13 specifically excludes only S. 69 and 69A of the Transfer
of Property Act, 1882. This section does not specifically include
the words "Notwithstanding anything contained in any other Act
for the time being in force" which is the standard term used in non
obstante clauses. In view thereof, the legislative intent has to be
interpreted to only exclude S. 69 and 69A of the Transfer of
Property Act, 1862 and the same does not affect the applicability
of Section 60 of the Transfer of Property Act, 1862.
25. It is thus humbly submitted that the arguments and contentions of
the Petitioner are liable to be rejected. Various High Courts have
consistently held that the right of redemption has to be exercised
in terms of S. 60 of the Transfer of Property Act, 1862 and not u/s
13 (8) of the SARFAESI, 2002 and the amendment to Section 13(8)
does not affect or take away this right in any manner.
It is therefore respectfully submitted that the present case is not a case
warranting exercise of this Hon'ble Court's jurisdiction under Article
136 of the Constitution.”
121.What can be discerned from the above is that: -
(i) It is true the Borrower had assailed the actions of the Bank under the
SARFAESI Act before the DRT by way of S.A. No. 46 of 2022. When
the 9th Auction notice came to be issued on 12.06.2023 which the
Borrower alleges to have received on 14.06.2023, the same was also
challenged in the aforesaid securitization application by way of I.A.
No. 2253 of 2023.
(ii) Before the DRT could conclude the proceedings, the Borrower on its
own volition moved the High Court by way of its Writ Petition No.
9523 of 2023, wherein the Borrower sought to subsume the entire issue
emanating from the S.A. No. 46 of 2022 in the writ petition before the
High Court and as a primary relief prayed that either the High Court
should decide the same and thereafter allow it to redeem the mortgage
or in the alternative the DRT be directed to ultimately decide the issue
and then permit it to redeem the mortgage.
(iii) Thereafter, in the proceedings before the High Court, the Borrower
voluntarily abandoned its aforesaid prayers and waived the right to
pursue the S.A. No. 46 of 2022 before the DRT, irrespective of
whether it was able to redeem the mortgage or not. In view of the
above, the High Court by its impugned order permitted the Borrower
to redeem the mortgage and directed that within a period of 1-week
the S.A. No. 46 of 2022 be withdrawn and further clarified that even
if the Borrower failed to withdraw the same, the said application would
stand dismissed in light of its order and the Borrower would no longer
be permitted to litigate any further in respect of the Secured Asset.
(iv) When the judgment in Main Appeals was reserved by this Court on
01.07.2023, the aforesaid period of 1-week had already elapsed. The
Borrower never withdrew the securitization application. The Borrower
in its written submissions before this Court claimed that it had already
complied with the terms of the impugned order, but conveniently it
never withdrew the S.A. No. 46 of 2022 which it was required to.
(v) Pertinently, during the course of hearing of the Main Appeals before
this Court the petitioner herein / the successful auction purchaser apart
from contending that the Borrower’s right to redeem the mortgage had
been extinguished under the law, it specifically prayed that not only
the impugned order of the High Court be set-aside but that the Bank
be directed to issue the sale certificate to the Secured Asset and by its
extension confirm the sale in its favour as evinced from its written
submissions.
(vi) The Borrower being fully aware of the aforesaid prayers and even after
having gone through the written submissions of the petitioner never
contended that irrespective of whether its right to redeem the mortgage
is available under the law or not, the sale at any cost cannot be
confirmed in favour of the petitioner due to alleged illegality in the
auction process. Not once did the Borrower raise the issue of there
being no 30 / 15-days’ time gap between the notice of sale and the
auction nor the issue that as per the terms of the auction, the same was
subject to the outcome of the S.A. No. 46 of 2023.
(vii) Remarkably, although the Borrower during the course of hearing of
the Main Appeals urged that no indulgence of this Court was
warranted as it had already complied with the terms of the High
Court’s impugned order and that the entire matter had been rendered
infructuous, yet at the same time, not once did the Borrower even
remotely indicate that it was in the process of withdrawing the S.A.
No. 46 of 2023 as evinced from its written submissions.
(viii) Moreover, the Borrower despite being fully aware of the prayer of the
petitioner for seeking confirmation of the sale in its favour and
issuance of the sale certificate to the Secured Asset both during the
course of hearing and in its written submissions which would have
rendered the S.A. No. 46 of 2022 infructuous, it never prayed that in
the event sale certificate is issued, its right to pursue S.A. No. 46 of
2022 be preserved, or that the sale certificate be made subject to the
outcome of the said application.
a. The Decision of this Court in Celir LLP v. Bafna Motors & Ors. (2023
INSC 838) and the Scope of challenge before it.
122.It would now be apposite to understand what was the nature and scope of
challenge before this Court in the Main Appeals, and what was ultimately
decided in it. As discussed earlier, the Borrower had preferred a writ petition
wherein it had sought to subsume the issue arising out of S.A. No. 46 of 2022
pending before the DRT, particularly the challenge to the actions of the Bank
under the SARFAESI Act. The writ petition was not a separate remedy
distinct from the securitization application pending before the DRT, as the
prayers made therein indicate that it was not merely for seeking redemption
of mortgage.
123.We say so, because it is not the case that the remedy for redeeming mortgage
could not have been a part of the S.A. No. 46 of 2022 nor can it be said that
such a remedy was wholly alien to the provisions of the SARFAESI Act, and
could not have been granted by the DRT at all.
124.It is no longer res integra that Section 17 of the SARFAESI Act, is a
complete code that confers upon the DRT the jurisdiction to examine all the
steps or measures taken by the secured creditor under the Act and provide
remedies to any person aggrieved by any of those measures. By virtue of the
said provision the DRT is clothed with a wide range of powers, to determine
any issue or aspect pertaining to the SARFAESI proceedings initiated by the
secured creditor and further a power to interfere with the same where
necessary. Section 17 of the SARFAESI Act provides a broad mechanism
for an efficacious remedy to “any person” who is aggrieved by any of the
“measures” taken or proposed to be taken by the secured creditor under the
Act. The omnibus provision of Section 17 sub-section (3) is of a wide import
and enables the DRT to grant any relief in respect of any action or proceeding
under the Act.
125.In Phoenix ARC (P) Ltd. v. Vishwa Bharati Vidya Mandir reported in
(2022) 5 SCC 345, this Court held that where the Borrower is aggrieved by
any proceedings initiated under the SARFAESI Act or any action proposed
to be taken by a secured creditor, it has to avail the remedy under the
SARFAESI Act and no writ petition would lie or be maintainable. The
“18. [...] If proceedings are initiated under the Sarfaesi Act
and/or any proposed action is to be taken and the borrower is
aggrieved by any of the actions of the private bank/bank/ARC,
borrower has to avail the remedy under the Sarfaesi Act and no
writ petition would lie and/or is maintainable and/or
entertainable. [...]”
126.Thus, the remedy for seeking redemption of mortgage was not only available
to the Borrower under Section 17 of the SARFAESI Act but was also availed
by him, by way of I.A. No. 2339 of 2023 in S.A. No. 46 of 2022. This
application for seeking redemption of mortgage was also heard by the DRT
for quite some time, and even orders were reserved. However, suddenly, the
Borrower decided to move the High Court for seeking the very same relief
that it had sought in the securitization application.
127.As there was virtually no difference between either the scope of proceedings
or the prayer sought before the DRT and that before the High Court, once the
Borrower had chosen to espouse the same matter already sub-judice in one
forum before another, in this case the High Court, it was the duty of the
Borrower to bring within the fold of its case all issues and grounds in respect
of the 9th auction proceedings in the proceedings arising from the writ
petition, by virtue of the Doctrine of Election.
128.Once, the Borrower had elected to move the High Court for the very same
cause of action and underlying prayers, the moment the same was entertained
by the High Court, which it did, the Borrower was precluded from pursuing
its remedies before the DRT by way of S.A. No. 46 of 2024, and was duty
bound to now espouse it only in the writ proceedings, as otherwise it would
tantamount to having a second bite at the cherry and relitigating what it has
already litigated.
129.Thus, when the impugned order of the High Court was challenged before this
Court in the Main Appeals, the scope of proceedings before us also entailed
the issue of validity of the Bank’s actions under the SARFAESI Act. As
discussed by us in the foregoing paragraphs of this judgment, that the
Borrower for reasons best known to it, never agitated the validity of the
proceedings under the SARFAESI Act including the legality of the 9th
auction notice. Not once did the Borrower submit either in the course of its
arguments or in its written submissions that the very auction process is
allegedly illegal and in contravention of the SARFAESI Act.
130.It was in this backdrop, that the decision in the Main Appeals being Celir
LLP v. Bafna Motors & Ors. was rendered by this Court. Since, no challenge
had been raised to the measures taken by the Bank under the SARFAESI Act
and the 9th auction notice by the Borrower, this Court proceeded to determine
only the issue of right of redemption under Section 13 sub-section (8) of the
SARFAESI Act. Accordingly, this Court held that under the unamended
Section 13(8) of the SARFAESI Act, the right of the borrower to redeem the
secured asset was available till the sale or transfer of such secured asset.
However, under the amended provisions of Section 13(8) of the SARFAESI
Act the right of the borrower to redeem the secured asset would be available
only till the date of publication of the notice under Rule 9(1) of the
SARFAESI Rules and not till the completion of the sale or transfer of the
secured asset in favour of the auction purchaser.
131.This Court thereafter proceeded to determine the Borrower’s right of
redemption and after going through the facts of the case, held that since at
the time of redemption of mortgage the notice of auction had already been
published, it was impermissible for the High Court to allow the Borrower to
redeem the same.
132.Thus, this Court only went on to determine the Borrower’s right to redeem
the mortgage and having done so, this Court inter-alia set-aside the
impugned order of the High Court and in view of the fact that the Bank had
already confirmed the sale in favour of the petitioner, and in the absence of
any challenge to the auction process, further directed that the sale certificate
of the Secured Asset be issued to the petitioner. The operative portion of the
said decision reads as under: -
“106. In the result, both the appeals succeed and are hereby
allowed.
107. The impugned judgment and order passed by the High
Court is hereby set aside.
108. The respondent Bank shall refund the entire amount
deposited by the borrowers i.e., an amount of Rs.129 crore paid
by them in lieu of the redemption of mortgage of the secured
asset at the earliest. The appellant herein shall pay an additional
amount of Rs. 23.95 crore to the Bank within a period of one
week from today and subject to such deposit, the Bank shall issue
the sale certificate in accordance with Rule 9(6) of the Rules of
2002.
109. The pending applications if any shall stand disposed of.”
133.It is material to note that even in the review petition preferred by the
Borrower including the application for additional grounds of review therein,
the contention of the Borrower in the present contempt petition as to the
illegality of the SARFAESI proceedings including the 9th auction or the
contravention of the 30 / 15 days statutory period, does not figure. In fact,
the Borrower in the review petition did not even lay any challenge to the
direction of this Court to issue the sale certificate in the Main Appeals. No
averment at all was made in countenance of the S.A. No. 46 of 2022, or as
regards the measures of the Bank under the SARFAESI Act, the 9th auction
notice issued in lieu thereof, or the approval of the sale of the Secured Asset
by issuance of the sale certificate in its respect. The said review petition was
ultimately dismissed by this Court vide its order dated 18.07.2024.
134.Thus, the Borrower having admittedly failed to even remotely indicate the
aforesaid issues to this Court let alone contend it in both the Main Appeals
and the review thereof, the only question that now remains to be answered is
whether it is permissible for the Borrower to raise it and again litigate the
same subsequently either in the present contempt petition or in the S.A. No.
46 of 2022 which is still pending before the DRT.
b. The ‘Henderson’ Principle as a corollary of Constructive Res-
Judicata.
135.The ‘Henderson Principle’ is a foundational doctrine in common law that
addresses the issue of multiplicity in litigation. It embodies the broader
concept of procedural fairness, abuse of process and judicial efficiency by
mandating that all claims and issues that could and ought to have been raised
in a previous litigation should not be relitigated in subsequent proceedings.
The extended form of res-judicata more popularly known as ‘Constructive
Res Judicata’ contained in Section 11, Explanation VII of the CPC originates
from this principle.
136.In Henderson v. Henderson reported in [1843] 3 Hare 999, the English
Court of Chancery speaking through Sir James Wigram, V.C. held that where
a given matter becomes the subject of litigation and the adjudication of a
court of competent jurisdiction, the parties so litigating are required to bring
forward their whole case. Once the litigation has been adjudicated by a court
of competent jurisdiction, the same parties will not be permitted to reopen
the lis in respect of issues which might have been brought forward as part of
the subject in contest but were not, irrespective of whether the same was due
to any form of negligence, inadvertence, accident or omission. It was further
held, that principle of res judicata applies not only to points upon which the
Court was called upon by the parties to adjudicate and pronounce a
judgement but to every possible or probable point or issue that properly
belonged to the subject of litigation and the parties ought to have brought
forward at the time. The relevant observations read as under: -
“In trying this question I believe I state the rule of the Court
correctly when I say that, where a given matter becomes the
subject of litigation in, and of adjudication by, a Court of
competent jurisdiction, the Court requires the parties to that
litigation to bring forward their whole case, and will not (except
under special circumstances) permit the same parties to open the
same subject of litigation in respect of matter which might have
been brought forward as part of the subject in contest, but which
was not brought forward, only because they have, from
negligence, inadvertence, or even accident, omitted part of their
case. The plea of res judicata applies, except in special cases,
not only to points upon which the Court was actually required
by the parties to form an opinion and pronounce a judgment, but
to every point which properly belonged to the subject of
litigation, and which the parties, exercising reasonable
diligence, might have brought forward at the time. [...]”
137.The above proposition of law came to be known as the ‘Henderson Principle’
and underwent significant evolution, adapting to changing judicial
landscapes and procedural requirements. The House of Lords in
Johnson v. Gore Wood & Co reported in [2002] 2 AC 1, upon examining
the ‘Henderson Principle’ authoritatively approved it with the following
observations: -
(i) Lord Bingham of Cornhill integrated the principle with the broader
doctrine of abuse of process and held that the bringing of a claim or
the raising of a defence in later proceedings which ought to have been
raised earlier will not always be hit by this principle, but rather will
apply where such point is sought to be raised as an additional or
collateral attack on a previous decision and the bringing forth of such
ground amounts to misusing or abusing the process of the court or as
a means for unjust harassment of a party. The relevant observations
“ Henderson v Henderson abuse of process, as now
understood, although separate and distinct from cause of
action estoppel and issue estoppel, has much in common
with them. The underlying public interest is the same : that
there should be finality in litigation and that a party
should not be twice vexed in the same matter. This public
interest is reinforced by the current emphasis on efficiency
and economy in the conduct of litigation, in the interests
of the parties and the public as a whole. The bringing of a
claim or the raising of a defence in later proceedings may,
without more, amount to abuse if the court is satisfied (the
onus being on the party alleging abuse) that the claim or
defence should have been raised in the earlier
proceedings if it was to be raised at all. I would not accept
that it is necessary, before abuse may be found, to identify
any additional element such as a collateral attack on a
previous decision or some dishonesty, but where those
elements are present the later proceedings will be much
more obviously abusive, and there will rarely be a finding
of abuse unless the later proceeding involves what the
court regards as unjust harassment of a party. It is,
however, wrong to hold that because a matter could have
been raised in earlier proceedings it should have been, so
as to render the raising of it in later proceedings
necessarily abusive. That is to adopt too dogmatic an
approach to what should in my opinion be a broad, merits-
based judgment which takes account of the public and
private interests involved and also takes account of all the
facts of the case, focusing attention on the crucial question
whether, in all the circumstances, a party is misusing or
abusing the process of the court by seeking to raise before
it the issue which could have been raised before. As one
cannot comprehensively list all possible forms of abuse,
so one cannot formulate any hard and fast rule to
determine whether, on given facts, abuse is to be found or
(ii) Lord Millett construing the Principle held that it does not belong to the
doctrine of res-judicata in the strict sense but rather was analogous to
the doctrine, as it goes a step further to encompass even those
proceedings that either culminated into a settlement or issues which
had never been adjudicated previously in order to protect the process
of the court from abuse and the defendant from oppression. The
“As the passages which I have emphasised indicate, Sir
James Wigram V-C did not consider that he was laying
down a new principle, but rather that he was explaining the
true extent of the existing plea of res judicata. Thus he was
careful to limit what he was saying to cases which had
proceeded to judgment, and not, as in the present case, to
an out of court settlement. Later decisions have doubted the
correctness of treating the principle as an application of the
doctrine of res judicata, while describing it as an extension
of the doctrine or analogous to it … But these various
defences [res judicata, issue or cause of action estoppel]
are all designed to serve the same purpose : to bring finality
to litigation and avoid the oppression of subjecting a
defendant unnecessarily to successive actions. While the
exact relationship between the principle expounded by Sir
James Wigram V-C and the defences of res judicata and
cause of action and issue estoppel may be obscure, I am
inclined to regard it as primarily an ancillary and salutary
principle necessary to protect the integrity of those defences
and prevent them from being deliberately or inadvertently
circumvented.
In one respect, however, the principle goes further than the
strict doctrine of res judicata or the formulation adopted by
Sir James Wigram V-C, for I agree that it is capable of
applying even where the first action concluded in a
settlement. Here it is necessary to protect the integrity of
the settlement and to prevent the defendant from being
misled into believing that he was achieving a complete
settlement of the matter in dispute when an unsuspected
part remained outstanding.
However this may be, the difference to which I have drawn
attention is of critical importance. It is one thing to refuse
to allow a party to relitigate a question which has already
been decided; it is quite another to deny him the opportunity
of litigating for the first time a question which has not
previously been adjudicated upon. This latter (though not
the former) is prima facie a denial of the citizen’s right of
access to the court conferred by the common law and
guaranteed by article 6 … While, therefore, the doctrine
of res judicata in all its branches may properly be regarded
as a rule of substantive law, applicable in all save
exceptional circumstances, the doctrine now under
consideration can be no more than a procedural rule based
on the need to protect the process of the court from abuse
and the defendant from oppression [...]”
138.In Virgin Atlantic Airways Ltd. v. Zodiac Seats UK Ltd. reported in [2014]
AC 160 Lord Sumption JSC further expounded the ‘Henderson Principle’ as
although separate and distinct from cause of action estoppel or res judicata
yet having the same underlying public interest that there should be finality in
litigation and that a party should not be twice vexed in the same matter. The
“The principle in Henderson v Henderson has always been
thought to be directed against the abuse of process involved in
seeking to raise in subsequent litigation points which could and
should have been raised before. There was nothing controversial
or new about this notion when it was expressed by Lord
Kilbrandon in the Yat Tung case [1975] AC 581. The point has
been taken up in a large number of subsequent decisions, but for
present purposes it is enough to refer to the most important of
them, Johnson v Gore-Wood & Co [2002] 2 AC 1, in which the
House of Lords considered their effect. This appeal arose out of
an application to strike out proceedings on the ground that the
plaintiffs claim should have been made in an earlier action on
the same subject matter brought by a company under his control.
Lord Bingham of Cornhill took up the earlier suggestion of Lord
Hailsham of St Marylebone LC in Vervaeke (formerly Messina)
v Smith [1983] 1 AC 145, 157 that the principle in Henderson v
Henderson was “both a rule of public policy and an application
of the law of res judicata”. He expressed his own view of the
relationship between the two at p. 31 as follows: “Henderson v
Henderson abuse of process, as now understood, although
separate and distinct from cause of action estoppel and issue
estoppel, has much in common with them. The underlying public
interest is the same: that there should be finality in litigation and
that a party should not be twice vexed in the same matter. This
public interest is reinforced by the current emphasis on
efficiency and economy in the conduct of litigation, in the
interests of the parties and the public as a whole”.”
139. Even in a common law action it was said by Blackburn, J.: “I incline to think
that the doctrine of res judicata applies to all matters which existed at the
time of giving of the judgment, and which the party had an opportunity of
bringing before the Court.” [See: Newington v. Levy reported in (1870) 6
CP 180 (J)].
140.The fundamental policy of the law is that there must be finality to litigation.
Multiplicity of litigation benefits not the litigants whose rights have been
determined, but those who seek to delay the enforcement of those rights and
prevent them from reaching the rightful beneficiaries of the adjudication. The
Henderson Principle, in the same manner as the principles underlying res
judicata, is intended to ensure that grounds of attack or defence in litigation
must be taken in one of the same proceeding. A party which avoids doing so
does it at its own peril. In deciding as to whether a matter might have been
urged in the earlier proceedings, the court must ask itself as to whether it
could have been urged. In deciding whether the matter ought to have been
urged in the earlier proceedings, the court will have due regard to the ambit
of the earlier proceedings and the nexus which the matter bears to the nature
of the controversy. In holding that a matter ought to have been taken as a
ground of attack or defence in the earlier proceedings, the court is indicating
that the matter is of such a nature and character and bears such a connection
with the controversy in the earlier case that the failure to raise it in that
proceeding would debar the party from agitating it in the future. The doctrine
itself is based on public policy flowing from the age-old legal maxim interest
reipublicae ut sit finis litium which means that in the interest of the State
there should be an end to litigation and no party ought to be vexed twice in a
litigation for one and the same cause.
141.The Henderson Principle was approvingly referred to and applied by this
Court in State of U.P. v. Nawab Hussain reported in (1997) 2 SCC 806 as
the underlying principle for res-judicata and constructive res-judicata for
assuring finality to litigation. The relevant observations read as under: -
“3. The principle of estoppel per rem judicatam is a rule of
evidence. As has been stated in Marginson v. Blackburn
Borough Council [(1939) 2 KB 426 at p. 437], it may be said to
be “the broader rule of evidence which prohibits the reassertion
of a cause of action”. This doctrine is based on two theories: (i)
the finality and conclusiveness of judicial decisions for the final
termination of disputes in the general interest of the community
as a matter of public policy, and (ii) the interest of the individual
that he should be protected from multiplication of litigation. It
therefore serves not only a public but also a private purpose by
obstructing the reopening of matters which have once been
adjudicated upon. It is thus not permissible to obtain a second
judgment for the same civil relief on the same cause of action,
for otherwise the spirit of contentiousness may give rise to
conflicting judgments of equal authority, lead to multiplicity of
actions and bring the administration of justice into disrepute. It
is the cause of action which gives rise to an action, and that is
why it is necessary for the courts to recognise that a cause of
action which results in a judgment must lose its identity and
vitality and merge in the judgment when pronounced. It cannot
therefore survive the judgment, or give rise to another cause of
action on the same facts. This is what is known as the general
principle of res judicata.
4. But it may be that the same set of facts may give rise to two or
more causes of action. If in such a case a person is allowed to
choose and sue upon one cause of action at one time and to
reserve the other for subsequent litigation, that would aggravate
the burden of litigation. Courts have therefore treated such a
course of action as an abuse of its process and Somervell, L.J.,
has answered it as follows in Greenhalgh v. Mallard [(1947) All
ER 255 at p. 257] : “I think that on the authorities to which I
will refer it would be accurate to say that res judicata for this
purpose is not confined to the issues which the court is actually
asked to decide, but that it covers issues or facts which are so
clearly part of the subject-matter of the litigation and so clearly
could have been raised that it would be an abuse of the process
of the court to allow a new proceeding to be started in respect of
them.
This is therefore another and an equally necessary and
efficacious aspect of the same principle, for it helps in raising
the bar of res judicata by suitably construing the general
principle of subduing a cantankerous litigant. That is why this
other rule has some times been referred to as constructive res
judicata which, in reality, is an aspect or amplification of the
general principle.”
142.This Court in Devilal Modi v. Sales Tax Officer, Ratlam & Ors. reported in
AIR 1965 SC 1150, held that if the underlying rule of constructive res
judicata is not applied to writ proceedings, it would be open to the party to
take one proceeding after another and urge new grounds every time, and
would be inconsistent with considerations of public policy. The relevant
“8. [...] the rule of constructive res judicata which is pleaded
against him in the present appeal is in a sense a somewhat
technical or artificial rule prescribed by the Code of Civil
Procedure. This rule postulates that if a plea could have been
taken by a party in a proceeding between him and his opponent,
he would not be permitted to take that plea against the same
party in a subsequent proceeding which is based on the same
cause of action; but basically, even this view is founded on the
same considerations of public policy, because if the doctrine of
constructive res judicata is not applied to writ proceedings, it
would be open to the party to take one proceeding after another
and urge new grounds every time; and that plainly is
inconsistent with considerations of public policy [...]”
143.In Shankara Coop. Housing Society Ltd. v. M. Prabhakar, reported in
(2011) 5 SCC 607, this Court held that the ground of non-compliance of
statutory provision which was very much available to the parties to raise but
did not raise it as one of the grounds, cannot be raised later on and would be
hit by the principles analogous to constructive res judicata. The relevant
“89. In the present case, it is admitted fact that when the
contesting respondents filed WP No. 1051 of 1966, the ground
of non-compliance with statutory provision was very much
available to them, but for the reasons best known to them, they
did not raise it as one of the grounds while challenging the
Notification dated 11-12-1952 issued under the Evacuee
Property Act. In the subsequent writ petition filed in the year
1990, initially, they had not questioned the legality of the
notification, but raised it by filing an application, which is no
doubt true, allowed by the High Court. In our view, the High
Court was not justified in permitting the petitioners therein to
raise that ground and answer the same since the same is hit by
the principles analogous to constructive res judicata.”
144.From the above exposition of law, it is clear that the ‘Henderson Principle’
is a core component of the broader doctrine of abuse of process, aimed at
enthusing in the parties a sense of sanctity towards judicial adjudications and
determinations. It ensures that litigants are not subjected to repetitive and
vexatious legal challenges. At its core, the principle stipulates that all claims
and issues that could and should have been raised in an earlier proceeding
are barred from being raised in subsequent litigation, except in exceptional
circumstances. This rule not only supports the finality of judgments but also
underscores the ideals of judicial propriety and fairness.
145.There are, four situations where in second proceedings between the same
parties doctrine res judicata as a corollary of the principle of abuse of process
may be invoked: (i) cause of action estoppel, where the entirety of a decided
cause of action is sought to be relitigated; (ii) issue estoppel or, "decided
issue estoppel," where an issue is sought to be relitigated which has been
raised and decided as a fundamental step in arriving at the earlier judicial
decision; (iii) extended or constructive res judicata i.e., "unraised issue
estoppel," where an issue is sought to be litigated which could, and should,
have been raised in a previous action but was not raised; (iv) a further
extension of the aforesaid to points not raised in relation to an issue in the
earlier decision, as opposed to issues not raised in relation to the decision
itself.
146.As part of the broader rule against abuse of process, the Henderson principle
is rooted in the idea of preventing the judicial process from being exploited
in any manner that tends to undermine its integrity. This idea of preventing
abuse of judicial process is not confined to specific procedure rules, but
rather aligned to a broader purport of giving quietus to litigation and finality
to judicial decisions. The essence of this rule is that litigation must be
conducted in good faith, and parties should not engage in procedural tactics
that fragment disputes, prolong litigation, or undermine the outcomes of such
litigation. It is not a rigid rule but rather a flexible principle to prevent
oppressive, unfair, or detrimental litigation.
147.We are conscious of the fact, that ordinarily this principle has been applied
to instances where a particular plea or ground was not raised at any stage of
the proceedings, but were later sought to be raised. However, it must be borne
in mind that construing this rule in a hyper-technical manner or through any
strait-jacket formula will amount to taking a reductive view of this broad and
comprehensive principle.
148.Although in the present case, the Borrower had raised the issue of the validity
of the measures taken by the Bank under the SARFAESI Act and the legality
of the 9th auction conducted it in the earlier stages albeit in a different
proceeding, yet its conduct of having conveniently abandoned the same in a
different proceeding elected by it for the same cause of action and then later
reagitating it in the pretence that the two proceedings were distinct, is nothing
but a textbook case of abuse of process of law.
149.Piecemeal litigation where issues are deliberately fragmented across separate
proceedings to gain an unfair advantage is in itself a facet of abuse of process
of law and would also fall foul of this principle. Merely because one
proceeding initiated by a party differs in some aspects from another
proceeding or happens to be before a different forum, will not make the
subsequent proceeding distinct in nature from the former, if the underlying
subject matter or the seminal issues involved remains substantially similar to
each other or connected to the earlier subject matter by a certain degree, then
such proceeding would tantamount to ‘relitigating’ and the Henderson
Principle would be applicable.
150.Parties cannot be allowed to exploit procedural loopholes and different foras
to revisit the same matters they had deliberately chosen not to pursue earlier.
Thus, where a party deliberately withholds certain claims or issues in one
proceeding with the intention to raise them in a subsequent litigation
disguised as a distinct or separate remedy or proceeding from the initial one,
such subsequent litigation will also fall foul of this principle.
151.Similarly, where a plea or issue was raised in earlier proceedings but later
abandoned it is deemed waived and cannot be relitigated in subsequent.
Allowing such pleas to be resurrected in later cases would not only
undermine the finality of judgments but also incentivize strategic behaviour,
where parties could withdraw claims in one case with the intention of
reintroducing them later. proceedings. Abandonment signifies acquiescence,
barring its reconsideration in subsequent litigation. This ensures that judicial
processes are not misused for tactical advantage and that litigants are held
accountable for their procedural choices. Parties must litigate diligently and
in good faith, presenting their entire case at the earliest opportunity.
152.The Henderson principle operates on the broader contours of judicial
propriety and fairness, ensuring that the judicial system remains an
instrument of justice rather than a platform for procedural manipulation.
Judicial propriety demands that courts maintain the finality and integrity of
their decisions, preventing repeated challenges to settled matters. Once a
matter has been adjudicated, it should not be revisited unless exceptional
circumstances warrant such reconsideration. Repeated litigation of the same
issue not only wastes judicial resources but also subjects the opposing party
to unnecessary expense and harassment. judicial processes are not merely
technical mechanisms but are rooted in principles of equity and justice.
153.Both logic and principle support the approach that the judicial determination
of an entire cause of action is in fact the determination of every issue which
is fundamental to establishing the entire cause of action. Thus, the assertion
that the determination is only on one of the issues is flawed as it is nothing
but an indirect way of asserting that the whole judgment is flawed and
thereby relitigating the entire cause of action once more. The effect of a
judicial determination on an entire cause of action is as if the court had made
declarations on each issue fundamental to the ultimate decision.
154.In the present case, the very issue of the validity of the measures taken by the
Bank under the SARFAESI Act and by it the legality of the 9th auction
proceedings was innately and inextricably linked to the proceedings before
this Court in the Main Appeals. We say so, because: -
(i) The very issue of the cut-off date for exercising the right of redemption
under Section 13 sub-section (8) of the SARFAESI Act entailed as a
natural corollary to it, the issue of validity of the SARFAESI
proceedings, at least in respect of the 9th auction notice dated
12.06.2023. When the Main Appeals were being heard by this Court,
the Borrower was well aware that the issue before this Court was
whether the right of redemption extinguishes upon the publication of
sale notice or upon the transfer of the secured asset, and as such if at
all such right were to extinguish upon the publication of the sale notice,
it by default involved the issue whether such notice was valid or non-
est. Being so, the very issue of validity of the 9th auction notice and the
proceedings thereto properly belonged to the subject of litigation in
the Main Appeals before this Court and ought to have been brought
forward as part of the subject in contest.
(ii) Moreover, since there was virtually no difference between the prayer
sought before the DRT and that before the High Court, once the
Borrower had chosen to espouse the same matter already sub-judice in
DRT before the High Court, it was the duty of the Borrower to bring
within the fold of its case all issues and grounds in respect of the 9th
auction proceedings in the proceedings arising from the writ petition,
by virtue of the Doctrine of Merger and Election. Since the prayers
that were sought before the DRT had been merged with the prayers
before the High Court, the scope of proceedings of the Main Appeals
encompassed the issue of validity of the Bank’s actions under the
SARFAESI Act and by extension the 9th auction notice dated
12.06.2023 which the Borrower for reasons best known to it, and such
now cannot be permitted to raise these issued when they ought to have
been raised in the Main Appeals. In this regard we may refer to the
decision of this Court in Vodafone Idea Cellular Ltd. v. Ajay Kumar
Agarwal reported in (2022) 6 SCC 496 which held that as per the
Doctrine of Election, once a party has elected to choose remedy under
one forum, again the same cause of action cannot be challenged before
another forum: -
“25. The above position was reiterated in IREO Grace
Realtech (P) Ltd. v. Abhishek Khanna13 by a three-Judge
Bench of this Court, of which one of us (D.Y.
Chandrachud, J.) was a part. Indu Malhotra, J., speaking
for the Bench invoked the doctrine of election, which
provides that when two remedies are available for the
same relief, the party at whose disposal such remedies are
available, can make the choice to elect either of the
remedies as long as the ambit and scope of the two
remedies is not essentially different. These observations
were made in the context of an allottee of an apartment
having the choice of initiating proceedings under the 1986
Act or the RERA.”
(iii) Furthermore, by virtue of the Doctrine of Election, the Borrower
cannot be permitted to pursue two inconsistent remedies, once the
Borrower had availed the remedy to redeem its mortgage and pay the
dues sought to be recovered by way of the SARFAESI proceedings
initiated by the Bank and having failed in doing so, it now cannot be
permitted to challenge those very SARFAESI proceedings. A litigant
cannot approbate or reprobate at the same time. Election is the
obligation imposed upon a party by Courts of equity to choose between
two inconsistent or alternative rights or claims in cases where there is
clear intention of the person from whom he derives one that he should
not enjoy both. For instance, if in a will, X bequeaths property owned
by Y to Z while giving Y a substantial gift. Y must choose to either (i)
accept the gift and let Z retain the property or (ii) reject the gift and
assert ownership of the property, but can certainly not pursue both the
remedies, and as such, the Borrower cannot be permitted to have its
cake and eat it as well. In this regard we may refer to the decision of
this Court in Joint Action Committee of Air Line Pilots’ Assn. of
India (ALPAI) & Ors. v. DGCA reported in (2011) 5 SCC 435
wherein it was held as under: -
“12. The doctrine of election is based on the rule of
estoppel—the principle that one cannot approbate and
reprobate inheres in it. The doctrine of estoppel by
election is one of the species of estoppels in pais (or
equitable estoppel), which is a rule in equity. By that law,
a person may be precluded by his actions or conduct or
silence when it is his duty to speak, from asserting a right
which he otherwise would have had. Taking inconsistent
pleas by a party makes its conduct far from satisfactory.
Further, the parties should not blow hot and cold by
taking inconsistent stands and prolong proceedings
unnecessarily.”
(iv) The premise on which the writ petition came to be filed by the
Borrowers before the High Court is also significant. The Borrower in
the writ petition contended that they have an apprehension that the
DRT may reject their redemption application and the entire matter
would become infructuous as the Bank at that point of time had already
accepted the entire sale consideration for the auction from the
petitioners and as such may likely issue the Sale Certificate to the
Secured Asset. Thus, the Borrower’s themselves were under the
impression and understanding that once the Sale Certificate is issued,
the sale to the Secured Asset becomes absolute and would in turn
render the entire matter infructuous. In such circumstances, the
contention of the Borrower as-well as the Subsequent Transferee that
the Sale Certificate that was issued in pursuance of the decision in the
Main Appeals was always subject to the outcome of the S.A. No. 46
of 2022 pending before the DRT, is nothing but an after-thought which
the Borrower now seeks to espouse having lost in the Main Appeals
and as such the said contention deserves to be rejected.
(v) Even though the petitioner had specifically prayed for the issuance of
the Sale Certificate to the Secured Asset, not once did the Borrower
dispute the same or assert that such certificate would be contingent to
on the outcome of the DRT proceedings. The Borrower neither in the
Main Appeals nor in the review thereto raised the issue of validity of
the 9th auction notice or brought to the notice of this court the terms of
the auction, more particularly that such auction was subject to the
outcome of the S.A. No. 46 of 2022. Having admittedly failed to do
so, the espousal of the aforesaid contention by the Borrower now is
nothing but an abuse of process and an attempt to indirectly
circumvent the decision of this Court in the Main Appeals and
collaterally challenge the determination of rights therein.
(vi) Furthermore, the direction of this Court in the Main Appeals for
issuance of Sale Certificate conferred absolute ownership to the
petitioner to the Secured Asset, in view of the fact that: -: -
a. The impugned order passed by the High Court had been set-aside
in toto.
b. It was held that the Borrower could not have redeemed its
mortgage upon publication of the 9th auction notice.
c. The Bank was further directed to refund the amount paid by the
Borrower towards redemption.
d. It was also held that the Bank after having confirmed the sale
under Rule 9(2) of the Rules of 2002 could not have withhold the
sale certificate to the Secured Asset.
In view of the above, it is clear as a noon day that this Court never held
that the Sale Certificate to be issued to the petitioner was subject to the
outcome of the DRT proceedings. As such, once the sale of the
Secured Asset under Section 13(4) of the SARFAESI Act ended in
issuance of a Sale Certificate as per Rule 9 (7) of the SARFAESI
Rules, such sale was complete and absolute.
(vii) Lastly, this court in its decision in the Main Appeals by no means
either preserved the right or permitted the Borrower to continue
pursuing the proceedings in S.A. No. 46 of 2022 pending before the
DRT. This is in view of the maxim Expressio Unius Est Exclusio
Alterius i.e., the expression of one thing is the exclusion of another.
Where a court consciously and specifically grants certain reliefs but
does not advert to other reliefs or rights, the relief so expressly
provided necessarily leads to the implied exclusion of the other reliefs
and rights. Thus, when this Court directed the issuance of the Sale
Certificate it necessarily excluded the right to pursue the DRT
proceedings.
(viii) Mere reference to the pendency of the DRT Proceedings in the
judgment by no means could lead to the inference that this Court had
preserved the rights of the Borrower herein to pursue the same. One
cannot assume or infer any right by referring to a stray sentence here
and a stray sentence there in the judgment. It is trite that judgments of
courts are not to be construed as statutes.
ii. Applicability of Lis Pendens in the absence of any registration as
required under the State Amendment to Section 52 of the TPA.
155.The term “lis pendens” as explained in the Law Lexicon is as under: -
“Lis means a suit, action controversy, or dispute, and lis pendens
means a pending suit. The doctrine denotes those principles and
rules of law which define and limit the operation of the common-
law maxim pendente lite nihil innovetur, that is, pending the suit
nothing should be changed.
A pending suit.
As soon as proceedings are commenced to recover or charge
some specific property [Ex parte Thornton (1867)2 Ch.p.178]
there is “lis pendens” - a pending suit, the consequence of which
is that until the litigation is at an end neither litigant can deal
with the property to the prejudice of the other.”
156.As per the Doctrine of lis pendens, nothing new can be introduced during the
pendency of a petition and if at all anything new is introduced, the same
would also be subject to the final outcome of the petition, which would
decide the rights and obligations of the parties.
157.The doctrine of lis pendens is duly recognized in Section 52 of the TPA
which states that during the pendency in any court of any suit in which any
right to immovable property is directly and specifically in question, the
property cannot be transferred or otherwise dealt with by any party to the suit
or proceedings. The explanation to the provision states that for the purposes
of the Section, the pendency of a suit or proceedings shall be deemed to
commence from the date of the presentation of the plaint or institution of the
proceeding in a Court, and shall continue until the suit or proceeding is
disposed by a “final decree or order” and complete satisfaction of the order
is obtained, unless it has become unobtainable by reason of the expiry of any
period of limitation. The said provision reads as under: -
“52. Transfer of property pending suit relating thereto. —
During the pendency in any Court having authority within the
limits of India excluding the State of Jammu and Kashmir or
established beyond such limits by the Central Government of any
suit or proceeding which is not collusive and in which any right
to immovable property is directly and specifically in question,
the property cannot be transferred or otherwise dealt with by
any party to the suit or proceeding so as to affect the rights of
any other party thereto under any decree or order which may be
made therein, except under the authority of the Court and on
such terms as it may impose.
Explanation.-- For the purposes of this section, the pendency of
a suit or proceeding shall be deemed to commence from the date
of the presentation of the plaint or the institution of the
proceeding in a Court of competent jurisdiction, and to continue
until the suit or proceeding has been disposed of by a final
decree or order and complete satisfaction or discharge of such
decree or order has been obtained, or has become unobtainable
by reason of the expiration of any period of limitation prescribed
for the execution thereof by any law for the time being in force.”
158.The following conditions ought to be fulfilled for the doctrine of lis pendens
to apply: -
i. There must be a pending suit or proceeding;
ii. The suit or proceeding must be pending in a competent court;
iii. The suit or proceeding must not be collusive;
iv. The right to immovable property must be directly and specifically in
question in the suit or proceeding;
v. The property must be transferred by a party to the litigation; and
vi. The alienation must affect the rights of any other party to the dispute.
159.In short, the doctrine of lis pendens, which Section 52 of the TPA
encapsulates, bars the transfer of a suit property during the pendency of
litigation. The only exception to the principle is when it is transferred under
the authority of the court and on terms imposed by it. Where one of the parties
to the suit transfers the suit property (or a part of it) to a third-party, the latter
is bound by the result of the proceedings even if he did not have notice of the
suit or proceeding.
160.In the landmark decision of the English Court of Chancery in Bellamy v.
Sabine reported in (157) 1 De G&J 566, Lord Turner underscored and
explained the rationale of the principle underlying lis pendens and observed
that if any alienation or material change to the subject matter during the
pendency of a proceeding were permitted to prevail, it would defeat the very
course of such proceedings before the courts. The relevant observations read
as under: -
“It is, as I think, a doctrine common to the courts both of Law
and Equity and rests, as I apprehend, upon this foundation that
it would plainly be impossible that any action or suit could be
brought to a successful termination, if alienations pendente lite
were permitted to prevail. The plaintiff would be liable in every
case to be defeated by the defendants alienating before the
judgment or decree, and would be driven to commence his
proceedings de novo, subject again to be defeated by the same
course of proceedings.”
161.In Jayaram Mudaliar v. Ayyaswami reported in AIR 1973 SC 569 this Court
explained that where any proceeding in respect of a property is pending, the
doctrine of lis pendens vests the courts with the control or dominion over
such subject-matter so that no party or person may remove the subject-matter
outside of the power of the court to deal with it in accordance with law and
thereby render the proceedings infructuous. The relevant observations read
as under: -
“14. The background of the provision set out above was
indicated by one of us (Beg, J.,) in Jayaram Mudaliar v.
Ayyaswami [(1972) 2 SCC 200, 217 : AIR 1973 SC 569] . There,
the following definition of the lis pendens from Corpus Juris
Secundum (Vol. LIV, p. 570) was cited: “Lis pendens literally
means a pending suit, and the doctrine of lis pendens has been
defined as the jurisdiction, power, or control which a court
acquires over property involved in a suit pending the
continuance of the action, and until final judgment therein.”
It was observed there: “Expositions of the doctrine indicate that
the need for it arises from the very nature of the jurisdiction of
Courts and their control over the subject-matter of litigation so
that parties litigating before it may not remove any part of the
subject-matter outside the power of the Court to deal with it and
thus make the proceedings infructuous.”
162.In the present case, it has been canvassed on behalf of the Subsequent
Transferee that it is a bona-fide third party purchaser of the Secured Asset
since it was neither arrayed as a party to proceedings in the Main Appeals
nor issued a notice of the said proceedings either by the petitioner or by the
Bank.
163.In Sanjay Verma v. Manik Roy reported in (2006) 13 SCC 608 this Court
held that the principle of lis pendens enshrined in Section 52 of the TPA is
not only based on equity, good conscience and justice but is also a principle
of public policy and as such no party can claim exemption from the
application of this doctrine on the ground of bona fide or good faith. The
“12. The principles specified in Section 52 of the TP Act are in
accordance with equity, good conscience or justice because they
rest upon an equitable and just foundation that it will be
impossible to bring an action or suit to a successful termination
if alienations are permitted to prevail. A transferee pendente lite
is bound by the decree just as much as he was a party to the suit.
The principle of lis pendens embodied in Section 52 of the TP
Act being a principle of public policy, no question of good faith
or bona fide arises. The principle underlying Section 52 is that
a litigating party is exempted from taking notice of a title
acquired during the pendency of the litigation. The mere
pendency of a suit does not prevent one of the parties from
dealing with the property constituting the subject-matter of the
suit. The section only postulates a condition that the alienation
will in no manner affect the rights of the other party under any
decree which may be passed in the suit unless the property was
alienated with the permission of the court.”
164.In another decision of this Court in Guruswamy Nadar v. P. Lakshmi
Ammal reported in (2008) 5 SCC 796 it was held that the principle of lis
pendens incorporated in Section 52 of the TPA will apply irrespective of
whether the subsequent purchaser had bought the property, which is a subject
matter of a pending proceeding, in good faith or not. The relevant
“9. Section 19 of the Specific Relief Act clearly says subsequent
sale can be enforced for good and sufficient reason but in the
present case, there is no difficulty because the suit was filed on
3-5-1975 for specific performance of the agreement and the
second sale took place on 5-5-1975. Therefore, it is the admitted
position that the second sale was definitely after the filing of the
suit in question. Had that not been the position then we would
have evaluated the effect of Section 19 of the Specific Relief Act
read with Section 52 of the Transfer of Property Act. But in the
present case it is more than apparent that the suit was filed
before the second sale of the property. Therefore, the principle
of lis pendens will govern the present case and the second sale
cannot have the overriding effect on the first sale.
15. So far as the present case is concerned, it is apparent that
the appellant who is a subsequent purchaser of the same
property, has purchased in good faith but the principle of lis
pendens will certainly be applicable to the present case
notwithstanding the fact that under Section 19(b) of the Specific
Relief Act his rights could be protected.”
165.Similarly in a recent decision of this Court in Chander Bhan (D) through
Lr. Sher Singh v. Mukhtiar Singh & Ors. reported in 2024 INSC 377 it was
held that once the transaction in question is found to be illegal due to the
doctrine of lis pendens, any defence of the subsequent transferee that they
are a bona-fide purchaser is liable to be rejected. The relevant observations
“21. Once it has been held that the transactions executed by the
respondents are illegal due to the doctrine of lis pendens the
defence of the respondents 1-2 that they are bonafide purchasers
for valuable consideration and thus, entitled to protection under
Section 41 of the Act of 1882 is liable to be rejected.”
166.Thus, the question to be examined is whether the transfer of the secured asset
in favour of the Subsequent Transferee is hit by lis pendens or not. It is an
undisputed fact that on 25.08.2023 Special Leave Petition Nos. 19523-19524
of 2023 (later renumbered as Civil Appeal Nos. 5542-5543 of 2023) came to
be filed by the petitioner challenging the impugned order dated 17.08.2023
passed by the High Court permitting the Borrower herein to redeem the
mortgage created over the Secured Asset. It is also not in dispute that on
28.08.2023 the Borrower pursuant to the aforesaid order of the High Court
redeemed the mortgage and transferred the said property to the Subsequent
Transferee herein on the very same day by executing the aforesaid
Assignment Agreement. It is also undisputed that the transfer of the Secured
Asset in favour of the Subsequent Transferee was effected by the Borrower
on the strength of its right of redemption pursuant to the High Court’s
impugned order dated 17.08.2023. Thus, admittedly, when the mortgage was
redeemed and the Secured Asset was transferred to the Subsequent
Transferee by way of the Assignment Agreement dated 28.08.2023, Special
Leave Petition Nos. 19523-19524 of 2023 challenging the exercise of such
right of redemption was already filed and pending before this Court.
167.In M/s Siddamsetty Infra Projects Pvt. Ltd. v. Katta Sujatha Reddy & Ors.
reported in 2024 INSC 861 this Court held that doctrine of lis pendens kicks
in the moment a proceeding is instituted / filed irrespective of whether such
filing is still defective or notice is yet to be issued by the court. It further held
that any transfer made during the pendency of such proceeding would be
subject to the final result of the litigation or in other words would be hit by
lis pendens under Section 52 of the TPA. The relevant observations read as
under: -
“49. The purpose of lis pendens is to ensure that the process of
the court is not subverted and rendered infructuous. In the
absence of the doctrine of lis pendens, a defendant could defeat
the purpose of the suit by alienating the suit property. This
purpose of the provision is clearly elucidated in the explanation
clause to Section 52 which defines “pendency”. Amending Act
20 of 1929 substituted the word “pendency” in place of “active
prosecution”. The Amending Act also included the Explanation
defining the expression “pendency of suit or proceeding”.
“Pendency” is defined to commence from the “date of
institution” until the “disposal”. The argument of the
respondents that the doctrine of lis pendens does not apply
because the petition for review was lying in the registry in a
defective state cannot be accepted. The review proceedings were
“instituted” within the period of limitation of thirty days. The
doctrine of lis pendens kicks in at the stage of “institution” and
not at the stage when notice is issued by this Court. Thus, Section
52 of the Transfer of Property Act would apply to the third-party
purchaser once the sale was executed after the review petition
was instituted before this Court. Any transfer that is made during
the pendency is subject to the final result of the litigation.”
168.Since, in the present case the Special Leave Petitions were already instituted
and pending before this Court as on 28.08.2023 i.e., the date of execution of
the Assignment Agreement for the transfer of the Secured Asset in favour of
the Subsequent Transferee, the said Assignment Agreement dated
28.08.2023 and the transfer thereto is beyond a shadow of doubt hit by lis
pendens.
169.It has been contended by the Subsequent Transferee that Section 52 of the
TPA has a modified application in Maharashtra i.e., the area in which the
said property is situated by virtue of the State Amendment made to Section
52 of the TPA by the Bombay Amendment Act, 1939 (Act XIV of 1939).
The relevant provision as amended reads as under: -
“52. Transfer of property pending suit relating thereto. —
(1) During the pendency in any court having authority within the
limits of India excluding the State of Jammu and Kashmir
established beyond such limits by the Central Government, of
any suit or proceeding which is not collusive and in which any
right to immovable property is directly and specifically in
question, if a notice of the pendency of such suit or proceeding
is registered under Section 18 of the Indian Registration Act,
1908, the property after the notice is so registered cannot be
transferred or otherwise dealt with by any party to the suit or
proceeding so as to affect the rights of any other party thereto
under any decree or order which may be made therein, except
under the authority of the court and on such terms as it may
impose.
(2) Every notice of pendency of a suit or proceeding referred to
in sub-section (1) shall contain the following particular, namely:
(a) the name and address of the owner of immovable property or
other person whose right to the immovable property is in
question;
(b) the description of the immovable property the right to which
is in question;
(c) the Court in which the suit or proceeding is pending;
(d) the nature and title of the suit or proceeding; and
(e) the date on which the suit or proceeding was instituted.
Explanation. — For the purposes of this section, the pendency of
a suit or proceeding shall be deemed to commence from the date
of the presentation of the plaint or the institution of the
proceedings in a Court of competent jurisdiction, and to
continue until the suit or proceeding has been disposed of by a
final decree or order and compete satisfaction or discharge of
such decree or order has been obtained, or has become
unobtainable by reason of the expiration of any period of
limitation prescribed for the execution thereof by any law for the
time being in force."
170.It was submitted on behalf of the Subsequent Transferee that in view of the
aforesaid state amendment to Section 52 of the TPA, in order to invoke lis
pendens under the said provision it is mandatory as per sub-section (1) that a
notice of pendency of a suit or proceeding is registered in respect of the
property which is the subject-matter of such proceeding in the manner laid
down in sub-section (2) and in the event no such notice of pendency is
registered then lis pendens will not be applicable. It was further submitted
that since in the present case admittedly there was no registration of notice
of pendency by the petitioner in respect of the Secured Asset, the Assignment
Agreement dated 28.08.2023 and the transfer of the said property in
pursuance thereto is not hit by lis pendens.
171.We have carefully gone through the aforesaid state amendment made to
Section 52 of the TPA. The amended Section 52 sub-section (1) of the TPA
casts upon a party who is claiming any right to a property which is a subject-
matter of any pending suit or proceeding an additional duty to register a
notice of pendency in respect of such property so as to caution and put to
notice any third-party who might otherwise be unaware of such proceeding
or litigation despite the best of due diligence either due to inadvertence or
deliberate misleading by one of the parties to the lis and as result might be
genuinely considering to purchase or acquire any right in the subject-matter
proceeding. The requirement of registration of notice of pendency is to
prevent any undue or unwarranted hardship to such third-parties who even
after a reasonable due diligence have bona-fidely purchased the property
believing it to be free from the encumbrances of any pending proceeding only
to later face the adverse consequence of losing their rights by a mechanical
application of lis pendens.
172.This additional requirement of registration of notice of pendency is for the
benefit of the party claiming any right in such subject-matter property and
also for the benefit of any third-party interested in such subject-matter
property by enabling the former to claim the benefit of lis pendens as an
absolute right after having duly taken steps towards ensuring that the public
is well-aware of the impeding litigation in respect of such property by
registering a notice of pendency and to enable the latter to ascertain the
veracity of title of such property by exercise of its due diligence. Although,
the said provision is for the benefit of the third-party, yet such subsequent
purchasers cannot as a matter of absolute right claim any title to such
property solely on the ground of want of any notice of pendency being
registered. To hold otherwise would undermine the object and purpose of the
doctrine of lis pendens which is based on the principle of equity, good
conscience, and public policy and discourage any thwarting or frustration of
rights of the parties so litigating by unscrupulous and unanticipated
transactions.
173.The vital essence of this additional duty imposed upon the party claiming a
right to a property which is a subject matter of a pending proceeding, is only
to aid a third-party to exercise its due diligence and obviate the possibility of
any dishonesty, misrepresentation or fraud by a party in order to gain an
undue advantage or benefit despite the pendency of proceedings. However,
if the absence of notice registration were to render the doctrine entirely
inapplicable, it would lead to exploitation of procedural gaps by parties who
deliberately delay or avoid registering such notices to defeat substantive
rights of the parties and undermine the very sanctity of judicial proceedings.
Such an interpretation would lead to a very chilling effect whereby, third-
parties despite being expected to verify the title and status of the property
would simply abdicate their duty to conduct thorough due diligence in
transactions involving immovable properties or that despite being fully aware
of the pendency of such proceedings would be able to deviously claim
absolute rights to such property or worse, mischievously execute back-dated
agreements in collusion with a party to a lis prior to registration of such notice
of pendency to circumventing the very proceedings and render them
infructuous.
174.In Sanjay Verma (supra) this Court cautioned that the doctrine of lis pendens
is a principle of public policy without which it will be impossible to bring an
action or suit to a successful termination if alienations are permitted to prevail
thereby undermining the sanctity of judicial proceedings and rights of parties
so involved therein. Thus, we are of the considered view that even in the
absence of a registered notice of pendency in terms of the amended Section
52 of TPA the said provision will not be rendered ipso-facto inapplicable, at
best it would preclude the party seeking benefit of this doctrine to claim it as
a matter of right, but by no stretch would it mean that the third-party
conversely would be able to as matter of absolute right claim inapplicability
of this doctrine. It would be the discretion of the courts to see keeping in
mind the peculiar facts of the case to ascertain whether such doctrine ought
to be applied or not. Where the courts are satisfied that the third-party had
genuinely purchased the subject-matter property after an exercise of a
reasonable degree of care and caution and that it was otherwise unaware of
the pendency of proceedings, the courts would be circumspect to displace the
rights of such bona-fide third-party by a mechanical application of the
doctrine of lis pendens. Even otherwise, in view of the peculiar facts of this
case, more particularly the fact that the petitioner could not have registered
the same being only an auction purchaser and that it was the duty of the Bank
to register the notice of pendency which we are inclined to believe was not
reasonably possible in view of the haste that was shown by the Borrower and
the Subsequent Transferee in redeeming the mortgage and thereafter
immediately transferring the Secured Asset, we are of the opinion that the
non-registration of notice of pendency is not fatal to the application of the
doctrine of lis pendens in the present case.
175.During the course of hearing of the present case, we had inquired from the
Subsequent Transferee whether it was aware of the pendency of the Main
Appeals before this Court at the time of execution of the Assignment
Agreement dated 28.08.2023 and at what point of time did the Subsequent
Transferee and the Borrower entered into negotiations for the redemption of
mortgage and the transfer of the Secured Asset. Mr. Sibal, the learned Senior
Counsel appearing for the Subsequent Transferee, replied to the aforesaid
saying that the parties started contemplating the possibility of entering such
transaction in June, 2023 and that the Borrower had informed the Subsequent
Transferee about the pendency of the proceedings before this Court. Thus, it
is not as if the Subsequent Transferee was not aware of what was happening
however, when things went wrong, they now cry foul of not being impleaded
as parties and heard by this Court in the Main Appeals. Even otherwise,
assuming that the petitioner and the Bank herein deliberately chose not to
implead the Subsequent Transferee herein in order to mislead this Court in
the Main Appeals, the same is immaterial as the Subsequent Transferee too
failed to implead itself despite being aware of the pendency of the
proceedings before this Court. If at all they were so concerned about the
transfer of the Secured Asset in their favour, either they ought to have
themselves attempted to implead itself before this Court or requested the
Borrower to do the same. In view of the Doctrine of Pari Delicto i.e.., ‘in
equal fault, the law aids neither party’, the Subsequent Transferee cannot
seek any benefit from the fault of the petitioner or the Bank when it is itself
equally at fault.
176.In view of the aforesaid, we are of the considered view that the execution of
the Assignment Agreement dated 28.08.2023 and the transfer of the Secured
Asset in pursuance thereto in favour of the Subsequent Transferee is hit by
lis pendens despite the fact that no notice of pendency was registered in terms
of the amended Section 52 of the TPA.
177.We are aware of the two decisions of this Court one in the case of Thomson
Press (India) Limited v. Nanak Builders and Investors Private Limited &
Ors. reported in (2013) 5 SCC 397 and T. Ravi & Anr. v. B. Chinna
Narasimha & Ors. reported in (2017) 7 SCC 342. In both these decisions,
the view taken is that Section 52 of the TPA does not render transfers affected
during the pendency of the suit void but only render such transfers
subservient to the rights as may be eventually determined by the court.
178.In Thomson Press (supra), T.S. Thakur, J. (as he then was) in his separate
judgment while supplementing the judgment authored by M.Y. Eqbal, J.,
observed as under: -
“53. There is, therefore, little room for any doubt that the
transfer of the suit property pendente lite is not void ab initio
and that the purchaser of any such property takes the bargain
subject to the rights of the plaintiff in the pending suit. Although
the above decisions do not deal with a fact situation where the
sale deed is executed in breach of an injunction issued by a
competent court, we do not see any reason why the breach of any
such injunction should render the transfer whether by way of an
absolute sale or otherwise ineffective. The party committing the
breach may doubtless incur the liability to be punished for the
breach committed by it but the sale by itself may remain valid as
between the parties to the transaction subject only to any
directions which the competent court may issue in the suit
against the vendor.”
179.The decision in Thomson Press (supra) referred to above has been relied
upon in T. Ravi (supra) for the proposition that the effect of Section 52 of the
Act 1882 is not to render transfers effected during the pendency of a suit by
a party to the suit void; the transfer remains valid subject, of course, to the
result of the suit. The pendente lite purchaser would be entitled to or suffer
the same legal rights and obligations of his vendor as may be eventually
determined by the Court.
180.Thus, although Section 52 of the Act 1882 does not render a transfer pendente
lite void yet the court while exercising contempt jurisdiction may be justified
to pass directions either for reversal of the transactions in question by
declaring the said transactions to be void or proceed to pass appropriate
directions to the concerned authorities to ensure that the contumacious
conduct on the part of the contemnor does not continue to enure to the
advantage of the contemnor or anyone claiming under him.
181.Since in the present case, the Assignment Agreement dated 28.08.2023
whereby the Secured Asset was transferred in favour of Greenscape / the
Subsequent Transferee herein was effected by the Borrower on the strength
of its right of redemption pursuant to the High Court’s impugned order which
was ultimately set-aside by this Court in its judgment and order dated
21.09.2023 in the Main Appeals, the same rendered Borrower’s right to
transfer the Secured Asset non-est and by extension the Assignment
Agreement void.
iii. Whether any contempt is said to have been committed by the
respondents herein?
182.In order to decide whether the appellants are guilty of civil contempt, it would
be apposite to refer to Section 2(b) of the Act, 1971, which reads as under: -
“2. Definitions.—
In this Act, unless the context otherwise requires,—
(b) "civil contempt" means wilful disobedience to any judgment,
decree, direction, order, writ or other process of a court or wilful
breach of an undertaking given to a court;”
183.The Black's Law Dictionary, Sixth Edition, at page 1599, defines “willful”
as hereunder: -
"Proceeding from a conscious motion of the will; voluntary;
knowingly; deliberate. Intending the result which actually comes
to pass; designed; intentional; purposeful; not accidental or
involuntary. Premeditated; malicious; done with evil intent, or
with a bad motive or purpose, or with indifference to the natural
consequences; unlawful; without legal justification. An act or
omission is "willfully" done, if done voluntarily and intentionally
and with the specific intent to do something the law forbids, or
with the specific intent to fail to do something the law requires
to be done; that is to say, with bad purpose either to disobey or
to disregard the law. It is a word of many meanings, with its
construction often influenced by its context. In civil actions, the
word (willfully) often denotes an act which is intentional, or
knowing, or voluntary, as distinguished from accidental. But
when used in a criminal context it generally means an act done
with a bad purpose; without justifiable excuse; stubbornly,
obstinately, perversely."
184.In Ashok Paper Kamgar Union v. Dharam Godha and Ors. reported in
(2003) 11 SCC 1, the expression ‘wilful disobedience’ in the context of
Section 2(b) of the Act, 1971 was read to mean an act or omission done
voluntarily and intentionally with the specific intent to do something, which
the law forbids or with the specific intention to fail to do something which
the law requires to be done. Wilfulness signifies deliberate action done with
evil intent and bad motive and purpose. It should not be an act, which requires
and is dependent upon, either wholly or partly, any act or omission by a third
party for compliance.
185.Hence, the expression or word “wilful” means act or omission which is done
voluntarily or intentionally and with the specific intent to do something
which the law forbids or with the specific intent to fail to do something the
law requires to be done, that is to say with bad purpose either to disobey or
to disregard the law. It signifies a deliberate action done with evil intent or
with a bad motive or purpose.
186.Article 129 of the Constitution declares this Court as a “a court of record”
and states that it shall have all the powers of such a court including the power
to punish for contempt of itself. The provisions of the Act, 1971 and the Rules
framed thereunder form a part of a special statutory jurisdiction that is vested
in courts to punish an offending party for its contemptuous conduct. It needs
no emphasis that the power of contempt ought to be exercised sparingly with
great care and caution. The contemptuous act complained of must be such
that would result in obstruction of justice, adversely affect the majesty of law
and impact the dignity of the courts of law.
187.It must also be understood that contempt proceedings are sui generis
inasmuch as the Law of Evidence and the Code of Criminal Procedure, 1973
are not to be strictly applied. At the same time, the procedure adopted during
the contempt proceedings must be fair and just that is to say the principles
governing the Rule of law must be extended to the party against whom
contempt proceedings have been initiated. The party must have every
opportunity to place its position before the Court. Such a party must not be
left unheard under any circumstances.
188.In Ram Kishan v. Tarun Bajaj & Ors. reported in (2014) 16 SCC 204 it was
held that the contempt jurisdiction conferred on to the law courts power to
punish an offender not only for his wilful disobedience but also for
contumacious conduct or obstruction to the majesty of law. It further
observed that such power has been conferred for the simple reason that the
respect and authority commanded by the courts of law are the greatest
guarantee to an ordinary citizen that his rights shall be protected and the
entire democratic fabric of the society will crumble down if the respect of the
judiciary is undermined. The relevant observations read as under: -
“11. The contempt jurisdiction conferred on to the law courts
power to punish an offender for his wilful
disobedience/contumacious conduct or obstruction to the
majesty of law, for the reason that respect and authority
commanded by the courts of law are the greatest guarantee to
an ordinary citizen that his rights shall be protected and the
entire democratic fabric of the society will crumble down if the
respect of the judiciary is undermined. Undoubtedly, the
contempt jurisdiction is a powerful weapon in the hands of the
courts of law but that by itself operates as a string of caution and
unless, thus, otherwise satisfied beyond reasonable doubt, it
would neither be fair nor reasonable for the law courts to
exercise jurisdiction under the Act. The proceedings are quasi-
criminal in nature, and therefore, standard of proof required in
these proceedings is beyond all reasonable doubt. It would
rather be hazardous to impose sentence for contempt on the
authorities in exercise of the contempt jurisdiction on mere
probabilities. [...]”
189.In Murray & Co. v. Ashok Kr. Newatia & Anr. reported in (2000) 2 SCC
367 this Court held that the purpose of contempt jurisdiction is to uphold the
majesty and dignity of the courts of law since the image of such a majesty in
the minds of the people cannot be led to be distorted, as any indulgence which
can even remotely be termed to affect the majesty of law would result in the
society losing its confidence and faith in the judiciary and the law courts
forfeiting the trust and confidence of the people in general. The relevant
“9 [...] The purpose of contempt jurisdiction is to uphold the
majesty and dignity of the courts of law since the image of such
a majesty in the minds of the people cannot be led to be distorted.
The respect and authority commanded by courts of law are the
greatest guarantee to an ordinary citizen and the entire
democratic fabric of the society will crumble down if the respect
for the judiciary is undermined. It is true that the judiciary will
be judged by the people for what the judiciary does, but in the
event of any indulgence which can even remotely be termed to
affect the majesty of law, the society is bound to lose confidence
and faith in the judiciary and the law courts thus, would forfeit
the trust and confidence of the people in general.”
190.In Pushpaben & Anr. v. Narandas Badiani & Anr. reported in (1979) 2
SCC 394, it was held that contempt of court is a special jurisdiction to be
exercised sparingly and with caution whenever an act adversely affects the
administration of justice or which tends to impede its course or tends to shake
public confidence in the judicial institutions. It further held that this
jurisdiction is to be exercised not for the protection of the dignity of an
individual judge but to protect the administration of justice from being
maligned and ensure that the authority of the courts is neither imperilled nor
is the administration of justice by it interfered with in any manner. The
“42. The contempt of court is a special jurisdiction to be
exercised sparingly and with caution whenever an act adversely
affects the administration of justice or which tends to impede its
course or tends to shake public confidence in the judicial
institutions. This jurisdiction may also be exercised when the act
complained of adversely affects the majesty of law or dignity of
the courts. The purpose of contempt jurisdiction is to uphold the
majesty and dignity of the courts of law. It is an unusual type of
jurisdiction combining “the jury, the judge and the hangman”
and it is so because the court is not adjudicating upon any claim
between litigating parties. This jurisdiction is not exercised to
protect the dignity of an individual judge but to protect the
administration of justice from being maligned. In the general
interest of the community it is imperative that the authority of
courts should not be imperilled and there should be no
unjustifiable interference in the administration of justice. It is a
matter between the court and the contemner and third parties
cannot intervene. It is exercised in a summary manner in aid of
the administration of justice, the majesty of law and the dignity
of the courts. No such act can be permitted which may have the
tendency to shake the public confidence in the fairness and
impartiality of the administration of justice.”
191.In Reliance Petrochemicals Ltd. v. Proprietors of Indian Express
Newspapers, Bombay Pvt. Ltd. & Ors. reported in (1988) 4 SCC 592 it was
observed that the process of due course of administration of justice must
remain unimpaired. Public interest demands that there should be no
interference with judicial process and the effect of the judicial decision
should not be pre-empted or circumvented. The relevant observations read as
under: -
“35. The question of contempt must be judged in a particular
situation. The process of due course of administration of justice
must remain unimpaired. Public interest demands that there
should be no interference with judicial process and the effect of
the judicial decision should not be pre-empted or circumvented
by public agitation or publications. It has to be remembered that
even at turbulent times through which the developing countries
are passing, contempt of court means interference with the due
administration of justice.”
192.In Rita Markandey v. Surjit Singh Arora reported in (1996) 6 SCC 14, it
was observed that even if parties have not filed an undertaking before the
court but if the court was induced to sanction a particular course of action or
inaction on the representation made by a party and the court ultimately finds
that the party never intended to act on the said representation or such
representation was false, the party would be guilty of committing contempt.
The relevant observations read as under: -
“12. Law is well settled that if any party gives an undertaking to
the court to vacate the premises from which he is liable to be
evicted under the orders of the court and there is a clear and
deliberate breach thereof it amounts to civil contempt but since,
in the present case, the respondent did not file any undertaking
as envisaged in the order of this Court the question of his being
punished for breach thereof does not arise. However, in our
considered view even in a case where no such undertaking is
given, a party to a litigation may be held liable for such contempt
if the court is induced to sanction a particular course of action
or inaction on the basis of the representation of such a party and
the court ultimately finds that the party never intended to act on
such representation or such representation was false. In other
words, if on the representation of the respondent herein the
Court was persuaded to pass the order dated 5-10-1995
extending the time for vacation of the suit premises, he may be
held guilty of contempt of court, notwithstanding non-furnishing
of the undertaking, if it is found that the representation was false
and the respondent never intended to act upon it. [...]”
193.The Borrower and the Subsequent Transferee / the alleged contemnors herein
placing reliance on the decision of this Court in Patel Rajnikant (supra) have
contended that in the absence of any disobedience or wilful breach of a
prohibitory order no contempt could be said to have been committed. It has
been further canvased that this Court in the Main Appeals never issued any
specific direction either to the Borrower or the Subsequent Transferee, &
therefore no contempt could be said to have been committed.
194.In Patel Rajnikant (supra) this Court upon examining Section 2(b) of the
Act, 1971 held that to hold a person guilty of having committed contempt,
there must be a judgment, order, direction etc. by a court, there must be
disobedience of such judgment, order, direction etc and that such
disobedience must be willful. The relevant provisions read as under: -
“58. The provisions of the Contempt of Courts Act, 1971 have
also been invoked. Section 2 of the Act is a definition clause.
Clause (a) enacts that contempt of court means “civil contempt
or criminal contempt”. Clause (b) defines “civil contempt” thus:
“2. (b) ‘civil contempt’ means wilful
disobedience to any judgment, decree, direction,
order, writ or other process of a court or wilful
breach of an undertaking given to a court;”
Reading of the above clause makes it clear that the following
conditions must be satisfied before a person can be held to have
committed a civil contempt:
(i) there must be a judgment, decree, direction, order, writ or
other process of a court (or an undertaking given to a court);
(ii) there must be disobedience to such judgment, decree,
direction, order, writ or other process of a court (or breach of
undertaking given to a court); and
(iii) such disobedience of judgment, decree, direction, order,
writ or other process of a court (or breach of undertaking) must
be wilful.”
195.However, the subsequent observations made by this Court in Patel Rajnikant
(supra) are significant. It observed that the court should not hesitate in
wielding the potent weapon of contempt, it is for the proper administration
of justice and to ensure due compliance with the orders passed by it in order
to uphold and maintain the dignity of courts and majesty of law. The relevant
“70. From the above decisions, it is clear that punishing a
person for contempt of court is indeed a drastic step
and normally such action should not be taken. At the same time,
however, it is not only the power but the duty of the court to
uphold and maintain the dignity of courts and majesty of law
which may call for such extreme step. If for proper
administration of justice and to ensure due compliance with the
orders passed by a court, it is required to take strict view under
the Act, it should not hesitate in wielding the potent weapon of
contempt.”
196.What can be discerned from the above exposition of law is that any act of
disobedience, defiance, or any attempt to malign the authority of the court
would amount to contempt because they undermine the respect and trust that
the public reposes in judicial institutions. The judicial process relies on the
confidence of society, and any act that disrupts or disrespects this process
threatens to erode the foundation of justice and order.
197.Contempt jurisdiction exists to preserve the majesty and sanctity of the law.
Courts are the guardians of justice, and their decisions must command respect
and compliance to ensure the proper functioning of society. When
individuals or entities challenge the authority of courts through wilful
disobedience or obstructive behaviour, they undermine the rule of law and
create the risk of anarchy. Contempt serves as a mechanism to protect the
integrity of the courts, ensuring that they remain a symbol of fairness,
impartiality, and accountability.
198.When judicial orders are openly flouted or court proceedings are
disrespected, it sends a signal that the rule of law is ineffective, leading to a
loss of trust in the system. Judicial decisions must remain unimpaired, free
from external pressures, manipulation, or circumvention. Acts that attempt
to mislead the court, obstruct its functioning or frustrate its decisions distort
the process of justice and would amount to contempt.
199.The contempt jurisdiction of this court cannot be construed by any formulaic
or rigid approach. Merely because there is no prohibitory order or no specific
direction issued the same would not mean that the parties cannot be held
guilty of contempt. The Contempt jurisdiction of the court extends beyond
the mere direct disobedience of explicit orders or prohibitory directions
issued by the court. Even in the absence of such specific mandates, the
deliberate conduct of parties aimed at frustrating court proceedings or
circumventing its eventual decision may amount to contempt. This is because
such actions strike at the heart of the judicial process, undermining its
authority and obstructing its ability to deliver justice effectively. The
authority of courts must be respected not only in the letter of their orders but
also in the broader spirit of the proceedings before them.
200.Any contumacious conduct of the parties to bypass or nullify the decision of
the court or render it ineffective, or to frustrate the proceedings of the court,
or to enure any undue advantage therefrom would amount to contempt.
Attempts to sidestep the court’s jurisdiction or manipulate the course of
litigation through dishonest or obstructive conduct or malign or distort the
decision of the courts would inevitably tantamount to contempt sans any
prohibitory order or direction to such effect.
201.Thus, the mere conduct of parties aimed at frustrating the court proceedings
or circumventing its decisions, even without an explicit prohibitory order,
constitutes contempt. Such actions interfere with the administration of
justice, undermine the respect and authority of the judiciary, and threaten the
rule of law.
202.However, at the same time, the power of contempt ought to be exercised
sparingly and with caution and care. It operates with a string of caution and
unless otherwise satisfied beyond doubt, it would neither be fair nor
reasonable for the courts to resort to such powers. The standard of proof
required before a person is held guilty of committing contempt of court must
be beyond all reasonable doubt.
203.The courts while exercising its contempt jurisdiction must remain
circumspect, more particularly, where there exists a possibility of the order
being amenable to more than one interpretation. In Jhareshwar Prasad Paul
v. Tarak Nath Ganguly reported in (2002) 5 SCC 352 it was held that if an
order does not contain any specific direction regarding a matter or if there is
any ambiguity in the directions issued therein then it would be appropriate to
direct the parties to approach the court which disposed of the matter for
necessary clarification of the order instead of the court exercising its
contempt jurisdiction thereby taking upon itself the power to decide the
original proceeding in a manner not dealt with by the court passing the
judgment or order. The relevant observations read as under: -
“The contempt jurisdiction should be confined to the question
whether there has been any deliberate disobedience of the order
of the court and if the conduct of the party who is alleged to have
committed such disobedience is contumacious. The court
exercising contempt jurisdiction is not entitled to enter into
questions which have not been dealt with and decided in the
judgment or order... The court has to consider the direction
issued in the judgment or order and not to consider the question
as to what the judgment or order should have contained. At the
cost of repetition, be it stated here that the court exercising
contempt jurisdiction is primarily concerned with the question
of contumacious conduct of the party, which is alleged to have
committed deliberate default in complying with the directions in
the judgment or order. If the judgment or order does not contain
any specific direction regarding a matter or if there is any
ambiguity in the directions issued therein then it will be better to
direct the parties to approach the court which disposed of the
matter for clarification of the order instead of the court
exercising contempt jurisdiction taking upon itself the power to
decide the original proceeding in a manner not dealt with by the
court passing the judgment or order.”
204.It is true that this Court in its decision rendered in the Main Appeals had not
issued any specific direction either to the Borrower or the Subsequent
Transferee as regards the handing over of physical possession and the
original title deed to the Secured Asset, or the proceedings pending before
the DRT in S.A. No. 46 of 2022. However, the same would not mean that the
decision of this Court in the Main Appeal was bereft of any direction as to
the outcome of its findings. This Court in the operative portion of the Main
Appeals stated in unequivocal terms that the confirmation of the sale by Bank
under Rule 9(2) of the SARFAESI Rules had vested the petitioner herein
with a right to obtain the certificate of sale of the Secured Asset. It further
held categorically that the Borrower herein could not have redeemed the
mortgage upon publication of the 9th auction notice. Furthermore, this Court
explicitly directed the Bank to not only issue the Sale Certificate to the
petitioner herein in accordance with Rule 9(6) of the SARFAESI Rules but
also directed the refund of the amount of Rs. 129 crore paid by the Borrower.
Moreover, the impugned order of the High Court had been set-aside by this
Court in toto. As already discussed in paragraph 154, the natural corollary to
the aforesaid was that the judgment and order dated 21.09.2023 of this Court
in Civil Appeals Nos. 5542-5543 of 2023 had held as under: -
(i) The auction proceedings and the sale conducted thereto in favour of
the petitioner herein pursuant to the 9th auction notice dated
12.06.2023 had been categorically affirmed and upheld.
(ii) After having directed the issuance of the Sale Certificate in terms of
Rule 9(6) of the SARFAESI Rules, nothing remained thereafter, as
issuance of sale certificate is absolute and as such the proceedings
before the DRT had been rendered infructuous.
(iii) Having directed not only the issuance of the Sale Certificate to the
Secured Asset but also the refund of the amount paid by the Borrower,
towards redemption of mortgage, necessarily entailed that the
Borrower was duty bound to return the possession and title deeds of
the secured asset to the Bank for the purpose of handing the same over
to the petitioner.
(iv) Having set aside the impugned order passed by the High Court in toto
rendered any and all acts done pursuant thereto as null and void, and
the Borrower and the Subsequent Transferee herein were required to
get the Release Deed and the Assignment Agreement dated 28.08.2023
cancelled.
(v) Having expressly directed the issuance of the Sale Certificate it
necessarily excluded all other inconsistent and contrary rights and
reliefs including the right to pursue the DRT proceedings in view of
the maxim Expressio Unius Est Exclusio Alterius.
205.Where a decision is rendered and the impugned order is set-aside, it behoves
any logic that an express direction to act must be given in respect of every
aspect of the decision. The parties are duty bound to act in accordance with
common sense. It is axiomatic that a party should obey both the letter and the
spirit of a court order, and it is neither open for the parties to adopt a myopic
and blinkered view of such decision nor any such interpretation or view that
sub-serves their own interests. It is ultimately the purpose for which the order
was granted that will be the lodestar in guiding the parties as to the true effect
of the order and determination of the court.
206.If at all the parties are in doubts over the judgment and order of a court, the
correct approach is to prefer a miscellaneous application for seeking
clarification rather than proceeding to presume a self-serving interpretation
of the decision. At this stage, we may also explain the correct approach to be
adopted by the other courts and forums where a party seeks to espouse a
cause based on its own understanding or interpretation of a decision of an
higher authority. In such situations, the courts or forums should neither aid
the parties in their attempt to reinterpret the decision of a higher court nor
should they embark on an inquisitorial exercise of their own in order to derive
the scope or intent of the order in question. The courts and tribunals should
not conflate a decision of a higher court that declares a law with a decision
that declares the inter-se rights of a parties, the former only operates as a
precedent and thus, it is open for the lower courts to apply their minds to
assess whether the same is applicable to the issues before it or what law has
been laid down therein. However, the latter not only has precedential value
but also carries with it the weight of determination of the issues directly
involved between the very parties before it, the subject-matter itself and by
extension the entire cause of action. Since such decisions have directly
decided or given a finding on the inter-se rights and issues of the same parties
that are before it and as such has to a certain extent a direct and palpable
effect on the cause of action before it, in such circumstances, the courts and
tribunals should refrain from interpreting or examining the scope or effect of
such decisions on their own as the same would amount to relitigating the very
same issues and rather should relegate the parties to seek clarification from
the court that passed the order and adjourn further proceedings sine die.
207.We further take note of the fact that both the Borrower and the Subsequent
Transferee made several attempts to prevent the effective implementation of
the judgement and order dated 21.09.2023 passed by this Court and thereby
thwart the attempts of the Bank to hand over the physical possession and the
original title deeds of the Secured Asset to the petitioner.
(i) First, both the Borrower and the Subsequent Transferee addressed a
letter to the MIDC in whose industrial area the Secured Asset was
situated asking them not to entertain any request from the Bank or the
petitioner regarding the transfer of the leasehold rights of the Secured
Asset in favour of the petitioner.
(ii) Secondly, the Subsequent Transferee vide its letter dated 05.10.2023
even asked the Sub-Registrar Office, Nerul Thane not to entertain any
request of the petitioner regarding the transfer of the Secured Asset.
(iii) The self-serving stance of the Borrower to initially contend that it no
longer had any role or authority over the secured asset in view of its
transfer and thus, cannot handover the physical possession and the
original title deeds to the same, yet in the same breath filing an
application seeking stay of the notice for obtaining physical possession
of the Secured Asset.
(iv) The police complaint lodged by the Subsequent Transferee against the
Bank by distorting the decision of this Court in the Main Appeals and
to thwart the attempts for its implementation.
(v) The patently false contention of the Subsequent Transferee that it
instituted the suit to prevent its unlawful dispossession of the Secured
Asset due to the alleged illegal attempts of the petitioner to take the
same forcefully yet, in the said suit instead of seeking permanent
injunction, the Subsequent Transferee not only sought the relief of
declaration of title in its favour but also the invalidation of the Sale
Certificate issued to the petitioner, contrary to the decision of this
Court in the Main Appeals.
208.In the facts of the case, we are convinced that both the Borrower and the
Subsequent Transferee have committed contempt of this Court’s judgment
and order dated 21.09.2023 in the Main Appeals. The aforementioned acts of
the contemnors are nothing more than a gamble on their part to circumvent
and undermine the findings and directions passed by this Court in the Main
Appeals. Similarly, the lame excuses offered by them for explaining their
conduct are also nothing more than a calculated attempt in the hope that they
would get away with legitimizing the illegal Assignment Agreement even
after the decision of this Court, and is equally contemptuous.
209.However, on an overall conspectus of the facts of the present case, while the
initial acts of the Borrower and the Subsequent Transferee are in violation of
this Court’s judgment and order dated 21.09.2023, yet the efforts on their
part to take steps and make amends by withdrawing the Special Civil Suit
No. 5 of 2024 along with their belated unconditional undertaking to comply
with any further order that this Court may deem fit and proper to pass,
demonstrates their effort and willingness to purge themselves of their
contemptuous conducts. Thus, we are inclined to provide one last opportunity
to the Borrower herein and the Subsequent Transferee to abide by the
judgement and order dated 21.09.2023 passed by this Court and further
comply with the directions issued in the present contempt petition, and thus,
deem it fit not to hold them guilty of contempt for the present moment.
iv. Circumstances when a sale of property by auction or other means
under the SARFAESI Act may be set-aside after its confirmation.
210.We must also address one very important aspect as regards when the sale of
secured asset either by auction or any other method under the SARFAESI
Act may be challenged or set-aside after its confirmation.
211.In B. Arvind Kumar v. Govt of India & Ors. reported in (2007) 5 SCC 745
this Court whilst dealing with a plea to set-aside the sale of the property
therein by way of public auction by the official receiver, it was held that when
the sale is confirmed by the court, the sale becomes absolute and therefrom
the title vests in the auction purchaser. The relevant observations read as
under: -
“12. [...] When a property is sold by public auction in pursuance
of an order of the court and the bid is accepted and the sale is
confirmed by the court in favour of the purchaser, the sale
becomes absolute and the title vests in the purchaser. A sale
certificate is issued to the purchaser only when the sale becomes
absolute. The sale certificate is merely the evidence of such title.
It is well settled that when an auction-purchaser derives title on
confirmation of sale in his favour, and a sale certificate is issued
evidencing such sale and title, no further deed of transfer from
the court is contemplated or required. In this case, the sale
certificate itself was registered, though such a sale certificate
issued by a court or an officer authorised by the court, does not
require registration. Section 17(2)(xii) of the Registration Act,
1908 specifically provides that a certificate of sale granted to
any purchaser of any property sold by a public auction by a Civil
or Revenue Officer does not fall under the category of non-
testamentary documents which require registration under sub-
sections (b) and (c) of Section 17(1) of the said Act. We therefore
hold that the High Court committed a serious error in holding
that the sale certificate did not convey any right, title or interest
to plaintiff's father for want of a registered deed of transfer.”
212.In LICA (P) Ltd. v. Official Liquidator reported in (1996) 85 Comp Cas 788
(SC) this Court held that the purpose of an open auction is to get the most
remunerative price with the highest possible public participation, and as such
the courts shall exercise their discretion to interfere where the auction suffers
from any fraud or inadequate pricing or underbidding that too with
circumspection, keeping in view the facts of each case. The relevant
“The purpose of an open auction is to get the most remunerative
price and it is the duty of the court to keep openness of the
auction so that the intending bidders would be free to participate
and offer higher value. If that path is cut down or closed the
possibility of fraud or to secure inadequate price or
underbidding would loom large. The court would, therefore,
have to exercise its discretion wisely and with circumspection
and keeping in view the facts and circumstances in each case.”
213.This Court in Valji Khimji (supra) held that once an auction is confirmed the
objections to the same should not ordinarily be allowed, except on very
limited grounds like fraud as otherwise no auction would ever be complete.
The relevant observations read as under: -
“11. It may be noted that the auction-sale was done after
adequate publicity in well-known newspapers. Hence, if any one
wanted to make a bid in the auction he should have participated
in the said auction and made his bid. Moreover, even after the
auction the sale was confirmed by the High Court only on 30-7-
2003, and any objection to the sale could have been filed prior
to that date. However, in our opinion, entertaining objections
after the sale is confirmed should not ordinarily be allowed,
except on very limited grounds like fraud, otherwise no auction-
sale will ever be complete.
29. [...] It may be mentioned that auctions are of two types – (1)
where the auction is not subject to subsequent confirmation, and
(2) where the auction is subject to subsequent confirmation by
some authority after the auction is held. 30. In the first case
mentioned above, i.e. where the auction is not subject to
confirmation by any authority, the auction is complete on the fall
of the hammer, and certain rights accrue in favour of the
auction-purchaser. However, where the auction is subject to
subsequent confirmation by some authority (under a statute or
terms of the auction) the auction is not complete and no rights
accrue until the sale is confirmed by the said authority. Once,
however, the sale is confirmed by that authority, certain rights
accrue in favour of the auction-purchaser, and these rights
cannot be extinguished except in exceptional cases such as
fraud.”
214.In Ram Kishun & Ors. v. State of Uttar Pradesh & Ors. reported in (2012)
11 SCC 511 this Court although held that where public money is to be
recovered such recovery should be done expeditiously, yet the same must be
done strictly in accordance with the procedure prescribed by law. However,
this Court after examining a plethora of other decisions further held that once
the sale has been confirmed it cannot be set aside unless a fundamental
procedural error has occurred or sale certificate had been obtained by
misrepresentation or fraud. The relevant observations read as under: -
“13. Undoubtedly, public money should be recovered and
recovery should be made expeditiously. But it does not mean that
the financial institutions which are concerned only with the
recovery of their loans, may be permitted to behave like property
dealers and be permitted further to dispose of the secured assets
in any unreasonable or arbitrary manner in flagrant violation of
the statutory provisions.
28. In view of the above, the law can be summarised to the effect
that the recovery of the public dues must be made strictly in
accordance with the procedure prescribed by law. The liability of
a surety is coextensive with that of the principal debtor. In case
there are more than one surety the liability is to be divided equally
among the sureties for unpaid amount of loan. Once the sale has
been confirmed it cannot be set aside unless a fundamental
procedural error has occurred or sale certificate had been
obtained by misrepresentation or fraud.”
215.In PHR Invent Educational Society v. UCO Bank reported in (2024) 6 SCC
579 it was again reiterated that an auction-sale which stands confirmed can
only be interfered with when there was any fraud or collusion, and
entertaining of issues regarding the validity of such auction would amount to
reopening issues which have achieved finality. The relevant observations
“34. In our view, the High Court ought to have taken into
consideration that the confirmed auction-sale could have been
interfered with only when there was a fraud or collusion. The
present case was not a case of fraud or collusion. The effect of
the order of the High Court would be again reopening the issues
which have achieved finality.”
216.In V.S. Palanivel v. P. Sriram reported in 2024 INSC 659 this Court again
reiterated unless there are some serious flaws in the conduct of the auction as
for example perpetration of a fraud/collusion, grave irregularities that go to
the root of such an auction, courts must ordinarily refrain from setting them
aside keeping in mind the domino effect such an order would have. The
“36.14. This Court must underscore the well settled legal
position that once an auction is confirmed, it ought to be
interfered with on fairly limited grounds. (Refer: Valji Khimji
and Co. v. Hindustan Nitro Product (Gujarat) Ltd. (Official
Liquidator) MANU/SC/3408/2008 : 2008:INSC:925 : (2008) 9
SCC 299 and Celir LLP v. Bafna Motors (Mumbai) Private
Limited and Ors. MANU/SC/1042/2023 : 2023:INSC:838 :
(2024) 2 SCC 1). Repeated interferences in public auction also
results in causing uncertainty and frustrates the very purpose of
holding auctions. (Refer : K. Kumara Gupta v. Sri Markendaya
and Sri Omkareswara Swamy Temple and
710). Unless there are some serious flaws in the conduct of the
auction as for example perpetration of a fraud/collusion, grave
irregularities that go to the root of such an auction, courts must
ordinarily refrain from setting them aside keeping in mind the
domino effect such an order would have. Given the facts noted
above, we shall refrain from cancelling the sale or declaring the
Sale Deed as void. Instead, it is deemed appropriate to balance
the equities by directing the Auction Purchaser to pay an
additional amount in respect of the subject property.”
217.In the present lis, it is not the case of the Borrower herein that the 9th auction
conducted by the Bank was a result of any collusion or fraud either at the
behest of the Bank or the Successful Auction Purchaser herein. Aside from
the lack of any 15-days gap between the notice of sale and the notice of
auction, no other illegality has been imputed to the aforesaid auction
proceedings. It is also not the case of the Borrower that due to the absence of
the aforesaid statutory period, any prejudice was caused or that it was
prevented from effectively exercising its rights due to such procedural
infirmity. Despite a total of eight auctions being conducted by the Bank from
April, 2022 to June, 2023, not once did the Borrower express its desire to
redeem the mortgage. Even when the auction notice came to be issued on
12.06.2023, the Borrower never intimated that it was in process of redeeming
the mortgage with the aid of the Subsequent Transferee and that the auction
be delayed even though, as per the parties own submissions, they started
exploring the possibility of redeeming the mortgage and thereafter
transferring in June, 2023 itself. In such circumstances, given the fact that
although the S.A. No. 46 of 2022 was still pending, yet since there was
nothing before this Court to doubt the validity of the 9th auction, this Court
in the Main Appeals confirmed the sale in favour of the petitioner and
brought the auction proceedings to its logical conclusion by directing the
issuance of the sale certificate. The Borrower never raised the issue of the
validity of the 9th auction notice despite having sufficient opportunities to do
so even after the pronouncement of the decision in the Main Appeals, and
that such pleas are being raised only after the auction was confirmed in favour
of the petitioner, we find no good reason to interfere with the 9th auction
conducted by the Bank.
218.Any sale by auction or other public procurement methods once already
confirmed or concluded ought not to be set-aside or interfered with lightly
except on grounds that go to the core of such sale process, such as either
being collusive, fraudulent or vitiated by inadequate pricing or underbidding.
Mere irregularity or deviation from a rule which does not have any
fundamental procedural error does not take away the foundation of authority
for such proceeding. In such cases, courts in particular should be mindful to
refrain entertaining any ground for challenging an auction which either could
have been taken earlier before the sale was conducted and confirmed or
where no substantial injury has been caused on account of such irregularity.
219.In the present lis, apart from the want of statutory notice period, no other
challenge has been laid to the 9th auction proceedings on the ground of it
being either collusive, fraudulent or vitiated by inadequate pricing or
underbidding, thus, the auction cannot be said to suffer from any fundamental
procedural error, and as such does not warrant the interference of this Court,
particularly when the plea sought to be raised to challenge the same could
have been raised earlier.
220.The aforesaid may be looked at from one another angle. Even if the 9th
auction were to be held illegal and bad in law by virtue of the aforesaid S.A.
No. 46 of 2022, it would not mean that the auction purchaser would by virtue
of such finding lose all its rights to the secured asset, even after having the
sale confirmed in its favour. In this regard we may refer to the decision of
this Court in Janak Raj v. Gurdilal Singh & Ors. reported in AIR 1967 SC
608 wherein it was held that even if a decree pursuant to which auction was
previously conducted was later set-aside, the successful auction purchaser’s
rights will remain unaffected and he would still be entitled to confirmation
of sale in its favour. The relevant observations read as under: -
“27. For the reasons already given and the decisions noticed, it
must be held that the appellant-auction purchaser was entitled
to a confirmation of the sale notwithstanding the fact that after
the holding of the sale the decree had been set aside. The policy
of the Legislature seems to be that unless a stranger auction-
purchaser is protected against the vicissitudes of the fortunes of
the suit, sales in execution would not attract customers and it
would be to the detriment of the interest of the borrower and the
creditor alike if sales were allowed to be impugned merely
because the decree was ultimately set aside or modified. The
Code of Civil Procedure of 1908 makes ample provision for the
protection of the interest of the judgment-debtor who feels that
the decree ought not to have been passed against him. On the
facts of this case, it is difficult to see why the judgment-debtor
did not take resort to the provisions of O. XXI r. 89. The decree
was for a small amount and he could have easily deposited the
decretal amount besides 5 per cent of the purchase money and
thus have the sale set aside. For reasons which are not known to
us he did not do so.”
221.Before we close this judgment, we may address yet another submission
canvassed on behalf of the respondents herein. It was contended by the
Borrower and the Subsequent Transferee that the petitioner herein having not
prayed for the relief of physical possession in the original proceedings cannot
be permitted to expand the scope of the said proceedings and now seek the
relief which it previously did not. In this regard, we may only refer to the
decision of this Court in Baranagore Jute Factory Plc. Mazdoor v.
Baranagore Jute Factory Plc. reported in AIR ONLINE 2017 SC 410
wherein it was held the court not only has a duty to issue appropriate
directions for remedying or rectifying the things done in violation of its
orders but also the power to take restitutive measures at any stage of the
proceedings. The relevant observations read as under: -
“... As held by this Court in Delhi Development Authority v.
Skipper Construction Co. (P) Ltd. and another, and going a
step further, the Court has a duty to issue appropriate
directions for remedying or rectifying the things done in
violation of the orders. In that regard, the Court may even
take restitutive measures at any stage of the proceedings.
[...]”
222.Similarly, a Three-Judge Bench of this Court in the case of State Bank of
India & Ors. v. Dr. Vijay Mallya reported in 2022 SCC Online SC 826, in
clear terms said that apart from punishing the contemnor for his
contumacious conduct, the majesty of law may demand that appropriate
directions be issued by the Court so that any advantage secured as a result of
such contumacious conduct is completely nullified. The approach may
require the Court to issue directions either for reversal of the transactions in
question by declaring said transactions to be void or passing appropriate
directions to the concerned authorities to see that the contumacious conduct
on the part of the contemnor does not continue to enure to the advantage of
the contemnor or anyone claiming under him.
223.In view of the aforesaid, we pass the following orders and directions: -
(i) The legality and validity of the 9th auction proceedings conducted
pursuant to the notice of sale dated 12.06.2022 is upheld. The sale of
the Secured Asset to the petitioner is hereby confirmed and the title
conferred through the Sale Certificate dated 27.09.2023 is declared to
be absolute.
(ii) The Borrower and the Bank shall immediately take steps for the
cancellation of the Release Deed dated 28.08.2023 within a period of
one week from the date of pronouncement.
(iii) The Borrower shall also unconditionally withdraw the S.A. No. 46 of
2022 pending before the DRT within a period of one week from the
date of pronouncement.
(iv) The Assignment Agreement dated 28.08.2023 is hit by lis pendens and
hereby declared void. The Subsequent Transferee shall hand over the
peaceful physical possession of the Secured Asset along with its
original title deeds to the Bank within a period of one week from the
date of pronouncement of this judgment. In the event of any further
hinderance or any obstruction that may be caused by the Borrower or the
Subsequent Transferee while taking over the possession of the property
then in such circumstances the Bank shall take the assistance of police.
(v) The Subsequent Transferee shall also withdraw the police complaint
dated 17.01.2024 lodged by it within a period of one week from the date
of pronouncement of this judgment.
(vi) We clarify that the Subsequent Transferee is not entitled to recover the
amount paid by it towards redeeming the second charge over the
Secured Asset or any other dues or amount paid in respect of the same
from the petitioner herein.
(vii) The Bank shall refund the amount of Rs. 129 crore paid by the
Borrower towards the redemption of mortgage without any interest
only after the aforesaid directions have been complied to the letter and
spirit.
(viii) The Subsequent Transferee is at liberty to recover the amount paid by
it towards the Assignment Agreement dated 28.08.2023 and any other
amount from the Borrower by availing appropriate legal remedy as
may be available under the law.
224.Let this matter be notified once again before this Bench after a period of two
weeks to report compliance of the aforesaid directions.
225.There shall be no order as to costs.
(J.B. Pardiwala)
(Manoj Misra)
13th December, 2024. New Delhi.