V. P. MOHAN KUMAR, J. ( 1 ) THE petitioner had borrowed from the 1st respondent a sum of Rs. 59,35,000. 00 hypothecating the land, building and machinery situate at plot No. 498, IV Floor, Peenya Industrial Area, Bangalore. It is seen that the loan was sanctioned on 6-10-1988. The petitioner thereafter defaulted the repayment. Show-cause notice was issued to the petitioner on 28-6-1991, by the 1st respondent to show-cause why proceedings under Section 29 of the State Financial Corporations Act should not be invoked. As the petitioner did not co-operate and discharge the arrears, on 1-8-1991 the 1st respondent repossessed the land, building and the machinery. It thereafter notified the mortgage property for sale in the advertisement dated 10-11-1991. At the sale held, after negotiation on 22-1-1992, (with different offerees) the 2nd respondent purchased the machineries for Rs. 25 lakhs whereas the 3rd respondent agreed to purchase the land and building for a sum of Rs. 81,00,000. 00. It is seen from Annexure-B issued by the 1st respondent that the machinery was handed over to the 2nd respondent in May, 1991. The sale in favour of the 3rd respondent was completed by acceptance of the their offer on 7-2-1992 (vide recital in Annexure-D agreement ). The petitioner has chosen to impugn these proceedings by filing the above writ petition on 24-11-1992. ( 2 ) IN this writ petition several contentions have been urged by the petitioner. To begin with, the petitioner details that he has spent considerable amount in improving the land and putting up the building for the need of the industry. The petitioner averred that the factory shed put up measures 169. 5 squares (1695 sq. metres) and the office premises measure 630 square metres (63 squares ). A detailed description is given by him of all the improvements effected in the property. He statea that the value of the building is Rs. 1. 10 crores. He further alleges that he has purchased the machineries and its value is Rs. 49. 44 lakhs; according to him its value would be Rs. 63 lakhs as on the date of sale. He then claims that the value of the assets taken over by the 1st respondent is rs. 1. 73 crores. 1. 10 crores. He further alleges that he has purchased the machineries and its value is Rs. 49. 44 lakhs; according to him its value would be Rs. 63 lakhs as on the date of sale. He then claims that the value of the assets taken over by the 1st respondent is rs. 1. 73 crores. ( 3 ) THE petitioner alleges that the assets have been sold for a paltry sum and the sale was without making due publication and was a secret affairs. It is alleged that only by Annexure-B, dated 10-6-1992 the petitioner became aware of the sale. He states that the machineries were sold to the 2nd respondent at a throw away price and no option was given to the petitioner to pay the amount on deferred payment basis as has been permitted to be done by the 3rd respondent. The paper publication, it is alleged, is defective as details of the property being sold is not given and it did not state whether the sale will be in lots or in entirety. The sale notice did not also give the valuation of the assets nor the upset price. The petitioner in essence challenges the sale and seeks the following relief:" (a) quash the sale of the machineries morefully described in the schedule I annexed to this writ petition, made by the first respondent in favour of the second respondent as mentioned in Annexure-B; (b) to direct the 1st respondent not to give effect to the agreement of sale entered by the first respondent with the third respondent as per Annexure-D in respect of the property described in the schedule II in the interest of justice and equity; (c) to direct restoration of Schedules I and II properties to the petitioner". Schedule I lists the moveables and Schedule II lists the immovable properties. ( 4 ) DETAILED statement of objections have been filed by respondents 1 and 3. The 2nd respondent has not entered appearance and contested the case. ( 5 ) THE 1st respondent contends that initially three loans aggregated to Rs. 48. 20 lakhs was advanced to the petitioner vide letter dated 6-10-1988 and as security the petitioner hypothecated and mortgaged the properties; subsequently a further loan for Rs. 8. 15 lakhs, the fifth loan for Rs. 1. 85 lakhs and the sixth loan for Rs. 1. ( 5 ) THE 1st respondent contends that initially three loans aggregated to Rs. 48. 20 lakhs was advanced to the petitioner vide letter dated 6-10-1988 and as security the petitioner hypothecated and mortgaged the properties; subsequently a further loan for Rs. 8. 15 lakhs, the fifth loan for Rs. 1. 85 lakhs and the sixth loan for Rs. 1. 15 lakhs were advanced and the petitioner also executed security documents as also deeds of guarantee. It is alleged that the petitioner committed persistent default and a show-cause notice dated 28-6-1991 was issued to the petitioner intimating the proposal to initiate action under Section 29 of the S. F. C. Act and on failure the unit was taken over on 1-8-1991. It is alleged that sale advertisement was made in the dailies, the Deccan Herald and the economic Times published at various centres namely Bombay, Bangalore, calcutta, Delhi and Ahmedabad. Offers were received from six persons and after negotiations which were held on 22-1-1992 machineries were sold to the 2nd respondent (for Rs. 25 lakhs) while the immoveables to the 3rd respondent (for Rs. 81 lakhs ). Annexure-D agreement dated 27-2-1992 was executed on 27-2-1992 between the 1st and 3rd respondents. The petitioner thereafter on 6-4-1992 requested the 1st respondent to furnish the details of the sale. By Annexure-R2 the 1st respondent furnished the details. As per Annexure-R3 dated 25-6-1992 the petitioner wanted to know as to when the surplus would be paid over to them. The request was repeated as per Annexure-R4, dated 24-7-1992. By Annexure-R5 dated 31-7-1992 the 1st respondent informed the petitioner that the balance payable after receiving Rs. 81 lakhs would be rs. 16,28,071. 60. By Annexure-R6, dated 5-8-1992 the 1st respondent intimated as per revised statement as on 11-5-1992 that the amount due to the petitioner would be Rs. 18,59,087. 60. Later by Annexure-R7 dated 20-8-1992, the petitioner was informed that the mode of repayment will be let known to the petitioner only after the full payment of the balance by the 3rd respondent. By Annexure-R9, dated 9-9-1992, the petitioner requested the 1st respondent to settle the balance without any delay. Similar letter was addressed to the Chairman of the 1st respondent as well by the petitioner (Annexure-R10, dated 17-8-1992 ). By Annexure-R9, dated 9-9-1992, the petitioner requested the 1st respondent to settle the balance without any delay. Similar letter was addressed to the Chairman of the 1st respondent as well by the petitioner (Annexure-R10, dated 17-8-1992 ). Annexure-R11 was sent by Sri Kagodu Thimmappa, M. L. A. , on behalf of the petitioner requesting the 1st respondent to settle the account of the petitioner. Relying on these the 1st respondent contends that the petitioner acquiesced to the sale. The 1st respondent also denies the allegation that the sale was held in a secret manner that in fact a valuation report had been obtained on 16-1-1992, before the negotiation meetings were held with the bidder. The plant and building were valued at Rs. 58. 43 lakhs and the machineries were valued at Rs. 29. 52 lakhs in the valuation statement. As such, it is averred that the claims of the petitioner regarding the value of the property is highly exaggerated. The 1st respondent thus justified the sale and seeks dismissal of the writ petition. ( 6 ) IN the statement of objection filed by the 3rd respondent while reaffirming the averments made by the 1st respondent, the 3rd respondent further points out that there has been inordinate delay in filing the writ petition and that the petitioner is guilty of laches. The 3rd respondent alleges that they responded to the advertisement and that this offer was accepted on 7-2-1992. They state that they executed a formal agreement of sale on 27-2-1992, that Rs, 3,50,000/- was paid earlier to that and that possession was given to them on 11-5-1992. They further state that before taking possession, a part payment of Rs. 14,75,000/- was made by them. Late by 24-11-1992, a further sum of Rs. 24,35,002/- was paid and again by 20-6-1993 a further sum of Rs. 35,76,789/- was paid by the 3rd respondent. It is further alleged that after taking possession of the premises, the 3rd respondent spent Rs. 10,78,196/- to remodel and reconstructed the building for their use. It is alleged that the petitioner is guilty of laches and delay in approaching the Court. The petitioner is aware of the sale and the investments made by the 3rd respondent and he has sought to set aside the sale after being aware of the same. 10,78,196/- to remodel and reconstructed the building for their use. It is alleged that the petitioner is guilty of laches and delay in approaching the Court. The petitioner is aware of the sale and the investments made by the 3rd respondent and he has sought to set aside the sale after being aware of the same. It is also alleged that in view of the letter written by the petitioner on 25-6-1992, 9-9-1992 and 17-8-1992 clearly the petitioner has acquiesced to the sale. It is alleged that the petitioner being a defaulter cannot ask this Court to prevent the 1st respondent from recovering the money due to it. It is alleged that, there are no illegalities in the sale, that there was due publicity of the proposed sale, that the sale was completed only after negotiation and that it is not necessary to mention the value of the assets in the sale notice. The 3rd respondent prays that the writ petition should be dismissed on the sole ground of delay. ( 7 ) I have heard at length Mr. Surana, learned Counsel for the petitioner, mr. N. B. Bhat, learned Counsel for the 1st respondent and the learned Counsel for the 3rd respondent. ( 8 ) IT cannot be disputed and it is not disputed as well, that the petitioner borrowed large amount of money from the 1st respondent hypothecating/mortgaging the properties scheduled as Schedule I and schedule II in the writ petition. The default committed by the petitioner is also not in dispute. This Court cannot deny the exercise of its right by the 1st respondent on the basis of the mortgage deed/hypothecation deed and under Section 29 of the State Financial Corporations Act, 1951. The 1st respondent had issued prior notice to the petitioner on 28-6-1991, intimating its intention to invoke Section 29 of the S. F. C. Act. It cannot thereafter, be alleged that there has been any violation of principles of natural justice. Besides, if the requirement of the terms of the contract are adhered to by the contracting party one cannot invoke the plea of violation of principles of natural justice. The petitioner did have ample opportunity to avoid the further consequence arising out of the notice issued on 28-6-1991; that it was not done, is also not in dispute. Consequently, the 1st respondent was constrained to assume possession on 1-8-1991. The petitioner did have ample opportunity to avoid the further consequence arising out of the notice issued on 28-6-1991; that it was not done, is also not in dispute. Consequently, the 1st respondent was constrained to assume possession on 1-8-1991. It cannot be claimed that, thereafter the 1st respondent ought to have retained the possession of the property till the petitioner is willing to discharge the debts and run the factory since then, on behalf of the petitioner. In such a situation the other alternative left to the 1st respondent was to sell the property. It is seen from the statement of objection of the 1st respondent that the advertisement was effected intimating the proposal to sell in Deccan Herald and in the Economic times. The advertisement appeared at the issues at Ahmedabad, Bombay, bangalore, Calcutta and Delhi. It is seen that there were queries. The intending purchasers were permitted to inspect as well. ( 9 ) THERE is no merit in contending that more details of the items being sold were not given. The prospective purchasers are not some one who would purchase the goods merely on the basis of advertisement. They would necessarily ascertain details before making any quotation. They were allowed to inspect the premises on 22-11-1992. Secondly, there cannot be many bidders for such items unless they need the use of the same. The class of purchasers of such items would be restricted and only the genuine purchaser who have use of such premises would alone bid. ( 10 ) THE sale, therefore has to be held, to have taken place after due publicity. It is also stated that an internal assessment was made of the value of the land and Building as also the machinery. As per that assessment, the value of the land and building was assessed at Rs. 58. 43 lakhs and that of the machinery at Rs. 29. 52 lakhs. We should remember that the land was held by the petitioner under a lease cum hire arrangement from KIADB and he had not acquired complete title over the same. There are no details available disclosing the outstanding arrears. As against these valuations the price offered by the 3rd respondent for the land is Rs. 81 lakhs and the machineries the 2nd respondent offered Rs. 25 lakhs. There are no details available disclosing the outstanding arrears. As against these valuations the price offered by the 3rd respondent for the land is Rs. 81 lakhs and the machineries the 2nd respondent offered Rs. 25 lakhs. As such, factually, it cannot be said that the properties were sold for a throw away price as alleged by the petitioner. As the sale was held after due publication and the price fetched do compare favourably with market price, it cannot be held to have been vitiated in any manner. Besides merely because the price fetched was not to the expectation of the petitioner, without anything more, it cannot be held that the sale is vitiated or suffers from material irregularity or fraud. The petitioner has to place more concrete material to hold that such a sale suffers from irregularity. ( 11 ) THE question whether such sales are illegal and suffers from material irregularity may be decided adopting the consideration that should prevail with the Civil Court while setting aside a sale, held in execution of a decree. Adoption of those guidelines would be in consonances with the principles of justice, equity and good conscience. They have been tested by judicial consideration for decades and as such could be declared as equitable principles while dealing with similar sales, since there are no other guidelines available under the State Financial corporation Act, in this behalf. Under Civil Procedure Code it is clearly provided that if any of the ground pleaded for setting aside the sale were available to be pleaded by the applicant before the sale, the same by itself would not furnish a cause of action for setting aside the sale. Here, the defects in the notice Annexure-A could have been pointed out by the petitioner long before the sale. He did not do so. Therefore he could not be allowed to raise this objection. Likewise, mere fetching of low price is also not a ground for setting aside the sale. It should be specifically alleged and established that there was fraud practised in this behalf. Mere quoting of inflated price and alleging that, what has been fetched at the sale is a low price, is only an apology for such a contention. The price is described to be low on the unilateral assessment made by the petitioner. Without any other independent and unbiased valuation such a plea cannot be accepted. Mere quoting of inflated price and alleging that, what has been fetched at the sale is a low price, is only an apology for such a contention. The price is described to be low on the unilateral assessment made by the petitioner. Without any other independent and unbiased valuation such a plea cannot be accepted. Therefore it cannot be said that there is any proof of low valuation as well. ( 12 ) BUT, be that as it may, it has to be said that the 1st respondent has failed to follow the guidelines laid down by the Supreme Court, in that matter of sale being effected by the Statutory Corporation like the 1st respondent. In Mahesh Chandra v Regional Manager, Uttar Pradesh state Financial Corporation , the Supreme Court issued certain directions to be adopted while affecting such sales. The summary of the relevant directions reads:" (i) The sale of unit should always be made by public auction; (ii) Valuation of a unit for purposes of determining adequacy of offer or for determining if bid offered was adequate should always be intimated to the unit holder to enable him to file objections if any as he is vitally interested in getting the maximum price; (iii) If tenders are invited then the highest price on which tender is to be accepted must be intimated to the unit holder; (iv) (a) If unit holder is willing to offer the sale price, as the tenderer, then he should be offered same facility and unit should be transferred to him. And the arrears remaining thereafter should be rescheduled to be recovered in instalments with interest after the payment of last instalment fixed under the agreement entered into as a result of the tendered amount; (b) If he brings third parties with higher offer, it would be tested and may be accepted". It cannot be said that the 1st respondent has followed the directions (ii) (iii) and (iv) referred to above. As regards the first condition is concerned the Supreme Court in Chairman and Managing Director, SIPCOT, Madras and Others v Contromix Private Limited , stated as hereunder it this behalf. "in order to ensure that such sale by calling tenders does not escape attention of an intending participant, it is essential that every endeavour should be made to give wide publicity so as to get the maximum price. "in order to ensure that such sale by calling tenders does not escape attention of an intending participant, it is essential that every endeavour should be made to give wide publicity so as to get the maximum price. These considerations which govern the sale of public property have been held to be applicable to a sale of property by the State Financial Corporations under Section 29 of the act in Mahesh Chandra's case, supra. In that case this Court has held that sale by public auction is universally recognised to be the best and most fair method and is beyond reproach and, if it is not possible to adopt the said method, sale may be held by inviting tenders, but in that event every endeavour should be made to give wide publicity to get the maximum price. The said decision cannot, therefore, be construed as laying down that a sale by tender is impermissible and invalid. The learned Judges, in that case, have referred to the decisions of this Court in Sachidanand Pandey v state of West Bengal and Haji T. M. Hassan Rawther v Kerala financial Corporation, wherein it has been held that one of the modes of securing the public interest, when it is considered necessary to dispose of a property, is to sell the property by public auction or by inviting tenders. It cannot, therefore, be said that a sale by inviting tenders is ipso facto invalid. The validity of such a sale will have to be considered in the light of the facts and circumstances of the particular case". Now in not following the other conditions does it provide any circumstance in this case to interfere with the sale held. ( 13 ) HERE, it is admitted that the advertisement was made in november, 1991. It is not stated as to what steps were taken by the petitioner to prevent the sale. The petitioner cannot say that they were unaware of the goings, as the bidders were to inspect the factory on 22-11-1991. There was negotiation held on 28-1-1992. The sale was completed that day and the offer was accepted on 7-2-1992. Possession was handed over in May 1992, of the machineries and the land. The writ petition is filed only on 24-11-1992. On this ground alone prima facie the sale is not liable to be set aside. There was negotiation held on 28-1-1992. The sale was completed that day and the offer was accepted on 7-2-1992. Possession was handed over in May 1992, of the machineries and the land. The writ petition is filed only on 24-11-1992. On this ground alone prima facie the sale is not liable to be set aside. By the time the petitioner moved the Court, third party interests have intervened. Besides, there is yet another strong circumstance as to why the sale held should not be interfered with. It is seen from the letters exchanged by the petitioner and the 1st respondent subsequent to the sale clearly shows that the petitioner acquiesced to the sale and that he only wanted to be paid the excess money realised by the 1st respondent. The following sentences from Annexures-R3, R9, r 10 and R11 clearly demonstrate that the petitioner had acquiesced to the sale and he only wanted the excess amount realised to be refunded to him. In Annexure-R3 they state as follows:"in order to enable us to reconcile our accounts and make our long-term plans, we request you to: (a) furnish to us a detailed statement of accounts indicating the amounts debited and credited since inception till date; (b) indicate to us the likely date and mode of payment to us of the surplus amounts realised through the sale of our assets in excess of the sums due and payable by us. (c) furnish to us copies of the documents of sale, executed in favour of the two buyers named in your letters, to enable us to be aware of the terms and conditions of the same". In Annexure-R9 the following statement is made. "we refer your letter No. KSFC/d-4717 dated 20-8-1992. In your above letter (in para (2) you say the likely date and mode of payment cannot be forecasted at this point. . . . This we are unable to understand. Please clarify the full meaning of deferred payment. Further it is nowhere mentioned in the agreement executed by M/s. Apeego Corporation, that the sale of assets are on deferred payment, while going through the clauses of Agreement we find that the balance amount of the sale price payable by M/s. Apeego Corporation is in instalments basis and all the terms and conditions applicable for sanction of Term Loan shall also be applicable to the loanee firm. Hence we clearly inform you that the balance amount payable to us cannot be treated as security for the said loan amount of M/s. Apeego Corporation". In Annexure-R 10 they state thus:"we have requested the concerned to pay the excess amount payable to us, to enable us to pay/settle the dues of our suppliers. But so far no action has been taken in this respect. They are pressing us to settle the dues and some of them have already filed suit against us for recovery. Our reputation further damaged by these legal actions". Annexure-R11 written in this behalf by Sri Kagodu Thimmappa, M. L. A. states thus:"please, find enclosed representation from the Managing Director, saicoir Consumer Products Private Limited, Seshadripuram, bangalore-20. It is represented that their unit was suffering due to financial problems and the assets of the company was sold to different parties by the Karnataka State Financial Corporation for higher realisation than the existing dues of the firm. Further, it is stated that this firm is eligible for the payment of surplus balance after adjusting the dues payable to Corporation to an extent of Rs. 18,59,087/- as per the letter of Corporation No. KSFC/r/kgo/144, which is enclosed. Therefore, I request you to please release the surplus balance of Rs. 18,59,087 to the firm". Assuming for argument sake that the petitioner became aware of the sale only when he wrote Annexure-R1 on 6-4-1992 but when he received annexure-R2, dated 10-6-1992 he was put to notice of the completed sale. And later by the time he moved this Court, the machinery had already been removed and the 3rd respondent has invested large sums of money. He passively allowed these activities to go on. These circumstances, therefore clearly establishes that the petitioner, after they became aware of the sale acquiesced to the sale and was merely interested in the refund of the excess amount realised by the 1st respondent. This conduct, should deny him the relief of setting aside the sale. ( 14 ) BUT, never the less, the matter cannot be closed at this stage. The petitioner no doubt owed money to the mortgagee, the 1st respondent. In exercise of the right of the mortgagee, 1st respondent entered in to the property on 1-8-1991 and assumed possession. In enforcing the right of the mortgagee, it sold the property on 7-2-1992 and executed Annexure-D on 27-2-1992. The petitioner no doubt owed money to the mortgagee, the 1st respondent. In exercise of the right of the mortgagee, 1st respondent entered in to the property on 1-8-1991 and assumed possession. In enforcing the right of the mortgagee, it sold the property on 7-2-1992 and executed Annexure-D on 27-2-1992. After the sale, there was excess amount realised by the 1st respondent. The sale consideration realised by the sale of land and the building on 7-2-1992 is Rs. 81,00,000/ -. Therefore, when the mortgagor has effected private sale, the debt due to him stands discharged. He would therefore be entitled to claim the mortgage money with interest till the date of sale. In this case, a statement has been filed along with a memo dated 24-7-1996. Therein it is stated as hereunder:"b. 1. Liability to KSFC is furnished below before giving sale effect of Rs. 25. 00 lakhs received on 31-3-1992. This calculation is per se wrong. The interest has to be reckoned as on the date of sale and not as on 31-3-1992. This is a patent illegality committed by the 1st respondent. If that be so, the outstanding due from the petitioner would not be as indicated above. ( 15 ) THE mortgagee has no doubt right to effect private sale to realise the mortgage debt. But, he has no right to effect excess sale to recover sums that is not due on the date of sale in exercise of his right to recover the debt. It is stated in the statement of objection that the sale was settled at the negotiation held on 22-1-1992. In that event the debt due from the petitioner ought to have been settled as on that date. It is averred that the debt due on 31-3-1992 was Rs. 88,41,499. 00. If that be so, the debt due as on 22-1-1992, when they negotiated would have been far lesser amount. The 1st respondent has a duty to mitigate, the loss, as such that the petitioner would have suffered. Prima facie, it appears that the sale of the immovable properties for Rs. 81 lakhs, would have discharged the debt due to the 1st respondent as on 22-1-1992. If so, there was no need to sell the machineries. Viewed in that manner it would have been possible for the 1st respondent to decide whether there was any need to sell the machineries. 81 lakhs, would have discharged the debt due to the 1st respondent as on 22-1-1992. If so, there was no need to sell the machineries. Viewed in that manner it would have been possible for the 1st respondent to decide whether there was any need to sell the machineries. The following passage from Mulla on the Transfer of Property Act, VII Edition brings out the duties of a mortgagee vis-a-vis the mortgagor and the property:"the mortgagee was described by Lord Eldon as a trustee for the mortgagor of the power of sale (p); but this is not correct unless it refers to the disposal of the surplus sale proceeds. In Kennedy v De trafford (q) Lindley, L. J. , said "a mortgagee is not a trustee of a power of sale for the mortgagor at all; his right is to look after himself first. But he is not at liberty to look after his own interests alone, and it is not right, or proper or legal for him either fraudulently, or willfully, or recklessly, to sacrifice the property of the mortgagor; that is all". In the House of Lords, the decision of lindley, L. J. , was affirmed and Lord Herschell, after pointing out that all that the mortgagee is required to do is to exercise the power in good faith without intending to deal unfairly by his mortgagor, explained the above observations of Lindley, L. J. , as being covered by the requirement of good faith. He does not act as the agent of the mortgagor. He exercises his right under a totally superior claim. But a mere contract of sale does not extinguish the right of redemption (r ). So when an agreement to sell is entered into by a mortgagee, such agreement is conditional and is dependent on the mortgagor's right of redemption (s ). The Court will not interfere if he exercises the power bona fide for the purpose of realizing the security and takes reasonable precautions to secure a proper price (t ). The mortgagee may sell by private treaty or by public auction and there is no need to put up the property for sale by public auction first (u ). He need not advertise, if this is not stipulated (v ). The mortgagee may sell by private treaty or by public auction and there is no need to put up the property for sale by public auction first (u ). He need not advertise, if this is not stipulated (v ). He may enter into a conditional contract to sell on the power becoming exercisable and can carry such contract into effect provided the price is then proper (w ). But if the power is to sell by public auction, a sale by private treaty is invalid (x ). If the mortgagee sells by public auction, he must give reasonable publicity to the sale and must not impose depreciatory conditions that are likely to deter intending purchasers (y ). A sale will not be set aside on the ground of undervalue only (z), unless the undervalue is itself evidence of fraud (a ). If the undervalue is due to the negligence on the part of the mortgagee, he is liable for the deficit on taking accounts (b ). A promise by a mortgagee, unsupported by consideration, not to exercise his power of sale for a few days does not fall within Section 63 of the Indian Contract Act, and is therefore not a binding waiver of the right (c)". On an overall view of the matter, it cannot be said that the mortgagee has acted bona fide while exercising his right with respect to the mortgaged property. ( 16 ) WHEN the sale thus became excessive, the mortgagor is entitled to be restituted. When Rs. 81 lakhs was offered by the 3rd respondent for the land and building on 22-1-1992 the 1st respondent should have deferred the sale of machineries. If the outstanding as on 22-1-1992 was less than Rs. 81,00,000/- there was no need for the mortgagee to sell the machineries at all. In execution sale by the Executing Civil Court, the supreme Court has repeatedly held desirability of selling just equivalent property to realise the debt (vide (1) Takkaseela Pedda Subba Reddy v pujari Padmavathamma, (2) Ambati Narasayya v M. Subba Rao and another ). There is no reason why the 1st respondent need not follow the principles laid down therein while it exercises the right of sale. There is no reason why the 1st respondent need not follow the principles laid down therein while it exercises the right of sale. Such, restriction should be placed on the right of the 1st respondent, as otherwise, it may lead to a situation where the 1st respondent may even sell the entire unit for any paltry sum that may be found due. ( 17 ) AS the mortgagee has sold the machineries and it being an excessive sale, the mortgagor is entitled to be restituted. But, due to the laches of the petitioner in approaching the Court, he can be awarded only the value thereof as estimated by the 1st respondent. This he is entitled to. He will also be entitled to receive the same rate of interest of 18. 5% from the date of sale which the 1st respondent claims from its creditors (vide the statement of account filed by the 1st respondent along with the memo dated 24-7-1996 ). ( 18 ) NOW, the stand of the 1st respondent that the petitioner should wait for the payment of the excess amount realised till the 3rd respondent completely discharges the sale price is thoroughly unreasonable. In the first place, the petitioner is now claiming the value of the machineries which may be described as the damages suffered as a result of an excessive sale. That apart, if the 1st respondent grants adjustment to its purchaser, in the matter of payment of sale price that is as a result of agreement between the 1st respondent and its buyer. The 1st respondent as a mortgagee has effected a private sale of the mortgaged property to realise the debt due to it. If at the said sale, the debt is satisfied, then relative excess is found, should automatically belong to the petitioner. The 1st respondent cannot retain the same, more than the time required to make the repayment. The mortgagee holds the surplus amount as a trustee of the owner of the property. Unless the owner agrees, the mortgagee cannot unilaterally claim the right to defer repayment. In these circumstances, the petitioner is entitled to the excess amount realised by the 1st respondent with interest as indicated above forthwith. ( 19 ) HAVING now thus found that the petitioner is entitled for the value of the machineries, the 1st respondent is liable to restitute the value thereof to the petitioner. In these circumstances, the petitioner is entitled to the excess amount realised by the 1st respondent with interest as indicated above forthwith. ( 19 ) HAVING now thus found that the petitioner is entitled for the value of the machineries, the 1st respondent is liable to restitute the value thereof to the petitioner. In this case, there is no clear evidence on the side of the petitioner to show the value of the machineries, but the 1st respondent states that it had valued the same at Rs. 29. 52 lakhs. This can be adopted as the price of the machineries. The petitioner is entitled to the same with 18. 5% interest. It is seen from Annexure-D that the offer of the 3rd respondent was accepted only on 12-2-1997. If so, the interest may run from that date, as the sale is deemed to have completed only then. The petitioner is no way responsible for the delay in accepting the offer since from 22-1-1992. The 1st respondent, with notice to the petitioner, should calculates the debt due from the petitioner as on 22-1-1992. After adjusting the consideration received from the sale of land and building scheduled as Schedule II to the writ petition, if there is still any balance payable, the same will be deducted from the amount due to the petitioner. The 1st respondent may claim any interest from the petitioner, on that amount, at 18. 5% from 22-1-1992. ( 20 ) THE petitioner has not specifically made a prayer with respect to the relief that is being granted. But, he has prayed for invalidating the sale. When, it is disclosed to the Court, that the sale effected is per se illegal, this Court should not decline to mould the relief to be granted on the technical ground that the prayer as such has not been made. And when the Court is appraised of the fact that a public body like the 1st respondent has exceeded its statutory right while effecting the sale, and has acted disregarding all principles of law, this Court should not hesitate to restitute the party by awarding appropriate monetary compensation. The relief to invalidate the sale will encompass the relief being granted. ( 21 ) IN the result, the writ petition is disposed of as above. No cost. --- *** --- .