JUDGMENT :

Nikhil S. Kariel, J.

1. Rule. Learned advocates for the respective parties waive service of rule on behalf of the respective respondents. With the consent of the parties, the matter has been taken for final hearing.

1.1. Heard learned advocate Mr. Mahesh Bhavsar on behalf of the petitioners, learned advocate Ms. Shivani Rajpurohit appearing with learned advocate Mr. Rahul Barot on behalf of respondent no.1 – Bank, learned Assistant Government Pleader Mr. Jay Trivedi on behalf of respondent no.2 and learned advocate Mr. Bhagirath Patel on behalf of respondent no.3.

2. By way of this petition, the petitioner challenges an order dated 06.01.2023 passed by learned Debt Recovery Appellate Tribunal, Mumbai in Appeal No. 08/2022 whereby an order of the learned Debt Recovery Tribunal dated 10.01.2022 is quashed and set aside. It would appear that by way of order dated 10.01.2022, the learned DRT has inter alia set aside the sale by private treaty dated 28.06.2021 including the sale certificate of the same date issued by respondent no.1– Bank in favour of respondent no.3 herein and whereas, the said order had been set aside by the learned DRAT more particularly restoring the sale by way of private treaty.

3. The facts in brief are narrated as under:-

3.1. It would appear that the petitioner has availed of financial assistance from the respondent no.1 bank in terms of housing and furniture loan more particularly for purchasing and furnishing the property of the present petitioners and whereas, it would appear that the property in question i.e. the residential accommodation had been mortgaged with the respondent no.1 bank.

3.2. It would appear that since the applicants had not repaid the monthly installments in time, the respondent bank had issued a notice under Section 13 (2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as ‘the SARFAESI Act’) on 16.10.2017 calling upon the petitioners as borrowers to repay the outstanding amount as mentioned in the demand notice till the date of realization. It would appear that the petitioners having been served with the notice and having been failed to repay the entire amount, a notice was given to the petitioners under Section 13 (4) of the SARFAESI Act read with Rule 9 of the Rules on 15.03.2018 showing intent to take over possession of the property in question.

3.3. It would appear that pursuant to the said notice, the respondents had approached the District Magistrate, Surat for issuing appropriate order under Section 14 of the SARFAESI Act and whereas, it would appear that the District Magistrate had issued an order on 18.12.2018 authorizing the Mamlatdar to take possession of the property (secured asset) described in the very order. It would appear that the said order had been questioned by the petitioner before the learned DRT by preferring Securitisation Application No. 22/2010 and whereas vide an order dated 15.01.2019, more particularly, on a statement made on behalf of the petitioners that the petitioners would repay the outstanding within a specific period of time, learned DRT had directed the petitioners to pay the overdue amount on or before 30.03.2019 whereafter the bank would allow the petitioners to repay in normal installments and in case of default, the bank was empowered to pr