G. VIKRAM KUMARversusSTATE BANK OF HYDERABAD & ORS.

624                      [2023]
              SUPREME COURT     5 S.C.R. 624
                             REPORTS                    [2023] 5 S.C.R.


A                          G. VIKRAM KUMAR
                                      v.
                 STATE BANK OF HYDERABAD & ORS.
                    (Civil Appeal Nos.3152–3153 of 2023)
B                              MAY 02, 2023
              [M. R. SHAH AND C. T. RAVIKUMAR, JJ. ]
             Securitization and Reconstruction of Financial Assets and
      Enforcement of Security Interest Act, 2002 : ss. 13, 17 –
C     Enforcement of security interest – Application against measures
      to recover secured debts – On facts, initiation of proceedings u/
      s 13 by the Bank against the borrower and attachement of the
      properties of the borrower – Tribunal allowed the Bank to go
      ahead with the sale excluding seven flats identified by the
      borrower – However, Flat No.6401 was not amongst the said
D
      seven flats – Borrower entered into an agreement to sale of Flat
      No.6401 with the respondent no. 1 without informing tribunal
      and the Bank – Thereafter, properties of borrower including Flat
      no. 6401 subjected to e-auction by Bank – Borrower sought stay
      on all proceedings of Bank, however, the tribunal rejected the
E     same – E-auction conducted by the Bank – Appellant declared
      successful bidder with respect to Flat No.6401 and paid 25% of
      the bid amount – Writ petition by the respondent no. 1 challenging
      the e-auction notice as regards flat No. 6401, after the auction
      was conducted – High Court stayed the auction qua Flat No.
F     6401 subject to respondent no. 1 paying the required amount to
      the Bank – Appellant then sought setting aside of sale in favour
      of respondent no. 1, however, the High Court allowed the writ
      petition in favour of respondent no.1 – Review application there
      against dismissed – On appeal, held: Against any steps taken by
G     the Bank u/s.13(4), the aggrieved party has a remedy under the
      SARFAESI Act by way of appeal u/s. 17 to approach the DRT –
      In view of the availability of the alternative statutory remedy
      available by way of proceedings/appeal u/s. 17, the High Court
      erred in entertaining the writ petition u/Art. 226 in which the e-
      auction notice was under challenge – Moreover, the transaction
H
                                     624
 G. VIKRAM KUMAR v. STATE BANK OF HYDERABAD &                           625
                      ORS.

in favour of the respondent no. 1 with respect to Flat no.6401          A
was already held to be void by the DRT – If the respondent no. 1
would have approached the DRT against the e–auction notice he
would have been non-suited in view of the earlier order passed by
the DRT – Therefore, calculatively the respondent no. 1 filed the
writ petition before the High Court challenging the e-auction notice    B
and that too after conducting of the e-auction and the sale in favour
of the appellant was confirmed – Respondent no. 1 and/or his heirs
cannot be permitted to get the benefit of his own wrong and cannot
be permitted to get the benefit of a void transaction – Thus, the
impugned judgment and order passed by the High Court is
                                                                        C
unsustainable – Constitution of India – Art. 226.

      Allowing the appeals, the Court

      HELD: 1.1 What was challenged before the High Court by
respondent no.1 in a writ petition under Article 226 of the
                                                                        D
Constitution of India was the e–auction notice which was pursuant
to the action initiated by the Bank in exercise of powers under
Section 13(4) of the SARFAESI Act. Against any steps taken by
the Bank under Section 13(4) of the SARFAESI Act the aggrieved
party has a remedy under the SARFAESI Act by way of appeal
under Section 17 of the SARFAESI Act to approach the DRT.               E
Therefore, in view of the availability of the alternative statutory
remedy available by way of proceedings/appeal under Section 17
of the SARFAESI Act, the High Court ought not to have
entertained the writ petition under Article 226 of the Constitution
of India in which the e-auction notice was under challenge.             F
Therefore, the High Court has committed a very serious error in
entertaining the writ petition under Article 226 of the Constitution
of India challenging the e-auction notice issued by the Bank in
exercise of power under Section 13(4) of the SARFAESI Act.
[Para 8][635-B, C-E]                                                    G
      1.2. The flat in question namely Flat No.6401 was not the
seven flats identified by the borrower to be kept out of the
auction proceedings. At the relevant time the flat in question
was not sold amongst the seven flats mentioned before the
tribunal. That thereafter during the pendency of the S.A.               H
626           SUPREME COURT REPORTS                     [2023] 5 S.C.R.


A     No.253 of 2012 and without obtaining prior approval and/or
      intimation to the DRT and even the bank, the borrower entered
      into the sale agreement with the respondent no.1 on 16.06.2016.
      In the MoU dated 10.04.2016 between the borrower and the
      respondent no.1 in Clause No.4 it was specifically provided
      that first the party should obtain clearance of sale from DRT/
B
      SBH so that they can process with further agreement to sale.
      Thus, as such respondent no.1 at the relevant time was aware
      about the pending DRT proceedings. Still the respondent no.1
      entered into the agreement to sale with the borrower on
      16.06.2016. At this stage, it is pertinent to note that thereafter
C     when the Bank issued a public notice on 28.07.2016 for
      auctioning the properties of the borrower. Before the date of
      auction, on 24.08.2016 the borrower filed an application before
      the DRT praying for stay of all proceedings of the Bank
      pursuant to the auction notice dated 28.07.2016. The DRT was
      pleased to reject the said application for stay vide the order
D
      dated 24.08.2016 by observing that the sale of the flat in
      question without the permission of the Bank or the tribunal is
      void. Thus, as such the transaction in favour of the respondent
      no.1 with respect to Flat no.6401 was already held to be void
      by the DRT. That, thereafter, after the borrower having failed
E     to obtain any order, the respondent no.1 had straightway filed
      the writ petition challenging the e– auction notice which the
      borrower failed to get any relief before the DRT. If the
      respondent no.1 would have approached the DRT against the
      e-auction notice he would have been non–suited in view of the
      earlier order passed by the DRT dated 24.08.2016. Therefore,
F
      calculatively the respondent no.1 filed the writ petition before
      the High Court challenging the e-auction notice and that too
      after conducting of the e– auction on 31.08.2016 and the sale
      in favour of the appellant was confirmed. The said facts were
      pointed out before the High Court and despite the same the
G     High Court has allowed the w rit petition which is not
      sustainable at all. By the impugned order the respondent no.1
      has got the relief which as such the borrower failed to get from
      the DRT. On the said grounds the impugned judgment and
      order passed by the High Court is unsustainable. [Para
      8.2][636-B-H; 637-A]
H
 G. VIKRAM KUMAR v. STATE BANK OF HYDERABAD &                      627
                      ORS.

        1.3 In the present case the borrower failed to get any     A
relief from the DRT. The borrower did not apply and/or invoke
Section 13(8) and did not agree to clear the entire dues.
Therefore, also the High Court has materially erred in allowing
the writ petition. [Para 8.3][637-C]
       1.4 What exact relief is granted by the High Court is not   B
clear. The High Court has simply stated that the writ petition
is allowed. However, it is required to be noted that what was
challenged. Even at the time when the respondent no.1 entered
into the agreement to sale/MoU he was aware about the
proceedings pending before the DRT before the High Court
was the e-auction notice dated 28.07.2016 which was already        C
conducted on 31.08.2016. Therefore, the writ petition was filed
much after conducting the e-auction on 31.08.2016. No
consequential relief has been granted by the High Court.
Therefore, also the impugned judgment and order passed by
the High Court is unsustainable. [Para 8.4][637-D-E]               D
       1.5 Now so far as the submission the respondent no.1
has paid/deposited the amount of sale consideration and now
the respondent no.1 has died his heirs will have to vacate the
flat in question and on the other hand the appellant shall be
entitled to return the amount of Rs.6,45,250/ deposited at the     E
relevant time being 25% of the auction sale consideration with
interest is concerned, at the outset it is required to be noted
that as such the transaction between the respondent no.1 and
the borrow er pursuant to the agreement to sale dated
16.06.2016 was absolutely illegal and behind the back of the
tribunal as well as the Bank and during the pendency of the        F
proceedings before the tribunal. In order dated 24.08.2016
the tribunal had in fact already held the sale transaction as
void. Even at the time when the respondent no.1 entered into
the agreement to sale/MoU he was aware about the proceedings
pending before the DRT which is apparent from Clause 4 of          G
the MoU . Therefore, respondent no.1 and/or his heirs cannot
be permitted to get the benefit of his own wrong and cannot
be permitted to get the benefit of a void transaction. [Para
8.5][637-E-H; 638-A]

                                                                   H
628           SUPREME COURT REPORTS                     [2023] 5 S.C.R.


A            1.6 The impugned judgment and order passed by the
      High Court is quashed and set aside. It is directed that on the
      full payment of the auction sale consideration by the appellant
      (after deducting the 25% of the amount already deposited
      earlier) with 9% interest from the date of auction till the actual
      amount is paid, to be paid within the stipulated period, the
B
      sale certificate be issued in favour of the appellant with respect
      to Flat No.6401. Whatever the amount is already deposited by
      the respondent no.1/his heirs shall be returned to the
      respondent no.1 (now his heirs) with the interest at 9% from
      the date of such deposit till the actual date of return which
C     shall be returned within the stipulated period. The heirs of
      original respondent no.1 are granted three months’ time to
      vacate the flat in question and are directed to hand over the
      peaceful and vacant possession of the Flat No.6401 to the
      appellant. [Para 9][638-B-D]
D          Mathew Varghese v. M. Amritha Kumar (2014) 5 SCC
           610 : [2014] 2 SCR 736; Narandas Karsondas vs.
           S.A. Kamtam (1977) 3 SCC 247 : [1977] 2 SCR 341;
           B. Arvind Kumar vs. Govt. of India & Ors. (2007) 5
           SCC 745; Pal Alloys & Metal India Pvt. Ltd. & Ors.
           vs. Allahabad Bank & Ors. 2021 SCC OnLine P&H
E          2733; M/s India Finlease Securities Ltd. vs. Prasad
           Indian Overseas Bank 2012 SCC OnLine AP 205 –
           referred to.
                           Case Law Reference

F     [2014] 2 SCR 736              referred to            Para 5.2
      [1977] 2 SCR 341              referred to            Para 5.2
      (2007) 5 SCC 745              referred to            Para 5.2
            CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.3152-
      3153 of 2023.
G
           From the Judgment and Order dated 08.09.2017 in WP
      No.31098 of 2016 and dated 08.12.2017 in RWPMP No.45031 of
      2017 of the High Court of Judicature at Hyderabad for the State of
      Telangana and the State of Andhra Pradesh.
H
 G. VIKRAM KUMAR v. STATE BANK OF HYDERABAD &                                   629
                      ORS.

    A. Sirajudeen, Sr. Adv., Venkateshwara Rao Anumolu, Sunny                   A
Kumar, Tanmaya Agarwal, Advs. for the Appellant.
      Buddy A. Ranganadhan, Ms. Nandini Tomar, A. V. Rangam,
Ananga Bhattacharyya, M/s. Veritas Legis, Ms. Devahuti Tamuli,
Vatsal Anand, Advs. for the Respondents.
      The Judgment of the Court was delivered by                                B

      M. R. SHAH, J.
      1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 08.09.2017 passed by the High Court of Judicature at
Hyderabad for the State of Telangana and Andhra Pradesh passed in               C
Writ Petition No.31098 of 2016 and the subsequent order dated 08.12.2017
passed in Review Petition No.45031 of 2017 in Writ Petition No.31098
of 2016, the appellant and the auction purchaser has preferred the present
appeals.
      2. The facts leading to the present appeals in nutshell are as under:     D
       2.1 That the respondent no.3 herein – builder had taken loan from
respondent no.2 – Bank for the development of the multi-storey housing
project. That the respondent no.3 (hereinafter referred to as the borrower)
was not able to repay the security interest to the Bank, the Bank initiated
proceedings against the borrower under Section 13 of the Securitization
                                                                                E
and Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002 (hereinafter referred to as ‘the SARFAESI Act, 2002).
The Bank attached the properties of the borrower under Section 13(4)
of the SARFAESI Act. Against the measures taken by the Bank under
Section 13(4) of the SARFAESI Act, the borrower filed S.A. No.253 of
2012 before the Debt Recovery Tribunal (DRT), Hyderabad. S.A. No.253            F
of 2012 was listed before the DRT on 19.02.2016, when the borrower
was given liberty to file a list of intending buyers of the property and
bring forth with the buyers so as to enable the Tribunal to consider the
same for the repayment of the dues of the Bank. On 25.02.2016, the
DRT passed anorder permitting the Bank to go ahead with the sale
                                                                                G
asproposed excluding flat to be identified and communicated by the
borrower to the Bank by 29.02.2016 with full details of all purchasers to
the bank officials on affidavit so as to enable the bank officer to exclude
those flats, provided the remaining flats are sufficient for recovery of
the dues. The Tribunal directed that the bank may proceed with the sale
but shall not confirmthe sale till the next date of hearing. At this stage it   H
630            SUPREME COURT REPORTS                           [2023] 5 S.C.R.


A     is required to be noted that the aforesaid order was passed by the Tribunal
      in view of the submissions made by the borrower that he had sold seven
      flats out of 37 flats which were to be sold by the Bank to some third
      persons. Flat No.6401 – flat in question was not amongst the said seven
      flats.
B            2.2 A Memorandum of Understanding (MoU) was entered into
      between the respondent no.1 and the borrower with respect to the sale
      of Flat No.6401 on 10.04.2016 for a lumpsum consideration of Forty-
      five lakhs. It is pertinent to note that in the MoU itself there was a
      reference to some proceedings going on before the DRT and that the
      Bank and the borrower will obtain clearance in order to process the
C     agreement to sale. That an agreement to sale was executed between
      the bank and the borrower for a sale of Flat No.6401 on 16.06.2016. At
      this stage, it is required to be noted that the said agreement to sale was
      executed by the borrower without informing/obtaining any consent from
      the DRT as well as the Bank and the permission, if any, given to the
D     borrower earlier obtained only to the seven flats which were already
      recognized by the DRT on 25.02.2016.
            2.3 That thereafter the Bank issued a public notice on 28.07.2016
      for auctioning the properties of the borrower. The said notice was
      published in the newspaper on 29.07.2016. The property in question, i.e.
E     Flat No.6401 was also subjected to auction. It was placed in Lot No.1
      for which the e-auction was proposed on 30.08.2016.
             2.4 The borrower filed an application before the DRT praying for
      stay on all proceedings of the Bank pursuant to the auction notice dated
      28.07.2016. On 24.08.2016 the DRT was pleased to reject the application
F     for stay filed by the borrower. While rejecting the stay application and
      refusing to grant the stay as prayed, the DRT observed as under:
            “…Pending the decision, this Tribunal has directed to sell the
            property and the Applicant now has entered into an agreement to
            be sold for some other flats. This is utter violation of the
G           SARFAESI action as also the direction of the Tribunal.”
            “7. As stated hereinabove, it is also question of great concern that
            the Applicant has entered into an agreement with third party in
            respect of few other flats i.e. Flat No.3202, 6401, 7101, 7202 and
            3201 without the permission of the Respondent Bank or this
            Tribunal. Hence, any such transaction is declared as void.”
H
 G. VIKRAM KUMAR v. STATE BANK OF HYDERABAD &                                    631
              ORS. [M. R. SHAH, J.]

      2.5 That thereafter e-auction was conducted by the Bank on                 A
31.08.2016 in which the appellant also participated. The appellant was
declared as a successful bidder with respect to Flat No.6401 in Lot
No.1. Accordingly, he made a payment of 25% of the bid amount i.e.
Rs.6,45,250/-. The Bank also issued a confirmation receipt to the appellant
on 31.08.2016.
                                                                                 B
       2.6 That thereafter the respondent no.1 filed aWrit Petition
No.31098 of 2016 before the High Court on 14.09.2016 challenging the
e-auction notice dated 28.07.2016 to the extent it concerns Flat No.6401.
The said writ petition was filed much after the auction was complete
and the appellant was declared as a successful bidder. The respondent
no.1 did not disclose in the writ petition that the auction has already          C
taken place. The appellant herein was also not made party.By impugned
judgment and order dated 15.09.2016 the High Court stayed the auction
qua Flat No.6401 as notified under the e-auction sale notice subject to
respondent no.1 (original wit petitioner) paying to the bank not less than
25.81 lakhs before the scheduled date and time of the auction, failing           D
which, the Bank shall be free to proceed with the auction. The Bank
issued a letter to the appellant dated 20.09.2016 stating that the High
Court has stayed the auction proceedings with respect to Flat No.6401
and that the respondent no.1 herein has paid the amount to the Bank as
directed by the High Court.
                                                                                 E
       2.7 On becoming aware of the pending proceedings in Writ Petition
No.31098 of 2016 the appellant herein filed an application for getting
impleaded in the said writ petition and filed the counter affidavit. In the
counter affidavit it was specifically stated that the DRT has declared
the agreement of sale executed between the respondent no.1 and the
borrower as void and that the appellant is the successful auction purchaser      F
and that the respondent no.1 had not disclosed the complete and correct
facts of the case. It was also stated that the right, if any, available to the
respondent no.1 (original writ petitioner) would have been under Section
17 of the SARFAESI Act and not the writ petition filed by him. It was
also stated that the respondent no.1 had not informed the Court that the         G
auction proceedings were already over at the time when the stay order
was passed. The Bank also filed the counter affidavit in the writ petition
seeking dismissal of the writ petition primarily on the ground that an
alternative remedy under Section 17 of the SARFAESI Act was available.
The High Court allowed the impleadment application. Despite the above,
                                                                                 H
632                SUPREME COURT REPORTS                         [2023] 5 S.C.R.


A     by the impugned judgment and order the High Court has allowed the
      writ petition filed by respondent no.1 herein. That thereafter the appellant
      herein the auction purchaser filed the review petition which has been
      dismissed by the High Court. Hence,against the final decision of the
      High Court in the main writ petition allowing the same in favour of the
      respondent no.1 herein and rejecting the review application filed by the
B
      appellant, the appellant – successful auction purchaser has preferred
      the present appeals.
            3. Shri A. Sirajudeen, learned Senior Advocate has appeared on
      behalf of the appellant. Shri Buddy A. Ranganadhan, learned counsel
      has appeared on behalf of respondent no.1 – original writ petitioner and
C     Shri Ananga Bhattacharyya, learned counsel has appeared on behalf of
      respondent no.3.
             4. Shri A. Sirajudeen, learned Senior counsel appearing on behalf
      of the appellant has made the following submissions:
            (i)      That the High Court has materially erred in entertaining the
D
                     writ petition filed by respondent no.1 which was against
                     the steps taken by the Bank under Section 13(4) of the
                     SARFAESI Act namely against e-auction notice;
            (ii)     That the respondent no.1 being the agreement to sale holder
                     had no right title in the flat in question and therefore could
E                    not have filed the writ petition challenging e-auction notice
                     on the basis of the agreement to sale in his favour;
            (iii)    Even if the respondent no.1 had any right, if any, in that
                     case also he had alternative efficacious statutory remedy
                     available under Section 17 of the SARFAESI Act challenging
F                    the e-auction notice;
            (iv)     That there was suppression of material facts on the part of
                     respondent no.1 which was specifically pointed out by the
                     appellant in the counter affidavit that at the time when the
                     writ petition was filed and the interim relief was obtained
G                    the auction had taken place in which the appellant was
                     declared the successful bidder;
            (v)      That in fact the DRT in the earlier order dated 24.08.2016
                     declared the sale agreement in favour of the respondent
                     no.1 by the borrower as void as the same was entered into
H                    without prior permission of the DRT or even the Bank; and
 G. VIKRAM KUMAR v. STATE BANK OF HYDERABAD &                                  633
              ORS. [M. R. SHAH, J.]

      (vi)   The High Court has materially erred in relying upon Section       A
             13(8) of the SARFAESI Act.
       4.1 It is further submitted by learned counsel appearing on behalf
of the appellant that the High Court has not properly appreciated the
fact that a sale agreement holder cannot seek redemption of a property
under Section 91 of the Transfer of Property Act, 1882 and cannot be           B
treated at par with an auction-sale purchaser under Section 54 of the
Transfer of Property Act makes it clear that no interest /charge is created
upon a property only by way of sale-agreement. It is stated that in fact
the impugned judgment passed by the High Court that the respondent
no.1 be able to seek redemption of the subject property which was
attached by the Bank. It is submitted that the bank attached the property      C
as against the borrower and the respondent No.1 was only the sale-
agreement holder. It is submitted that as such by virtue of the impugned
judgment and order, the High Court has granted the decree for specific
performance of the agreement to sale which is not permissible while
exercising the powers under Article 226 of the Constitution of India.          D
       4.2 It is further submitted by learned counsel appearing on behalf
of the appellant that the High Court has materially erred in observing
that the equity would be in favour of respondent no. 1 as he has deposited
the entire amount as directed. It is submitted that the High Court has
materially erred in observing that if the sale is confirmed the respondent     E
no.1 will suffer greater hardship and if the sale is not confirmed at the
most, the appellant may lose interest on Rs.6,45,250/-.
        4.3 It is further submitted that as such there is no clarity in the
impugned judgment and order passed by the High Court on what exact
relief the High Court has granted except observing that the writ petition      F
is allowed.
       5. While opposing the present appeal learned counsel appearing
on behalf of the respondent no.1 has vehemently submitted that in the
present case Section 13(8) of the SARFAESI Act shall be applicable
and therefore when the respondent no.1 being the agreement to sale             G
holder of the flat in question agreed to pay/deposit the entire sale
consideration the High Court has not committed any error in entertaining
the writ petition under Article 226 of the Constitution of India challenging
the e-auction notice.

                                                                               H
634             SUPREME COURT REPORTS                            [2023] 5 S.C.R.


A            5.1 It is submitted that as soon as respondent no.1 came to know
      that the flat in question which was agreed to be sold in favour of respondent
      no.1 for which part consideration was paid is put to auction,immediately
      he filed the writ petition showing his inclination to deposit the entire
      amount of sale consideration which is permissible under Section 13(8)
      of the SARFAESI Act. It is submitted that the object and purpose of
B
      Section 13(8) of the SARFAESI Act is to save the property from auction
      in case the borrower and/or the person interested in the property agrees
      to clear the dues.
              5.2 It is submitted that in the present case at the relevant time
      there was no concluded sale in favour of the appellant, as at the relevant
C     time the appellant deposited only 25% of the auction sale consideration.
      It is submitted that as per the catena of decisions unless the full sale
      consideration is paid; the sale deed is executed and/or the sale certificate
      is issued in favour of the auction purchaser there is no concluded sale. It
      is submitted that if the sale is not concluded, Section 13(8) of the
D     SARFAESI Act shall be applicable and/or can be invoked. In support of
      his submissions, he has relied upon the decisions of this Court in the case
      of Mathew Varghese v. M. Amritha Kumar, (2014) 5 SCC 610 (para
      38); Narandas Karsondas vs. S.A. Kamtam, (1977) 3 SCC 247; B.
      Arvind Kumar vs. Govt. of India & Ors., (2007) 5 SCC 745 (para
      12). He has also relied upon the decision of the Punjab and Haryana
E     High Court in the case of Pal Alloys & Metal India Pvt. Ltd. & Ors.
      vs. Allahabad Bank & Ors., 2021 SCC OnLine P&H 2733 as well
      as the decision of the Andhra Pradesh High Court in the case of M/s
      India Finlease Securities Ltd. vs. Prasad Indian Overseas Bank,
      2012 SCC OnLine AP 205.
F            5.3 It is further submitted by learned counsel appearing on behalf
      of the respondent no.1 that the respondent no.1 has subsequently died
      and his heirs including the widow are residing in the flat in question since
      long and that they have paid/deposited the entire sale consideration and
      therefore if now the appeal is allowed in that case, they have to vacate
G     the premises which will not be equitable. Therefore, it is prayed to dismiss
      the present appeal.
            6. Learned counsel appearing on behalf of the Bank has though
      opposed the writ petition before the High Court, has stated that whatever
      the decision, the Bank shall abide by the same.
H
 G. VIKRAM KUMAR v. STATE BANK OF HYDERABAD &                                      635
              ORS. [M. R. SHAH, J.]

       7. Heard learned counsel appearing on behalf of the respective              A
parties at length.
       8. At the outset, it is required to be noted that what was challenged
before the High Court by respondent no.1 in a writ petition under Article
226 of the Constitution of India was the e-auction notice which was
pursuant to the action initiated by the Bank in exercise of powers under           B
Section 13(4) of the SARFAESI Act. At this stage it is required to be
noted that e-auction was held/conducted on 31.08.2016 in which the
appellant participated and was declared as a successful bidder and he
made a payment of 25% of the bid amount on the very day i.e., on
31.08.2016. However, thereafter the respondent no.1 filed the writ petition
before the High Court challenging the e-auction notice dated 28.07.2016            C
on 14.09.2016 that is after conducting of the auction. It is required to be
noted that against any steps taken by the Bank under Section 13(4) of
the SARFAESI Act the aggrieved party has a remedy under the
SARFAESI Act by way of appeal under Section 17 of the SARFAESI
Act to approach the DRT. Therefore, in view of the availability of the             D
alternative statutory remedy available by way of proceedings/appeal
under Section 17 of the SARFAESI Act, the High Court ought not to
have entertained the writ petition under Article 226 of the Constitution
of India in which the e-auction notice was under challenge. Therefore,
the High Court has committed a very serious error in entertaining the
writ petition under Article 226 of the Constitution of India challenging           E
the e-auction notice issued by the Bank in exercise of power under
Section 13(4) of the SARFAESI Act.
       8.1 Even otherwise it is required to be noted that the respondent
no.1 – original writ petitioner filed the writ petition as agreement to sale
holder of the flat in question. At this stage it is required to be noted that      F
earlier against the measures taken by the Bank under Section 13(4) of
the SARFAESI Act the borrower filed S.A.No.253 of 2012 before the
DRT, Hyderabad. The DRT, Hyderabad by order dated 19.12.2016 gave
the liberty to the borrower to file the list of intending buyers of the property
and to bring forth with the buyers so as to enable the Tribunal to consider        G
the same for repayment of the dues of the Bank. That thereafter on
25.02.2016 the DRT passed the following order:
       “The Bank is directed to go ahead with the sale as proposed
       excluding the Flat to be identified and communicated by the
       Applicant to the Respondent Bank by 29.02.2016 with full detailed           H
636             SUPREME COURT REPORTS                            [2023] 5 S.C.R.


A            of all the Purchasers to the Bank Officers on affidavit so as to
             enable the Bank Officer to exclude those Flats, provided the
             remaining Flats are sufficient for recovery of the dues. The Bank
             may proceed with the sale but shall not confirm the same till the
             next date of hearing.”
B            8.2 At this stage it is required to be noted that the flat in question
      namely Flat No.6401 was not the seven flats identified by the borrower
      to be kept out of the auction proceedings. At the relevant time the flat in
      question was not sold amongst the seven flats mentioned before the
      Tribunal. That thereafter during the pendency of the S.A. No.253 of
      2012 and without obtaining prior approval and/or intimation to the DRT
C     and even the bank, the borrower entered into the sale agreement with
      the respondent no.1 on 16.06.2016. At this stage, it is required to be
      noted that in the MoU dated 10.04.2016 between the borrower and the
      respondent no.1 in Clause No.4 it was specifically provided that first the
      party should obtain clearance of sale from DRT/SBH so that they can
D     process with further agreement to sale. Thus, as such respondent no.1
      at the relevant time was aware about the pending DRT proceedings.
      Still the respondent no.1 entered into the agreement to sale with the
      borrower on 16.06.2016. At this stage, it is pertinent to note that thereafter
      when the Bank issued a public notice on 28.07.2016 for auctioning the
      properties of the borrower. Before the date of auction, on 24.08.2016
E     the borrower filed an application before the DRT praying for stay of all
      proceedings of the Bank pursuant to the auction notice dated 28.07.2016.
      The DRT was pleased to reject the said application for stay vide the
      order dated 24.08.2016 by observing that the sale of the flat in question
      without the permission of the Bank or the Tribunal is void. The order
F     dated 24.08.2016 is reproduced hereinabove. Thus, as such the
      transaction in favour of the respondent no.1 with respect to Flat no.6401
      was already held to be void by the DRT. That thereafter,after the
      borrower having failed to obtain any order, the respondent no.1 had
      straightway filed the writ petition challenging the e-auction notice which
      the borrower failed to get any relief before the DRT. If the respondent
G     no.1 would have approached the DRT against the e-auction notice he
      would have been non-suited in view of the earlier order passed by the
      DRT dated 24.08.2016. Therefore, calculatively the respondent no.1 filed
      the writ petition before the High Court challenging the e-auction notice
      and that too after conducting of the e-auction on 31.08.2016 and the sale
H     in favour of the appellant was confirmed. The aforesaid facts were
 G. VIKRAM KUMAR v. STATE BANK OF HYDERABAD &                                  637
              ORS. [M. R. SHAH, J.]

pointed out before the High Court and despite the same the High Court          A
has allowed the writ petition which is not sustainable at all. By the
impugned order the respondent no.1 has got the relief which as such the
borrower failed to get from the DRT. On the aforesaid grounds the
impugned judgment and order passed by the High Court is unsustainable.
        8.3 Even otherwise it is very debatable whether Section 13(8) of       B
the SARFAESI Act shall be applicable in favour of a person who is only
an agreement to sale holder or Section 13(8) of the SARFAESI Act
shall be applicable only in case of the borrower who is ready and willing
to pay the entire debt. In the present case the borrower failed to get any
relief from the DRT. The borrower did not apply and/or invoke Section
13(8) and did not agree to clear the entire dues. Therefore, also the High     C
Court has materially erred in allowing the writ petition.
       8.4 Even otherwise it is required to be noted that as such what
exact relief is granted by the High Court is not clear. The High Court
has simply stated that the writ petition is allowed. However, it is required
to be noted that what was challenged before the High Court was the e-          D
auction noticedated 28.07.2016 which was already conducted on
31.08.2016. Therefore, the writ petition was filed much after conducting
the e-auction on 31.08.2016. No consequential relief has been granted
by the High Court. Therefore, also the impugned judgment and order
passed by the High Court is unsustainable.                                     E
       8.5 Now so far as the submission on behalf of the respondent
no.1 that the respondent no.1 has paid/deposited the amount of sale
consideration and now the respondent no.1 has died his heirs will have
to vacate the flat in question and on the other hand the appellant shall be
entitled to return the amount of Rs.6,45,250/- deposited at the relevant       F
time being 25% of the auction sale consideration with interest is
concerned, at the outset it is required to be noted that as such the
transaction between the respondent no.1 and the borrower pursuant to
the agreement to sale dated 16.06.2016 was absolutely illegal and behind
the back of the Tribunal as well as the Bank and during the pendency of
the proceedings before the Tribunal. In order dated 24.08.2016 the             G
Tribunal had in fact already held the sale transaction as void. As observed
hereinabove even at the time when the respondent no.1 entered into the
agreement to sale/MoU he was aware about the proceedings pending
before the DRT which is apparent from Clause 4 of the MoU referred
to hereinabove. Therefore, respondent no.1 and/or his heirs cannot be          H
638             SUPREME COURT REPORTS                          [2023] 5 S.C.R.


A     permitted to get the benefit of his own wrong and cannot be permitted to
      get the benefit of a void transaction.
             9. In view of the above and for the reasons stated above, the
      impugned judgment and order passed by the High Court is hereby
      quashed and set aside. It is directed that on the full payment of the
B     auction sale consideration by the appellant (after deducting the 25% of
      the amount already deposited earlier) with 9% interest from the date of
      auction till the actual amount is paid, to be paid within a period of four
      weeks from today, the sale certificate be issued in favour of the appellant
      with respect to Flat No.6401. Whatever the amount is already deposited
      by the respondent no.1/his heirs shall be returned to the respondent no.1
C     (now his heirs) with the interest at 9% from the date of such deposit till
      the actual date of return which shall be returned within a period of four
      weeks from today. The heirs of original respondent no.1 are granted
      three months’ time to vacate the flat in question and are directed to hand
      over the peaceful and vacant possession of the Flat No.6401 to the
D     appellant within a period of three months from today as ordered above.
            Present appeals are allowed. However, in the facts and
      circumstances of the case there shall be no order as to costs.

      Nidhi Jain                                                  Appeals allowed.
E     (Assisted by : Tamana, LCRA)




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