ORDER : 1. Petitioner is before the Court seeking for the following reliefs: i. Issue a writ of certiorari or any other writ or order and quash the letter SBI/SAMB/LCLO-5/SILKTEX/2020-21/203 dated 08.09.2020-Annexure-Y issued by R2; ii. Issue a writ of mandamus or any other writ or order and direct the Respondent Bank to refund the excess amount of Rs.4,05,93,277/- along with interest & damages to the Petitioner. iii. Issue a writ of mandamus or any other writ or order and direct the Respondent Bank to compensate the Petitioner for missing inventories. iv. Pass such other order as this Hon’ble Court deems fit in the interest of justice and equity. 2. The Petitioner claims to be a public limited company registered under the provisions of the Companies Act, 1956, being in the business of manufacturing and exporting silk-blended fabrics and apparel. The Petitioner had availed of financial facilities from the overseas branch of Respondent No. 1, State Bank of India, as regards which the Petitioner had mortgaged immovable properties owned by the company in favour of the Respondent Bank, as also hypothecated certain plant and machinery. 3. The Petitioner was unable to repay the amount in favour of Respondent -Bank allegedly due to poor market conditions, pursuant to which Respondent No.3 had issued notice on 18.07.2015 under subsection (2) of Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, [hereinafter referred to as ‘Sarfaesi Act’]. Pursuant to which possession notice having been issued on 16.09.2015, a notice under subsection (4) of Section 13 of the Sarfaesi Act was issued, taking symbolic possession. 4. Thereafter, the Respondent issued an e-auction sale notice dated 14.12.2015, fixing the date of auction as 19-01.2016. The auction not being successful, another e-auction notice was issued on 10.02.2016, which was also unsuccessful for want of bidders. 5. A further notice of intimation of sale was issued on 16.04.2016 of movable and immovable properties, as regards which a e-auction sale notice had been issued on 13.04.2016, indicating the date of auction on 18.05.2016. The said auction was also not held on account of a lack of bidders. Respondent-Bank took physical possession of the entire property, including the factory premises, plant and machinery under subsection (4) of Section 13 of the Sarfaesi Act. 6. The said auction was also not held on account of a lack of bidders. Respondent-Bank took physical possession of the entire property, including the factory premises, plant and machinery under subsection (4) of Section 13 of the Sarfaesi Act. 6. On 14.08.2018, the Bank informed the Petitioner that State Bank of India has come out with a one- time settlement scheme 2018 [OTS] and the Petitioner would be eligible to take benefit of the OTS scheme. In the said letter, a one-time settlement for an amount of Rs.6,23,31,720/-, was given to the Petitioner with the Petitioner having time until 30.09.2018 to communicate its acceptance of the offer and pay 5% of the OTS amount, namely Rs.31,16,586/-. 7. In the meanwhile, on 30.08.2018, the Bank issued a statutory notice of 15 days under Rule 6(2) and Rule 8(6) of the Security Interest Bracket (Enforcement) Rules, 2002, for the sale of movable and immovable assets, with the auction scheduled to be held on 18.09.2018. Immediately on receipt of the notice, the Petitioner visited the respondent-Bank to inform them that it intended to avail the benefit of the OTS scheme and that they would submit their acceptance letter with initial payment of Rs.31,16,586/- within the period as prescribed in the OTS letter. These amounts were deposited on 28.09.2018. However, on 16.10.2018, Respondent Bank sent an email containing an attachment, a letter dated 12.10.2018, indicating that the Respondent had proceeded with the e-auction sale, the property had been auctioned, it is under the cover of that letter that a Bankers cheque was issued, returning the amount deposited by the Petitioner. 8. Further, respondent No.2 had mentioned that the property, having been auctioned for a total consideration of Rs.13,05,00,000/- the total due being Rs.16,80,03,570/-, the balance amount is required to be paid by the Petitioner. 9. The Petitioner challenged the auction sale before this Court in WP No. 47816/2018, which came to be disposed of vide order dated 17.12.2018, indicating that the Petitioner has an alternative remedy available under Section 17 of the Sarfaesi Act. 10. Hence, the Petitioner challenged the auction before the Debt Recovery Tribunal in SR No. 11184 of 2018 by filing an application for condonation of the delay of 75 days. The said application came to be dismissed, and so also the appeal came to be dismissed as barred by limitation. The Petitioner thereafter approached the Debt Recovery Appellate Tribunal. 11. 10. Hence, the Petitioner challenged the auction before the Debt Recovery Tribunal in SR No. 11184 of 2018 by filing an application for condonation of the delay of 75 days. The said application came to be dismissed, and so also the appeal came to be dismissed as barred by limitation. The Petitioner thereafter approached the Debt Recovery Appellate Tribunal. 11. The Petitioner, in the meanwhile, made an application to the Respondent to adjust the OTS amount of Rs.6,23,31,720/- from the total auction proceeds of Rs.13,05,00,000/- and pay the balance amount, which was refused by the Respondent. The Petitioner also raised certain issues regarding missing machinery and called upon the Respondent to ascertain the same and secure those machines, inasmuch as only a few of the machinery had been sold, and other machinery was required to be present in the factory premises. When inspection was made, the machinery not being found, and the same was also taken up with the respondent authorities. The Petitioner is now before this Court seeking the aforesaid reliefs being aggrieved by non-acceptance of the OTS proposal, illegal sale of the property, missing machinery and valuation reports not being done properly. 12. Sri. Rakesh B. Bhat, the Counsel for the Petitioner, would submit that: 12.1. Once the one-time settlement proposal was issued on 9.08.2018, providing a time frame until 30.09.2018, it was required for the Respondent to wait for that period and not issue an e-auction notification. Once the e-auction notification was issued and the Petitioner had approached the Respondent- Bank accepting the OTS proposal and having paid 5% of the OTS amount of Rs.31,16,586/-, the Respondent could not have confirmed the auction and returned the above deposit. 12.2. His submission is that until 30.09.2018, the Respondent ought to have stayed their hands, and it is only in the event of the Petitioner not accepting the said OTS offer that the Bank ought to have proceeded with the auction. In the present matter, before the auction, the Petitioner, having accepted the offer of OTS, the question of the sale being carried out would not arise. 12.3. In the present matter, before the auction, the Petitioner, having accepted the offer of OTS, the question of the sale being carried out would not arise. 12.3. Be that as it may, he submits that a long period has lapsed, the Petitioner would not insist as regards the illegal sale, but would submit that the amount received on account of the e- auction in excess of the OTS amount proposed by the Respondent bank would have to be returned to the Petitioner along with interest. 12.4. His submission is that the OTS proposal for a sum of Rs.6,23,31,720/-, having been accepted by the Petitioner, the Petitioner could only recover that amount and any amount received on account of the auction over and above the said OTS amount would have to be returned to the Petitioner. His submission is, therefore, that the Petitioner is neither challenging the auction nor the proceeding which had been initiated against the Petitioner. Even if the actions of the Respondents were held to be proper, it is the balance amount which the Petitioner would be entitled to with the same bank rate of interest as that recovered from the Petitioner. 12.5. Though he makes various submissions as regards the missing machinery and or the machinery not having been sold is not traceable, the said submission is a feeble attempt made in that regard. 12.6. On the basis of the above submissions, he submits that the writ petition is required to be allowed and the reliefs sought for granted. 13. Sri Vikram Huilgol, learned Senior counsel appearing for Sri.Ashok Kumar.M, learned counsel for the State Bank of India, would submit that: 13.1. All actions which have been taken up by the Respondents are proper and correct. The procedure under Section 13 has been followed to the letter. The Respondents had brought the property for e-auction on several occasions, the auction not being successful, it is only the last auction which having been successful, the Petitioner has raised all these issues. There is no bonafides on the part of the Petitioner until then to make payment of any money. The Petitioner has waited till the last moment and then come up with the proposal. 13.2. There is no bonafides on the part of the Petitioner until then to make payment of any money. The Petitioner has waited till the last moment and then come up with the proposal. 13.2. His submission is that the OTS offer made by the Respondent cannot be treated as a contract of OTS, nor could the Respondent bank be restrained from taking further action merely because an OTS proposal had been given. The Bank being obligated and OTS -scheme 2 of 2018 as mandated by the Reserve Bank of India, had made the offer as per the said scheme. Merely making the offer did not curtail the rights of the Bank to initiate an auction sale of the property. The conduct of the Petitioner has been deprecated by this Court, as also by the DRT and as such, the Petitioner would not be entitled to any equitable consideration. The property, having been brought for auction 11 times, it was always available for the Petitioner to have during any of those 11 times to make payment of the amounts. 13.3. The Petitioner had made a similar prayer in WP 47816/2018, which, having been dismissed, would act as res judicata in the present matter. 13.4. On all the above grounds, he submits that the writ petition as filed is required to be dismissed. 14. Heard Sri.Rakesh B.Bhat, learned counsel for the Petitioner and Sri.Vikram Huilgol, learned Senior counsel for Sri.Ashok Kumar.M, learned counsel for respondents No.1 to 3. Perused papers. 15. The points that would arise for consideration are: i. Whether, after the issuance of an OTS proposal, the Respondent bank could proceed with the auction of the property before the time period of the OTS expired? ii. Whether the conduct of the Petitioner on earlier 11 auctions and its repeated failure would be a ground for consideration for the Respondent to carry out the auction during the subsistence of the OTS proposal? iii. Whether the Bank could have appropriated the entire auction proceeds without giving due credit in derogation of the OTS offered by the Bank? iv. Whether the reliefs which have been sought for in the present matter ought to be granted? v. What Order? 16. I answer the above points as follows. 17. iii. Whether the Bank could have appropriated the entire auction proceeds without giving due credit in derogation of the OTS offered by the Bank? iv. Whether the reliefs which have been sought for in the present matter ought to be granted? v. What Order? 16. I answer the above points as follows. 17. ANSWER TO POINT NO.1: Whether, after the issuance of an OTS proposal, the Respondent bank could proceed with the auction of the property before the time period of the OTS expired? 17.1. The facts are not in dispute. The Respondent-Bank has not denied the fact that the Bank had on 14-08-2018 issued an OTS proposal categorically stating that the book outstanding as on that date was Rs.8,90,45,314/- and OTS amount required to be paid was Rs.6,23,31,720/- which OTS would be processed on deposit of 5% amounting to Rs. 31,16,586/- and 20% of the amount namely Rs.1,24,66,344/- would have to be paid within 30 days from the date of sanction of the OTS. The balance being liable to be paid within six months thereafter. 17.2. In the said letter, the Bank had called upon the Petitioner to advise on its willingness to settle the dues by 30.09.2018. However, the Bank on 30.08.2018 itself had issued the e-auction notice for the properties and proceeded to sell the same. 17.3. The contention of Sri Vikram Huilgol, learned Counsel for the Bank is that the Bank could proceed with the sale irrespective of the OTS proposal to protect its own interest. I am unable to accept the said submission. Section 2 of the Indian Contract Act. 1872, being the interpretation clause of the Contract Act, is reproduced hereunder for easy reference: 2. Interpretation-clause.— In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context:— (a) When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal; (b) When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal, when accepted, becomes a promise; (c) The person making the proposal is called the “promisor”, and the person accepting the proposal is called the “promisee”; (d) When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise; (e) Every promise and every set of promises, forming the consideration for each other, is an agreement; (f) Promises which form the consideration or part of the consideration for each other are called reciprocal promises; (g) An agreement not enforceable by law is said to be void; (h) An agreement enforceable by law is a contract; (i) An agreement which is enforceable by law at the option of one or more of the parties thereto, but not at the option of the other or others, is a voidable contract; (j) A contract which ceases to be enforceable by law becomes void when it ceases to be enforceable. 17.4. Clause (a) of Section 2 would indicate that when one person signifies to another his willingness to do or to abstain from doing anything with a view to obtaining the assent of that other to such act or obstinance, he is said to make a proposal. The OTS proposal made by the Bank in this case qualifies to be an offer. 17.5. Section 3 of the Contract Act is reproduced hereunder for easy reference: 3. Communication, acceptance and revocation of proposals.— The communication of proposals, the acceptance of proposals, and the revocation of proposals and acceptances, respectively, are deemed to be made by any act or omission of the party proposing, accepting or revoking by which he intends to communicate such proposal, acceptance or revocation, or which has the effect of communicating it. 17.6. In terms of Section 3, the communication of proposal and acceptance of proposal and revocation of proposal and acceptance could be made by any act or omission of the party by which he intends to communicate such proposal. In this case the email enclosing the attachment offering an OTS is a clear and categorical communication of such an offer by the Bank. 17.7. Section 4 of the Contract Act is reproduced hereunder for easy reference: 4. In this case the email enclosing the attachment offering an OTS is a clear and categorical communication of such an offer by the Bank. 17.7. Section 4 of the Contract Act is reproduced hereunder for easy reference: 4. Communication when complete.— The communication of a proposal is complete when it comes to the knowledge of the person to whom it is made. The communication of an acceptance is complete,— as against the proposer, when it is put in a course of transmission to him, so as to be out of the power of the acceptor; as against the acceptor, when it comes to the knowledge of the proposer. The communication of a revocation is complete,— as against the person who makes it, when it is put into a course of transmission to the person to whom it is made, so as to be out of the power of the person who makes it; as against the person to whom it is made, when it comes to his knowledge. 17.8. In terms of Section 4, the communication of the proposal is stated to be complete when it comes to the knowledge of the person to whom it is made. In this case, the offer of OTS made by the Bank to the Petitioner is complete when it came to the knowledge of the Petitioner, i.e., when the email was received by the Petitioner. 17.9. Revocation of proposal or acceptance is dealt with by Section 5, which is reproduced hereunder for easy reference: 5. Revocation of proposals and acceptances .— A proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer, but not afterwards. An acceptance may be revoked at any time before the communication of the acceptance is complete as against the acceptor, but not afterwards. 17.10. A proposal could be revoked at any time before the communication of its acceptance is complete as against the proposer, but not afterwards. That is to say, an offer of OTS could have been withdrawn before the same was accepted by the Petitioner. In the present case, the offer which had been made by the Bank on 14.08.2018, provided a time period until 30.09.2018 for the Petitioner to accept it, which was infact accepted on 28.09.2018 and 5% amounts paid. That is to say, an offer of OTS could have been withdrawn before the same was accepted by the Petitioner. In the present case, the offer which had been made by the Bank on 14.08.2018, provided a time period until 30.09.2018 for the Petitioner to accept it, which was infact accepted on 28.09.2018 and 5% amounts paid. Once a time period was fixed, in my considered opinion, the Respondent Bank could not have, before the expiry of the said time period, initiated any proceedings inasmuch as it was always available for the Petitioner to accept the OTS offer until 30.09.2018 by making payment of 5% of the OTS amount and it is only after sanction of the OTS, 20% of the amount was to be paid. The offer having been accepted by the Petitioner on 28.09.2018 and until then there being no revocation of the offer made by the Bank, let alone being communicated to the Petitioner, the payment of the 5% amount resulted in a binding contract between the parties. 17.11. There would be no sanctity to an offer of OTS by a Bank if the submission of the learned counsel for the Respondent were to be accepted that, on the one hand an offer for OTS would be issued by the Bank, but on the other the Bank would continue with the recovery proceedings in this case by way of sale of a property. 17.12. The Petitioner having accepted the offer on 28.09.2018. and indicated the same by performing its obligation of deposit of 5%, the proposal made by the Bank having been accepted by the Petitioner, a binding contract came into being and even at that stage, the Respondent Bank ought to have stayed its hand and not proceeded with the sale of the property, but to have called upon the Petitioner to make payment of 20% of the amount within 30 days and the balance within 6 months. It is a matter of fact and record and not in dispute that the Bank did not revoke its offer by way of any communication before 28.09.2018. 17.13. Respondent Bank could not have proceeded with the auction and recovered the money. It is a matter of fact and record and not in dispute that the Bank did not revoke its offer by way of any communication before 28.09.2018. 17.13. Respondent Bank could not have proceeded with the auction and recovered the money. Hence, I answer point No.1 by holding that after the issuance of an OTS proposal, the Respondent bank could not proceed with the auction of the property before the time period of the OTS expired, or without revoking OTS proposal before its acceptance by the Petitioner which was so accepted on 29.09.2018. 18. ANSWER TO POINT NO.2: Whether the conduct of the Petitioner on earlier 11 auctions and its repeated failure would be a ground for consideration for the Respondent to carry out the auction during the subsistence of the OTS proposal? 18.1. Much has been sought to be contended by Counsel for Respondent No.2 that on 11 earlier occasions when the property was brought to sale, the Petitioner had not come forward to make payment of the monies, it is only on this 12th occasion when the auction sale was successful that the Petitioner has come running to the Bank and as such, the Bank could proceed with the auction. 18.2. For the very same reasons as indicated in answer to point No.1, I am of the opinion that once an offer of OTS had been made and a time period had been fixed, the said time period was required to be adhered to by the Bank and the Bank could not have, before the expiry of the time, proceeded with the auction irrespective of the conduct of the Petitioner, without revoking the offer made. The offer made by the Bank was, despite the 11 earlier auctions being unsuccessful, it is expected of the Bank to comply with the time period and adhere to the terms of its own offer, now to blame the conduct of the Respondent and contend that conduct would entitle the Bank to sell the property is not sustainable, moreso when the Petitioner had accepted the offer on 29.09.2018. 18.3. Hence, I answer point No.2 by holding that the conduct of the Petitioner on earlier 11 auctions and its repeated failure would not be a ground for consideration for the Respondent to carry out the auction during the subsistence of the OTS proposal, without having revoked the proposal. 18.3. Hence, I answer point No.2 by holding that the conduct of the Petitioner on earlier 11 auctions and its repeated failure would not be a ground for consideration for the Respondent to carry out the auction during the subsistence of the OTS proposal, without having revoked the proposal. So long as it was not revoked, the offer was subsisting and on acceptance by the Petitioner on 29.09.2018, fructified into a contract. 19. ANSWER TO POINT NO.3: Whether the Bank could have appropriated the entire auction proceeds without giving due credit in derogation of the OTS offered by the Bank? 19.1. Though my answers to points No.1 and 2 would lead to the inevitable conclusion that the sale is required to be set aside, the submission of Sri.Rakesh Bhat, learned counsel for the Petitioner being that he would not press for the same, but only press for adjustment of the OTS amounts and return the balance amount, I am of the considered opinion that the Bank having issued a OTS proposal on 14.08.2018 for a sum of Rs.6,23,31,720/-, the Bank having categorically indicated that it is ready to close the account of the Petitioner by receiving the aforesaid amount, 5% to be paid upfront, 20% in 30 days and balance in 6 months and agreed to settle the loan for the OTS amount, the said OTS offer having been accepted by the Petitioner on 29.09.2018 by depositing the requisite 5%, the Bank cannot be heard to contend that the entire due amounts would be required to be paid to the Bank when it has made a proposal to settle the account for a lesser amount, which has been accepted by the Petitioner and the Petitioner had in fact deposited 5% of the amount, which was returned much subsequently by the Respondent. 19.2. Thus, I answer point number 3, by holding that the Bank could not have appropriated the entire auction proceeds in derogation of the OTS offered by the Bank, it could only adjust the amounts offered under the OTS. 20. ANSWER TO POINT NO.4: Whether the reliefs which have been sought for in the present matter ought to be granted? 20.1. Thus, I answer point number 3, by holding that the Bank could not have appropriated the entire auction proceeds in derogation of the OTS offered by the Bank, it could only adjust the amounts offered under the OTS. 20. ANSWER TO POINT NO.4: Whether the reliefs which have been sought for in the present matter ought to be granted? 20.1. In view of my answers to points No.1 to 3, the sale not being capable of being carried out after 29.09.2018, the Respondent Bank could not contend that the acceptance of the OTS by the Petitioner has happened after the sale and deny the Petitioner the benefit of the OTS. Whether the acceptance of the OTS was conveyed by the Petitioner before the sale or after the sale, the fact remains that the same was conveyed prior to the last date indicated by the Bank itself, namely 30.09.2018, which is an admitted fact and more importantly before the revocation of the offer, in as much as the Bank has never revoked its OTS offer, the said offer continued to stand and at the most would have expired by efflux on time at the midnight of 30.09.2018 and not before. 20.2. In that view of the matter, the rejection of the request made by the Petitioner by the Respondent for payment of the excess amount of consideration received over and above the OTS amount is not sustainable. Consequently, the difference between the OTS amount and the sale amount would be required to be paid by the Respondent Bank to the Petitioner along with interest at the same rate as that charged by the Respondent against the Petitioner. 20.3. The aspect of a challenge to the sale having been given up, so also the aspect of missing inventories having been given up by the Petitioner, no order in respect thereto is required to be made. 21. ANSWER TO POINT NO.5: What Order? 21.1. In that view of the matter, I pass the following: ORDER: i. The writ petition is partly allowed, a certiorari is issued, the letter SBI/SAMB/CLO-T/SILKTEX/2020-21/203 dated 8.09.2020 at Annexure-Y is quashed. ii. A mandamus is issued directing the respondent-Bank to make payment of the excess amount received over and above the due amount of Rs.6,81,68,280/- to the Petitioner along with interest from the date of receipt of the entire sale consideration from the auction purchaser by the Bank. iii. ii. A mandamus is issued directing the respondent-Bank to make payment of the excess amount received over and above the due amount of Rs.6,81,68,280/- to the Petitioner along with interest from the date of receipt of the entire sale consideration from the auction purchaser by the Bank. iii. The said payment to be made within a period of 30 days from the date of receipt of a copy of this order.