IMPORTANT POINT
Application preferred by Auction Purchaser under Section 17 of SARFAESI Act is maintainable.

Dr. Shalini Phansalkar-Joshi, J.—By this petition filed under Article 226 of the Constitution of India, the Petitioner is invoking extraordinary writ jurisdiction of this Court for issuance of writ of certiorari to quash and set-aside the order dated 23rd September, 2013 passed by the Debts Recovery Appellate Tribunal, Mumbai in Appeal No.161 of 2011 and thereby to dismiss the said appeal.

2. The facts, in the light of which above said prayer is made, can be stated in brief as follows;

The Petitioner is a Securitization Company, incorporated under the provisions of the Companies Act, 1956 and registered under Section 3 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, (hereinafter referred to as “SARFAESI Act’”, for the sake of brevity). Petitioner is having its registered office at the Ruby, 10th floor, 29 Senapati Bapat Marg, Dadar (West), Mumbai. The Petitioner had, vide Assignment Agreement dated 31st March, 2008 acquired the rights with respect to the account of M/s. D.N. Exports from the Assignor Bank i.e. Bank of India.

3. Respondent No.1 is the purchaser of the properties mortgaged to the Petitioner. Respondent Nos. 2 to 4 are the partners who had guaranteed the repayment of the dues of M/s. D.N. Exports and they are also erstwhile owners of the mortgaged properties.

4. The Petitioners’ predecessor-in-interest i.e. Bank of India had guaranteed financial assistance to M/s. D.N. Exports, wherein Respondent Nos. 2 to 4 are the partners as well as the guarantors. Respondent Nos. 2 to 4 had mortgaged in favour of Bank of India the immovable property, which is a piece and parcel of land being CTS No.1309/19, Survey No.131 area 1743 sq.mtrs. situated at village Varsova, Taluka Andheri, Mumbai. As the account of M/s. D.N. Exports had become a non-performing asset, a notice dated 22nd October, 2003 was issued by Bank of India under Section 13(2) of SARFAESI Act to M/s. D.N. Exports. It was also published in newspaper on 22nd February, 2004. Bank of India, thereafter, assigned the debt by Deed of Assignment dated 31st March, 2008 to the Petitioner along with Security Interest in the mortgaged property. In the meantime, Debts Recovery Tribunal, Chennai in O.A. No.2036 of 2001 had issued a Recovery Certificate in the sum of Rs. 24,88,66,110.17 on 3rd April, 2009. The Petitioner made an application before DRT-II Chennai to bring its name on record in place of Bank of India, in view of the Assignment Deed dated 31st March, 2008. The said application was allowed on 27th July, 2010 and the Recovery Certificate has been amended accordingly.

5. As per the case of the Petitioner, the Authorised Officer appointed by the Petitioner had, meanwhile, taken possession of the mortgaged property on 24th June, 2009 and published the possession notice in respect thereof, in various newspapers, dated 25th June, 2009, as required under the Security Interest (Enforcement) Rules, 2004. Neither the Mortgagors, i.e. Respondent Nos. 2 to 4, nor any third party challenged the possession of the Petitioner and the measures taken by the Petitioner under Section 13 of SARFAESI Act. Thereafter, on 23rd July, 2009 the Petitioner published a notice in “Free Press Journal” for sale of the said mortgaged property intimating that the Authorised Officer would sell the said mortgaged property in his possession, after a period of 30 days from the date of notice i.e. 23rd July, 2009.

6. In pursuance of the said notice, the Director of Respondent No.1 approached the Petitioner and evinced his interest in purchasing the mortgaged property. After discussion, it was informed to Respondent No.1 that the Petitioner would issue bid document to interested parties detailing terms and conditions for sale by first week of August, 2009. In due course, the bid document was issued to various parties inviting offers for purchase of the mortgaged property on “as is where is and as is what is basis”. The various terms and c