R. D. Khare, Chairperson
Heard the learned counsel for the appellant.
Learned counsel for the appellants submits that the appellants are the auction purchasers of the properties in question, which was auctioned on 29.01.2021 pursuant to the sale notice dated 24.12.2020 issued by the respondent-Bank. The said sale was challenged by the respondent No. 2-borrower by filing the S.A. No. 27/2021 before the Tribunal below.
The learned counsel for the appellant further submits that the only issue under agitation is that the Tribunal below has not dealt with the provisions of section 19 of the SARFAESI Act while passing the order impugned. The said section says that if any court holds that the action taken by the Bank is not in accordance with the provisions of the Act & Rules made thereunder and the auction sale is set aside, then amount of compensation and costs may be quantified. In the present case, the Tribunal below has set-aside the auction proceedings conducted by the Respondent-Bank, but the provisions of section 19 of the SARFAESI Act has not been considered by the Tribunal below while passing the order impugned and neither any interest on the auction money nor any compensation or costs have been awarded to the appellants, therefore, the present case may be remanded back to the Tribunal below for deciding the said issue afresh in accordance with the provisions of section 19 of the SARFAESI Act, as the appellants have no grievance against setting aside the auction sale proceedings conducted by the Bank.
Learned counsel for the appellant submits that he shall press the relief only against non-awarding of interest on auction amount, compensation and costs by the Tribunal below in the order impugned and not against the merits of the case, therefore, the court fee paid is sufficient.
Since no amount has been determined towards the interest on auction amount, compensation and costs, therefore, the minimum court fee Rs. 200/- already paid by the appellant is sufficient.
Having heard the learned counsel for the appellant and considering the material available on record, it is undisputed that sale notice was served upon the borrowers on 06.01.2021 and the properties in question were auctioned on 29.01.2021. As such there is no clear 30 days sale notice to the borrower, which clearly violates Rule 8(6) of the Security Interest (Enforcement) Rules, 2002, therefore, the Tribunal below has rightly set aside the auction sale conducted by the Bank and it is admitted that the appellants have no grievance for setting aside the auction proceedings conducted by the Bank. The only grievance of the appellants is that the Tribunal below while setting aside the auction proceedings of the Bank has not considered the provisions of section 19 of the SARFAESI Act and neither any interest on the auction money nor any compensation or costs have been awarded to the appellants-auction purchasers. For setting aside the auction sale, the respondent-Bank is responsible, therefore, the Tribunal below ought to have considered this point in view of section 19 of the SARFAESI Act while setting aside the auction sale conducted by the Bank, but it is observed that the Tribunal below has not given any finding with regard to the said issue raised by the appellant in the order impugned. In my view, this issue cannot be taken into consideration at the
Appellate stage directly, therefore, it is a fit case to be remanded back to the Tribunal below for deciding it afresh.
Accordingly, the appeal stands disposed off and the case is remanded back to the Tribunal below to decide the issue as stated above afresh in accordance with law without being influenced by the observation made hereinabove most expeditiously, preferably within a period of three months from the date of production of certified copy of this order.
