Reportable/Non-Reportable Agee No.8 of 202. DRAT Kale IN THE DEBTS RECOVERY APPELLATE TRIBUNAL AT KOLKATA THE HON’BLE MR. JUSTICE ANIL KUMAR SRIVASTAVA. ‘CHAIRPERSON Appeal No. 09 of 2024 (Arising out of S.A. 107 of 2005 In DRT, Visakhapatnam) 1. M/s. VST Constructions, resident of Machilipatnam, Krishna District. 2. Smt. V. Viyyamma, W/o Raghavaiah, R/o D.No. 1/359, Avanigadda, Krishna District Appellants, “Versus. 1. Canara Bank, Regional Office, Represented by its Authorised Officer/Regional Manager, Mogalrajapuram, Vijayawada -10; 2. The Branch Manager, Canara Bank, Machilipatnam, Krishna District; 3. S. Satyanarayan, S/o Ramakrishnaiah (Died) 4. S. _ Venkataratnamma, W/o S.__ Satyanarayana, Resident of D. No. 5-19, Avanigadda, Krishna District ; 5. Dr. S. Chandra. Sekhar Rao, S/o S. Satyanarayana, Resident of Road No. 10/, Plot No.170, Jubilee Hills, MLA & MP Colony, Hyderabad; 6. Dutta Uma Maheshwar Rao, S/o Veera Raghavalah, Resident of D.No. 5-60, Avanigadda, Krishna District Respondents Counsel for Appellants Mr. Nemant Srinivas Counsel for Respondents No. 1 & 2 Ms, Aparagita Rao Ms. Swastika Roy Counsel for Respondent No. 4 & 5 Mr, Subhojoy Sen Counsel for rews No. 6 <- Mr, Suraijit Chakraborty JUDGMENT : 22" August, 2024 ‘THE APPELLATE TRIBUNAL : Instant appeal has been preferred against judgment and order dated 14.12.2018 passed by Learned DRT, Visakhapatnam dismissing the SARFAESI Application No. 107 of 2005 (M/s. VST Constructions -vs- The Syndicate Bank & Others).‘that the 2. As per pleadings of the parties, facts of the case ar Appellant herein availed a mortgage loan from Respondents No. i and 2 which was classified as N.P.A. and SARFAESI proceedings were Initiated. Demand Notice under Section 13 (2) of the SARFAESI Act, 2002 (hereinafter referred to S.A. the Act) was Issued which was challenged in W.P. 22077 of 2003 and was dismissed by the Hon'ble Andhra Pradesh High Court. Thereafter, Appellant submitted an OTS proposal to the Bank which was not accepted. Sale notice dated 10.01.2005 was Issued which was again challenged before the Hon'ble Andhra Pradesh High Court by filing W.P. 778 of 2005 and was disposed of on 8.6.2005. It was observed by the Hon'ble High Court that auction was conducted on 24.1.2005 and the same was confirmed In favour of the highest bidder, |.e. Respondent No. 3. Accordingly, offer made by the Appellant could not be accepted and the writ petition was dismissed. Another Writ Petition No. W.P. 14968 of 2005 was filed by the Appellant. As the details of confirmation of sale were published by the Respondents No. 1 and 2, the writ petition was disposed of on 12.7.2005. 3. An appeal, being W.A. 1096 of 2005, against the order passed in W.P. 778 of 2005 was filed by the Appellant and S.A. 107 of 2005 was also filed challenging the sale notification dated 10.01.2005. 4, Appellant was permitted to withdraw W.A. No, 1096 of 2005 with liberty to challenge the confirmation of sale dated 24.01.2005 in the S.A. 107 of 2005, 5. S.A, 107 of 2005 was dismissed vide order dated 12.7.2006 by the Learned DRT holding that the application under Section 17 of the SARFAESI Act, 2002 was not maintainable once the sale Is confirmed. Feeling aggrieved, Appeal Tender No. 169 of 2013/15 was filed before the DRAT, Kolkata which was allowed on 11.5.2017 holding that the Appellant has a right to challenge the proceedings and the matter was remanded back to Learned DRT. Subsequently, S.A. 107 of 2005 was dismissed by the impugned order on 14.12.2038.Appt. 090f 22s.DRAT-oRaM 6. Feeling aggrieved, the Appellant preferred the instant appeal. 7. 1 have heard the Learned Counsel for the parties and perused the records. 8. At the very outset, Learned Counsel for Appellant would submit that the auction sale notice was Issued on 10.01.2005 fixing the auction on 24.01.2005 and the auction was conducted accordingly. It was against the provisions of Rule 8 (6) and 9 (1) of the Rules. Again Notice dated 10.1.2005 was published in the newspapers on 18.01.2005. 9. Learned Counsel for Respondent Bank would submit that all the actions undertaken by the Bank were in accordance with law. all the mandatory provisions of the Rules have been followed 10. Sale notice Is dated 10.01.2005 which was published on 18.01.2005 and the auction date and time was fixed on 24.01.2005. 11. The only controversy in this matter Is on the Issue as to whether in the case of subsequent sale fresh 30 days notice under Rule 8 (5) is required or not? Rules & (6) and 9 (1) of the Security Interest (Enforcement) Rules, 2002 are as under : “8, Sale of immoveable secured assets (6) The authonsed officer shall serve to the borrower 2 notice of thirty days for sala of the immovable secured assets, under sub-rule (5):" “2. Time of sale, issue of sale certificate and delivery of possession, etc (2). "to sale of immovable property under these rules, in first instance shall cake place before the expiry of thirty days from the ‘date on which the public notice of sale Js published in newspapers as referred to In the proviso to sub-rule (6) of rule @ or notice of sale has ben served to the borrowers” “Section 13 (8) SARFAESI Act reads as under: *(8) Where the amount of dues of the secured creditor together with ‘all costs, charges and expenses incurred by him is tendered to the secured Creditor at any tume before the date of publication of notice for public auction fr inviting quotations or tender from public or private treaty for transfer by way of lease, assignment or sale of the secured assers (). “the secured assets shall not be transferred by way of lease, assignment or sale by the secured creditar; amd (i) in’ case, any step has been taken by the secured creditor for transfer by way of lease or assignment or sale of the assars before tendering of such amount under this sub-section, no further step shall be taken by such secured creditor for transfer by way Of lease or assignment or sole of such secured ascets]”Appt a 806 412. We are conscious of the fact that In a recent judgment in CELIR LPP -vs- Bafna Motors (Mumbai) Private Limited & Others [(2024 2 SCC 1] the Hon'ble Apex Court has dealt with all the issues relating to the auction sale as well as compliance of the provisions of the Act as well as the Rules. The Hon'ble Apex Court has dealt with the issue on the sanctity of public auction. Hon’ble the Apex Court has placed reliance upon a judgment in Valji Khimjl_ And Company -vs- Official Liquidator of Hindustan Nitre Product (Gujarat) Limited & Others [(2008) 9 SCC 299] wherein it was held that once an auction Is confirmed, the same can be interfered only on very limited grounds as otherwise no auction would ever be complete. 13. Hon'ble Apex Court in Bafna Motors (supra) has reiterated the cose of K. Kumara Gupta -vs- Sri Markendaya and Sri Omkareswara Swamy Temple & Others [(2022) 5 SCC 710] wherein the Hon’ble Apex Court In paragraph 17 It has held that: 17. The sale pursuant to the public auction can be set aside in eventuality where tes found on the basis of material on record. That the property had ‘ben ‘sold sway at a throwaway price andjer ona wholly Inadequate consideration because of the fraud and/or collusion andor after ‘ony moterial regularity andor illegality 1 four im conducinayhoiding the ublie sucuon. Afeer the public suction is held and the highest bid ts received ‘ond the property ts sold in 8 public auction in favour of 9 highest bidder, such "sale cannot be sel aside on the basis of some offer made by third parties Subsequently and that too when they did noe participate in the auction pproceadings and made any offer and/or the offer i made only for the sake of imakeng and without any serious intent. In the present cate, 3 observed hereinabove, though Shr! Jagat Kumar immediately after finalising the auction Stared that’ hots, ready and miling to pay 2 higher price, however, Subsequently, he backed out If the auction sale pursuane. to the. public suction iz fet aside on ‘the basis of such fnvalous and iresponsible epresentations made by such persons then the sanctity of » puble auction Would be trustrated and the nights oF # genuine bidder would be sdversely Sirectee 14. Further Hon’ble Apex Court has reiterated in Case Law and has held In Eva Agro Feeds Private Limited -vs- Punjab National Bank [(2023) SCC OnLine 1138] wherein it was held that there can be no absolute or unfettered discretion on the part of the Liquidator to cancel an auction which is otherwise valid. Hence it was held by the Hon'ble Apex Court that in the case of Bafna Motors (supra) that"a6. Thus, what is discernible from above i= that, itis the duty oF the courts to zealously protect the sanctity of any auction conducted. ‘The courts ought t0 be leath in interfering with auctions, otherwise 1e would frustrate the very object and purpose behind auctions and deter public Confidence and participation in the sarne. ‘87. Any other interpretation of the amended Section 13 (8) _will lead to a situation where multiple redemption offers would be encouraged biy 2 mischievous borrower, the mambers of the public would be dissuaded and Giscouraged from in participating in the auction process and the overall Sanctity of the auction process would be frustrated thereby defeating the very Durpose of the SARFAESI Act. Thus, IC 15 In the larger public Interest tO ‘maintain the sanctity of the auction process under the SARFAESI Act.” “96. More than 2 decade back, this Court had expressed serious concern despite 1s repeated pronouncements in regard to the High courts ignoring the availabilty of statutory remedies under the RDBFT Act and the SARFAEST “act and exercise of jurisdiction under Afticle 226 of the Constitution. Even after, the decision of this Court in Satyawati Tendon Gupra), ie appears that the High Courts have continued to exercise its writ Jurisdiction under Article 226 ignoring the statutery remedies under the RDBFI ‘Bet and the SARFAESI Act. ‘Conduct of the Bank 97. The genesis of the entire case lies in the illegitimate conduct of the Bankin placing different concerns abeve the clear provisions of the law. First, there was fallure on the part of tho Bank to issue sale ceruiicate in favour of the auction purchaser despite the fact that the entire payment of auction bid was made. Secondly, although the right of redemption Clearly ‘stood lapsed under Section 13 (8) of tho SARFAESI Act and auction having taken place wherein full bid amount was received, yer the Bank proceeded to accept the offer of full payment of the Borrower which 's clearly impermissible in law Once the auction notice f= published in accordance with ‘Section 13 (8) of the SARFAESI Act, than unless and until the auction ts held to be bad and illegal in the facts of the case, the right of redemption of mortgage is not available to the borrower.” 45. In view of the law laid down by the Hon'ble Apex Court, now we have to scrutinize whether the procedure, described in Rules 8 (6) and 9 (4) of The Rules, is followed by the secured creditors or not? 46. Now it is to be seen as to what are the rights of the Borrower available to him under Section 13 (8) of the Act? At this stage it would be apposite to refer to the provisions of Section 13 (8) of the Act as was viewed In the old Act as well as in the amended Act of 2016 which are as under : “pre-amendment Section 13(8) of the SARFAESI Act (9) If the duos of the secured creditor together with all costs, charges and expenses incurred by him are tendered to the secured creditor at Sny time before the date fixed for sals or transfer, the ‘secured asset shall Inet ba sold or transferred by the secured creditor, and me further step shall ‘be taken by him for transfer or sale of that secured asset. *Post-amendment Section 13(8) of the SARFAESI ActAppt. 0906 2e.0RAT-oRa (8) Where the amount of dues of the secured creditor together with ail costs, charges and expenses’ incurred by him 1s tendered to the secured Ereditor at any ime batore the date of publication of notice for public auction ‘er inviting quotations or tender from public or private treaty for transfer by Way of lease, assignment or sale of the secured assers (). the secured assets shall not be transferred by way of lease assignment or sale by the secured creditor, 2nd (i) incase, any step has’ bean taken by the secured creditor for transfer by way of lease or assignment or sale of ‘the astets before tendering of such amount under this sub-section, ne further step shall be taken by Such secured creditor for transfer by way of lease or assignment or sale of such secured assets.” 417. In the case of Mathew Varghese (supra) the Hon’ble Apex Court has considered the Importance of right of redemption of the Borrower. Although the case of Mathew Varghese (supra) was under the provisions of the old Act but the difference in the old Act as well as In the amended Act, as would appear from the provisions Itself, Is to the effect that In the old Act the right of redemption was available to the Borrower till the deed Is executed while under the amended provisions right is curtailed to an extent that the right of redemption is available only till the date of publication of Sale Notice. However, as far as right of redemption Is concerned, the law laid down in the case of Mathew Varghese (supra) still holds good, as has been reiterated by the Hon’ble Apex Court In the case of Bafna Motors (supra). In Mathew Varghese (supra) the Hon’ble Apex Court held that by virtue of the stipulation contained In Section 13 (8) read with Rules 8 (6) and 9 (4), the owner/Borrower should have clear notice of 30 days before the date and time when the sale or transfer of the secured asset would be made as that alone would enable the owner/Borrower to take all efforts to retain his or her ownership by tendering the dues of the secured creditor before that date and time, It Is further held in paragraph 33.3 that : "99.3. Be that as it may, the paramount objective is to_provide sutforent time and opportunity’ to the borrower to take all efforts. to Safeguard his right of ownership either by tendering the dues % the creditor before the date ond time of the sole or transfer, or ensure that the secured Bscet denves the maumum price and no one is allowed to exploit the Vulnerable situation in which the borrower ts placed. 48. It Is further held in paragraph 34 that :19. 20. Appt a 806 "xx x. The underlying purport of such a requirement 's t0 ensure that under no circumstances, tha Mohs of the owner til such night = transrerred in the manner known to law is infringed. Merely because the provisions of the SARFAESI Act and the Rules enable the Secured credicor (0 take possession OF such an immovable property belonging to the ouner and also empowers £0 Goal with it by way of sala of transfer for the purpose of realising the secured debe of the borrower, it does not mean that such wide power can be exercised Srbitrarily or whimsically to the utter disadvantage of the borrower” It Is further held In paragraph 35 that : "35. x x x x x Therefore, 2 reading of Rules 8 and 9, In particular, sub-niles (1) to (4) and (6) of Rule 8 and sub-rule (1) of Rule 9 inakes it clear that simply because 9 secured interest in 9 secured asset is Created by the borrower in favour of the secured creditor, the said asset in the event of the same having become 3 non-performing asset cannot be dealt within a light-hearted manner by way of Sale or transfer or disposed of in a casual manner or by not adhering to the prescriptions contammed under the SARFAESI Ace and the abovenaid Rules mentioned by ts. It was further held in paragraph 38 that “until the sale is complete by registration of sale, the mortgagor does not lose the right of redemption. It was also made clear that It was erroneous to suggest that the mortgagee would be acting as the agent of the mortgagor in selling the property.” The law lald down In Ram Kishun -vs- State of U.P. [(2012) 11 SCC 511] was reiterated wherein paragraph 13, 14 and 28 It was held that “13. Undoubtedly, public money should be recovered and recovery should be made expeditiously. But te does mot mean that the financial Institutions which are concerned only with the racovary of their loans, may be permitted to behave like property dealers and be permitted further t© dispose OF the secured gesets i any unreasonable or arbitrary manner in flagrant Violation of the statutory provisions: 74. “A right lo hold property 1s @ constitutional right as well a5 3 human’ right.” person’ cannet be deprived of his property except in accordance with the provisions of a stature. (Vide Lachhman Dass v. Jagat Ram [(2007) 10 SCC 448} and State of MP. v. Narmada Bachao Andolan [(2011) 7 SCC 635) Thus, the condition precedent for taking anay someone's property or disposing of the secured assets, f that the authority fuss ensure Compliance with the statutory provisions. 25. In view of the above, the law can be summarised to the effect that the recovery of the public dues must be made strictly In accordance with the procedure prescribed by law. The liability of 3 surety is coextensive with that of the prinopal debtor. Incase there are more than one surety the liability is to be divided equally among the sureties for unpaid amount of loan. Once the sale has been confirmed it cannot be set aside unless 2 fundamentoiprecedural “error has occurred or sole certificate had been obtained by misreprasentation oF fraud. (amphasis added)"Appeal. 090f 202s.0RAT-oRaa 24. It was further held in Mathew Varghese (supra) In paragraph 43 that : "43. The above principles Iaid down by this Court also make it clear that though the recovery of public dues should be made expeditiously, Ie should be in accordance with the procedure prescribed by law and that it Should not frustrate @ constitutional right, a5 well asthe human right of 2 person t0 hold 2 property and that in the event of a fundamental procedural error occurred in @ sale, the same can be set aside.” 22. Ultimately in paragraph 53 of the judgment, Hon’ble Apex Court held thet once the sale does not take place pursuant to notice issued under Rule 8 (6) and 9 (1) read along with Section 13 (8) for which the entire blame cannot be thrown on the Borrower. It is imperative that for effective sale, the procedure, prescribed above, will have to be followed afresh as the notice issued earlier would lapse 23. Division Bench of the Hon’ble Andhra Pradesh High Court in Sri Sai Annadhatha Polymers (supra) has taken care of the amended provisions of Rule 13 (8). It was held that "21. However, the amended provisions of Section 13(8) of the SARPAESI Act bring in a radical change, inasmuch as the right of the borrows: 20 redeom the secured asset stands extinguished thereunder on the very date Of publication of the notice for public auction under Rule 9(1) of the Rules of 2002. In effect, the right of redemption available to the berrower under the present starutory regime stands drastically curtailed and would be evailoble only tll the date of publication of the notice under Rule 9(1) of the ules of 2002 and not wil completion of the sale or transfer of the secured asset in favour of the auction purchaser. However, It ts significant to nore that Rule 8(6) of the Rules of 2002 still continues to remein the same and thereunder, the authorized officer of the secured creditor rust necessarily serve upon the borrower 2 notice of thirty days for sale of the immovable Secured asset taking recourse to one of the options available under Rule 83) thereof.” 24. It was further held that “Therefore, even after the amendment of Section 13 (8) of the SARFAESI Act, 2002 (hereinafter referred to as the Act) such right of redemption would stand terminated immediately upon publication of the Sale Notice under Rule 9 (1) of the Rules. A secured creditor is bound to offer to the Borrower @ clear 30 days notice period under Rule 8 (6) to enable him to exercise his right to redemption. In consequence, a notice under Rule 9 (1) of the Rules, 2002 cannot be published prior to expiry of this thirty days period. in the new scenario, post amendment of the Section 13 (8) of theeye. o90f 2e.0RAT-RoRaa SARFAESI Act, such right of redemption would stand terminated immediately upon publication of the Sale Notice under Rule 9 (1) of the Rules.” 25. In Bafna Motors (supra) Hon'ble Apex Court considered the Issue of redemption of mortgagee under Section 16 of the Transfer of Property Act, viz-a-viz, SARFAESI Act. It is held in paragraph 49 that: “49. Thus, prior to the amendment of Section 13(8) of the SARFAESI Act, this Coure consistently held, that the borrower shall continue fo have 2 night of redemption of mortgage until the execution of the Conveyance ‘Of the Secured asset by way of 3 registered instrament. Furcharmore, this Court in Mathew Varghese (supra) found no inconsistency between the unamended Section 13(8) of SARFAEST Act ond the general fight of radempuien under Section 60 of the Act 1882.” 26. Thereafter, Hon'ble Apex Court with approval considered the judgment of the Hon’ble Telangana High Court in Sri Sai Annadhatha Polymers (supra. The Hon'ble Apex Court has also considered the judgment of the Hon’ble Telangana High Court in K.V.V. Prasad Rao Gupta -vs- State Bank of India (2021 SCC OnLine TS 328) wherein reliance Is placed on Sri Sal Annadhatha Polymers (supra). It was held by the Hon'ble Telangana High Court in paragraph 21 that : "24. Thus from the above judgments (t (2 clear that under Rule 8(6) of the Rules of 2002, the petitioners are entitled for a thirty day notice period enabling them fo clear the loan and to redeom the property as envisaged Gnaier Section 13(8) of the SARFAESI Act, and that if they fail to repay the amount within the stipulated period, after expiry oF sold period of 30 days, the secured creditor 1s entitled to issue publication of sale notice under Rule 9(4), and that on publication of such notice, the right of borrower to redeem the property stands extinguished.” 27. Hon'ble Apex Court also considered that approval of Its own judgment in the case of Sakina & Another -vs- Bank of India & Others [(2021) 12 SCC 761] as regards the provisions of Section 13 (8) are concerned. In paragraph 15 of the Sakina (supra) it was held that = “15. Be it noted that an 1-9-2016 amendment to Section 13(8) of the 2002 act came into force as a result of which the dues of the secured creditor together with all costs, charges and expenses incurred by him are required £0 be tendered to the secured creditor at any time before the date of publication of notice for public auction or inviting quotations or tender from public or private treaty for transfor by way of lease, assignment or sale of tha secured 28. It was held In paragraph 68 that :10 29. that 30. "66. However, with the advent of the 2016 Amendment, Section 13(8) Of the SARFAESI Act now uses the expression “before the date of publication ofice for public auction or invinng. quotations or tender from publio OF Devate treaty for transfer By way of lease, assignment or sale of the secured ‘sset3" which by no stretch of imagination could be said tO be in consonance with the general rule under the Act 1882 that the right of redemption extinguished only ‘after conveyance by registered deed. Thus, in the light of Slear inconsistency between Section 13(8) of the SARFAESI Act and Section 80 of the Act 1802 the former special enactment overrides the latter general enactment in light of Section 35 of tho SARFAEST Act. Thus, the right of Fedemption of mortgage 1s available to the borrower under the SARFAEST Act only Pil the publication oF auction notice and not thereafter, in ight of the ‘amended Section 13(8).” Hon’ble Apex Court In paragraph 88 In Bafna Motors (supra) held "88, In view of the aforesaid discussion, we hold that a5 per the amended Section 13(8) of the SARFAESI Act, once the borrower fails to tender the entire amount of dues with all cost & charges to the secured Creditor before the publication oF auction notice, his night of redemption of mortgage shall stand extinguished/waived on the date of publication of the Quction notice in the newspaper in accordance with Rule 8 of the Rules oF 2002." Hence it is absolutely clear that the right of redemption has been granted In favour of the Borrower which Is a sacrosanct right. 31. Hon’ble Apex Court, In the case of Bafna Motors (supra), has relterated the laws laid down In National Spot Exchange Limited -vs- Anil Kohli, Resolution Professional for Dunar Foods Limited [(2022) 11 SCC 761] that : "102. xx x x where the law is clear the consequence thereof must follow. The High Court has me option but implement. the lave The relevant observations made in it are being. reproduced below: “15.1. In Mshei tal [BSNL -vs~ Mishri Lal, (2014) 14 SCC 739: (2013) 1 SCC (185) 387], it's observed that the law prevails over equity IF there isa conflict. 1 1s observed further" that equity can only Supplement the law and not supplant 115.2. In Raghunath Rat Bareja [Raghunath Rai Baraja -vs- Punjab Navional “Bank, (2007) 2 SCC 230], In paras 20 to 37, this Court observed ‘and held as under: (SCC pp. 242-43) "30. | Thus, in Madamanchi —-Ramappa_-vs- Muthalury — Borjapoa [AIR 1963 SC "1633] (vide para 12) this Court observed: (AIR p. 1637) Zine [What (@ administered in Courts 1© justice Bocording to law, and considerations of fair. play and Sguity however important thy may be, must yield Gloar and express provisions of the law." 31. In Council for Indian School Certiicate Examinavion v. Isha Mittal [(2000) 7 SCC 521] (vide para 4) this Court observed: (SCC p, 522)u 32. Appt No. 080f nes.oRAT-onaae “4... Considerations of equity cannot prevail and do not ermit a High Court t0 pass an order contrary to the law. Similarly, in Biot tata ve State of Kerala [(2003) 2 SCC 541: 2003, SCC (LAS) 339} (vide pore 13) this Court observed: (SCC p. 540) "73, Equity and law are twin brothers and lav should be! applied and interpreted "equitably but equity connor override written or settied lav 33. In Laxmingreyan R.-Bhottad | -vs~_ State of Maharashera ((2003) 5 SCC 413] (vide para 73) this Court observed: (SCC p. 430) °72. It is now well settled that when there is 4 conflict ‘between law and equity ‘the former shall prevail.” 53° simitatly, in Nasiruddin vs" Sita Ram Agarwal [(2003) 2800577] (vide para 35) this Court observed: (SCC p. 588) 35. "tn 2 case whore the statutory provision '© plain and unambiguous, the court shall not interpret the same in a alfferent manner, ‘only becouse of harsh consequences arrsing therefrom. ‘35. similarly, in ©. Palanisarny vs" Palanisarny [(2003) 1 SCC 123] (vide para 5) this Court observed: (SCC p. 127) "S. Equitable considerations have no place where the statute contained express provisions. "36. In India House -vs-_Kishan N. Lalwani [(2003) 9 SCC 393] (vide para 7) this Court hald that: (SCC p. 398) 7.2, The period of limitation statutorily prescribed has co be strictly adhered to and cannot be relaxed or departed from for equitable considerations.’ Now it is to be seen as to whether in the case of subsequent sale, 30 days notice, under Rule 8 (6) of the Rules, is required or not? Whether 15 days notice, before Issuing notice under 1* Proviso to Rule 9 (4) of the Rules, is required or not? It was held by Hon'ble Apex Court in Bafna Motors (cupra) in paragraph 37 that : 33. "37. From the above provisions under Rule &(6) it is clear that the authorised officer of the Bank shall serve on the borrower 2 notice of thirty. Gays for sale of immovable property, and that if the sale of such secured asters 1s by way of public” auction, the Bank/secured creditor, shall cause publication of such notice in two leading newspapers, one in vernacular, language having sufficient circulation in the locality by setting the out the terms of sale, mentioned in the said provision; and under sub-rule (1) of Rule 9 Such sale of immovable of property under these Rules shall not take place before the expiry of thirty days from the date on which the public novice oF Sale fs publishad in newspapers as referred ta in the provise to sub-rule (6), or notice of sale has been served to the borrower.” It has been held by the Hon’ble Apex Court In Mathew Varghese (supra) in paragraph 53 that + "53. We, therefore, hald that unless and until a clear 20 days' notice is given to the borrower, no’sale or transfer can be resorted to by 2 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AgpetNo.090f 2e2s.0RAT-oRaa effect the sale or transfer of the secured asset on any subsequent date by relying upon the notification issued earlier. In other words, once the sale does Snot take place pursuant to a novice rested under Rules @ and 9, read 310ng with Section 13(8) for which the entire blame cannot be thrown on the borrower, i is imperative thot for effecting the sale, the procedure prescribed above will have to be followed afresh, 22 the notice fasued corlier would lapse. In that respect, the only other provision to be noted is sub-rule (8) of Rule 8 2s per Which Zale by any mathed ether than public auction or public tender can be on such terms os may be settled between the parties in writing. Az far a2 cub-rule (8) ie concerned, the parties referred to can only relate to the secured creditor and the borrower. Ic is, thererore, imperaiive 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 9s that's the prescription of the law for effecting the sale as has been explained in detail by us in the carlier paragraphs by referring t0 Sections 13(1), 13(8) and 37, read along with Sedtion 29 and ule 15. In our considered view any ether construction will be doing violence to the provisions of the SARFAEST Act, in particular Sections 13(t) and (8) of the Said Act.” 34. Right of redemption of the Borrower Ie @ sacrosanct right as provided under the law. The amended provisions of Section 13 (8) of the Act bring in @ radical change, inasmuch as the right of the borrower to redeem the secured asset stands extinguished thereunder ‘on the very date of publication of the notice for public auction under Rule 9 (4) of the Rules, In effect, the right of redemption avallable to the borrower under the present statutory regime stands drastically curtailed and would be available only ull the date of publication of the notice under Rule 9 (1) of the Rules and not till completion of the sale or transfer of the secured asset In favour of the Auction Purchaser. However, it Is significant to note that Rule 8 (6) of the Rules still continues to remain the same and thereunder, the Authorized Officer of the secured creditor must necessarily serve upon the borrower a notice of 30 days for sale of the immovable secured asset taking recourse to one of the options avallable under Rule 8 (5) thereof. Therefore, even if the amendment of Section 13 (8) of the Act, Secured Creditor Is bound to afford to the Borrower a clear 30 days notice period under Rule 8 (6) to enable him to exercise his right of redemption. In consequence, a notice under Rule 9 (1) cannot be published prior to expiry of 30 days period. In the new scenario post amendment of Section 13 (8) of the Act, such right of redemption13 Acpet No. 0806 2s.DRAT-RoRaG would stand terminated immediately upon publication of the Sale Notice under Rule 9 (1) of the Rules. Proviso attached to Rule 9 (1) simply provides that If the sale of Immoveable property by one of the methods specified by Sub-rule (5) of Rule 8 fails, sale Is required to be conducted again. The Authorised Officer shall serve, affix and publish notice of sale on not less than 15 days to the Borrower for any subsequent sale, It means that In case of subsequent sale, the period of 30 days, as required under Rule 9 (1) Is curtalled to 15 days. This Proviso of Rule 9 (1) in no manner curtalled the period of notice provided under Rule @ (6). Had It been the Intention of the Legislature, that period provided under Rule 8 (6) would also have to be amended by the legislature, But intentionally Rule § (6) is not amended but the period in subsequent sale Is curtailed to 15 days. It means that even in the case of subsequent sale, provisions of Rule 8 (6) have to be followed by the Authorised Officer. Accordingly, it Is incumbent upon the Authorised Officer, even in case of subsequent sale, to comply the provisions of Rule 8 (6) as well as proviso to Rule 9 (4). Lew nowhere curtalls the right to redemption avaliable to the Borrower under Section 13 (8) of the Act in case of a subsequent sale. Accordingly, I am of the considered view that even in case of subsequent sale, Authorised Officer is required to issue 30 days notice under Rule 8 (6) and thereafter 15 days notice under Proviso attached to Rule 9 (1). 35. On the basis of the discussion made above, I am of the considered opinion that in the present case, as has been noted earlier, It Is a case of subsequent sale wherein Sale Notice was Issued on 10.01.2005 which was published in newspaper on 18.01.2005 and the date of auction sale was fixed on 24.1.2005 which is clearly in violation of Rule & (6) and Proviso 4 of Rule 9 (1) of the Rules. 36. Having considered the submissions, I am of the considered view that Learned Counsel for Respondent Bank has not complied the Provisions of Rules (6) and 9 (3) of the Rules. Accordingly, Learned14 DRT has wrongly arrived at the finding. Appeal deserves to be allowed. ORDERED Appeal is allowed. The impugned judgment and order dated 14.12.2018 passed by Learned DRT, Visakhapatnam in S.A. No. 107 of 2005 (M/s. VST Constructions -vs- The Syndicate Bank & Others) Is set aside. Auction Sale Notice dated 10.1.2015 Is set aside. Consequently, sale held on 24.1.2015 Is also set aside. Respondent Bank Is directed to refund the sale considerations to the successful Auction purchasers with Interest at the prevalent rate of Fixed Deposits from the date of deposit till the date of actual payment. Payment will be made within thirty days. However, Bank would be at liberty to proceed afresh In accordance with law to recover the dues. No order as to costs. Copy of the order be supplied to Appellant and the Respondents and a copy be also forwarded to the concerned DRT. File be consigned to Record room. Order signed, dated and pronounced In open Court. (Anil Kumar Srivastava,J) Chairperson