The central legal point established in the judgment is the interpretation of ownership and mortgage rights under the S.A.R.F.A.E.S.I. Act, 2002, and the jurisdiction of the Tribunal to determine ownership rights.

R.K. GUPTA, J. (CHAIRPERSON)

1. They are heard. The Appeal No. R-138/13 is preferred by the appellant-Bank challenging the order dated 10th April, 2013 passed by the Tribunal in S.A. No. 7/2011. Another appeal has also been preferred by the auction purchaser-Vatika Goods Pvt. Ltd. challenging the same order. The Tribunal by this impugned order has set aside the auction sale which was conducted by the Bank on 24th December, 2010.

2. The relevant facts for the adjudication of the present case are that respondent No. 2 in Appeal preferred by the Bank is the borrower. So far as the respondent No. 1 is concerned, she purchased the property subsequent to the mortgage. The respondent No. 3 in the Appeal preferred by the Bank is the mortgagor, who created the mortgage for grant of the loan facility in favour of the respondent No. 2. The mortgage was created on 19th January, 2009. So far as the respondent No. 1 is concerned, she purchased the property on 10th March, 2010.

3. Since there was default committed by the borrower i.e. respondent No. 2, therefore, the Bank took the action for recovery of its debt from the borrower and the mortgagor. Firstly, the demand notice under Section 13(2) of the S.A.R.F.A.E.S.I. Act, 2002 was issued and thereafter, the Bank proceeded to take possession of the property by taking recourse of Section 13(4) of the Act, 2002. While recovering said amount, the property belonging to the respondent No. 3 in Appeal preferred by the Bank was put to auction and the sale proclamation was published. The respondent No. 1 purchased the property from the respondent No. 3 after the mortgage.

4. According to the sale proclamation, the property was put to auction on 24th December, 2010, where the respondent No. 4 in Appeal preferred by the Bank was the successful bidder, whose bid was accepted.

5. The respondent No. 1 filed the securitization application before the Tribunal challenging the auction notice dated 22nd November, 2010 and also to restrain the Bank from executing the sale deed in favour of the auction purchaser in pursuance to auction dated 24th December, 2010 and also prayed for quashment of the order passed by the District Magistrate on 5th January, 2011 on the ground that she is the real owner under the sale-deed executed by the respondent No. 3 in her favour. The said securitization application was filed by the respondent No. 1 on 2nd February, 2011. The Tribunal accepted the securitization application partly preferred by the respondent No. 1 and set aside the part of the auction of the property, which was sold by Mr. Awadhesh Kumar and Mr. Akhilesh Kumar and upheld the mortgage which was created by the respondent No. 3 to the extent of his share. Thus, the Tribunal allowed the securitization application partly with respect to the share of other two brothers on the property, which was of Awadhesh Kumar and Akhilesh Kumar on the ground that since they have not created any mortgage and they were absolute owners of the part of the property, therefore, to that extent sale of the property in favour of the respondent No. 1 on 10th March, 2010 by Awadhesh Kumar and Akhilesh Kumar was held to be valid. The sale, which related to the share of Mr. Naresh Kumar was held bad because the sale was conducted with the discharge of the charge under the mortgage, created by Naresh Kumar.

6. On the basis of the aforesaid, the auction purchaser as well as the Bank, both have preferred the Appeals before this Tribunal challenging the order passed by the Tribunal.

7. Learned Counsel for the appellant submitted that in the present case though the securitization application was filed by the respondent No. 1, but the same was barred by limitation. An application for condonation of delay was moved, but the Tribunal has not cared to decide the said application for condonation of delay.

8. On behalf of the respondent No. 1 it was submitted that the securitization application preferred by the respondent No. 1 was within time and the