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2016 DIGILAW 2443 (PNJ)

Sri Vishnu Steels v. Union Bank of India

2016-09-06

AJAY KUMAR MITTAL, RAMENDRA JAIN

body2016
JUDGMENT : Ajay Kumar Mittal, J. 1. This order shall dispose of CWP Nos.12496, 10471 and 10866 of 2016 as according to the learned counsel for the parties, the questions of law involved in all these petitions are identical. However, the facts are being extracted from CWP No.12496 of 2016. 2. In CWP No.12496 of 2016, the petitioner prays for quashing the order dated 1.6.2016, Annexure P.7 passed by respondent No.2 and sale notice dated 6.5.2016, Annexure P.5 passed by respondent No.1 being in violation to the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short, “the SARFAESI Act”) and the Rules 2002 framed therein. Further prayer has been made for a direction to respondent No.2 to adjudicate IA No.817 of 2016 filed by the petitioner in SA No.389 of 2013. Direction has also been sought for restraining respondent No.1 Bank from selling hypothecated/mortgaged properties of the petitioner and in case if sold or any third party rights are created, restore the property back to the petitioner. 3. A few facts relevant for the decision of the controversy involved as narrated in the petition may be noticed. On 21.03.2013, the petitioner availed cash credit loan from respondent No.1 to the extent of Rs.9 crores. In order to secure the same, the factory at Amloh Road, Mandi Gobindgarh was mortgaged with the Bank. The petitioner had never hypothecated the machinery with the respondent Bank. According to the petitioner, it is only in the case of term loan that machinery can be hypothecated in favour of the Bank. The Bank relied upon hypothecation deed from where it sought support from certain hand written insertions to claim hypothecation of machinery. On 25.7.2013, the petitioner through its partner Shri Rohit Gupta received a telephonic call from Shri Lakhbir Singh, the then AGM of the Bank who asked the petitioner to visit the branch in connection with renewal of adhoc limit of Rs.1 crore. Shri Lakhbir Singh demanded an amount of Rs.25 lacs as extraneous consideration for obtaining requisite orders for renewal of the adhoc limit and further assured to grant concessional rate of interest. The petitioner replied that it was not possible for him to make such a huge payment as he was undergoing refurbishing/reconditioning and up gradation of his machinery for which he had to spend a lot of money. The petitioner replied that it was not possible for him to make such a huge payment as he was undergoing refurbishing/reconditioning and up gradation of his machinery for which he had to spend a lot of money. On this Shri Lakhbir Singh threatened that in case he did not deposit atleast 10% of the demanded amount, he will close down the unit. Since the petitioner could not pay the demanded amount, he got up from the bank and went off stating that he was unable to pay. On the same day i.e. 25.7.2013, the petitioner had to rush to Chandigarh for some emergency where he met with an accident due to which his phone was not working. On 26.7.2013 at about 6 AM, the petitioner received one phone call from one of the staff member that Shri Lakhbir Singh alongwith Shri Paramjit Singh, Manager, loans had forcibly taken physical possession of the unit without any notice. On 6.8.2013, the Bank for the first time issued letter dated 27.7.2013, at the behest of Shri Lakhbir Singh intimating that the account had become NPA w.e.f 27.7.2013 on the ground that the petitioner had taken away the machinery which was alleged to be mortgaged with the Bank. The petitioner had initially approached this court through CWP No.16982 of 2013 for a direction to the respondent Bank to restore the possession as the Bank had illegally taken possession without even issuing demand notice under section 13(2) of the SARFAESI Act. Notice was issued in the said writ petition. The Bank in the reply stated that it had not taken physical possession and in case if any lock was fixed on the premises, the petitioner was free to remove the same. Aggrieved by the order, the petitioner filed SA No.389 of 2013 before respondent No.2 challenging action of the bank initiated under the provisions of the Act and also the demand notice under section 13(2) of the SARFAESI Act as well as possession notice under section 13(4) of the SARFAESI Act dated 17.8.2013 and 21.11.2013, Annexures P.2 and P.3 respectively. Aggrieved by the order, the petitioner filed SA No.389 of 2013 before respondent No.2 challenging action of the bank initiated under the provisions of the Act and also the demand notice under section 13(2) of the SARFAESI Act as well as possession notice under section 13(4) of the SARFAESI Act dated 17.8.2013 and 21.11.2013, Annexures P.2 and P.3 respectively. During the pendency of the SA, the Bank also obtained order under section 14 of the SARFAESI Act from the District Magistrate in violation of amended section 14 of the SARFAESI Act which was amended w.e.f 15.1.2013 as without filing the mandatory nine point affidavit, the District Magistrate, Fatehgarh Sahib passed the orders for physical possession as no such order could be passed without recording satisfaction with regard to factual correctness of the nine point affidavit which was mandatory to be filed by the Bank in view of the amended Section 14 of the SARFAESI Act. In the meantime, the petitioner had filed IA No.318 of 2016 challenging the sale notice dated 12.2.2016 whereby the bank had put the factory, land and building along with machinery to sale which was fixed for 15.3.2016. In reply, the bank placed on record copy of the alleged inventory of the entire set of machinery which was lying in the factory premises. Thereafter, the Bank issued sale notice dated 6.5.2016 (Annexure P.5) whereby only the machinery had been put to sale. Even publication was effected in the Indian Express where also only plant and machinery had been put to sale for 14.06.2016. According to the petitioner, no description of plant and machinery along with identification marks, model number, make etc. had been mentioned in the sale notice, to describe as to what kind of machinery with which description had been put to sale. Thereafter, the petitioner filed another IA No.817 of 2016 in SA No.389 of 2013 seeking setting aside and stay of operation of sale notice dated 6.5.2016. had been mentioned in the sale notice, to describe as to what kind of machinery with which description had been put to sale. Thereafter, the petitioner filed another IA No.817 of 2016 in SA No.389 of 2013 seeking setting aside and stay of operation of sale notice dated 6.5.2016. The petitioner raised various grounds including that the sale was prima facie violative of Rule 6 of the Security Interest (Enforcement) Rules, 2002 according to which in the sale notice, it was mandatory for the Bank to give description of movable property to be sold along with identification marks or numbers, if any on them and further the Bank was also required to mention in the sale notice other material which may be necessary for a purchaser to know and judge the nature and value of the movable secured asset. The aforesaid application came up for hearing before the Tribunal on 1.6.2016 though the main case was fixed for 25.7.2016 on which date, respondent No.2 dismissed the application on 01.06.2016 (Annexure P.7) on the ground that in view of judgment of the Madras High Court in B. Kamal vs. M/s Ramasamy and Co. and others, CRP No.4134 of 2014 and MP No.1 of 2014 decided on 5.10.2015, the challenge to the sale could be effected only by way of separate and fresh SA and not in a pending SA by way of an application. On the same issue, three writ petitions are already pending before this court wherein similar impugned orders passed by DRT II Chandigarh have been challenged whereby it has refused to adjudicate on the validity of the sale notice in pending SA relying upon the judgment of the Madras High Court in B. Kamal’s case (supra). This court vide order dated 25.05.2016 in CWP No. 10471 of 2016 while issuing notice of motion has granted interim relief restraining the Bank from confirming the sale. According to the petitioner, the judgment of the Madras High Court is not applicable to the present case. Hence the instant petitions by the petitioners. 4. A written statement has been filed on behalf of respondent No.1 Bank inter alia stating that the petitioner has an alternative efficacious remedy against the impugned order. The factum of hypothecation was duly incorporated in the documents. Hence the instant petitions by the petitioners. 4. A written statement has been filed on behalf of respondent No.1 Bank inter alia stating that the petitioner has an alternative efficacious remedy against the impugned order. The factum of hypothecation was duly incorporated in the documents. After the account had been declared NPA like other defaulters, the petitioner was trying to find a mode to derail the process of recovery for which false allegations had been levelled by him which were being defended in an utmost legal manner. It has been further stated that prior to taking the physical possession of the property, IA No.962 of 2013 was considered and dismissed by the Debts Recovery Tribunal. Thereafter, the actual physical possession had been taken over by the respondent Bank. Further, Section 18 of the SARFAESI Act provides for appeal against any order passed by the Tribunal. On these premises, prayer for dismissal of the petition has been made. 5. We have heard learned counsel for the parties. 6. The cardinal issue that arises in these writ petitions is whether in the eventuality of issuance of any subsequent notice to the borrower during the pendency of SA, the borrower is required to file fresh S.A. every time or can invoke the jurisdiction of the DRT by filing I.A. or by amending the pending petition before the Tribunal. 7. Admittedly, the petitioner had taken cash credit loan from the respondent Bank to the extent of Rs.9 crores. It mortgaged its factory with the Bank. The petitioner was, however, unable to pay the extraneous amount demanded by the officer of the Bank. Consequently, the Bank without any notice forcibly took physical possession of the unit. Initially, the petitioner had filed CWP No.16982 of 2013 in this court for a direction to the respondent Bank to restore the possession as the Bank had illegally taken possession without notice under section 13(2) of the SARFAESI Act. This court vide order dated 9.9.2013, Annexure P.1 directed that in case if any lock was affixed on the premises, the petitioner was free to remove the same. The petitioner filed SA No.389 of 2013 before respondent No.2 challenging action of the bank under the provisions of the SARFAESI Act. During the pendency of the SA, the Bank also obtained order under Section 14 of the SARFAESI Act from the District Magistrate for physical possession of the asset. The petitioner filed SA No.389 of 2013 before respondent No.2 challenging action of the bank under the provisions of the SARFAESI Act. During the pendency of the SA, the Bank also obtained order under Section 14 of the SARFAESI Act from the District Magistrate for physical possession of the asset. During the pendency of the SA, the petitioner filed IA No.318 of 2016 challenging the sale notice dated 12.2.2016. Again the Bank issued sale notice dated 6.5.2016. The petitioner filed another IA No.817 of 2016 in SA No.389 of 2013 for setting aside and staying operation of sale notice dated 06.05.2016. Respondent No.2 dismissed the application vide order dated 1.6.2016 on the ground that in view of the judgment of the Madras High Court in B. Kamal’s case (supra), the challenge to the sale could be effected only by way of separate and fresh SA and not by way of an application in a pending SA. 8. Before proceeding to examine the core issue raised in the petition as observed hereinbefore, it would be essential to notice that the question relating to jurisdiction of the Tribunal to deal with post Section 13(4) situation has been set at rest by the decision of the Apex Court in Authorised Officer, Indian Overseas Bank vs. Ashok Saw Mill, (2009) 8 SCC 366 . The Supreme Court in Ashok Saw Mill’s case (supra) answered the issue whether the Tribunal would have jurisdiction to consider and adjudicate with regard to post Section 13(4) events or whether its scope in terms of Section 17 of the SARFAESI Act would confine to the stage contemplated under section 13(4) of the SARFAESI Act, in the affirmative. It was held that the Tribunal had jurisdiction to interfere with the action taken by the secured creditor even after the stage contemplated under Section 13(4) of the SARFAESI Act as the action of the secured creditor was not only open to scrutiny and could be set aside but it was also open to the Tribunal to restore status quo ante in a given situation. The relevant observations recorded by the Apex Court read thus:- “37. The consequences of the authority vested in the DRT under sub-section (3) of Section 17 necessarily implies that the DRT is entitled to question the action taken by the secured creditor and the transactions entered into by virtue of Section 13(4) of the Act. The relevant observations recorded by the Apex Court read thus:- “37. The consequences of the authority vested in the DRT under sub-section (3) of Section 17 necessarily implies that the DRT is entitled to question the action taken by the secured creditor and the transactions entered into by virtue of Section 13(4) of the Act. The legislature by including sub-section (3) in Section 17 has gone to the extent of vesting the DRT with authority to even set aside a transaction including sale and to restore possession to the borrower in appropriate cases. Resultantly, the submissions advanced by Mr. Gopalan and Mr. Altaf Ahmed that the DRT has no jurisdiction to deal with a post-Section 13(4) situation, cannot be accepted. 38. xx xxx xxx . 39. We are unable to agree with or accept the submissions made on behalf of the appellants that the DRT had no jurisdiction to interfere with the action taken by the secured creditor after the stage contemplated under Section 13(4) of the Act. On the other hand, the law is otherwise and it contemplates that the action taken by a secured creditor in terms of Section 13(4) is open to scrutiny and cannot only be set aside but even the status quo ante can be restored by the DRT”. 9. Following the law laid down by the Apex Court in Ashok Saw Mill’s case (supra), the Bombay High Court in Anandjayant More Vs. Bank of India and others, III 2010 (BC) 378 recorded as under:- “11. Considering the rival submission, the first question is: whether the D.R.T. has jurisdiction to deal with post-Section 13(4) situation. Both the Tribunal as well as Appellate Tribunal have proceeded on the basis that it is not open to the borrower to question the sale of the property which is post-Section 13(4) situation. This issue has now been authoritatively answered by the Apex Court in the recent decision in the case of Authorized Officer, Indian Overseas Bank Vs. Ashok Saw Mill, III (2009) BC 640 (SC)=VI (2009) SLT 10= 2009 (9) SCALE 649 . The main question examined by the Apex Court in this direction was whether the Debts Recovery Tribunal would have jurisdiction to consider and adjudicate with regard to post-Section 13(4) events or whether its scope in terms of Section 17 of the Act would confine to the stage contemplated under Section 13(4)? The main question examined by the Apex Court in this direction was whether the Debts Recovery Tribunal would have jurisdiction to consider and adjudicate with regard to post-Section 13(4) events or whether its scope in terms of Section 17 of the Act would confine to the stage contemplated under Section 13(4)? The Apex Court has answered the said issue in the affirmative. It has held that the consequences of the authority vested in Debts Recovery Tribunal under Sub-Section (3) of Section 17 necessarily implies that the D.R.T. is entitled to question the action taken by the secured creditors and the transactions entered into by virtue of Section 13(4) of the Act. It has expounded that the Legislature by including sub-Section (3) in Section 17 has gone to the extent of vesting the D.R.T. with authority to even set-aside a transaction including sale and to restore possession to the borrower in appropriate cases. It has also noted that the dichotomy in the views expressed by the Bombay High Court and the Madras High Court has in fact been resolved to some extent in the case of Mardia Chemicals (supra) and also by virtue of the amendment effected to Sections 13 and 17 of the principal Act. It has thus, held that the D.R.T. has jurisdiction to interfere with the action taken by the secured creditor even after the stage contemplated under Section 13(4) of the Act, as the action of the secured creditor is not only open to scrutiny and can be set-aside but it is also open to the Tribunal to restore status quo ante in a given situation. 12. In the wake of this decision, the basis on which the Tribunal as well as the Appellate Tribunal proceeded to answer the issue, cannot be countenanced……” 10. To resolve the main lis arising in this petition, inevitably reference is made to Section 22 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (in short, “the 1993 Act”) as applicable at relevant time which prescribes the procedure and powers of the Tribunal and of the Appellate Tribunal. The material part reads as under:- "22. To resolve the main lis arising in this petition, inevitably reference is made to Section 22 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (in short, “the 1993 Act”) as applicable at relevant time which prescribes the procedure and powers of the Tribunal and of the Appellate Tribunal. The material part reads as under:- "22. Procedure and powers of the Tribunal and the Appellate Tribunal- (I) The Tribunal and the Appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules, the Tribunal and the Appellate Tribunal shall have powers to regulate their own procedure including the places at which they shall have their sittings. (2) The Tribunal and the Appellate Tribunal shall have, for the purposes of discharging their functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:- (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavits; (d) issuing commissions for the examination of witnesses or documents; (e) reviewing its decisions; (f) dismissing an application for default or deciding it ex parte; (g) setting aside any order of dismissal of any application for default or any order passed by it ex parte; (h) any other matter which may be prescribed, (3) ........" 11. Section 22 of the 1993 Act empowers the Tribunal and the Appellate Tribunal to follow its own procedure guided by the principles of natural justice and subject to the provisions of this Act and the Rules. Analyzing analogous provisions in different statutes, the Supreme Court after examining them extensively concluded that the Tribunal can travel beyond the Code of Civil Procedure so long as it is adhering to the principles of natural justice. Further, Section 22 of the 1993 Act has to be assigned meaning similar to the powers of the Civil Court while trying a money suit. 12. Further, Section 22 of the 1993 Act has to be assigned meaning similar to the powers of the Civil Court while trying a money suit. 12. The question relating to relevance of subsequent event has been crystallized by the Apex Court in Ram Kumar Barnwal vs. Ram Lakhan (dead), 2007(3) RCR (Civil) 279. The Supreme Court laid down that subsequent events may be one purely of law or founded on facts. In the former case, the Court can take judicial notice of the event after affording an opportunity to explain the right and liabilities of the parties which would be affected by the change in law. In so far as latter case is concerned, by resorting to amendment of pleadings under Order 6 Rule 17 of the CPC, the same may be permitted to be introduced to resolve the real controversy between the parties. The relevant observations therein read thus:- “8. In Pasupuleti Venkateswarlu v. The Motor & General Traders, ( 1975 (1) SCC 770 ) it was observed as follows: "3. Two submissions were advanced by Sri K. S. Ramamurthy to salvage his client's case. He argued that it was illegal for the High Court to have taken cognizance of subsequent events, disastrous as they proved to be. Secondly, he urged that once the High Court held-as it did that the appellate tribunal acted illegally in remitting the whole case to the Rent Controller, it could not go further to dismiss his whole eviction proceedings, a misfortune heavier than would have been, had he not moved the High Court at all. 4. We feel the submissions devoid of substance. First about the jurisdiction and propriety vis-a-vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fair play is violated, with a view to promote substantial justice-subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myraid. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognizance of events and developments (subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. On both occasions the High Court, in revision, correctly took this view. The later recovery of another accommodation by the landlord, during the pendency of the case, has as the High Court twice pointed out, a material bearing on the right to evict in view of the inhibition written into Section 10(3)(iii) itself. We are not disposed to disturb this approach in law or finding of fact. 5. xxxxxxxx . 9. To similar effect is the decision of this Court in Om Prakash Gupta v. Ranbir B. Goyal, ( 2002 (2) SCC 256 ). It was, inter alia, observed in that case as follows: "11. The ordinary rule of civil law is that the rights of the parties stand crystalised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. It was, inter alia, observed in that case as follows: "11. The ordinary rule of civil law is that the rights of the parties stand crystalised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied:(i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; (iii) that such subsequent event is brought to the notice of the Court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. In Pasupuleti Venkateswarlu v. The Motor & General Traders ( 1975 (1) SCC 770 ), this Court held that a fact arising after the lis, coming to the notice of the Court and having a fundamental impact on the right to relief or the manner of moulding it and brought diligently to the notice of the Court cannot be blinked at. The Court may in such cases bend the rules of procedure if no specific provision of law or rule of fair play is violated for it would promote substantial justice provided that there is absence of other disentitling factors or just circumstances. The court speaking through Krishna Iyer, J. affirmed the proposition that court can, so long as the litigation pends, take not of updated facts to promote substantial justice. However, the court cautioned: (i) the event should be one as would stultify or render inept the decretal remedy. (ii) rules of procedure may be bent if no specific provision or fair play is violated and there is no other special circumstance repelling resort to that course in law or justice, (iii) such cognizance of subsequent events and developments should be cautious, and (iv) the rules of fairness to both sides should be scrupulously obeyed. 12. Such subsequent event may be one purely of law or founded on facts. 12. Such subsequent event may be one purely of law or founded on facts. In the former case, the Court may take judicial notice of the event and before acting thereon put the parties on the notice of how the change in law is going to affect the rights and obligations of the parties and modify or mould the course of litigation or the relief so as to bring it in conformity with the law. In the latter case, the party relying on the subsequent event, which consists of facts not beyond pale of controversy either as to their existence or in their impact, is expected to have resort to amendment of pleadings under Order 6 Rule 17 of the CPC. Such subsequent event the Court may permit being introduced into the pleadings by way of amendment as it would be necessary to do so for the purpose of determining real questions in controversy between the parties. In Trojan & Co. v. R.M. N.N. Nagappa Chettiar, ( AIR 1953 SC 235 ) this Court has held that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found; without the amendment of the pleading the Court would not be entitled to modify or alter the relief. In Sri Mahant Govind Rao v. Sita Ram Kesho and Ors., (1898) 25 Indian Appeals 195 (PC), their Lordships observed that, as a rule, relief not founded on the pleadings should not be granted. 13. xxxxxxxxxx . 10. Earlier in Ramesh Kumar v. Kesho Ram, (1992 Supp. (2) SCC 623), it was held as follows: "6. The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court is not precluded from taking a 'cautious cognizance' of the subsequent changes of fact and law to mould the relief. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court is not precluded from taking a 'cautious cognizance' of the subsequent changes of fact and law to mould the relief. In Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri (AIR 1941 FC 5) Chief Justice Sir Maurice Gwyer observed: (AIR p.6): "But with regard to the question whether the court is entitled to take into account legislative changes since the decision under appeal was given, I desire to point out that the rule adopted by the Supreme Court of the United States is the same as that which I think commends itself to all three members of this Court. In Patterson v. State of Alabama, (1934) 294 US 600, Hughes C.J. said: 'We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered. Xxxxxxxxxx” 13. In view of the above, in the absence of any specific prohibition to the rights of the borrower to file an application for amendment due to subsequent event, the borrower who had invoked the jurisdiction of the Tribunal under the SARFAESI Act laying challenge to the recovery proceedings initiated against him would have remedy by way of either filing an application challenging the same purely on legal issues or for amendment of the original SA in case assailed on facts or to file a separate SA questioning the subsequent action of the secured creditor. Once having chosen a particular remedy, the borrower thereafter would be bound by the same. 14. In all fairness, we refer to the decision of the Madras High Court in B. Kamal’s case (supra) on the basis of which the applications filed by the petitioners have been rejected by the Tribunal. Therein, the Bank had initiated proceedings under the SARFAESI Act against the borrower. The secured asset was put to auction. The auction purchaser had purchased the said asset in the auction. Therein, the Bank had initiated proceedings under the SARFAESI Act against the borrower. The secured asset was put to auction. The auction purchaser had purchased the said asset in the auction. The borrower along with three others challenged the auction/sale notice before DRT which was dismissed. However, the appeal was accepted by the Appellate Tribunal (DRAT). On a writ petition by the auction purchaser, the Division Bench of the High Court set aside the order of the DRAT. The review petition remained unsuccessful. Thereafter, the borrower, filed a SARFAESI application before the DRT to set aside the sale certificate. The application having been rejected as not maintainable, appeal was carried to the DRAT. The appeal was entertained by DRAT and interim protection was granted. The said order of DRAT was assailed in Civil Revision petition before the Madras High Court. It was in these facts and circumstances noticed hereinbefore, that the High Court observed that the DRAT had rightly exercised jurisdiction in entertaining the appeal as the Division Bench in its earlier order had noted that the proper course to challenge the sale certificate by the borrower was by filing an independent SARFAESI application. The narration of facts clearly spells out that the issue under discussion before the High Court was different and it had nowhere held that in case of subsequent events, the same can be challenged by a separate and fresh SARFAESI application only. Thus, the said decision had no relevance to the question that had arisen in the present cases and the reliance of the DRT on the judgment of Madras High court in B. Kamal’s case (supra) in rejecting the applications of the petitioners is totally misplaced. 15. As a result, the impugned orders in all the three petitions are set aside. The observation made by the Tribunal on the basis of the judgment of the Madras High Court in B. Kamal’s case (supra), that the subsequent proceedings in the matter are to be challenged only by way of fresh SA is unsustainable. However, it shall be open to the petitioners to take recourse to any of the remedies, viz either by way of filing fresh SA or by way of an application where challenge is only on legal issues and further in case founded on facts by an amendment in the pending SA. The writ petitions are disposed of accordingly.