Ms Benaka Brick Works vs Bank of Baroda on 30 October 2024

**: O R D E R :**

The Miscellaneous Appeal [MA] No.10/2020 is filed by the Borrower (Applicant) who had challenged the auction conducted by the respondent 2M.A. No.10/2020

bank on 31.08.2009 before this Tribunal in SA.No.511/2009 which came to be dismissed. The present MA is filed with a prayer to pass the suitable relief as under:

"Holding that the applicant is entitled to receive Rs.2,37,50,000/- together with interest at such rate as Tribunal deems fit and costs of this petition, in the interest of justice and equity".

2. The factual matrix of the case is that the 2^nd respondent initiated OA.No.396/2007 on the file of this Tribunal for grant of recovery certificate to recover a sum of Rs.97,83,479/- against Smt. N. Parvathamma, M/s. Sri. Vinayaka Electrical Enterprises and Sri. G.K. Shantharaju and this Tribunal issued recovery certificate on 30.06.2008. The respondent No.2 gave up the rights under recovery certificate issued under RDB Act but initiated action under SARFAESI Act on 28.07.2009 against 'B' schedule property to this application and issued demand notice on 03.10.2011 for 'A' schedule property. Smt. Parvathamma, the 1^st defendant (in OA.No.396/2017) as proprietor of M/s. Benaka Brick Works had a unit at Mahadevapura, Kasaba Hobli, Nelamangala Taluk and M/s. Sri. Vinayaka Electrical Enterprises represented by Sri. G.K. Shantaraju, the 3^rd defendant (in OA.No.396/2017) had correspondingly offered security of schedule 'A' and 'B' properties for grant of credit facilities by respondent No.2. The brick works name and styled 'Benaka Brick Works'

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was a SSI unit belonging to Smt. Paravathamma as women entrepreneur. The other unit name and styled Sri. Vinayaka Electrical Enterprises for which the husband of Smt. Parvathamma, the applicant herein Sri. G.K. Shantaraju was the proprietor had also availed credit facilities. In view of the failure on the part of Bengaluru Development Authority to settle the bill of Sri. Vinayaka Electrical Enterprises, debt became bad and the respondents proceeded to auction the property mortgaged. The guideline value of 'A' schedule property as determined by the Sub Registrar was Rs.2,05,00,000/- on the date of public notice while the respondents mentioned the reserve price as Rs.1,05,00,000/-. Similarly though the land value of 'B' schedule was valued at Rs.150/- per sft which measured 3 Acres and 34 guntas, out of which 2 Acres was industrially converted. The respondents fixed the reserve price at Rs.80/- per sft though the guideline value was Rs.150/- per Sft.

3. It is contended that in the Writ Petition filed by the petitioner/s and in the correspondence that the applicant/s had with the respondents, it was brought to there/their notice that the applicants remained in possession of 'A' schedule property but the respondents put it to auction alleging that they have taken physical possession to deprive the applicant/s possession. The respondents created documents to show that possession of the property has been delivered in favour of the 4M.A. No.10/2020

successful bidder. The documents were created by the bank and Sale Certificate was issued in favour of auction purchaser/s conveying right, title and interest in the property however, without possession.

4. In W.P.Nos.11536/2012 and 11595/2012, the respondents filed IA.No.3/2012 requesting Hon'ble High Court of Karnataka seeking direction to pay the applicant herein an amount of Rs.21,72,215/- being the excess amount still lying with bank after the entire debt of the applicant stood discharged. The Hon'ble High Court of Karnataka by order dated 29.12.2012 directed the respondents to pay said amount of Rs.21,72,215/- directly to the applicants while dismissing the I.A. Thereafter, the respondents' Advocate Sri.Y.V. Parthasarathy intended to deliver a demand draft for Rs.21,72,215/- to the Advocate who was on record in the writ petition who however did not accept the same. 'B' schedule property was auctioned for a sum of Rs.80,50,000/- while the guideline value was Rs.1,30,68,000/- for a meager sum of Rs.80,50,000/- while the guideline value was Rs. 1,30,68,000/-. If 'B' schedule property were to be sold at guideline value issued by Government of Karnataka, the entire debt of M/s. Benaka Brick Industries and Sri Vinayaka Electrical Industries would have been discharged and there should have been residual amount available and there would have arisen no occasion for auctioning 'A' schedule property. There would have been no necessary to 5M.A. No.10/2020

auction 'A' schedule property for a sum of Rs.1,32,55,000/-.

5. It is contended that the auction purchaser was declared as successful bidder of 'B' schedule industrial shed having agreed to purchase the same for Rs.80,55,540/- (even though the guide line value was Rs. 1,30,68,000/-) by respondent bank letter dated 09.09.2009. The auction pruchaser had paid Rs.20,13,885/- being the 25% of the bid amount, while seeking time till 15.09.2009 for payment of balance of Rs.60,41,655/-, failing which the respondents made it clear that they would cancel the auction and the amount in deposit would be forfeited and adjusted towards the loan of the borrower. Despite the respondents' notifying the auction purchaser that the balance has to be paid within the time frame, illegally and in order to help the auction purchaser and to defraud the applicant, allowed the auction purchaser to pay the balance till 19.01.2011 on which day, the respondents executed sale certificate. The bank clandestinely in connivance with the auction purchaser granted time till 19.01.2011 which resulted in great monetary loss to the applicant as the respondents have debited interest at an exorbitant rate to the account of the applicant. If the respondents were to forfeit the advance or had required the auction purchaser to pay the balance on or before 15.09.2009, applicant would have been saved substantially. There was no impediment or hinderance for the respondent bank to require the auction 6M.A. No.10/2020

purchaser to pay the balance or auction purchasers failure to pay the balance well in time, the respondents should have ordered to forfeit the advance and adjust the same to the outstanding of the applicant.

6. Schedule 'A' property was sold by the bank for Rs.1,32,55,000/- which was totally undervalued. After the alleged dues of the bank was discharged, applicant has purchased the same property for Rs.2,00,00,000/- (Rupees Two crores only) which document is registered as document No.5862/2015-16. This amply demonstrates that the bank had no intention of following transparency in auctioning the property or in handling the accounts of the applicant. In having auctioned 'A' schedule property, the respondents committed serious fraud as the same property was repurchased by the applicant for Rs.2,00,00,000/-. Since there was no need to auction 'A' schedule property, the respondents are liable to pay Rs.1,32,55,000/- with interest at 18% p.a. from the date of auction till payment.

7. The Applicants are entitled to receive the following amounts from respondents:-

i) Rs.1,32,50,000/- being the auction proceeds of 'A' schedule as the debt due as on 30.06.2008 was Rs. 1,10,87,650/- with interest and the sale of 'B' schedule at guideline value would have satisfied the debt.

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ii) Rs.68,00,000/- + 12,50,000/- stamp duty to repurchase the 'A' schedule property.

iii) Towards plant and machinery described in schedule 'C' to the Recovery Certificate dated 30.06.2008 was not taken into consideration which was valued at Rs.25,00,000/- which the applicant would have realized.

8. It is contended that the petitioner has right to seek the suitable remedy before the Tribunal in view of the fact that the possession of the secured asset was taken over by the secured creditor which was not in accordance with the provisions of Securitisation Act and rules made there under.

9. The applicant has filed written submissions contending that the applicant is entitled to receive Rs.21,72,215/- with interest @15.5% p.a. from 16.05.2012 till payment. The bank has to calculate interest at 15.5% p.a. compounded quarterly as it is the rate they would have charged to the applicant and the amount is retained by them. However, the present application is filed on 12.03.2018 with an inordinate delay. Hence, the applicant has filed IA.No.513/2018 for condone the delay [without mentioning the number of days delay]. In the affidavit, it is contended that the delay application is filed under S.19 read with S.23 of SARFAESI Act, 2002 seeking compensation from the respondent bank for 8M.A. No.10/2020

their alleged irregularities committed while they took possession of the property and allegedly auctioning the same which belongs to applicant and others. The proceedings before the Tribunal was challenged in SA No.511/2009 which concluded before the Hon'ble DRAT in RA(SA) 97/2014 on 03.03.2016. Hence, the applicant prays to pass the suitable relief.

10. The respondents have filed objections inter alia contending that the application is filed after a lapse of about 9 years in SA.No.511/2009 which came to be dismissed by a considered order dated 30.11.2009. Hence, on this ground of inordinate delay, the Miscellaneous Application is liable to be dismissed. The application is filed with an ulterior motive for monetary gain on the ground of loss and damages, which is not maintainable before this Tribunal at this belated stage. The OA.No.396/2017 came to be allowed by an Order dated 30.06.2008 which became final and mortgage created in favour of the respondent No.2 bank is upheld as valid. All the question of law and facts have been determined before this Tribunal in OA proceedings and SA proceedings SA.No.61/2008, SA.No.31/2009, and SA.No.32/2009 and SA.No.511/2009. Hence, the principle of res-judicata is applicable to the present petition. Therefore, the present application is liable to rejected.

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11. It is contended that the Hon'ble High Court of Karnataka in W.P. No.38285/2009 dated 12.08.2011 while dismissing the Writ Petition has observed that the action of the petitioner in approaching the High Court repeatedly is nothing but abuse of process of law. There cannot be any doubt that the petitioner's repeated attempts by filing similar Writ petitions on the same point is nothing but abuse of process of law. Hence, the present application is also liable to be rejected with exemplary costs.

12. It is submitted that the OA.No.396/2007 came to be allowed for Rs.97,83,479/- along with interest at 15.50% p.a. with months rests from 26.09.2007 upto date of realization along with costs. The amount is ordered to be recovered by sale of mortgaged properties mentioned in schedule of the properties in Recovery Certificate. The schedule - B is the house property and the schedule - A is the factory property as mentioned in the R.C.

13. Since the applicant and the defendants mentioned in the O.A. failed to pay the amount in terms of the Recovery Certificate, the respondent bank had taken action against the mortgaged property under SARFAESI Act to realize its dues and sold the House Property mentioned in accordance with law and the sale certificate came to be issued by the Authorized Officer on 22-12-2011 for Rs.1,32,55,000/- in favour of auction purchasers Sri.V. Ashok Kumar and Mrs. Vena Ashok and the 10M.A. No.10/2020

Sale Certificate came to be registered as No.328/2012- 2013 stored in CD No.RJND213 of Book-I in the Office of the Sub-Registrar, Rajajinagar, Bangalore.

14. Since the sale proceeds are not sufficient to recover the dues payable to the Respondent No.2, Bank, the respondents have also sold the factory property for Rs.80,55,540/- under the SARFAESI Act-2002 in accordance with law and the sale certificate came to be issued on 19-01-2011 in favour of the highest bidder Mrs. Nagasheela Prakash. After recovery of entire amount payable to the Respondent No.2 Bank, there is an excess sale proceeds of Rs.21,72,215/- was left for which a DD No. 126936, dated: 16-05-2012 was prepared in the name of Smt. N. Parvathamma, and sent by RPAD which is not accepted by her. As per the order of the Hon'ble High Court, the said DD was sent by RPAD which came to be returned.

15. The averments made in present Misc. Application that the guideline value of the factory property is Rs.1,30,68,000/- and the same was sold for Rs.80,55,540/- is not correct. The mortgaged property is sold in accordance with law after obtaining proper valuation report which is upheld by this Hon'ble Tribunal in S.A proceedings.

16. The Respondent Bank had sold under SARFAESI Act and issued the sale certificate in accordance with law. The applicant has 11M.A. No.10/2020

alleged that the applicant had purchased the said House property under a Registered Sale deed for Rs.2,00,00,000/- in No. 5862/2015- 2016 etc., is not within the knowledge of the respondents Bank. The respondent bank is not liable to pay the amount of Rs.68,00,000/- + Rs. 12.50,000/- towards the stamp duty charge to the applicant herein.

17. The other averments made in the Misc. Application that the appellant has approached the DRAT in No.RA (SA)97/2014 which came to be dismissed on 03-03-2016 and filed a suit O.S. No. 8202/2008 for partition before the City Civil Court at Bangalore, which is pending for consideration. There is no loss caused to the applicant. The Respondents Bank had proceeded against the mortgaged property in accordance with law under the SARFAESI Act-2002 which is upheld by this Tribunal in SA proceedings.

18. It is submitted that there is absolutely no bona fide on the part of the applicant herein. The present Mise. Application is filed with an ulterior motive to harass the respondent Bank and for monetary enrichment. The Hon'ble High Court was pleased to observe in their order that the applicant's action by filing petitions/attempts on the same point is nothing but abuse of process of law. Hence, after a lapse of about 9 years, the respondents are not liable to pay any amount much less Rs.2,37,50,000/- with interest as alleged in the Misc. Application. The said 12M.A. No.10/2020

figure is arrived by imagination and there is no basis for the same. The applicants are not entitled for Rs.50,00,000/- towards the damages as alleged in the Misc. Application. So also the applicant is also not entitled for Rs.2,00,000/- towards the medical expenses spent on Sri.G.K. Shantharaju as mentioned in the Misc. Application. All these amounts are calculated and arrived by arbitrarily and there is no basis for the same. The applicant is not entitled for the relief as claimed in the Misc. Application. This type of vague and bald application cannot be entertained which is filed after a lapse of 9 years. Hence, the respondent bank prays to dismiss the application with exemplary costs.

*Heard the arguments of both the counsels and perused the records of the case.*

19. It is manifest from the records that the applicant is a Proprietary firm represented by it's Proprietor Smt. N. Parvathamma. The applicant is the borrower, a defaulter and an unsuccessful litigant who is agitating the measures initiated by the respondent bank under the Act from 2007 invoking the rights available to her before the Debts Recovery Tribunal; Debts Recovery Appellate Tribunal; Hon'ble High Court of Karnataka and the Hon'ble Supreme Court.

20. It is discernible from the records that the applicant defaulted in repayments resulting in the classification of the account as NPA as per 13M.A. No.10/2020

RBI guidelines. Consequent to classification of the account as NPA, the 1^st respondent bank being a secured creditor has initiated measures under the Act for enforcing the security and have sold the moveable and immovable during 2011.

21. The respondent bank has filed OA.No.396/2007 against the defendants for recovery of a sum of Rs.97,83,479 along with costs and interest @ 15.5% per annum. The defendant No.2 [Smt. N. Parvathamma, the applicant in the present case] and defendant No.4 [husband of the applicant in the present case] had filed written statement. But, have not filed their evidence. Considering the contentions raised by both the parties, this Tribunal has allowed the OA.No.396/2017 and accordingly Recovery Certificate came to be issued by an Order dated 30.06.2008. The said amount was ordered to be recovered by sale of the mortgaged properties mentioned in schedule properties. The schedule – B is the House property and the schedule – A is the factory property as mentioned in the Recovery Certificate. All the question of law and facts have been determined before this Tribunal in O A proceedings and SA proceedings i.e. SA.No.61/2008 which came to be disposed off on 09.07.2008 on the Memo filed by applicant side seeking 12 months' time to clear off entire dues. However, six months' time was granted in equated monthly installments to clear off the entire dues. So, also 14M.A. No.10/2020

SA.No.31/2009 and SA.No.32/2009 filed by Daughters [Kumari G.S. Sumalatha, Kumari G.S. Nalini] and Sons [Mr. G.S. Mahesh] of Smt. Parvathmma, came to be dismissed by an Order dated 13.07.2009 with costs of Rs.10,000/- each on 13.07.2009.

22. Concededly, the applicant had challenged the sale of moveable and immovable properties way back in 2009 under S.17 of the Act in SA.No.511/2009 which came to be dismissed vide Order dated 30.11.2009.

23. It is pertinent to mention that the Hon'ble High Court of Karnataka and the Hon'ble Supreme Court of India has dismissed the Writ Petitions, SLP (Civil) as detailed below:

i) W.P.No.14346/2008 dated 02.12.2008 was dismissed with cost of Rs.10,000/- by observing that the action of the petitioners in approaching the Hon'ble High Court was nothing but an abuse of process of law and encashing the leniency of the High Court.

ii) W.P.No.38285/2009 dated 12.08.2011 was also dismissed and it was observed that the action of the petitioner in approaching the High Court repeatedly was nothing but abuse of process of law and there cannot be any doubt that the petitioner's repeated attempts by filing 15M.A. No.10/2020

similar Writ Petition on the same point was nothing but abuse of process of law".

iii) Further, in W.P. No.11536/2012 and WP.No.11595/2012 dated: 17-07-2012 filed by Smt. Parvathamma, it was held that: "the Action of the Petitioner in approaching the High Court repeatedly is nothing but abuse of process of law. Further held that Auction has already taken place, sale certificate came to be issued in favour of the third party and the decree is satisfied. The excess amount of Rs. 21,72,215/- lying with the Bank shall be disbursed to the petitioner. As this Court is satisfied about the validity of auction proceedings, no interference is called for, more particularly having regard to the earlier proceedings."

(iv) The order passed in the above said W.P.No. 11536/2012 and W.P.No.11595/2012 dated 17-07-2012 have been challenged before the Division Bench of the Hon'ble High Court of Karnataka in W.A. Nos.5040-41/2012, which came to be dismissed with cost of Rs.10,000/- by an order dated: 20-11-2012. It is observed in the said order that "if the Courts interfere at this stage, it will be difficult for the Banks or any other secured creditor to recover their dues. It is well known that the court Auction as it is does not get the market price of the land, primarily because of interventions because of litigations."

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(v) . The order passed in the above said W.A. Nos. 5040-41/2012 dated: 20-11-2012 have been challenged before the Hon'ble Supreme Court of India, in Special Leave Petition (Civil) Nos. 365-366/2013, which came to be dismissed on 15-02-2013.

24. The applicant has also filed a RA(SA)97/2014 before Debt Recovery Appellate Tribunal, Chennai, which is also dismissed vide Order dated 03.03.2016.

25. The present M.A.No.10/2020 is filed with a prayer. "Holding that the applicant is entitled to receive Rs.2,37,50,000/- (Rupees Two crores thirty seven lakhs fifty thousand only) together with interest at such rate as the Hon'ble Tribunal deems fit along with costs of this petition", without any supporting documents and the applicant is seeking for the above said relief.

26. It is admitted fact that the applicant had challenged the illegal sale of his movable and immovable properties before this Tribunal at first instance which did not consider the illegal sale of the properties till today is ill founded and the same is contrary to the number of applications/cases filed by the applicant.

27. The Tribunal as the court of first instance has considered the case/s of the applicant on merits and has been considering the averments 17M.A. No.10/2020

and the arguments of the applicant even on the date of the present M.A. Though this Tribunal had considered the matter on merits and a detailed orders are passed from time to time as when the applicant has approached, the applicant is unsatisfied and unsuccessful litigant who comprehends the Orders of all the courts including the Order of Apex Court to his benefits without any force of law or on facts.

28. The applicant has made an endeavor in challenging the measures right from the classification of the account as NPA till the sale of the secured asset by the respondent bank as mandated under the Act. It is pertinent to note that the applicant has challenged the sale of the secured asset under S.17 of the Act in SA.No.511/2009. The Tribunal on consideration of the merits dismissed the delay application resulting in the dismissal of the SA.No.511/2009 filed under S.17[1] of the Act.

29. Section 13 of the SARFAESI Act deals with enforcement of security interest by issuing demand notice under S.13[2] of the Act to the borrower to repay the entire total outstanding due along with interest and other applicable charges within 60 days. In case of default in liquidating the liability as demanded within 60 days from the date of demand, the secured creditor can take recourse to the measures prescribed in sub section (4) thereof for recovery of the secured debt.

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30. Any person aggrieved by any of the measures taken by the secured creditor under sub section (4) of Section 13 can approach the Debts Recovery Tribunal. The sub section (1) of Section 17 of the SARFAESI Act reads thus:

*[Application against measures to recover secured debts]–(1) Any person(including borrower), aggrieved by any of the measures referred to in subsection (4) of Section 13 taken by the secured creditor or his authorised officer under this Chapter, [may make an application alongwith such fee, as may be prescribed,] to the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measures had been taken:*

*[Provided that different fees may be prescribed for making the application by the borrower and the person other than the borrower.]*

*[Explanation – For the removal of doubts, it is hereby declared that the communication of the reasons to the borrower by the secured creditor for not having accepted his representation or objection or the likely action of the secured creditor at the stage of communication of reasons to the borrower shall not entitle the*

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*person (including borrower) to make application to the Debts Recovery Tribunal under this Sub-section]".*

31. On reading of the above provision is clear that any aggrieved person including the borrower and guarantor can approach the Debts Recovery Tribunal within 45 days from the date on which the impugned measures had been taken by the secured creditor or his authorized officer.

32. The present Miscellaneous Application is filed on 12.03.2018 with an inordinate delay. Hence, the applicant has filed IA.No.513/2018 to condone the delay [without mentioning the number of days delay]

33. It is affirmed in the affidavit that applicant has approached the Hon'ble DRAT in RA(SA)97/2014 challenging the Final Order passed in SA.No.511/2009 which came to be concluded on 03.03.2016. However, neither applicant nor respondent has produced the Order passed in RA(SA)97/2014 passed by Hon'ble DRAT, Chennai and even if considering the time spent in the DRAT Chennai, still there is a delay of 740 [2 years 10 days] days in filing the present MA, which cannot be condoned even for mere asking it nor the Tribunal has any authority to condone the delay under S.17 of the Limitation Act.

34. Further, it is a settled legal proposition that law of limitation may harshly affect a particular party, but it has to be applied with all its

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rigour when the statute so prescribes. The Tribunal has no power to extend the period of limitation on equitable grounds and has no power to ignore that provision to relieve what it considers a distress resulting from its operation as per the Judgement of Hon'ble Supreme Court in the matter of P.K. Ramachandran vs. State of Kerala, reported in (1997) 7 SCC 556, the Hon'ble Supreme Court has held thus:- *"Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds".*

Hence, the legal maxim "dura lex sed lex" which means "the law is hard but it is the law", stands attracted in such a situation.

35. The Tribunal relies on the judgement of the Hon'ble High Court of Kerala in the case titled *K.P Jayan vs. Hong Kong & Shanghai Banking Corporation Ltd and others* decided on 31.08.2015, wherein the Hon'ble Division Bench has categorically held that power to condone delay in entertaining an application under Section 17 of the SARFAESI Act is not conferred on the Debts Recovery Tribunal. It has further held that the Debts Recovery Tribunal cannot consider an application for condonation of delay under Section 5 of the Limitation Act in an application under Section 17 of the SARFAESI Act.

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36. From what have been mentioned above, it sounds like there is a Miscellaneous Application filed by the applicant seeking compensation or a significant amount from the respondent bank. The allegation is that the bank filed the properties of the applicant about a decade ago and the SA filed under the SARFAESI Act was dismissed previously. If the properties of the applicant was sold by the respondent bank under the SARFAESI Act and the challenge against the action of the bank was dismissed, the present MA was filed seeking damages or compensation for wrongful sale or other grievances despite the dismissal of the SA. As the SA challenging the action of the respondent bank relating to sale was dismissed earlier, the applicant is now pursuing compensation or damages through a different legal route, which is by way of MA. The sale in question was conducted in accordance with legal procedures and that the dismissal of the SA supports their action. Given that a decade had passed since the sale, questions around the statute of limitation comes into picture.

37. The applicant's prayer for holding that she is entitled to crores of rupees from the respondent bank suggests that she is seeking substantial financial compensation, likely on the grounds of damages due to the alleged improper sale of the properties by the respondent bank a decade ago. Given that, the SA was dismissed, the applicant as of now 22M.A. No.10/2020

is using this present MA to pursue a financial remedy. Although the applicant claimed that the respondent bank acted unlawfully or improperly during the sale process, resulting in a significant loss for the applicant, yet the applicant had failed to produce strong evidence of wrong doing or procedural lapses by the respondent bank to support her prayer for compensation. Further, the applicant claimed that the respondent bank failed in its duties, such as not following the correct procedures under the SARFAESI Act, which led to an under valuation or improper sale of the properties. But the sale in question was declared valid, relying on the dismissal of the SA. Even, the Hon'ble High Court of Karnataka and Hon'ble Supreme Court and Hon'ble Debt Recovery Appellate Tribunal also held that sale is valid under law.

38. In such cases of seeking compensation, the question of limitation is crucial, especially since the alleged sale by the respondent bank took place a decade ago, legal claims are generally subject to time limitation and if the claim is filed beyond the legally prescribed period, it can be dismissed as time barred. In the context of the applicant's claim for crores of rupees from the respondent bank, the question of limitation will come in consideration. The SARFAESI Act allows the borrower to file an SA to challenge the bank's action such as sale of property within 45 days from the date of notice or action by the bank under Section.17.

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Since the applicant's SA was already dismissed, the limitation for challenging the sale under SARFAESI Act has expired long ago. As the applicant is trying to bring a fresh claim regarding the same sale, it has to be noted that the valuer has already been decided and the limitation period for any further challenges has passed.

39. For a claim seeking damages or compensation based on alleged wrongful acts such as wrongful sale, the limitation depends on the nature of the claim for a suit for recovery of money or compensation for damages, the usual limitation period under the limitation Act is three years from the date when the cause of action arises i.e. the date the wrongful act occurred, which in this case, could be the date of the sale. Since the sale took place a decade ago, the applicant had failed to explain how her claim files within any available exceptions or justifications for delayed filing. As such, the claim appears to be time barred. Although, the applicant had filed IA for condonation of delay by the applicant did not provide valid reasons for why she could not file her claim earlier. The sale was conducted more than a decade ago and the applicant had the opportunity to challenge it through the SA, which was already dismissed. Therefore, the Limitation Act, bars the applicant from filing any fresh claim for compensation or damages related to the sale due to the significant passage of time.

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40. Evidently, the present MA in a way is challenging the sale of the moveable and immoveable properties of the applicant held in 2011 which has stood scrutiny of all courts including Apex Court. Considering the factual matrix of the case and the history of the litigation by the applicant, it is only to be concluded that present MA with the claims raised challenging the measures under Sec.19 read with Sec.23 of SARFAESI Act,2002 is nothing but an abuse of process of law. Further any challenge to the measures under the Act right from S.13[4] is not within the period of 45 days as mandated under the Act.

41. Admittedly, the secured asset is sold, and third party interest is created and the successful auction purchaser already is in possession and names are mutated in the municipal records. The prayer for redemption of the mortgage would not sustain as the applicant has failed to avail the right of redemption under S.13[9] of the Act.

42. The prayer sought in the present MA is already considered and adjudicated by this Tribunal as and when Order were passed which stood scrutiny in the nature of Securitisation Application and hence nothing survives in the present M.A, for any further adjudication and the same deserves to be dismissed. However, the applicant is at liberty to claim the excess amount of Rs.21,72,215/- which is lying with the respondent bank in terms of Order of Hon'ble High Court of Karnataka in 25M.A. No.10/2020

W.P.No.11536/2012 (GM-RES) and W.P.No.11595/2012 (GM-RES).

43. Accordingly, M.A.10/2020 is dismissed. Interim Order, if any granted and subsisting till this day stands vacated. Pending IA/s if any is disposed in terms of this Order. No order as to cost.

*(Dictated to the Stenographer (PR), after its transcription and necessary corrections, signed and Order is passed on this day 30^th October, 2024)*

**Sri. Imtiaz Ali** **PRESIDING OFFICER (I/c)** **DRT-2, BENGALURU**

APPENDIX

LIST OF DOCUMENTS PRODUCED BY THE APPELLANT

<thead> <tr> <th>SI No.</th> <th>Particulars</th> <th>Pages</th> </tr> </thead> <tbody> <tr> <td>1</td> <td>RC in OA No.396/2007 dated 30.06.2008</td> <td>32-34</td> </tr> <tr> <td>2</td> <td>SA.No.511/2009 judgement dated 30.09.2009</td> <td>35-38</td> </tr> <tr> <td>3</td> <td>W.P.No.11536/2012 C/w W.P.No.11595/2012 for Excess amount with the respondent bank dated 17.07.2012</td> <td>39-45</td> </tr> <tr> <td>4</td> <td>Tender-cum-Auction and Conformation Letter dated 09.09.2009</td> <td>46</td> </tr> <tr> <td>5</td> <td>Wrote a letter dated 02.12.2010 by respondent bank in favour of successful bidder</td> <td>47</td> </tr> <tr> <td>6</td> <td>Sale certificate dated 19.01.2011</td> <td>48-51</td> </tr> <tr> <td>7</td> <td>Respondent counsel has written a letter dated 17.07.2012 for take back excess amount</td> <td>52-53</td> </tr> <tr> <td>8</td> <td>Government Gazette Notification for Guide Lines of value of the property</td> <td>54-59</td> </tr> <tr> <td>9</td> <td>Public sale notice dated 01.10.2011</td> <td>60-70</td> </tr> <tr> <td>10</td> <td>Judgement in OS.No.8202/2008 suit filed by the Daughter of the appellant dated 29.08.2009</td> <td>71-79</td> </tr> <tr> <td>11</td> <td>MFA No.6353/2009 filed against said the suit</td> <td>93</td> </tr> </tbody> </table>

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<tr> <td>12</td> <td>The counsel for appellant and counsel for respondent corresponding letters for excess amount with respondent bank</td> <td>94-98</td> </tr> <tr> <td>13</td> <td>Counsel for appellant wrote a letter dated 04.11.2017 to the respondent bank for calming damages, the respondent bank having received the said letter with post acknowledgement proof enclosed herewith</td> <td>99-108</td> </tr> </table>

LIST OF DOCUMENTS PRODUCED BY THE RESPONDENT

<thead> <tr> <th>Sl. No.</th> <th>Particulars</th> <th>Annexure</th> </tr> </thead> <tbody> <tr> <td>1</td> <td>Term loan statement of account from 08.10.2003 to 25.09.2007 A/c. M/s. Benaka Brick Works</td> <td>R1</td> </tr> <tr> <td>2</td> <td>Cash Credit statement of account from 17.10.2003 to 25.09.2007 A/c. M/s. Sri. Vinayaka Electrical Enterprises.</td> <td>R2</td> </tr> <tr> <td>3</td> <td>Auction sale proceedings of M/s. Benaka Brick Works in respect of property No.36, GHBCS Ltd., Layout, Basaveshwaranagar, Bangalore dated 09.11.2011</td> <td>R3</td> </tr> <tr> <td>4</td> <td>Registered sale certificate dated 22.12.2011 issued by the Authorized officer, Bank of Baroda, in favour of Sri. V. Ashok Kumar and Mrs. Veena Ashok and the document is registered as No.328/2012-2013 stored in CD No.RJND213 of Book-I in the office of the Sub-Registrar, Rajajinagar, Bangalore, registered on 20.04.2012 for Rs.1,32,55,000/-</td> <td>R4</td> </tr> <tr> <td>5</td> <td>Sale certificate dated 19.01.2011 issued by Bank of Baroda, in favour on Mrs. Nagashree Prakash for Rs.80,55,540/- in respect of the property bearing Sy.No.89 Khata No.178, situated at Mahadevapura Village, Kasaba Hobli, Nelamangala Taluk, Bangalore Rural District</td> <td>R5</td> </tr> <tr> <td>6</td> <td>Public notice dated 18.10.2012 published in 'The Hindu' about payment of balance</td> <td>R6</td> </tr> </tbody> </table>

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<table border="1"><tr><td></td><td>amount of Rs.21,72,215/-</td><td></td></tr><tr><td>7</td><td>E-mail copy dated 01.09.2024 for having sent the statement of account from 26.09.2007 to upto date</td><td>R7</td></tr></table>

30.10.24

**Sri. Imtiaz Ali** **PRESIDING OFFICER (I/c)** **DRT-2, BENGALURU**