JUDGEMENT

19^th July, 2022 Appeal No.11 of 2022 DRAT-Kolkata THE APPELLATE TRIBUNAL : Instant appeal has been preferred by the Appellants against judgment and order dated 16th February, 2022, passed by Learned DRT- 3, Kolkata in S.A. 574 of 2021 (Shree Polytax Udyog LLP -vs- Authorised Officer, Aditya Birla Finance Limited & Others) disposing of the SARFAESI Application with a direction to the Respondents No. 1 and 2 to conduct inter se bidding between the Appellant and Respondent No. 3 (in appeal and Respondent No. 4 is S.A. (Shree Polytax Udyog LLP). 2. Facts of the case, in brief, are that the Appellant himself is neither a borrower nor mortgagor rather he is a prospective bidder for the auction which took place on 27th of October, 2021. The sale notice was published by Respondent No. 1 on 15th September, 2021 in the newspaper with sale date 27th October, 2021 for sale of a piece and parcel of ground floor flat, measuring about 1800 sq.ft. super built area together with proportionate share of interest in premises No. P-36, CIT H.S. 12, Scheme (M) VII, Manicktala Main Road, P.S. Manicktala, Kolkata on 27th October,

2021. Reserved price was fixed at Rs.3,01,00,000.00. Property was in the name of the Proforma Defendant, Devshar Fashions Private Limited. E-auction sale was fixed on 27th October, 2021. Appellant, through its Authorised Representative, met Respondent No. 1 and enquired about the formality for participating in the bid process which was to be held on 27th October, 2021. As per the terms and conditions of the e-auction, the last date of submission of sealed bid in the prescribed tender form along with Demand Draft of Rs.3,10,000.00 towards EMD to be submitted by 27th October, 2021 at 10.00 a.m. with the Respondent No. 1. Respondent No.3 sent his representative, C.A Pawan Goenka along with a demand draft for EMD being 780161 dated 26th October, 2021 drawn on KMB, Brabourne Road Branch but Respondent No. 1 did not accept the same. Then Respondent No. 3 sent an e-mail to Respondent No. 1 on 26th October, 2021 regarding the refusal and also requested him to permit him to participate in the bid to be held on 27th October, 2021 at 10 a.m. The Demand Draft, along with bid documents, were also sent through e-mail to Respondent Appeal No.11 of 2022 DRAT-Kolkata No. 1 on 26th October, 2021. E-mail was answered with frivolous grounds.

3. On 27th October, 2021 again representative of Respondent No. 3 tendered the documents along with the original Demand Draft but he was asked to wait and was kept waiting. At 11.50 a.m. Respondent No. 1 received the copy of the bid form, along with a Demand Draft of Rs.3,10,000.00, with relevant documents. Thereafter, it was informed that login ID and password would be shared with the Respondent No. 3 by 1.00 p.m. but was not provided. Thereafter on 27th October, 2021, at about 2 p.m., Respondent No. 3 sent an e-mail stating all the facts to Respondent No. 1. On 29th October, 2021 Respondent No. 3 sent another e-mail to Respondent No. 1 complaining arbitrary and illegal action wherein reply was given. Paper publication and e-auction sale notice were self conflicting. However, Respondent No. 3 is ready and willing to buy the property on “as is where is” basis. Intentionally, Respondent No. 3 was not permitted to participate in the bid even EMD was not refunded. Accordingly, an application under Section 17 of the SARFAESI Application was preferred with relief to set aside the e-auction dated 27th October, 2021 and to conduct fresh e-auction sale. Further alternatively, inter se bidding between the highest bidder, if any, and the Respondent No. 3 be conducted. 4. Appellant submitted an application along with objection that he was the successful bidder in the auction held on 27th October, 2021.

Letter was also issued by Aditya Birla Finance Limited, i.e. Respondents No. 1 and 2, to the Appellant accepting the bid and showing their intention to sell the secured asset in favour