# Dwarika Prasad v. State Of U.P. & Anr - **Citation:** (2016) 5 ILRA 1089 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-05-24 - **Bench:** Krishna Murari, Prashant Kumar - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dwarika-prasad-v-state-of-u-p-anr-43732 - **Pages:** 7 ## Headnote SARFAESI ACT, 2002 - S. 13(8) - RIGHT OF REDEMPTION - SCOPE & STAGE OF EXTINGUISHMENT - Borrower/guarantor retains right to redeem secured asset by tendering full dues "before the date fixed for sale/transfer" - Once, sale is completed and sale certificate presented for registration, right of redemption stands extinguished. Held, S. 13(8) grants right to tender dues before "date fixed for sale/transfer" and mandates that in such event the secured asset shall not be sold/transferred and no further steps shall be taken. (Paras 7 & 8) MORTGAGE LAW - EQUITY OF REDEMPTION - EXTINCTION - WHEN IT CEASES - Equity of redemption not extinguished by mere auction or contract for sale - Continues until execution and completion of sale by registered conveyance - Principle under TPA S. 60 applies to SARFAESI transactions.(Para 9). SARFAESI ACT - AUCTION SALE - SALE CERTIFICATE - EFFECT OF PRESENTATION FOR REGISTRATION - Confirmation of sale + execution & presentation of sale certificate completes sale process - Guarantor cannot seek redemption thereafter.(Paras 3, 12 & 13) WRIT JURISDICTION UNDER ART. 226 - INTERFERENCE IN SARFAESI PROCEEDINGS - No interference when remedy lies before DRT and no pleading of violation of Act/Rules - Mere willingness to pay dues after completion of sale does not confer enforceable right-Petitioner neither pleaded nor 1090 INDIAN LAW REPORTS ALLAHABAD SERIES established violation of SARFAESI Act/Rules during auction nor pursued S. 17 proceedings effectively - No ground for writ interference. (Paras 5 & 14) IN RESULT Writ petition dismissed; no right of redemption survives after completed sale process. (Para 15) List of Cases cited: 1.Mathew Varghese v. M. Amritha Kumar & Ors.(2014) 5 SCC 610 ## Text 5 All. Dwarika Prasad Vs State Of U.P. & Anr. 1089 the correctness of the award before the appropriate court/ forum as may be available to him under the law. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 24.05.2016 BEFORE THE HON'BLE KRISHNA MURARI, J. THE HON'BLE PRASHANT KUMAR, J. Civil Misc. Writ Petition / Writ C No.- 24089 Of 2016 Dwarika Prasad ...petitioner Versus State Of U.P. & Anr. ...Respondents Counsel for the Petitioner: Shri Vipin Kumar Srivastava Counsel for the Respondents: C.S.C., Shri S.D. Sahai SARFAESI ACT, 2002 - S. 13(8) - RIGHT OF REDEMPTION - SCOPE & STAGE OF EXTINGUISHMENT - Borrower/guarantor retains right to redeem secured asset by tendering full dues "before the date fixed for sale/transfer" - Once, sale is completed and sale certificate presented for registration, right of redemption stands extinguished. Held, S. 13(8) grants right to tender dues before "date fixed for sale/transfer" and mandates that in such event the secured asset shall not be sold/transferred and no further steps shall be taken. (Paras 7 & 8) MORTGAGE LAW - EQUITY OF REDEMPTION - EXTINCTION - WHEN IT CEASES - Equity of redemption not extinguished by mere auction or contract for sale - Continues until execution and completion of sale by registered conveyance - Principle under TPA S. 60 applies to SARFAESI transactions.(Para 9). SARFAESI ACT - AUCTION SALE - SALE CERTIFICATE - EFFECT OF PRESENTATION FOR REGISTRATION - Confirmation of sale + execution & presentation of sale certificate completes sale process - Guarantor cannot seek redemption thereafter.(Paras 3, 12 & 13) WRIT JURISDICTION UNDER ART. 226 - INTERFERENCE IN SARFAESI PROCEEDINGS - No interference when remedy lies before DRT and no pleading of violation of Act/Rules - Mere willingness to pay dues after completion of sale does not confer enforceable right-Petitioner neither pleaded nor 1090 INDIAN LAW REPORTS ALLAHABAD SERIES established violation of SARFAESI Act/Rules during auction nor pursued S. 17 proceedings effectively - No ground for writ interference. (Paras 5 & 14) IN RESULT Writ petition dismissed; no right of redemption survives after completed sale process. (Para 15) List of Cases cited: 1.Mathew Varghese v. M. Amritha Kumar & Ors.(2014) 5 SCC 610 2. Narandas Karsondas v. S.A. Kamtam & Anr. (referred as "Narandas Karsondas (supra)" (Delivered by Hon'ble Krishna Murari, J.) 1. Heard Shri Vipin Kumar Srivastava, learned counsel for the petitioner, learned Standing Counsel for respondent no. 1 and Shri S.D. Sahai, who has accepted notice on behalf of respondent no. 2. 2. Petitioner was a guarantor of an education loan of Rs.20 lacs from respondent no. 2 Bank and mortgaged the property in question as security to the said loan. Admittedly, there was a default by the borrower and the loan was declared as Non Performing Asset and proceedings under the SARFAESI Act, 2002 (for short the 'Act') were initiated against the borrower as well as the petitioner. Objection/representation filed under Section 13 (3A) of the Act was rejected by the Bank. Subsequently, notice under Section 13 (4) of the Act was issued and the mortgaged property was put to auction. 3. It is an admitted case that the property was auctioned on 30.01.2016 and the sale was confirmed by the authorised officer on 02.02.2016. The auction notice dated 27.02.2015 was challenged by the petitioner by making application under Section 17 of the Act before the Debt Recovery Tribunal, Lucknow, which is still pending. Petitioner also approached this Court by filing Writ Petition No. 10877 of 2016 alleging that he was ready and willing to deposit the entire loan amount within a month. A Division Bench of this Court passed the following order on 15.03.2016. "Learned counsel for the petitioner upon instructions states that the petitioner is ready and willing to deposit the entire loan amount within a month. He further submits that on or before 28.3.2016 the petitioner will deposit Rs. 7,00,000/- and the remaining amount as may be intimated by the Bank would be deposited on or before 30.4.2016. Put up this case as a fresh case on 28.3.2016. By the said date the petitioner will fill a supplementary affidavit annexing proof of receipt of deposit of Rs. 7,00,000/- with the respondent Bank. The execution of the sale deed will remain stayed till 28.3.2016. 5 All. Dwarika Prasad Vs State Of U.P. & Anr. 1091 Sri Anil Kumar, Advocate holding brief of Shri Shashi Dhar Sahai may also obtain instructions by the next date." 4. Petitioner has not disclosed in the pleadings anything further in respect of aforesaid writ petition. However, from the pleadings it appears that the writ petition was subsequently dismissed as withdrawn with the liberty to pursue the proceedings before the Tribunal. 5. On 18.03.2015, the Tribunal issued notices on the securitization application filed by the petitioner under Section 17 of the Act. However, at any stage, no interim order was passed. When the proceedings were taken up on 01.02.2016, counsel appearing for the Bank informed the Tribunal that secured asset has been sold on 30th January, 2016. Petitioner also made an application for redemption of the mortgaged property. Respondent-Bank vide order dated 03.02.2016 rejected the redemption application on the ground not only the sale has been effected, but it has also been confirmed on 02.02.2016. 6. Learned counsel for the petitioner contends that since the petitioner is ready and willing to clear the entire outstanding dues of the Bank, therefore, he has a right of redemption of mortgaged property and the auction sale effected without considering his offer for redemption is patently illegal and void. 7. Section 13 (8) of the Act provides that, in case, the outstanding dues along with costs, charges and expenses incurred by the secured creditor are tendered to him at any time before the date fixed for sale or transfer, the secured asset shall not be sold and no further steps shall be taken by the secured creditor for such transfer. The said Section reads as under. "13. Enforcement of security interest. (1) -------- (2) -------- (3) -------- (4) -------- (5) -------- (6) -------- (7) -------- (8) If the dues of the secured creditor together with all costs, charges and expenses incurred by him are tendered to the secured creditor at any time before the date fixed for sale or transfer, the secured asset shall not be sold or transferred by the secured creditor, and no further step shall be taken by him for transfer or sale of that secured asset." 8. A plain reading of sub-section (8) of Section 13 of the Act goes to show that a borrower can tender to a secured creditor the outstanding dues together with all costs, charges and expenses incurred by the secured creditor at any time before the date fixed. In the event of such tender once made, the legislative mandate is that the secured asset should not be sold or transferred by the 1092 INDIAN LAW REPORTS ALLAHABAD SERIES secured creditor. The Section clearly provides that in the event of the tender being made by a debtor of the entire outstanding dues including costs and expenses etc. before the date fixed for sale or transfer, the secured creditor shall not only effect sale of the secured asset but also no further steps shall be taken by him for transfer or sale of that secured asset. 9. Hon'ble Apex Court in the case of Mathew Varghese Vs. M. Amritha Kumar & Ors., (2014) 5 SCC 610 while considering the provisions of Section 13 (8) of the Act read with Rules 8 and 9 of the Security Interest (Enforcement) Rules, 2002, in paragraphs 37, 38 and 39, has held as under. "37. Mr. Shyam Divan, learned Senior Counsel relied upon the decision in Narandas Karsondas (supra), in which the right of a mortgagor as prescribed under Section 60 of the T.P. Act has been spelt out. Under Section 60 of the T.P. Act, at any time after the principal money fell due, there is a right in the mortgagor on payment or tender at a proper time and place of the mortgage money, to require a mortgagee to restore the property to the mortgagor with all rights prescribed as it stood prior to the mortgage. Under the proviso, the only impediment would be that if such a right of a mortgagor stood extinguished by act of the parties or by the decree of a Court. Certain other conditions are also stipulated in the said provision for the mortgagor to seek for redemption of the mortgaged property. Dealing with the said provision, this Court held as under in paragraphs 34 and 35. Paragraphs 34 and 35 are as under: "34. The right of redemption which is embodied in Section 60 of the Transfer of Property Act is available to the mortgagor unless it has been extinguished by the act of parties. The combined effect of Section 54 of the Transfer of Property Act and Section 17 of the Indian Registration Act is that a contract for sale in respect of immovable property of the value of more than one hundred rupees without registration cannot extinguish the equity of redemption. In India it is only on execution of the conveyance and registration of transfer of the mortgagor's interest by registered instrument that the mortgagor's right of redemption will be extinguished. The conferment of power to sell without intervention of the Court in a mortgage deed by itself will not deprive the mortgagor of his right to redemption. The extinction of the right of redemption has to be subsequent to the deed conferring such power. The right of redemption is not extinguished at the expiry of the period. The equity of redemption is not extinguished by mere contract for sale. 35. The mortgagor's right to redeem will survive until there has been completion of sale by the mortgagee by a registered deed. In England a sale of property takes place by agreement but it is not so in our country. The power to sell shall not be exercised unless and until notice in writing requiring payment of the principal money has been served on the mortgagor. Further Section 69(3) of the Transfer of Property Act shows that when a sale has been made in professed exercise of such a power, the title of the purchaser shall not be impeachable on the ground that no case had arisen to authorize the sale. Therefore, until the sale is complete by registration the mortgagor does not lose right of redemption." (Emphasis added) 5 All. Dwarika Prasad Vs State Of U.P. & Anr. 1093 38. On a reading of the above paragraphs, we are able to discern the Ratio to the effect that a mere conferment of power to sell without intervention of the Court in the mortgage deed by itself will not deprive the mortgagor of his right to redemption, that the extinction of the right of redemption has to be subsequent to the deed conferring such power, that the right of redemption is not extinguished at the expiry of the period, that the equity of redemption is not extinguished by mere contract for sale and that the mortgagor's right to redeem will survive until there has been completion of sale by the mortgagee by a registered deed. The ratio is also to the effect that the power to sell should not be exercised unless and until notice in writing requiring payment of the principal money has been served on the mortgagor. The above proposition of law of course was laid down by this Court while construing Section 60 of the T.P. Act. But as rightly contended by Mr. Shyam Divan, we fail to note any distinction to be drawn while applying the abovesaid principles, even in respect of the sale of secured assets created by way of a secured interest in favour of the secured creditor under the provisions of the SARFAESI Act, read along with the relevant Rules. We say so, inasmuch as, we find that even while setting out the principles in respect of the redemption of a mortgage by applying Section 60 of the T.P. Act, this Court has envisaged the situation where such mortgage deed providing for resorting to the sale of the mortgage property without the intervention of the Court. Keeping the said situation in mind, it was held that the right of redemption will not get extinguished merely at the expiry of the period mentioned in the mortgage deed. It was also stated that the equity of redemption is not extinguished by mere contract for sale and the most important and vital principle stated was that the mortgagor's right to redeem will survive until there has been completion of sale by the mortgagee by a registered deed. The completion of sale, it is stated, can be held to be so unless and until notice in writing requiring payment of the principal money has been served on the mortgagor. Therefore, it was held that until the sale is complete by registration of sale, the mortgagor does not loose the right of redemption. It was also made clear that it was erroneous to suggest that the mortgagee would be acting as the agent of the mortgagor in selling the property. 39. When we apply the above principles stated with reference to Section 60 of the T.P. Act in respect of a secured interest in a secured asset in favour of the secured creditor under the provisions of the SARFAESI Act and the relevant Rules applicable, under Section 13(1), a free hand is given to a secured creditor to resort to a sale without the intervention of the Court or Tribunal. However, under Section 13(8), it is clearly stipulated that the mortgagor, i.e. the borrower, who is otherwise called as a debtor, retains his full right to redeem the property by tendering all the dues to the secured creditor at any time before the date fixed for sale or transfer. Under subsection (8) of Section 13, as noted earlier, the secured asset should not be sold or transferred by the secured creditor when such tender is made by the borrower at the last moment before the sale or transfer. The said sub- section also states that no further step should be taken by the secured creditor for transfer or sale of that secured asset. We find no reason to state that the principles laid down with reference to Section 60 of the T.P. Act, which is general in nature in respect of all mortgages, can have no application in respect of a secured interest in a secured asset created in favour of a secured creditor, as all the above-stated principles apply in all fours in respect 1094 INDIAN LAW REPORTS ALLAHABAD SERIES of a transaction as between the debtor and secured creditor under the provisions of the SARFAESI Act." 10. In view of the aforesaid enunciation of the law laid down by the Hon'ble Apex Court, equity of redemption is not extinguished by mere contract for sale and the mortgagor's right to redeem will survive until there has been completion of sale by the mortgagee by a registered deed. 11. In the case in hand, the petitioner has admitted in his pleading that the sale deed has been executed by the respondent Bank, which fact, he came to know through a reply submitted by the auction purchaser in a suit for rent and eviction. It may be relevant to quote paragraph 3 of the writ petition in this regard, which reads as under. "3. That vide present application the applicant is challenging the arbitrariness of the respondent Bank executing sale deed in favour of the auction purchaser against the law laid down by Apex Court. The petitioner came to know about execution of sale deed by respondent bank through a reply submitted by auction purchaser in a suit for rent and eviction, who is also tenant of petitioner's property. The copy reply submitted in suit for rent and eviction by auction purchaser/tenant in suit for rent and eviction as Annexure No. 2." 12. In the written statement filed in SCC Suit No. 47 of 2015 by the auction purchaser, who was also a sitting tenant in the secured asset, it has been stated that defendant and his wife Smt. Divya Thapar made their bid and consequently purchased the property in suit through the aforesaid auction for a total sale price of Rs.54,41,476/- and the Corporation Bank through its authorised officer, Shri Sanjay Manocha s/o Shri Kesho Manocha executed Sale Certificate in favour of defendant and his wife Smt. Divya Thapar vide instrument dated 12.04.2016 and same was presented for registration on same date. The original Sale Certificate presented in the registration office bears serial no. 3584. 13. From the pleadings of the record in the writ petition, it is, thus, clear that not only the secured asset has been auctioned, but the sale has also been confirmed and the sale certificate has been presented for registration in the office of the Sub-Registrar and, thus, the entire process is completed. Once the entire process of auction sale is over and the deed has been presented for registration, the petitioner is left with no right of redemption of the secured asset and, in such circumstances, the relief prayed for in the writ petition is not liable to be granted in view of the law laid down by the Hon'ble Apex Court in the case of Mathew Varghese (supra). 14. It is pertinent to point out at this stage that there are no averments made in the writ petition nor any ground has been taken to challenge the auction sale by the secured creditor in violation of any of the provisions of the Act or Rules framed thereunder. 15. In view of the above facts and discussions, the writ petition is devoid of merit and, accordingly, stands dismissed. --------- 5 All. Vinod Vs State Of U.P. 1095 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 20.05.2016 BEFORE THE HON'BLE MRS. VIJAY LAKSHMI, J. Criminal Appeal No.- 875 Of 2014 Vinod ...Appellant Versus State Of U.P. ...Respondent Counsel for the Appellant: Sushil Pandey Counsel for the Respondent: Govt. Advocate Penal Code, 1860 - Ss. 363, 366, 376 - Consent - Age of Consent - Applicability of Amendment Occurrence dated April 2012 - At the relevant time, age of consent under S. 376 IPC was 16 years - Amendment raising age of consent to 18 years came into force on 03-02-2013 - Radiological age of prosecutrix found between 17-18 years with permissible variation - Benefit of variation to be given to accused - Held, prosecutrix must have been above 16 years on the date of occurrence, therefore consent relevant. Evidence Act, 1872 - Appreciation of Evidence - FIR - Contradictions FIR contained allegations that prosecutrix was taken by two named girls and handed over to accused - PW1, author of FIR, contradicted FIR on material particulars - FIR contained no date or time of occurrence - FIR not corroborated by PW1 - Held, foundation of prosecution case doubtful. Evidence - Testimony of Prosecutrix - Sterling Witness Standard Testimony of prosecutrix contained material improvements regarding manner of occurrence, involvement of others, and circumstances of movement - Conduct inconsistent with allegations - Did not raise alarm while travelling by public transport - Contradictions between examination-in-chief and cross-examination - Held, testimony not of sterling quality as required for conviction on sole testimony. Medical Jurisprudence - Evidence of Sexual Assault Medical evidence revealed no injury on body or private parts - Hymen found old torn and healed - Prosecutrix found accustomed to sexual intercourse - Radiological age between 17-18 years - Held, medical evidence not consistent with prosecution version of forcible rape. Criminal Procedure - Appreciation of Evidence - Perversity Trial court convicted accused primarily on basis of school records showing minority - Radiological evidence, contradictions in prosecution case, conduct of prosecutrix and relevant legal position regarding age of consent ignored - Held, findings perverse and against evidence on record-Conviction and sentence set aside - Accused acquitted - Having undergone more than four years' incarceration, directed to be released forthwith.