Point of Law: Burden was on the petitioner to establish, on the basis of firm pleadings and cogent evidence that the respondent-Bank had actively concealed or misrepresented any material fact from the petitioner with respect to the true value of and/or possession over the secured asset.

JUDGMENT :

1. Heard Sri Manish Trivedi, learned counsel for the petitioner, Sri Ashish Agrawal learned counsel for the Respondent-Bank and Sri B.P. Singh Kachhawah, learned Standing Counsel for the State. Let Additional District Magistrate (Finance and Revenue), District Varanasi be impleaded as Respondent No.3, today itself.

2. The present writ petition has been filed mainly for the following relief:-

"(a) Issue a writ, order or direction in the nature of Mandamus directing the respondent no.2 (Manager, Union Bank of India, Varanasi) refund the entire amount paid by the petitioner in auction purchase of house no.8/335, Khajuri, Shivpur, District Varanasi, along with 12% interest."

3. Having heard learned counsel for parties and perused the record, it transpires, the petitioner is the auction purchaser of a secured asset bearing House No.8/335, Khajuri, Shivpur, District Varanasi (hereinafter referred to as the ‘secured asset’). It was put up for auction by the respondent-Bank under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (hereinafter referred to the Act) for recovery of its dues against a home loan advanced to one Indu Bhushan Jaisawal and Smt. Kalawati Jaisawal, to the tune of Rs.7,79,279/-, on 30.11.2005. Upon default in repayment of that loan, the respondent-Bank resorted to proceedings under the Act. The auction of the secured asset itself took place on 09.01.2018. The petitioner made the highest bid at that auction at Rs.29.61 lacs. It was accepted. Admittedly, that amount was paid by the petitioner in accordance with law. A Sale Certificate came to be issued to the petitioner on 28.01.2018. A copy of the same has also been annexed to the writ petition as Annexure-2.

4. It is the case of the petitioner, despite lapse of more than three years and nine months, neither the Bank has executed the sale-deed in its favour nor, it has handed over physical possession of the secured asset to the petitioner. Relying on a decision of a coordinate bench of the Court, in Rakesh Kumar Kaushal Vs. State of U.P. and another 2019 (1) ADJ 689 (DB) (LB), it has been vehemently urged -the petitioner is entitled to refund of the auction money, Rs.29.61 lacs together with interest (claimed at the rate 12%). Further, it has submitted, the respondent-Bank had misled the petitioner in auctioning the property without first obtaining actual physical possession of that property.

5. On the other hand, learned counsel for the respondent-Bank relied upon another division bench decision of this Court, in Dilip Kumar Singh and another Vs. State of U.P. and others (2013) 1 ADJ 91(DB) to submit, there is no patent illegality in the respondent-Bank seeking actual physical possession over the property in question, after execution of the Sale Certificate. In fact, such proceeding would be valid and maintainable even after execution of the sale-deed in favour of the auction purchaser, if that eventuality arises. Next, reliance has been placed on a decision of the Supreme Court in Standard Chartered Bank & others Vs. V. Noble Kumar & others (2013) 9 SCC 620 wherein the Supreme Court held -it was open to the secured creditor to either seek possession under Rule 8 of the Security Interest (Enforcement) Rules, 2002 (hereinafter referred to as the Rules) or; to seek possession from the debtor under Section 14 of the Act and upon denial by the debtor, to seek possession by approaching the concerned Magistrate under Section 14 of the Act or; to directly approach the Magistrate under Section 14 of the Act. Third, reliance has been placed on another decision of the Supreme Court in ITC Limited Vs. Blue Coast Hotels Ltd. & others (2018) 15 SCC 99, wherein it was opined, the right of the Bank to obtain possession under the Act survives the conclusion of the sale proceedings. Last, reliance has been placed on yet another decision of the Supreme Court in Telangana State Southern Power Distributi