ORDER : 1. This petition has been filed by the petitioner/auction purchaser under Article 226 of the Constitution of India assailing the order dated 20.07.2018 passed by Debts Recovery Appellate Tribunal, Allahabad (for short “the DRAT”) in Appeal No. R-75/2011 whereby the appeal filed by the petitioner has been dismissed against the order dated 29.03.2011 passed by the Debts Recovery Tribunal, Jabalpur (for short “the DRT”). 2. This Court has called upon the records of the DRAT, Allahabad as well as the respondent/Bank for perusal of this Court. 3. The brief facts, as reflected from writ petition are as under:- (A) Respondent No. 4/borrower has set-up a Computer Equipment Sales and Service business in the rented premises/Shop in the year 2000 titled as M/s Future Vision and to start the same, he has taken loan from UCO Bank, Nehru Nagar Branch, Bhilai wherein his mother namely Shyama Mehta stood as guarantor who had given her immovable property as mortgaged with the Bank which is situated at 48/6, Nehru Nagar West Bhilai, District Durg. The Bank after completion of all requisite formalities and executing necessary documents, sanctioned the cash credit limit hypothecation facility/loan of Rs 3.50 lacs in the year 2000 which has been extended to Rs. 7.50 lacs in the year 2003. (B) As per the credit norms fixed by the Reserve Bank of India, the Bank has insured the said cash credit limit under hypothecation of the stock of respondent No. 4 for which premium has been debited from respondent No. 4/borrower. Due to default in payment, the cash credit facilities given by the Bank to respondent No. 4/borrower, has been declared Non-Performing Assets (NPA) on 06.07.2007 as per the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short “the SARFAESI Act, 2002 ”). (C) On 06.07.2007, a notice under Section 13 (2) of the SARFAESI Act, 2002 was issued to respondent No. 4 as well as guarantor/Smt. Shyama Mehta who is mother of respondent No. 4 calling upon them to discharge in full his/her liabilities to the secured creditor/respondent bank and to repay the due amount of Rs. 7,57,089/- as on 31.03.2007 with future interest and incidental expenses cost within 60 days, failing which, the Bank will proceed under Section 13(4) of the SARFAESI Act, 2002 . 7,57,089/- as on 31.03.2007 with future interest and incidental expenses cost within 60 days, failing which, the Bank will proceed under Section 13(4) of the SARFAESI Act, 2002 . Despite service of notice, respondent No. 4 and guarantor failed to repay the due amount to the respondent Bank, as such the respondent Bank has taken symbolic possession of the mortgaged property on 03.12.2007. (D) On 5.12.2007, the fact regarding taking symbolic possession of the mortgage property was published in the newspaper, despite the same, respondent No. 4 and guarantor did not discharge their liabilities by repaying the dues, therefore, the respondent Bank was constrained to put the secured assets for auction. (E) Respondent No. 4 instead of discharging his liabilities and repaying the amount due to the respondent Bank, moved an application on 18.01.2008 before the DRT under Section 17 of the SARFAESI Act, 2002 which was registered as SA No. 16 of 2008. There was no interim order operating in favour of respondent No. 4, therefore, the respondent Bank continued with the auction proceedings of residential house/secured assets on 24.06.2008. (F) On 24.06.2008, a public auction was held in which total seven persons including the petitioner had participated in the auction proceeding. The petitioner was the highest bidder, as such his bid was accepted and auction was duly confirmed for the bid of the petitioner amounting to the tune of Rs. 23,05,000/- and the entire amount has been deposited by the petitioner by 08.07.2008. On 20.03.2009, a sale certificate was also issued in favour of the petitioner which was registered before the Sub Registrar on 29.3.2009. (G) The guarantor Smt. Shyama Devi did not file any objection or representation against auction and she neither challenged the recovery proceedings nor filed any appeal under Section 17 (1) of the SARFAESI Act, 2002 . Respondent No. 4/ borrower challenging the aforesaid action of the respondent Bank has filed a writ petition before this Court bearing W.P. No. 7318/2008 and obtained stay order but the said petition was dismissed by this Court vide order dated 24.6.2008 as not maintainable on the count of jurisdiction lies with the DRT. Thereafter, the petitioner approached before High Court of Madhya Pradesh by filing a writ petition bearing W.P. No. 3406/2008 and has obtained an ex-parte order on 03.07.2008 which was operative only upto 18.07.2008. Thereafter, the petitioner approached before High Court of Madhya Pradesh by filing a writ petition bearing W.P. No. 3406/2008 and has obtained an ex-parte order on 03.07.2008 which was operative only upto 18.07.2008. However, the stay order granted on 03.07.2008 has not been further extended. (H) On 17.01.2008, respondent No. 4 filed Second Appeal before the DRT, Jabalpur bearing SA No. 16/2008 under Section 17 (1) of the SARFAESI Act, 2002 against the respondent Bank without impleading the petitioner and the guarantor as party to the appeal. Subsequently, guarantor Smt Shyama Devi was impleaded as Appellant No.2 in the said appeal. The respondent Bank filed its reply in the said case along with the relevant documents on 15.04.2008. The petitioner had also filed an application for his impleadment which was allowed. The petitioner after being impleaded as party to the appeal filed his reply. The said appeal filed by respondent No. 4 was allowed vide order dated 29.03.2011. (I) The order dated 29.03.2011 passed by the DRT was assailed by the petitioner as well as by the respondent Bank before the DRAT wherein the DRAT allowed the appeal filed by the petitioner as well as respondent Bank vide order dated 09.11.2011 and set aside the order dated 29.03.2011 passed by the DRT. Being aggrieved with the order dated 09.11.2011 passed by the DRAT, respondent No.4 filed a writ petition before this Court bearing W.P. (227) No. 7367/2011 which was allowed on 02.03.2017 and the DRAT was directed to decide the appeal preferred by the Bank and the auction purchaser, in accordance with law and on its own merits at the earliest, preferably within a period of six months from today. Thereafter, the matter was finally heard by the DRAT and the DRAT vide order dated 20.07.2018 dismissed the appeal filed by the respondent Bank as well as by the petitioner/auction purchaser holding that the respondent bank has proceeded in utter disregard to the mandatory provisions contained under the SARFAESI Act, 2002 the act and the rules made therein, resultantly, the proceedings were held to be illegal and affirmed the order passed by the DRT. Hence, this petition. 4. Mr. Prafull N. Bharat, Senior Advocate assisted by Mr. Anand Dadariya, Advocate for the petitioner would submit that the order passed by the DRAT is bad in law, perverse, unconstitutional and is liable to be quashed. Hence, this petition. 4. Mr. Prafull N. Bharat, Senior Advocate assisted by Mr. Anand Dadariya, Advocate for the petitioner would submit that the order passed by the DRAT is bad in law, perverse, unconstitutional and is liable to be quashed. He would further submit that the DRAT has wrongly held that the respondent Bank has committed grave irregularity in not deciding the representation before proceeding further and violated the provisions of Section 13(3A) of the SARFAESI Act, 2002 and has failed to take into account that the borrower must have shown his readiness and willingness to repay the amount. He would further submit that the learned DRAT ought to have accepted the version of the Bank that by mistake the date of possession 03.12.2007 was typed as 05.12.2007 wrongly, as the date of taking possession and publication cannot be on the same date. Even otherwise, it is merely a typographical error, therefore, the petitioner/auction purchaser cannot be made to suffer. He would further submit that the DRAT ought to have taken note of the fact that auction was originally decided to be held at 11:00 am on 24.06.2008, but on account of the objection raised by respondent No. 4 that his writ petition is likely to be decided on the same day by the High Court of Madhya Pradesh, Jabalpur it was postponed to 3 P.M. and only after telephonically knowing from the Bank's Advocate at Jabalpur regarding dismissal of the said writ petition, the auction proceedings was initiated, thus the same was continued beyond working hours of Bank's cash transaction. Thereafter, the petitioner deposited Rs. 3,56,250/- on the same day but the same credited along with the reserved price of Rs 2,20,000/- total Rs 5,76,250, into petitioner's cash credit loan account on 28.06.2008. He would further submit that 25% and thereafter 75% of the sale price were deposited in time. The petitioner has deposited 100% of the sale price and even otherwise his payment was accepted and at no point of time the petitioner was issued any notice for not depositing the same in time. As such the action of the petitioner in depositing the whole sale price cannot be said to be faulted at this stage and it cannot be held that there is non- compliance of the Rule 9(4) of the Security Interest (Enforcement) Rules, 2002 (for short “the Rules, 2002”). 5. As such the action of the petitioner in depositing the whole sale price cannot be said to be faulted at this stage and it cannot be held that there is non- compliance of the Rule 9(4) of the Security Interest (Enforcement) Rules, 2002 (for short “the Rules, 2002”). 5. He would further submit that immediately after issuance of sale confirmation certificate on 31.03.2009, the sale price pursuant to auction has been credited to the petitioner's account and after adjusting the loan amount of Rs. 14,17,749.60/-, the same has been returned back to the guarantor through Bank's pay order, as such there is no apparent illegality in the whole proceeding which was drawn with the paramount interest of recovery of the amount due from the borrower. He would further submit that the DRAT ought to have held that since the loan has not been repaid, the right of the secured creditor to proceed for recovery against the secured assets is valid and as a consequence thereof the legally and validly drawn auction proceedings are also valid. He would further submit that the DRAT has arrived at a wrong conclusion and has given a perverse finding that representation dated 17.08.2007 and notice dated 21.07.2007 have not been replied whereas the fact is that the notices were never received and the representation was dismissed. He would further submit that the DRAT has erred in law and fact in holding that the process of taking possession is defective and is not in accordance with the provisions of Sections 13(3A) & 13(4) of the SARFAESI Act, 2002 . He would further submit that the secured price was Rs. 22,00,000/- and the petitioner’s bid was at a substantially higher side at Rs. 23,50,000/-. The entire bid amount has been paid by the petitioner on 08.07.2008, pursuant to which, the auction was duly confirmed and the sale certificate was also issued which was ultimately registered on 29.03.2009. As such, the auction proceeding ought to have been held to be valid in accordance with the provisions of the SARFAESI Act, 2002 . 6. 23,50,000/-. The entire bid amount has been paid by the petitioner on 08.07.2008, pursuant to which, the auction was duly confirmed and the sale certificate was also issued which was ultimately registered on 29.03.2009. As such, the auction proceeding ought to have been held to be valid in accordance with the provisions of the SARFAESI Act, 2002 . 6. He would further submit that despite sufficient time granted to respondent No. 4 initiating the proceedings under the SARFAESI Act, 2002 and also by the DRT vide its order dated 29.03.2011 granting him 45 days time to liquidate the dues, respondent No. 4 failed to discharge his liability, as such auction proceedings drawn for recovery of public money cannot be faulted with for technical reasons. He would further submit that the petitioner obtained information under Right to Information Act, 2005, pursuant to which, it was informed that the respondent No. 4 has not repaid the amount due and would pray for allowing the petition. To substantiate his submission, he would refer to the judgment rendered by Hon’ble the Supreme Court in case of PHR Invent Educational Society Vs. UCO Bank, (2024) 6 SCC 579 , Celir LLP Vs. Bafna Motors (Mumbai) (P) Ltd. (2024) 2 SCC 1 , Arce Polymers (P) Ltd. Vs. Alpine Pharmaceuticals (P) Ltd. (2022) 2 SCC 221, ITC Ltd. Vs. Blue Coast Hotels Ltd. (2018) 15 SCC 99 , Dwarika Prasad Vs. State of U.P. (2018) 5 SCC 491 , Sadashiv Prasad Singh Vs. Harendar Singh, (2015) 5 SCC 574 and G.M. Sri Siddeshwara Cooperative Bank Ltd. Vs. Ikbal, (2013) 10 SCC 83 . 7. Respondents No. 1 to 3/ Bank have not disputed about the cash credit facilities of respondent No. 4 and subsequent enhancement of it’s limit contending that after the order passed by the DRAT, the Bank has sent several notice/letter to respondent No.4 stating that "you have not deposited the amount to liquidate the dues and we are requesting you to deposit the entire dues along with interest as on date in compliance of order of Hon'ble DRAT and DRT" but he has not deposited any dues till date. Similarly the Bank sent a letter to the petitioner and requested him for receiving bid amount as per order of DRT and for submitting the sale deed, but the petitioner has also failed to comply with the same. Similarly the Bank sent a letter to the petitioner and requested him for receiving bid amount as per order of DRT and for submitting the sale deed, but the petitioner has also failed to comply with the same. It is further contended that respondent No. 4 has not deposited the dues of the Bank and as on 31.12.2021, the total due is Rs 37,90,166/-. It is further contended that the Hon'ble Court has granted interim protection in favour of the petitioner/auction purchaser and respondent No. 4/borrower has not deposited the dues of the respondent Bank, therefore, the Bank is not in a position to take any step in compliance of the order of DRT & DRAT. So far as auction proceeding is concerned, it has been contended that the auction proceeding has been strictly conducted in accordance with the SARFAESI Act, 2002 and the rules made therein. The DRT & DRAT have committed illegality in entering in the auction proceedings, as such the order setting aside the auction proceedings, is bad in law. 8. Respondent No. 4/borrower has filed return/additional submission mainly supporting the impugned orders passed by the DRT & DRAT and contended that the petitioner from very beginning of the auction proceedings was aware of the fact that the matter was subjudice still he has participated in the auction proceedings on his own risk and free will, as such the submission made by the petitioner to justify the auction proceedings, is not permissible and liable to be rejected by this Court. He has also referred to the audio-visual recordings of the concerned officials of the respondent Bank (as on 11.05.2011) to demonstrate the short comings of the auction proceedings and he has challenged the illegal auction proceedings initiated by the Bank along with a Demand Draft of Rs 3,50,000/- drawn in the name of the Branch Manager, UCO Bank, Bhilai before the DRT for the timely compliance of it's judgment as evident from the order-sheet dated 13.05.2011 of the DRT. He would further submit that the petitioner and the respondent Bank were informed in writing about the same by respondent No. 4. He would further submit that the petitioner and the respondent Bank were informed in writing about the same by respondent No. 4. It has been further contended that as the auction proceeding has rightly been set aside by the DRT, he is enjoying living peacefully in his residential house which may be adversely affected if the order passed by the DRT & DRAT is set aside by this Court. It is further contended that it is a matter of records that the respondent Bank has initiated incorrect auction proceeding flouting mandatory provisions of the SARFAESI Act, 2002 and the rules made therein which has been rightly set aside by the DRT & DRAT. He would further submit that respondent No. 4 was the borrower of the respondent Bank and not disputing about the cash credit facilities provided by the Bank and due to alleged murder of his sister, respondent No. 4 and his mother who was guarantor of the loan transaction, were running pillar to post to get the crime registered and get justice in the above- mentioned crime. As such, his business was badly affected which has caused bank account to be non-performing asset. 9. He would further submit that without any rhyme or reason, the landlord who incidentally was a co-worker with the brother-in-law of the main accused, all of a sudden had asked respondent No. 4 to vacate his shop in-spite of a valid tenancy agreement in place, to which respondent No. 4 had objected and refused, as it would have adversely affected his thriving business. Thereinafter, in the intervening night of 28.02.2005 and 01.03.2005, the landlord broke the shop of respondent No. 4 and removed stock of around Rs. 12.50 lacs, along with the office furniture and fixtures of around Rs. 3.50 lacs. Even all office records were taken which relates to the accounts and inventory, on 01.03.2005, respondent No. 4 caught the Tata-407 vehicle, still laden with the hypothecated and insured stock and other office material, which was used in this crime and reported the matter to the P.S. Supela, Bhilai, whose police personnel took the said vehicle and its driver along with the looted material to the Police Station (P.S. Supela) on 01.03.2005. Respondent No. 4 filed a formal complaint thereinafter, and submitted a hand-written list of the material in the used vehicle (Tata-407) to the Police. Respondent No. 4 filed a formal complaint thereinafter, and submitted a hand-written list of the material in the used vehicle (Tata-407) to the Police. In the meanwhile, on the basis of the complaint made by respondent No. 4 herein, the landlord and his two associates in the said crime (as per the vehicle driver's narration) were also summoned to the Police Station stating that, material list should be a typed one for clarity, the Duty Officer/SHO sent respondent No. 4 to get it typed. Thereafter, when respondent No. 4 returned to the Police Station with the typed copy of the list of material, he was shocked to learn that the caught vehicle, it's driver and the main three culprits had been released on 'muchalkas' of nominal amounts, with the entire material which were loaded on the vehicle. The police assigned a Police Officer as the Investigating Officer in the matter and the police finally informed him that, the inspection of the shop would be done on 10.03.2005. This was informed to the Bank in writing, with a request to have its representation during the inspection, and also to have someone from the insurance company to be present during this inspection. But during the shop inspection, neither the Bank nor the insurance company, sent anyone. Respondent No. 4 even requested the Bank to convert his cash credit limit into a term loan, since the mortgaged property was ample to cover this request, but the Bank did not pay any heed. 10. He would further submit that in 2007-08, the Bank sent a notice to respondent No. 4/ borrower and his mother /guarantor under Section 13(2) of the SARFAESI Act, 2002 wherein respondent No. 4 raised objections in view of the circumstances of the case under Section 13(3) of the SARFAESI Act, 2002 . Without addressing these objections as mandated by the SARFAESI Act, 2002 , the Bank issued a notice under Section 13(4) of the SARFAESI Act, 2002 and started initiating the auction process, therefore, being aggrieved by this act, respondent No. 4 approached the DRT and filed a securitisation appeal therein which is still pending but the Bank proceeded with the auction proceedings and stay application was being heard by the Hon'ble High Court of Madhya Pradesh at Jabalpur, despite this, the respondent Bank auctioned the mortgaged property to the petitioner/auction purchaser. He would further submit that records of the respondent Bank of this auction proceeds themselves, depict how rules, provisions of the SARFAESI Act, 2002 and the connected law of the land were openly flouted and even falsified records appear to have been created. He would further submit that all such lacuna's/illegalities are reflected from the orders of the DRT & DRAT. He would further submit that respondent No. 4 deposited the uncashed Pay-Order/Banker's Cheque of Rs. 14,17,749.60 and also deposited a Demand Draft of Rs. 3,50,000/- with the Registrar, DRT Jabalpur on 13.05.2011, i.e. the final day for the compliance of the order dated 29.03.2011 and would pray for dismissal of the petition. 11. To substantiate his submission, he would refer to the judgment rendered by Hon’ble the Supreme Court in the case of Mardia Chemicals Ltd. & others Vs. Union of India, (2004) 4 SCC 311 , Arce Polymers Private Limited Vs. M/s Alpine Pharmaceuticals Private Limited & others, (2022) 2 SCC 221 , Avlokan Commosales Pvt. Ltd. & another Vs. State Bank of India & another, 2023 SCC Online Cal 2022 & Management Committee of Thakur Shree Banke Bihari Ji Maharaj Temple & another Vs. State of Uttar Pradesh in Writ Petition (Civil) No. 704/2025 decided on 08.08.2025. 12. On the aforesaid submissions made by the parties, the Point emerged for determination by this Court is:- “Whether the finding recorded by the DRT and affirmed by the DRAT with regard to the non-compliance of mandatory provisions of Section 13(4) of the SARFAESI Act, 2002 is legal and justified and the DRT & DRAT are justified to vitiate the auction proceedings initiated by the secured creditors?” Finding and discussion on the issue 13. To appreciate this Point, it is expedient for this Court to extract Section 13 of the SARFAESI Act, 2002 as well Rule 8 & 9 of the Rules, 2002 as the same are applicable in the present facts and circumstances of the case which are as under:- “ Section 13. Enforcement of security interest .— (1) Notwithstanding anything contained in section 69 or section 69A of the Transfer of Property Act, 1882 (4 of 1882), any security interest created in favour of any secured creditor may be enforced, without the intervention of court or tribunal, by such creditor in accordance with the provisions of this Act. Enforcement of security interest .— (1) Notwithstanding anything contained in section 69 or section 69A of the Transfer of Property Act, 1882 (4 of 1882), any security interest created in favour of any secured creditor may be enforced, without the intervention of court or tribunal, by such creditor in accordance with the provisions of this Act. (2) Where any borrower, who is under a liability to a secured creditor under a security agreement, makes any default in repayment of secured debt or any instalment thereof, and his account in respect of such debt is classified by the secured creditor as non-performing asset, then, the secured creditor may require the borrower by notice in writing to discharge in full his liabilities to the secured creditor within sixty days from the date of notice failing which the secured creditor shall be entitled to exercise all or any of the rights under sub-section (4). Provided that— (i) the requirement of classification of secured debt as non- performing asset under this sub-section shall not apply to a borrower who has raised funds through issue of debt securities; (ii) in the event of default, the debenture trustee shall be entitled to enforce security interest in the same manner as provided under this section with such modifications as may be necessary and in accordance with the terms and conditions of security documents executed in favour of the debenture trustee. (3) The notice referred to in sub-section (2) shall give details of the amount payable by the borrower and the secured assets intended to be enforced by the secured creditor in the event of non-payment of secured debts by the borrower. (3A) If, on receipt of the notice under sub-section (2), the borrower makes any representation or raises any objection, the secured creditor shall consider such representation or objection and if the secured creditor comes to the conclusion that such representation or objection is not acceptable or tenable, he shall communicate [within fifteen days] of receipt of such representation or objection the reasons for non-acceptance of the representation or objection to the borrower: Provided that the reasons so communicated or the likely action of the secured creditor at the stage of communication of reasons shall not confer any right upon the borrower to prefer an application to the Debts Recovery Tribunal under section 17 or the Court of District Judge under section 17A. (4) In case the borrower fails to discharge his liability in full within the period specified in sub-section (2), the secured creditor may take recourse to one or more of the following measures to recover his secured debt, namely:— (a) take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset; (b) take over the management of the business of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset: Provided that the right to transfer by way of lease, assignment or sale shall be exercised only where the substantial part of the business of the borrower is held as security for the debt: Provided further that where the management of whole of the business or part of the business is severable, the secured creditor shall take over the management of such business of the borrower which is relatable to the security for the debt; (c) appoint any person (hereafter referred to as the manager), to manage the secured assets the possession of which has been taken over by the secured creditor; (d) require at any time by notice in writing, any person who has acquired any of the secured assets from the borrower and from whom any money is due or may become due to the borrower, to pay the secured creditor, so much of the money as is sufficient to pay the secured debt. (5) Any payment made by any person referred to in clause (d) of sub-section (4) to the secured creditor shall give such person a valid discharge as if he has made payment to the borrower. (As it stood prior to amendment on 15.01.2013) (6) Any transfer of secured asset after taking possession thereof or take over of management under sub-section (4), by the secured creditor or by the manager on behalf of the secured creditor shall vest in the transferee all rights in, or in relation to, the secured asset transferred as if the transfer had been made by the owner of such secured asset. (7) Where any action has been taken against a borrower under the provisions of sub-section (4), all costs, charges and expenses which, in the opinion of the secured creditor, have been properly incurred by him or any expenses incidental thereto, shall be recoverable from the borrower and the money which is received by the secured creditor shall, in the absence of any contract to the contrary, be held by him in trust, to be applied, firstly, in payment of such costs, charges and expenses and secondly, in discharge of the dues of the secured creditor and the residue of the money so received shall be paid to the person entitled thereto in accordance with his rights and interests. (8) It the dues of the secured creditor together with all costs, charges and expenses incurred by him are tendered to the secured creditor at any time before the date fixed for sale or transfer, the secured asset shall not be sold or transferred by the secured creditor, and no further step shall be taken by him for transfer or sale of that secured asset. (As it stood prior to amendment on 01.09.2016) (9) [Subject to the provisions of the Insolvency and Bankruptcy Code, 2016, in the case of] financing of a financial asset by more than one secured creditors or joint financing of a financial asset by secured creditors, no secured creditor shall be entitled to exercise any or all of the rights conferred on him under or pursuant to sub-section (4) unless exercise of such right is agreed upon by the secured creditors representing not less than [sixty per cent.] in value of the amount outstanding as on a record date and such action shall be binding on all the secured creditors: Provided that in the case of a company in liquidation, the amount realised from the sale of secured assets shall be distributed in accordance with the provisions of section 529A of the Companies Act, 1956 (1 of 1956): Provided further that in the case of a company being wound up on or after the commencement of this Act, the secured creditor of such company, who opts to realise his security instead of relinquishing his security and proving his debt under proviso to sub-section (1) of section 529 of the Companies Act, 1956 (1 of 1956), may retain the sale proceeds of his secured assets after depositing the workmen's dues with the liquidator in accordance with the provisions of section 529A of that Act: Provided also that liquidator referred to in the second proviso shall intimate the secured creditor the workmen's dues in accordance with the provisions of setion 529A of the Companies Act, 1956 (1 of 1956) and in case such workmen's dues cannot be ascertained, the liquidator shall intimate the estimated amount of workmen's dues under that section to the secured creditor and in such case the secured creditor may retain the sale proceeds of the secured assets after depositing the amount of such estimate dues with the liquidator: Provided also that in case the secured creditor deposits the estimated amount of workmen's dues, such creditor shall be liable to pay the balance of the workmen's dues or entitled to receive the excess amount, if any, deposited by the secured creditor with the liquidator: Provided also that the secured creditor shall furnish an undertaking to the liquidator to pay the balance of the workmen's dues, if any. Explanation.—For the purposes of this sub-section— (a) “record date” means the date agreed upon by the secured creditors representing not less than [sixty per cent.] in value of the amount outstanding on such date; (b) “amount outstanding” shall include principal, interest and any other dues payable by the borrower to the secured creditor in respect of secured asset as per the books of account of the secured creditor. (10) Where dues of the secured creditor are not fully satisfied with the sale proceeds of the secured assets, the secured creditor may file an application in the form and manner as may be prescribed to the Debts Recovery Tribunal having jurisdiction or a competent court, as the case may be, for recovery of the balance amount from the borrower. (11) Without prejudice to the rights conferred on the secured creditor under or by this section, the secured creditor shall be entitled to proceed against the guarantors or sell the pledged assets without first taking any of the measured specifies in clauses (a) to (d) of sub-section (4) in relation to the secured assets under this Act. (12) The rights of a secured creditor under this Act may be exercised by one or more of his officers authorised in this behalf in such manner as may be prescribed. (13) No borrower shall, after receipt of notice referred to in sub-section (2), transfer by way of sale, lease or otherwise (other than in the ordinary course of his business) any of his secured assets referred to in the notice, without prior written consent of the secured creditor. Rule 8 of the Rules, 2002- Sale of immovable secured assets.- (1) Where the secured asset is an immovable property, the authorised officer shall take or cause to be taken possession, by delivering a possession notice prepared as nearly as possible in Appendix IV to these rules, to the borrower and by affixing the possession notice on the outer door or at such conspicuous place of the property. (2) The possession notice as referred to in sub-rule (1) shall also be published, as soon as possible but in any case not later than seven days from the date of taking possession, in two leading newspaper] one in vernacular language having sufficient circulation in that locality, by the authorised officer. (2) The possession notice as referred to in sub-rule (1) shall also be published, as soon as possible but in any case not later than seven days from the date of taking possession, in two leading newspaper] one in vernacular language having sufficient circulation in that locality, by the authorised officer. [(2A) All notices under these rules may also be served upon the borrower through, in addition to the modes prescribed under sub-rule (1) and sub-rule (2) of rule 8. [As it stood prior to amendment on 04.11.2016] (3) In the event of possession of immovable property is actually taken by the authorised officer, such property shall be kept in his own custody or in the custody of any person authorised or appointed by him, who shall take as much care of the property in his custody as a owner of ordinary prudence would, under the similar circumstances, take of such property. (4) The authorised officer shall take steps for preservation and protection of secured assets and insure them, if necessary, till they are sold or otherwise disposed off. (5) Before effecting sale of the immovable property referred to in sub-rule (1) of rule 9, the authorised officer shall obtain valuation of the property from an approved valuer and in consultation with the secured creditor, fix the reserve price of the property and may sell the whole or any part of such immovable secured asset by any of the following methods:- (a) by obtaining quotations from the persons dealing with similar secured assets or otherwise interested in buying the such assets; or (b) by inviting tenders from the public; [(c) by holding public auction [As it stood prior to amendment on 04.11.2016] (d) by private treaty. (6) the authorised officer shall serve to the borrower a notice of thirty days for sale of the immovable secured assets, under sub- rule (5): Provided that if the sale of such secured asset is being effected by either inviting tenders from the public or by holding public auction, the secured creditor shall cause a public in two leading newspapers including one in vernacular language having sufficient circulation in the locality by setting out the terms of sale which shall include. (a) the description of the immovable property to be sold, including the details of the encumbrances known to the secured creditor; (b) the secured debt for recovery of which the property is to be sold; (c) reserve price below which the property may not be sold; (d) time and place of public auction or the time after which sale by any other mode shall be completed; (e) deposit of earnest money as may be stipulated by the secured creditor; (f) any other things which the authorized officer considers it material for a purchaser to know in order to judge the nature and value of the property. [As it stood prior to amendment on 18.10.2018] (7) every notice of sale shall be affixed on the conspicuous part of the immovable property and may if the authorised officer deem it fit put on the web- site of the secured creditor on the interest. [As it stood prior to amendment on 18.10.2018] (8) Sale by any methods other than public auction or public tender, shall be on such terms as may be settled [between the secured creditors and the proposed purchaser in writing. Rule 9 of the Rules, 2002- Time of sale, Issue of sale certificate and delivery of possession, etc. (1) No sale of immovable property under these rules shall take place before the expiry of thirty days from the date on which the public notice of sale is published in newspapers as referred to in the proviso to sub-rule (6) or notice of sale has been served to the borrower: Provided further that if sale of immovable property by any one of the methods specified by sub rule (5) of rule 8 fails and sale is required to be conducted again, the authorized officer shall serve, affix and publish notice of sale of not less than fifteen days to the borrower, for any subsequent sale. [As it stood prior to amendment on 04.11.2016] (2) The sale shall be confirmed in favour of the purchaser who has offered the highest sale price in his bid or tender or quotation or offer to the authorised officer and shall be subject to confirmation by the secured creditor: Provided that no sale under this rule shall be confirmed, if the amount offered by sale price is less than the reserve price, specified under sub-rule (5) of [rule 9]: [As it stood prior to amendment on 04.11.2016] Provided further that if the authorised officer fails to obtain a price higher than the reserve price, he may, with the consent of the borrower and the secured creditor effect the sale at such price. [(3) On every sale of immovable property, the purchaser shall immediately, deposit of twenty five per cent of the amount of the sale price, to the authorized officer conducting the sale and in default of such deposit, the property shall be sold again;] [As it stood prior to amendment on 04.11.2016] (4) The balance amount of purchase price payable shall be paid by the purchaser to the authorised officer on or before the fifteenth day of confirmation of sale of the immovable property or such extended period [as may be agreed upon in writing between the purchaser and the secured creditor, in any case not exceeding three months]. (5) In default of payment within the period mentioned in sub-rule (4), the deposit shall be forfeited [to the secured creditor] and the property shall be resold and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may be subsequently sold. (6) On confirmation of sale by the secured creditor and if the terms of payment have been complied with, the authorised officer exercising the power of sale shall issue a certificate of sale of the immovable property in favour of the purchaser in the Form given in Appendix V to these rules. (7) Where the immovable property sold is subject to any encumbrances, the authorised officer may, if he thinks fit, allow the purchaser to deposit with him the money required to discharge the encumbrances and any interest due thereon together with such additional amount that may be sufficient to meet the contingencies or further cost, expenses and interest as may be determined by him. [Provided that if after meeting the cost of removing encumbrances and contingencies there is any surplus available out of money deposited by the purchaser such surplus shall be paid to the purchaser within fifteen day, from date of finalisation of the sale.] (8) On such deposit of money for discharge of the encumbrances, the authorised officer [shall] issue or cause the purchaser to issue notices to the persons interested in or entitled to the money deposited with him and take steps to make, the payment accordingly. (9) The authorised officer shall deliver the property to the purchaser free from encumbrances known to the secured creditor on deposit of money as specified in sub-rule (7) above. (10) The certificate of sale issued under sub-rule (6) shall specifically mention that whether the purchaser has purchased the immovable secured asset free from any encumbrances known to the secured creditor or not.” 14. From perusal of records of the DRAT, it is quite vivid that respondent No. 4 has filed an appeal under Section 17 of the SARFAESI Act, 2002 briefly contending that despite dispute created by the landlord, he continued to operate the bank account and he was having Rs. 5.50 lacs in the account and also paid interest to the Bank. He also submitted an application on 14.07.2007 for providing installment facilities but no consideration has been made and a notice dated 21.07.2007 under Section 13 (2) of the SARFAESI Act, 2002 was issued to him and he has deposited Rs. 50,000/- with the Bank. Thereafter, notice under Section 13(4) of the Act, 2002 for possession of the mortgaged property was issued on 03.12.2007 & 05.12.2007 and possession notice was given to respondent No. 4 on 03.12.2007. It is quite vivid from records that 50% of the loan amount i.e. Rs. 3,34,000/- was paid by respondent No. 4. 15. The record of the case would further reflect that the Bank has raised objection on 13.12.2010 about maintainability of the appeal as Smt. Shyama Mehta i.e. guarantor has not preferred an appeal and the mortgaged property has already been purchased by the petitioner on 24.06.2008 but has not denied the contentions made by the respondent No. 4/borrower regarding non-deposit of 25% of the amount by the auction purchaser. From perusal of the order passed by the DRT and affirmed by the DRAT, it is quite vivid that the DRT has considered the ground for setting aside the sale of the secured assets on the count that the notice dated 03.12.2007 was published on 05.12.2007 and possession was taken on the same day i.e. on 05.12.2007 which is violation of Rule 8(1) of the Rules, 2002 which provides that the possession notice has to be delivered as soon as possible in Appendix-IV to these rules, to the borrower and by affixing the possession notice on the outer door or at such conspicuous place of the property. This was not disputed by the secured creditor/Bank that the notice was served upon respondent No. 4 on 05.12.2007. 16. It is well settled position of law that a defect in conducting the proceeding is always not fatal to vitiate the entire proceedings but any defect which has caused prejudice to the person can vitiate the entire proceedings. It is also well settled position of law that a secured creditor’s action only be set aside if the procedure lapses caused substantial prejudice to the borrower trivial irregularities that do not impact the core sale process are not sufficient ground for declaring the action to be null and void and it is equally well settled that the nature of the procedure lapses and the actual prejudice causes is a factual question to be decided on a case by case basis. On these principles, the fact of the case has to be ascertained by this Court. 17. Rule 8(1) of the Rules, 2002 has significance role to play as the borrower can be duly informed with regard to the proposed possession to be taken by the Bank or he can take necessary steps to pay the loan to avoid this possession proceedings which have been denied by the Bank in the present case. 17. Rule 8(1) of the Rules, 2002 has significance role to play as the borrower can be duly informed with regard to the proposed possession to be taken by the Bank or he can take necessary steps to pay the loan to avoid this possession proceedings which have been denied by the Bank in the present case. Even Section 13(8) of the SARFAESI Act, 2002 as stood prior to amendment (1 st September, 2016) provides that if the dues of the secured creditor together with all costs, charges and expenses incurred by him are tendered to the secured creditor at any time before the date fixed for sale or transfer, the secured assets shall not be sold or transferred by the secured creditor and no further steps shall be taken by him for transfer of sale of that secured asset. Rule 8(1) of the Rules, 2002 also provides that notice before possession should also been served upon the borrower and Section 13(8) of the Rules, 2002 also provides that the opportunity to the borrower to repay the loan should be given. As such it is incumbent upon the Bank to give notice to the respondent No. 4/borrower as per the provisions of the SARFAESI Act, 2002 which they miserably failed to adhere it, thus, the respondent No. 4/ borrower is prejudicially affected by not giving the notice. 18. Hon’ble the Supreme Court has considered the provisions of Section 13(8) of the SARFAESI Act, 2002 prior to its amendment in case of M. Rajendran & others Vs. M/s KPK Oils & Proteins India Pvt. Ltd. 2025 INSC 1144 and has held in paragraphs 72, 73, 76, 79, 80, 81, 82 as under:- 72. Prior to the amendment to Section 13(8) of SARFAESI Act, in the case of Mathew Varghese (supra) this Court had applied the principles pertaining to redemption of mortgage as enshrined in Section 60 of the Transfer of Property Act, 1882 (for short, the “TP Act”) for construing the pre-amendment provision of Section 13(8) of the SARFEASI Act. 73. Section 60 of the TP Act provides the general statutory right of the mortgagor to redeem the mortgage and reads as below: - “60. 73. Section 60 of the TP Act provides the general statutory right of the mortgagor to redeem the mortgage and reads as below: - “60. Right of mortgagor to redeem.– At any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage- money, to require the mortgagee (a) to deliver to the mortgagor the mortgage deed and all documents relating to the mortgaged property which are in the possession or power of the mortgage, (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re- transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgage has been extinguished: Provided that the right conferred by this section has not been extinguished by act of the parties or by decree of a Court. The right conferred by this section is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgage shall be entitled to reasonable notice before payment or tender of such money. Redemption of portion of mortgaged property.— Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage, except only where a mortgagee, or, if there are more mortgages than one, all such mortgages, has or have acquired, in whole or in part, the share of a mortgagor.” 76. The erstwhile provision of Section 13 sub-section (8) of the SARFAESI Act, as originally enacted, read as under: - “13. The erstwhile provision of Section 13 sub-section (8) of the SARFAESI Act, as originally enacted, read as under: - “13. Enforcement of security interest.– (8) If the dues of the secured creditor together with all costs, charges and expenses incurred by him are tendered to the secured creditor at any time before the date fixed for sale or transfer, the secured asset shall not be sold or transferred by the secured creditor, and no further step shall be taken by him for transfer or sale of that secured asset.” 79. In Dwarika Prasad v. State of Uttar Pradesh reported in (2018) 5 SCC 491 , this Court considered the unamended Section 13(8) of the SARFAESI Act, keeping in mind the decision in the case of Mathew Varghese (supra) and held that the right of redemption of mortgage is not lost until there is a transfer by a registered instrument. The relevant observations read as under: - “8. [...] These provisions have fallen for interpretation before this Court in Mathew Varghese. Dwelling on Section 60 of the Transfer of the Property Act, 1882 this Court held that the right of redemption is available to a mortgagor unless it stands extinguished by an act of parties. The right of the mortgagor to redeem the property survives until there has been a transfer of the mortgagor's interest by a registered instrument of sale. [...]” 80. In, yet one another decision of this Court in Allokam Peddabbayya & Anr. v. Allahabad Bank & Ors. (2017) 8 SCC 272 , a similar view was taken, that the right of redemption is lost once the property is put to auction and a sale certificate is issued in lieu thereof. The relevant observations made therein are as under: - “23. The aforesaid discussion leads to the conclusion that the plaintiffs lost the right to sue for redemption of the mortgaged property by virtue of the proviso to Section 60 of the Act, no sooner that the mortgaged property was put to auction-sale in a suit for foreclosure and sale certificate was issued in favour of Defendant 2. There remained no property mortgaged to be redeemed. The right to redemption could not be claimed in the abstract.” 81. There remained no property mortgaged to be redeemed. The right to redemption could not be claimed in the abstract.” 81. Prior to the amendment to Section 13 sub-section (8) of the SARFAESI Act, the position of law that prevailed, as per the decision of Mathew Varghese (supra), was that the principle underlying Section 60 of the TP Act was extended and applied to Section 13(8) of the SARFAESI Act to hold that the borrower has absolute right to redeem the property by repaying the debt before the sale of such property. 82. Thus, prior to the amendment of Section 13(8) of the SARFAESI Act, this Court consistently held, that the borrower shall continue to have a right of redemption of mortgage until the execution of the conveyance of the secured asset by way of a registered instrument.” 19. From perusal of the Rule 8(1) of the Rules, 2002, it is quite vivid that the service of possession notice to respondent No. 4/ borrower is mandatory and in absence of the same, his right has been prejudicially affected as he will have no opportunity to take shelter of Section 13 (8) of the SARFAESI Act, 2002 . The DRT & DRAT have rightly taken the view which neither suffers from perversity nor illegality which warrants interference by this Court, therefore, the submission made by the learned Senior counsel for the petitioner that the auction proceeding conducted by the Bank should not be set aside, deserves to be rejected and accordingly, it is rejected. 20. Further submission of learned Senior counsel for the petitioner/auction purchaser that the DRT has committed illegality in setting aside the sale on the count of non-deposit of 25% at the time of auction and remaining amount of 75% within the time period, is being considered by this Court. To appreciate this submission, this Court has already taken into consideration Rule 9(3) of the Rules, 2002 which provides that on every sale of immovable property, the purchaser shall immediately deposit of 25% of the amount of the sale price to the authorized officer conducting the sale and in default of such deposit, the property shall forthwith be sold again. The record of the case would show that the auction was conducted on 24.04.2008 and only 15% of the sale price i.e. Rs. 3,56,250/- on 28.06.2008 whereas he has to deposit Rs. The record of the case would show that the auction was conducted on 24.04.2008 and only 15% of the sale price i.e. Rs. 3,56,250/- on 28.06.2008 whereas he has to deposit Rs. 5,76,225/- and 25% of sale price was considered to fulfill the requirement of Rule 9(3) of the Rules, 2002 by adding 10% of earnest money deposited by the auction purchaser which is against the rules as well as the law laid down by Hon’ble the Supreme Court in case of GM, Sri Siddeshwara Co-operative Bank Ltd. (supra) wherein it has been held in paragraphs 13 & 14 as under:- “13. The 2002 Rules have been framed by the Central Government in exercise of the powers conferred on it by sub- section (1) and clause (b) of sub-section (2) of Section 38 read with sub-sections (4), (10) and (12) of Section 13 of the SARFAESI Act. Rule 9 provides for the detailed procedure with regard to sale of immovable property including issuance of sale certificate and delivery of possession. 13.1. Sub-rule (1) of Rule 9 states that no sale of immovable property shall take place before the expiry of 30 days from the date on which the public notice of sale is published in newspapers as referred to in the proviso to sub-rule (6) or notice of sale has been served to the borrower. 13.2. Sub-rule (2) provides that sale shall be confirmed in favour of the purchaser who has offered the highest sale price in his bid. This is subject to confirmation by the secured creditor. There is a proviso appended to sub-rule (2) which provides that no sale under this rule shall be confirmed if the amount offered by sale price is less than the reserve price but this is relaxable in view of the second proviso appended to sub-rule (2). 13.3. Sub-rule (3) lays down that on every sale of immovable property, the purchaser shall immediately make the deposit of 25% of the amount of the sale price. In default of such deposit, the property shall forthwith be sold again. 13.4. Sub-rule (4) provides that the balance amount of purchase price payable shall be paid by the purchaser on or before the fifteenth day of confirmation of sale of the immovable property or such extended period as may be agreed upon in writing between the parties. 13.5. In default of such deposit, the property shall forthwith be sold again. 13.4. Sub-rule (4) provides that the balance amount of purchase price payable shall be paid by the purchaser on or before the fifteenth day of confirmation of sale of the immovable property or such extended period as may be agreed upon in writing between the parties. 13.5. Sub-rule (5) makes a provision that if the balance amount of purchase price is not paid as required under sub-rule (4), then the deposit shall be forfeited and the property shall be resold and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may be subsequently sold. 13.6. According to sub-rule (6), on confirmation of sale by the secured creditor and if the terms of payment have been complied with, the authorised officer exercising power of sale shall issue a certificate of sale of the immoveable property in favour of the purchaser in the form given in Appendix V to the 2002 Rules. 14. A reading of sub-rule (1) of Rule 9 makes it manifest that the provision is mandatory. The plain language of Rule 9(1) suggests this. Similarly, Rule 9(3) which provides that the purchaser shall pay a deposit of 25% of the amount of the sale price on the sale of immovable property also indicates that the said provision is mandatory in nature. As regards balance amount of purchase price, sub-rule (4) provides that the said amount shall be paid by the purchaser on or before the fifteenth day of confirmation of sale of immovable property or such extended period as may be agreed upon in writing between the parties. The period of fifteen days in Rule 9(4) is not that sacrosanct and it is extendable if there is a written agreement between the parties for such extension. What is the meaning of the expression ‘written agreement between the parties’ in Rule 9(4)? 2002 Rules do not prescribe any particular form for such agreement except that it must be in writing. The use of term ‘written agreement’ means a mutual understanding or an arrangement about relative rights and duties by the parties. For the purposes of Rule 9(4), the expression “written agreement” means nothing more than a manifestation of mutual assent in writing. 2002 Rules do not prescribe any particular form for such agreement except that it must be in writing. The use of term ‘written agreement’ means a mutual understanding or an arrangement about relative rights and duties by the parties. For the purposes of Rule 9(4), the expression “written agreement” means nothing more than a manifestation of mutual assent in writing. The word ‘parties’ for the purposes of Rule 9(4) we think must mean the secured creditor, borrower and auction purchaser.” 21. The DRT & DRAT considering the fact that only 15% of the amount was deposited by the petitioner/auction purchaser on 25.06.2008 which is clear violation of the Rules, 2002, accordingly, it has set aside the auction sale conducted by the respondent/Bank. This finding is neither perverse nor contrary to the provisions of law which warrants interference by this Court. Accordingly, the submission made by learned Senior counsel for the petitioner that due to non-depositing of 25% of the amount, the sale is not liable to be set aside, deserves to be rejected and accordingly, it is rejected. 22. Learned DRT while considering the submissions made by the parties, has specifically recorded its finding that the borrower has submitted representation on 17.08.2007 after receipt of notice dated 21.07.2007 which has not been replied by the Bank which is violation of Section 13(3)(A) of the SARFAESI Act, 2002 and has vitiated the sale and thereafter the DRAT has directed the respondent Bank to return the purchased price paid by the petitioner/ auction purchaser with interest from the date of purchase on 28.06.2008 to 21.03.2009. The finding of the DRT is in accordance with the provisions of Section 13(3)(A) of the SARFAESI Act, 2002 as this Section clearly provides that if on receipt of notice under sub-Section 2, the borrower makes any representation or raise any objection, the secure creditor shall consider such representation and decision shall be communicated to the borrower. The borrower has not disputed the facts that the representation has not been considered by them as reflected from the findings given by the DRAT in its order. The finding recorded by the DRAT reads as under:- “The learned Advocate for the Bank fairly conceded that these representations were not replied.” 23. Learned Senior counsel for the petitioner/auction purchaser is not in a position to dispute this factual finding. The finding recorded by the DRAT reads as under:- “The learned Advocate for the Bank fairly conceded that these representations were not replied.” 23. Learned Senior counsel for the petitioner/auction purchaser is not in a position to dispute this factual finding. Thus, the finding recorded by the learned DRT that the respondents have not considered the representation of the petitioner which is in violation of Section 13(4) of the SARFAESI Act, 2002 , does not suffer from perversity or illegality warranting interference by this Court. Thus, the submission made by learned counsel for the petitioner/auction purchaser that respondent No. 4 has sufficient safeguard under Section 13(2) as well as Section 13(8) of the SARFAESI Act, 2002 which respondent No. 4 is unable to avail of it to seek protection due to non-consideration of his representation, is being considered. Learned Senior counsel for the petitioner to substantiate the submission has referred to the judgment rendered by Hon’ble the Supreme Court in case of Arce Polymers (P) Ltd. (supra) and would draw attention of this Court towards paragraph 17 of the judgment which reads as under:- “17. It is correct that waiver being an intentional relinquishment is not to be inferred by mere failure to take action, but the present case is of repeated positive acts post the notices under Sections 13(2) and (4) of the SARFAESI Act. Not only did the Borrower not question or object to the action of the Bank, but it by express and deliberate conduct had asked the Bank to compromise its position and alter the contractual terms. The Borrower wrote repeated request letters for restructuring of loans, which prayers were considered by the Bank by giving indulgence, time and opportunities. The Borrower, aware and conscious of its rights, chose to abandon the statutory claim and took its chance and even procured favourable decisions. Even if we are to assume that the Borrower did not waive the remedy, its conduct had put the Bank in a position where they have lost time, and suffered on account of delay and laches, which aspects are material. Action on the Subject Property was delayed by more than a year as at the behest of the Borrower, the Bank gave them a long rope to regularise the account. To ignore the conduct of the Borrower would not be reasonable to the Bank once third party rights have been created. Action on the Subject Property was delayed by more than a year as at the behest of the Borrower, the Bank gave them a long rope to regularise the account. To ignore the conduct of the Borrower would not be reasonable to the Bank once third party rights have been created. In this background, the principle of equitable estoppel as a rule of evidence bars the Borrower from complaining of violation.” 24. From perusal of the aforesaid paragraph, it is quite vivid that Hon’ble the Supreme Court due to waiver of right by the borrower and repeated positive acts post issued to the borrower and no objection raised by the borrower on the auction of the Bank and also considering the fact that the borrower wrote repeated request letters for restructuring of loan which were considered by the Bank by giving indulgence time and opportunity, has not considered the action of the Bank in deciding the representation of the borrower on the principle of waiver and conscious of the right. Hon’ble the Supreme Court in that case has also taken into consideration that the borrower was aware conscious of its right, chosen to abundant the statutory claim and took it chance and even procured favourable decision, which is not available in the present facts of the case as the petitioner from very beginning raising objection regarding the proceedings conducted by the Bank. Thus, the judgment cited by learned Senior counsel for the petitioner is distinguishable from the present facts of the case. It is pertinent to mention here that Hon’ble the Supreme Court on the principle of waiver has not appreciated the effect of non-compliance of Section 13(3A) of the SARFAESI Act, 2002 . The learned DRT after appreciating the facts and law has passed the impugned order which is in accordance with law and affirmed by the DRAT, does not warrant interference by this Court. Accordingly, the Point determined by this Court is answered against the petitioner and in favour of respondents. 25. Accordingly, the writ petition sans merit is liable to be and is hereby dismissed. No order as to costs. 26. The interim order passed by this Court on 12.03.2019 stands vacated.