1 2025:CGHC:28833-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WA No. 388 of 2025 1 - Ankit Mishra S/o Vipin Bihari Mishra Aged About 37 Years R/o Plot No.- 149/3, Prayag Vihar Colony (Shikshak Samiti Colony) Near Uslapur Railway Station, Bilaspur - 495001 (C.G.) --- Appellant(s) versus 1 - Bank Of India Head Office - Star House, C-5, G-Block, Bandra Korla Complex, Bandra East, Mumbai 400051 2 - Bank Of India Raipur Zonal Office, G.D. Shesh Nelayam, Tatya Para Chowk, Kankali Para Road, Raipur (C.G.) 3 - Authorized Officer Of (B.O.I.) Dharmesh Kumar Sinha Branch Manager, G.D. Shesh Nelayam, Tatya Para Chowk, Kankali Para Road, Raipur (C.G.) 4 - Branch Manager (B.O.I.) Vyapar Vihar Branch Zone 1, Plot-22, Vyapar Vihar, Bilaspur - 495004 ... Respondent(s) (Cause Title taken from Case Information System) For Appellant(s) : Mr. Ravi Ranjan Sinha, Advocate For Respondent(s) : Mr. Anand Shukla, Advocate VEDPRAKASH DEWANGAN Digitally signed by VEDPRAKASH DEWANGAN Date: 2025.07.01 19:59:25 +0530 2 Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Order on Board Per Ramesh Sinha, Chief Justice 30/06/2025 1. Heard on I.A. No.1 of 2025, which is an application for condonation of delay of 60 days in filing the writ appeal. On due consideration and for the reasons mentioned in the application, the same is allowed, and the delay of 60 days in filing the appeal is condoned. 2. Heard on admission. 3. The present writ appeal has been filed by the writ appellant, who was the writ petitioner in the writ petition, against the impugned order dated 03.01.2025, passed by learned Single Judge, in WPC No. 1025 of 2023, whereby the writ petition filed by the writ petitioner is dismissed. 4. The brief facts of the case are that, on 14.08.2022, the respondents/Bank published an advertisement in Haribhoomi Daily Newspaper, Raipur with respect to e-auction of a house belongs to one Ishwari Prasad Sahu, situated at khasra No. 149/1 and 149/2, plot No. 1/32, Village Uslapur, District Bilaspur, admeasuring 2400 sqft including its four corners having the property ID No. BKIDRAT300422-06. The writ appellant was also participated in e-auction proceeding. The petitioner is the successful bidder and his price of Rs. 49.41 lakhs were accepted after the bidding on 26.09.2022. 25% of the total bid amount have also been deposited by the writ appellant, which comes to Rs. 12,41,500/-. On 27.09.2022, the respondents/Bank issued a letter, 3 regarding confirmation of sale and asked the writ appellant to deposit the balance of 75% of bid amount on or before 12.10.2022. Since the matter was pending before the District Magistrate, on 10.10.2022, the writ appellant wrote a letter to the bank that the matter is still pending for permission of District Magistrate and a clearance certificate is required for registration of the sale-deed and requested for extension of time up to 90 days. The request made by the writ appellant was considered and the bank has permitted the writ appellant to deposit the rest amount up to 26.12.2022. The writ appellant arranged the remaining amount and visited to the bank for registration of the deed, but the bank authorities evading the registration of the deed, because of pendency of the matter before the District Magistrate. Subsequently, the writ appellant came to know that a litigation is also pending between the bank and Ishwari Prasad Sahu before the Debt Recovery Tribunal, Jabalpur (DRT). On 03.01.2023, the writ appellant served a legal notice to the bank and in reply thereof, the bank had denied to handover the possession of the subject property to the writ appellant and informed that his EMD is liable to be forfeit. The writ appellant has filed a writ petition seeking a direction to the respondent/ Bank to handover the possession of the subject property and in alternative the fund of EMD amount and 25% of the bid amount along with the interest. 5. In the writ petition, the respondents/Bank raised an objection regarding maintainability of the writ petition on the ground of alternative remedy under Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in 4 short ‘SARFAESI Act’). 6. Learned Single Judge after considering the facts and circumstances of the case, documents annexed with the petition as well as the judgment cited by the respective parties, dismissed the writ petition on 03.01.2025 holding that the writ petitioner is having an efficacious alternative remedy under Section 17 of the SARFAESI Act reserving the liberty to the writ petitioner to avail remedy as may be available to him under the SARFAESI Act, if so advised. The order dated 03.01.2025 is under challenge in the present writ appeal. 7. Learned counsel for the writ appellant would submit that the respondent/ Bank has committed fraud against the writ appellant and had not disclosed the litigation between the bank and Ishwari Prasad Sahu before the DRT. The concealment of the proceedings before the DRT and initiating the e-auction proceeding are bad in law. The amount deposited by the writ petitioner in pursuance of the e-auction proceeding and successful bidder should be refunded to him along with the interest, as the sale of the house could not be confirmed due to the fault of the bank. The learned Single Judge has wrongly appreciated the provisions of Sections 9(5), 13 and 17 of the SARFAESI Act and in the facts and circumstances of the case, the petitioner is entitled to get his amount back from the bank, which he has deposited and not at any fault. The respondents/Bank is at fault for not completing the sale confirmation process. The petitioner was ready and willing to deposit the remaining amount of 75%. He would further submit that the learned Single Judge has also misinterpreted the judgment cited by him, 5 therefore, the writ appeal may be allowed the impugned order may be set-aside. 8. On the other hand, learned counsel for the respondents/Bank on advance copy supported the impugned order. 9. We have heard learned counsel for the parties and perused the documents annexed with the writ appeal as well as the writ petition. 10. The learned Single Judge considered the provisions of Section 17 of the SARFAESI Act and the maintainability of the writ petition. While considering the case of the writ petitioner, the learned Single Judge has relied upon the judgment passed by Hon'ble Supreme Court in the matter of “Agrawal Tracom Pvt. Ltd. v. Punjab National Bank and others” 2018 (1) SCC 626 and the order passed by this Court in WPC No. 3944 of 2023 (Neeraj Bhusakhare v. Bank of India and another), decided on 11.09.2023. The learned Single Judge has also considered the judgment cited by the writ petitioner i.e. “Mohd. Shariq v. Punjab National Bank and others” 2023 SCC Online SC 392, and relying upon the judgment of “Agrawal Tracom Pvt. Ltd.” (supra), dismissed the writ petition filed by the petitioner on the ground of availability of alternative remedy under Section 17 of the SARFAESI Act. 11. It is necessary to reproduce here the consideration of Hon'ble Supreme Court in “Agrawal Tracom Pvt. Ltd.” (supra):- “25. So far as this case is concerned, sub-rule (5) of Rule 9 is relevant. It provides that, if the auction purchaser commits any default in payment of sale 6 consideration within the time specified, the deposit made by auction purchaser shall be “forfeited” to the secured creditor and the auctioned property shall be resold and the defaulting purchaser shall “forfeit” all claims to the property or its part of the sum for which it may be sold subsequently. 26. Reading of the aforementioned Sections and the Rules and, in particular, Section 17(2) and Rule 9(5) would clearly go to show that an action of secured creditor in forfeiting the deposit made by the auction purchaser is a part of the measures taken by the secured creditor under Section 13 (4). 27. The reason is that Section 17 (2) empowers the Tribunal to examine all the issues arising out of the measures taken under Section 13 (4) including the measures taken by the secured creditor under Rules 8 and 9 for disposal of the secured assets of the borrower. The expression "provisions of this Act and the Rules made thereunder" occurring in sub- sections (2), (3), (4) and (7) of Section 17 clearly suggests that it includes the action taken under Section 13 (4) as also includes therein the action taken under Rules 8 and 9 which deal with the completion of sale of the secured assets. In other words, the measures taken under Section 13 (4) would not be completed unless the entire procedure laid down in Rules 8 and 9 for sale of secured assets is fully complied with by the secured creditor. It is for this reason, the Tribunal has been empowered by Section 17 (2),(3) and (4) to examine all the steps taken by the secured creditor with a view to find out as to whether the sale of secured assets was made in conformity with the requirements contained in Section 13 (4) read with the Rules or not? 28. We also notice that Rule 9(5) confers express power on the secured creditor to forfeit the deposit made by the auction purchaser in case the auction purchaser commits any default in paying installment 7 of sale money to the secured creditor. Such action taken by the secured creditor is, in our opinion, a part of the measures specified in Section 13 (4) and, therefore, it is regarded as a measure taken under Section 13 (4) read with Rule 9 (5). In our view, the measures taken under Section 13 (4) commence with any of the action taken in clauses (a) to (d) and end with measures specified in Rule 9. 29. In our view, therefore, the expression “any of the measures referred to in Section 13 (4) taken by secured creditor or his authorized officer” in Section 17(1) would include all actions taken by the secured creditor under the Rules which relate to the measures specified in Section 13(4). 30. The auction purchaser (appellant herein) is one such person, who is aggrieved by the action of the secured creditor in forfeiting their money. The appellant, therefore, falls within the expression “any person” as specified under Section 17 (1) and hence is entitled to challenge the action of the secured creditor (PNB) before the DRT by filing an application under Section 17 (1) of the SARFAESI Act.” 12. On going through the facts of the present case, it reveals that, Section 17 of the SARFAESI Act empowers the DRT to examine all the issues arising out of the measures taken under Section 13(4) including the measure taken by the secured creditors for disposal of the secured assets of the borrowers. The DRT has been empowered by Sections 17(2), (3) and (4) to examine all the steps taken by the secured creditor with a view to find out, as to whether the sale of secured assets was in conformity with the requirements of Section 13 read with the rules or not. 13. Considering the law laid down by the Hon'ble Supreme Court in the 8 aforesaid matters, the learned Single Judge has dismissed the writ petition filed by the writ appellant on the ground of maintainability and availability of alternative remedy under Section 17 of the SARFAESI Act reserving the liberty to avail the said remedy. 14. Upon perusing the impugned order, we noticed that the same has been rendered by the learned Single Judge with cogent and justifiable reasons. In an intra-court appeal, no interference is usually warranted unless palpable infirmities are noticed. Learned Single Judge while dismissing the writ petition by the impugned order has adverted to all the facts and law applicable to the case. We do not find any fault in the impugned order passed by the learned Single Judge. 15. In view of the foregoing, the writ appeal lacks merit, liable to be and is hereby dismissed. No order as to costs. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice ved