1 WPC No.1025 of 2023 2025:CGHC:301 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPC No. 1025 of 2023 1. Ankit Mishra S/o Vipin Bihari Mishra Aged About 35 Years R/o Plot No. 149/3 Prayag Vihar Colony (Shikshak Samiti Colony) near Uslapur Railway Station, Bilaspur 495001 (C.G.) ... Petitioner 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 Chhattisgarh 3. Authorized Officer Of (BOI) Dharmesh Kumar Sinha, Branch Manager, G.D. Shesh Nelayam, Tatyapara Chowk Kankali Para Road, Raipur Chhattisgarh. 4. Branch Manager (BOI) Vyapar Vihar Branch Zone1, Plot 22 Vyapar Vihar, Bilaspur 495004 C.G. ... Respondents (Cause title is taken from Case Information System) For Petitioner : Shri Ravi Ranjan Sinha, Adv. with Shri Subham Singh, Advocate For Respondents : Shri Anand Shukla, Advocate Order on Board By Bibhu Datta Guru, J. 2 WPC No.1025 of 2023 3/1/2025 1. By the present writ petition, the petitioner is seeking a direction towards the respondent Bank to handover possession of the property in question to him and in alternative he is seeking a direction to refund EMD amount of Rs.4,94,000/- and 25% bid amount of Rs.7,47,500/- with interest at the rate of 18% per annum. 2. (i) Facts of the case, in brief, are that on 14/8/2022 the Bank of India has published an information regarding an e-auction in Haribhoomi Daily Newspaper, Raipur. wherein the Bank had invited the bidder for purchase of house of Ishwari Prasad Sahu, bearing Khasra No. 149/01 and 149/02, Plot No. 1/32, Mauza Uslapur, R.I. Sakri, Block and Tehsil Takhatpur, District Bilaspur, admeasuring 2400 sq.ft., boundary North 30 feet road, south plot of D.S. Bhatti, East road, West a plot of Akash Deep with the terms and the conditions of the alleged e-auction. (ii) On 26/09/2022, the Bank conducted e-auction through the MSTC whereas the petitioner has participated in this said e-auction through OnLine with the property ID no. BKIDRAT300422-06. The value of the property was Rs.49.41 lacs after issuance corrigendum. The Petitioner, had participated and deposited the EMD (Earnest Money Deposit) amount to the tune of Rs.4,94,000/- on 26/09/2022. After the bidding, the petitioner succeeded in the bid and as per the terms and conditions he also deposited 25% of the bid amount (including the EMD) of Rs.12,41,500/- in the account of the Bank as provided to him. The Sale intimation letter has also been issued to the petitioner on the very same day i.e. 26/09/2022. 3 WPC No.1025 of 2023 (iii) On 27/09/2022 the Bank issued a letter regarding confirmation of sale and also asked for deposit of balance of 75% of the entire bid amount within 15 days i.e. on or before 12/10/2022 at the concerned branch of the bank in account No.947290200000033. Subsequently on 10/10/2022 the petitioner wrote a letter stating for further proceeding but he was informed that the matter is still pending for permission of the District Magistrate and after this clearance registry of the house make possible. Looking to the delay in process of possession of the said house, the petitioner requested for extension of time upto 90 days. The Branch manager considered the said request extension was granted and permitted the petitioner to deposit the rest amount on 26/12/2022. Thereafter, the petitioner has arranged the rest amount and contacted & visited several times to the Branch Manager regarding the registry of the aforesaid property but the Branch Manager always said that the matter is pending before the Collector for his permission, while there are no such conditions. Since all the conditions were fulfilled by the petitioner, he requested the authorities to handover the said property but the same does not yielded any result. Thus, the petitioner sent a legal notice on 3.1.23 through pegistered post and in response to the same, the authorities submitted their reply on 25.1.23 and denied to hand over the said questioned property and threatened the petitioner to forfeit the deposited amount. Thus, this petition. 3. At the very outset, learned counsel appearing for the respondent Bank raised an objection towards maintainability of the writ petition stating 4 WPC No.1025 of 2023 that the petitioner is having an alternative remedy. He would submit that for the grievances arising out of proceedings under Section 13 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'the Act'), the borrower or any other person is having efficacious alternate remedy under Section 17 of the Act. In support of his submission, he would place reliance on the decision of the Supreme Court in case of Agrawal Tracom Private Limited v Punjab National Bank & ors.1 and also decision of the coordinate Bench of this Court in the matter of Neeraj Bhusakhare v Bank of India & Another2. 4. Controverting the aforesaid submission made by the learned counsel for the respondent Bank, learned counsel for the petitioner would place reliance upon the decision rendered by the Supreme Court in the matter of Mohd. Shariq v Punjab National Bank and ors.3 and would submit that the writ petition is maintainable before this Court. 5. I have heard learned counsel for the parties and perused the documents. 6. Main objection raised by learned counsel for respondents apart from merits of case, is with regard to maintainability of writ petition in view of specific provisions under Section 17 of the Act, which is extracted below for ready reference:- “17.Application against measures to recover secured debts.--(1) Any person (including borrower), aggrieved by any of the measures referred to in sub-section (4) of Section 13 taken by the secured creditor or his authorised officer under this Chapter, may make an application along with such fee, as may be prescribed, to the Debts Recovery 1 (2018) 1 SCC 626 2 WPC No.3944 of 2023 (decided on 11-9-2023) 3 2023 SCC OnLine SC 392 5 WPC No.1025 of 2023 Tribunal having jurisdiction in the matter within forty five days from the date on which such measure had been taken....” 7. The Supreme Court in case of Agarwal Tracom Pvt. Ltd. (supra) has considered the issue of maintainability of writ petition without exhausting alternate remedy available under the Act and observed thus:- “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 consideration within the time specified, the deposit made by auctio 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? 6 WPC No.1025 of 2023 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 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.” 8. Relevant portion of the judgment rendered in case of Mohd. Shariq (supra), which is relied upon by learned counsel for the petitioner, is also reproduced below for ready reference:- “25. We are of the considered view that once there is no dispute on the facts came on record, there appears no reason for the appellant to be relegated to avail other remedial mechanisms for recovery of the indisputed amount and the Division Bench has committed a manifest error in the facts and circumstances in not exercising its power under Article 226 of the Constitution and instead of resolving the dispute, the Division Bench under the impugned judgment has kept the issue alive, permitting the parties to have a second innings in reference to the dispute which stands crystalized/settled.” 7 WPC No.1025 of 2023 9. In Agarwal Tracom Pvt. Ltd. (supra) the Supreme Court elaborately discussed the issue regarding maintainability of writ petition by auction purchaser and held that writ petiton would not be maintainable in view of provisions of Section 17 (1) & (2) of the Act. 10. The coordinate Bench of this Court has followed the same and observed that “In the case of Mohd. Shariq (supra), there was no elaborate discussion on the issue of maintainability of writ petition and therefore, I am inclined to follow the decision of Hon'ble Supreme Court in case of Agarwal Tracom Pvt. Ltd. (supra).” 11. In view of the aforesaid facts and circumstances of the case and applying the well settled principles of law to the facts of the present case, I am of the considered opinion that this writ petition is not maintainable in view of availability of efficacious alternate remedy under Section 17 of the Act. Consequently, the writ petition is dismissed on the ground of maintainability. 12. It is made clear that this Court has not expressed any opinion on the merits of the claim of petitioner. Petitioner would be at liberty to avail remedy as may be available to him under the Act, if so advised. 13. There shall be no order as to cost(s). Sd/- (Bibhu Datta Guru) Judge Gowri K GOWRI SANKARA RAO Digitally signed by K GOWRI SANKARA RAO Date: 2025.01.06 10:42:22 +0530