SUPREME COURT OF INDIA HON'BLE

DR. B.S. CHAUHAN AND DIPAK MISRA, JJ.

Ram Kishun & Others v. State of U.P. & Others Civil Appeal No. 6204 of 2009

DECIDED ON 24th MAY, 2012

                                                                                                                                                                                                                                                                                          (Para 5)

(b) Right to property-Right to hold property-Is a constitutional right as well as human right-No one can be deprived of his property except in accordance with the provisions of the Statute.                                                                                                                           .

                                                                                                                                                                            (Para 17)

                                                                                                                                                                                                                                        (Para 19)

                                                                                                                                                                                                                                                                                                                                         (Paras 26 to 29)

CASES REFERRED:

         1. Narmada Bachao Andolan v. State of Madhya Pradesh, A.I.R. 2011

                S.C. 1589.

         2. United Bank of India v. Satyawati Tandon, 2010 (96) A.I.C. 161

                (S.C.).

         3. Industrial Investment Bank of India, Ltd. v. BiswasnathJhunjhunwala,

                2009 (81) A.LC. 50 (S.C.).

         4. Valfi Khimji and Company v. Official Liquidator of Hindustan Nitro

                Product (Gujarat) Ltd., (2008) 9 S.C.~C. 299.

         5. F.C.S. Software Solutions Ltd. v. La Medical Devices Ltd., (2008) 10

                S.C.C.440.

         6. LachhmanDassv. JagatRam, (2007) 10 S.C.C. 448.

         7. B. Arvind Kumarv. Government of India, 2007 (56) A.I.C. 9 (S.C.)

JSum.) : (2007) 5 S.C.C. 745.

8. Transcorev. Union of India, A.LR. 2007 S.C. 712.

9. S. Mariyappa (Dead) By L.Rs. v. Siddappa, (2005) 10 S.C.C. 235.

10. GajrajJain v. State of Bihar, 2004 (21) A.I.C. 891 (S.C.) : 2004 (57)

11. AnilKumarSrivastavav. StateofU.P., 2004 (22) A.I.C. 5 (S.C.). 12. Haryana Financial Corporation v. Jagdamba Oil Mills, A.I.R. 2002

         S.C. 834.

13. Divya Manufacturing Co. (P) Ltd. v. Union Bank of India, A.I.R. 2000

S.C. 2346. 14. Duncans Industries Ltd. v. State ofU.P., A.I.R. 2000 S.C. 355. 15. Union Bank of India v. Official Liquidator High Court of Calcutta,

A.I.R. 2000 S.C. 3642.

16. S.S. Dayanandav. K.S. NageshRao, (1997) 4 S.C.C. 451.

17. D.S. Chohanv. State Bank ofPatiala, (1997) 10 S.C.C. 65.

18. Gurbachan Singh v. Shivalak Rubber Industries, A.I.R. 1996 S.C.

       3057.

            19. Chairman and Managing Director, S.!.P. C. O. T. Madras v. Contromix

       Pvt. Ltd. by its Director (Finance) Seetharaman, Madras, A.I.R. 1995

S.C. 1632. 20. Brij Lalv. Board of Revenue, A.I.R. 1994 S.C. 1128. 21. Desh Bandhu Gupta v. N.L. Anand and Rajinder Singh, (1994) 1

S.C.C. 131.

22. StateBankofIndiav. IndexportRegistered,A.I.R. 1992 S.C. 1740.

23. AmbatiNarasayyav. M. SubbaRao, A.I.R. 1990 S.C. 119.

24. Union Bank of India v. Manku Narayana, A.I.R. 1987 S.C. 1078.

25. State Bank of India v. Saksaria Sugar Mills Ltd., A.I.R. 1986 S.C.

868. .

26. Union of India v. Bombay Tyre International Ltd., (1984) 1 S.C.C.

       467.

27. Maharashtra State Electricity Board, Bombay v. The Official

Liquidator, High Court, Ernakulam, A.I.R. 1982 S.C. 1497.

28. State ofU.P. v. Shiv Charan Sharma, A.I.R. 1981 S.C. 1722.

29. Takkaseela Pedda Subba Reddi v. Pujari Padmavathamma, A.I.R.

       1977 S.C. 1789.

30. Kayjay Industries (P) Ltd. v. Asnew Drums (P) Ltd., A.I.R. 1974 S.C.

       1331.

            31. GajadharPrasadv. BabuBhaktaRatan,A.I.R. 1973 S.C. 2593.

/

32. State ofOrissav. HarinarayanJaiswal, AI.R. 1972 S.C. 1816.

33. Navalkhaand Sonsv. Sri RamanyaDas, A.I.R. 1970 S.C. 2037.

34. State ofGujaratv. Patel Raghav Natha, A.I.R. 1969 S.C. 1297. 35. The Bank of Bihar Ltd. v. Dr. Damodar Prasad, A.I.R. 1969 S.C.

COUNSELS APPEARED

       For the Respondents:

Mr. Dinesh Kumar Garg, Mr. B.S. Bilowria and Mr. Dhanjay Garg, Advocates

For the Appellants:

                                                                                                                                      JUDGMENT

     Dr. B.S. Chauhan, J.-This Appeal has been preferred against the judgment and order dated 20th January, 2004 in C.M.W.P. No. 22420 of 200 1 passed by the High Court of  Judicature at Allahabad, by which it has affirmed the judgment and orders passed by the Board of Revenue and other revenue officials in respect of the recovery of Bank dues from the Appellants as their predecessor-in-interest was the guarantor of Bank loan.

2. Facts and circumstances giving rise to this case are that:

(A) One Ganga Prasad had taken an agricultural loan to the tune ofRs. 8,425/- from the Union Bank of India (Banda Branch) on 20th March, 1982 and Chuni Lal, father of the Appellants stood guarantor. Ganga Prasad, debtor died in 1985 and Chuni Lal died in 1986. Chuni Lal could not pay the loan during his life time. Therefore, the Bank initiated the proceedings for

recovery and ultimately sent the matter to the District Collector, Banda for realisation of the loan amount as an arrear of land revenue.

(B) The Collector issued citation/Recovery Certificate on 13th January, 1986 for an amount of Rs. 10,574.45 plus 10% collection charges against Ganga Prasad.

(C) In order to make the recovery, land measuring 3 bighas 2 biswas belonging to said Ganga Prasad was put to auction and it could fetch only a sum of Rs. 6,000/-. In order to recover the balance amount the proceedings were initiated against the Appellants as their father stood guarantor. It is evident from the record that the Appellants raised objections that instead

of putting their property to auction, the loan amount be

recovered from legal heirs of Ganga Prasad as he had left movable / immovable properties and live stocks and other assets to meet the recovery of the Bank loan. Their objections were

!'lot accepted and the land of the Appellants measuring 1 bigha

and 10 biswas was put to auction on 15th March, 1993. Respondent No.4 purchased the said land for Rs. 25,000/-. In respect of the same, sale was confirmed and sale certificate was issued by the Collector in favour of Respondent No.4 and

                             he was put in possession.                                                            ­

(D) Appellants raised varipus objections under the provisions of U.P. Zamindari Abolition and Land Reforms Act, 1952 before the Commissioner, Jhansi, but their objections stood rejected vide order dated 27th July, 1992 only on the ground of delay as the objections were not filed within limitation and no sufficient cause could be shown for inordinate delay.

(E) Aggrieved, the Appellants approached the Board of Revenue, D.P. by filing Revision No.2 Cell/92-93. However, the same was dismissed vide order dated 20th March, 2001 as the Revisional Authority did not accept the explanation for condonation of delay.

filing Writ Petition No. 22420 of2001 which has been dismissed vide impugned judgment dated. 20th January, 2004.

Hence, this Appeal.

3. Shri D.K. Garg, learned Counsel appearing for the Appellants has submitted that no recovery could have been made from the Appellants as Ganga Prasad debtor had left huge movable/immovable properties and other live stocks which could satisfy the demand of the Bank loan. Moreso, there were two guarantors and father of the Appellants was not the only guarantor. rhus, the entire liability of the remaining unpaid amount could not have been fastened upon them. The properties of the Appellants were worth rupees two lacs which had been sold in auction at a throw-away price of Rs. 25,000/ - only, that too, without following procedure prescribed by law. For recovery of the balance amount of loan, only a part of the Suit land could be sold. The objections filed by the Appellants had been rejected by all the authorities/Courts below on the ground of delay without considering the same on merit. Hence, the said orders are liable to be set aside and Appeal deserves to be allowed.                        ..

4. Per contra, Mr. T.N. Singh, learned Counsel appearing for Respondent No.4 has submitted that the grievance of the Appellants that they could not be fastened with the total liability of unpaid loan amount had not been raised before the Courts below. The liability of the guarantor is co-extensive with that of debtor. The auction sale has been confirmed and sale certificate has been issued in favour of Respondent No.4. He had been put in possession more than two decades ago and since then he has made a lot of developments and improved the land. The auction was held fairly and the property had fetched a fair price. Real brother of the Appellant No.1 himself had participated in the auction and given the bid for Rs. 20,000/- though Respondent No.4 had purchased it for Rs. 25,000/-. Thus, it is not permissible that the Appellants should canvass that the auction has not been conducted fairly or Appellants had not been given chance to bring the best buyer or a part of the property could be sold to meet the demand. The Appeal lacks merit and is liable to be dismissed.

5. We have considered the rival submissions made by learned Counsel for the parties and perused the record.

There can be no dispute to the settled legal proposition of law that in view of the provisions of Sec. 128 of the Indian Contract Act, 1872 (hereinafter called the 'Contract Act'), the liability of the guarantor/surety is co-extensive with that of the debtor. Therefore, the creditor has a right to obtain a decree against the surety and the principal debtor. The surety has no right to restrain execution of the decree against him until the creditor has exhausted his remedy against the principal debtor for the reason that it is the business of the surety/guarantor to see whether the principal debtor has paid or not. The surety does not have a right to dictate terms to the creditor as how he should make the recovery and pursue his remedies against the principal debtor at his instance. (Vide: The Bank of Bihar Ltd. v. Dr. Damodar Prasad, A.I.R. 1969 S.C. 297; Maharashtra State Electricity Board, Bombay v. The Official Liquidator, High Court, Emakulam, A.I.R. 1982 S.C. 1497; Union Bank ofIndiav. Manku Narayana, A.I.R. 1987 S.C. 1078; and State Bank of India v. Indexport Registered, A.I.R. 1992 S.C.

6. In State Bank of India v. Saksaria Sugar Mills Ltd., A.I.R. 1986 S.C. 868, this Court while considering the provisions of Sec. 128 of the Contract Act held that liability of a surety is immediate and is not deferred until the creditor exhausts his remedies against the principal debtor. (See also; Industrial Investment Bank of India Ltd. v. Biswasnath Jhunjhunwala, 2009 (81) A.I.C. 50 (S.C.) and United Bank ofIndiav. Satyawati Tandon, 2010 (96)

r A.I.C. 161 (S.C.).

. 7. Section 146 of the Contract Act provides that co-sureties are liable to contribute equally. Thus, in case there are more than one surety/ guarantor, they have to share the liability equally unless the agreement of contract provides otherwise.

RECOVERY OF PUBLIC DUES: 

8. Undoubtedly, public money should be recovered and recovery should be made expeditiously. But it does not mean that the Financial Institutions which are concerned only with the recovery of their loans, may be permitted to be have like property dealers and be permitted further to dispose off the secured assets in any unreasonable or arbitrary manner in flagrant violation of statutory provisions.                                .

            9. A right to hold property is a constitutional right as well as a human right. A person cannot be deprived of his property except in accordance with the provisions of statute. (Vide: Lachhman Dass v. Jagat Ram, (2007) 10 S.C.C. 448; and Narmada Bachao Andolan v. State of Madhya Pradesh, A.I.R. 2011 S.C. 1589).

Thus, the condition precedent for taking away someone's property or disposing off  the secured assets, is that the authority must ensure compliance of the statutory provisions.

10. In case the property is disposed off by private treaty without adopting any other mode provided under the statutory rules etc., there may be a possibility of collusion/fraud and even when public auction is held, the possibility of collusion among the bidders cannot be ruled out. In the State ofOrissav. HarinarayanJaiswal, A.I.R. 1972 S.C. 1816, this Court held that a highest bidder in public auction cannot have a right to get the property or any privilege, unless the authority confirms the auction sale, being fully satisfied that the property has fetched the appropriate price and there has been no collusion between the bidders.

11. In Haryana Financial Corporation v. Jagdamba Oil Mills, A.I.R. 2002 S.C. 834, this Court considered this aspect and while placing reliance upon its earlier judgment in Chairman and Managing Director, S.LP. C. O. T. Madras v. Contromix Pvt. Ltd. by its Director (Finance) Seetharaman, Madras, A.I.R. 1995 S.C. 1632, held that in the matter of sale of public property, the dominant consideration is to secure the best price for the property to be sold. This can be achieved only when there is maximum public participation in the process of sale and everybody has an opportunity of making an offer.

.

valuation report, the intending buyers may not come forward treating the property as not worth purchase by them, as a moneyed person or a big businessman may not like to involve himself in small sales/deals.

VALUATION AND RESERVE PRICE:

13. The word 'value' means intrinsic worth or cost or price for sale of a thing/property. (Vide: Union of India v. Bombay Tyre International Ltd., (1984) 1 S.C.C. 467, and Gurbachan Singhv. ShivalakRubber Industries, AI.R. 1996 S.C. 3057).

14. In State ofU.P. v. Shiv Charan Sharma, A.LR. 1981 S.C. 1722, this Court explained the meaning of "reserve price" explaining that the price with which the public auction starts and the auction bidders are not permitted to give bids below the said price, i.e., the minimum bid at auction.

15. In Anil Kumar Srivastavav. StateofU.P., 2004 (22) ALC. 5 (S.C.) This Court considered the scope of fixing the reserve price and placing reliance on its earlier judgment in Dlmcans Industries Ltd. v. State of U.P., ALR. 2000 S.C. 355, explained that reserve price limits the authority of the auctioneer. The concept of the reserve price is not synonymous with valuation of the property. These two terms operate in different spheres. An invitation to tender is not an offer. It is an attempt to ascertain whether an offer can be obtained with a margin. The valuation is a question of fact, it should be fixed on relevant material. The difference between the valuation and reserve price is that, fixation of an upset price may be an indication of the probable price which the property may fetch from the point of view of intending bidders. Fixation of the reserve price does not preclude the claimant from adducing proof that the land had been sold for a low price.

16. In Desh Bandhu Gupta v. N.L. Anand and Rajinder Singh, (1994) 1 S.C.C. 131, this Court held that in an auction sale and in execution of the Civil Court's decree, the Court has to apply its mind to the need for furnishing the relevant material particulars in the sale proclamation and the records must indicate that there has been application of mind and principle of natural justice had been complied with. (See also: Gajadhar Prasadv. Babu Bhakta Ratan, A.I.R. 1973 S.C. 2593; S.S. Dayanandav. K.S. NageshRao, (1997) 4 S.C.C. 451; D.S. Chohanv. StateBankofPatiala, (1997) 10 S.C.C. 65. and GajrajJain v. State of Bihar, 2004 (21) A.I.C. 891 (S.C.) : (2004) 7 S.C.C. 151).

17. In view of the above, it is evident that there must be an application of mind by the authority concerned while approving/ accepting the report of the approved valuer and fixing the reserve price, as the failure to do so may cause substantial injury to the borrower/guarantor and that would amount to material irregularity and ultimately vitiate the subsequent proceedings. 

DECISION TO SELL WHOLE OR PART OF THE SECURED ASSETS: 

Pedda SubbaReddiv. PujariPadmavathamma, AI.R. 1977 S.C. 1789. and S. Mariyappa(Dead) ByLRs. v. Siddappa, (2005) 10 S.C.C. 235).

19. Thus, in view of the above, it is evident that law requires a proper valuation report; its acceptance by the authority concerned by application of mind and then fIxing the reserve price accordingly and acceptance of the auction bid taking into consideration that there was no possibility of collusion of the bidders. The authority is duty bound to decide as to whether sale of part of the property would meet the outstanding demand. Valuation is a question of fact and valuation of the property is required to be determined fairly and reasonably. 

SETTING ASIDE AUCTION SALE AFTER CONFIRMATION:         

          20. In Navalkha and Sons v. Sri Ramanya Das, A.I.R. 1970 S.C. 2037, this Court while dealing with the confirmation of sale by Court, held that there must be a proper valuation report, which should be communicated to the judgment debtor and he should me his own valuation report and the sale should be conducted in accordance with law. After confirmation of sale, there should be issuance of sale certificate. Court cannot interfere unless it is found that some material irregularity in the conduct of sale has been committed. The Court further held that it should not be a forced sale. A valuer's report should be as good as the actual offer and the variation should be within limit. Such estimate should be done carefully. The Court further held that unless the Court is satisfied about the adequacy of the price the act of confirmation of the sale would not be a proper exercise of judicial discretion. (See also: Kay jay Industries (P) Ltd. v. Asnew Drums (P) Ltd., A.I.R. 1974 S.C. 1331; Union Bank of India v. Official Liquidator High Court of Calcutta, A.I.R. 2000 S.C. 3642 ; B. Arvind Kumarv. Government of India, 2007 (56) A.I.C. 9 (S.C.) (Sum.) : (2007) 5 S.C.C. 745 and Transcorev. Union of India, A.I.R. 2007 S.C. 712.

21. In DiuyaManufacturing Co. (P)Ltd. v. Union Bank of India, A.I.R. 2000 S.C. 2346, this Court held that a confIrmed sale can be set aside on the ground of material rregularity or fraud. The Court does not become functus officio after the sale is confirmed. In Valfi Khimji and Company v. Official Liquidator of Hindustan Nitro Product (Gujarat) Ltd., (2008) 9 S. C. C. 299, the Court held that auction sale should be set aside only if there is a fundamental error in the procedure of auction e.g. not giving wide publication or on evidence that property could have fetched more value or there is somebody to offer substantially increased amount and not only a little over the auction price. Involvement of any kind of fraud would vitiate the auction sale.

22. In F.C.S. Software Solutions Ltd. v. La Medical Devices Ltd., (2008) 10 S.C.C. 440, this Court considered a case where after confirmation of auction sale it was found that valuation of movable and immovable properties, fixation of reserve price, inventory of Plant and Machineries had not been made in proclamation of sale, nor disclosed at time of sale notice. Therefore, in such a fact-situation, the sale was set aside after its confirmation.

liability is to be divided equally among the sureties for unpaid amount of loan. Once the sale has been confirmed it cannot be set aside unless a fundamental procedural error has occurred or sale certificate had been obtained. by misrepresentation or fraud.

24. Learned Counsel for the parties are not in a position to point out the specific rules under which the recovery was to be made. Thus, the aforesaid legal principles have been considered on general principles of law as argued by them.

The instant case is required to be examined in the light of the aforesaid settled legal propositions.

Admittedly, the father of the Appellants stood guarantor when Ganga Prasad took loan from the Bank. Though there are some documents to show that there were two guarantors but who was the other guarantor is not evident from the record, nor such a plea had ever been taken by the Appellants before the Courts below. As the Appellants had inherited the estate of the guarantor, they are liable to meet the liability of unpaid amount.

The Appellants land admeasuring 1 bigha and 10 biswas was sold for Rs. 25,000/-. It cannot be held, even by any stretch of imagination, that the land had been sold at a cheaper rate, for the reasons, that the land belonging to Ganga Prasad (principal debtor) measuring 3 big has and 2 biswas in the same village in a close proximity of time had been sold for a sum of Rs. 6,000/- only. Moreso, elder brother of the Appellant No.1 Ram Swaroop had participated in the auction and given the bid of Rs. 20,000/­for the land in dispute. In view of the above, the submission made by Shri Garg that property worth Rs. 2,00,000/- had been sold at a throwaway price of Rs. 25,000/- is not worth acceptance.

25. No fundamental procedural error had been pointed out which would vitiate the order of confirmation of sale and issuance of sale certificate.

26. The total amount of loan sanctioned in favour of Ganga Prasad was Rs. 8,425/-. The Collector issued citation for recovery of Rs. 10,574/- on 13th January, 1986 and the total amount to be recovered including principal amount, interest, collection charges etc came to Rs. 14,483.15P. The property of Ganga Prasad had been sold for a sum of Rs. 6,000/-. So, the total amount to be recovered remained about Rs. 8,500/-. The Appellants land had been sold for Rs. 25,000/ - i.e., three times the amount which was to be recovered. In the facts and circumstances of this case, instead of putting this whole land admeasuring 1 bighaand 10 biswas, the sale of 1/ 3rd of this land could have served the purpose. Therefore, there had been material irregularity in putting the entire property to auction.

27. In case, the auctioning authority had received Rs. 25,000/- from the Respondent No.4 as a sale consideration after adjusting the outstanding dues of Rs. 8500/-, the balance amount ofRs. 16,500/- ought to have been paid to the Appellants. There is nothing on record to show that authorities had ever adopted such a course.