IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.12.2009 CORAM: THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR.JUSICE M.DURAISWAMY WRIT PETITION NO.5485 OF 2009 AND M.P.NO.1 OF 2009 D.Duraisrinivasan .. Petitioner Vs. 1. The Registrar, Debt Recovery Appellate Tribunal, Chennai-600 002. 2. The Branch Manager, Indian Bank, Arakkonam Branch. 3. Smt.K.Chitra Kirupanandasamy .. Respondents Writ Petition under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus, to call for the records of the first respondent in M.A.Nos.180 to 183 of 2008, dated 17.3.2009 on its file and quash the same and to consequently set aside the public auction conducted on 21.12.2006. For petitioner : Mr.N.G.R.Prasad for Mr.G.Jeremiah For respondents: R-1 Tribunal Mr.V.Raghavachari for R-2 Mr.Rajendran Raghavan for R-3 ORDER S.J.MUKHOPADHAYA,J The petitioner (first defendant) has challenged the order dated 17.3.2009 passed by the Debts Recovery Appellate Tribunal, Chennai in M.A.Nos.180 to 183 of 2008 and also the consequential public auction conducted on 21.12.2006. 2. The main pleas taken by the petitioner are as follows: (i) The Recovery Officer or the DRT had no power to reduce the upset price without notice to the defaulter. (ii) The auction was conducted without giving notice to the https://hcservices.ecourts.gov.in/hcservices/ petitioner with regard to the proclamation of sale and that no notice for the subsequent auction was also issued, pursuant to which, the auction-sale has been made. 3. Learned counsel for the petitioner submitted that it was the duty cast upon the Recovery Officer to obtain the best possible price while bringing the property on sale, but such procedure was not followed, and the reserve price was earlier fixed at Rs.8,60,000/- and it was arbitrarily reduced to Rs.5,20,000/- without notice to the petitioner and the property had been sold on 21.12.2006 to the third respondent for a sum of Rs.5,30,000/-, who was the sole participant on the date of auction, who quoted only a sum of Rs.10,000/- excess to the reduced reserve price. Learned counsel appearing on behalf of the petitioner referred to Rule 53 of Schedule-II to the Income Tax Act, 1961. It was submitted that before the proclamation of sale of the immovable property, notice should have been given to the defaulter, which was not given to the petitioner and the property has been sold below the reserve price, which was originally shown in the proclamation of sale, dated 15.3.2006 at Rs.8,60,000/-. 4. Learned counsel appearing on behalf of the Bank, while opposing the prayer, submitted that the Writ Petition has to be dismissed on the following grounds: (i) The requisite amount was not pre-deposited by the petitioner while filing application under Section 30 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short, 'the DRT Act, 1993') and it is only when the Tribunal, for the purpose of passing the interim order, asked to deposit the total amount of auction-sale, the same was deposited. (ii) The confirmation of sale cannot be challenged without challenging the sale. (iii) The order passed by the Recovery Officer, confirming the sale under Rule 63 of the Schedule-II to the Income Tax Act, is merely an administrative order and is not available for challenge under Section 30 of the DRT Act, 1993. Learned counsel for the Bank relied on the decision of the Supreme Court in the case of "Shankarlal Vs. Shankarlal", reported in AIR 1965 SC 507, wherein, the Supreme Court noticed the question as to whether the confirmation of sale is merely an order in the course of administration and not a judicial order. The Supreme Court in the said case, held that where the Court confirmed the winding up sale after hearing two view points by two contending parties or interests, and the order confirming sale vitally affected the rights of the parties, the Court acted in a judicial way and the order was not merely procedural but judicial and therefore not inherently incapable of being brought up in appeal. Learned counsel for the Bank further submitted that the confirmation of sale cannot be treated to be sale, but merely connotes the confirmation of sale already taken. The sale of the https://hcservices.ecourts.gov.in/hcservices/ immovable property not being under challenge, the confirmation of sale cannot be challenged under Section 30 of the DRT Act, 1993. Reliance was also placed on the decision of the Supreme Court in the case of "Bishan Paul Vs. Mothu Ram" reported in AIR 1965 SC 1994, wherein the Supreme Court held that the sale certificate, though issued later, mentions the date of confirmation of sale and the title does not remain in abeyance till the certificate is issued, but based on the confirmation of sale, when the full price is realised, which is merely confirmed by issuance of sale certificate. Learned counsel for the Bank further stated that the period of limitation commences from the date of auction sale and not from the date of confirmation of sale, and therefore, the DRT ought not to have entertained the application being barred by limitation, having filed more than 1-1/2 years after the sale. Learned counsel appearing on behalf of the Bank also produced relevant documents to suggest that the Recovery Officer, having found no purchaser pursuant to the earlier auction sale, after the approval of the DRT, reduced the upset price to ensure the sale of the immovable property. 5. Learned counsel appearing on behalf of the auction purchaser adopted the arguments as made on behalf of the Bank. 6. We have heard the learned counsel appearing for the parties and perused the records. 7. In the present case, it is not in dispute that the DRT passed the order of recovery under Section 19 of the DRT Act, 1993. The certificate having been issued for recovery, the Recovery Officer was required to recover the debts following the modes prescribed under Chapter-V of the DRT Act, 1993, read with Schedules-II & III to the Income Tax Act, 1961. The Recovery Officer in the present case, took steps under Section 25(a) of the DRT Act, 1993 for sale of the immovable property of the petitioner-first defendant. Under Section 28(5) of the DRT Act, 1993, the Recovery Officer took steps to recover the amount of debt due from the petitioner-first defendant by distraint and sale of his movable property in the manner laid down in Schedule-III to the Income Tax Act, 1961. 8. Schedule-III to the Income Tax Act prescribes to follow the provisions of Schedule-II therein, relating to attachment and sale. Under Rule 48 of Schedule II, while power has been imposed for attachment of immovable property, under Rule 52 of the Schedule II, the sale and proclamation of sale can be ordered. Rule 53 of Schedule-II prescribes the contents of proclamation. Under the said Rule 53, the proclamation of sale of immovable property is to be drawn up after notice to the defaulter. Apart from the fact that it shall state the time and place of sale, it required to specify as https://hcservices.ecourts.gov.in/hcservices/ fairly and accurately as possible, (a) the property to be sold, (b) the Revenue, if any, assessed upon the property or any part thereof, (c) the amount for the recovery of which sale is ordered, (cc) the reserve price, if any, below which the property may not be sold and (d) any other thing which is material for the purchaser to know. Rule 54 of Schedule-II while prescribes the mode of making proclamation, Rule 55 of Schedule-II prescribes the time of sale of immovable property, which cannot be made without the consent in writing of the defaulter, and it shall take place until after the expiration of atleast 30 days calculated from the date on which a copy of the proclamation of sale has been affixed on the property or in the Office of the Tax Recovery Officer. 9. In the present case, the petitioner-defaulter alleged that no notice was issued to him for proclamation of sale, as stipulated under Rule 53 of Schedule-II; he had no knowledge. It is further contended that the sale has been made below the reserve price, which is against Clause (cc) of Rule 53 of Schedule-II. 10. Learned counsel appearing on behalf of the Bank produced before the Court the relevant records and also referred to other documents filed along with the Writ Petition. 11. It appears that originally, the proclamation of sale was made in February 2006, wherein the upset price was shown at Rs.8,60,000/-. Pursuant to the same, the DRT-I, Chennai, published the auction notice in the newspaper showing 15.3.2006 as the date of public auction. Therein also, the upset price was shown at Rs.8,60,000/-. A copy of the proclamation and the advertisement showing the first proclamation and the advertisement showing the upset price at Rs.8,60,000/- has also been enclosed by the petitioner in the typed set of papers filed along with the Writ Petition. 12. It has been brought to our notice that pursuant to the said auction notice, nobody turned up on 15.3.2006 and the matter was brought to the notice of the Recovery Officer. This time, the Recovery Officer, by the impugned order dated 10.11.2006, issued proclamation with regard to the very same property, reducing the upset price at Rs.5,20,000/-, fixing 21.12.2006 as the date of public auction. In the said public auction notice, it was specifically mentioned to publish the notice in vernacular daily with large circulation in the area on or before 20.11.2006 and it was also ordered to get a copy of the publication material pasted at the property, which is proposed to be sold and to report compliance. Pursuant to the same, notice was published in the newspaper "Dina Malar" on 17.11.2006. Therein, the date of auction was shown to be 21.12.2006 with upset price at Rs.5,20,000/-. On the date of auction, the third respondent-auction purchaser who was the only purchaser, offered Rs.5,30,000/-, for which the property was sold. https://hcservices.ecourts.gov.in/hcservices/ Thereafter, no petition having been filed challenging the sale under Rule 60 or Rule 61 of Schedule-II to the Income Tax Act, the confirmation of sale was made by the Recovery Officer on 30.8.2007 under Rule 63 of Schedule-II to the Income Tax Act. 13. From the aforesaid facts, it would be evident that the Recovery Officer, even though reduced the upset price, issued proclamation of sale for the second time on 10.11.2006 under Rule 53 of Schedule-II to the Income Tax Act, giving the details of the property to be sold, reserve price, etc., as required under the said Rule and the mode of making proclamation and the sale of auction property, were made in accordance with Rule 54 and Rule 56 of Schedule-II to the Income Tax Act, after expiry of 30 days' period as prescribed under Rule 55 of Schedule-II to the Income Tax Act. 14. There is no allegation made that the purchaser defaulted in making payment within time. It is also not in dispute that no person including the petitioner filed any application to set aside the sale under Rule 60 or Rule 61 of Schedule-II to the Income Tax Act. Therefore, waiting for the prescribed period of 30 days, under Rule 62 of Schedule-II, as it was open for the Recovery Officer to confirm the sale under Rule 63 of Schedule-II, the said Officer rightly confirmed the sale on 30.8.2007. 15. We do not agree with the submission by the learned counsel for the Bank that the appeal under Section 30 of the DRT Act, 1993, is not maintainable against the order of confirmation of sale passed by the Recovery Officer under Rule 63 of Schedule-II. 16. In the case of "Nazims Continental and others Vs. The Indian Overseas Bank and others", in W.P.No.13210 of 2008 and analogous cases, a Division Bench of this Court, vide order dated 29.4.2009, relied on the decision of the Supreme Court in the case of "Union of India Vs. I.C.Lala, reported in AIR 1973 SC 2204, wherein it was held that the non-obstante clause (Section 30 of the DRT Act, 1993) does not mean that the whole said provision of law has to be made applicable or the whole of the other law has to be made inapplicable and it is the duty of the Court to avoid the conflict and construe the provisions so that they are harmonious. In the said case, the Division Bench of this Court further held that the DRT under Section 30 of the DRT Act, 1993 and the Recovery Officer under Rules 60, 61 and 62 of Part-III of Schedule-II to the Income Tax Act, in regard to movable property, and the jurisdiction of the Tribunal under Part-II of Schedule-II of the Income Tax Act, in regard to movable property, have concurrent jurisdiction and the Division Bench of this Court further noticed that no such application of any of the defendant can be entertained by the Tribunal under Section 30, without pre-deposit of the amount in terms of Rule 60/61, bypassing the jurisdiction of the Recovery Officer. https://hcservices.ecourts.gov.in/hcservices/ 17. It is to be noticed that there are other types of orders which may be passed by the Recovery Officer, against which also, appeal is maintainable under Section 30 of the DRT Act, 1993. In many of the cases, pre-deposit may not be required, except in the case of challenge of sale. 18. Learned counsel for the petitioner relied on Rule 63(1) of Schedule-II to the Income Tax Act and submitted that it is only on confirmation of sale, the sale shall become absolute. But we are of the view that for the purpose of challenge of sale, no person can take advantage of the confirmation of the sale under Rule 63, as in terms of the decision of the Supreme Court reported in AIR 1965 SC 1994 (supra), the title passes when the full price is realised and the sale certificate merely mentions the date of confirmation of sale in favour of the purchaser. 19. Therefore, while we hold that the appeal against the order of confirmation of sale is maintainable, but that will be only in cases when the sale is challenged under Rule 60/61 of Schedule-II to the Income Tax Act and if it is rendered by the Recovery Officer against the applicant, such party, while challenging the sale, may also challenge the confirmation of sale, if any made in the meantime. However, that will not take away the right of a person to challenge the sale originally made on the date of auction by filing appeal under Section 30 of the DRT Act, 1993, challenging the order of sale as may be ordered by the Recovery Officer under Rule 56 of Schedule- II to the Income Tax Act. 20. In the present case, apart from the fact that the petitioner had not challenged the upset price as was shown in the second advertisement published in the newspaper "Dina Malar" on 17.11.2006, from the records, it would be evident that the Recovery Officer accepted the offer given by the bidder under Rule 56 of Schedule-II, by his order/date of auction, dated 21.12.2006. Thereafter, the total sale consideration amount having been paid by the third respondent- auction purchaser, though it was open for the petitioner to challenge the sale as made on 21.12.2006, but the petitioner did not choose to challenge the same, either under Rule 60 or under Rule 61 of Schedule-II or under Section 30 of the DRT Act, 1993 and having not challenged the same, in the absence of any other infirmity in the order of confirmation of sale, the DRT rightly rejected the petition preferred by the petitioner under Section 30 of the DRT Act, 1993. 21. Thus, on merits, we find that no case is made out by the petitioner to allow the prayer as made in the Writ Petition, which is accordingly dismissed. No costs. The Miscellaneous Petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ cs To 1) The Registrar, Debt Recovery Appellate Tribunal, Chennai-600 002. 2) The Branch Manager, Indian Bank, Arakonam Branch. 1 cc To Mr.G.Jeremiah, Advocate, SR.65841 Order in W.P.No.5485 of 2009 MS (CO) SS (09.12.2009) https://hcservices.ecourts.gov.in/hcservices/