Major Singh Sidhu And Ors. vs Indian Bank And Ors

The present securitization application has been filed by the applicant under Section 17 of the Securitization and Reconstruction of Financial Assets and Enforcement of' Security Interest Act, 2002 (hereinafter referred to as 'SARFAESI Act') against the notice dated 05.02.2008 to the respondent no. 2 and possession notice dated 08.11.2011 and 28.11.2011 praying therein to accept the payment made by the applicant and thereby restrain the respondent to take possession of the premises; to direct the respondent no. 1 not to harass the applicant for recovery of the amount/loan granted to the respondent no. 2 and to pass an order that the respondent no. 1 should recover the amount from the respondent no. 2 in their personal capacity.

Briefly stated facts of the case are that the applicant herein is a bonafide purchaser of B-39, HIG Flat 3rd Floor, Dilshad Extension, Delhi (hereinafter referred to as property-inquestion') as he purchased the said property from the respondent no. 2. The respondent no. 2 executed the registered. respondent no. 2. The respondent no. 2 executed the registered documents in favour of the applicant and the possession was handed over by the respondent no. 2 to the applicant and the applicant is in possession of the property-in-question since 2004. It is stated that the applicant herein was cheated by the respondent no. 2. The applicant was out of station when he found that one notice was lying in the house on 18.11.2011. The applicant immediately approached the concerned ACMM and L.d. ACMM directed the applicant on 19.11.2011 to deposit the entire amount along with an affidavit and the applicant complied with the directions. The counsel appearing for respondent no. 1 did not oppose the same. Thereafter, the date was fixed for 28.11.2011 and the Ld. ACMM directed to deposit the said amount with DRT. It is further stated in the SA that the applicant never received any communication from the respondent no. 1 ever except the notice dated 08.11.2011 and 28.11.2011.

It is mainly stated in the SA that the notice dated 05.02.2008 was not served by the respondent no. 1, at the address of the property-in-question, as the same was served at the address of the respondent no. 2. It is further stated that the respondent no. 1 is asking money from the applicant despite the fact that the property purchased by the applicant from the respondent no. 2 was free from encumbrance and is not the mortgage property ith the respondent no. 1. Even though, if there is any liability n the respondent no. 2 of the respondent no. 1, the same can be recovered from the legal process from the respondent no. 2. It is stated in the SA that when the applicant came to know about the said dispute, he filed an application under Order 1 Rule 10 CPC r/w/s 151 CPC, which was, then, pending before the DRT-III. The applicant had purchased the premises fora sum of Rs. 12.0 lac and made the entire payment to the respondent no. 2. The respondent no. 2 handed over the property-in-question to the applicant at the time of executing the documents and categorically stated that the property-in-question is free from all encumbrances/lien.

It is further stated that the respondent no. 2 filed a petition in connivance with respondent no. 1 and undertook before this Tribunal that he shall deposit the entire amount to this Tribunal. The respondent no. 2 has already deposited Rs. 2.57 lac with respondent no. 1 bank and when the applicant came to know about the proceedings, he also deposited Rs. 1.0 lac side DD No. 0099784 dated 13.05.2009 before this Tribunal and moved an application for impleading him as a respondent. The said matter is still pending for hearing on 30.12.2011. It is also stated that the interest of the applicant is with the property, as he is residing in-the property-in-question being lawful owner of the same and don't want any dispute, hence, the applicant deposit the entire due amount with this Tribunal or respondent no. 1, as directed by this Tribunal and seeks liberty, while depositing the said amount, to recover the same from the respondent no. 2 under due process of law.

5.It is also stated in the SA that no notice dated 28.11.2011 w as issued to the applicant/at the address of the property and the said notice was received by the applicant from the respondent no. 2 on 14.12.2011 that such notice was pasted on the house of the respondent no. 2. It is further stated that the order dated 01.11.2018 and 07.10.2011 do not exist. It is stated that the notice dated 07.10.2011 was recalled by L.d. ACMM on 19.11.2011, as the notice was defective, hence, there is no question of order dated 07.10.2011, which was recalled by the Ld. ACMM. Ld. Receiver also wrongly stated that if there is any notice on or before 26.11.2008 to be produced to the receiver. No such order of ACMM today exist as no fresh application by the Receiver or the respondent no. 1 to take possession of the property-in-question from the applicant herein. Therefore, being aggrieved against the said acts / actions of the respondents, the applicant is preferring the present SA.

During the course of the proceedings of this SA, an application filed vide diary no. 7276 dated 19.12.2011 for impleadment of auction purchaser i.e. Anil Gupta & Kiran Gupta was allowed vide order dated 21.12.2011 of this Tribunal, accordingly, auction purchaser was impleaded as respondent no. 3.

Further, during the pendency of present SA, applicant in SA was also expired and his LRs were taken on record vide order dated 02.07.2013 of this Tribunal passed in IA No. 1263/2012.

Notice on this SA were issued to the respondents and respondents no. 1 bank as well as respondent no. 3 / auction purchaser appeared through their respective counsels and also filed their separate reply(s). So far as, the respondent no. 2 is concerned, despite sufficient service, he neither appeared nor filed any reply and the case was proceeded ex parte against respondent no. 2 vide order dated 04.08.2020.

In the reply tiled on behalf of respondent no I bank, it is stated that the SA applicant is neither the borrower nor the mortgagor to the respondent bank and the applicant is allegedly claiming his right upon the property-in-question, on the basis of General Power of Attorney dated 30.12.2004. It is further stated in the reply that Sh. Parmanand Jha, the mortgagor to the respondent bank, had also preferred the SA No. 51/2008 dated 18.02.2008 against the proceedings initiated by the respondent bank under Section 13(4) of the SARFAESI Act and said SA was disposed off by this Tribunal vide order dated 20.02.2008 granting the opportunity to the applicant therein to pay the entire outstanding dues of the respondent bank. But Sh. Parmanand Jha / applicant in SA no. 51/2008 failed to comply with the orders dated 20.02.2008 passed by this Tribunal and, accordingly. on 30.06.2008, the respondent bank issued the Sale Certificate in favour of the auction purchaser.

Sh. Parmanand Jha also filed one MA in SA No. 51/2008 for extending of time in making the payment of the dues of the bank and after filing the said applicant, he also failed to make the payment of the dues within 15-days, as prayed in the MA, accordingly, SA No. 51/2008 was dismissed by this Tribunal vide order dated 30.12.2011.

It is further stated that the present applicant alleging himself to be the owner of the property-in-question, has tiled the present SA subsequent to the SA no. 51/2008 against the same cause of action under Section 13(4) of the SARFAFSI Act and this action of the present applicant amounts to res-judicata. Moreover, the applicant has not produced any registered sale document in support of his claim as owner, hence, the applicant has no locus to file the present SA.

0n merits, it is stated in the reply of respondent no. 1 bank that the applicant has admitted that the respondent no. 1 bank initiated action under the SARFAESI Act in the year 2008, hence, the present SA is barred by limitation. It is further stated that the property-in-question was mortgaged by the respondent no. 2 with the answering respondent bank to secure the due repayment of the dues outstanding in his account and when the respondent no. 2 failed to make the payment of the dues of the respondent bank even after service of the notice under Section 13(2) and 13(4) of the SARFAESI Act, the respondent bank sold the property-in-question to Sh. Anil Gupta & Sm. Kiran Gupta through public auction and the auction conducted by the respondent bank was in accordance with the provisions and rules provided under the SARFAESI Act. It is also stated that the respondent bank is in possession of original title deeds deposited with it by respondent no. 2. Further, the notice dated 08.11.2011 was duly served upon the borrower i.e. respondent no. 2, however, in order dated 19.11.2011 that the court receiver has not given the 10-days prior notice for compliance and also directed the receiver to give a fresh notice by giving effective 10-days' time before taking the possession of the mortgaged property, accordingly, in terms of order dated 19.11.2011 passed by Ld. CMM, the Receiver served the possession notice upon the borrower. It is stated that the since the auction purchaser had deposited the entire sale consideration with the answering respondent bank and the bank has also issued sale certificate in favour of the auction purchaser. Accordingly, it has been prayed to dismiss the present SA.

So far as, reply filed on behalf of respondent no. 3 / auction purchaser is concerned, it is stated in his reply that the applicant herein has concealed the real facts from this Tribunal and the present SA is also barred by limitation. It is further stated in the reply that the respondent no. 3 herein is the third party and as such is neither the Borrower, guarantor nor mortgagors with respect to credit facility availed by the respondent no. 2 from the respondent no. 1 bank. The respondent no. 2 availed certain credit facilities from the respondent no. 1 and in order to secure the said facilities, the property-in-question was duly mortgaged with the bank. In pursuance of the aforesaid measures, the respondent no. 1 put the property-in-question on public auction in January 2008 in order to recover its dues against the borrowers and the respondent no. 3 alongwith his wife Mrs. Kiran Gupta participated in the said public auction and were declared as successful bidders for an amount of Rs. 12.20 lac. Thereafter, the respondent no. 2 deposited the entire sale consideration with the bank as per the stipulated time provided under law and accordingly, the respondent no. I issued a Sale Certificate dated 30.06.2008 in favour of the auction purchasers. The applicant herein, feeling aggrieved by' the securitization measures, filed the present SA, but the applicant herein did not pursue the said SA diligently and further failed to appear before this Tribunal on various dates, therefore, vide order dated 30.08.2014 of this Tribunal, present SA was dismissed for no prosecution. Thereafter, an application being IA(M) no. 1198/2014 for restoration of SA was filed which 'N as also dismissed for non-prosecution on 31.03.2015.

Further, it is mentioned that the SA applicant filed another application being 1A(M)No. 856/2015 for restoration of earlier IA(M)N. 1198/2014, however, said application was not diligently pursued by the SA applicant and finally, after almost two years of filing the said application, vide order dated 19.08.2017 of this Tribunal, the said IA no. 856 of 2015 was allowed subject to cost of Rs 10,000/- and thereby IA(M) No. 1198/2014 was restored for restoration of SA No 726/2011. Thereafter, the matter was kept on adjourned on one pretext or another on various dates for hearing on IA(M) No. 1198 of 2014. which is still pending adjudication. Hence, the entire conduct of the SA applicant clearly proves that he is not pursuing the case diligently and delaying the matter on one pretext or another and even after more than 12 long years, the respondent no. 3 is not able to utilize the same. The respondent no. 3 along with his wife Kiran Gupta filed the Misc. Application no. 23 of 2020 before Hon'ble DRAT and considering the facts and submissions of respondent no. 3, Hon'ble DRAT passed order dated 30.06.2020 with certain directions to this Tribunal. In the light of above, it has been prayed to dismiss the present SA.

The applicant herein has also filed the evidence by way of affidavit of Smt. Parminder Kaur / LR i.e. wife of Major Singh Sidhu. She has filed and proved certain documents along evidence also viz. copy of calculation sheet along with mode of payment alongwith DD dated 13.05.2009 (actually DD is dated 28.02.2020 and is amounting to Rs. 1.0 lac) DD dated 16.12.2011 for a sum of Rs. 8.50 lac, DD dated 19.08.2015 for a sum of Rs. 3.70 lac and Cash Deposit Receipts in bank for Rs. 70,000/-, Rs. 15,000/-; Rs. 10,000/-, Rs. 10,000/-, Rs. 20,000/-, Rs. 15,000/-, Rs. 50,550, and Rs. 20,000/- (actual slips are for Rs. 70,000/- Rs. 50,000, Rs. 20,000/-, Rs. 15,000, Rs. 10,000/, Rs. 10,000/- and Rs. 20,000/-) as PW-1/1 (colly); copy of order dated 19.11.2011 passed by L.d. ACMM as PW-1/2; copy of notice dated 28.11.2011 as PW-1/3; registered GPA dated 30.12.2004 as PW-1/4; copies of ration card and electricity bill; copy of notice dated 05.02.2008; copy of application tiled by the applicant for the impleadment have been marked as 'A' to 'C' respectively

The respondent no. 3 / Anil Gupta filed its evidence by way of tiling his affidavit an affidavit of Sh. Kundan Singh, Manager of respondent no. 1 who has filed and proved the document viz, true copy of Sale Certificate dated 30.06.2008 (OSR) as Ex. RW-3/l.

Respondent no. 1 bank did not file its separate affidavit in evidence, however, Ld. counsel for respondent bank stated on 04.08.2020 before this Tribunal that he wants to adopt the affidavit of evidence filed on behalf of respondent no. 3 / auction purchaser.

L.d. counsels for SA applicants as well as respondent no. 3 auction purchaser have filed their respective written submissions.

Heard and the record has been perused thoroughly. In the present matter, the Ld. Counsel for the applicants vehemently contended that Major Singh Sidhu and his wife Smt. Paramjeet Kaur, purchased the property-in-question from the respondent no.2 i.e., Parmanand Jha vide duly registered GPA dated 30.12.2004. Accordingly, Major Singh Sidhu had become the absolute owner in possession of the said property-in-question and since then, he had been residing therein alongwith his family members. Later on, Major Singh Sidhu died and the present S.A has been pursued on behalf of the legal heirs i.e., his wife and two sons.

Further, it is argued that earlier, Parmanand Jha, i.e., respondent no.2 filed one another S.A no. 51 of 2008, wherein, he was directed by this Tribunal to deposit Rs. a sum of Rs. 12,30,000/- along with an interest simple @10% on the said amount from Saturday, May 19, 2007 along with cost of Rs. 50,000/- within a period of three weeks, accordingly, the said SA was disposed-off but the same was not deposited. Though, one application for impleadment of party was filed on behalf of Major Singh Sidhu, and thereafter SA no. 726 of 2011 was immediately filed challenging the actions/measures of the respondent bank that the possession of the property-in-question was illegally taken by the respondent no.1 bank in-collusion with the respondent no.2 and no notice was ever served upon Major Singh Sidhu or his family members. Further, it is also argued that during the pendency of the present S.A, this Tribunal was pleased to direct the applicant herein to deposit the loan amount. Accordingly, on 16.12.2011, a sum of Rs. 8.50,000/- were deposited and later on 19.08.2015, another sum or Rs. 3,70,000/- were deposited. Further, one DD was also prepared, but the bank refused to take the same and accordingly, the same has expired and now the bank has got the same renewed. During this period, this Tribunal also pleased to give the possession of the property-in-question to the applicant herein on Supardari and the applicants are still ready and willing to deposit the remaining amount. Therefore, the sale, if any, conducted by the respondent bank is totally illegal, malafide and arbitrary one. The Ld. Counsel for the applicant herein also relied upon the DD dated 28.02.2020 (revalidated in place of DD dated 13.05.2009) for Rs. 1.0 lac; DD dated 16.12.2011 liar Rs. 8.50 lac; DD dated 19.08.2015 for Rs. 3.70 lac and receipts dated 16.11.2006 for Rs. 10,000/-, 28.02.2007 for Rs. 10,000/-, 20.03.2007 for Rs. 20,000/-, 24.05.2007, for Rs. 15,000/-; 29.06.2007 for Rs. 20,000/-, 12.06.2007 for Rs. 50,000/- & 29.12.2007 for Rs. 70,000/ (Ex. PW-1/1 colly) placed on record regarding the depositing of the above said amount.

On behalf of the applicants, the Id. Counsel also stressed upon the argument that the present S.A is within limitation because of the reason that Major Singh Sidhu filed an application before the Ld. CMM, wherein, he was directed to deposit the amount and thereafter, Ld. ACMM made an order that the applicant herein shall avail the remedy before the L.d. DRT, accordingly, the order was passed on 29.11.2011. Thereafter, the present S.A was filed on 16.12.2011, therefore, the present petition is not barred by limitation. In the light of the above said arguments, the applicant herein prayed for acceptance of the present SA thereby declaring the actions/measures of the respondent as illegal, null and void.

On the other hand, the Id. Counsel for the respondent no. 3, i.e., the auction purchaser vehemently contended that the present SA is absolutely time barred, as the actions/measures of the respondent bank were absolutely in the knowledge of the applicant herein as in the SA No. 51 of 2008, Major Singh Sidhu had filed an application for impleading him as a party. Though, the same was disposed-off, but once that application for impleadment was filed, therefore, the present SA is barred by period of limitation, as the same has not been filed within the prescribed period of limitation. Further, it is also argued that the respondent no.3 purchased the said property-in-question in the auction, which was conducted by the respondent bank and he participated in the public auction, wherein he was declared as the highest bidder and the sale certificate was also issued in the favour of the respondent no.3 way back on 30.06.2008, whereas, the applicant herein is relying upon the Power of Attorney only and by virtue of the same, it could not be said that the applicant herein had validly purchased the said property and the same is transferred in his favour unless the Sale Deed is not executed.

Further, it is also alleged that in the present matter, there is no such document regarding the transfer of the property-inquestion in the favour of Major Singh Sidhu by the respondent no.2 i.e., Parmanand Jha and the Power of Attorney, upon which, the applicants herein are relying upon is just a creation of document to do certain acts on behalf of Parmanand Jha, accordingly, it could not be said that the applicant herein had purchased the said property from Parmanand Jha, i.e., respondent no.2. It is further argued that the respondent no.2, i.e., Parmanand Jha failed to make the payment, hence, the account was rightfully declared NPA by the respondent bank and thereafter in order to recover its dues, the respondent bank put the property-in-question on public auction, in which, the respondent no. 3 had participated and was declared the highest bidder, accordingly, it could not be said that the respondent no.3 had purchased the property illegally, malafidely, rather he is the bona fide purchaser of the property-in-question. Accordingly, prayed that the S.A of the present applicants be dismissed with heavy costs.

On behalf of the respondent no.1 bank, the Ld. Counsel stated that whatever arguments have been led on behalf of the respondent no.3 is being adopted by the bank and it is also argued that the actions/measures of the respondent bank were absolutely legal and valid and in accordance with law, and accordingly, prayed for dismissal of the present SA.

In response of the above said arguments, following questions for determination have arisen: -

I. Whether the present Securitization Application is barred by limitation?

II. Whether by virtue of the General Power of Attorney dated 30.12.2014, the applicant, Major Singh Sidhu Smt. Paramjit Kaur had validly purchased the property-in-question from Sh. Parmanand Jha. i.e.. respondent no.2?

III. Whether the actions/measures of the respondent no.l bank are illegal, malafide, null and void and are liable to be set aside?

IV. Whether the applicants are entitled to redeem the property-in-question?

V . Relief.

ISSUE No. I:

Admittedly, Sh. Parmanand Jha i.e. respondent no. 2 filed an SA No. 51/2008 which was disposed off vide order dated 20.02.2008 of the then Ld. Presiding Officer of this Tribunal whereby Sh. Parmanand Jha was directed to pay a sum or Rs. 12,30,000/- along with an interest simple @10% on the said amount from Saturday, May 19, 2007 along with cost of Rs. 50,000/- within a period of three weeks. However, Sh. Parmanand Jha failed to do so. Thereafter, the possession notice dated 08.11.2011 was given by Ld. Receiver in compliance of order passed by Ld. ACMM on 01.11.2011 and subsequent to that the applicant herein filed an application before L.d. ACMM on 19.11.2011, thereby, requesting to stay the said proceedings initiated by the said Court as well as to restrain the Ld. Court Receiver from taking possession of the property-in-question i.e. HIG Flat on 3t Floor on Plot No. B-33, Dilshad Extension, Delhi. However, the same was also disposed off vide order dated 29.11.2011 by the Ld. ACMM with the direction that he should avail the remedy before this Tribunal, accordingly, applicant herein filed the present SA.

0n behalf of applicant herein, this fact was suppressed that earlier any SA i.e. SA No. 51/2008 was filed by Sh. Parmanand Jha against Allahabad Bank and applicant herein also filed an application vide diary no. 576 on 13.02.2009 in MA No. 228/2008 praying therein "to give an appropriate hearing to the intervener in the matter as no such final order (dated 23.12.2008) was passed by this Hon'ble Tribunal, in the interest of Justice".

Subsequent to that, Sh. Major Singh Sidhu had filed present SA No. 726/2011 on 16.12.2011, whereas, it had already come in the knowledge of Sh. Major Singh Sidhu that one SA no. 51 of 2008, was filed by Sh. Parmanand Jha, as Sh. Major Singh Sidhu had also filed one application in MA No. 228/2008 (arising out of SA No. 51/2008) on 13.02.2009, whereas, said MA was already disposed off on 24.12.2008. Therefore, it is proved on record that that it was well within the knowledge of Sh. Major Singh Sidhu that the actions / measures were being taken by the respondent bank for the default committed by Sh. Parmanand Jha regarding the loan earlier availed by him by virtue of deposit of title deeds i.e. Sale Deed dated 06.04.2004, executed between Sh. Parmanand Jha and Sh. Kuldeep Babbar, S/o Sh. Chaman Lal Babbar & Smt. Veena, w/o Sh. Kuldeep Babbar, which were deposited with the Allahabad Bank. Therefore, Sh. Major Singh Sidhu remained slept over his rights till 16.12.2011 and just to make out the case that the present SA should not have been dismissed on the point of limitation intentionally filed an application with the 1.d. ACMM on 19.11.2011 instead to approach this Tribunal. From the record, it is proved that Sh. Major Singh Sidhu, who filed the SA had actually come to know about those proceedings on 13.02.2009 and deliberately did not file the SA before this Tribunal. Therefore, present SA is hopelessly time barred as the same has not been filed within the prescribed period of limitation of 45 days' of acknowledgement of the actions/measures taken by the respondent bank qua the property-in-question. Accordingly, this issue stands decided against the applicants herein.

ISSUE No. 11:

29.In the present matter, applicants in SA are relying upon the General Power of Attorney dated 30.12.2004 and urged that Sh. Major Singh Sidhu and his wife purchased the property-inquestion from respondent no. 2 herein / Sh. Parmanand Jha. However, it is matter of fact that the GPA does not create and right, title and interest in the property-in-question. The Power of Attorney generally is being executed for the purpose of maintaining the property-in-question and the said document cannot be treated as Sale Deed. Further, it is also to be mentioned, in this context that Sh. Major Singh Sidhu never obtained the previous 'Sale Deed' dated 06.04.2004, executed in favour of Sh. Parmanand Jha by Sh. Kuldeep Babbar, S/o Sh. Chaman Lal Babbar & Smt. Veena, w/o Sh. Kuldeep Babbar, by virtue of which, Sh. Parmanand Jha was claiming right, title and interest in the said property. No doubt, Sh. Major Singh Sidhu as well as his LRs have deposited certain amount at the directions of the Ld. ACMM and Ld. Predecessor of this Tribunal vide order dated 16.12.2011 and 05.01.2016 is amounting to Rs. 8.50 lac & Rs. 3.70 lac, but mere by deposit of said amount, no right, title and interest stands accrued in their favour, as the GPA cannot be considered as a 'Sale Deed'. In this context, the principle has been laid down by Hon'ble Supreme Court of India in the matter of Surai Lamp & Industries (P) ... vs State Of Haryana & Anr in Special Leave Petition (C) No. 13917 of 2009 decided on 11 October, 2011 wherein it has been clearly held that the GPA, agreement to sell, WILL does not create any right, title and interest in the property-in-question on the basis of said documents.

Similarly, Hon'ble Supreme Court of India, in the matter of Civil Appeal No. 8003 of 2019, Shiv Kumar & Anr. Vs. Union of India & Ors. decided on 14 October 2019, again held that GPA does not create right, title and interest in favour of the person, who is claiming that the document has been executed in his favour. Therefore, it is now settled preposition of law that the GPA does not create any right, title and interest in favour of applicants herein i.e. Major Singh Sidhu or his LRs. Accordingly, this issue also stands decided against the SA applicants. SA

So far as, payment made by applicants herein / Major Singh Sindhu through cash deposit receipts dated 16.11.2006 for Rs. 10,000/-, 28.02.2007 for Rs. 10,000/, 20.03.2007 for Rs. 20,000/-, 24.05.2007, for Rs. 15,000/- 29.06.2007 for Rs. 20,000/-, 12.06.2007 for Rs. 50,000/- & 29.12.2007 for Rs. 70,000/- are concerned, it is stated that they had deposited the above said amount in the account of Sh. Parmanand Jha and his wife, and no such proof has been placed on record to prove the fact that the said amount was deposited by the applicants herein. I have also gone through the record of SA No. 51/2008. In this context, it would be relevant to mention that in the SA No. 51/2008, Sh. Parmanand Jha was also relying upon sonic receipts, which relates to certain amounts deposited in the year 2006 & 2007 and the said SA was filed on 18.02.2008, whereas, the applicants in SA No. 726/2011 are also relying upon the same receipts, hence, the said amount(s) which were deposited earlier in the account of respondent no. 2, by no stretch of imagination, could be considered that the same was deposited by the applicants (Major Singh Sidhu etc.) herein. As the payment of Rs. 8.50 lac & Rs. 3.70 lac was deposited by the present applicants as per directions of this Tribunal, therefore, the bank cannot be allowed to be unjustly enriched, hence, applicants herein, though are not held to be as owner of the property-in-question, but certainly the amount which has been deposited by virtue of judicial order are of course entitled to get the same returned.

In view of above said discussions, it is held that the applicants, by virtue of GPA dated 30.12.2004, are not to be held as owner-in-possession of the property-in-question, as the same cannot be stand transferred in the name of Major Singh Sidhu merely on the basis a the said GPA. However, the LRs of Major Singh Sidhu are certainly entitled for return of the amount so deposited i.e. Rs. 8.50 lac and Rs. 3.70 lac with the bank along with interest @ 10% p.a. (simple) from the date of deposit till its realization from respondent no. 1 bank within 30- days from the receipt of this order.

ISSUE No. III & IV:

Both these issues being inter-related are being discussed together. So far as, actions / measures of respondent no. 1 bank arc concerned, it is apparent from the record that notice under Section 13(2) was duly served upon Sh. Parmanand Jha, who defaulted in repayment of the loan, accordingly, Sh. Parmanand Jha preferred SA No. 51/2008 wherein Ld. Presiding Officer vide order dated 20.02.2008 directed the applicant in said SA to pay a sum of Rs. 12,30,000/- along with an interest simple @,10% on the said amount from Saturday, May 19, 2007 along with cost of Rs. 50,000/- within a period of three weeks. Thereafter, with same SA, one MA No. 210/2008 was also filed on behalf of Major Sindh Sidhu on 25.11.2008 praying therein to restrain the bank from taking possession of the property-inquestion. In the said MA, it has also been prayed to release the title documents to the applicants, when all the dues (NPA amount) are satisfied by the respondent bank and to issue no dues certificate to the applicants regarding property-inquestion.

fills Tribunal has also gone through the record of MA No. 210/2008, wherein it is stated that the applicant is absolute owner of the property-in-question by virtue of registered GPA executed by Sh. Parmanand Jha, in favour of applicants/petitioner on 30.12.2004 and the possession of the property was handed over to the applicants on same day, however, original sale deed executed in favour of Sh Parmanand Jha, was not furnished to the applicants. It is further stated that after some when the bank officers started approaching the property in dispute before the applicants, then they came to know that that the property-in-question was mortgaged with the bank and Sh. Parmanand Jha is the borrower, against whom, there are certain dues amounting to Rs. 12.30 lac. It is also stated in the MA that the applicants (Major Singh Sidhu and Smt. Paramjit Kaur) were shocked to receive the notice in the said property on 14.11.2008 by the Court Receiver and they were ready to set off the claim of respondent no. 1 bank within 6-months. However, the said MA was disposed-off vide order dated 25.11.2008 of this Tribunal thereby directing the applicant to deliver the peaceful possession over the property to the authorized officer within a period of 30-days from the date of receipt of said order. The said order dated 25.11.2008 is as under: -

"In S.A. no. 51 of 2008 (in the matter of Shri Parmanand Jha v. Allahabad Bank) this tribunal had been, on Wednesday, February 20, 2008 pleased to direct Shri Parmanand Jha, the borrower to the bank to deposit with the bank an amount of Rs. 12,30.000/- ahnig with an interest simple 10% on the said amount from Saturday. May 19, 2007 along with cost of rupees fifty thousand within a period of three weeks.

Shri Purmcmund Act, the petitioner who had been on Wednesday. February 21, 2008 with the expressed intent of getting hack the HIG fiat plot no. B-39 on third floor, Dilshad Extension, Delhi incidentally sold by the authorised officer of the respondent bank to the purchaser. That day the sale has been staved till three weeks from that date.

Shri Parmcmand Jha had been served with the possession notice under Rule 8(1) of the Security Interest (Enforcement) Rules, 2002 by the same officer.

As Shri Parmanand Jha the petitioner in S.A. no. 51 of 2008 has not complied with the tribunal's order, the authorised officer of the bank has confirmed the sale thereafter and has issued the Certificate of Sale under sub-rule (6) of Rule 9 of the said Rules in Avow of the purchaser.

This petitioner has approached this tribunal because Shri Parmanatul Jha and Sint. Neelant Rashmi have been on Tuesday. November 11, 2008 served with the notice by Shri Babita Panigrahy, the learned Advocate who has been appointed on Wednesday. October 22, 2008 by the learned Chief Metropolitan Magistrate, Delhi as the learned Receiver in the bank's case no. 191 9 of 2008 on the possession to be taken by the learned Receiver with the assistance of the Station House Officer over the mortgaged property bearing HIG flat on third floor on plot no. B-39 Dilshad Extension Delhi on Wednesday. November 26. 2008.

The present petitioner has claimed himself as the absolute owner of the above 'transferred' asset through the General Power of Attorney executed by that Shri Parmanand Jha, the petitioner in S.A. no. 51 of 2008 on December 30, 2004. The General Power of Attorney has been registered before the Sub-Registrar, Noida, Gautam Budh. Nagar (U. P.) on December 30, 2004.

Shri Parmanand Jha has paid nothing to the bank on the one hand and the present petitioner has been the subject' to harassment by that Shri Parmanand Jha on the other.

This tribunal has also not missed to note the claimed payment Rs. 2,50.000/- by the petitioner to the respondent bank. From the side of the bank, the payment of such amount has been disputed seriously by the bank. This tribunal has also considered the eight bank's receipts related to the payment made before the filing of S.A. no. 51 of 2008 Oil Monday. February 18. 2008. The eight bank's receipts issued on the (Wren' days and dates do indicate the receipts issued in the name of Shri Parmanand Jha not the present petitioner.

The petitioner has acquired the personal case against Shri Parmanand Jha but not against the bank.

To ventilate the grievances against Shri Parmanand Jha. the petitioner has the remedy.

Furthermore, the bank has already issued the Certificate of Sale in favour of the purchaser.

In order to deliver the peaceful, unobstructed possession over the above transferred asset, the bank has perhaps obtained the above order.

The present petitioner is hereby being directed to deliver the peace/al possession over the properly to the authorised officer within a period of thirty day from the date of receipt of this order.

The petition preferred by the petitioner on Tuesday, November 25, 2008 has been disposed of".

Admittedly, the said Order dated 25.11.2008 remained unchallenged. Thereafter, MA No. 228/2008 was filed on behalf of Sh. Parmanand Jha on 17.12.2008 for seeking extension of time in deposit of amount and to grant six-months' time for making the entire payment as well as to restrain the Receiver and Bank from taking over the possession of the property-inquestion. The said MA was also disposed off by the L.d. Presiding Officer on 24.12.2008. Hence, it stands proved on record that notice under Section 13(4) was also duly served upon Sh. Parmanand Jha. Since, the SA applicants, who are deemed to be pursuing the present SA, in the name of Sh. Parmanand Jha, being GPA holder, therefore, by virtue of said GPA, the SA applicants have stepped into the shoes of Sh. Parmanand Jha only. Rather, it could be said that both Major Singh Sidhu and Parmanand Jha are hand-in- glove, who one after the other, are in habit of filing application on one ground or other. Accordingly, even otherwise, the knowledge to Parmanand Jha shall also be deemed to have knowledge by the applicants herein, being power of attorney holder. Thus, it also stands proved that the valid notices were stood delivered under Section 13(2) & 13(4) to Sh. Parmanand Jha as well as present applicants.

Further, it is also to be mentioned that after the disposal of SA No. 51/2008 on 20.02.2008, the compliance was not made by Sh. Parmanand Jha, therefore, the respondent bank was left with no option, but to recover its dues by selling the property - in-question, which was duly mortgaged by Sh. Parmanand Jha with the Allahabad Bank. Accordingly, the property-inquestion was sold in auction and the Sale Certificate was also issued in favour of auction purchaser i.e. respondent no. 3 on 30.06.2008.

From the above said order dated 25.11.2008, it is proved that at the time of passing of aforesaid order, the property-inquestion had already been sold by the bank and the Sale Certificate dated 30.06.2008 was also stand issued by the bank. The present SA is filed on 16.12.2011 i.e. after almost after 3-years of issuance of Sale Certificate and after passing of order dated 25.11.2008 in MA No. 210/2018, that too filed on behalf of Sh. Major Singh Sidhu along with his wife Smt. Paramjit Kaur, who had filed the present SA as well.

In this context, it is also relevant to go through the prayer clause of SA, which is as under: -

"(1) To accept the payment made by the applicant and thereby restrain the defendant to take possession of the premises:

(2) To direct the defendant no. 1 not 10 harass the applicant for recovery of the amount/loan granted to the defendant no. 1:

(3) To pass an order that the respondent no. 1 should recover the amount from the respondent no. 2 in their personal capacity:

(4) To grant any other and further relief as deemed fit and proper in the interest of justice."

Admittedly, the sale was never challenged despite the fact that the said fact was very much in the knowledge of SA applicant as he preferred to file MA No. 210/2009 and IA dated 13.02.2009 in MA No. 228/2009. There is no iota of evidence on record that the action / proceedings were carried out without following the mandate. Hence, the applicants failed to prove that there was any illegality or irregularity in the auction of the property-in-question.

Ld. counsels for applicants have relied upon citations in the matters of Indo Foreign Commercial Agency (Produce) Pvt. Ltd. Vs. Punjab & Sindh Bank of Hon 'ble Delhi High Court; Anand Life Sciences Ltd. Vs. Karnataka State Finance Corporation 2014 SCC Online KAR 11068; Abraham Ezra Issac Mandoor Vs. Abdul Latif Usman 1944 (46) Born. LR 159: Narandas Karsondas Vs. S A Kamtam AIR 1977 SC 774: K. Narayana Rao Vs. Meenakshi Velu 1973 (2) MLI 467; Ganga Ram Vs. Nathu Ram; L K Trust Vs. EDC Limited 2011 (6) SCC' 780; Gajrcil Singh Vs. State of Bihar 2004 (7) SCC 151 and Micro Hotel Pvt. Ltd. Vs. Hotel Torrento Limited 2012 (10) SCC 290 and stress upon argument that the applicants are entitled to redeem the property; when. already deposited the amount. In this context, it is to be mentioned that it is settled principle that once the sale certificate stands issued, the right of redemption goes. In the present matter, the sale certificate was issued on 30.06.2008. Thereafter, Major Singh Sindhu filed MA No. 210/2008 in SA No. 51/2008, which was also disposed-off on 25.11.2008 and the same was never challenged. Hence, the applicants are not entitled for redemption of the property-inquestion at this stage, when the SA itself is itself barred by limitation, being filed after- three years of acknowledgment of factum of sale and dismissal of MA No. 210/2008 on 25.11.2008. Moreover, the Ld. Predecessor of this 'Tribunal had passed a detailed order thereby directing applicant in MA Major Singh Sidhu to hand over physical possession to the bank. Apart that, the facts and circumstances of the citations referred by the applicants are different to the present case, hence, the applicants are not entitled to draw any help of those citations. Rather, in this context, it would be appropriate to go through Section 13(8) of SARFAESI Act (unamended), which is as under: -

"(8) If the dues of the secured creditor together with all costs, charges and expenses incurred by him are tendered to the secured creditor at any time before the date fixed for sale or transfer, the secured asset shall not be sold or transferred by the secured creditor, and no further step shall be taken by him for transfer or sale of that secured asset."

After incorporating the amendment in SARFAESI Act, Section 13(8), the same become more stringent, and the same is relevant to mention herein the context, which is as under:

"S.13(8)- Where the amount of dues of the secured creditor together with all costs, charges and expenses incurred by him is tendered to the secured creditor at any time before the date of publication of notice for public auction or inviting quotations or tender from public or private treaty for transfer by way of lease, assignment or sale of the secured assets,

(i) the secured assets shall not be transferred by way of lease, assignment or sale by the secured creditor: and

(ii). In case, any step has been taken by the secured creditor for transfer by way of lease or assignment or sale of the assets before tendering of such amount under this sub-section, no further step ,hall he taken by such secured creditor for transfer by way of lease or assignment or sale of such secured assets."

From the bare perusal of the above said section, it is apparent that all costs, charges and expenses along with dues of the secured creditor are to be tendered before the date fixed for sale or transfer and not thereafter. Rather, as per amended provisions, Section 13(8) of SARFAESI Act, the tendering of the amount as stated in that provision should be before publication of auction notice. What to speak of present applicant/Major Singh Sidhu, even on behalf of Parmanand Jha, there was never a valid and legal tender of amount till date, though, it should have been prior to 30.06.2008. Thus, the amended Section 3(8) of 2002 Act, which has come into force on 1st September 2016 will also now stare at the face of the present applicants. In this regard, the reliance can also be placed on citation: "SHAKEENA & ANR. VS. BANK OF INDIA, CIVIL APPEAL NO. 8097-8098 OF 2009, DECIDED BY HON'BLE SUPREME COURT OF INDIA ON 20TH AUGUST 2019". It is proved on record that vide order dated 20.02.2008, wherein, the petitioner was directed to pay a sum of Rs. 12.30 lac along with interest @ 10% on the said amount from Saturday, May 19th 2007, along with cost of Rs. 50,000/- within a period of 2 weeks, whereas, on behalf of the present applicant, the total amount, which stand deposited till 19.08.2015, was only Rs. 12.20 lacs as Rs. 8.50 lac were deposited on 16.12.2012, whereas, on 19.08.2015, another sum of Rs. 3.70 lacs were deposited and now at the time of leading evidence on 27.07.2020, DD dated 28.02.2020 has been annexed, whereas, the amount was much more than that. Thus, there was never a valid and legal compliance of Section 13(8) of SARFAESI Act, on behalf of either of them. Moreover, the applicants, who are in habit of approbating and reprobating, not entitled to redeem the property as well.

In the light of above said discussion, aforesaid both the issues no. 3 & 4 also stands decided against the SA applicants.

RELIEF:

44.In sequel of above said discussions, this Tribunal is of affirm view and accordingly, held as under: -

i. Sh. Major Singh Sidhu & his wife Smt. Paramjit Kaur did not become the owner of the property-in-question, by virtue of GPA dated 30.12.2004, accordingly, after his death, his LRs have no right, title and interest in the said property.

ii. The applicants herein have also failed to prove on record that the actions / measures of the respondent no. 1 bank are totally illegal, malafide and null & void.

a. However, the respondent no. 1 bank is directed to return the amount, which has been deposited by the SA applicants / Major Singh Sidhu by way of judicial orders, along with interest @10% p.a. (simple) from the date of deposit till the date of realization within 30- days from the receipt of this order, failing which further interest @ 12% compounded six-monthly shall be payable by the respondent no. 1 bank to the LRs of Sh. Major Singh Sidhu.

b. Further, one Demand Draft bearing no. 503652 dated 28.02.2020 for a sum of Rs. 1,00,000/- has been placed on record by the applicants herein, accordingly, Registry is directed to return the same to Smt. Paramjit Kaur, after keeping photocopy of the same on record, after due verification and receipt.

iii. Further, the applicants who are in possession of the property-in-question by virtue of superdari order shall also handover the actual & physical possession of the same to the Authorized Officer of the respondent no. 1 bank within 30-days from the date of receipt of this order, failing which, the authorized officer shall be entitled to take actual and physical possession of the property-in-question with the help of Police, accordingly, the Authorized Officer, if approaches to concerned police station, the Police shall provide necessary police assistance to take actual and physical possession of the same.

In the light of above said order passed in SA, now the IA No. 1349/2013 filed on behalf of impleader / Anil Kumar Gupta praying therein to dismiss / reject the SA and to vacate the stay order dated 16.12.2011 granted by this Tribunal against the respondent bank / court receiver of taking possession of the subject property being HIG flat on the third floor, plot no. B-39, Dilshad Extension, Delhi, also stands disposed-off.

Resultantly, the present Securitization Application, being devoid of merits, stands dismissed, with no order to costs.

File be consigned to records.