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Judgment
The above Writ Petition has been filed by the petitioner to issue a Writ of certiorarified mandamus to call for the records of the impugned order dated 20.07.2018 in R.A.(SA).No.77 of 2014 on the file of the Debt Recovery Appellate Tribunal, Chennai and to quash the same.
2.The petitioner borrowed a sum of Rs.14,50,000/- from the 1st respondent - Bank during the year 2005 and mortgaged his property measuring an extent of 2444.38 sq.ft., along with a residential house thereon situated at Sirudur Village, Madurai and another property measuring 637.26 sq.ft. Punjai land standing in the name of one D.Duraisekaran as collateral security.
2.1.Since the petitioner committed default in repaying the loan amount, a notice dated 02.07.2009 was issued under Section 13(2) of the SARFAESI Act and subsequently, a notice dated 22.09.2009 was issued under Section 13(4) of the Act. Thereafter, the property was brought to sale and a sale notice dated 15.02.2010 was issued fixing the auction on 22.03.2010. The property was sold in the auction to the 2nd respondent for a sum of Rs.16.50 lakhs. The petitioner challenged the sale held on 22.03.2010 before the Debts Recovery Tribunal in S.A.No.62 of 2010.
2.2.Before the Debts Recovery Tribunal, the petitioner contended that he had made deposit of Rs.6.5 lakhs in various installments towards the loan account, however, that was not considered. Further, the petitioner contended that the valuation fixed by the Debts Recovery Tribunal was very low. The Debts Recovery Tribunal, by order dated 23.01.2012, dismissed the appeal in S.A.No.62 of 2010. Aggrieved over the same, the petitioner preferred an appeal in R.A.(SA).No.77 of 2014 before the Debt Recovery Appellate Tribunal and the Appellate Tribunal, by order dated 20.07.2010, confirmed the order passed by the Debts Recovery Tribunal and dismissed the appeal. As against the same, the petitioner has filed the above Writ Petition.
3.The learned counsel appearing for the petitioner submitted that though the petitioner had mortgaged the property measuring an extent of 2444.38 sq.ft., the respondent - Bank had only sold an extent of 2084.01 sq.ft., but issued Sale Certificate in respect of the entire extent.
4.With regard to the fixing of the upset price, it could be seen from the records that at the first instance, a sale notice dated 11.11.2009 was issued, fixing the auction on 30.12.2009 and fixing the upset price at Rs.15.49 lakhs. However, the sale did not take place on that day, for want of bidders. Thereafter, the upset price was reduced by 10% (i.e.) to Rs.13.95 lakhs and the auction was conducted on 22.03.2010 based on the sale notice dated 15.02.2010. In the auction held on 22.03.2010, the property was sold to the 2nd respondent for a sum of Rs.16.50 lakhs. Therefore, the contention of the petitioner that the property was sold for a lesser price by fixing a low upset price cannot be accepted. When the upset price was fixed at Rs.15.49 lakhs, there was no bidder to take the property, which necessitated the Bank to reduce the upset price to Rs.13.95 lakhs and the property was sold much above the upset price fixed by the Debts Recovery Tribunal. In these circumstances, the upset price fixed by the respondent - Bank is just and proper.
5.On a perusal of the Mortgage Deed, it is clear that an extent of 2444.38 sq.ft. was mortgaged by the petitioner, including the land measuring an extent of 360 sq.ft. for the road. From the perusal of the document, it is also clear that the petitioner had actual saleable land measuring an extent of 2084.01 sq.ft. and not 2444.38 sq.ft. Even in the Mortgage Deed, it has been clearly stated that 360 sq.ft. (230 sq.ft. + 130 sq.ft.) is the extent of the road. After deducting this 360 sq.ft., the remaining extent of 2084 sq.ft. was brought to sale and sold in the auction held on 22.03.2010.
6.The petitioner, now cannot take a different stand and state that the Sale Certificate was issued to the 2nd respondent for higher extent. The findings of the Tribunal are supported by the petitioner's own documents. The Tribunals below have rightly rejected the case of the petitioner and confirmed the sale.
7.In these circumstances, we do not find any error or irregularity in the order passed by the Tribunal. The Writ Petition is devoid of merits and the same is dismissed. No costs.