The main legal point established is that the right of redemption under the SARFAESI Act is available if the property is not sold or transferred, and even after the sale, it cannot be availed after transfer of the property.

R.K. GUPTA, J. (CHAIRPERSON)

1. They are heard. Preliminary objection is raised during the course of argument on behalf of the Bank that the appellant No. 1 has unnecessarily been impleaded as one of the appellant's, though she has not chosen to file the Securitisation Application under Section 17 of the SARFAESI Act, 2002 before the Tribunal. It is clear from the judgment passed by the Tribunal on 15th March, 2012 in the two securitisation applications i.e. S.A. No. 29/2011 and S.A. No. 155/2010 that the appellant No. 1 was not a party before the Tribunal, as she has not chosen to file the Securitisation Application before the Tribunal. Under these circumstances, she has no right to prefer the appeal under Section 18 of the SARFAESI Act, 2002, therefore, the present appeal shall not be treated to be an appeal by the appellant No. 1.

2. With regard to the appellant Nos. 2 and 3 are concerned, they preferred the securitization application before the Tribunal which was registered as S.A. No. 155/10. The said securitisation applications were dismissed by the Tribunal by an order dated 15th March, 2012, which is impugned order in the present appeal. Under these circumstances, the present appeal is treated to be an appeal by the appellant Nos. 2 and 3.

3. The facts leading to the present case are that the mortgagor Ravi Shankar Mehrotra is the respondent No. 7 in the present appeal. He was also arrayed as respondent No. 7 before the Tribunal. Shri Ravi Shankar Mehrotra was the guarantor. The principal borrower was the respondent No. 3. Since the principal borrower failed to repay the dues, therefore, the Bank took action by issuing notice under Section 13(2) of the SARFAESI Act, 2002.

4. In spite of the notice the dues were not clear, therefore, the Bank took action under Section 13(4) of the SARFAESI Act, 2002. After taking over the possession of the property, the mortgaged property was put to auction.

5. It is the case of the Bank that the highest bid towards the said mortgaged property was received for a sum of Rs. 7.50 lacs, but the auction has not been confirmed.

6. The present appellants filed the securitisation application on the ground that it was an ancestral property and such ancestral property could not have been mortgaged by the respondent No. 7 i.e. their father and on this ground it was challenged that the property is related to HUF, therefore, the mortgage was bad. The Tribunal did not accept the submission so made on behalf of the present appellants and dismissed the case.

7. Learned Counsel for the appellants submitted that even though they have lost the opportunity to establish their claim that the property as such belongs to HUF yet, by virtue of Section 91 of the Transfer of Property Act, 1882, the appellants since have right and interest over the property, therefore, they can redeem the said property after paying the value of the property which was mortgaged and the property which is in question in the present case.

8. On behalf of the respondent-Bank it was submitted that right of redemption under Section 13(8) of the SARFAESI Act, 2002 is only available to the appellants, if the dues of the secured creditor together with all costs, charges and expenses incurred are tendered to the secured creditor at any time before the date fixed for sale or transfer and on the basis it is submitted that right of redemption now is not available.

9. The rival submissions so made on behalf of the parties are considered.

10. This is to be seen that this Appellate Tribunal is Appeal Sr. No. 305/2011, Ladli Prasad Srivastava v. Punjab National Bank, decided on 10th January, 2012 has held that by virtue of Section 13(8) of the SARFAESI Act, 2002 right of redemption can also be availed by the borrower including the guarantor, if the property is not sold or transferred. Admittedly, in the present case, the property as such was put to auction, but the auction as such has not been confirmed. Physical possession of the property is stil