RAM KISHUN AND ORS.versusSTATE OF U.P. AND ORS.

                      [2012] 6 S.C.R. 105


                   RAM KISHUN AND ORS.                                A
                              v.
                 STATE OF U.P. AND ORS.
               (Civil Appeal No. 6204 of 2009)
                         MAY 24, 2012
                                                                      B
      [DR. B.S. CHAUHAN AND DIPAK MISRA, JJ.]

     Contract Act, 1872 - s. 128 - Guarantor - Liability of - Held:
Liability of the guarantor/surety is co-extensive with that of the
debtor - The surety has no right to restrain execution of the         C
decree against him until the creditor has exhausted his
remedy against the principal debtor.

    Contract Act, 1872 - s. 146 - Co-surety - Liability of - Held:
Co-sureties are liable to contribute equally - In case there are      D
more than one surety/guarantor, they have to share the liability
equally unless the agreement of contract provides otherwise.

     Financial institutions - Recovery of loans - Held:
Financial institutions cannot be permitted to behave like
property dealers and further to dispose of the secured assets         E
in any unreasonable or arbitrary manner in flagrant violation
of statutory provisions - A person cannot be deprived of his
property except in accordance with the provisions of statute.

     Public auction - Auction sale for recovery of loans -            F
Valuation and reserve price - Duty to sell only such property
or portion thereof as necessary - Held: Valuation is a question
of fact and valuation of the property is required to be
determined fairly and reasonably - There must be an
applicatiOn of mind by the authority concerned while                  G
approving/accepting the report of the approved valuer and
fixing the reserve price, as failure to do so may cause
substantial injury to the borrower/guarantor and that would
amount to material irregularity and ultimately vitiate the
                               105                                    H
    106      SUPREME COURT REPORTS              [2012] 6 S.C.R.


A subsequent proceedings - Law requires a proper valuation
  report, its acceptance by the authority concerned by
  application of mind and then fixing the reserve price
  accordingly and acceptance of the auction bid taking into
  consideration that there was no possibility of collusion of the
B bidders - The authority is duty bound to decide as to whether
  sale of part of the property would meet the outstanding
  demand.

         Public auction - Auction sale - Setting aside of, after
    confirmation - Held: Once the sale has been confirmed it
c   cannot be set aside unless a fundamental procedural error
    has occurred or sale certificate had been obtained by mis-
    representation or fraud.

        Public auction - Auction sale for recovery of loans -
0 Appellants' land sold for three times the amount which was
  to be recovered - Held: In the facts and circumstances of this
  case, instead of putting the whole land, the sale of 113rd of
  this land could have served the purpose - Therefore, there
  had been material irregularity in putting the entire property to
E auction - Since the auctioning authority had received
  Rs. 25, 0001- as sale consideration, after adjusting the
  outstanding dues of Rs. 8, 5001-, the balance amount of
  Rs. 16, 5001- ought to have been paid to the appellants -
  Nothing on record to show that authorities had ever adopted
F such a course - In view of the above, the auction sale stood
  vitiated and all the. consequential proceedings liable to be
  quashed - However, the buyer(respondent no.4) had been put
  in possession of the land more than two decades ago and he
  had made improvements - Such a possession should not be
G disturbed at this belated stage - Nevertheless, the appellants
  permitted to move application before the Collectorlconcemed
  authority for recovery of the excess amount that had not been
  paid to them.

        One 'G' had taken bank loan for which the
H appellants' father had stood as the guarantor. Since the
   RAM KISHUN AND ORS. v. STATE OF U.P. AND               107
                   ORS.
loan amount was not cleared during the lifetime of 'G' and       A
the appellants, the bank initiated recovery proceedings
and sent the matter to the District Collector who in turn
issued a citation/recovery certificate. In order to make the
recovery, land belonging to 'G' was put to auction which
fetched certain sum. For recovery of the balance loan            8
amount, proceedings were initiated against the
appellants. Their land was put to auction. Respondent
No. 4 purchased the land. The sale was confirmed and
sale certificate was issue.d by the Collector in favour of
respondent No.4 and he was put in possession.                    C
Appellants raised various objections thereagainst before
the Commissioner, but their objections were rejected on
the ground of inordinate delay. The order was upheld by
the Board of Revenue as also by the High Court.

     In appeal to this Court, the appellants contended that      D
no recovery could have been made from them as 'G' had
left huge movable/ immovable properties and other
livestocks which could satisfy the demand of the bank
loan; that more so, there were two guarantors and father
of the appellants was not the only guarantor and thus,           E
the entire liability of the remaining unpaid amount could
not have been fastened upon them; that the properties
of the appellants were worth rupees two lakhs which
were sold in auction at a throw-away price of Rs.25,000/
-, that too, without following the procedure prescribed by       F
law; and that for recovery of the balance amount of loan,
putting only a part of the property to auction would have
been enough.

    Dismissing the appeal, the Court
                                                                 G
     HELD:1.1. In view of the provisions of Section 128 of
the Indian Contract Act, 1872, the liability of the guarantor/
surety is co-extensive with that of the debtor. Therefore,
the creditor has a right to obtain a decree against the
surety and the principal debtor. The surety has no right         H
      108     SUPREME COURT REPORTS            [2012] 6 S.C.R.


  A to restrain execution of the decree against him until the
    creditor has exhausted his remedy against the principal
    debtor for the reason that it is the business of the surety/
    guarantor to see whether the principal debtor has paid
    or not. The surety does not have a right to dictate terms
  8 to the creditor as how he should make the recovery and
    pursue his remedies against the principal debtor at his
    instance. [Para 5] [119-B-D]

         The Bank of Bihar Ltd. v. Dr. Damodar Prasad & Anr. AIR
    1969 SC 297: 1969 SCR 620; Maharashtra State Electricity
  C Board, Bombay v. The Official Liquidator, High Court,
    Ernakulam & Anr. AIR 1982 SC 1497: 1983 (1) SCR 561;
    Union Bank of India v. Manku Narayana, AIR 1987 SC 1078:
    1987 (2) SCC 335 and State Bank of India v. Messrs.·
    lndexport Registered & Ors. AIR 1992 SC 1740: 1992 (2)
  D SCR 1031; State Bank of India v. Mis. Saksaria Sugar Mills
    Ltd. & Ors. AIR 1986 SC 868: 1986 (1) SCR 290; Industrial
    Investment Bank of India Ltd. v. Biswasnath Jhunjhunwala
    (2009) 9 sec 478: 2009 (13) SCR 391 and United Bank of
    India v. Satyawati Tandon & Ors. AIR 2010 SC 3413: 2010
  E (9) SCR 1 - relied on.

        1.2. Section 146 of the Contract Act provides that co-
    sureties are liable to contribute equally. Thus, in case
    there is more than one surety/guarantor, they have to
  F share the liability equally unless the agreement of
    contract provides otherwise. [Para 7] [119-G-H]

      RECOVERY OF PUBLIC DUES:

         1.3. Public money should be recovered and recovery
  G should be made expeditiously. But it does not mean that
    the financial institutions which are concerned only with
    the recovery of their loans, can be permitted to behave
    like property dealers and be permitted further to dispose
    of the secured assets in any unreasonable or arbitrary
  H manner in flagrant violation of statutory provisions. The




' '                                                     '
      RAM KISHUN AND ORS. v. STATE OF U.P. AND            109
                      ORS.
right to hold property is a constitutional right as well as      A
a human right. A person cannot be deprived of his
property except in accordance with the provisions of a
statute. Thus, the condition precedent for taking away
someone's property or disposing of the secured assets,
is that the authority must ensure compliance with the            B
statutory provisions. In case the property is disposed of
by way of private treaty without adopting any other mode
provided under the statutory rules etc., there may be a
possibility of collusion/fraud and even when public
auction is held, the possibility of collusion among the          c
bidders cannot be ruled out. It becomes a legal obligation
on the part of the authority that property be sold in such
a manner that it may fetch the best price. Thus essential
ingredients of such sale remain a correct valuation report
and fixing the reserve price. In case proper valuation has       D
not been made and the reserve price is fixed taking into
consideration the inaccurate valuation report, the
intending buyers may not come forward treating the
property as not worth purchase by them, as a moneyed
person or a big businessman may not like to involve
himself in small sales/deals. [Paras 8, 9, 10 and 12) [120-      E
A-F; 121-8-D]

    Lachhman Dass v. Jagat Ram & Ors. (2007) 10 SCC
448: 2007 (2) SCR 980; Narmada Bachao Ando/an v. State
of Madhya Pradesh & Anr. AIR 2011 SC 1589 and Haryana            F
Financial Corporation & Anr. v. Jagdamba Oil Mills & Anr. AIR
2002 SC 834: 2002 (1) SCR 621 - relied on.

      The State of Orissa & Ors. v. Harinarayan Jaiswa/ & Ors.
AIR 1972 SC 1816: 1972 (3) SCR 784; Chairman                     G
andManaging Director, s·tPCOT Madras & Ors. v. Contromix
Pvt. Ltd. by its Director (Finance) Seeetharaman, Madras &
Anr., AIR 1995 SC 1632: 1995 (1) Suppl. SCR 415 - referred
to.
                                                                 H
    110      SUPREME COURT REPORTS             [2012] 6 S.C.R.


A VALUATION & RESERVE PRICE :

         1.4. The word 'value' means intrinsic worth or cost
    or price for sale of a thing/property. The concept of the
    reserve price is not synonymous with valuation of the
    property. These two terms operate in different spheres.
8
    An invitation to tender is not an offer. It is an attempt to
    ascertain whether an offer can be obtained with a margin.
    The valuation is a question of fact, it should be fixed on
    relevant material. The difference between the 'valuation'
C   and 'reserve price' is that, fixation of an upset price may
    be an indication of the probable price which the property
    may fetch from the point of view of intending bidders.
    Fixation of the reserve price does not preclude the
    claimant from adducing proof that the land had been sold
    for a low price. There must be an application of mind by
D   the authority concerned while approving/accepting the
    report of the approved valuer and fixing the reserve price,
    as failure to do so may cause substantial injury to the
    borrower/ guarantor and that would amount to material
    irregularity and ultimately vitiate the subsequent
E   proceedings. [Paras 13, 15, 17] [121-E, H; 122-A-B, F]

       Union of India & Ors. v. Bombay Tyre International Ltd.&
  Ors. (1984) 1 SCC 467: 1984 (1) SCR 347; Gurbachan Singh
  & Anr. v. Shivalak Rubber Industries & Ors. AIR 1996 SC
F 3057: 1996 (2) SCR 997; Desh Bandhu Gupta v. N. L. Anand
  & Rajinder Singh (1994) 1 SCC 131: 1993 (2) Suppl. SCR
  346; Gajadhar Prasad & Ors. v. Babu Bhakta Ratan & Ors.
  AIR 1973 SC 2593: 1974 (1) SCR 372; S.S. Dayananda v.
  K.S. Nagesh Rao & Ors. (1997) 4 SCC 451: 1997 (2) SCR
G 208; D.S. Chohan & Anr. v. State Bank of Patiala (1997) 10
  SCC 65 and Gajraj Jain v. State of Bihar & Ors. (2004) 7 SCC
  151: 2004 (2) Suppl. SCR 677 - relied on.

       State of U.P. v. Shiv Charan Sharma & Ors. AIR 1981
    SC 1722: 1981 Suppl. SCC 85; Anil Kumar Srivastava v.
H
  RAM KISHUN AND ORS. v. STATE OF U.P. AND            111
                  ORS.
State of UP. & Anr. AIR 2004 SC 4299: 2004 (3) Suppl. SCR    A
675 and Duncans Industries Ltd. v. State of UP. & Ors. AIR
2000 SC 355: 2000 (1) SCC 633 - referred to.

DECISION TO SELL WHOLE OR PART OF THE
SECURED ASSETS:
                                                             B
     1.5. The law requires a proper valuation report, its
acceptance by the authority concerned by application of
mind and then fixing the reserve price accordingly and
acceptance of the auction bid taking into consideration
that there was no possibility of collusion of the bidders. C
The authority is duty bound to decide as to whether sale
of part of the property would meet the outstanding
demand. Valuation is a question of fact and valuation of
the property is required to be determined fairly and
reasonably. [Para 19] [123-B-D]                            D
    Ambati Narasayya v. M. Subba Rao & Anr. AIR 1990
SC 119: 1989 (1) Suppl. SCR 451; Takkaseela Pedda
Subba Reddi v. Pujari Padmavathamma & Ors. AIR f977
SC 1789: 1977 (3) SCR 692 and S. Mariyappa (Dead) By
LRs. & Ors. v. Siddappa & Anr. (2005) 10 SCC 235 - relied    E
on.

SETTING  ASIDE         AUCTION       SALE         AFTER
CONFIRMATION:
                                                             F
    1.6. Once the sale has been confirmed it cannot be
set aside unless a fundamental procedural error has
occurred or sale certificate was obtained by mis-
representation or fraud. [Para 23] [124-G]

     Navalkha and Sons v. Sri Ramanya Das and Ors. AIR G
1970 SC 2037: 1970 (3) SCR 1; Mis. Kayjay Industries (P)
Ltd. v. Mis. Asnew Drums (P) Ltd. & Ors. AIR 1974 SC 1331:
1974 (3) SCR 678; Union Bank of India v. Official Liquidator
High Court of Calcutta & Ors. AIR 2000 SC 3642: 2000 (3)
                                                             H
    112     SUPREME COURT REPORTS            [2012] 6 S.C.R. '


A   SCR 691; B. Arvind Kumar v. Govt. of India & Ors. (2007) 5
    SCC 745; Mis. Transcore v. Union of India & Anr. AIR 2007
    SC 712: 2006(9) Suppl. SCR 785; Divya Manufacturing Co.
    (P) Ltd. & Anr. v. Union Bank of India & Ors. AIR 2000 SC
    2346: 2000 (1) Suppl. SCR 474 and Valji Khimji and
B   Company v. Official Liquidator of Hindustan Nitro Product
    (Gujarat) Ltd. and Ors. (2008) 9 SCC 299: 2008 (12) SCR 1
    - relied on.

        FCS Software Solutions Ltd. v. La Medical Devices Ltd.
C   & Ors. (2008) 10 SCC 440: 2008 (10) SCR 479 - referred
    to.

       2.1. In the instant case, the father of the appellants
  stood guarantor when 'G' took loan from the bank.
  Though there are some documents to show that there
D were two guarantors, who the other guarantor was, is not
  evident from the record, nor was such a plea had ever
  been taken by the appellants before the courts below. As
  the appellants had inherited the estate of the guarantor,
  they are liable to meet the liability of the unpaid amount.
E The appellants' land admeasuring 1 bigha and 10 biswas
  was sold for Rs.25,000/-. It cannot be held, even by any ·
  stretch of imagination, that the land was sold at a cheaper
  rate, for the reasons, that the land belonging to 'G'
  (principal debtor) measuring 3 bighas and 2 biswas in the
F same village in a close proximity of time had been sold
  for a sum of Rs.6,000/- only. More so, the elder brother
  of appellant no.1 had participated in the auction and put
  up a bid of Rs.20,000/- for the land in dispute. In view of
  the above, it cannot be said that property worth
G Rs.2,00,000/- had been sold at a throw away price of
  Rs.25,000/-. Also, no fundamental procedural error has
  been pointed out which would vitiate the order of
  confirmation of sale and issuance of sale certificate.
  [Paras 24, 25] [125-B-F]
H
   RAM KISHUN AND ORS. v. STATE OF U.P. AND              113
                   ORS.

     2.2. The total amount of loan sanctioned in favour of      A
'G' was Rs.8,425/-. The Collector issued citation for
recovery of Rs.10,57 4/- on 13.1.1986 and the total amount
to be recovered including principal amount, interest,
collection charges etc. came to Rs.14,483.15P. The
property of 'G' had been sold for a sum of Rs.6,000/-. So,      B
the total amount to be recovered remained about
Rs.8,500/-. The appellants' land had been sold for
Rs.25,000/- i.e., three times the amount which was to be
recovered. In the facts and' circumstances of this case,
instead of putting this whole land admeasuring 1 bigha          c
and 10 biswas, the sale of 1/3rd of this land could have
served the purpose. Therefore, there has been material
irregularity in putting the entire property to auction. [Para
26] [125-G-H; 126-A-B]

    2.3. In case, the auctioning authority had received         D
Rs.25,000/- from the respondent no.4 as a sale
consideration after adjusting the outstanding dues of
Rs.8,500/-, the balance amount of Rs.16,500/- ought to
have been paid to the appellants. There is nothing on
record to show that authorities had ever adopted such           E
a course. [Para 27] [126-C]

     2.4. In view of the above, the auction sale stands
vitiated and all the consequential proceedings are liable
to be quashed. However, for the reasons best known to           F
the appellants, they have neither impleaded the Bank
(creditor) nor any of the legal heirs of 'G' (principal
debtor). In such a fact-situation, it becomes difficult to
proceed with the case any further. [Para 28] [126-D-E]

     2.5. Respondent No.4 had been put in possession            G
of the land more than two decades ago and he had made
improvements. Such - possession should not be
disturbed at a belated stage for the reason that such a
person would have spent his whole life savings in
improving the land and making developments thereon              H
    114     SUPREME COURT REPORTS               (2012] 6 S.C.R.


A   which may include the construction of residences etc.
    [Para 29] [126-F-G]

        State of Gujarat v. Patel Raghav Natha & Ors. AIR 1969
    SC 1297: 1970 (1) SCR 335 and Brij Lal v. Board of
    Revenue & Ors. AIR 1994 SC 1128 - relied on.
8
        3. The courts below rejected the case of the
    appellants only on the ground of delay. Nothing has been
    pointed out before this Court as to on what basis the
    aforesaid judgment warranf any interference. However,
c   the appellants may move an application before the
    Collector/concerned authority, in case the excess amount
    has not been paid to them, for recovery of the same. If
    such an application is filed and the authority comes to
    the conclusion that excess amount has not been paid to
D   them, it shall be refunded within a period of 3 months
    from the date of making the application with 9% interest.
    [Para 30] [126-H; 127-A-C]
                       Case Law Reference:
E     1969 SCR 620                relied on           Para 5
      1983 (1) SCR 561            relied on           Para 5
      1sa1 (2) sec 335            relied on           Para 5
      1992 (2) SCR 1031           relied on           Para 5
F
      1986 (1) SCR 290            relied on           Para 6
      2009 (13) SCR 391           relied on           Para 6
      2010 (9) SCR 1              relied on           Para 6
G
      2007 (2) SCR 980            relied on           Para 9
      AIR 2011 SC 1589            relied on           Para 9
      1972 (3) SCR 784            referred to         Para 10
H
RAM KISHUN AND ORS. v. STATE OF U.P. AND      115
                ORS.
2002 (1) SCR 621           relied on     Para 11    A
1995 (1) Suppl. SCR 415    referred to   Para 11
1984 (1) SCR 347           relied on     Para 13
1996 (2) SCR 997           relied on     Para 13
                                                    B
1981 suppl. sec 85         referred to   Para 14
2004 (3) Suppl. SCR 675    referred to   Para 15
2000 (1 > sec 633          referred to   Para 15
                                                    c
1993 (2) Suppl. SCR 346    relied on     Para 16
1974 (1) SCR 372           relied on     Para 16
1997 (2) SCR 208           relied on     Para 16
(1997) 10 sec 65           relied on     Para 16    D

2004 (2) Suppl. SCR 677    relied on     Para 16
1989 (1) Suppl. SCR 451    relied on     Para 18
1977 (3) SCR 692           relied on     Para 18    E
(2005) 1o sec 235         · relied on    Para 18
1970 (3) SCR 1             relied on     Para 20
1974 (3) SCR 678           relied on     Para 20
                                                    F
2000 (3) SCR 691           relied on     Para 20
2008 (12) SCR 1            relied on     Para 20
(2007) 5 sec 145           relied on     Para 20
                                                    G
2006 (9) Suppl. SCR 785    relied on     Para 20
2000 (1) Suppl. SCR 474    relied on     Para 21
2008 (12) SCR 1            relied on     Para 21
2008 (10) SCR 479          referred to   Para 22    H
    116         SUPREME COURT REPORTS               [2012] 6 S.C.R.


A      1970 (1) SCR 335                 relied on         Para 29
       AIR 1994 SC 1128                 relied on         Para 29

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    6204 of 2009.
B
        From the Judgment & Order dated 20.1.2004 of the High
    Court of Judicature at Allahabad in Civil Misc. Writ Petition No.
    22420 of 2001.

      Dinesh Kumar Garg, B.S. Billowria, Dhanjay Garg for the
C Appellants.

         T.N. Singh, V.K. Singh, Umang Tripathi, Janendra Lal &
    Co., Vikrant Yadav, Vinay Garg for the Respondents.

            The Judgment of the Court was delivered by
D
       DR. B.S. CHAUHAN, J. 1. This appeal has been
  preferred against thejudgment and order dated 20.1.2004 in
  C.M.W.P. No. 22420 of 2001 passed by the High Court of
  Judicature at Allahabad, by which it has affirmed the judgment
E and orders passed by the Board of Revenue and other revenue
  officials in respect of the recovery of bank dues from the
  appellants as their predecessor-in- interest was the guarantor
  of bank loan.

F           2. Facts and circumstances giving rise to this case are
    that:

            A. One Ganga Prasad had taken an agricultural loan to the
  tune of Rs.8,425/- from the Union Bank of India (Banda Branch)
  on 20.3.1982 and Chuni Lal, father of the appellants stood
G guarantor. Ganga Prasad, debtor died in 1985 and Chuni Lal
  died in 1986. Chuni Lal could not pay the loan during his life
  time. Therefore, the bank initiated the proceedings for recovery
  and ultimately sent the matter to the District Collector, Banda
  for realisation of the loan amount as an arrear of land revenue.
H
  RAM KISHUN AND ORS. v. STATE OF U.P. AND                    117
         ORS. [DR. B.S. CHAUHAN, J.]
    B. The Collector issued citation/recovery certificate on         A
13.1.1986 for an amount of Rs.10,574.45 plus 10% collection
charges against Ganga Prasad.

     C. In order to make the recovery, land measuring 3 bigha
2 biswas belonging to said Ganga Prasad was put to auction           8
and it could fetch only a sum of Rs.6,000/-. In order to recover
the balance amount the proceedings were initiated against the
appellants as their father stood guarantor. It is evident from the
record that the appellants raised objections that instead of
putting their property to auction, the loan amount be recovered      C
from legal heirs of Ganga Prasad as he had left movable/
immovable properties and livestocks and other assets to meet
the recovery of the bank loan. Their objections were not
accepted and the land of the appellants measuring 1 bigha and
10 biswas was put to auction on 15.3.1993. Respondent No.
4 purchased the said land for Rs.25,000/-. In respect of the         D
same, sale was confirmed and sale certificate was issued by
the Collector in favour of respondent No.4 and he was put in
possession.

     D. Appellants raised various objections under the               E
provisions of U.P. Zamindari Abolition and Land Reforms Act,
1952 before the Commissioner, Jhansi, but their objections
stood rejected vide order dated 27.7.1992 only on the ground
of delay as the objections were not filed within limitation and
no sufficient cause could be shown for inordinate delay.             F

    E. Aggrieved, the appellants approached the Board of
Revenue, U.P. by filing Revision No. 2 Cell/92-93. However, the
same was dismissed vide order dated 20.3.2001 as the
Revisional Authority did not accept the explanation for
condonation of delay.                                                G

       F. Aggrieved, the appellants approached the High Court
challenging the said revisional order of the Commissioner by
filing Writ Petition No. 22420 of 2001 which has been dismissed
vide impugned judgment dated 20.1.2004.                              H
    118       SUPREME COURT REPORTS                 [2012] 6 S.C.R.


A         Hence, this appeal.

        3. Shri D.K. Garg, learned counsel appearing for the
  appellants has submitted that no recovery could have been
  made from the appellants as Ganga Prasad debtor had left
  huge movable/immovable properties and other livestocks which
8
  could satisfy the demand of the bank loan. More so, there were
  two guarantors and father of the appellants was not the only
  guarantor. Thus, the entire liability of the remaining unpaid
  amount could not have been fastened upon them. The
  properties of the appellants were worth rupees two lakhs which
C had been sold in auction at a throw-away price of Rs.25,000/-
  only, that too, without following procedure prescribed by law.
  For recovery of the balance amount of loan, only a part of the
  suit land could be sold. The objections filed by the appellants
  had been rejected by all the authorities/courts below on the
D ground of delay without considering the same on merit. Hence,
  the said orders are liable to be set aside and appeal deserves
  to be allowed.

          4. Per contra, Mr. T.N. Singh, learned counsel appearing
E   for respondent No.4 has submitted that the grievance of the
    appellants that they could not be fastened with the total liability
    of unpaid loan amount had not been raised before the courts
    below. The liability of the guarantor is co-extensive with that of
    debtor. The auction sale has been confirmed and sale
F   certificate has been issued in favour of respondent No.4. He
    had been put in possession more than two decades ago and
    since then he has made a lot of developments and improved
    the land. The auction was held fairly and the property had
    fetched a fair price. Real brother of the appellant No.1 himself
G   had participated in the auction and given the bid for Rs.20,000/
    -, though respondent No.4 had purchased it for Rs.25,000/-.
    Thus, it is not permissible that the appellants should canvass
    that the auction has not been conducted fairly or appellants had
    not been given chance to bring the best buyer or a part of the
    property could be sold to meet the demand. The appeal lacks
H   merit and is liable to be dismissed.
   RAM KISHUN AND ORS. v. STATE OF U.P. AND                   119
          ORS. [DR. B.S. CHAUHAN, J.]
     5. We have considered the rival submissions made by             A
learned counsel for the parties and perused the record.

      There can be no dispute to the settled legal proposition
of law that in view of the provisions of Section 128 of the Indian
Contract Act, 1872 (hereinafter called the 'Contract Act'), the 8
liability of the guarantor/surety is co-extensive with that of the
debtor. Therefore, the creditor has a right to obtain a decree
against the surety and the principal debtor. The surety has no
right to restrain execution of the decree against him until the
creditor has exhausted his remedy against the principal debtor C
for the reason that it is the business of the surety/guarantor to
see whether the principal debtor has paid or not. The surety
does not have a right to dictate terms to the creditor as how
he should make the recovery and pursue his remedies against
the principal debtor at his instance. (Vide: The Bank of Bihar
Ltd. v. Dr. Damodar Prasad & Anr., Al R 1969 SC 297; D
Maharashtra State Electricity Board, Bombay v. The Official
Liquidator, High Court, Ernakulam & Anr., AIR 1982 SC 1497;
Union Bank of India v. Manku Narayana, AIR 1987 SC 1078;
and State Bank of India v. Messrs. lndexport Registered &
Ors., AIR 1992 SC 1740).                                           E

     6. In State Bank of India v. Mis. Saksaria Sugar Mills Ltd.
& Ors., AIR 1986 SC 868, this Court while considering the
provisions of Section 128 of the Contract Act held that liability
9f a surety is immediate and is not deferred until the creditor      F
exhausts his remedies against the principal debtor. (See also:
Industrial Investment Bank of India Ltd. v. Biswasnath
Jhunjhunwala, (2009) 9 SCC 478; and United Bank of India
v. Satyawati Tandon & Ors., AIR 2010 SC 3413).

     7. Section 146 of the Contract Act provides that co-            G
sureties are liable to contribute equally. Thus, in case there are
more  than one surety/guarantor, they have to share the liability
equally unless the agreement of contract provides otherwise.

                                                                     H
    120      SUPREME COURT REPORTS                 [2012) 6 S.C.R.


A   RECOVERY OF PUBLIC DUES:

          8. Undoubtedly, public money should be recovered and
    recovery should be made expeditiously. But it does not mean
    that the financial institutions which are concerned only with the
    recovery of their loans, may be permitted to behave like
8
    property dealers and be permitted further to dispose of the
    secured assets in any unreasonable or arbitrary manner in
    flagrant violation of statutory provisions.

       9. A right to hold property is a constitutional right as well
C as a human right. A person cannot be deprived of his property
  except in accordance with the provisions of statute. (Vide:
  Lachhman Dass v. Jagat Ram & Ors., (2007) 10 SCC 448;
  and Narmada Bachao Ando/an v. State of Madhya Pradesh
  & Anr., AIR 2011 SC 1589).
D
        Thus, the condition precedent for taking away someone's
    property or disposing of the secured assets, is that the authority
    must ensure compliance of the statutory provisions.

       10. In case the property is disposed of by private treaty
E without adopting any other mode provided under the statutory
  rules etc., there may be a possibility of collusion/fraud and even
  when public auction is held, the possibility of collusion among
  the bidders cannot be ruled out. In The State of Orissa & Ors.
  v. Harinarayan Jaiswal & Ors., AIR 1972 SC 1816, this Court
F held that a highest bidder in public auction cannot have a right
  to get the property or any privilege, unless the authority confirms
  the auction sale, being fully satisfied that the property has
  fetched the appropriate price and there has been no collusion
  between the bidders.
G
       11. In Haryana Financial Corporation & Anr. v. Jagdamba
  Oil Mills & Anr., AIR 2002 SC 834, this Court considered this
  aspect and while placing reliance upon its earlier judgment in
  Chairman and Managing Director, SfPCOT Madras & Ors. v.
H Contromix Pvt. Ltd. by its Director (Finance) Seeetharaman.
   RAM KISHUN AND ORS. v. STATE OF U.P. AND                  121
          ORS. [DR. B.S. CHAUHAN, J.]
Madras & Anr., AIR 1995 SC 1632 held that in the matter of          A
sale of public property., the dominant consideration is to secure
the best price for the property to be sold. This can be achieved
only when there is maximum public participation in the process
of sale and everybody has an opportunity of making an offer.
                                                                    B
     12. Therefore, it becomes a legal obligation on the part of
the authority that property be sold in such a manner that it may
fetch the best price. Thus essential ingredients of such sale
remain a correct valuation report and fixing the reserve price.
In case proper valuation has not been made and the reserve
price is fixed taking into consideration the inaccurate valuation   C
report, the intending buyers may not come forward treating the
property as not worth purchase by them, as a moneyed person
or a big businessman may not like to involve himself in small
sales/deals.
                                                                    D
VALUATION & RESERVE PRICE:

     13. The word 'value' means intrinsic worth or cost or price
for sale of a thing/property. (Vide: Union of India & Ors., v.
Bombay Tyre International Ltd. & Ors., (1984) 1 SCC 467; and        E
Gurbachan Singh & Anr. v. Shivalak Rubber Industries &
Ors., AIR 1996 SC 3057).

     14. In State of UP. v. Shiv Charan Sharma & Ors., AIR
1981 SC 1722, this Court explained the meaning of "reserve
price" explaining that the price with which the public auction      F
starts and the auction bidders are not permitted to give bids
below the said price, i.e. the minimum bid at auction.

     15. In Anil Kumar Srivastava v. State of UP. & Anr., AIR
2004 SC 4299, this Court considered the scope of fixing the         G
reserve price and placing reliance on its earlier judgment in
Duncans Industries Ltd. v. State of UP. & Ors., AIR 2000 SC
355, explained that reserve price limits the authority of the
auctioneer. The concept of the reserve price is not synonymous
with valuation of the property. These two terms operate in
                                                                    H
    122       SUPREME COURT REPORTS                 [2012) 6 S.C.R.


A different spheres. An invitation to tender is not an offer. It is an
  attempt to ascertain whether an offer can be obtained with a
  margin. The valuation is a question of fact, it should be fixed
  on relevant material. The difference between the 'valuation' and
  'reserve price' is that, fixation of an upset price may be an
B indication of the probable price which the property may fetch
  from the point of view of intending bidders. Fixation of the
  reserve price does not preclude the claimant from adducing
  proof that the land had been sold for a low price.

       16. In Desh Bandhu Gupta v. N. L. Anand & Rajinder
C Singh, (1994) 1 SCC 131, this Court held that in an auction
  sale and in execution of the Civil Court's decree, the Court has
  to apply its mind to the need for furnishing the relevant material
  particulars in the sale proclamation and the records must
  indicate that there has been application of mind and principle
D of natural justice had been complied with. (See also: Gajadhar
  Prasad & Ors. v. Babu Bhakta Ratan & Ors., AIR 1973 SC
  2593; S.S. Dayananda v. K.S. Nagesh Rao & Ors., (1997) 4
  SCC 451 ; D.S. Ch oh an & Anr. v. State Bank of Patiala, ( 1997)
  10 SCC 65; and Gajraj Jain v. State of Bihar & Ors., (2004) 7
E sec 151).

       17. In view of the above, it is evident that there must be
  an application of mind by the authority concerned while
  approving/accepting the report of the approved valuer and fixing
F the reserve price, as the failure to do so may cause substantial
  injury to the borrower/guarantor and that would amount to
  material irregularity and ultimately vitiate the subsequent
  proceedings.

  DECISION TO SELL WHOLE OR PART OF THE
G SECURED ASSETS:
     · 18. In Ambati Narasayya v. M. Subba Rao & Anr., AIR
  1990 SC 119, this Court dealt with ·a case where in execution
  of a money decree for Rs.2,400/- the land was sold for Rs.
H 17,000/-. The Court set aside the sale observing that there is
    RAM KISHUN AND ORS. v. STATE OF U.P. AND                  123
           ORS. [DR. B.S. CHAUHAN, J.]
 a duty cast upon the Court to sell only such property or a portion   A
 thereof as necessary to satisfy the decree. (See also:
 Takkaseela Pedda Subba Reddi v. Pujari Padmavathamma
 & Ors., AIR 1977 SC 1789 ; and S. Mariyappa (Dead) By LRs.
 & Ors. v. Siddappa & Anr., (2005) 10 SCC 235).
                                                                      B
      19. Thus, in view of the above, it is evident that law
 requires a proper valuation report, its acceptance by the
 authority concerned by application of mind and then fixing the
 reserve price accordingly and acceptance of the auction bid
 taking into consideration that there was no possibility of           C
 collusion of the bidders. The authority is duty bound to decide
 as to whether sale of part of the property would meet the
 outstanding demand. Valuation is a question of fact and
 valuation of the property is required to be determined fairly and
 reasonably.
                                                                      D
 SETTING ASIDE AUCTION SALE - AFTER
 CONFIRMATION:

        20. In Navalkha & Sons v. Sri Ramanya Das & Ors., AIR
  1970 SC 2037, this Court while dealing with the confirmation
                                                                     E
  of sale by Court, held that there must be a proper valuation
  report, which should be communicated to the judgment debtor
  and he should file his own valuation report and the sale should
· be conducted in accordance with law. After confirmation of
  sale, there should be issuance of sale certificate. Court cannot
  interfere unless it is found that some materialirregularity in the
                                                                     F
  conduct of sale has been committed. The Court further held that
  it should not be a forced sale. A valuer's report should be as
  good as the actual offer and the variation should be within limit.
  Such estimate should be done carefully. The Court further held
  that unless the Court is satisfied about the adequacy of the price G
  the act of confirmation of the sale would not be a proper
  exercise 9fjudicial discretion. (See also: Mis. Kayjay Industries
  (P) Ltd. v. Mis. Asnew Drums (P) Ltd. & Ors., AIR 1974 SC
  1331; Union Bank of India v. Official Liquidator High Court of
                                                                      H
    124       SUPREME COURT REPORTS                 [2012] 6 S.C.R.


A   Calcutta & Ors., AIR 2000 SC 3642; 8. Arvind Kumar v. Govt.
    of India & Ors., (2007) 5 SCC 745; and Mis. Transcore v.
    Union of India & Anr., AIR 2007 SC 712).

         21. In Divya Manufacturing Co. (P) Ltd. & Anr. v. Union
    Bank of India & Ors., AIR 2000 SC 2346, this Court held that
8
    a confirmed sale can be set aside on the ground of material
    irregularity or fraud. The court does not become functus officio
    after the sale is confirmed. In Va/ji Khimji and Company v.
    Official Liquidator of Hindustan Nitro Product (Gujarat) Ltd. &
C   Ors., (2008) 9 SCC 299, the Court held that auction sale should
    be set aside only if there is a fundamental error in the
    procedure of auction e.g. not giving wide publication or on
    evidence that property could have fetched more value or there
    is somebody to offer substantially increased amount and not
    only a little over the auction price. Involvement of any kind of
D   fraud would vitiate the auction sale.

         22. In FCS Software Solutions Ltd. v. La Medical Devices
    Ltd. & Ors., (2008) 1O sec 440, this Court considered a case
    where after confirmation of auction sale it was found that
E   valuation of movable and immovable properties, fixation of
    reserve price, inventory of Plant and Machineries had not been
    made in proclamation of sale, nor disclosed at time of sale
    notice. Therefore, in such a fact-situation, the sale was set aside
    after its confirmation.
F         23. 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 a surety is co-extensive with that of principal debtor.
    In case there are more than one surety the liability is to be
G   divided equally among the sureties for unpaid amount of loan.
    Once the sale has been confirmed it cannot be set aside unless
    a fundamental procedural error has occurred or sale certificate
    had been obtained by mis-representation or fraud.

H         24. Learned counsel for the parties are not in a position
   RAM KISHUN AND ORS. v. STATE OF U.P. AND                   125
          . ORS. [DR. B.S. CHAUHAN, J.]
to point out the specific rules under which the recovery was to      A
be made. Thus, the aforesaid legal principles have been
considered on general principles of law as argued by them.

    The instant case is required to be examined in the light of
the aforesaid settled legal propositions.                            8
    Admittedly, the father of the appellants stood guarantor
when Ganga Prasad took loan from the bank. Though there are
some documents to show that there were two guarantors but
who was the other guarantor is not evident from the record, nor
such a plea had ever been taken by the appellants before the         C
courts below. As the appellants had inherited the estate of the
guarantor, they are liable to meet the liability of unpaid amount.

      The appellants' land admeasuring 1 bigha and 10 biswas
was sold for Rs.25,000/-. It cannot be held, even by any stretch     D
of imagination, that the land had been sold at a cheaper rate,
for the reasons, that the land belonging to Ganga Prasad
(principal debtor) measuring 3 bighas and 2 biswas in the same
village in a close proximity of time had been sold for a sum of
Rs.6,000/- only. More so, elder brother of the appellant no.1        E
Ram Swaroop had participated in the auction and given the bid
of Rs.20,000/- for the land in dispute. In view of the above, the
submission made by Shri Garg that property worth Rs.2,00,000/
- had been sold at a throw away price of Rs.25,000/- is not
worth acceptance.
                                                                     F
     25. No fundamental procedural error had been pointed out
which would vitiate the order of confirmation of sale and
issuance of sale certificate.

    26. The total amount of loan sanctioned in favour of Ganga       G
Prasad was Rs.8,425/-. The Collector issued citation for
recovery of Rs.10,574/- on 13.1.1986 and the total amount to
be recovered including principal amount, interest, collection
charges etc. came to Rs.14,483.15P. The property of Ganga
                                                                     H
    126       SUPREME COURT REPORTS                 [2012] 6 S.C.R.


A  Prasad had been sold for a sum of Rs.6,000/-. So, the total
   amount to be recovered remained about Rs.8,500/-. The
   appellants' land had been sold for Rs.25,000/- i.e., three times
   the amount which was to be recovered. In the facts and
 " circumstances of this case, instead of putting this whole land
B admeasuring 1 bigha and 10 biswas, the sale of 1/3rd of this
   land could have served the purpose. Therefore, there had been
   material irregularity in putting the entire property to auction.

       27. In case, the auctioning authority had received
  Rs.25,000/- from the respondent no.4 as a sale consideration
C after adjusting the outstanding dues of Rs.8,500/-, the balance
  amount of Rs.16,500/- ought to have been paid to the
  appellants. There is nothing on record to show that authorities
  had ever adopted such a course.

D         28. In view of the above, the auction sale stood vitiated and
    all the consequential proceedings are liable to be quashed.

        However, for the reasons best known to the appellants,
  they have neither impleaded the Bank (creditor) nor any of the
E legal heirs of Ganga Prasad (principal debtor). In such a fact-
  situation, it becomes difficult to proceed with the case any
  further.

         29. Be that as it may, the respondent No.4 had been put
    in possession of the land more than two decades ago and he
F   had made improvements.

      This Court has consistently held that such a possession
  should not be disturbed at a belated stage for the reason that
  such a person would have spent his whole life savings in
G improving the land and making developments thereon which
  may include the construction of residences etc. (See: State of
  Gujarat v. Patel Raghav Natha & Ors., AIR 1969 SC 1297;
  and Brij Lal v. Board of Revenue & Ors., AIR 1994 SC 1128).

          30. The courts below have rejected the case of the
H
  RAM KISHUN AND ORS. v. STATE OF U.P. AND                127
         ORS. [DR. B.S. CHAUHAN, J.]
appellants only on the ground of delay. Nothing had been         A
pointed out before us as to on what basis the aforesaid
judgment and orders warrant any interference. In view of the
above, the appeal lacks merit and is accordingly dismissed.

     However, the appellants may move an application before      8
the Collector, Banda/concerned authority, in case the excess
amount had not been paid to them, for recovery of the same. If
such an application is filed and the authority comes to the
conclusion that excess amount had not been paid to them, it
shall be refunded within a period of 3 months from the date of   C
making the application wit~ 9% interest.

B.B.B.                                    Appeal dismissed.