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Judgment
S.N.H. Zaidi, J
This appeal impugns the order dated 24.8.2012 of DRT-I, Delhi passed on I.A. No. 647/2012 filed by respondent Nos. 2 and 3 in S.A. No. 88/2012 whereby the S.A. applicants have been directed to pay a sum equal to 5% of the purchase money to the auction purchaser, the respondent Nos. 2 and 3 herein, as compensation in terms of Rule 89(a) of Order 21 CPC. The facts and circumstances of the case indicate that in SA No. 65/2010 filed by the appellants and others against the Bank, the Tribunal below had restrained the Bank from proceeding against the secured asset provided the S.A. applicants pay Rs. 40 lacs in a month. In the appeal (No. 361/2010) filed by the appellants against the said order, though this Tribunal had reduced the deposit to Rs. 24 lacs, but no deposit was made by the appellants. The aforesaid SA was dismissed by the DRT vide order dated 10.12.2010 and the appeal (No. 473/2010) filed against the dismissal of SA was also dismissed by this Tribunal for non-payment of the directed amount.
The Receiver, appointed by the ACMM Delhi took the actual physical possession of the property in question after the DRT declined to grant interim relief in S.A. No. 88/2012 filed by the appellants and the Bank put it for auction sale. The respondent Nos. 2 and 3 made a bid of Rs. 6,25,50,000/- at the auction, which was the highest, but the sale was not confirmed due to a restraint order of the DRT. The appellants approached the DRT for redemption of the mortgage under Section 13(8) of the SARFAESI Act and the Tribunal below, vide order dated 3.8.2012, directed them to deposit Rs. 1.65 crores within one week, which was deposited with the Bank on 11.8.2012. The appellants thereafter filed an application (I.A. No. 680/2012) for setting aside the auction sale on the ground that with the deposit of Rs. 1.65 crores, entire principal amount due on them stood paid and the Tribunal was to adjudicate upon the interest only. Respondent Nos. 2 and 3, however, filed an application (No. 647/2012) for confirmation of the sale in their favour on the ground that Rs. 1.65 crores were not deposited within the given time in terms of order dated 3.8.2012. The learned Tribunal below disposed of both the applications by the order dated 24.8.2012 and while allowing the application IA 680/2012 and setting aside the auction sale directed the Bank to return the sale consideration to the auction purchasers with interest and while disposing of the application IA 647/2010 directed the appellants to pay a sum equal to 5% of the purchase money to the auction purchasers as compensation in terms of Rule 89(a) of Order 21, CPC. Feeling aggrieved with that direction, the borrower/mortgagors have filed this appeal.
Mr. Sanjeev Bhandari, the Counsel appearing on behalf of the appellants, argued that as the respondent Bank was closed on 10.8.2012 on account of Gazetted holiday of Sri Krishna Janmashtami, therefore, the amount was deposited on 11.8.2012 and as such there was no default on the part of the appellants in depositing the amount in compliance of the order of the learned DRT. He further argued that respondent Nos. 2 and 3 had also assailed the order impugned dated 24.8.2012 in appeal (No. 310/2012) before this Tribunal, but since in pursuant to the consented order of the Delhi High Court made in the writ petition on 3.9.2012, the possession of the property in question was to be delivered by the Bank to the appellants, the said appeal was withdrawn by them, therefore, they could not oppose this appeal now.
His next argument was that under Rule 89(a) of Order 21, CPC, 5% of the purchase money can be ordered to be paid where the sale of the property in execution of a decree is sought to be set aside, whereas in the instant case, the sale in favour of the respondent Nos. 2 and 3 was not completed due to the stay of its confirmation by the Tribunal below and as such they were not entitled to receive any amount in terms of the said provision. It was also argued by Mr. Bhandari that the appellants had not sought the setting aside of the sale of the property in question in terms of Order 21 Rule 89(a) CPC, but had sought the redemption of mortgage in accordance with Section 13(8) of the SARFAESI Act and as such the order impugned for payment of 5% of purchase money to the auction purchaser in terms of Order 21 Rule 89(a), CPC is bad in law.
Mr. Trivedi, the Counsel for respondent Nos. 2 and 3, however, submitted that the appellants had said in the Writ Petition (C) No. 5488/2012 filed before the Delhi High Court that the interest of respondent Nos. 2 and 3 had been safeguarded by the DRT below vide the impugned order dated 24.8.2012, apparently referring to the order for deposit of amount in terms of Order 21 Rule 89(a) CPC. He also submitted that the order impugned dated 24.8.2012 of the Tribunal below showed that it was passed with the consent of the parties and as such this appeal is not maintainable.
The contention of Mr. Trivedi that the order impugned dated 24.8.2012 was a consented order and the appeal against the same is not maintainable is not open to respondent Nos. 2 and 3 who had themselves filed the appeal (No. 310/2012) before this Tribunal against the very same order. Besides this, the perusal of the order impugned passed qua I.A. No. 647/2012 does not reflect that it was passed with the consent of the parties, It, however, appears that while disposing of I.A. No. 680/2012 filed by the appellants for setting aside the auction sale an observation was made by the Tribunal below that both the parties had requested that the sale might be set aside. The reference to 'both the parties' in the order was to the applicants/appellants as one party and to the Bank as the other and not to respondent Nos. 2 and 3, who had filed another application I.A. No. 647/2012 seeking confirmation of the sale in their favour. The present appeal has been preferred qua a portion of the order made on application IA No. 647/2012 and not in respect of the order made on I.A. No. 680/2012, against which appeal (No. 310/2012) was filed by respondent Nos. 2 and 3, which was later on withdrawn by them.
I find force in the submissions of the appellants that the order impugned was not referred to in the writ petition to show that the interest of the respondents was safeguarded by the direction to make the payment under Order 21 Rule 89(a), CPC but the reference was to the direction to the Bank to return the sale consideration with interest to the auction purchasers as well as that the amount of Rs. 1.65 crores was deposited within the given time as the Bank was closed on 10.8.2012 due to holiday on account of Sri Krishna Janmashtami and the same are accepted.
This contention of the appellants is, however, not tenable that the order dated 3.9.2012 of the Hon'ble Delhi High Court passed in Writ Petition No. 5488/2012 was a consented order. The Hon'ble Court has stated inter alia in term No. (iii) that:
(iii) All legal pleas of the respective parties are left open to be urged before Debts Recovery Appellate Tribunal (DRAT) and this arrangement would not in any way prejudice the pleas of any of the parties.
Mere reference to an 'arrangement' does not anyhow show that the said order was a consented one.
Since the sale in favour of the highest bidders was admittedly not confirmed, therefore, the borrower/mortgagors had a right to get the mortgage redeemed by depositing the dues of the secured creditor along with all costs, charges and expenses incurred by it in order to save their residential house from transfer/sale As the appellants had deposited the amount claimed by the Bank together with interest and cost, as per the orders of the Tribunal below and the sale in favour of respondent Nos. 2 and 3 had been set aside by the DRT, legality whereof is not in question in this appeal and it has already been set at rest after the withdrawal of Appeal No. 310/2012 by respondent Nos. 2 and 3, I am of the considered view that the facts and circumstances did not warrant the invocation of Rule 89(a) of Order 21, CPC and the Tribunal below has erred in directing the appellants to pay the amount to the purchasers in terms of the said provision and the said direction is not sustainable. In view of the above discussion, the appeal succeeds and the order impugned dated 24.8.2012 passed on IA No. 647/2012 directing the appellants to pay a sum equal to 5% of the purchase money to the auction purchaser as compensation is set aside. Parties to bear their own cost of appeal.
Copy of this order be furnished to the parties as per law.