State Bank of Travancore v. Bio Research Pharmaceuticals and others

``` W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016 ``` -:1:- ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE ``` ``` & ``` ``` THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN ``` ``` WEDNESDAY, THE 25[TH] DAY OF OCTOBER 2023 / 3RD KARTHIKA, 1945 ``` ``` WA NO.729OF 2016 ``` ``` AGAINST THE JUDGMENT OP (DRT) 11/2015 DT 19/2/2016 OF HIGH COURT OF KERALA ``` ## **`APPELLANT/S:`** ``` STATE BANK OF TRAVANCORE KUNNAMKULAM BRANCH, THRISSUR 680 001 REPRESENTED BY THE CHIEF MANAGER BY ADVS. SRI.T.SETHUMADHAVAN (SR.) SMT.DEEPA NARAYANAN SRI.K.JAYESH MOHANKUMAR SRI.PUSHPARAJAN KODOTH SMT.VANDANA MENON SMT.PREETHI P.V. ``` ## **`RESPONDENT/S:`** ``` 1M/S.BIO RESEARCH PHARMACEUTICALS XV/20-C, XV/21-A,U BROTHERS BUILDINGS, GURUVAYOOR ROAD, KUNNAMKULAM, THRISSUR 680 503 (*)2E.K WILSON S/O. ENASSERY KURIAN, MANAGING PARTNER OF M/S. BAUIOSE SALES MARKETING PVT LTD.,RESIDING AT ENASSERY HOUSE, KUNNAMKULAM, THRISSUR 680 503 ``` ``` W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016 ``` ## -:2:- ## **`WA NO. 729 OF 2016`** ``` (*)3ALICE WILSON S/O. E.K WILSON,PARTNER, M/S. BAULOSE SALES MARKETING PVT.LTD, RESIDING AT ENASSERY HOUSE, KUNNAMKULAM, THRISSUR 680 503 4V.G PREMAN S/O. V.K GOPALAN, RESIDING AT VELLATTUPARAMBIL HOUSE, VENGINISSERY P.O, THRISSUR 680 001 5 THE DEBTS RECOVERY TRIBUNAL ERNAKULAM,PIN-682 011, REPRESENTED BY ITS REGISTRAR ``` ``` (**)Addl. VIMAL WILSON R6 RESIDING AT ENASSERY HOUSE, KUNNAMKULAM, THRIS- SUR - 680 503. ``` ``` (**)Addl.R7 SMITHA BIJU, RESIDING AT ENASSERY HOUSE, KUN- NAMKULAM, THRISSUR - 680 503. ``` - (*) RESPONDENTS 2 AND 3 DIED (**)ADDITIONAL RESPONDENTS 6 AND 7 ARE IMPLEADED AS PER ORDER DATED 20/10/2023 IN I.A.NO.1/2023 IN W.A.NO.729/2016. ``` BY ADVS. SRI.BINOY VASUDEVAN ADV.S.EASWARAN SHRI.S.MANU, DSG OF INDIA ``` ``` THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25/10/2023, ALONG WITH WA.978/2016, 1199/2016 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016 ``` -:3:- ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE ``` ``` & ``` ``` THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN ``` ``` WEDNESDAY, THE 25[TH] DAY OF OCTOBER 2023 / 3RD KARTHIKA, 1945 WA NO.978OF 2016 ``` ``` AGAINST THE JUDGMENT OP (DRT) 12/2015 DT 19/2/2016 OF HIGH COURT OF KERALA ``` ## **`APPELLANT/S:`** ``` STATE BANK OF TRAVANCORE, KUNNAMKULAM BRANCH, THRISSUR 680 001, REPRESENTED BY THE CHIEF MANAGER. BY ADVS. SRI.T.SETHUMADHAVAN (SR.) SMT.DEEPA NARAYANAN SRI.K.JAYESH MOHANKUMAR SRI.PUSHPARAJAN KODOTH SMT.VANDANA MENON SMT.PREETHI P.V. ``` ## **`RESPONDENT/S:`** ``` 1M/S. E.V.K. OUSHADHASALA IV 149, PARAYIL JUNCTION, GURUVAYOOR ROAD, KUN- NAMKULAM, THRISSUR 680 503, REPRESENTED BY THE MANAGING PARTNER. (*)2E.K. WILSON, S/O. ENASSERY KURIAN, MANAGING PARTNER, M/S. E.V.K. OUSHADHASALA, GANDHI NAGAR, XVI/445, ENASSERY HOUSE, KUNNAMKULAM, THRISSUR 680 503. ``` ``` W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016 ``` -:4:- ## **`WA NO. 978 OF 2016`** - `(*)3 SMT. ALICE WILSON, W/O. E.K. WILSON, PARTNER OF M/S. E.V.K. OUSHADHASALA, GANDHI NAGAR, XVI/445, ENASSERY HOUSE, KUNNAMKULAM, THRISSUR 680 503.` - `4 SRI. VIMAL WISON, S/O. E.K. WILSON, PARTNER M/S. E.V.K. OUSHADHASALA, GANDHI NAGAR, XVI/445, ENASSERY HOUSE, KUNNAMKULAM, THRISSUR 680 503.` - `5 V.G. PREMAN, S/O. V.K. GOPALAN, RESIDING AT VELLATTUPARAMBIL HOUSE, VENGINISSERY P.O., THRISSUR 680 001.` - `6 THE DEBTS RECOVERY TRIBUNAL, ERNAKULAM, 682 011, REPRESENTED BY ITS REGISTRAR.` - `(**)7 SMITHA BIJU, D/O. E.K.WILSON, RESIDING AT ENASSERY HOUSE, KUNNAMKULAM, THRISSUR - 680 503.` - (*) RESPONDENTS 2 AND 3 DIED (**)ADDITIONAL RESPONDENT NO.7 IS IMPLEADED AS PER ORDER DATED 25/10/2023 IN I.A.NO.1/2023 IN W.A.NO.1284/2016. ``` BY ADVS. SRI.BINOY VASUDEVAN SHRI.S.MANU, DSG OF INDIA ``` ``` THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25/10/2023, ALONG WITH WA.729/2016 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016 ``` -:5:- ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE ``` ``` & ``` ``` THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN ``` ``` WEDNESDAY, THE 25[TH] DAY OF OCTOBER 2023 / 3RD KARTHIKA, 1945 WA NO. 1199OF 2016 ``` ``` AGAINST THE JUDGMENT OP (DRT) 11/2015 DT 19/2/2016 OF HIGH COURT OF KERALA ``` ``` APPELLANT/S: ``` ``` V.G.PREMAN S/O.V.K.GOPALAN, AGED 56, RESIDING AT VELLAT- TUPARAMBIL HOUSE, VENGINISSERY P.O., THRISSUR- 680001. BY ADVS. SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.SABU GEORGE SRI.P.B.SUBRAMANYAN ``` ## **`RESPONDENT/S:`** ``` 1M/S.BIO RESEARCH PHARMACEUTICALS XV/20-C, XV/21-A, U BROTHERS BUILDINGS, GURUVAYOOR ROAD, KUNNAKULAM, THRISSUR-680503. (*)2E.K.WILSON S/O.ENASSERY KURIAN, MANAGING PARTNER OF M/S.BAUIOSE SALES MARKETING PVT LTD. ENASSERY HOUSE, KUNNAMKULAM, THRISSUR-680503. (*)3ALICE WILSON W/O.E.K.WILSON, PARTNER, BAUIOSE SALES MARKETING PVT LTD. ENASSERY HOUSE, KUNNAMKULAM, THRISSUR- 680503. ``` ``` W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016 ``` -:6:- ## **`WA NO. 1199 OF 2016`** ``` 4STATE BANK OF TRAVANCORE KUNNAMKULAM BRANCH, THRISSUR-680001 REPRESENTED BY ITS CHIEF MANAGER. 5THE DEBTS RECOVERY TRIBUNAL ERNAKULAM-682011, REPRESENTED BY ITS REGISTRAR. (**)Addl.6 VIMAL WILSON RESIDING AT ENASSERY HOUSE, KUNNAMKULAM, THRIS- SUR - 680 503. ``` (**)Addl.7 `SMITHA BIJU, D/O. E.K.WILSON, RESIDING AT ENASSERY HOUSE, KUNNAMKULAM, THRISSUR - 680 503.` (*) RESPONDENTS 2 AND 3 DIED (**)ADDITIONAL RESPONDENT NOs.6 & 7 ARE IMPLEADED AS PER ORDER DATED 25/10/2023 IN I.A.NO.1/2023 IN W.A.NO.1199/2016. ``` BY ADVS. SRI.T.SETHUMADHAVAN (SR.) ADV.S.EASWARAN SRI.BINOY VASUDEVAN SHRI.S.MANU, DSG OF INDIA SMT.DEEPA NARAYANAN SRI.K.JAYESH MOHANKUMAR SRI.PUSHPARAJAN KODOTH SMT.VANDANA MENON ``` ``` THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25/10/2023, ALONG WITH WA.729/2016 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016 ``` -:7:- ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE ``` ``` & ``` ``` THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN ``` ``` WEDNESDAY, THE 25[TH] DAY OF OCTOBER 2023 / 3RD KARTHIKA, 1945 WA NO. 1284 OF 2016 ``` ``` AGAINST THE JUDGMENT OP (DRT) 12/2015 DT 19/2/2016 OF HIGH COURT OF KERALA ``` ``` APPELLANT/S: ``` ``` V.G.PREMAN S/O PREMAN, S/O V.K. GOPALAN, AGED 56, RESIDING AT VELLATTUPARAMBIL HOUSE, VENGINISSERY P.O, THRISSUR 680 001. BY ADVS. SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.S.NITHIN ANCHAL SRI.SABU GEORGE SRI.P.B.SUBRAMANYAN ``` ## **`RESPONDENT/S:`** ``` 1M/S.E.V.K.OUSHADHASALA IV/149, PARAYIL JUNCTION, GURUVAYOOR ROOD, KUNNA- KULAM, THRISSUR 680 503. REPRESENTED BY THE MAN- AGING PARTNER. (*)2E.K. WILSON S/O ENASSERY KURIAN, MANAGING PARTNER, M/S E.V.K. OUSHADHASALA, GANDHI NAGAR, XVI/445, ENASSERY HOUSE, KUNNAMKULAM, THRISSUR 680 503. ``` ``` W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016 ``` -:8:- ## **`WA NO. 1284 OF 2016`** ``` (*)3SMT. ALICE WILSON W/O E.K. WILSON, PARTNER, M/S E.V.K. OUSHADHASALA, GANDHI NAGAR, XVI/445, ENASSERY HOUSE, KUNNAMKULAM, THRISSUR 680 503. ``` ``` 4SRI. VIMAL WILSON S/O E.K. WILSON, PARTNER, M/S E.V.K. OUSHADHASALA, GANDHI NAGAR, XVI/445, ENASSERY HOUSE, KUNNAMKULAM, THRISSUR 680 503. 5STATE BANK OF TRAVANCORE KUNNAMKULAM BRANCH, THRISSUR 680 001, REPRESENTED BY ITS CHIEF MANAGER. ``` ``` 6THE DEBTS RECOVERY TRIBUNAL ERNAKULAM 682 011, REPRESENTED BY ITS REGISTRAR. ``` - `(**)7 SMITHA BIJU, D/O. E.K.WILSON, RESIDING AT ENASSERY HOUSE, KUNNAMKULAM, THRISSUR - 680 503.` ## (*) RESPONDENTS 2 AND 3 DIED (**)ADDITIONAL RESPONDENT NO.7 IS IMPLEADED AS PER ORDER DATED 25/10/2023 IN I.A.NO.1/2023 IN W.A.NO.978/2016. ``` BY ADVS. SRI.T.SETHUMADHAVAN (SR.) ADV.S.EASWARAN SRI.BINOY VASUDEVAN SHRI.S.MANU, DSG OF INDIA SMT.DEEPA NARAYANAN SRI.K.JAYESH MOHANKUMAR SRI.PUSHPARAJAN KODOTH SMT.VANDANA MENON K.JAJU BABU (SR.) SMT.M.U.VIJAYALAKSHMI ``` ``` THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25/10/2023, ALONG WITH WA.729/2016 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016 ``` -:9:- **==> picture [433 x 55] intentionally omitted <==** ``` ‘C.R.’ ``` ``` A.MUHAMED MUSTAQUE & SHOBA ANNAMMA EAPEN, JJ. ----------------------------------------- W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016 ``` ``` ----------------------------------------- ``` ``` Dated this the 25[th] day of October, 2023 ``` ## **`J U D G M E N T`** ## `A.Muhamed Mustaque, J.` ``` The judgment in these matters was originally pronounced on 12.04.2023. On that day, the learned counsel for the party respondents submitted that the party respondents, namely, E.K.Wilson and Alice Wilson are no more. Accordingly, steps were taken to implead the legal heirs. Notice, though were addressed, was returned ‘unclaimed’. This Court on 20/10/2023 declared service as effected since there was no contest for the above party respondents. Inter locutory applications to implead the legal heirs of the party respondents, namely, E.K.Wilson and Alice Wilson are therefore, allowed. ``` ``` W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016 ``` -:10:- ``` In view of the above, the original judgment is reiterated by subsequent proceedings today, 25[th] October 2023. The learned counsels for the Bank and the auctioneer have not raised any other points other than reiterating earlier arguments. The original judgment is, thus, reaffirmed. All proceedings after 12/4/2023 shall form part of the judgment. Sd/- Sd/- A.MUHAMED MUSTAQUE, JUDGE ``` ``` Sd/- Sd/-SHOBA ANNAMMA EAPEN, JUDGE bpr ``` ``` W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016 ``` -:11:- ``` ‘C.R.’ ``` ``` A.MUHAMED MUSTAQUE & SHOBA ANNAMMA EAPEN, JJ. ----------------------------------------- W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016 ``` ``` ----------------------------------------- Dated this the 12[th] day of April, 2023 ``` ## **`J U D G M E N T`** ``` A.Muhamed Mustaque, J. ``` ``` The genesis of these appeals arises from an order of the Debt Recovery Tribunal (DRT), Ernakulam, in two appeals filed before the Tribunal invoking Section 30 of the Recovery of Debts Due to Banks and Financial Institutions Act (RDDBFI Act), 1993. These appeals were filed before DRT by the borrowers aggrieved by the sale conducted pursuant to the Recovery Certificate being issued by DRT. The sale was conducted by the Recovery Inspector as authorized by the Recovery Officer invoking Second Schedule of the Income Tax Act, 1961. The Tribunal refused to set aside the same holding that there was no irregularity in the conduct of the sale. In normal course, the borrowers ought to have moved the Appellate Tribunal, Chennai, challenging the orders of the Tribunal, but approached this Court by the writ petition invoking Article 226 and 227 of the Constitution. The learned Single Judge, who heard ``` ``` W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016 ``` ## -:12:- ``` the matter, entertained the challenge and set aside the order of the Tribunal and consequently, sale has also been set aside. The Bank and the auction purchaser have come up in these appeals. ``` ``` 2. We heard the learned Senior Counsel Shri Sethu Madhavan appearing for the Bank, Shri P.B.Krishnan appearing for the auction purchaser and also the learned Senior Counsel Shri S.Sreekumar appearing for the borrower. ``` ``` 3. We are not adverting to the facts involved in this case other than the facts required for adjudication on the point of law involved as the learned Single Judge had adverted to all the facts in these cases. ``` ``` 4. The first objection raised before us was against exercise of the writ jurisdiction when an equally efficacious remedy is available by way of appeal before the Appellate Tribunal. We note that the sale was effected on 26/3/2013 and the appeals filed before the Tribunal in the year 2013 came to be disposed of on 21/1/2015. The learned Single Judge in the writ petitions filed in the year 2015, disposed of the writ petitions on 19/2/2016. We heard this appeal in the year 2023. The reason for entertaining the writ petition was that there was no sitting of the Appellate Tribunal at Chennai as the office of the presiding officer became vacant. Further, the learned Single Judge noted that there were no disputed questions of facts and the only points to be decided were ``` ## **`W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016`** ## -:13:- ``` on questions of law. It may not be proper for us at this distance of time to relegate the parties to the appellate authority as rightly noted by the learned Single Judge. The questions involved in this matter are pure questions of law and in the particular circumstances of the case, there was no embargo on this Court against entertaining the writ petitions. We, in these circumstances, overrule the objections raised on behalf of the appellants. ``` ``` 5. The challenge in the appeal before the Tribunal was on the ground that sale conducted was against the provisions of the Second Schedule of the Income Tax Act. The sale proclamation was made on 19/11/2012. The auction was notified on 5/2/2013. The auction was conducted through the e-auction mode. There was no challenge against the proclamation. No sale took place on 5/2/2013. Sale was adjourned to 4/3/2013. No sale took place on 4/3/2013 either. Thus, the sale was adjourned to 26/3/2013. Shri Preman V.G. bid on both the properties on 26/3/2013. There was only one bid of Shri Preman V.G. ``` ``` 6. Challenge of sale was on the three enumerated grounds as below: ``` ``` i. The Recovery Officer ought to have conducted the sale and he could not have authorised the Revenue Recovery Inspector to conduct the sale. ``` ``` ii. There was no sale conducted on 26/3/2013 and that the sale ``` ``` W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016 ``` ## -:14:- ``` and confirmation of sale were both on 8/5/2013. ``` ``` iii. The sale conducted without fresh proclamation after 30 days of the original date of sale is illegal. ``` ``` 7. Point No.i: ``` ``` Section 29 of RDDBFI Act incorporates the provisions of the Second and Third Schedules to the Income Tax Act, as in force from time to time for recovery of the amount due under RDDBFI Act. Section 2(k) of RDDBFI Act defines ‘Recovery Officer’ and states that the Recovery Officer is appointed by the Central Government for each Tribunal under sub-section 1 of Section 7. Under Section 7(1), this officer is considered as a staff of the Tribunal. Under Section 19(22), the Tribunal will forward the certificate of recovery along with the final order to the Recovery Officer for recovery of the amount of debt specified in the certificate. The Second Schedule to the Income Tax Actis related to the procedure for recovery of tax. The recovery has to be effected by the Tax Recovery Officer as seen from Rule 2 to the Second Schedule. This Tax Recovery Officer has to be construed as a Recovery Officer in the context of RDDBFI Act. Rule 13 to the Second Schedule of the Income Tax Act states as follows: ``` ## **`Officer entitled to attach and sell.`** ``` 13. The attachment and sale of movable property and the attachment and sale of immovable property may be made by ``` ## **`W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016`** ## -:15:- ``` such persons as the Tax Recovery Officer may from time to time direct. ``` ``` The learned Single Judge found three irregularities in this regard; (a) Authorisation given to the Recovery Inspector without previous approval of the Tribunal as referable in Rule 19A of the Second Schedule of the Income Tax Act. This authorisation was made on 5/5/2009 by the Recovery Officer in favour of the Recovery Inspector; ``` ``` (b) On the ground that the Recovery Officer, who gave authorisation on 5/5/2009, was no more when sale was conducted and the subsequent Recovery Officer also retired from the service and as on the date of sale, there was no person occupying the office of the Recovery Officer and; ``` ``` (c) When sale has been adjourned by the Recovery Inspector from time to time, on each occasion, authorisation has to be obtained from the Recovery Officer. ``` ``` (a)(i): We perused Rule 19A of the Second Schedule of the Income Tax Act which reads thus: ``` ## **`Entrustment of certain functions by Tax Recovery Officer:`** ``` 19A. A Tax Recovery Officer may, with the previous approval of the Joint Commissioner, entrust any of his functions as the Tax Recovery Officer to any other officer lower than him in rank (not being lower in rank than an Inspector of Income-tax) and such officer shall, in relation to the functions so entrusted to him, be deemed ``` ``` W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016 ``` ## -:16:- ## `to be a Tax Recovery Officer.` ``` We find that Rule 19A has no application in the matter. Rule 19A only speaks about obtaining previous approval of the Joint Commissioner in the matter of entrustment of the functions of the Tax Recovery Officer to any other Officer lower in rank. In this context, it is the Tribunal in the place of the Joint Commissioner, for the purpose of entrusting any of the functions of the Recovery Officer to any other Officer lower than him in rank. Rule 13 on the other hand permits the Recovery Officer to authorise any person to attach or sell movable or immovable property. Rule 13 refers to the power of the Recovery Officer to authorise any person to conduct a sale. Whereas, Rule 19A speaks of the power of the Recovery Officer to entrust his function to any other Officer lower than his rank with previous approval. That means if the power of the Recovery Officer has to be exercised by any other authority or officer, previous approval of the Debts Recovery Tribunal is required. When the Recovery Officer himself exercises his power, no such previous approval is to be obtained from the Debts Recovery Tribunal. In this regard it is apposite to refer to the definition of ‘Officer’ under Rule 1(e) of the Second Schedule to the Income Tax Act. As per Section 1(e), an Officer means a person authorised to make an attachment or sale under this Schedule. In the order passed by the recovery officer on 5/5/2009 authorising the Recovery Inspector, Shri Ranjith R. to conduct sale, it was mentioned that ``` ``` W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016 ``` ## -:17:- ``` he passed such order invoking Rule 19A of the Second Schedule to the Income Tax Act. It is obvious that it was a mistake. The order under Rule 19A can be passed only by the DRT. As rightly noted by the DRT, this order has to be construed as an authorisation under Rule 13 of the Second Schedule to the Income Tax Act and mere misquoting of the provisions will not entail the order bad in law. We, therefore, are of the view that the finding in this regard by the learned Single Judge is untenable. ``` ``` (b)(i) The next point to be considered is whether an official act would abate on the death of a person who exercises the power of authorisation. It was also noted that the office of the recovery officer was also vacant when sale was conducted due to retirement. As noted above, authorisation to the Revenue Inspector is an authorisation invoking statutory provisions. That means, an order has to be passed, exercising statutory power in light of Rule 13 read with Rule 1(e) of the Second Schedule of the Income Tax Act. No official act would abate consequent upon the death of the maker of such order, invoking statutory provision. Further authorisation will not cease to be in force merely because the Recovery Officer who was in office, subsequently retired from the service as on the date of sale. The authorisation under Rule 13 of Second Schedule cannot be construed as an agency to hold a relationship between principal and agent. As noted above, it is not a personal act of the Recovery Officer but an official act invoking statutory ``` ``` W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016 ``` ## -:18:- ``` provisions. The learned Single Judge, according to us, erred in construing the statutory provisions as above in a proper perspective. ``` ``` (c)(i): Rule 13 of the Second Schedule to the Income Tax Act states that the attachment and sale of the property may be made by such persons as the Tax Recovery Officer from time to time directs. The learned Single Judge construed this provision to hold that when a sale is adjourned from a date originally fixed, on each occasion, authorisation has to be obtained from the recovery officer. According to the learned Single Judge, no blanket authorisation is possible under Rule 13. The learned Single Judge opined that the reference to ‘time to time’ mandates that any particular sale made by an officer other than the Recovery Officer would have to be made on the specific authorisation of the Recovery Officer. According to us, this reference of ‘time to time’ under Rule 13 does not indicate that on each adjournment of sale, further authorisation is required to be obtained from the Recovery Officer. There may be occasions when no sale would take place and fresh sale has to be ordered. In such a situation, authorisation from the Recovery Officer is required. The initiation of recovery is by the Recovery Officer. When a fresh sale is required to take place, necessarily, it has to be initiated by the Recovery Officer. Thus, in case of lapse of proceedings leading to sale, no fresh steps could have been taken by the authorised officer without fresh ``` ## **`W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016`** ## -:19:- ``` authorisation from the Recovery Officer. In a matter of adjournment, which is statutorily recognised under Rule 15 of the Second Schedule to the Income Tax Act, no further authorisation is required for conducting sale on the adjourned date. ``` ## `8. Point No.ii:` ``` The learned Single Judge noted that sale and confirmation was on 8/5/2013. No one has a case that no amount was deposited on 26/3/2013. Bank also acknowledged receipt of the amount. On 8/5/2013, the balance amount also has been paid. The records show that the entire amount has been paid within the statutory period. The Tribunal appears to have followed the guidelines of the Department of Financial Services, Ministry of Finance, dated 8/11/2011 and issued a general order regarding remittance of purchase money receivable in the accounts of the respective Banks. This aspect has been adverted to in para.xxvi of the Order of the DRT which reads as follows: ``` ``` (xxvi) Giving a purposive interpretation to the object and intendment of RDDBFI Act, 1993 and on going through the circumstances that have necessitated this Tribunal to pass an order in exercise of its general supervisory powers provided under S.7(2) of the Act permitting the Ld. Recovery Officers to order for remittance of the receivables in public auction sale in the accounts of respective banks, this Tribunal is convinced that the directions for remittance of the purchase money with the certificate holder bank to be held in custody for the ``` ## **`W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016`** ## -:20:- ``` Recovery Officer till confirmation of sale and further orders cannot be faulted with. The circular dated 08.11.2011 issued by Ministry of Finance has suggested an undertaking to be taken from the certificate holder bank that in case of any legal requirement that the amount so transferred to the account of certificate holder be refunded to the Recovery Officer immediately within 24 hours on notice. Even otherwise. this Tribunal or the Ld. Recovery Officer is not rendered powerless to order and secure return of such amounts deposited and kept with the certificate holder bank in custody for the Recovery Officer. ``` ``` Even if there is any irregularity in depositing the amount directly with the Bank, according to us, no substantial injury is caused to the borrower on account of such irregularity. We shall advert to the scope of Rule 61 of the Second Schedule to the Income Tax Act which allows setting aside the sale of immovable property on the ground of non-service of notice or irregularity while considering point No.iii. ``` ``` 9. Point No.iii.: ``` ``` The point of law that has to be considered here is in the light of Rule 15 of the Second Schedule to the Income Tax Act. Rule 15 states about adjournment or stoppage of sale which reads thus: ``` ## **`Adjournment or stoppage of sale.`** ``` 15. (1) The Tax Recovery Officer may, in his discretion, adjourn any sale hereunder to a specified day and hour; and the officer conducting any such ``` ``` W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016 ``` ## -:21:- ``` sale may, in his discretion, adjourn the sale, recording his reasons for such adjournment: ``` ``` Provided that, where the sale is made in, or within the precincts of, the office of the Tax Recovery Officer, no such adjournment shall be made without the leave of the Tax Recovery Officer. ``` ``` (2) Where a sale of immovable property is adjourned under sub-rule (1) for a longer period than one calendar month, a fresh proclamation of sale under this Schedule shall be made unless the defaulter consents to waive it. ``` ``` (3) Every sale shall be stopped if, before the lot is knocked down, the arrears and costs (including the costs of the sale) are tendered to the officer conducting the sale, or proof is given to his satisfaction that the amount of such arrears and costs has been paid to the Tax Recovery Officer who ordered the sale. ``` ``` 10. To understand this issue, we shall advert to the dates and events: ``` ``` 19/11/2012 - Proclamation of sale ``` ``` 5/2/2013 - auction sale was notified, sale adjourned to 4/3/2013 as there was no bidder on this date. ``` ``` 4/3/2013 - There was no bidder on 4/3/2013 and sale was adjourned to 26/3/2013. ``` ``` 26/3/2013 - date of sale ``` ``` W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016 ``` ## -:22:- ``` As seen from the mandate of Rule 15(2), if a sale of immovable property is adjourned for a period longer than one calendar month, a fresh proclamation of sale is necessary except in a situation where a defaulter consents to waive it. Admittedly, in this case, no fresh proclamation of sale was issued as it was an adjournment as referable under Rule 15(1). If this sale has to be treated as a sale based on Rule 15(1), the sale should be legal and perfect. The question that has to be considered is, when a sale is adjourned not beyond one calendar month but the aggregate adjournment pushes the period beyond one calendar month, whether it requires a fresh proclamation or not. ``` ``` 11. A learned Single Judge of this Court in Bhat v. Anugraha Charitable Trust [2008 (1) KLT 617] after referring to Rule 15(1) of the Second Schedule of IT Act has taken the view that the provision for fresh proclamation is applicable only when there is a single adjournment which pushes the date of sale beyond a period of one month at one stretch. However, in this case, the learned Single Judge placing reliance on the Apex Court Judgment in Mathew Varghese v. M. Amritha Kumar and Others [(2014) 5 SCC 610] was of the view that once adjournment of sale is made for a period longer than one calendar month, a fresh proclamation of sale is necessary. Incidentally, we have to consider whether Mathew Varghese (supra) would cover the point of law involved or not. Therefore, we need to advert to the facts leading to Mathew Varghese (supra). ``` ``` W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016 ``` ## -:23:- ``` 12. In Mathew Varghese (supra), the Apex Court considered a sale effected invoking provisions under SARFAESI Act read along with Rules 8 and 9 of the Security Interest (Enforcement) Rules 2002. The facts disclosed in the above case would show that the sale was notified to take place on 25/9/2007. Borrowers were intimated about sale by the bank only on 30/8/2007. Under Rule 8(6) of the Security Interest (Enforcement) Rules, the authorised officer shall serve the borrower a notice of 30 days of sale of the immovable property. This is a mandatory provision. Under the proviso to Rule 9(1), if sale of immovable property fails and sale is required to be conducted again, the authorised officer is again required to issue a notice of 15 days to the borrower for fixing date of subsequent sale. There is no corresponding provision under the Security Interest (Enforcement) Rules to adjourn the sale in the manner provided under Rule 15(1) of the Second Schedule of the Income Tax Act. In Mathew Varghese (supra), the Apex Court noted the absence of the provision for adjournment in Security Interest (Enforcement) Rules. The Apex Court on reading Sections 37 of SARFAESI Act was of the view that its application is in addition to and not in derogation of the RDDBFI Act. Therefore, it was held that in the absence of provisions in SARFAESI Act, and rules thereon, the provisions of the RDDBFI Act can be followed for the method of recovery as referred under Section 29 of the RDDBFI Act. Accordingly, it was concluded that the Second and Third Schedules ``` ``` W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016 ``` ## -:24:- ``` of the IT Act will have to be followed wherever it is not inconsistent with the provisions under the SARFAESI Act or the Security Interest (Enforcement) Rules. In Mathew Varghese (supra), the sale was ultimately effected on an adjourned date beyond 30 calendar days. The learned Single Judge had referred to paras.52 and 53 of Mathew Varghese (supra) to hold that when aggregate adjournment pushes the period beyond one calendar month, fresh proclamation is necessary. ``` ``` 13. According to us, Mathew Varghese (supra) had not laid down any law in respect to the point involved in this case. Mathew Varghese (supra) only states that in the matter of adjournment, the provisions of the Second Schedule of the IT Act can be relied on and further stated that this adjournment has to be strictly in accordance with the Rules 8 and 9 of the Security Interest (Enforcement) Rules. We shall reproduce para.52 and 53 and emphasize the relevant portions: ``` ``` 52. Keeping the said basic principle in applying the above provisions in mind, when we refer to Rule 15 of Schedule II Part I of the Income Tax Act, 1961, in the first place it will have to be stated that a reading of the said Rule does not in any way conflict with either Section 13(8) of the SARFAESI Act or Rules 8 and 9 of the 2002 Rules. As far as sub-rule (1) of Rule 15 is concerned, it only deals with the discretion of the Tax Recovery Officer to adjourn the sale by recording his reasons for such adjournment. The said Rule does not in any way conflict with either Rules 8 or 9 or Section 13, in particular sub-section (1) or sub-section (8) of the SARFAESI Act. Therefore, ``` ``` W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016 ``` ## -:25:- ``` to that extent there is no difficulty in applying Rule 15. As far as sub-rule (2) is concerned, the same is clear to the effect that a sale of immovable property once adjourned under sub-rule (1) for a longer period than one calendar month, a fresh proclamation of sale should be made unless the defaulter consents to waive it. The said sub-rule also does not conflict with any of the provisions of the SARFAESI Act, in particular Section 13 or Rules 8 and 9. In fact there is no provision relating to grant of adjournment or issuance of a fresh proclamation for effecting the sale after the earlier date of sale was not adhered to in the SARFAESI Act. In such circumstances going by the prescription contained in Section 37 of the SARFAESI Act, as we have reached a conclusion that the provision contained in Section 29 of the RDDB Act will be in addition to and not in derogation of the provisions of the SARFAEST Act, the provisions contained in Rule 15, which is applicable by virtue of the stipulation contained in Section 29 of the RDDB Act, whatever is stated in sub-rule (2) of Rule 15 should be followed in a situation where a notice of sale notified as per Rules 8 & and 9(1) of the 2002 Rules, read along with Section 13(8) gels postponed. In our considered view such a construction of the provisions, namely, sections 37, 13(8) and 37 of the SARFAESI Act, read along with Section 29 with the aid of Rule 15 could alone be made and in no other manner. ``` ``` [Emphasis Supplied] ``` ``` 53. We, therefore, hold that unless and until a clear 30 days' notice is given to the borrower, no sale or transfer can be resorted to by a secured creditor. In the event of any such sale properly notified after giving 30 days' clear notice to the borrower did not take place as scheduled for reasons which cannot be solely attributable to the borrower, the secured creditor cannot effect the sale or transfer of the ``` ``` W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016 ``` ## -:26:- ``` secured asset on any subsequent date by relying upon the notification issued earlier. In other words, once the sale does not take place pursuant to a notice issued under Rules 8 and 9, read along with Section 13(8) for which the entire blame cannot be thrown on the borrower, it is imperative that for effecting the sale, the procedure prescribed above will have to be followed afresh, as the notice issued earlier would lapse. In that respect, the only other provision to be noted is sub-rule (8) of Rule 8 as per which sale by any method other than public auction or public tender can be on such terms as may be settled between the parties in writing. As far as sub-rule (8) is concerned, the parties referred to can only relate to the secured creditor and the borrower. It is, therefore, imperative that for the sale to be effected under Section 13(8), the procedure prescribed under Rule 8 read along with Rule 9(1) has to be necessarily followed, inasmuch as that is the prescription of the law for effecting the sale as has been explained in detail by us in the earlier paragraphs by referring to Sections 13(1), 13(8) and 37, read along with Section 29 and Rule 15. In our considered view any other construction will be doing violence to the provisions of the SARFAESI Act, in particular Sections 13(1) and (8) of the said Act. ``` ``` 14. In order to understand this point in depth, we need to understand the salient distinction between recovery invoking the Second Schedule to IT Act and recovery invoking Security Interest (Enforcement) Rules. The recovery effected under the Second ``` ``` W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016 ``` ## -:27:- ``` Schedule is by the Tax Recovery Officer who is a public servant of a public institution. A public servant is directly accountable under law. The authorised officer is an officer of the bank appointed by the bank under Rule 2(a) of the Security Interest (Enforcement) Rules, which defines ‘authorised officer’ as: ``` ``` (a) "authorised officer" means an officer not less than a chief manager of a public sector bank or equivalent, as specified by the Board of Directors or Board of Trustees of the secured creditor or any other person or authority exercising powers of superintendence, direction and control of the business or affairs of the secured creditor, as the case may be, to exercise the rights of a secured creditor under the Act. ``` ``` This would show that an authorised officer is an individual or persona designata exercising statutory power. Whereas, the Tax Recovery Officer or the Recovery Officer is a statutory officer holding public office. This distinction has to be kept in mind while analysing mode of recovery referred to in the Second Schedule of IT Act and the mode of recovery under the Security Interest (Enforcement) Rules. When the persona designata is exercising statutory power, the individual has no other power, not even a discretionary power other than the power specifically conferred. The persona designata has to act strictly in accordance with the statutory provisions which state its power. Taking note of the fact that there are large private banks that have been given the ``` ``` W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016 ``` ## -:28:- ``` authority to recover the amounts due to such financial institutions, by invoking SARFAESI Act and Security Interest (Enforcement) Rules, statutory provisions conspicuously avoided conferring power of adjournment without fresh notice to the borrower. ``` ``` 15. It is appropriate to refer to Rule 8(6) and Rule 9(1) of the Security Interest (Enforcement) Rules, 2002 which reads thus: ``` ``` 8.(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 notice in the Form given in Appendix IV-A to be published in two leading newspapers including one in vernacular language having wide circulation in the locality. ``` ``` 9. Time of sale, Issue of Sale Certificate and delivery of possession, etc.— ``` ``` (1) No sale of immovable property under these rules, in first instance 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) of Rule 8 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 authorised officer shall serve, affix and publish notice of sale of not less than fifteen days to the borrower, ``` ``` W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016 ``` ## -:29:- ``` for any subsequent sale. ``` ``` 16. In Mathew Varghese (supra), the Apex Court noting the statutory provisions above, held that even for a sale after adjournment in proceedings initiated under the SARFAESI Act and the Security Interest (Enforcement) Rules, the mandatory notice has to be issued. The conjoint reading of the Second Schedule of Income Tax Act and the Security Interest (Enforcement) Rules makes it abundantly clear that even for an adjournment, notice is mandatory in the light of statutory rules under the Security Interest (Enforcement) Rules. It is impossible to conduct a sale under the Security Interest (Enforcement) Rules without notice of sale to the borrower. ``` ``` 17. However, the position is different when sale is exclusively conducted invoking the Second Schedule of the IT Act. As prescribed in Rule 15(1), the Recovery Officer has authority in his discretionto adjourn sale to a specified day after recording reasons for such an adjournment. This provision is in pari materia with Order 21 Rule 69 of CPC. Therefore, like the manner in a civil court, the recovery Officer has power to adjourn the sale by exercising discretion. This discretionary power is absent with the authorised officer under the Security Interest (Enforcement) Rules. This is exactly the reason that under the Security Interest (Enforcement) Rules, in all circumstances, statutory provisions mandate issuing notice to the borrower to conduct fresh sale when ``` ## **`W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016`** ## -:30:- ``` there is no bidder on the day when it was notified originally. There is no necessity for issuing notice to the borrower when sale is adjourned recording reasons under Rule 15(1) of the Second Schedule of the IT Act. This is for the reason that the office of the Recovery Officer is a public office and the record is open for anyone who wants to access the information. The proceedings of the Recovery officer are part of public record, and lawmakers might have thought that there was no requirement to issue notice to the borrower when sale is adjourned not beyond one calendar month. When the proceedings are conducted by the Recovery Officer invoking the Security Interest (Enforcement) Rules, the borrower cannot have similar access in a manner provided in the case of public records of a public institution. ``` ``` 18. In the light of the above discussions, we have to conclude that Mathew Varghese (supra) has no application in this matter in as much as that the issue that arose for consideration in Mathew Varghese (supra) was in relation to issuing notice to the borrower in consideration of the mandatory provisions under the Security Interest (Enforcement) Rules where prior notice to the borrower is mandatory in all circumstances. This is the only possible interpretation considering the mandatory nature of the Rule for issuing notice under the Rule 8(6) and also under the proviso to Rule 9(1). ``` ``` W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016 ``` -:31:- ``` 19. Rule 15(2) of the Second Schedule of the Income Tax Act mandates issuing a fresh proclamation of sale when a sale of immovable property is adjourned under Sub Rule 1 for a period longer than one calendar month. While interpreting the above provision, the learned Single Judge in Anugraha Charitable Trust’s case (supra) was of the view that Rule 15 (2) would come into play only when there is a single adjournment which pushes the date of sale beyond the period of one month at one stretch. It is appropriate to refer para.10 of the judgment which reads thus: ``` ``` As already noticed, no objections were filed to the proclamations. The proclamations were in English language which is stated to be not the language of Ernakulam District, where the property is situate. That defect, could have an impact during the course of adjudication of an application to set aside sale, if at all, only if such a defect has resulted in a material irregularity. Petitioners, as already noticed, were parties to the proceedings and were represented through counsel before the recovery officer. No such objection having been raised, the contention based on R. 52(2) of the Schedule Rules is unsustainable. The same is accordingly rejected. The relevant rule among the Schedule Rules only provides that there shall be a fresh proclamation if the sale is adjourned for a period beyond one month. R. 15(1) of the Schedule Rules provides a discretion with the recovery officer to adjourn the sale to a specified day and also the power to adjourn an adjourned sale. Sub-r. 2 of R. 15 provides that where a sale of immovable property is adjourned for a period longer than a calendar month, a fresh proclamation of sale under the Schedule Rules shall be made unless the defaulter consents to waive it. Therefore, a fresh proclamation is called for only ``` ## **`W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016`** ## -:32:- ``` when an adjournment of a sale is made for a period longer than one calendar month. When sub-r. 1 of R. 15 provides for adjournment of sale and for a further adjournment of the adjourned sale, each such adjournment would be the criteria for considering whether there should be a fresh proclamation in terms of sub-r. 2 of R. 15. Even such a proclamation is unnecessary when the defaulter consents to waive it. The provision for a fresh proclamation is applicable only when there is a single adjournment which pushes the date of sale beyond a period of one month at one stretch. That argument on behalf of the petitioners also therefore fails. ``` ``` We are in respectable agreement with the decision of the learned Single Judge in Anugraha Charitable Trust’s case (supra). ``` ``` 20. As we already noted, Rule 15(2) of the Second Schedule of the Income Tax Act and Order 21 Rule 69(2) of the Code of Civil Procedure are similar in nature. We reproduce the above provisions for a proper understanding of the point involved here: ``` ``` Rule 15(2). Where a sale of immovable property is adjourned under sub-rule (1) for a longer period than one calendar month, a fresh proclamation of sale under this Schedule shall be made unless the defaulter consents to waive it. ``` ``` Order 21, Rule 69(2) - Where a sale is adjourned under sub-rule (1) for a longer period than thirty days a fresh proclamation under rule 67 shall be made, unless the judgment-debtor consents to waive it. ``` ``` 21. Under Rule 61 of the Second Schedule of the Income Tax Act, ``` ``` W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016 ``` ## -:33:- ``` sale can be set aside only on proof of substantial injury resulted from such sale to any person who is affected by such sale. It is appropriate to refer to Rule 61: ``` ## **`Application to set aside sale of immovable property on ground of non-service of notice or irregularity.`** ``` 61. Where immovable property has been sold in execution of a certificate, such Income-tax Officer as may be authorised by the Chief Commissioner or Commissioner in this behalf, the defaulter, or any person whose interests are affected by the sale, may, at any time within thirty days from the date of the sale, apply to the Tax Recovery Officer to set aside the sale of the immovable property on the ground that notice was not served on the defaulter to pay the arrears as required by this Schedule or on the ground of a material irregularity in publishing or conducting the sale: ``` ## **`Provided`** `that—` ``` (a) no sale shall be set aside on any such ground unless the Tax Recovery Officer is satisfied that the applicant has sustained substantial injury by reason of the non-service or irregularity; and ``` ``` (b) an application made by a defaulter under this rule shall be disallowed unless the applicant deposits the amount recoverable from him in the execution of the certificate. ``` ``` 22. Even assuming that fresh proclamation is required under Rule 15 of the Second Schedule of the Income Tax Act to conduct a sale after adjournment of sale beyond a period aggregating more than one calendar month, at the best, it can be termed only as an ``` ``` W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016 ``` ## -:34:- ``` irregularity. The Court needs to interfere in such matters only when it is proved to the satisfaction of the Court that the applicant seeking setting aside of sale has sustained substantial injury. Proviso (a) to Rule 61 of the Second Schedule of the Income Tax Act is clear in this regard. While interpreting a similar provision under the Code of Civil Procedure, a Division Bench of this Court in Alikunju Pathummal Kunju v. Aiyappan Sanku Panicker [1956 KLT 954] in para. 2 held as follows: ``` ``` As pointed out by the counsel for the respondent, Mulla also in his commentaries under O.XXI, R.90, dealing with material irregularity in publishing or conducting a sale states that sales like the one with which we are here concerned can be set aside only if substantial loss is proved as the non-compliance with the provision amounted only to a material irregularity. Reliance is placed on the decision of the Privy Council in Rang Lal Singh v. Ravaneshwar Pershad Singh (ILR 39 Calcutta 26). There it was held in the case of a similar sale that as substantial injury had not been proved it was not liable to be set aside. In the present case no evidence at all was adduced by the appellant to prove material prejudice sufficient opportunity having been granted for the said purpose. So the lower court's order cannot be challenged on the aforesaid ground. ``` ``` This was the line of decision followed by many other High Courts {See Bolla Subbanna v. Balanagu Satyanarayanamurti and Others [AIR 1943 Mad 739]; T. Rambabu v. V. Ramavathi [(1988) 1 ALT 987] and; ``` ``` W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016 ``` -:35:- ## **`S.V. Ramakrishna v. R. Subbamma and Another [2001 (5) ALT 657`** `]}` **`.`** ``` 23.The Court could have interfered in setting aside the sale only on being satisfied that borrowers had sustained substantial injury by non-service of notice or irregularities. This Court invoking its power under 226 of the Constitution ought not have interfered in this matter citing mere irregularity. If such relief cannot be granted by DRT or the appellate authority, judicial review could not have been extended in such matters to upset a sale. Absolutely, no evidence was adduced by the borrower before the DRT to substantiate substantial injury sustained by them, consequent upon sale. We, in such circumstance, are of the view that the learned Single Judge erred in exercising discretionary power under Article 226 of the Constitution. We, thus, allow the appealsand set aside the impugned judgment. No orders as to costs. ``` ``` Sd/- ``` ## **`A.MUHAMED MUSTAQUE, JUDGE`** ``` Sd/- ``` ``` SHOBA ANNAMMA EAPEN, JUDGE ``` ``` ms ``` ``` W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016 ``` -:36:- ``` A.MUHAMED MUSTAQUE & SHOBA ANNAMMA EAPEN, JJ. ----------------------------------------- W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016 ----------------------------------------- Dated this the 13th day of April, 2023 O R D E R A.Muhamed Mustaque, J. These writ appeals are posted as "To be spoken to". 2. Yesterday, after the pronouncement of the Judgment, it was submitted that the party respondents in these writ appeals, viz., Sri.E.K.Wilson and Smt.Alice Wilson, are no more. Post again as "To be spoken to" on 23.05.2023. Sd/- A.MUHAMED MUSTAQUE, JUDGE Sd/-SHOBA ANNAMMA EAPEN, JUDGE bka ``` ``` W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016 ``` -:37:- ``` A.MUHAMED MUSTAQUE & SHOBA ANNAMMA EAPEN, JJ. ``` ``` ----------------------------------------- W.A.Nos.729/2016 & 978/2016 ----------------------------------------- Dated this the 24[th] day of May, 2023 ``` ``` O R D E R ``` ``` A.Muhamed Mustaque, J. ``` ``` The judgment in these cases was pronounced on 12/4/2023. On the same day, it was informed by the learned counsel for the party respondents that party respondents 2 and 3 are dead. Thereafter, it was posted to today as 'to be spoken to'. Today, a memo has been filed by the learned counsel for the respondents to record the death of respondents 2 and 3. So also a petition, as I.A.No.1/2023 has been filed by the appellant in both the cases to implead and record the legal heir of respondents 2 and 3. I.A.No.1/2023 in W.A.No.729/2016 & I.A.No.1/2023 in W.A.No.978/2016 : ``` ``` Issue urgent notice by speed post to the proposed additional respondent/s. ``` ``` Post on 21/6/2023 along with connected cases. ``` ``` Sd/- A.MUHAMED MUSTAQUE, JUDGE Sd/- SHOBA ANNAMMA EAPEN, JUDGE ms ``` ``` W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016 ``` -:38:- **==> picture [335 x 518] intentionally omitted <==** **----- Start of picture text -----**<br> A.MUHAMED MUSTAQUE & SHOBA ANNAMMA EAPEN, JJ.<br>-----------------------------------------<br>W.A.Nos.729/2016, 978/2016, 1199/2016 & 1284/2016<br>-----------------------------------------<br>Dated this the 20th day of October, 2023<br>O R D E R<br>A.Muhamed Mustaque, J.<br>I.A No.1/2023 in W.A Nos.729 and 978 of 2016:<br>Notice taken out pursuant to the order dated<br>24.05.2023 to the proposed additional respondents<br>were returned unserved stating that "unclaimed".<br>In the light of the above, we declare the service<br>as complete.<br>The additional respondents are impleaded.<br>Registry shall carryout necessary changes in the<br>cause title.<br>List the matter on 25/10/2023.<br>Sd/- A.MUHAMED MUSTAQUE, JUDGE<br> Sd/- SHOBA ANNAMMA EAPEN, JUDGE<br> PR<br>**----- End of picture text -----**<br>