# Dinesh Kumar Tiwari v. Bank of Baroda A Body Corporate & Ors

- **Citation:** (2022) 2 ILRA 488
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-09
- **Case number:** Writ-C No. 1002680 of 2015
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-kumar-tiwari-v-bank-of-baroda-a-body-corporate-ors-48129
- **Pages:** 6

## Headnote

Prashant K. Srivastava, Amar Singh, Avishesh
Kumar
Singh,
Pradeep
Dwivedi,
Vaibhav
Srivastava, Vishal Agarwal

Criminal Law - Constitution of India -
Article 226 - Income Tax (Certificate
Proceedings) Rules, 1962 - Rule 60 of
the 2nd Scheduled of the Income Tax Act,
1961 - The Recovery of Debts due to Banks
and Financial Institutions Act, 1993 - Section
30, Securitisation and Reconstruction of
Financial Assets and Enforcement of Security
Interest
Act,
2002-
Section
13:
-
Enforcement of Security Interest - Auction of
mortgaged property - before confirmation of
sale - challenged - Bank inform to recovery
officer not to proceed with confirmation of
sale as entire dues were paid by the
borrower- defy to this - Recovery officer
confirm the auction sale - confirmation of
sale found unjust - writ petition disposed of -
with direction to expedite the statutory appeal
- interim protection granted in favour of the
borrower confirm till the disposal of appeal by
the Debts Recovery Tribunal. (Para - 24, 25,
26)

WP Disposed of. (E-11)

List of Cases cited:

## Text

488 INDIAN LAW REPORTS ALLAHABAD SERIES
प्रालिकािी को इस लनदेश के साि प्रलतप्रेलषत
लकया जाता है लक वो पूवट में उल्लेख लकये गये
लवविण को ध्यान में िखकि प्रकिण के तथ्ोीं के
परिपेक्ष में सभी सींदलभटत व प्रासींलगक लवषयोीं पि
सभी दस्तावेजोीं के सम्यक परिशीलन व
लववेचना, सभी पक्षोीं को सुनवाई का मौका प्रदान
कि आज से 2 माह के अन्दि गुण-दोष पि
सकािण आदेश पारित कि लनस्तािण किेंगे।
----------
(2022)02ILR A488
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.02.2022

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Writ-C No. 1002680 of 2015

Dinesh Kumar Tiwari ...Petitioner
Versus
Bank of Baroda A Body Corporate & Ors.
 ...Respondents

Counsel for the Petitioner:
Rakesh K. Chaudhary, Ashutosh Shukla, Shreya
Chaudhary

Counsel for the Respondents:
Prashant K. Srivastava, Amar Singh, Avishesh
Kumar
Singh,
Pradeep
Dwivedi,
Vaibhav
Srivastava, Vishal Agarwal

Criminal Law - Constitution of India -
Article 226 - Income Tax (Certificate
Proceedings) Rules, 1962 - Rule 60 of
the 2nd Scheduled of the Income Tax Act,
1961 - The Recovery of Debts due to Banks
and Financial Institutions Act, 1993 - Section
30, Securitisation and Reconstruction of
Financial Assets and Enforcement of Security
Interest
Act,
2002-
Section
13:
-
Enforcement of Security Interest - Auction of
mortgaged property - before confirmation of
sale - challenged - Bank inform to recovery
officer not to proceed with confirmation of
sale as entire dues were paid by the
borrower- defy to this - Recovery officer
confirm the auction sale - confirmation of
sale found unjust - writ petition disposed of -
with direction to expedite the statutory appeal
- interim protection granted in favour of the
borrower confirm till the disposal of appeal by
the Debts Recovery Tribunal. (Para - 24, 25,
26)

WP Disposed of. (E-11)

List of Cases cited:

1. Aniruddha Vs The Divisional Jt. Registrar
Cooperative Societies & ors. (2019 Vol. 2 Mh.
L.J.)

2. Ram Barai Prasad Vs St.of U.P. & ors.,
(2007 SCC OnLine All 557 = 2008 Vol. 1 All LJ
376)

3. Vasant Mahadev Chavan Vs St. of Goa &
ors. (2021 SCC OnLine Bom 4132)

4. Jadeja Jitendrasingh Chandrasingh Vs Tax
Recovery Officer (2012 SCC OnLine Guj
4975).

(Delivered by Hon'ble Dinesh Kumar
Singh, J.)

1. Heard Ms. Shreya Chaudhary,
learned counsel for the petitioner, Mr.
Prashant
Kumar
Srivastava,
learned
counsel for respondent no. 1-Bank of
Baroda (for short "BOB"), as well as Mr.
Vishal
Agarwal,
learned
counsel
representing respondent no. 3, and gone
through the record.

2. The present petition has been filed,
invoking extra-ordinary jurisdiction of this
Court under Article 226 of the Constitution
of India for quashing of the order dated
12.05.2005 passed by the Debts Recovery
Tribunal,
Lucknow
(for
short
"the
Tribunal") whereby the Recovery Officer
has ordered for taking forcible possession
from the petitioner of the mortgaged
property, being building constructed over
2 All. Dinesh Kumar Tiwari Vs. Bank of Baroda A Body Corporate & Ors.
489
land measuring 5000.00 sq. ft. of Khasra
No.797/01, Bhillawan, Ward Geetapalli,
Alambagh, Lucknow.

2. The petitioner had taken a loan of
Rs. 12 lakhs for business purposes from the
BOB on 06.11.2004 and mortgaged the
property, being building constructed over
land measuring 5000.00 sq. ft. of Khasra
No.797/01, Bhillawan, Ward Geetapalli,
Alambagh, Lucknow.

3. The BOB had filed Original
Application No. 154 of 2010 before the
Tribunal for recovery of a sum of Rs.
14,34,234=00 against the petitioner.

4. The Original Application No. 154
of 2010 was decided ex-parte vide order
dated 17.09.2010.

5. The petitioner came to know about
the said order dated 17.09.2010 in the year
2011 and, he filed Appeal No.96 of 2011,
which was dismissed vide order dated
18.01.2012.

6. In the meantime, the BOB had
proposed to auction the mortgaged property
and, the mortgaged property was auctioned
in favour of respondent no. 3- on
31.01.2013.

7. The respondent no. 3 had deposited
some token amount with the BOB. The
petitioner filed statutory objection against
the auction proceedings on 28.02.2013.

8. Ms. Shreya Chaudhaya, learned
counsel for the petitioner, has submitted
that before the confirmation of the sale, the
petitioner had deposited the entire amount
with up-to date interest with the BOB i.e.
Rs. 19,50,000=00 through Bank Draft
No.119413 dated 03.05.2003 issued by the
Corporation Bank, Gomti Nagar, Lucknow
and, the said bank draft was accepted by
the BOB towards the full and final
settlement of the loan amount.

9. The BOB had issued 'no dues
certificate' to the petitioner and, also
written letter dated 07.05.2013 to the
Recovery Officer of the Tribunal to the said
effect.

10. An affidavit dated 10.05.2013 was
also filed by the BOB before the Recovery
Officer. The BOB had requested the
Recovery Officer that prior to confirmation
of the sale, the petitioner had deposited the
entire amount with up-to date interest
amount to Rs. 19,50,000=00 and, no other
loan amount remained unpaid.

11. In view of above, the BOB had
requested the Recovery Officer to drop the
proceedings pursuant to auction sale.
However, the Recovery Officer, who heard
the matter on 17.05.2013, vide order dated
28.06.2013 passed in DRC No. 556 of 2010
rejected the request of the BOB for
dropping the proceedings and ordered the
BOB to refund Rs.19,50,000=00 to the
petitioner. The Recovery Officer, thereafter,
on the same day, confirmed the sale in
favour of respondent no. 3.

12. The petitioner had filed Writ
Petition No. 4407 (M/S) of 2013 against
the order dated 28.06.2013, which was
dismissed by this Court on 11.07.2013 with
liberty to the petitioner for filing appeal
under Section-30 of The Recovery of Debts
Due to Bank and Financial Institutions Act,
1993 (for short "the Act, 1993").

13. The petitioner, thereafter, had
filed an appeal before the Tribunal, which
was numbered as Appeal No.05 of 2013.
490 INDIAN LAW REPORTS ALLAHABAD SERIES

14. During the pendency of the said
appeal, the respondent no. 3 had moved an
application in Case No. DRC 556 of 2010
before the Recovery Officer and the
Recovery Officer passed the order dated
24.03.2014 for providing police protection
to the respondent no. 3 for taking over
possession of the mortgaged property.

15. The petitioner had filed an
application for recalling the order dated
24.03.2014 before the Recovery Officer
inasmuch as against the order dated
28.06.2013 Appeal No.05 of 2013 was
pending. The Recovery Officer, thereafter,
passed order dated 25.05.2014 and recalled
the earlier order dated 24.03.2014.

16. Though Appeal No.05 of 2013
remained pending before the Tribunal, the
Recovery Officer had passed another
order on 12.05.2015, directed the Senior
Superintendent of Police, Lucknow for
providing
police
protection
to
the
respondent no.3 for taking forcible
possession of the mortgaged property.
Though earlier the Recovery Officer had
passed the order dated 25.04.2014,
recalling the order dated 24.03.2014
passed for taking over forcible posses ion
of the property in question on the ground
that till the pendency of the appeal before
the Presiding Officer of the Tribunal, it
was not proper to take possession of the
property in question.

17. This Court, on 19.05.2015,
noted the fact that the sole purpose of the
Act, 1993 and The Securitization and
Reconstruction of Financial Assets and
Enforcement of Security Interest Act,
2002 (for short "the Act, 2002") is to
ensure that the Bank, which offers loan to
persons or institutions, are secured and
the money so given by them is recovered
by the Bank/institutions, as the case may
be, being the public money. This Court,
had noticed the facts that the petitioner
had deposited the entire amount along
with interest due up-to date with the BOB
on 03.05.2013, the BOB had accepted the
amount
and
written
letter
dated
07.05.2013 to the Tribunal. The BOB
clearly informed the Recovery Officer
that the petitioner repaid the entire loan
amount along with interest, however, the
Recovery Officer, instead of stopping the
wheels
of
process
of
confirmation,
rejected the application of the BOB and,
proceeded to confirm the auction on
28.06.2013.
This
Court,
therefore,
ordered that the possession of the
property in question should not be taken
from the petitioner.

18. Ms. Shreya Chaudhay, learned
counsel for the petitioner, has further
submitted that if borrower repays the loan
amount with interest and settles the
account before confirmation of the sale,
the sale should not have been confirmed.
It has been further submitted that the
order dated 28.06.2013 passed by the
Recovery Officer, confirming the sale
process, is wholly illegal and the said
action is against the several judgments
passed by the various High Courts. In
support of her submissions, learned
counsel for the petitioner has placed
reliance upon following judgments:-

i. Aniruddha v/s The Divisional Joint
Registrar Co-operative Societies, Amravati
& Others 2019 (2) Mh. L.J.;

ii. Ram Barai Prasad Vs. State of U.P.
and others, 2007 SCC OnLine All 557;
equivalent (2008) 1 All LJ 376;

iii. Vasant Mahadev Chavan Vs. State
of Goa, through the Chief Secretary and
Others 2021 SCC OnLine Bom 4132; and
2 All. Dinesh Kumar Tiwari Vs. Bank of Baroda A Body Corporate & Ors.
491

iv. Jadeja Jitendrasingh Chandrasinh
Vs. Tax Recovery Officer 2012 SCC
Online Guj 4975;

19. Ms. Shreya Chaudhary, learned
counsel for the petitioner has further
submitted that in the year 2012, a
settlement was arrived at between the
petitioner and the BOB. The petitioner
settled the amount as Rs.14,50,000/- for
full and final settlement in respect of the
loan taken by him. In pursuance of the said
settlement, the petitioner had paid Rs.
4,00,000=00
on
08.05.2012,
Rs.
1,50,000=00
on
02.07.2012
and
Rs.
1,00,000=00 on 31.08.2012.

20. On the other hand, Mr. Prashant
Kumar Srivastava, learned counsel for the
BOB, has submitted that the writ petition is
not maintainable inasmuch as the statutory
appeal under Section-30 of the Act, 1993 is
pending before the Tribunal against the
order passed by the Recovery Officer and,
instead
of
pressing
the
appeal,
the
petitioner has rushed before this Court. It
has been further submitted that after
receiving the amount of Rs.19,50,000=00
from the petitioner (total outstanding dues),
the Recovery Officer was only informed
and no request was made for dropping the
proceedings. It has been further submitted
that the auction was held on 31.03.2013. In
proceedings of DRC No.556 of 2010, the
petitioner had deposited Rs. 19,50,000=00
only on 03.05.2013 i.e. after more than two
moths from the date when the property was
put to auction on 31.03.2013. It has been
further submitted that after the sale was
confirmed on 28.06.2013, the petitioner
had accepted the residual amount of
Rs.10,73,391=00 and, therefore, the writ
petition is not maintainable. It has been
further submitted that the provisions of 2nd
and 3rd Schedules to the Income Tax Act,
1961 and the Income Tax (Certificate
Proceedings) Rules, 1962 as in force from
time to time shall, as far as possible, apply
with necessary modifications. Rule-60 of
the 2nd Scheduled of the Income Tax Act,
1961 provides that where immovable
property has been sold in execution of a
certificate, the defaulter, or any person
whose interests are affected by the sale,
may, at any time within 30 days from the
date of sale, apply to the Tax Recovery
Officer to set-aside the sale, on his
depositing
the
outstanding
amount
specified in proclamation of sale as that for
the recovery of which the sale was ordered
with interest thereon along with 5%
purchase money. It has been further
submitted that in the case in hands the
petitioner had applied after two months i.e.
beyond 30 days as prescribed under the
Rules. It has been further submitted that
since the petitioner has deposited the
amount in question after more than two
months of sale confirmation, the writ
petition is even otherwise liable to be
dismissed on merit.

21. Mr. Vishal Agrawal, learned
counsel for the respondent no. 3, has
submitted that the respondent no. 3 is a
bona-fide purchaser, who had deposited the
entire sale consideration, but he has not got
the fruit of his money, rather he has been
dragged in litigation.

22. Ms. Shreya Chaudhary, in
rejoinder, has submitted that the petitioner
had accepted the residual amount of
Rs.10,73,391=00,
after
the
Recovery
Officer confirmed the sale of the property
in favour of respondent no. 3, having no
other option, but the same would not disentitle the petitioner to challenge the
confirmation
of
sale
in
favour
of
respondent no. 3. It has been further
492 INDIAN LAW REPORTS ALLAHABAD SERIES
submitted
that
the
petitioner
is
ready/willing to refund Rs.10,73,391=00,
the residual amount, to the BOB with
interest.

23. I have considered the submissions
made by the learned counsels for the
parties.

24. The Recovery Officer was
required to act in accordance with law to
recover the dues of the BOB and, when
the BOB had written to the Recovery
Officer that he should not proceed further
with the auction-sale, the Recovery
Officer had no right to reject such request
of the BOB and, proceed for confirmation
of the sale. Rule-60 of the 2nd Scheduled
of the Income Tax Act, 1961, relied on by
respondent no. 2, would mean that before
30 days, from the date of the auction-sale,
the sale should not be confirmed and, if
the debtor deposits the dues as provided
under the Rules, then sale would not be
confirmed
and
property
would
be
released
in
favour
of
the
debtor.
However, even after 30 days before
confirmation, if the defaulter/debtor pays
the entire dues, and the Bank issues no
dues
certificate
and
writes
to
the
Recovery Officer not to proceed further
with the auction to confirm the sale in
favour of such purchaser, the Recovery
Officer would be required to cancel the
auction proceedings inasmuch as the
Recovery Officer acts only for realizing
the dues of the Bank/financial institution.
In case Bank/financial institution is
satisfied that its dues are paid before
auction sale is confirmed, then the
Recovery Officer would be required to
cancel the auction sale, otherwise it
would be travesty of justice to complete
the sale of property of the borrower
despite payment of entire dues and
having been issued no dues certificate by
Bank/financial institution.

25. In the present case, the BOB itself
had written to the Recovery Officer not to
proceed with the confirmation of sale as its
entire dues were paid by the petitioner. The
Recovery Officer had no right to ignore
such a request of the BOB. It is also well
settled that the auction purchaser has no
right, title or interest over the immovable
property till confirmation of sale of the said
immovable property in his favour. The title
of property passes to the auction purchaser
with effect from the date of confirmation
and not before confirmation of sale.

26. In the present case, the borrower
had paid the entire amount of Rs.
19,50,000=00 to the BOB before the sale
was confirmed and, the BOB had issued 'no
dues certificate' to the borrower and, filed
an application before the Recovery Officer
for cancelling the auction process, but the
Recovery Officer had gone ahead to
confirm
the
sale
and
rejected
the
application. The auction purchaser could
claim refund of his money from the BOB
with interest, but he did not have any right
over the property before the sale was
confirmed inasmuch as Recovery Officer
had no right to confirm the sale after BOB
wrote to him for cancelling the auction. The
BOB had already received the entire
amount and, written an application to the
Recovery Officer for cancellation of the
sale process, but despite that the Recovery
Officer had proceeded to confirm the sale
wholly illegally and unauthorizedly.

27. In view thereof, the present
petition is disposed of with a direction to
the Tribunal to decide the appeal filed by
the petitioner expeditiously in accordance
with law, preferably within a period of one
2 All. Suresh Chandra Tewari Vs. State of U.P. & Ors.
493
month and, till the appeal is decided by the
Tribunal, the interim order passed by this
Court on 19.05.2015 shall remain in
operation.
----------
(2022)02ILR A493
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.02.2022

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Writ-C No. 3000001 of 1995

Suresh Chandra Tewari ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
D. C. Mukherji, Mohammad Aslam Khan

Counsel for the Respondents:
A.B. Misra, C.S.C.

Criminal Law - Constitution of India,
1950 - U.P. Imposition of Ceiling on
Land Holdings Act, 1960 - Section - 9, 10
(1) (2), 11 & 13 - U.P. Imposition of
Ceiling on Land Holdings Rules, 1961 -
Rule 8 - Declaration of surplus land - Rules
mandates issuance of notice to be served
upon every such tenure holders to show
cause - but notice was issued only to the
petitioner's father instead of issuing notices to
each of tenure holders of his family whose
names were mutated by the prescribed
authority prior to the cut-off date in the
revenue record on the basis of a family
settlement - order passed in proceedings
against their father would not be operate as
'constructive
res
judicata'
against
the
petitioners' - order passed by the Additional
Commissioner (Judicial), whereby learned
Additional Commissioner has allowed appeal
filed by State against order passed by
prescribed
authority
liable
to
be
quashed.(Para 24, 29, 31, 32)

Writ petition allowed. (E-11)
List of Cases cited:

1. Kale & ors. Vs DDC & ors. (1976 Vol. 3 SCC
119)

2. Dilbagh Singh Vs The St. of UP & anr. (1978
All.L.J. 717)

3. Shantanu Kumar Vs St. of UP & ors. (1979
All. L.J. 1174 FB)

(Delivered by Hon'ble Dinesh Kumar
Singh, J.)

1. The present writ petition has been
filed, seeking quashing of the order dated
18.10.1994
passed
by
Additional
Commissioner
(Judicial),
Lucknow
Division,
Lucknow
whereby
learned
Additional Commissioner has allowed the
appeal filed by the State against the order
dated 23.09.1985 passed by the prescribed
authority under the provisions of U.P.
Imposition of Ceiling on Land Holdings
Act, 1960 (hereinafter referred to as 'the
Act, 1960').

2. Notice under Section 10(2) of the
Act, 1960 was issued on 16.03.1974 against
the father of the petitioners, Hari Shankar
Tiwari since dead who was impleaded as
respondent No.3 in this writ petition by the
Prescribed
Authority.
Father
of
the
petitioners filed his objection to the said
notice on 20.04.1974. In the said objection,
Late Hari Shankar, father of the petitioners
said that a family settlement was arrived at
between the parties in the year 1967 and,
according to the said family settlement,
shares of all the family members were
determined. This settlement was reduced in
writing in the year 1969 and in the year
1970, petitioner No.1, one of the sons of
Late Hari Shankar, instituted a suit in the
Court of Munsif in respect of non
agricultural properties which were also