JUDGMENT :

SANDEEP N. BHATT, J.

1. The petitioners are before this Court challenging the action of respondent No.2 in executing the Sale Deed No.10447 of 2018 dated 04.09.2018 in favour of respondent No.3, who is the purchaser of the property i.e. non-agriculture land situated at Mouje : Moraiya, Taluka and District : Ahmedabad, Sub-District : Sanand, Survey No.396 Paiki 1, Sub-Plot No.66 admeasuring about 2600 sq.mtrs., together with the construction standing thereon, belonging to M/s. Atrium Infocomm Private Limited – the original borrower, and further to direct the respondents No.1 and 2 – State Tax Authorities to transfer the amount of Rs.1,74,00,000/- to the petitioners recoverable towards sale of the property in question, with interest, and further to restrain respondent No.3 – purchaser from depleting, transferring, encumbering, alienating or in any way dealing with the property in question.

2. This Court has, on 18.01.2023, after hearing the learned advocates for the respective parties at length, passed the following order.

“1. The petitioner No.1 is a State Bank of India, which has approached this Court under Article 226 of the Constitution of India challenging the action of the respondent No.2 in executing the sale deed dated 04.09.2018 in favour of the respondent No.3, who is the purchaser of the property sold by the respondent in alleged violation of the principle of Recovery of Debt Due to Bank and Financial Institutions Act, 1993 and Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (‘the SARFAESI Act’ hereinafter).

2. The property in question is the non-agricultural land being Sub-plot No.66 admeasuring about 2600 Sq. Mts together with the construction standing in survey No.396 paiki 1 situated at Mouje:Moraiya, Taluka and District Ahmedabad, Sub-district Sanand belonging to M/s.Atrium Infocomm Private Limited.

3. M/s.Atrium Infocomm Private Limited had approached the petitioner-Bank for the purpose of obtaining Banking facilities including the cash credit facilities which had been sanctioned, subject to certain terms and conditions, one of them was that the immovable properties was to remain under the pari passu charge of the petitioner. The cash credit exposure was to be enhanced to the tune of Rs.97.20 Crore, which was permitted by creating an equitable mortgage by way of Deposition of Title Deeds. The said charge created on the said property by way of Equitable Mortgage has been registered before the Sub- Registrar, Ahmedabad on 07.12.2012.

4. The company since failed to repay the dues of the Bank as per the agreed terms, it was classified as Non- Performing Asset by petitioner No.1 on 27.09.2013. The petitioner Bank issued the demand notice under Section 13(2) of the SARFAESI Act read with Rule 3 of the Security Interest (Enforcement) Rules, 2002 on 18.10.2013 for repayment of the amount of Rs.99.13 Crore. As the company failed to repay on 04.10.2016, the possession notice was served upon the company and an advertisement was published on 09.10.2016 in the ‘Times of India’ and ‘Divya Bhaskar’ informing to the public at large that the petitioner No.1 has taken the symbolic possession of the property.

5. The petitioner No.1 along with the Vijiya Bank filed an Original Application being Original Application No.435 of 2014 before the Debt Recovery Tribunal-I, at Ahmedabad (‘the DRT’ hereinafter) on 29.09.2014 under the provisions of the Recovery of Debt Due to banks and Financial Institutions Act, 1993 for recovery of Rs.116.09 Crores against the Company. The DRT vide its order dated 31.07.2018 allowed the Original Application NO.435 of 2014 and the right of the petitioners to recover the monies due from the company as well as the right to sell the property and recover the unpaid sum and thus, the right to sell the property has been recognized in the order of the DR