# Girija Prasad Ojha v. State of U.P. & Ors

- **Citation:** (2024) 2 ILRA 552
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-30
- **Case number:** Writ C No. 1000394 of 2004
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/girija-prasad-ojha-v-state-of-u-p-ors-51438
- **Pages:** 7

## Headnote

A.Civil Law-Constitution of India,1950Article 226-Transfer of Property Act,1882-
2 All. Girija Prasad Ojha Vs. State of U.P. & Ors.
553
Section 60-The petitioner challenged the
auction proceedings-The petitioner took a
loan, due to non-repayment, recovery
proceedings
were
initiated-despite
multiple
opportunities and
extensions
granted by the High Court to repay the
outstanding loan, the petitioner failed to
do so-The auction was confirmed, a sale
certificate was issued, and the property
was registered in the name of the highest
bidder(Respondent No. 5)-Held, the right
to redemption under the Transfer of
Property
Act
extinguishes
upon
the
registration of the sale deed, which had
already
occurred-The
recovery
proceedings
and
the
auction
were
conducted in accordance with the law, and
the
petitioner's
claims
of
procedural
infirmities were dismissed due to lack of
direct challenge to the sale certificate and
sale deed-the right of redemption exists
until extinguished by an act of the parties
or law.(Para 1 to 22)

The writ petition is dismissed. .( E-6)

List of cases cited:

## Text

552 INDIAN LAW REPORTS ALLAHABAD SERIES

22. However, it was observed in
the aforesaid book that the above summary
cannot, however, be taken as exhaustive
and ultimately a ''proviso' like any other
enactment ought to be construed upon its
terms.

40. As already noticed, the golden
rule of interpretation is that if the meaning
of words of a statute are plain, effect must
be given irrespective of the consequences.
We may refer to the judgments of the
Supreme Court in cases of Nelson Motis
(supra), Kanailal Sur (supra), Vijay Anand
Maharaj (supra), Gwalior Rayan Silk
(supra), Raghunath Rai Bareja (supra)."

12.

Taking
from
the
above
observations, though the learned counsel
for the petitioner has relied on Rule 21 (1)
and 22 (1) of the Rules, 2014 but on
perusal of the complaint in consonance
with Sections 4, 5 and 6 of the Act, 2007,
which mandates the authority of the
Tribunal to decide the grievance of the
senior citizens from their legal heirs and
relatives, nowhere it has given power to the
authority to entertain a complaint against a
private person. Even Rule 22 (1) of the
Rules, 2014 has given powers to the
District
Superintendent
of
Police
/
Divisional Inspector General of Police to
take all necessary steps subject to such
guidelines as the Government may issue
from time to time for protection of life and
property of the senior citizens but there is
no specific Rule to entertain any complaint
against a private person.

13. In the instant case, no doubt, the
petitioner
being
senior
citizen
has
purchased the property in 2022 and the
complaint itself is moved against private
person stating therein that he is trying to
grab the subject property. If it is so, the
petitioner has other efficacious remedy
under the provisions of the Civil Procedure
Code and the Criminal Procedure Code but
not under the provisions of the Act, 2007.

14. In view of the backdrop of the
facts of this case, it appears that the
complaint made by the petitioner on
27.09.2023 does not fall within the
jurisdiction of the authority of the second
respondent under the provisions of the Act,
2007. Therefore, we hold that the complaint
made by the petitioner would not come
within the purview of the provisions of the
Act,
2007.
Consequently,
no
such
mandamus / directions as prayed for can be
granted.

15. Accordingly, the instant petition is
dismissed.
----------
(2024) 2 ILRA 552
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.01.2024
BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ C No. 1000394 of 2004

Girija Prasad Ojha ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
S.M Waseem, Diwakar Pratap Pandey, I.M.
Pandey
Ist,
Kripa
Shankar
Shukla,
Rameshwar
Tiwari,
S.M.
Waseem,
Smt.Usha Tiwari, Vidya Bhushan Pandey

Counsel for the Respondents:
C.S.C, A. Kumar, Mayank Pathak, Ravi
Shanker Mishra, S.N.Goshwami, Sharad
Bhatnagar

A.Civil Law-Constitution of India,1950Article 226-Transfer of Property Act,1882-
2 All. Girija Prasad Ojha Vs. State of U.P. & Ors.
553
Section 60-The petitioner challenged the
auction proceedings-The petitioner took a
loan, due to non-repayment, recovery
proceedings
were
initiated-despite
multiple
opportunities and
extensions
granted by the High Court to repay the
outstanding loan, the petitioner failed to
do so-The auction was confirmed, a sale
certificate was issued, and the property
was registered in the name of the highest
bidder(Respondent No. 5)-Held, the right
to redemption under the Transfer of
Property
Act
extinguishes
upon
the
registration of the sale deed, which had
already
occurred-The
recovery
proceedings
and
the
auction
were
conducted in accordance with the law, and
the
petitioner's
claims
of
procedural
infirmities were dismissed due to lack of
direct challenge to the sale certificate and
sale deed-the right of redemption exists
until extinguished by an act of the parties
or law.(Para 1 to 22)

The writ petition is dismissed. .( E-6)

List of cases cited:

1. Surendra Pal Singh Vs Vijaya Bank Civil
Appeal No. 6843 of 2023

2.Narandas Karsondas Vs S.A. Kamtam (1976)
CJ SC 287

 (Delivered by Hon'ble Alok Mathur,
J.)

1. Heard Sri I. M. Pandey, learned
counsel for the petitioner, learned
Standing counsel for respondent No.s
1, 3 and 4 and Sri Mayank Pathak for
respondent No.2- Bank.

2. By means of the present writ
petition the petitioner has challenged
the auction proceedings which has
culminated into confirmation of the
auction by the order of Sub Divisional
Magistrate, Tehsil Milkipur, Faizabad.

3. The facts in brief are that the
petitioner is a proprietor of a business firm,
namely Rahul Fertilizers. He had taken a
loan of Rs.10,000/- on 31.10.1985 from
Punjab National Bank, Branch, Kumarganj,
District Faizabad for the purpose of
fertilizer business . The said loan was
enhanced to Rs.20,000/- on 23.9.1987. The
petitioner could not repay the said loan and
consequently the respondent-bank initiated
recovery proceedings against the petitioner
by issuance of recovery certificate on
7.3.1994. Despite issuance of the recovery
certificate the outstanding amount of loan
was not repaid consequently the bank
proceeded
to
auction
the
mortgaged
property by sale proclamation on 23.2.1999
against the petitioner of the agricultural
loan exiting on khata No.342, gata No.s
219 A/0-18-02, 98/1/0-9-10, 207/0-13-0,
219 Ba/1-10-14, 272 Kha/1-12-0, 280/017-5, 281/0-1-10 and 288/0-7-0 which land
was mortgaged to secure the loan obtained
by the petitioner. The auction proceedings
were held on 22.3.1999 and the agricultural
land of the petitioner was auctioned for an
amount of Rs.52,000/- in favour of
respondent No.5.

4. Bring aggrieved by the auction the
petitioner
preferred
objections
under
Sections 285 (1) of Z.A. Rules before the
Divisional Commissioner, Faizabad on
5.4.1999. The Divisional Commissioner on
receiving
the
said
objections
also
considered the fact that the petitioners was
ready and willing to repay the said loan
gave him time by means of order dated
7.5.2003 to deposit the entire outstanding
amount of loan with the bank and informed
the petitioner that in case he deposits the
said amount with the bank, the said
auctions
proceedings
would
not
be
confirmed and the auction will be set aside.
554 INDIAN LAW REPORTS ALLAHABAD SERIES

5. It seems that the petitioner could
not deposit the said amount by the date
fixed i.e. 7.6.2003 but in the meantime the
petitioner moved another application for
extension of time for depositing the
outstanding
amount
of
loan.
The
application of the petitioner was favorably
considered by learned Commissioner who
by means of his order dated 5.6.2003 gave
further thirty days' time to the petitioner to
deposit the said amount by 7.7.2003. Even
during the extended time period the
outstanding amount was not deposited by
the petitioner and in these circumstances
the petitioner approached this Court by
filing writ petition bearing writ petition
No.2127 (M/S) of 2003. This Court by
means of order dated 4.7.2003 had
disposed of the said writ petition recording
that the petitioner had filed his objections
under Section 285 (1) of Z.A. Rules and he
was granted time to deposit the outstanding
amount of loan by 7.6.2003. It was further
observed that the petitioner could not
deposit the said amount due to financial
constraints but is ready and willing to
deposit the entire amount and consequently
the order of the Commissioner, Faizabad
Division, Faizabad dated 7.5.2003 was
modified to the extent that the petitioner
may deposit Rs.20,000/- with the bank
before 31.7.2003 and the remaining amount
before 30th September, 2003.

6. It is in compliance of the order of
this Court dated 4.7.2003 which had
modified the order of the Commissioner
dated 7.5.2003 the petitioner deposited an
amount of Rs.20,000/- on 30.7.2003 but it
seems that he could not deposit the
remaining amount and as per the impugned
order a report was called from the bank
which also confirmed that the petitioner
had not deposited the remaining amount as
directed by the High Court in their letter
dated 30.10.2003. The respondent on being
made aware of the fact that even the order
of High Court had not been complied and
the petitioner had not deposited the
remaining amount, proceeded to confirm
the auction.

7. After confirmation of the auction, a
sale certificate was issued in favour of
respondent No.5 on 30.1.2004 and the and
the property was also registered in favour
of respondent No.5 on 7.1.2004 as per the
averments made by the petitioner himself
in the writ petition. It is in aforesaid
circumstances that present writ petition has
been filed assailing the order dated
31.12.2003
passed
by
Commissioner,
Faizabad Mandal, Faizabad confirming the
auction. The petitioner has also prayed for a
direction to the respondents not to give
effect to the auction proceedings and not to
mutate the said land in favour of
respondent No.5.

8. Learned counsel for the petitioner
while assailing the order dated 31.12.2003
has submitted that the petitioner has full
right for redeeming the mortgage and even
High Court had recognized the right of
redemption in as much as this Court had
directed the bank to accept Rs.20,000/- by
31.7.2003 and the remaining amount before
30.9.2003 and consequently the auction
proceedings could not have been confirmed
in case the petitioner had complied with the
directions of this Court. He has further
submitted
that
in
pursuance
of
the
directions of this court admittedly he had
deposited Rs.20,000/- on 30.7.2003. He has
further submitted that he had further
deposited Rs.2500/- with the respondent
bank. It is only subsequently that that he
was made aware of the fact that the cheque
was dishonored on account of insufficiency
of funds and on coming to know about the
2 All. Girija Prasad Ojha Vs. State of U.P. & Ors.
555
dishonoring of the cheque he had deposited
Rs.9500/- in cash on 30.10.2003. He has
further submitted that this is admitted fact
that the petitioner on being aware of
dishohouring of the cheque had deposited
the remaining amount in cash and,
therefore, it is submitted that the benefit of
the same should be given to the petitioner
and accordingly submits that his right of
redemption was not extinguished on non
compliance of the directions of this Court
dated 4.7.2003. Lastly, he has also taken a
plea that the said loan was commercial loan
and the proceedings for recovery of the
commercial loan could not have been made
as arrears of land revenue as the said
proceedings could be taken only with
regard to agricultural loan and submits that
accordingly the entire recovery proceedings
are without jurisdiction and is liable to be
set aside.

9. It is noticed that the said plea has
neither been taken before any of the
authorities below nor in the writ petition
and only averment has been made in para 9
of the supplementary affidavit filed by the
petitioner on 23.1.2024. Learned counsel
for the bank has, on the other hand,
submitted that according to the recovery
certificate the loan has been shown to be
agricultural loan and in any view of the
matter this issue has not been raised before
any authority and consequently cannot be
permitted to raise the same by oral
submissions for the first time in writ
proceedings.

10. In support of his submissions,
learned counsel for the petitioner has relied
upon the judgment of Supreme Court in the
case of Surendra Pal Singh Vs. Vijaya
Bank passed in Civil Appeal No.6843 of
2023 as well as Narandas Karsondas Vs.
S.A. Kamtam, 1976 CJ (SC) 287 to
canvass his plea that his right to redemption
of the mortgaged property existed even
subsequent to confirmation of the auction
and consequently he may be permitted to
deposit the outstanding amount of loan and
the impugned orders may be set aside
directing the respondents to hand over the
property back to the petitioner.

11.

Learned
counsel
for
the
respondents, on the other hand, have
vehemently opposed the writ petition. It has
been
submitted
that
the
recovery
proceedings were initiated against the
petitioner after he failed to repay the loan
in terms of the agreement entered into
between the petitioner and the respondent.
It was stated that repeated opportunities
were given to the petitioner to repay the
outstanding amount of loan but despite the
said notice the loan was not repaid and
consequently the mortgaged property was
auctioned by the respondent-bank. It has
been submitted that the petitioner was fully
aware of the auction proceedings in as
much as ZA Form 74A was issued to the
petitioner and according to the said
provisions the petitioner was fully aware of
the auction proceedings. The auction
proceedings settled in favour of respondent
No.5 who was the highest bidder for an
amount of Rs.52,000/-.

12. There is no dispute with regard to
the fact that the entire amount of auction
money has been tendered by respondent
No.5. Prior to confirmation of the sale the
petitioner had submitted his objections. It is
stated that it is only after considering the
objections filed by the petitioner that he
was further granted time to redeem the said
mortgage and to repay the entire amount of
loan by 7.6.2003. At the behest of the
petitioner the said period was extended till
7.7.2003 and despite expiry of the time
556 INDIAN LAW REPORTS ALLAHABAD SERIES
period the said loan was not repaid. Even
after that time was extended by this Court
and even the directions of this Court was
not complied by the petitioner.

13. It is stated that even the directions
of this Court have not been complied and
the Commissioner in these circumstances
had no other option but to confirm the
auction and even it has been stated that
after confirmation of the auction the sale
certificate was issued and the property has
been registered in favour of respondent
No.5. It has further been stated that this fact
has been mentioned by the petitioner
himself that the sale certificate has been
issued in favour of respondent No.5 and the
property has also been registered in his
favour on 7.1.2004 i.e. much prior to filing
of the present petition and still the
petitioner has failed to assail the sale
certificate as well as sale deed issued in
favour of respondent No.5.

14. It is stated that the present writ
petition has been rendered infructuous from
the start in as much as proper prayer has
not been made for setting aside the sale
certificate and sale deed and setting aside
the impugned orders will not have any
effect upon the validity of the sale deed
issued in favour of respondent No.5.
Accordingly, he submits that proper prayer
has not been made by the petitioner and
accordingly the relief as sought by him
cannot be granted.

15. I have heard learned counsel for
the petitioner and perused the records.

16. In light of the aforesaid narration
of facts the question which arises for
determination by this Court was as to
whether right of redemption existing in
favour of the petitioner, who had mortgages
his property to secure the agricultural loan
subsists even after the confirmation of the
auction and after the sale deed has been
registered
in
favour
of
successful
bidder/auction purchaser i.e. respondent
No.5.

17. According to Section 60 of the
Transfer of Properties Act, right of
redemption exists with the mortgagee till
such
time
the
mortgage
has
been
extinguished by the act of either of the
parties. In the present case, in exercise of
his right to redemption the Commissioner,
Faizabad Division, at the outset, before
confirming the said auction had given time
to the petitioner till 7.6.2003 to repay the
said loan. Undoubtedly there is no dispute
with regard to the fact that even subsequent
to the auction which was settled in favour
of respondent No.5 existence of the right of
redemption in favour of the petitioner was
duly
recognized
by
the
confirming
authority. Even at the behest of the
petitioner the said time period was
extended by one month and he was further
given time till 3.7.2003 to repay the
outstanding amount of loan.

18. This right vested in the petitioner
of redemption was further recognized by
this Court when this Court had passed order
on 4.7.2003 where the petitioner was
further granted till till 30th September,
2003. This Court while passing the order
dated 4.7.2003 had given the petitioner
time till 3.7.2003 to deposit the amount of
Rs.20,000/- and again granted time till
30.9.2003. Accordingly undoubtedly the
petitioner even in the extended time
provided by this Court till 30th September
to repay the said loan. There is no dispute
that
till
30.9.2003
the
amount
of
outstanding loan was not deposited by the
petitioner.
Considering
the
arguments
2 All. Girija Prasad Ojha Vs. State of U.P. & Ors.
557
raised by the petitioner that he had
deposited Rs.20,000/- on 30.7.2003 i.e.
within the time provided by this Court.
While remaining amount of Rs.12500/- was
deposited by the petitioner through cheque
which had bounced. The reason for
bouncing of cheque is insufficiency of
funds. Considering the fact that till
conclusion of auction the full outstanding
amount of loan was not credited in the bank
account and the bouncing of the cheque on
account of insufficiency of funds cannot be
taken as an act of redemption of the loan by
the petitioner. Even subsequently against
the outstanding amount of Rs.12500/- the
petitioner had deposited only Rs.9500/- on
30.10.2003.

19. This Court has noticed that even
the amount do not match with the amount
of cheque deposited previously by the
petitioner i.e. 30.10.2003 but according to
the time prescribed by this Court even if
the petitioner had come to know about
bouncing of the cheque subsequent to
30.10.2003 then he could have moved
appropriate application before this Court in
writ petition No.2127 (M/S) of 2003
seeking time for depositing the outstanding
amount in peculiar circumstances of the
present case and could also demonstrate
before this Court that the petitioner had no
knowledge that the cheque had bounced.
Unfortunately, no such application was
made by the petitioner and the directions of
this Court for depositing the outstanding
loan till 30.10.2002 remained unchanged
and unaltered. It is in these circumstances,
this Court is of the considered opinion that
the outstanding loan amount was not repaid
by the petitioner within the time prescribed
despite the fact that repeated extensions
were given by the authorities themselves
and also by this Court. Accordingly, the
auction concluded and the property was
duly registered in the name of respondent
No.5-the auction purchaser. The act of
registration of the property in favour of
respondent No.5 had extinguished the right
vested with the petitioner to redeem the
said loan.

20. We have also considered the
judgments relied upon by the petitioner. In
the case of Surinder Pal Singh Vs. Vijaya
Bank and others, passed in Civil Appeal
No.6843 of 20023 the question that was
considered of provisions of Section 13 (8)
of Securitization and Reconstruction of
Financial Assets and Enforcement of
Securities Interest Act, 2002 (in short
SARFAESI Act) with regard to repayment
of loan taken by the borrower from the
banks and the amended provisions of
Section 38 vested the right with the
borrower to redeem the loan prior to
issuance
of
the
sale
certificate
but
subsequently amendment of Section 13(8)
of SARFAESI Act right of redemption was
limited till the date of issuance of
advertisement for the said auction. In light
of the above, Supreme Court has held that
right of redemption in a matter where the
SARFAESI Act is applicable right of
redemption has been extinguished on the
issuance of advertisement for auction. The
said judgment concerns the SARFAESI Act
which are not applicable in the facts of the
present case and consequently does not
apply in the present case. In the case
Supreme Court while explaining the
provisions of Section 60 of Transfer of
Properties Act have held as under:-

The right of redemption which is
embodied in section 60 of the Transfer of
Property Act is available to the Mortga-
gor unless it has been extinguished by the
Act of parties. The combined effect of
section 54 of the Transfer of Property Act
558 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

The mortgagor?s right to redeem
will survive until there has been completion
of sale by the mortagee 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 authorise the sale. Therefore,
until the sale is complete by registration the
mortgagor
does
not
lose
right
of
redemption."

21. In the aforesaid judgment
Supreme Court has held that right of
redemption would only exist till the date
when sale is complete. In the present case
as we have already noticed the sale deed
was registered in favour of respondent No.5
on 7.1.2004 and consequently even as per
the judgment of Supreme Court the right of
redemption if any in favour of the
petitioner stand extinguished on the date of
the said auction. There is no law or rule
which has been demonstrated by the
petitioner
to
indicate
that
right
of
redemption vested even after execution of
sale deed and also considering the fact that
neither the sale deed nor the sale certificate
issued in favour of respondent No.5 has
been challenged in the present proceedings
accordingly there is no infirmity in the
order passed by Commissioner confirming
the auction in favour of respondent No.5.

22. For the aforesaid reasons, there is
no merit in the writ petition which is
accordingly dismissed.
----------
(2024) 2 ILRA 558
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.02.2024
BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ C No. 1002187 of 2004

Smt. Sanwari Devi ...Petitioner
Versus
Addl. Commissioner Judicial Faizabad &
Ors. ...Respondents

Counsel for the Petitioner:
S.K. Tewari, Ram Kushal Tiwari

Counsel for the Respondents:
C.S.C., Pankaj Kumar
Singh, Prabhat
Kumar, R.L. Ojha, Ram Shiromani Pandey,
Vinay Kumar Mishra, Virendra Kumar
Shukla

Civil Law - Constitution of India,1950Article
226-Land
Revenue
Act,1901Section
34-dispute
over
property
inheritance based on conflicting wills