Strict adherence to statutory mandates, particularly Rule 9 of the Rules, 2002, and the availability of alternative forums for seeking redressal.

JUDGMENT :

1. The instant writ petition is under Article 226 of the Constitution of India, whereby and whereunder, the decision of the respondent-Bank as contained in letter dated 17.10.2013, by which the representation filed by the petitioner in pursuance to the order passed by this Court dated 09.07.2013 in W.P.(C) No. 2304 of 2013, has been rejected denying the refund of an amount to the tune of Rs.4,25,000/- on the ground that the statutory amount as per the mandate of the provision of sub-rule (3) of Rule 9 of The Security Interest (Enforcement) Rules, 2002, hereinafter referred to the Rules, 2002, has not been complied with by the writ petitioner, the auction purchaser.

2. The facts leading to this case are that the borrower, namely, M/s Sagar Enterprises has made an application for sanction of loan from the respondent-Bank. The loan has been sanctioned subject to mortgaging the property in the names of Smt. Bindu Devi and Smt. Deepak Devi. The loan account felled under the category of Non-Performing Asset (NPA), therefore, proceeding has been initiated under the SARFAESI Act, 2002, hereinafter referred to as the Act, 2002, by taking recourse of recovery of the amount from the borrower by issuing notice under Section 13(2) of the Act, 2002. The option given to the borrower failed.

The aforesaid failure on the part of the borrower prompted the Bank to take the symbolic possession of the property in question by taking recourse of Section 13(4) of the Act, 2002. The respondent-Bank has simultaneously, under the provision of Section 13(4) of the Act, 2002, came out with the auction notice for sale of the mortgaged property in order to recover the amount to adjust the said loan amount. The writ petitioner has participated in the bid and also been declared as successful.

The writ petitioner at the time of participation has deposited 25% of the total assessed value of the mortgaged property as required under the provision of Rule 9 of the Rules, 2002 as also reflected in the auction notice. The petitioner thereafter has not deposited the subsequent 25% of the amount as required to be deposited under the provision of sub-rule (3) of Rule 9 of the Rules, 2002.

The petitioner, thereafter, represented the respondent-Bank that the amount may be refunded in his favour on the ground that as yet the bank is not in a position to handover the physical possession.

3. It is the contention of the petitioner that the physical possession of the property has been directed to be given in favour of the Bank and to that effect, an order has been passed by the District Magistrate as required to be passed under Section 14 of the Act, 2002. According to the petitioner, this is the reason that the remaining amount as required to be deposited under the provision of sub-rule (3) of Rule 9 of the Rules, 2002 has not been deposited.

4. The petitioner has come to this Court on the earlier occasion by filing writ petition being W.P.(C) No. 2304 of 2013 wherein this Court has disposed of the writ petition by granting liberty to make representation for consideration of the claim. The petitioner, in pursuance of the aforesaid liberty, represented before the respondent-Bank for refund of the amount so deposited but the same has been denied to be refunded by taking a decision vide letter dated 17.10.2013. The petitioner being aggrieved with the said decision has filed the instant writ petition.

5. The matter has been heard on 14.12.2022 and on that date, an order was passed making some queries to be answered by the respondent-Bank. The part of the said order reads as under:

“…

This Court, after hearing learned counsel for the parties, has put pin-pointed queries upon the learned counsel for the respondents-Bank, as under:

(I).Whether the physical possession of the mortgaged property has been taken by this bank, as required under Section 14 of the Act, 2002 ?

(II).If such application is filed before the District Magistrate, as required under Section 14 of the Ac