P.R. Ramachandra Menon, J.

1. Whether the sale of the secured asset for the 'Reserve Price' fixed in respect of the property will stand vitiated, for having not obtained 'consent of the borrower/defaulter' by virtue of the 'second proviso' to Rule 9(2) of the Security Interest (Enforcement) Rules, 2002 (hereinafter referred to as 'the rules') is the primary question to be answered in this case. The incidental question is; whether interference is warranted, invoking the discretionary jurisdiction under Article 226 of the Constitution of India, in view of the several other Writ Petitions and proceedings filed earlier, wherein the challenge raised against allegedly inadequate 'reserve price' has been rejected; when the opportunities given to the defaulters to satisfy the liability in a phased manner have not been utilized and when the relief sought for availing alternate remedy under Section 17 of the SARFAESI Act, by filing S.A. 49 of 2007 before the D.R.T. Ernakulam has been given up, causing the S.A. to be dismissed as withdrawn.

2. Before considering the question of law involved as aforesaid, it is necessary to encapsulate the factual matrix for the purpose of effective adjudication. The Petitioners, father and son respectively, were running different establishments under different name and style. The first Petitioner was running an establishment under the name and style as M/s Ukken Stores, while the second Petitioner was running an establishment in the name and style as M/s Ukken Paper Marts. Both the Petitioners were running, as partners, another establishment by name and style as M/s Ukken Paper and Boards.

3. In connection with the business transactions as above, the Petitioners had borrowed various amounts (about Rs. 2 Crores), by way of 'cash credit facility' and 'term loan' from the first Respondent Bank, creating security interest over the properties concerned. In the course of events, a total sum of Rs. 1.25 crores was paid and the account in respect of the establishment by name M/s Ukken Stores was closed. But, since the Petitioners continued to be defaulters in respect of the other establishments, the accounts were declared as 'NPA' and the Bank proceeded with steps under the SARFAESI Act, leading to issuance of a notice under Section 13(2), way back in the year 2006(22.6.2006).

4. Despite the several rounds of litigations and futile assurances given by the defaulters, the liability was not cleared, when the Bank was constrained to issue Ext. P1 notification on 8.10.2007, proclaiming the sale of the properties to be held on 9.11.2007. The Petitioners preferred Ext. P2 statement of objections on 12.11.2007, pointing out some alleged defects with regard to the absence of proper/sufficient notice and also as to the omission to note the various encumbrances over the property. However, the sale was conducted on 9.11.2007 in favour of the 3rd Respondent for a total sum of Rs. 1.65 crores, which was the 'reserve price' noted in Ext.P1 sale notification, as against the outstanding liability of Rs. 1,05,34,941/- with amounts due under such other heads. The sale was confirmed and Ext. P4 sale certificate was issued, which is under challenge in this Writ Petition.

5. The Respondent Bank has filed a statement, followed by a detailed counter affidavit, producing copies of the relevant documents to substantiate their stand and the course of events. The third Respondent/successful bidder has also filed a counter affidavit pointing out the sequence of events and contending that the sale is not liable to be interfered under any circumstances. The fourth Respondent/Revenue has filed a counter affidavit mainly with regard to the liability due to the State and the Petitioners have filed a reply affidavit in respect of the counter affidavit filed by the Respondents 1 and 2, re-iterating the contentions raised in the Writ Petition.

6. The learned Counsel for the Petitioners submits that, the sale conducted by the Respondents 1 and 2