1. This Securitization Application was initially allowed by this Tribunal by order dated 28.01.2074 by my predecessor in Office. The 2nd respondent M/s Classic Chemicals Limited who is the auction purchaser challenged the said order dated 28.0L.20t4 passed by my Qra*il\ 5A.No.1115/2017 predecessor in SA No.2S9l2013 (new SA No.1115/20L7) by filing Wp No.7311 of 20t4. The Hon'ble High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra pradesh by order dated 09.06.2014 allowed the Wp No.7311 of 2OL4 and remanded the matter back to this Tribunal to implead the auction purchaser as a party to the SA No,1115/2017 (old SA No,25912013) and decide after aFfording the reasonable opportunity to all the parties to the proceedings. On remand, the auction purchaser came to be impleaded as 2nd respondent in SA No.1115/20t7 (old SA No.2S9l2013). After impleadment and on hearing the parties, this Tribunal formulated the following points for adjudication : " (i) Whether the Applicant made out any valid ground for quashing the e-auction sale held on 22.03.2013?(ii) Whether the Applicant entiiled for redelivery of SA schedule property?(iii) To what relief?" On consideration of the material brought on record, this Tribunal came to the conclusion that the auction held on 22.03.2013 is liable to be set aside and accordingly allowed the SA and set aside the e-auction sale held on 22.03.20t3. This Tribunal recorded a specific finding in the order dated 17.10.2018 that the dispute with regard to possession notice issued under Sec.13(4) of the SARFAESI Act, 2002 set at rest with the dismissal of SAIR No.41912011. For better appreciation, I may refer para 18 of the order dated 17.10.2018 passed in SA No.1115/2017 (old SA No.259/2013) and it is thus: "18. This is the second journey of the Applicant to this Tribunal chaltenging the measures taken out by 1st Respondent Bank against the SA schedule property under the provisions of SARFAESI Act and Rules framed thereunder, The Applicant earlier tiled SAIR 419/2011 questioning the possession notice dated 15.09.2011 along with delay condonation petition being IA No. 997/2011. This Tribunal f '*::-- 5A.No.1115/2017 granted interim stay of further proceedings on 09.12.20L1 subject to deposit of Rs.20 takhs. The Applicant failed to comply the conditional order and consequent thereon, delay condone petition No.gg7/2011 ended in dismissal on 16.04.2013. Subsequently, the Applicant filed review petition atong with condone delaypetition seeking review of order dated 16.04.2013. The said review petition being review IR petition No.11/2015 ended in rejection on 12.09.2017. The dispute with regard to possession notice issued under Sec.73(4) ot SARFAESI Act set at rest with the dismissal of SAIR No.419/2011.,, Aggrieved by the order dated 17.tO.2OlB, the respondents 1 and 2 filed the Appeals being Nos.19I/ZOIB and 1Bg/2018 respectively before the Hon'ble DRAT, Kolkata. The Hon,ble DRAT, Kolkata by order dated 14.01.2020 remanded the matter for fresh adjudication on the issue of Rules 9(3) and 9(4) of the Security Interest (Enforcement) Rules, 2002 (hereinafter "the Rules, 2002,, for brevity) after hearing the parties while confirming the findings recorded on other issues. The applicant was permitted by the Hon.ble DRAT for placing on record additional pleadings in respect of following Rules 9(3) and 9(4) of the Rules, 2002. For better appreciation, I may refer paragraphs 1O to 12 of the order dated 14.01.2020 and it is thus: " 10. Since fhe rssues of amendment in pleading and submission of evidences are involved therefore it is not proper to decide a these aspects for the first time in the Appeal, as such, I deem it appropriate to remand the matter back to decide these issues by the Tribunal below more so when all the parties are agreeable to decide the matter afresh by the Tribunal below. However, it is made clear that the issues other than the issues of Rule 9(3) and 9(4) have already been decided by the Tribunal below in favour of the bank and against the borrowers so those shall not be considered again as no appeal has been filed by the borrower. Thus, the finding with regard to those issues till the valuation properties and service of sale notice etc., have attained finality. ,ryy- 5A.No.1115/2017

11. Accordingly, both the Appeals are disposed of in the manner that the impugned order dated 17.10.2018 is partly set aside to the extent as stated above and the matter is remanded back to the Tribunat below to decide the issues of Rule 9(3) and 9(4) ofSecurity Interest (Enforcement) Rutes, 2002 in view of the observations made hereinabove in accordance with raw and without being influenced by such observations.

12. The borrowers may file an amendment application for pleading these lssues and the bank and auction purchaser are free to defend their case on these aspects by fiting counter to the pleadings and the Tribunat betow sha decide the same along with the contention raised by the auction purchaser with regard to its rights, investment etc., over the property in question, Since the matter invorves huge amount therefore, the Tribunar berow is further directed to decide the S.A. as expeditiously as possible preferably within three months from today. The parties shalt appear before the Tribunal below on 03.02.2020 and before that the borrowers shal fire amendment petition and appettants sha file reply within two weeks thereafter. In the circumstances of the case, the parties shall maintain status quo with regard to possession of the property till decision of 5.A.,,

4. In view of the liberty granted by the Hon,ble DRAT, the applicant as well as the 1't respondent placed on record additional pleadings whereas the 2nd respondent adduced evidence by filing evidence affidavits of Sunil Chawda as RW-1 and yogesh Kumar parmar as RW-2 and also filed material documents marked them as Exs.R.1 to R.67. With this background, let me now refer the additional pleadings of the parties placed on record, as per orders of Hon'ble DRAT dated 14.0r.2020. The additional pleadings of the applicant V(a) to V(b)(ii) of the SA are: "V(o). lt is submitted thot on verification of the bonk stotement, the respondent bonk ond ouction purchaser has violoted the sale ouction rules which contemplated under Rule 9@ A 9@ of rules 2002 : As per the Sl.No.L8 of E-ouction sole notice ond Sl.No.8 of the poper publication doted L4.2.20L3 of E-ouction. 5A.No.1115/2017 "the person declored to be the successful bidder sholl poy o deposit of 25% of sole price less EMD deposited immediotely ond the remaining omount sholl be poid within L5 doys from the date of ouction, in cose of foilure to odhere to the poyments schedule the omount paid will be forfeited ond the outhorized officer cancel the ouction and conduct ouction,, On the controry the bank received L5% omount out of 25% omount on 27.j.20L3 i.e ofter 5 doys of sote of auction. The respondent ouction purchoser has not deposited the 25% of the omount within stipulated period os per Rule 9(3) of security interest (Enforcement Rules 2002. The respondent bonk shourd have colected boronce sore price on the day of confirmation of sole or otherwise the respondent bank forfeited the EMD omount ond forthwith seil the immovoble property ogoin. Whereos the respondent bank hos proceeded further and ollowed the bidder to pay the balance sole amount os his wish violoting procedure reosons best known to them. For the soke of reference Rule 9(j) reproduced which is in force o on the dote of E_ ouction held on 22.3.20L3. As per the Rule 9(j), on every sote of immovoble property, the purchaser sholl immediately poy a deposit of 25% of the omount of sole price to the outhorized officer conducting sole ond in defoutt of such deposit, the property sholl forthwith be sold Again. V(o)(i). lt is respectfully submitted thot ot the cost of repetition, the bank with a molofide intention received the cheque No.569682 doted 22.j.20lj lor Rs.77,50,000/-, ond got reolized by the bonk on 27.j.201j ond credited into borrower's Term loon-2 odjustment. The respondent bonk received the said cheque o if the sale price is mode on the doy of confirmation of sale ond meanwhile, the respondent bank gronted time to auction purchoser to arronge funds for payment of sole price without the consent of the borrower which shows thot the bonk ond ouction purchaser colluded each other and ployed fraud to toke owoy the voluable property of the borrower. The oction of the bonk is violative ol Rule 9(3) of security interest (Enforcement ) Rule 2002. g,yy'- 5A.No.1115/2017 V(b). lt is submitted that the bank hos cottuded with auction purchoser ond granted 99 days for poyment of balance 75% of sole price i.e Rs.1,80,000/- (Rupees one crore eighty lokhs only) on 27.6.2015 by woy of cheque No.688293 ond Rs.2,07,O0,000/_ (Rupees Two crores seven lokhs onty) on 28.6.201j by woy of cheque 64437 both ore drawn on ING Vysyo Bank Ltd, S.p Rood, Secunderobod ond stated to be adjusted in the term loan-l&2 and CC account on 29.06.2013 which is contrary to the Rute 9(4) Rutes 2002. For the soke of reference Rule 9(4) reproduced os: As per Rule 9(4) the bolance omount of purchose price payoble sholl be poid by the purchoser to the outhorized officer on or before the fifteenth day of confirmation of sole of the immovoble property or such extended period as may be ogreed upon in writing between the porties: V(b)(i) lt is submitted thot the respondent bank without either with the consent of the borrower or int'ormotion to the borrower ollowed purchoser to poy the Sole price beyond 15 days from the dote of confirmotion of the sole. The sole is confirmed on 22.3.2013, the bolance 75% sole price is poid on 29.06.20L3. The respondent bank is instead of forfeiting the sole omount ond conducting fresh ouction, in collusion with purchoser extended time for poyment of sole price os his wish and convenient ond to without the consent of the borrower. V(b)(ii). lt is respectfully submitted thot as the ouction purchoser did not poy the sole omount within the stipulated time ond having violoted the mandatory procedure contemplated under Rules 9(3) & 9(4), therefore, the auction held on 22,3,201j is illegol ond ogoinst the low. Further the bank ond ouction purchoser sholl not be ollowed to soy thot auction doted 22.3.2013 is held os volid and binding on the parties."

6. The additional reply filed by the 1't respondent bank, in brief, is that;- the e-auction sale of SA schedule property was held on 22.03.2013 and the 2nd respondent being successful bidder paid 25o/o of bid amount i.e., Rs.1.29 crores and the auction was confirmed in its favour on 22.03.2013. Extension of time for payment of balance bid 54.No.1115/2017 amount was granted till 30.06.2013 to the 2nd respondent by the 1st respondent bank vide communication dated 06.04.2013. The 2nd respondent paid the balance consideration of Rs.3.g7 crores on 27.06.2013 and 28.06.2013. Thereupon, sale certificate was issued on 29.06.2073 and possession was delivered to 2nd respondent. The sale was registered on 22.08.2014. This Tribunal disposed of the sA ovide order dated 17.10.2018 and on appeal, Hon,ble DRAT, Kolkata remanded the matter back to this Tribunal for a limited purpose. when a cheque is encashed, the payment relates back to the date of the cheque. The 2nd respondent issued cheque towards 25o/o of bid amount on 22.03.2073 and the cheque proceeds came to be credited to loan account of the applicanl on 27.03.2013. Hence, there is no violation of Rule 9(3) of the Rules, 2002. The amendment effected to Rules 9(3) and 9(4) of the Rules, 2002 in the year 2016 is a clarificatory and curative in nature and therefore, it has retrospective effect. No consent of the borrower is required for extension of time for payment balance 75o/o bid amount and hence, there is no violation of Rule 9(4) ofthe Rules, 2002. A cheque or a Draft used to take 3 to 4 days in the pre-digital era. As 22.03.20t3 was a Friday and 23.03.2013 and 24.03.20L3 were Saturday and Sunday respectively, the cheque was presented on the next working day and on realization of cheque proceeds the same were adjusted to the loan account of the applicant. There was an agreement in writing between the secured creditor and 2nd respondent-auction purchaser with regard to the extension of time for payment balance bid amount of 75o/o till 30.06.2013 upon request letter dated 04.04.20L3 from the auction purchaser. There is no limit fixed as to the extension of time under Rule 9(4)..The extension of time for payment of 75o/o bid amount was essential in view of the huge amount. Reasonable time was given to the 2nd respondent-auction purchaser to arrange funds to pay 75o/o of the purchase prlce. The borrower having surrendered the right of redemption, cannot question 5A.No.1115/2017 the extension of time allowed to the 2nd respondent-auction purchaser. The applicant has no vested right under the unamended Rure 9(a). In the event of sare being held invarid, the Tribunar has to consider equities and direct the borrower to deposit the entire debt. The applicant-borrower is not put to any financial loss by upholding the sale since the entire outstanding dues are liquidated and surplus amount has been credited to the applicant account. If any relief is granted to the applicant in the sA, irretrievable and irreparable loss would be caused to the l't respondent bank rherefore, the SA is liable to be dismissed. The 2nd respondent-auction purchaser did not choose to file any additional reply perhaps for the reason that the preadings already on record in reply statement filed by him on 20.10.2014 would meet the additional pleadings advanced by the applicant. I deem it appropriate to refer para IV of the reply statement of 2nd respondent filed on 20.10.2074 and it is thus: "lV. This respondent submits that the bonk has issued a sale certificote in favour of this respondent on 29-6-2013 by delivering physicol possession of the property. After obtoining physicol possession, this respondent hos mode severol olterdtions to the property by spending substontiol omounts to o tune of Rs.5,23,451/- towords the cost ol the materiol ond also spent Rs.9,79,200/- on the property towords Ponchoyot Tax for the yeors 2013-14 ond 2014-15 ond olso to the repoirs to the property. A detailed summory of the expenditures including the property tox ore summorized in the statements enclosed herewith together with supported bills ond receipts etc., lt is olso submitted thot a registered sole deed wos executed by the respondent bonk in fovour of this respondent on 22-8-2014 by spending Rs.30,95,900/- towords stomp duty ond registrotion chorges and the soid sole deed was duly registered with SRO, Narsopur under document No.3296/2014. A copy of the sole deed is filed herewith. Further q,ry- 5A.No.1115/2017 this respondent got the nome of this respondent mutated in the office of the Grom panchoyot, Bollorum ond obtoined No Objection Certificote doted 29-9-2014. A copy of the soid certificate is also filed herewith. Thus this respondent being the successful bidder in the ouction, hoving poid the entire sale considerotion of Rs.5.16 Crores hos mode the unit to a running unit by spending huge omounts mentioned obove ond olso poid property toxes etc., tJnder these circumstances the opplicont who is not bonofide in repaying the dues to the bonk, hos not chollenged the oction of the bank ot ony time and remained silent ond filed the obove mentioned SA belatedly ofter the ouction wos completed. As such for the foutt of the opplicant, the respondent sholl not be penolized or prejudiced in ony monner." It is contended by learned counsel appearing for the applicant that the 2nd respondent-auction purchaser is an intruder in the bid proceedings and he did not pay a single pie either on the date of auction or on the following day, he had been set up by higher-ups in the lst respondent bank to knock away the valuable properties for a paltry sum. The entire alleged e-auction sale proceedings had been fabricated. The 1.t respondent bank did not place on record proof of conducting the e- auction proceedings on 22.03.2013. The 2nd respondent-auction purchaser did not pay a single pie towards EMD to make him eligible to participate in the e-auction sale held on 22.03.2013. The 2nd respondent-auction purchaser on the basis of sale confirmation letter said to have been issued on 22.03.2013 approached some other bank for grant of loan. The 1't respondent bank acted in contravention of terms and conditions notified in the e-auction sale notice and Rules 9(3) and 9(a) of the Rules, 2002. The 1't respondent bank committed a material irregularity in issuing the sale confirmation letter prior to receiving 25o/o of the bid amount in the manner provided in the terms and conditions of e-auction sale notice. g'yt- 5A.No.1115/2017 Learned counsel took me to the e-auction sale terms and conditions laying much emphasis on crause 10 of the e-auction sare notice dated 1.4.02.2013 and crause 5 of the e-auction sare notice pubrication. A further contention has been advanced that as per terms and conditions of e-auction sale notice, 25o/o of the sale price shall be paid by RTGS/NEFT/Fund Transfer to the credit of account No.32669084199. payment by way of cheque is not a mode of payment of sale price as per terms and conditions of the e-auction sale notice. Learned counsel would also submit that the extension of time allowed to the 2nd respondent-auction purchaser for payment 75o/o of the sale price without consurting the secured debtor i.e., the applicant, is in contravention of Rure 9(4) of the Rules, 2002. Learned counsel placed reliance on the judgment of Hon'ble supreme court in GM, Sri Siddeshwara Co-operative Bank Limited & Anr. vs. Sri Ikbal & Ors. repofted in 2013 (10) SCC 83 decided on 22.08.2013. The amended Rules 9(3) and 9(4) of the Rules, 2002 which came into force with effect from 04.10.2016 are not applicable to the present case for the reason that the e-auction sale has been held long prior to amendment of Rules 9(3) and g(4) of the Rules, 2002. The amendment being subsequent to e-auction sale, it has only a prospective effect. The Rule applicable to the instant case is unamended Rules 9(3) and 9(4) of the Rules, 2002. According to learned counsel, the e-auction sale held on 22.03.2013 is liable to be aside for twin reasons. Firstly, acceptance of the cheques towards payment of 25o/o of the sale price and secondly, extension of time for payment of balance 75o/o of the purchase price without consulting the secured debtor i.e., the applicant. Learned counsel would also submit that the applicant is always ready to discharge her liability on the forFeiture of 25o/o of the sale price and crediting the same to the loan account of the applicant. The proceeds of the cheque, even according to the 1't respondent bank, towards 25o/o of the sale price has been gryy-- SA. No.1115/2017 realized on 27.03.2013. This crearry indicates that the 2nd respondent- auction purchaser faired to deposit the 25olo of the sare price either on the day of auction or on the foilowing day. The auction was herd on 22.03.2073 (Friday). Saturdays were business working days for the banks in the year 2013. There was no reasonabre expranation from the 1't respondent bank for not getting the cheque encashed either on the Friday (22.03'2013) or on saturday (23.03.2013). Learned counser would also submit that the agreement contemplated with regard to extension oF time in Rule g(4) of the Rules, 2002 must be in writing and also properly stamped. There being no such written agreement pressed into service by the 1't respondent bank and 2nd respondent- auction purchaser, the extension of time till 30.06.2013 is non-esf in law and does not deserve to be taken cognizance of. Learned counser would also submit that the appricant chailenged the adverse findings recorded by this Tribunal in order dated 17.10.201g by filing Appeal before Hon'ble DRAT and the same is pending. The appricant arso challenged the orders dated 07.08.2019 passed by thls Tribunal in IAIR No.3739/2015 which has been filed for merger of SAIR No.41912011 with the SA No.1115/2017 before Hon,ble DRAT and the said Appeal filed by her is pending. The 2nd respondent-auction purchaser got Rs.33.40 crores by way of rentals from SA schedule property which amount the applicant is entiued to claim from the respondents 1 and 2. The alleged claim of 2nd respondent-auction purchaser towards putting up constructions over SA schedule property is false. The statement of particulars of expenses furnished by the 2nd respondent is fabricated and the amounts shown therein are inflated. In support of his contentions, reliance has been placed on the following judgments:

(i) Hon'ble Supreme Court in Sri Vijaylakshmi Rice Mills, New Contractors Company Etc. vs. State of Andhra qry- 5A.No.1115/2017 Pradesh reported in 1976 AIR 1471 decided on 22.03.1976.

(ii) Hon'ble Supreme Court in Madras Bar Association vs. Union of India & Anr. in W.p.(C).804 of 2020 decided on 27.11.2020.

(iii) Hon'ble High Court of Andhra pradesh in M/s. Venshiv Pharma Chem (P) Ltd. & Anr. vs. State Bank of India, Stressed Assefs Recovery Branch, Koti, Hyderabad & Ors. in W.P. No.36677 of 2017 decided on 06.04.201-8.

(iv) Hon'ble Supreme Court in Ram Kishun & Ors. vs. State of U.P. & Ors. in Civil Appeal No.6204 of 2009 dated 24.05.2012.

(v) Hon'ble Delhi High Court - in Ajay Bikram Singh vs. Delhi Development Authority in W.p.(C) 1699/2012 and CM 3731/2012 decided on 26.03.2012.

(vi) Hon'ble Madras High Court in K. Ramaselvam & Ors. vs. Indian Overseas Bank& Anr. in W.P. 9729/2009 decided on 29.07.2009.

(vii) Hon'ble Supreme Court in M/s. Hindon Forge Pvt. Ltd. & Anr, vs. Stafe of Uttar Pradesh & Anr. in CA 10873 of 2018 with CA 10874 of 2018 decided on 01.11.2018.

(viii) Hon'ble Supreme Court in Authorized Officer, Indian Overseas Bank & Anr. vs. M/s Ashok Saw Mill in CA arising out of SLP (C) No. 27399 of 2008 with CA arising out of SLP(C) No.3020 of 2009 decided on 16.07.2009.

(ix) Hon'ble Supreme Court in GM, Sri Siddeshwara Co- operative Bank Limited & Anr. vs. Sri lkbal & Ors. reported in 2013 (10) scc B3 decided on 22.08.2013.

(x) Hon'bte Madras High Court in Padmavathy vs. The Authorised Officer, Dhanalakshmi Bank Ltd & ors in W.P. 3789 of 2017 and WMP 3846 of 2017 decided on 18.08.2017 ?tv-

(xi) Hon'ble Supreme Court in Rakesh LRs vs. Prem Narain Sehgal & of 2018 decided on 21.03,2018. 5A.No.1115/2017 Birani (D) through Anr. in C.A.No.3156 With these contentions, learned counsel sought for quashing of the e- auction sale held on 22.03.2013. Per contra, learned counsel appearing for the 1't respondent bank submits that the amendment effected to Rules 9(3) and 9(4) of the Rules, 2002 in the year 2016 is only in the nature of clarification and therefore, they are deemed to be the Rules since beginning and they are in retrospective operation. The word 'parties, mentioned in Rule 9(4) of the Rules, 2002 has given some ambiguity and that ambiguity has been clarified by amendment. 'parties, means secured creditor and auction purchaser. Learned counsel would further submit that accepting the cheques towards sale price is one of the methods of payment in the present days. Once the cheque proceeds are realized, then it dates back to the date of issuance of the cheque. In the present case, the 2nd respondent-auction purchaser issued cheque towards 25o/o of the sale price on 22.03.20L3 itself and the proceeds of the cheques were realized and credited to the loan account on 27.03.2013. Once the cheques are honoured, the date of payment is to be taken as22.03.2013 and it is strictly in accordance with the Rule 9(3) of the Rules, 2002. With regard to payment of 75o/o of the purchase price, the 2nd respondent-auction purchaser paid the 75olo balance amount within the extended period. Consultation with the borrower on the issue of extension of time for payment of 7 5o/o purchase price had no rationale and that was the reason for amending the word 'parties' as secured creditor and the auction purchaser by way of amendment in the year 2016. This amendment is in nature of clarification and it has retrospective effect. Where a Statute is passed for the purpose of supplying an obvious omission in a former Statute or to explain a former Statute, the subsequent Statute has relation ?ryt-- 5A.No.1115/2017 back to the time when the prior Act was passed. According to learned counsel, the amendment to Rules 9(3) and 9(4) of the Rules, 2002 in the year 2016 is in respect of procedure and therefore, it shall always be retrospective. The applicant having failed to comply the conditional order passed in SAIR No.419/2011 resorted to making one application or the other so as to see that the measures initiated by the 1't respondent bank against the secured asset do not attain finality. Even on the Principle of Equity, the e-auction sale held on 22.03.2013 cannot be quashed. As on the date of judgment of Hon.ble Supreme Court in GM, Sri Siddeshwara Co-operative Bank Limited & Anr. vs. Sri lkbal & Ors. Case (cited supra), the entire e-auction sale proceedings came to be concluded and therefore, interpretation given to the word 'parties' under Rule 9(4) cannot be made applicable to the present case on hand. The physical possession of the SA schedule property obtained by the 1't respondent bank in the year 2012 is not the subject matter of the Appeal and therefore, question of redelivery of physical possession of the SA schedule property to the applicant does not arise. In support of his submissions, reliance has been placed on the following judgements:

(ii) Hon'ble Supreme Court in The Commissioner of Income Tax, Bombay South, Bombay vs. Messrs. Ogale Glass Works Ltd. reported in 1954 AIR 429 decided on 19.04.1954. Hon'ble Supreme Court in Damadilal & Ors. vs. Parashram & Ors. reported in 1976 SCC (4) 855 decided on 07.05.1976. Hon'ble Supreme Court in K. Saraswaty Alias K. Kalpana (Dead) by LRs vs. PSS Somasundaram Chettiar reported in 1989 SCC (4) 527 decided on 01.05.1989. ( iii)

(iv) Hon'ble Supreme Court in Director of Income Tax (Exemption), New Delhi vs. Raunaq Education f'*t-- 5A.No.1115/2017 Foundation in C.A.No.90 of 2013 (Arising out of SLp(C) No.31546 ot 2008) decided on 07.01.2013.

(v) Hon'ble Supreme Court in Zile Singh vs, State of Haryana & Ors. reported in 2004 (B) SCC 1 decided on 07.10.2004.

(vi) Hon'ble Supreme Court in Shamrao V parutekar &Ors. vs. District Magistrate, Thana _ reported in 1952 AIR 324 decided on 26.05.1952.

(vii) Hon'ble High Court of Karnataka in State of Karnataka, Department of primary & Higher Education and Ors. vs. Smt, Akkamahadevamma C.B. and Ors. in W.p. Nos.20914/2010 and 23434 to 452 of 2010 decided on 18.11.2010.

(viii) Hon'ble Supreme Court in Memon Abdut Karim Haji Tayab vs. Dy. Custodian Generat New Delhi & Ors. reported in 1964 AIR 1256 decided on 19.02.1964.

(ix) Hon'ble Supreme Court in GM, Sri Siddeshwara Co_ operative Bank Limited & Anr. vs. Sri lkbat & Ors. reported in 2013 (10) SCC 83 decided on 22.08.2013.

(x) Hon'ble High Court of ludicature at Hyderabad for the State of Telangana and for the State of Andhra pradesh in Smt, P. Sudha Lakshmi vs. Bank of India & Ors., reported in 2018((2) DRTC 800(Hyd) decided on 16.04.2018.

(xi) Hon'ble Supreme Court in Hitendra Vishnu Thakur vs. State of Maharashtra reported in 1994 AIR 2623 - decided on 12.07.1994.

(xii) Hon'ble Supreme Court in Vasu P. Shetty vs, M/s. Hotel Vandana Palace & Ors. reported in AIR 2014 SC 1947 decided on 22.04.2014.

(xiii) Hon'ble Supreme Court in Sadashiv Prasad Singh vs. Harendar Singh & Ors. reported in AIR 2014 SC 1078 ' decided on 08.01,2014. g'yv-

16 5A.No.1115/2017

(xiv) Hon'ble Supreme Court in Shakeena & Anr. vs. Bank of India & ors. reported in 2019 (2) DRT? 89e 6q _ decided on 20.08,2019. with these submissions, learned counsel sought for dismissal of the

13. Learned counsel appearing for the 2nd respondent-auction purchaser submits that the 2nd respondent participated in the e-auction sale proceedings after depositing 100/o earnest money deposit amount of Rs.51,50,000/- on 15.03.2013, Soon after the e-auction sale proceedings completed, he paid 25o/o of the sare price including the earnest money deposit amount by way of cheque drawn on ING Vysya Bank Limited, S.p. Road Branch, Secunderabad. The 1st respondent bank realized the proceeds of the cheque and credited to the loan account of the applicant. once the cheque proceeds are realized, the cheque dates back to the date of its issue i.e.,22.03.2013. Therefore, the 2nd respondent-auction purchaser paid 25o/o of the sale price within the time stipulated in e-auction sale notice and also in accordance with Rule 9(3) of the Rules, 2002. A further submission has been made that the amendments made to Rules 9(3) and 9(4) of the Rules, 2002 being procedural, they have retrospective in operation; and they are curative in nature. The amendments are effected to remedy unintended consequences and to make the Rules workable. A further submission has been made that the parties to the agreement for extension of time are secured creditor and auction purchaser and there is no purpose in consulting the borrower in extension of time to the auction purchaser for payment of 75o/o of the sale price. Learned counsel would also submit that the 2nd respondent paid balance purchase price within extended period and thereupon the 1't respondent bank issued sale certificate on 29.06.2013 and executed registered sale deed on 22.08.2014. After taking physical possession of the SA schedule property, the 2nd respondent made lot of q,y'o - SA. No.1115/2017 alterations and improvements on the SA schedule property and also discharged statutory dues in respect of the SA schedule property. The total amount spent by the 2nd respondent-auction purchaser is Rs.13,29,48,643/-. After making alterations and putting up new constructions, the 2nd respondent inducted tenants and presently the tenants are in occupation of the part of the SA schedule property. The 2nd respondent-a uction purchaser examined two witnesses as RW- 1 and RW-2 and marked 67 documents as Exs.R.1 to R.67 through RW-

1 to speak of the improvements made by it after taking physical possession of the SA schedule property. The learned counsel took me to the photographs which have been exhibited as Ex.R.55 to show the existence of godowns in the SA property. Learned counsel would also submit that upsetting the sale at this distance of time would cause substantial loss to the 2nd respondent-auction purchaser. Even the Principle of Equity demands to support the claim of the Lnd respondent-auction purchaser over the SA schedule property. Amendment to the Security Interest (Enforcement) Rules being procedural one, the applicant has no vested right. The written agreement mentioned in Rule 9(4) of the Rules, 2002 is nothing more than manifestation of mutual assent in writing. According to learned counsel, the evidence affidavit of RW-2 supports the versions of the 2nd respondent with regard to the amount spent for making alterations and putting up new construction on the SA schedule property' In support of his submissions, reliance has been placed on the following judg ments:

(i) Hon'ble Supreme Court in Atlied Motors (P) Ltd' vs' Commissioner of Income Tax, Delhi reported in (1997) 3 SCC 472 decided on 10'03'1997'

(ii) Hon'ble Supreme Court in Ramana Dayaram Shetty vs. International Airport Authority of India & Ors' reported in (1979) 3 SCC 489 decided on 04'05'1979' qryv- 5A.No.1115/2017

(iii) Hon'ble Supreme Court in Commissioner of Income Tax vs. Alom Extrusions Limited reported in (2010) 1 SCC 489 decided on 25.11.2009.

(iv) Hon'ble Supreme Court in Sadashiv prasad Singh ys. Harendar Singh & Ors. reported in (2015) 5 SCC 524 decided in 08.01.2014.

(v) Income Tax Appellate Tribunal-H Bench, Mumbai in Shri Kishore Hiran Bhandari ys. ITO, Mumbai in ITA No.370/Mum/2018 decided on 06.05.2019. With these submissions, learned counsel sought for dismissal of the The points that arise for adjudication are: -

(i) Whether the Applicant made out any valid ground for quashing the e-auction sale held on 22.03.2013?

(ii) Whether the 2'd respondent-auction purchaser is entitled to compensation as claimed in reply statement in the event of e-auction sale dated 22.03.2013 being held invalid?

(iii) To what relief? Point No.(il:

16. I have given my anxious consideration to the contentions advanced by the parties and voluminous written submissions of the parties. Before delving deep into the rival contentions of the parties, I may comment on the written submission made by the applicant on 08.01.2021 and 20.02.2027. Each volume of written submissions runs into hundreds of pages. The written submission dated 08.01.2021 runs into 164 pages apart from enclosures. The written submissions dated 20.02'2021 runs into 211 pages. After going through the written submissions, I found them as compilation of pleadings and running commentary of each sentence in the reply statement of respondents 1 and 2. In the written 5A.No.1115/2017 submissions, the proprietrix of the applicant describes herself as 'victimised innocent lady borrower'. There is no dispute with regard to the availment of loan as well as her becoming defaulter in repayment of loan. Such is the factual situation, I failed to understand in describing herself as 'victimised innocent lady borrower'. Throughout the written submissions, the word 'victimised innocent lady borrower. has been repeated in umpteen number of times. The applicant filed the SA challenging the possession notice dated 15.09.2011. Subsequently, the applicant got SA pleadings amended challenging the e-auction sale dated 22.03.2013. This Tribunal by order dated 17.10.2018 allowed the SA setting aside the e-auction sale held on 22.03.2073. The respondents 1 and 2 preferred independent Appeals being No.191 of 2018 and 1BB of 2018 respectively before the Hon,ble DRAT, Kolkata. The Hon'ble DRAT remanded the SA for adjudication on the issue of Rules 9(3) and 9(4) of the Rules, 2OO2 and also with regard to 2nd respondent rights, investment etc., over the property in question. At the cost of repetition, I may refer paras 11 and 12 of the order dated 14.01.2020 passed by Hon'ble DRAT, Kolkata in Appeal Nos.lBB of 2018 and 191 of 2018 which read as hereunder: " 10. Since the issues of amendment in pleading and submission of evidences are involved therefore it is not proper to decide all these aspects for the first time in the Appeal, as such, I deem it appropriate to remand the matter back to decide these issues by the Tribunal below more so when all the parties are agreeable to decide the matter afresh by the Tribunal below. However, it is made clear that fhe lssues other than the issues of Rule 9(3) and 9(4) have already been decided by the Tribunal below in favour of the bank and against the borrowers so those shall not be considered again as no appeal has been filed by the borrower. Thus, the finding with regard to those issues till the valuation properties and service of sale notice etc., have attained finality.

11. Accordingly, both the Appeals are disposed of in the manner that the impugned order dated 17.10.2018 is partly set aside to the extent as stated above and the matter is remanded back to the Tribunal below to decide the issues of Rule 9(3) and 9(4) of Security ?ryL 5A.No.1115/2017 Interest (Enforcement) Rules, 2002 in view of the observations made hereinabove in accordance with raw and without being infruenced by such observations.

12. The borrowers may file an amendment apptication for pleading fhese lssues and the bank and auction purchaser are free to defend their case on these aspects by firing counter to the preadings and the Tribunal below shall decide the same along with the contention raised by the auction purchaser with regard to its rights, investment etc., over the property in question. Since the matter involves huge amount therefore, the Tribunal below is further directed to decide the S.A. as expeditiously as possible preferably within three months from today. The parties shall appear before the Tribunal below on 03.02.2020 and before that the borrowers shatt file amendment petition and appellants shall file reply within two weeks thereafter. In the circumstances of the case, the parties shart maintain status quo with regard to possession of the property tilt decision of 5,A.,,

17. In view of the direction issued by Hon'ble DRAT, the scope of the sA is very limited. Let me now extract the unamended Rules 9(3) and 9(4) of the Rules, 2002 as hereunder: "9. Time of sale, issue of sale certificate and detivery of possession, etc. (3) On every sale of immovable propertyl the purchaser shall immediately pay a deposit of twenty-five per cent, of the amount of the sale price, to the authorised officer conducting the sale and in default of such deposit, the property shall forthwith be sold again. (4) The balance amount of purchase price payable shall be paid by the purchaser to the authorised officer on or before the fifteenth day of confirmation of sale of the immovable property or such extended period as may be agreed upon in writing between the parties."

18. The e-auction sale has been held on 22.03'20L3 i'e., long prior to amendment to Rules 9(3) and 9(4) of the Rules, 2002. The relevant Rules applicable are unamended Rules 9(3) and 9(4) of the Rules, 2002. The applicant vehemently contended that the 2nd respondent- 5A.No.1115/2017 auction purchaser did not pay a single pie as on the date of e-auction sale and the entire e-auction sale proceedings were manipulated. Though the contenuon appears to be impressive, on crose scrutiny of the material documents placed on record, I do not detain myself long to reject the same. Let me quickly refer the Registered sale Deed dated 22.08.2014 executed by 1st respondent bank in favour of the 2nd respondent. The payment particulars are furnished in the sale deed. Copy of the sale deed has been exhibited as Ex.R-53. As per the particulars mentioned in Ex.R-53, an amount of Rs.51,50,000/_ towards EMD has been paid by way of RTGS UTR No.1307400952. Therefore, the contention oF the applicant that the 2nd respondent did not even pay the EMD as on 22.03.2013 has no merit.

19. Admittedly, the 2nd respondent paid Rs.77,50,000/- by way of cheque dated 22.03.2013. The question is whether the payment of 25o/o of sale price including the EMD by way of cheque is in accordance with the e-auction sale notice terms and conditions. The e-auction sale has been held without the intervention of the Court. The authorized offlcer of the 1't respondent bank has to act scrupulously in accordance with the terms and conditions of e-auction sale notice. The mode of payment of EMD has been clearly mentioned in Cause 10 of the terms and conditions of the e-auction sale notice dated 14.02.2013 and in Clause 5 of the terms and conditions of the e-auction sale notice published on 15.02.2013. For better appreciation, I may extract $use r0 of the terms and conditions of the e-auction sale notice dated 14.02.2013 and Clause 5 of the terms and conditions of the e- auction sale notice published on 15.02.2013 as hereunder: " 10. The EMD and other payments shall be remitted through EFT/NEFT/RTGS to the bank account as specified above. Cheque will not be accepted for EMD." ?,yy- SA. No.1115/2017 "5). For participating in e-auction intending bidders have to submit auction bids forms online httos: //sbi.abcorocu re.com mentioning their User ID and details of payment of refundable Earnest Money Deposit of 10o/o of the reserve price of the property concerned i.e.,Rs.51,50,000/- by RTGS/NEFT/Funds Transfer to the credit of A/c No.32669084199 with State Bank of India, SA< Branch, Secunderabad and to the Authorized Officer of State Bank of India, SAM Branch, Secunderabad, through IFSC Code "581N0004106" or by demand draft/pay Order in favour of the Authorized Officer SBI account "M/s Vasantha Surgical Equipments" and submit the print out of online bids form of e-auction along with copies of pAN card and Address Proof, are to be submitted any time on or before 5.00 p.m 21-03-2013."

20. The mode of payment impliedly applies to the 25olo of the sale price also. The issuance of the confirmation letter is consequent on the payment of 25o/o of sale price which includes 100/o EMD, The 2nd respondent claims that he delivered a cheque for Rs.77,50,000/- on 22.03.2013 itself. What is not explained by the 1st respondent bank is that if the cheque proceeds are realized on 27.03.20L3, what made to it to issue sale confirmation letter before realization of the proceeds of the cheque. Admittedly, cheque proceeds are realized on 27.03.20L3. What is to be inferred is that the payment of 25o/o of the sale price has not been made in the manner indicated in Clause 5 of the terms and conditions of e-auction sale notice when the 2nd respondent made EMD in accordance with the mode prescribed in Clause 10 of e-auction sale notice terms and conditions dated 14.02.20L3 and Clause 5 of terms and conditions of e-auction sale notice dated 14.02.2013 published on 15.02.2013. There is no reason for 2nd respondent to opt a mode which is not prescribed in the e-auction sale notice for payment of 25o/o of sale price. It is the specific plea of the applicant that 2nd respondent had no money to deposit 25o/o of sale price either on the dateofe-auctionsaleoronthefollowingdayandthatsale confirmation letter has been issued on 22.03.20L3 to facilitate 2nd ?vv- SA.No.1.115/2017 respondent to avail credit facilities from some other bank so as to comply the condition of 25o/o of sare price. The 1't respondent bank tries to make up the irregularity in issuing the sale confirmation letter by pleading that 23.03.2013 and 24.03.20t3 happen to be Saturday and Sunday and therefore, cheque could not be encahsed immediately. That plea does not deserve acceptance since in the year 2013 all Saturdays were working days for banks. It is only since 1st September, 2015, 2nd and 4th Saturdays declared holidays for banks. There are two material irregularities committed by the 1't respondent bank. Firstly, in accepting the cheque towards 25o/o of the sale price and secondly, issuing sale confirmation letter prior to realization of cheque proceeds. Once there is material irregularity in payment of 25o/o of the sale price, the entire auction proceedings fall to the ground. There is no need of applicant making out any prejudice because of acceptance of 25o/o of the sale price by way of cheque from 2nd respondent is in contravention of e-auction sale notice terms and conditions. 21, Let me now come to the extension of time for payment of 75olo of the sale price by 2nd respondent. Since the e-auction has been held in the year 2013, the unamended Rules are applicable. Extension of time for payment of 75o/o of the sale price as per unamended Rule 9(4) of the Rules, 2002 is with the consent of the parties. The word 'parties' means, the secured creditor, the borrower and the auction purchaser. The same issue fell for consideration before the Hon'ble Supreme Court in GM, Sri Siddeshwara Co-operative Bank Limited & Anr. vs, sri lkbal & ors reported in 2013(1) scc 83 wherein it has been held that the word 'parties' for the purpose of Rule 9(4) must mean the secured creditor, borrower and auction purchaser. The respondents 1 and 2 made a try to overcome the Hon'ble Supreme Court judgement in GM, Sri Siddeshwara Co-operative Bank f rattunAI 5A.No.1115/2017 Limited & Anr. vs. Sri lkbal & Ors (supra) on the plea that the amendments made to Rules 9(3) and 9(4) of the Rules, 2002 being a procedural they date back to the date of Rules. In other words, the amendments take retrospective effect. The Rules are framed by the Central Government in exercise of powers under sub-section (1) and clause (b) of sub-section (2) of Section 38, read with sub-section (4), sub-section (10) and sub-section (L2) of Section 13 of the Securitization and Asset Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (.'the SARFAESI Act, 2002"). In other words, the Central Government in exercise of delegated legislative functions framed the Rules. It is well setUed, the Rules framed by the Central Government in exercise of delegated legislative power, unless otherwise specifically empowered, have only prospective effect. Thereili"f,nd i, difficult to accede to the plea advanced by the respondents. As per Rules in force in 2013, consent of the borrower for extension of time for payment of 7So/o of sale price is mandatory. There being no consent of the borrower, the acceptance of 75o/o of the sale price by the 1st respondent bank from the 2nd respondent bank after expiry of 15 days from the date of sale confirmation is in contravention of Rule 9(4) of the Rules, 2002 and it vitiates the entire e-auction sale proceedings. In view of the above discussion, I find that the applicant made out a valid ground for quashing e-auction sale held on 22,Q3.2013 and accordingly this Point is answered in favour of the applicant. Point No.(iil: Before proceeding with the discussion on this point, I may make it clear that the applicant earlier filed SAIR No.419/2011 challenging the possession under Sec.13(4) of the SARFAESI Act and the said SAIR No.419l2011 ended in rejection. The Appeal filed by the applicant ?-y- 5A.No.1115/2017 assailing the order passed in SAIR No.419l2011 also ended in dismissar' Admittedry, the 1't respondent bank took physicar possession on 28.08.2012 0f the SA schedure property. Therefore, the issue of rederivery of physicar possession of sA schedure property to the applicant attained finality.

24. It is the plea of the 2nd respondent that it spent Rs.13,29,48,643/_ and made lot of improvement over the SA schedule property and therefore, on the principre of Equity, the e-auction sare is to be upherd. Learned counser appearing for 2nd respondent refers the evidence affidavit of RW-1 (Sunil chawda, proprietor of 2nd respondent) and the evidence affidavit of RW-2 (yogesh Kumar parmar) and Exhibits R.1 to R.67' There is no dispute with regard to certain improvements made by the 2nd respondent after taking physicar possession of the sA schedule property. It is also not in dispute that the 2nd respondent inducted tenants over part of the SA schedule property and received rentals. Though the 2nd respondent in his chief Evidence Affidavit as RW-1 gives the rist of tenants, he cautiousry omits to give rentar particulars i.e., quantum of rent. It is manifest from the records that the 2nd respondent-a uction purchaser made certain improvements and receiving rents. According to the 2nd respondent, he spent about Rs.13,29,48,643l- including the purchase price for improvement over the SA schedule property. Let me now turn to the reply filed by 2nd respondent. It is useful to refer para IV o the reply statement and it is thus: "lV. This respondent submits thot the bonk has issued o sole certificote in fovour of this respondent on 29-6-20L3 by delivering physical possession of the property. AIter obtoining physicol possession, this respondent hos mode several alterotions to the property by spending substontial omounts to o tune of Rs.5,2j,451/- towords the cost of the moteriol ond also spent Rs.9,79,200/- on the property towords Ponchoyat Tax for the yeors 2013-L4 ond 2014-15 ?r*I- SA. No.111.5/2017 ond olso to the repoirs to the property. A detoiled summory of the expenditures including the property tox ore summorized in the stotements enclosed herewith together with supported bills and receipts etc., lt is olso submitted thot o registered sale deed wos executed by the respondent bonk in favour of this respondent on 22- 8-2014 by spending Rs.i0,95,900/- towords stomp duty ond registrotion chorges and the soid sale deed wos duly registered with SRO, Narsapur under document No.3296/2074. A copy of the sale deed is filed herewith. Further this respondent got the nome of this respondent mutoted in the office of the Gram panchayat, Bollorum and obtoined No Objection Certificote doted 29-9-2014. A copy of the soid certificote is olso filed herewith. Thus this respondent being the successful bidder in the auction, having poid the entire sole considerotion of Rs.5.16 Crores has mode the unit to a running unit by spending huge omounts mentioned obove ond olso poid property toxes etc., Under these circumstonces the opplicont who is not bonafide in repoying the dues to the bonk, hos not chollenged the oction of the bank at ony time and remained silent ond filed the obove mentioned SA belotedly ofter the ouction wos completed. As such for the Joult of the opplicont, the respondent sholl not be penolized or prejudiced in any monner."

25. After remand, no additional reply has been filed by the 2nd respondent-auction purchaser in spite of providing good number of adjournments and conditional order dated 02.12.2020. Therefore, the right of filing additional reply by the 2nd respondent-auction purchaser came to be forfeited as per docket order dated 10.12,2020. As per the reply filed prior to remand, the 2nd respondent claims to have spent Rs.5,23,451/- towards cost of the material and Rs.9,79,200/- for payment of property tax to Gram Panchayat for the years 2013-14 and 2014-15 and also towards repair effected to the SA schedule property. The 2nd respondent adduced oral evidence to speak of various amounts spent by him towards improvement made over the SA schedule property without there being any pleading' It is well settled that any amount of evidence without a proper pleading is of no oot"o avail. Had there been a pleading, either admitting or disputing the respondent towards developments 5A.No.1115/2077 the applicant would have responded alleged amounts spent by the 2nd over the SA schedule property.

26. Now coming to the Principle of Equity, the 1st respondent bank took the plea that the pendency of the SA has been brought to the notice of 2nd respondent in the year 2013 itself. Even material brought on record suggests that the 2nd respondent got knowledge of pendency of the SA much prior to obtaining the sale certificate on 29.06.2013. The applicant filed the SA on 18.04.2013 and moved IA No.1304/2013 seeking interim relief. This Tribunal while rejecting to grant interim relief observed that any action taken by the 1't respondent bank in respect of the SA schedule property is subject to the result of the main SA. Such ls the situation, the 2nd respondent cannot plead the principle of Equity to sustain the e-auction sale held on 22.e3.2013. Any improvements made by the 2nd respondent-auction purchaser over the SA schedule property pending the SA are at his risk. Even otherwise, he has been deriving benefits out of the improvements made by him over the SA schedule property and therefore, he has no right to make a further claim either against 1't respondent bank or against the applicant. Accordingly, this point is answered against the 2nd respondent-auction pu rchase r. Point No.(iiil:

27. In the result, the SA is allowed quashing the e-auction sale held on 22.03.2013 with a direction to the 1't respondent bank to take steps to repossess the SA schedule property from the 2nd respondent. However, this order does not preclude the 1't respondent bank for sale of the SA schedule property afresh for realization of the secured debt in accordance with the provisions of the SARFAESI Act, 2002 and Rules framed thereunder. Arcilttll)' -.--t' 5A.No.7115/2017

28. No order as to costs.

29. Communicate a copy of this order to the parties concerned. (Dictated to the PS, transcribed by him, corrected, signed and pronounced by me on this the OSth day of March, 2021). or49(Ms.A. PRAVEENA) PRESfDTNG OFFTCER