JUDGMENT : R. Subbiah, J. (Prayer: Writ Petition filed under Article 226 of The Constitution of India praying to issue a Writ of Certiorarified Mandamus to call for the records of the first respondent in I.A. No. 253 of 2016 in S.A. No. 338 of 2014 dated 31.08.2017 and to quash the same and to direct the second respondent to repay/refund the sum of Rs.6,78,75,000/- (Rupees Six Crores Seventy Eight Lakhs Seventy Five Thousand Only) together with interest calculated at 24% per annum from 14.11.2014 till the date of payment.) 1. The petitioner has come forward with this writ petition challenging the legality and/or correctness of the order dated 31.08.2017 passed by the first respondent in I.A. No. 253 of 2016 in S.A. No. 338 of 2014 and to quash the same and consequently to direct the second respondent to refund the sum of Rs.6,78,75,000/- (Rupees Six Crores Seventy Eight Lakhs Seventy Five Thousand Only) together with interest calculated at 24% per annum from 14.11.2014 till the date of payment. 2. The petitioner is a company incorporated under the provisions of the Companies Act, 1956 and engaged in power generation business by installing wind mills located in various parts of the Country. During the course of it's business, the petitioner came across a notification dated 09.10.2014 issued by the second respondent bank pertaining to e-auction under the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short SARFAESI Act). As per the said notification dated 09.10.2014, it was stated that the third respondent is a company incorporated under the provisions of the Companies Act and engaged in the business of generating electricity by installing Wind Mills in various places. It was further stated that in the year 2009, the second respondent bank had extended financial assistance to the third respondent to the tune of Rs.45.70 Crores for setting up of 6 wind mills of 1.65 MW capacity each at Theni District, Tamil Nadu. It was further stated that as the third respondent became a sick industry and unable to repay it's debts, on 31.10.2013, the third respondent made a reference to the Board of Directors for Industrial and Financial Reconstruction (BIFR) and it was taken on file as Case No. 70 of 2013. It was further stated that as the third respondent became a sick industry and unable to repay it's debts, on 31.10.2013, the third respondent made a reference to the Board of Directors for Industrial and Financial Reconstruction (BIFR) and it was taken on file as Case No. 70 of 2013. In such reference made by the third respondent bank before the BIFR, the second respondent also participated and the second respondent is fully aware of the pendency of the proceedings before the BIFR. While so, the second respondent bank had initiated action under Section 13 (2) of the SARFAESI Act by issuing a notice dated 05.06.2014 to the third respondent and thereafter, taken possession of the secured assets viz., wind mills installed by the third respondent. It is in those circumstances, the second respondent bank had issued the e-auction notice dated 09.10.2014 under Section 13 (4) of the SARFAESI Act. The notice dated 09.10.2014 was published in two newspapers – one in English Daily “Indian Express” and the other in Tamil Daily “Dinamani” indicating that 4 Nos. of Wind Turbine Generator (WTG) of 1.69 MW (Vestas Make) mortgaged with it by the third respondent and installed at Theni District are to be auctioned for recovery of the defaulted loan amount of Rs.42.37 Crores (approximately) to the second respondent. Accordingly, an e-auction was scheduled to take place on 14.11.2014 fixing the reserve price at Rs.25 Crores out of which 10% of the reserve price was fixed as Earnest Money Deposit and it was directed to be deposited on or before 12.11.2014 before 1.30 pm. As per the e-auction notification dated 09.10.2014, the successful bidder has to deposit 25% of the bid amount immediately upon confirmation of the auction and the balance 75% of the amount has to be deposited within 15 days of confirmation of auction sale. However, in default, the amount deposited would be forfeited and the second respondent bank will be at liberty to re-auction the secured assets. According to the petitioner, in the e-auction notice, it was categorically mentioned that “there are no encumbrances known to the respondent bank on the property”. However, in default, the amount deposited would be forfeited and the second respondent bank will be at liberty to re-auction the secured assets. According to the petitioner, in the e-auction notice, it was categorically mentioned that “there are no encumbrances known to the respondent bank on the property”. As the petitioner submitted their application to participate in the e-auction, M/s. Core Asset Organisation Services Private Limited, e-auction sales support team appointed by the second respondent bank, furnished to the petitioner the details with respect to e-auction to be conducted on 14.11.2014 by an e-mail dated 08.11.2014 inter alia the terms and conditions of the e-auction. 3. According to the petitioner, even before the e-auction to be conducted on 14.11.2014, the third respondent moved the BIFR by filing an application on 26.08.2014 and the second respondent/bank was also fully aware of the same. However, the filing of an application by the third respondent before the BIFR was conveniently suppressed by the second respondent in the e-auction notification and the second respondent went on to state that the property, which is the subject matter of the e-auction, is free from any encumbrance. However, the petitioner without being aware of the application filed by the third respondent expressed their inclination to participate in the e-auction. Even before participating in the e-auction, the petitioner made it clear that in case the petitioner being adjudged as the highest bidder and deposits 25% of the amount, the bank shall confirm the sale immediately without withholding the amount deposited by them for any reason whatsoever. In other words, the petitioner made it clear that if they are declared as the highest bidder in the auction, the sale has to be confirmed in their favour without any loss of time. 4. According to the petitioner, the reserve price for e-auction was fixed as Rs.25 crores with a condition that the Earnest Money Deposit was to be deposited before 1.30 pm on 12.11.2014 and the successful bidder has to deposit 25% of the bid amount within 15 days of confirmation of sale and in case of any default, the earnest money deposit will be forfeited. Accordingly, the petitioner deposited a sum of Rs.2,50,00,000/- through RTGS, pursuant to which the petitioner was furnished with an user id and password for participating in the e-auction. On 14.11.2014, the e-auction was conducted at 11.30 am. Accordingly, the petitioner deposited a sum of Rs.2,50,00,000/- through RTGS, pursuant to which the petitioner was furnished with an user id and password for participating in the e-auction. On 14.11.2014, the e-auction was conducted at 11.30 am. On the same day at about 1.52 pm, the second respondent sent an e-mail to the petitioner stating that the third respondent has approached the Debts Recovery Tribunal, Madurai for stay of the SARFAESI Proceedings initiated by the second respondent bank. In the e-mail sent by the second respondent, reference was made to the oral information sent by the counsel for the second respondent that the Tribunal granted interim stay to the effect that the second respondent shall proceed with the e-auction but not to confirm the auction sale in favour of the highest bidder. According to the petitioner, such an application was filed by the third respondent on 12.11.2014 itself and the second respondent had notice about the pendency of the application filed by the third respondent. However, from the beginning, the second respondent had projected as if they are unaware of the application filed by the third respondent and made the petitioner to deposit the earnest deposit amount. After intimating the application filed by the third respondent and the interim stay granted by the Tribunal, the second respondent, by a successive e-mail sent at 2.54 pm on the same day, informed that the petitioner was declared as the highest bidder. The petitioner immediately sent a reply at 3.33 pm stating that the second respondent bank must have had knowledge about the application filed by the third respondent and they ought not to have conducted the e-auction. Notwithstanding the above, the second respondent bank, by an e-mail dated 14.11.2014 sent at 7.56 pm directed the petitioner to deposit a further sum of 15% of the amount before 1.00 pm on 15.11.2014 and threatened the petitioner that the property shall forthwith be sold once again, if the petitioner did not comply with the direction to pay further 15% of the amount. As the petitioner apprehended that the amount already deposited by them would be forfeited, they were constrained to comply with the condition to pay further amount and accordingly, the petitioner transferred through RTGS a sum of Rs.4,28,75,000/- on 15.11.2014. 5. As the petitioner apprehended that the amount already deposited by them would be forfeited, they were constrained to comply with the condition to pay further amount and accordingly, the petitioner transferred through RTGS a sum of Rs.4,28,75,000/- on 15.11.2014. 5. It is the contention of the petitioner that on 27.11.2014, when the application filed by the third respondent came up for hearing before BIFR, the BIFR directed the second respondent/bank to inform as to whether the assets of the third respondent have been taken over by the bank. While so, the second respondent, by an order dated 01.12.2014, confirmed the auction sale in their favour subject to the final outcome of appeal preferred by the third respondent before the Debts Recovery Tribunal, Madurai, notwithstanding the pendency of the application before the BIFR and the interim order granted by the Debts Recovery Tribunal, Madurai on 14.11.2014. Therefore, on 04.12.2014, the petitioner wrote a letter to the second respondent bank stating that the confirmation of sale is required to be clear, unconditional and unequivocal. It was also stated by the petitioner that they cannot be expected to block several crores of rupees in an asset which is being given with reservation and restrictions. Since the petitioner was required to deposit remaining Rs.20 crores towards the balance money, the petitioner called upon the second respondent bank to indemnify them in the event of the outcome of the pending litigation will have any bearing on their asserting a right over the property in question. However, there was no response from the second respondent bank. In the meantime, the third respondent submitted an application on 09.12.2014 before the BIFR seeking to restrain the second respondent bank from selling, transferring or alienating the secured assets including the properties auctioned by the second respondent vide public auction notice dated 09.10.2014. The BIFR, by order dated 18.12.2014 directed the second respondent not to proceed further with regard to selling, transferring or alienating the secured assets of the third respondent till 04.03.2015. The third respondent also filed a writ petition in WP No. 33226 of 2014 before this Court praying to issue a Writ of Mandamus for bearing the second respondent bank to issue any sale certificate to third parties in furtherance of the e-auction notice dated 09.10.2014. The third respondent also filed a writ petition in WP No. 33226 of 2014 before this Court praying to issue a Writ of Mandamus for bearing the second respondent bank to issue any sale certificate to third parties in furtherance of the e-auction notice dated 09.10.2014. In the said writ petition, this Court, by an order dated 17.12.2014 directed the parties to maintain status quo as on that date, till 22.12.2014. Subsequently, the order of status-quo was extended on 23.12.2014 till 20.01.2015. 6. The grievance of the petitioner is that the second respondent bank is neither refunding the amount deposited by them nor transferring the auctioned property. The petitioner therefore sent a legal notice dated 18.03.2015 calling upon the second respondent to accept a bank guarantee in lieu of the amount deposited by them and to refund the entire amount deposited with interest at the rate of 2% per month within a week. However, by a reply dated 06.05.2015, the second respondent refused to comply with such a request made by the petitioner. Thus, the hard earned money of the petitioner got stuck due to misrepresentation and unfair action of the second respondent bank. 7. It is also stated that the petitioner has also filed an Appeal before the Appellate Authority for Industrial and Financial Reconstruction (AAIFR) against the order dated 18.12.2014 passed by the BIFR. However, the petitioner withdrew the appeal on 22.12.2015 and decided to pursue his remedy in a manner known to law. Thereafter, on 01.01.2016, the petitioner filed an application before the Debts Recovery Tribunal, Madurai seeking to direct the second respondent to refund the sum of Rs.6,78,75,000/- with interest at the rate of 2% per month from the date of deposit till the date of payment. On notice, the second respondent filed a reply stating that the petitioner has to only approach the Civil Court for any relief against the second respondent bank and the application before the Tribunal is not maintainable. Apart from filing the reply before the Tribunal, the second respondent bank sent a letter dated 20.01.2016 calling upon the petitioner to deposit the balance amount, especially when the petitioner is demanding for refund of the amount already deposited by them. Apart from filing the reply before the Tribunal, the second respondent bank sent a letter dated 20.01.2016 calling upon the petitioner to deposit the balance amount, especially when the petitioner is demanding for refund of the amount already deposited by them. Therefore, the petitioner sent a reply dated 07.02.2017 stating that the demand for remitting the balance amount as per e-auction dated 14.11.2014 and threat of forfeiture of the amount already paid is illegal. 8. While facts are so as stated above, on 31.08.2017, the Debts Recovery Tribunal dismissed the application filed by the petitioner seeking to direct the second respondent to refund the amount on the ground that such an application filed by the petitioner is not maintainable as per Section 17 (7) of SARFAESI Act and that the petitioner cannot be construed as an aggrieved person. In these circumstances, the petitioner, left with no other alternative or efficacious remedy, has filed the present writ petition as against the refusal of the second respondent bank to refund the amount already paid by them. 9. When the writ petition is taken up for hearing, the learned counsel appearing for the petitioner would contend that the second respondent Bank is a public Sector bank and is an instrumentality of the State within the meaning of Article 12 of the Constitution of India, therefore it is amenable to writ jurisdiction. According to the learned counsel for the petitioner, the second respondent bank issued the e-auction notification dated 09.10.2014 for sale of the secured assets knowing fully well that the third respondent, who mortgaged the property for availing the loan, has already approached the BIFR for a direction to the second respondent bank for re-structuring the repayment schedule. Further, the Law Officer of the second respondent bank also participated in the proceedings before the BIFR on 08.01.2014. Having participated in the proceedings pending before BIFR on 08.01.2014, the second respondent bank has issued the e-auction notification dated 09.10.2014, by which time, the BIFR proceedings were pending. However, in the e-auction notification it was clearly stated that the property is free from any encumbrance or any lis pendense. In effect, it was stated in the e-auction notification dated 09.10.2014 that “There are no encumbrances known to the bank on the property. However, in the e-auction notification it was clearly stated that the property is free from any encumbrance or any lis pendense. In effect, it was stated in the e-auction notification dated 09.10.2014 that “There are no encumbrances known to the bank on the property. The property is sold on as is where is and as is what is basis.” Believing such statement made in the e-auction notification dated 09.10.2014, the petitioner was inclined to participate in the e-auction. Even before participating in the e-auction, the petitioner sent an e-mail to the second respondent bank on 10.11.2014 seeking a confirmation from the second respondent bank that in case the petitioner is adjudged as the highest bidder and deposited the 25% price/bid amount, the Bank shall confirm the sale immediately and will not withhold the money for any reason whatsoever. Further, if for any reason the bank is not in a position to confirm the sale, the amount that would be deposited shall be refunded to the petitioner. But, the second respondent bank did not make any such confirmation as demanded by the petitioner in the e-mail dated 10.11.2014. However, as per the e-auction notification, the petitioner is required to deposit the Earnest Money Deposit on or before 12.11.2014 and therefore, the petitioner deposited the sum of Rs.2,50,00,000/- through RTGS on 11.11.2014 to get themselves qualified to participate in the e-auction with a bonafide belief. But three days after depositing the amount, the second respondent bank sent a e-mail on 14.11.2014 wherein it was stated that the third respondent has approached the Debts Recovery Tribunal, Madurai challenging the SARFAESI proceedings initiated against the third respondent in which the Tribunal has granted an interim stay on 12.11.2014 to the effect that the second respondent bank shall proceed with the e-auction but shall not confirm the auction in favour of the highest bidder. Eventually, the petitioner was declared as highest bidder on 14.11.2014 by the second respondent and as required by the second respondent, the petitioner also deposited further sum of Rs.4,28,75,000/- on 15.11.2014 under threat and intimidation by the second respondent bank that if the amount is not deposited, the amount of Rs.2.5 crores deposited by the petitioner will be forfeited. Eventually, the petitioner was declared as highest bidder on 14.11.2014 by the second respondent and as required by the second respondent, the petitioner also deposited further sum of Rs.4,28,75,000/- on 15.11.2014 under threat and intimidation by the second respondent bank that if the amount is not deposited, the amount of Rs.2.5 crores deposited by the petitioner will be forfeited. Thus, according to the counsel for the petitioner, inspite of due diligence adopted by the petitioner, the second respondent bank made the petitioner to believe that the property is free from any encumbrance, in any form, and to deposit the amount. However, even after lapse of three years from the date of depositing the amount, the petitioner could neither get the amount refunded nor the property was handed over to the petitioner as a successful bidder in the auction. Even the attempt of the petitioner to get the amount refunded by the second respondent bank by filing an application before the Debts Recovery Tribunal, Madurai failed as the Tribunal dismissed the application on 31.08.2017 by holding that the petitioner cannot be construed as an aggrieved person. According to the counsel for the petitioner, the petitioner, inspite of several reminders sent to the second respondent bank could not get the amount deposited by them refunded and therefore, the petitioner has filed the present writ petition challenging the order passed by the Tribunal. 10. The learned counsel appearing for the petitioner placed reliance on the Order dated 28.04.2017 passed by the Division Bench of this Court in the case of (S. Shanmuganathan vs. The Authorised Officer, Indian Overseas Bank, Asset Recovery Management Branch, Chennai – 600 002) reported in 2017 SCC Online Madras 1549 wherein the Division Bench of this Court, in an identical circumstances, held as follows:- “The unreasonable attitude taken by the bank in the matter of a sale of secured asset under the SARFAESI Act by not putting the auction purchaser in vacant possession of the property or to return the sale consideration paid about nine years back, made the petitioner to file this writ petition claiming return of the amount paid by him with interest at 24% per annum. The bank is resisting the writ petition notwithstanding the fact that encumbrances and pending litigations in respect of the property were not divulged in the auction notification and the purchaser was made to offer his bid on a bona fide belief that the property is free from encumbrances and litigations. 28. Viewing from every angle, the Bank has given an impression that they are exploiting the innocent borrowers by selling their properties at throw away price, not only below the market price, but also below any guideline rate. Such an argument cannot be countenanced and exploitation in any form, whether it be the borrower or auction purchaser is depreciable. So also, the statement that the auction purchaser should be aware of the title, even though it is sold by Bank does not also sound reasonable. The financial institutions, while issuing sale notification, discharge a statutory duty. So much of credibility is naturally fastened on the bank. It is not expected from a Public Sector Bank to state that purchaser shall be aware of encumbrances. Even though the auction purchaser should be aware of the encumbrances, which are visible by spot inspection and on enquiry, but the defect in title and other the other materials on record shall be disclosed only by the secured creditor, as it would be within the exclusive knowledge. Therefore, it cannot be accepted that the auction purchaser should know each and every minute detail by site inspection. Therefore, the argument that the auction purchaser should be beware of encumbrances notwithstanding the failure of the bank to disclose the relevant information is not tenable.” 11. The learned counsel for the petitioner also relied on the decision of the Division Bench of the Andhra Pradesh High Court in the case of (Mandava Krishna Chaitanya vs. UCO Bank Asset Management Branch) reported in 2018 SCC Online Hyd.196 wherein, it was held as follows:- “22. In terms of the statutory scheme of the SARFAESI Act and the Rules of 2002 and given the weighty preponderance of judicial wisdom, as set out supra, a secured creditor who is empowered under the SARFAESI Act to enforce any secured interest created in its favour, without the intervention of a Court or a Tribunal, but in accordance with the procedure prescribed therefor, cannot take the responsibility resting upon it lightly. Such a secured creditor not only owes a duty to protect the interest of the borrower by raising the best possible price while selling his mortgaged properties, but also owes a duty to the auction purchaser to verify the encumbrances that attach to the mortgaged property proposed to be sold, so as to inform all intending bidders of the same. Clauses (a) and (f) in the proviso to Rule 8(6) of the Rules of 2002 bear out this responsibility explicitly, as the secured creditor is mandated thereunder to include the details of the encumbrances known to it and also any other thing which may be considered material for a purchaser to know in order to judge the nature and value of the property. These clauses therefore visit a duty upon the secured creditor to undertake due diligence at least at the stage of putting the secured asset to sale, if not at the time of taking the said property as security while granting loans, so that the bidders in the auction can rest assured that the bank has taken necessary measures in this regard and proceed to participate in the auction sale. Ignorance of the secured creditor as to the encumbrances on the property sold by it is no longer an acceptable argument in the light of the decisions of various Courts rejecting the plea that a sale on as is where is basis constitutes a shield of protection. 23. Further, the concept of as is where is and as is what is basis has lost its significance in the current commercial milieu and the principle of caveat venditor is more on the rise as compared to the outdated principle of caveat emptor. The Transfer of Property Act, 1882 requires the seller to own up to certain duties and it is not open to a responsible bank to take an innocent auction purchaser for a ride by selling to him a tainted property and thereafter claim protection under the principles of buyer beware. The counter- affidavit filed by the bank clearly demonstrates that the bank undertook no exercise whatsoever to verify and ascertain as to what encumbrances attached to the subject property at any stage. No details are forthcoming of any efforts having been made by the bank, be it before the registration authorities or any other authority at any stage. The counter- affidavit filed by the bank clearly demonstrates that the bank undertook no exercise whatsoever to verify and ascertain as to what encumbrances attached to the subject property at any stage. No details are forthcoming of any efforts having been made by the bank, be it before the registration authorities or any other authority at any stage. Now, it has come to light that the property in question is tainted on grounds more than one. It falls within the full tank level of a lake and, surprisingly, it is also treated as a ceiling surplus land. That apart, the possession of the property cannot even be handed over by the bank to the petitioner as the sale was effected without the bank securing actual physical possession thereof and the bank does not deny the factum of a lease having been created by the borrower in relation thereto. The bank therefore cannot comply with the statutory mandate of delivering actual possession of the property sold under the sale certificate. The decisions of various Courts referred to supra would come to the aid of the petitioner in this regard. That apart, the registration authorities already indicated to the petitioner that the subject land is noted as a ceiling surplus land. Therefore, even if they do entertain the sale certificate issued by the bank for registration, it would be subject to this cloud and would not amount to clear conveyance of title. It is therefore manifest that the bank made the innocent petitioner a victim by failing to exercise due diligence, not only in terms of the statutory scheme of the SARFAESI Act and the Rules of 2002, but also in its own commercial interest, let alone public interest, when it accepted this property as security for the loan sanctioned by it. This utter carelessness on the part of the bank in sanctioning loans, by use of public monies, on the strength of secured assets which are not even worthy of being mortgaged, requires to be deprecated in the strongest terms. Banks necessarily have to exercise more care and caution while using public monies available with them, be it through deposits by customers or otherwise, when sanctioning loans without caution or worse and cannot be permitted to claim protection under outdated legal principles so as to victimize innocent auction purchasers, such as the petitioner. Banks necessarily have to exercise more care and caution while using public monies available with them, be it through deposits by customers or otherwise, when sanctioning loans without caution or worse and cannot be permitted to claim protection under outdated legal principles so as to victimize innocent auction purchasers, such as the petitioner. This Court therefore has no hesitation in holding that the auction sale held by the bank, without even exercising minimum care to ascertain the encumbrances attaching to the subject property and without informing the petitioner or other bidders of the same, vitiates the sale proceedings, culminating in issuance of the sale certificate which is yet to be registered. The writ petition is accordingly allowed setting aside the said sale. The bank shall refund the sale consideration of Rs. 4,80,44,000/- paid by the petitioner, with interest thereon at 18% per annum from the date of the deposit till the date of realization, within two weeks from the date of receipt of a copy of this order. As the bank is itself at fault for this entire imbroglio and the petitioner was made to part with his valuable monies with no consequential benefit therefor and the bank enjoyed the custody of these monies all through, the rate of interest as applied by the Supreme Court in like circumstances in MATHEW VARGHESE V/s. M.AMRITHA KUMAR is adopted.” 12. By relying on the above decisions, the learned counsel for the petitioner would contend that because of the mala fide action of the second respondent bank in not disclosing the subsisting encumbrance and litigation pending in respect of the secured asset, the petitioner was deprived of their money, which would have otherwise been put to optimum use. There is no fault attributable on the part of the petitioner in any manner and the petitioner is a victim of circumstances due to the unlawful act of the second respondent bank in not disclosing the encumbrances that subsisted over the property, which was also not properly considered by the Tribunal. In such circumstances, the learned counsel for the petitioner would pray this Court to set aside the order passed by the Tribunal and for issuing a direction to the second respondent bank to refund the amount deposited by the petitioner with interest at the rate of 24% per annum. 13. In such circumstances, the learned counsel for the petitioner would pray this Court to set aside the order passed by the Tribunal and for issuing a direction to the second respondent bank to refund the amount deposited by the petitioner with interest at the rate of 24% per annum. 13. Countering the submissions of the learned counsel for the petitioner, the learned counsel appearing for the second respondent bank would oppose the prayer sought for in the writ petition. By placing reliance on the counter affidavit of the second respondent bank, the learned counsel would contend that even in the e-auction notice dated 09.10.2014, it was stated that to the best of knowledge and information, the bank is not aware of any other encumbrance that exists on the property. However, the intending bidders should make their own independent enquiries regarding the other encumbrances, title of properties put on auction. The writ petitioner, after having read over the terms and conditions of the e-auction participated with his eyes wide open and he cannot be allowed to turn around and contend that the second respondent bank did not put on notice the subsisting encumbrance in the property. Further, after publication of the e-auction notification the third respondent obtained interim stay on 14.11.2014 before the Tribunal and it was also duly intimated to the petitioner by way of a communication dated 14.11.2014. The order dated 14.11.2014 was subject to certain conditions, which were not fulfilled by the third respondent, therefore, the interim order was vacated on 20.11.2014. Thereafter, the second respondent Bank confirmed the auction in favour of the petitioner by a communication dated 01.12.2014 and requested the petitioner to deposit the balance 75% of the bid amount. On receipt of the communication dated 01.12.2014, the petitioner sent a letter dated 01.12.2014 and sought to indemnify them against any unfavourable outcome of the litigation pending before the Tribunal. The second respondent Bank sent a reply that when the petitioner participated in the e-auction knowing fully well about the terms and conditions of the e-auction, the question of indemnifying the petitioner does not arise. Further, the third respondent, challenging the order dated 18.11.2014 of the Tribunal, preferred an appeal before the Debts Recovery Appellate Tribunal in AIR No. 622 of 2014 in which an interim order was passed on 22.11.2014. Further, the third respondent, challenging the order dated 18.11.2014 of the Tribunal, preferred an appeal before the Debts Recovery Appellate Tribunal in AIR No. 622 of 2014 in which an interim order was passed on 22.11.2014. The third respondent also filed WP No. 33226 of 2014 before this Court aggrieved by the adjournment granted by the Debts Recovery Appellate Tribunal on 22.12.2014 in which status quo was granted on 17.12.2014 till 22.12.2014 and it was subsequently extended till 20.01.2015. Ultimately, the Debts Recovery Appellate Tribunal dismissed the appeal preferred by the third respondent. 14. The learned counsel for the second respondent bank also contended that the second respondent bank has not withheld material information while publishing the e-auction notification, as alleged by the petitioner. The allegation that the bank was aware about the pendency of the proceedings before the BIFR and DRT is legally not sustainable. There is no fraud or misrepresentation on the part of the bank in issuing the e-auction notification. The learned counsel for the second respondent also justified the order passed by the Tribunal, which is impugned in this writ petition, by contending that the petitioner cannot be said to be an aggrieved person by any of the measures taken by the second respondent bank like a borrower, while so, the writ petitioner cannot be treated as an aggrieved person. The writ petitioner, who is declared as the successful bidder, is bound to pay the balance 75% of the bid amount, but by citing the pendency of litigation, the petitioner did not pay the balance amount. In such circumstances, the bank has forfeited the amount paid by the petitioner as per the terms and conditions of the e-auction and therefore, he prayed for dismissal of the writ petition. 15. We have heard the learned counsel for both sides and perused the materials placed on record. Pursuant to the e-auction notification published by the second respondent bank on 09.10.2014, the petitioner participated in the e-auction and complied with the condition to deposit a sum of Rs.2.5 crores in time. However, even before the notification dated 09.10.2014, the third respondent, whose properties were brought to auction, has moved the BIFR by filing an application on 08.01.2014. Pursuant to the e-auction notification published by the second respondent bank on 09.10.2014, the petitioner participated in the e-auction and complied with the condition to deposit a sum of Rs.2.5 crores in time. However, even before the notification dated 09.10.2014, the third respondent, whose properties were brought to auction, has moved the BIFR by filing an application on 08.01.2014. In the summary of record of proceedings of the hearing held on 08.01.2014 before the BIFR, it could be seen that the Law Officer of the second respondent bank participated and a detailed order was passed by the BIFR on that day. However, notwithstanding the pendency of the BIFR proceedings at the instance of the third respondent, the second respondent bank issued the e-auction notification on 09.10.2014, in which, there was no reference made to the pendency of BIFR proceedings. In fact, in the e-auction notification, it was stated that “There are no encumbrances known to the bank on the property. The property is sold on as is where is and as is what is basis.”. This made the petitioner to believe that the properties, which are the subject matter of the e-auction notification dated 09.10.2014, is free from any encumbrance. However, now it is contended that the intending bidder/petitioner should make their own independent enquiries regarding the other encumbrances and title of properties put on auction. In this regard, the learned counsel for the petitioner relied on the decision of the Division Bench of this Court wherein it was held that “even though the auction purchaser should be aware of the encumbrances, which are visible by spot inspection and on enquiry, but the defect in title and other the other materials on record shall be disclosed only by the secured creditor, as it would be within the exclusive knowledge. Therefore, it cannot be accepted that the auction purchaser should know each and every minute detail by site inspection.” The observation made by the Division Bench of this Court in the decision mentioned supra is squarely applicable to the facts and circumstances of the case. Further, on 15.11.2014, as per the e-auction notification, the petitioner deposited Rs.4,25,75,000/- with the second respondent bank. Further, on 15.11.2014, as per the e-auction notification, the petitioner deposited Rs.4,25,75,000/- with the second respondent bank. Thereafter, by a communication dated 01.12.2014 the second respondent bank called upon the petitioner to deposit the balance 75% of the bid amount within 15 days from the date of receipt of the sale confirmation letter or else the amount already paid will be forfeited. In reply, the petitioner, by letter dated 04.12.2014, sought for a confirmation by the bank inter alia stated as follows:- “A. You may kindly provide us with a simple and clear confirmation of sale, unburdened by any needless stipulations as to the outcome of any litigation and give us 15 days from the issue of such letter to make the balance 75% amount. This is our first preference, as we are keen and also able to comply with our obligations under the terms of the auction. Along with the above letter the Bank is required to give us an undertaking, agreeing to refund our monies and keep us wholly indemnified against the unfavourable outcome of any litigation with the borrower in the past, present or in future in connection with the subject matter. B. Secondly, if you are not agreeable to the aforesaid option, the 25% sale consideration deposited with you may kindly be refunded to us forthwith and the matter be closed.” 16. Thus, the petitioner has complied with the terms and conditions of the e-auction notification dated 09.10.2014, however, when the petitioner did not pay the balance 75% of the amount by citing the pending litigation, the second respondent bank, by letter dated 20.01.2016, forfeited the amount paid by the petitioner. Therefore, the petitioner has filed I.A. No. 253 of 2016 in S.A. No. 338 of 2014 before the Tribunal seeking to direct the respondent bank to repay the amount and it was dismissed on 31.08.2017 on the ground that the petitioner, being an auction purchaser, cannot be construed as an aggrieved person as defined under Section 17 (1) of The SARFAESI Act. As against the order dated 31.08.2017, the petitioner has filed this writ petition. 17. Admittedly, the second respondent bank confirmed the auction sale in favour of the petitioner. The petitioner also in terms of the e-auction notification dated 09.10.2014, deposited 25% of the amount. As against the order dated 31.08.2017, the petitioner has filed this writ petition. 17. Admittedly, the second respondent bank confirmed the auction sale in favour of the petitioner. The petitioner also in terms of the e-auction notification dated 09.10.2014, deposited 25% of the amount. In effect, the petitioner has paid 10% of the reserve money of Rs.2,50,00,000/- on 11.11.2014 and 15% of the bid amount of Rs.4,28,75,000/- on 15.11.2014. However, when the petitioner was called upon to pay the balance 75% of the amount, they did not pay purportedly on the ground that there is a dispute with respect to the property which is the subject matter of the auction sale and the amount already deposited by them is lying with the second respondent for a long time, which the petitioner could have otherwise utilised for any other purpose. Thus, in a circumstance of this nature, no prudent purchaser could deposit further amount when already the amount deposited is lying with the second respondent bank without any gainful return. In any event, we find that there is no fault attributable on the part of the petitioner in not paying the balance 75% of the amount and the second respondent bank ought to have refunded the amount already deposited by the petitioner. In any event, when once the third respondent questioned the measures initiated by the second respondent bank and created a hurdle in disposing of the subject matter of the property in favour of the petitioner/auction purchaser, at the earliest point of time, the second respondent bank could have refunded the amount deposited by the petitioner without calling upon them to pay further amount, especially when already the secured asset is the subject matter of the proceedings before Debts Recovery Tribunal and also before BIFR. 18. As mentioned above, the petitioner has also filed I.A. No. 253 of 2016 in S.A. No. 338 of 2014 before the Tribunal seeking to direct the respondent bank to repay the amount. However, the Tribunal dismissed the application preferred by the petitioner on 31.08.2017 by concluding that the petitioner, as an auction purchaser, cannot be construed as an aggrieved person as defined under Section 17 (1) of The SARFAESI Act. However, the Tribunal dismissed the application preferred by the petitioner on 31.08.2017 by concluding that the petitioner, as an auction purchaser, cannot be construed as an aggrieved person as defined under Section 17 (1) of The SARFAESI Act. In effect, the Tribunal concluded that the remedy for the petitioner is not to file an application before the Tribunal and that the petitioner has to work out his remedy in a manner known to law. Thus, the Tribunal did not reject the prayer sought for by petitioner. Therefore, there is no necessity for this Court to quash the order passed by the Tribunal and instead, the prayer sought for by the petitioner before the Tribunal to direct the second respondent bank to refund the amount can be issued by this Court itself in exercise of power under Article 226 of The Constitution of India. 19. In the result, the Writ Petition is allowed to the extent indicated above. No costs. The second respondent bank is directed to repay the amount of Rs.6,78,75,000/- (Rupees Six Crores Seventy Eight Lakhs Seventy Five Thousand Only) to the petitioner together with interest calculated at 12% per annum from 14.11.2014, within a period of eight weeks from the date of receipt of a copy of this Order. Consequently, the connected writ miscellaneous petition is closed.