ORDER : C. PRAVEEN KUMAR, J. 1) Challenging the Sale Notice, dated 13.01.2022, issued by the first Respondent herein, as violative of the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, [for short, “SARFAESI Act”] 2002, and the Rules made therein, the present Writ Petition came to be filed. 2) The facts, which lead to filing of the present Writ Petition, are as under:- a) The first Petitioner is a Private Limited Company, engaged in construction works. In order to execute the work allotted, namely construction of a Boys Hostel for GITAM College, Bangalore, as per the Work Orders issued by the GITAM University, Visakhapatnam. The first Petitioner approached the 2nd Respondent/bank herein for a loan to a tune of Rs.14 Crores. The request of the first Petitioner was accepted and a sum of Rs.9.00 Crores was sanctioned under first spell for execution of Work Order of Rs.105.03 Crore. The 2nd respondent also sanctioned an amount of Rs.5.00 Crores to the first Petitioner for construction of Boys Hostel at GITAM College, Bangalore. b) It is said that after availing the loan, the first Petitioner herein commenced construction of the work at Bangalore and completed the work to an extent of 70% till 06.10.2019. It is said that though he requested GITAM University, Visakhapatnam, to extend the Work Order, but the same was not done and the GITAM University also did not pay the amount to the first Petitioner for the work done. c) On 09.03.2020, the Work Order was terminated. On 16.03.2020, the first Petitioner got issued a notice to GITAM University, requesting it to take appropriate action in terms of Clause 23.2.1 of the General Conditions of Contract for appointment of Adjudicator. As there was no response, an Arbitration Application came to be filed before the High Court. d) While things stood thus, on 26.05.2021, the first Respondent issued a notice under Section 13(2) of the SARFAESI Act alleging that the first Petitioner is liable to pay an amount of Rs.15,75,84,850.99 ps. and called upon the Petitioners to pay the entire amount within 60 days from the date of receipt of the notice. It was further stated that if the Petitioners failed to pay the amount due within the time prescribed, steps under Section 13(2) would be taken. and called upon the Petitioners to pay the entire amount within 60 days from the date of receipt of the notice. It was further stated that if the Petitioners failed to pay the amount due within the time prescribed, steps under Section 13(2) would be taken. It is said that the first Petitioner replied the said notice on 28.07.2021 pointing out the defects in the amount shown in the notice. The first Petitioner also explained the reasons as to why the amount could not be paid. The 2nd Respondent on receipt of the reply given by the first Petitioner, responded to the averments in writing on 04.08.2021 and thereafter possession notice under Section 13(4) of the SARFAESI Act, came to be issued. e) It is said that the first Petitioner again issued a Lawyer’s Notice on 01.09.2021, but ultimately, the bank authorities issued the Sale Notice dated 19.01.2022 for sale of immovable properties under Item Nos.1 to 9 referred to therein through e-auction, fixing the date of sale on 19.02.2022. The total reserve price for all the properties was fixed @ Rs.27,01,56,000/-and the earnest money deposit is Rs.2,70,15,600/-. Challenging the said e-auction, the present Writ Petition came to be filed. 3) Sri P.A.K. Kishore, learned counsel for the Petitioners would submit that the present Writ Petition, is filed mainly on the ground that the valuation fixed is far below the market value and secondly, the notice issued under Section 13(2) of the SARFAESI Act, is not in accordance with the letter and spirit of the Act, and as such, the same is illegal. 4) In other words, the reply affidavit and the additional affidavit filed by the first Petitioner would show that the Sale Notice dated 13.01.2022 published in Newspapers on 15.01.2022 and sent by post to the first Petitioner on 19.01.2022 would defeat the statutory right of redemption under the amended Sub-Section 8 of Section 13 of the SARFAESI Act, as respondent/bank did not invite the attention of the first Petitioner to the statutory right of redemption before the date of publication of notice for public auction. (a) It is further pleaded that Rule 9 of the Security Interest (Enforcement) Rules, 2002, also suffered amendment with effect from 04.11.2016 and hence thirty days notice as required to be given in terms of Rule 8(6) of the Security Interests (Enforcement) Rules, 2002, was not complied with. (a) It is further pleaded that Rule 9 of the Security Interest (Enforcement) Rules, 2002, also suffered amendment with effect from 04.11.2016 and hence thirty days notice as required to be given in terms of Rule 8(6) of the Security Interests (Enforcement) Rules, 2002, was not complied with. He placed on record the paper cuttings and the endorsement on the cover received to show that before the expiry of 30 days, the auction is sought to be conducted. 5) Sri G.V.S. Kishore Kumar, learned counsel for the respondent/bank disputes the averments made in the affidavit filed in support of the Writ Petition. According to him, the first Petitioner herein has approached this Court questioning the Sale Notice only to delay the auction initiated by the bank for collection of the amount due to the bank. It is further urged that the auction, which was scheduled on 19.02.2022 did not materialize, and as such, nothing survives for adjudication in the present Writ Petition. He further pleads that the e-auction notice issued under Section 13(2) is in accordance with the SARFAESI Act. (a) Insofar as the valuation of the properties are concerned, it is stated that the bank obtained two valuation reports from the two Bank Panel Valuers dated 08.12.2021 and on 16.11.2021, for fixing the reserve price of the properties and therefore the allegation that it was intentionally fixed at a lower price, is incorrect. (b) It was further stated that the notice under Section 13(2) dated 26.05.2021 and possession notice under Section 13(4) dated 16.08.2021 would show that more than 60 days time was given for payment of due amount. Hence submits that there are no merits in the Writ Petition and the same is liable to be dismissed. 6) However, Sri P.A.K. Kishore, learned counsel for the petitioners in reply would contend that since the very notice issued under Section 13(2) is contrary to Rule 3(5) of the Security Interest (Enforcement) Rules, 2002, the bank authorities cannot proceed further and that any action to be taken by the bank shall only be after issuance of notice under Section. Referring to Rule 3(5) of the Security Interest (Enforcement) Rules, 2002, he would submit that the demand notice issued by the bank under Section 13(2) should invite attention of the borrower in respect of the time available to the borrower to redeem the secured assets. Referring to Rule 3(5) of the Security Interest (Enforcement) Rules, 2002, he would submit that the demand notice issued by the bank under Section 13(2) should invite attention of the borrower in respect of the time available to the borrower to redeem the secured assets. Since the notice under Section 13(2) does not anywhere refer to the same, he would submit that the entire proceedings stands vitiated and the bank cannot proceed further basing on the notice issued under Section 13(2) of the SARFAESI Act. In other words, his argument appears to be that the bank authorities should inform the borrower about the amount due and the time, within which, the amount to be paid prior to the date of publication of notice for public auction. 7) Before proceeding further, it would be appropriate to refer to Section 13(8) of the SARFAESI Act and Rule 3(5), which came into effect from 14.11.2016. “Section 13 -Enforcement of security interest – (8) Where the amount of dues of the secured creditor together with all costs, charges and expenses incurred by him is tendered to the secured creditor at any time before the date of publication of notice for public auction or inviting quotations or tender from public or private treaty for transfer by way of lease, assignment or sale of the secured assets,— (i) the secured assets shall not be transferred by way of lease, assignment or sale by the secured creditor; and (ii) in case, any step has been taken by the secured creditor for transfer by way of lease or assignment or sale of the assets before tendering of such amount under this subsection, no further step shall be taken by such secured creditor for transfer by way of lease or assignment or sale of such secured assets.” “Rule 3 – Demand Notice 5. The demand notice may invite attention of the borrower to provisions of sub-section (8) of section 13 of the Act, in respect of time available to the borrower, to redeem the secured assets.” 8) A harmonious reading of Rule 3(5) read with Section 13(8) would show that the demand notice issued under Section 13(2) may invite attention of the borrower to provisions of Sub-Section (8) of Section 13 of the Act in respect of time available to the borrower to redeem the secured assets. 9) A perusal of Section 13(2) notice would show that the borrower has to discharge in full the liabilities to the secured creditor within 60 days from the date of receipt of the notice. It was further informed that, the borrower is liable to pay future interest @ 13.65% per annum or as applicable from time-to-time together with all costs, charges, expenses etc. The notice also categorically states that in case if the borrower fails to pay the amount, as indicated in Section 13(2) notice, secured creditor will exercise all or any of the rights detailed under Sub-Section 4(a) and (b) of Section 13. The notice also refers to the 13(8) of the Act, in respect of time available, to redeem the secured assets. It would be appropriate to extract that portion of notice, which is as under: “The secured creditor through this notice brings to your attention that the Borrower has failed and neglected to repay the said dues/outstanding liabilities and hence hereby demand you under Section 13(2) of the Act, by issuing this notice to discharge in full the liabilities of the Borrower as stated in Schedule C hereunder to the secured creditor within 60 days from the date of receipt of this notice. Further, it is brought to your notice that you are also liable to pay future interest at the rate of 13.65% per annum or as applicable from time to time together with all costs, charges, expenses and incidental expenses with respect to the proceedings undertaken by the secured creditor in recovering its dues. Further, it is brought to your notice that you are also liable to pay future interest at the rate of 13.65% per annum or as applicable from time to time together with all costs, charges, expenses and incidental expenses with respect to the proceedings undertaken by the secured creditor in recovering its dues. Please take note of the fact that if you fail to repay to the secured creditor the aforesaid sum of Rs.15,75,84,850.99 (Rupees fifteen crores seventy five lakhs eighty four thousand eight hundred fifty and paise ninety nine Only) (exclusive of interest from 01.05.2021) together with further interest and incidental expenses and costs as stated above in terms of this notice under Section 13(2) of the Act, the secured creditor will exercise all or any of the rights detailed under sub-section (4)(a) and (b) of Section 13, the extract of which is given here below to convey the seriousness of this issue: 13(4) – In case the Borrower/Guarantor fails to discharge liability in full within the period specified in sub-section (2), the secured creditor may take recourse to one or more of the following measures to recover his secured debt, namely: (a) Take possession of the secured assets of the Borrower/Guarantor including the right to transfer by way of lease, assignment or sale for realizing the secured asset; (b) Take over the management of the business of the Borrower including the right to transfer by way of lease, assignment or sale for realizing the secured asset: Provided that the right to transfer by way of lease, assignment or sale shall be exercised only where the substantial part of the business of the Borrower is held as security for the debt; Provided further that where the management of whole of the business or part of the business is severable, the secured creditor shall take over the management of such business of the borrower which is relatable to the security for the debt; and under other applicable provisions of the said Act. Your attention is invited to provisions of subsection (8) of Section 13 of the Act, in respect of time available, to redeem the secured assets.” 10) Commenting upon the last two sentences, referred to above, it is said that though Section 13(8) has been referred to, but the time period required for payment, as contemplated under Rule 3(5) is not mentioned. But, a reading of the notice, as a whole, would show that the Petitioners herein were given 60 days time for payment of the amount from the date of receipt of the notice. The amount due was also mentioned in the said notice. The demand notice also indicates that, in case the amount as demanded is not paid, the secured creditor will proceed further under Section 13(4) of the Act. Hence, it cannot be said that there was no compliance of Section 13(8) and Rule 3(5). It is also to be noted that a separate notice under Section 13(8) was issued on 25.08.2021 calling upon the Petitioner to redeem the secured asset before the date of publication of sale notice in the newspapers failing which, his right to redeem in terms of Section 18 stands extinguish and thereafter, Sale Notice was issued on 13.01.2022. Therefore, the argument of the learned Counsel for the Petitioners that the Respondent Bank did not invite the attention of the Petitioners to the statutory right of redemption before the date of publication of notice for public auction, may not be correct. 11) Coming to non-compliance of Rule 9 of the Security Interest (Enforcement) Rules, 2002, the learned Counsel for the Petitioners mainly argued that, 30 days notice, as required to be given in terms of Rule 8(6) has not been complied with. 12) Clause 9(1) postulate that, “No sale of immovable property under these rules, in first instance shall take place before the expiry of thirty days from the date on which the public notice of sale is published in newspapers as referred to in the proviso to sub-rule (6) of rule 8 or notice of sale has been served to the borrower”. The non-compliance of the said Rule need not be gone into in the present Writ Petition, for the reason that the auction which was scheduled on 19.02.2022 did not materialize and, as such, the question of sale of property before the expiry of 30 days from the date on which the public notice of sale is published in newspapers, does not arise. 13) Coming to the valuation of the property, a perusal of the docket proceedings would show that on 04.02.2022, the Court permitted a trilogue among the learned counsel for the parties and the bank to come out with a common proposal with regard to allocation as the reserve price was undervalued and that a private sale be negotiated before the date of auction. However, on 08.02.2022, this Court in terms of the Order, dated 04.02.2022, observed that the Counsel communicated among themselves and agreed draft of the ‘public notice’ has been forwarded to the Court and downloaded by the Court Officer, is as under: “PUBLIC NOTICE “M/s.M.S.Ramayya Constructions Pvt.Ltd., rep. by its Managing Director, Mr.Mogga Sita Ramayya, “SUNIRMITT”, D.No.5-42/6, Purushottapuram Colony, Purushottapuram, Visakhapatnam-530051 do hereby inform to the Public in General that the following immovable properties are mortgaged to the Canara Bank, Pendurthi Branch, Yaduvamsi Towers, Chinamushidiwada, Visakhapatnam as a security for the loan sanctioned by the said Bank to M/s.M.S.Ramayya Constructions Pvt. Ltd. While so, the said Canara Bank issued a Sale Notice dt.13.01.2022 for sale of the immovable properties mentioned in the said Sale Notice by way of E-Auction on 19.02.2022. Challenging the same M/s.M.S.Ramayya Constructions Pvt. Ltd., filed Writ Petition No.2782/2022 before the Honourable High Court of Andhra Pradesh at Amaravathi. And the Honourable High Court of Andhra Pradesh at Amaravathi in Writ Petition No.2782/2022 ON THE PROPOSAL OF THE PETITIONER AS AGREED BY THE CANARA BANK HAS PERMITTEED THE M/s.M.S.Ramayya Constructions Pvt. Ltd., TO RECEIVE OFFER FOR PURCHASE OF THE immovable properties referred to in the said Sale Notice dt.13.01.2022 for securing better market price BY 15-02-2022 as W.P.No.2782/2022 IS POSTED TO 16.02.2022. The details of the said properties referred to in the said Sale Notice are streamlined hereunder. Hence this Public Notice for sale of the below mentioned properties. Quoted Cost per Square Yard is Rs.1,20,000/-. However, negotiable.” 6. The details of the said properties referred to in the said Sale Notice are streamlined hereunder. Hence this Public Notice for sale of the below mentioned properties. Quoted Cost per Square Yard is Rs.1,20,000/-. However, negotiable.” 6. In view thereof, as the above exercise would not cause any impediment to the E-Auction scheduled to be held on 19.02.2022 and may also result in better price being received for the properties in question, the court permits the petitioners to publish the said notice in the daily newspapers of their choice.” 14) By an Order, dated 17.02.2022, this Court after referring to the arguments advanced, directed the Bank Authorities to proceed with the auction but shall not finalize the same subject to Petitioner depositing 25% of the due amount. 15) It is to be noted here that, as the Petitioner failed to pay the demand made by the Respondent Bank, a notice under Rule 8(6) came to be issued on 13.01.2022, which was acknowledged by the Petitioner. Apart from that, the same was published in leading English newspapers and also in vernacular language on 15.01.2022. As per the authorized valuers valuation dated 08.12.2021, the subject property was valued at Rs.25,11,62,000/-and the previous valuation on 10.11.2021 and 16.11.2021 fetched Rs.27,01,56,000/-. The Counter indicated that the Bank has preferred the highest valuation among the two values for fixation of reserve price. But, the Counsel for the Petitioner disputes the same saying that auction if done privately, would have fetched more than what has been stated in the counter and what has been shown as ‘reserve price’. According to him, the Court being convinced gave the Petitioner liberty to sell the same in private. 16) Insofar as valuation is concerned, since the auction did not materialize and as the Debts Recovery Tribunal is now functioning at Visakhapatnam, the Petitioner can as well raise these disputed factual aspects before the Debts Recovery Tribunal. 17) Accordingly, the Writ Petition is disposed of giving liberty to the Petitioner to approach the appropriate Forum if there are any violations committed by the Bank while proceeding further with the auction process. No order as to costs. 18) Miscellaneous petitions pending, if any, shall stand closed.