The main legal point established in the judgment is that the right of redemption of the mortgaged property exists until the date of publication of notice for public auction, and the failure to exercise this right before the crucial date extinguishes the right.

JUDGMENT :

(Sudhanshu Dhulia, J.) :-

The matter is taken up through video conferencing.

2. Heard Mr. S. Mitra, learned counsel for the petitioners. Also heard Mr. I.S. Majumdar, learned counsel appearing for the respondent No. 1 and Mr. S. Dutta, learned counsel appearing for the respondent' Nos. 2, 3 and 4.

3. The petitioners before this court had taken a loan from respondent-Bank, i.e., Bank of India, in the year 2014 in the form of Cash Credit Limit of Rs,30,00,000. The amount was not paid in time and thereafter the account of the petitioners was declared, as non-performing asset (‘NPA’) by the respondent-Bank on 31.3.2019, and proceedings were initiated under section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (‘SARFAESI Act’). The petitioners received a notice under section 13(2) of the SARFAESI Act on 6.5.2019 and not being satisfied, with the reply of the petitioners, symbolic possession was also taken and thereafter physical possession to the mortgaged property was taken on 6.12.2019. Till this stage, the petitioners did not approach either the Debts Recovery Tribunal or this court. Thereafter, the petitioners filed a writ petition before this court being WP(C) No. 3414/2020 on 27.8.2020 and by order of this court dated 3.9.2020, the petitioners were directed to approach the Debts Recovery Tribunal. Consequently, the petitioners approached the Debts Recovery Tribunal, Guwahati. The petitioners before the Debts Recovery Tribunal, inter alia, made a request that they may be allowed to deposit the entire amount as sale of the mortgaged property had not been completed. Although, the facts before this court disclose that by the time the petitioners had approached the Debts Recovery Tribunal, the sale of the mortgaged property had already taken place. In any case, the request of the petitioners was accepted by the Tribunal vide its order dated 22.9.2019, and the entire amount was deposited by the petitioners before the Bank in the form of a Demand Draft on 23.9.2019.

4. Meanwhile, after hearing the learned counsel for the petitioners as well as the counsel for the respondent-Bank, ultimately the application of the petitioners was dismissed by the Debts Recovery Tribunal vide its order dated 28.10.2020. This was done by the Tribunal on interpretation of sub-section (8) of section 13 of the SARFAESI Act. It was held by the Debts Recovery Tribunal that the right of redemption of the mortgaged property remains till the notice is published by the secured creditor for a public auction. The first notice is notice dated 6.3.2020. All the same, since no bid had been received in pursuance of this notice, another notice was given on 18.6.2020, which was published on 21.6.2020 on the basis of which the sale was conducted on 29.7.2020. The admitted position is that till that time the petitioners did not deposit the amount. The amount was deposited on 23.9.2020, i.e., after the sale had been conducted on 29.7.2020. Meanwhile, not only the sale had been completed but a sale certificate was also issued to the auction purchaser on 5.8.2020. The Demand Draft deposited by the petitioners was to be returned to the petitioners, in terms of the order of the Debts Recovery Tribunal dated 28.10.2020.

5. Aggrieved by the order dated 28.10.2020 passed by the Debts Recovery Tribunal, the petitioners approached the Appellate Tribunal at Kolkata, where their appeal was again dismissed on 23.12.2020. Aggrieved, the petitioners have approached this court by filing the present writ petition.

6. The first ground of challenge to the two orders, i.e., order dated 28.10.2020 passed by the Debts Recovery Tribunal, and the order dated 23.12.2020 passed by the Appellate Tribunal is that the petitioners were not served with proper notice before auction of the mortgaged property and the petitioners were not given the opportunity to deposit the amount before the Bank in time and, hence, the provision unde