GM, SRI SIDDESHWARA CO-OPERATIVE BANK LTD. & ANR.versusSRI IKBAL & ORS.

                         [2013] 8 S.C.R. 532


A   GM, SRI SIDDESHWARA CO-OPERATIVE BANK LTD. &
                        ANR.
                                   v.
                         SRI IKBAL & ORS.
            (Civil Appeal No(s). 6989-6990 of 2013 etc.)
8                        AUGUST 22, 2013
    [R.M. LODHA AND CHANDRAllllAULI KR. PRASAD, JJ.]

          Security Interest (Enforcement) Rules, 2002 - r. 9 -
C   Auction of mortgaged property by lender~ Bank - For
    realization of loan amount from the borrower - Auction
    purchaser paid 75% of the sale consideration after the period
    specified in Sub-rule (4) of r.9 - Bank issued sale certificate
    in favour of auction-purchaser - Writ petition challenging the
o   confirmation of sale - High Court allowed the petition for non-
    compliance of r.9 - Held: The period specified in sub-rule (4)
    of r.9 for payment of balance amount of sale consideration is
    not mandatory - The period is extendab/e if there is written
    agreement between the parties i.e. the bo"ower, lender and
E   auction purchaser- In the instant case, in view of the letter of
    the borrower giving consent that balance amount could be
    received from the auction-purchaser after the specified date,
    the letter having been accepted by the Bank and auction-
    purchaser having made payment accordingly, the period can
F   be said to have been extended as per written agreement -
     Thus, condition in r.9(4) has been substantially satisfied -
    Even if a provision is mandatory it can be waived by the
    beneficiary of such provision - The borrower and the lender-
    Bank being the beneficiaries can be said to have waived their
G   right in view of the letter of the bo"ower - Securitisation and
    Reconstruction of Financial Assets and Enforcement of
    Security Interest Act, 2002 - s.13(4).

       Constitution of India, 1950 - Article 226 - Jurisdiction
    under - Held: Availability of alternative remedy is not an
H                                532
  GM, SRI SIDDESHWARA CO-OPERATLVE BANK                      533
        LTD. & ANR. v. SRI IKBAL & ORS.

absol.ute bar to exercise of extraordinary jurisdiction u!Art. 226   A
- But where statute provides efficacious and adequate
remedy, High Court should not entertain such petition -
Statutory procedures cannot be allowed to be circumvented
on misplaced considerations - In the instant case, High Court
erred in invoking jurisdiction u/Art. 226 as statutory remedy was    B
efficacious - Securitisation and Reconstruction of Financial
Assets and Enforcement of Security Interest" Act, 2002 - s. 17.

    Words and Phrases - 'Written agreement' and 'parties' -
Meaning of, in the context of s. 9(4) of Security Interest           C
(Enforcement) Rules, 2002.

     The property of the first respondent-borrower was
mortgaged by the appellant-Bank under Securitisation
and Reconstruction of Financial Assets and Enforcement
of Security Interest Act, 2002, against the loan which he D
failed to pay. Respondent No.3 purchased the property.
The auction-purchaser made payment of 25% of the sale
consideration, but was not able to make payment of
remaining 75% of the sale consideration within 15 days
of confirmation of sale. As the proceeds from the sale of E
the mortgaged property fell short of the total outstanding
amount against the borrower, the Bank moved the Joint
Registrar of the Cooperative Societies for recovery of the
outstanding amount, wherein ex-parte award, was
passed against the borrower. The borrower filed writ F
petition under Article 226 of the Constitution, challenging
the sale certificate issued by the Bank to the auction-
purchaser and the notice which was issued by the Bank
to the borrower whereby borrower was informed that his
property would be sold on his failure to repay the loan G
amount. Single Judge of the High Court quashed the sale
certificate and the notice. The Bank as well as auction-
purchaser challenged the order. Division Bench of High
Court held that on account of non-compliance of
mandatory requirement of r.9 of Security Interest H
    534    SUPREME COURT REPORTS              [2013] 8 S.C.R.


A   (Enforcement) Rules, 2002, despite the availability of
    remedy u/s. 17 of the Act, a case was made out for
    interference. Hence he present appeals by the Bank as
    well as the auction-purchaser.

8              Allowing the appeals, the Court

       HELD: 1.1. Single Judge of the High Court was not
  justified in quashing the sale certificate dated 16.11.2006
  issued in favour of the auction purchaser and the notice
  dated 09.02.2007. The Division Bench also committed an
C error in upholding the erroneous order of the Single
  Judge. In the facts of the present case, it is apparent that
  the borrower had been chronic defaulter in repayment of
  the loan amount. Before issuance of notice under Section
  13(2) of Securitisation and Reconstruction of Financial
D Assets and Enforcement of Security Interest Act, 2002, a
  demand notice was given by the Bank to the borrower
  calling upon him ·to pay the outstanding loan amount but
  he did not comply with that notice. Thereafter, 13(2)
  notice was given to him, but he did not bother to pay the
E outstanding dues. The secured interest which was
  immovable property was put up for auction more than six
  months after the notice under Section 13(2) was given to
  him by the Bank but still the outstanding payment was
  not made.The auction was held in the presence of the
F borrower and he did not raise any objection about time
  of the auction. When the auction purchaser did not pay
  the balance amount in time and took about 11 months in
  paying the balance amount, the borrower gave his written
  consent to the Bank that balance purchase price may be
G accepted from the auction purchaser and sale certificate
  may be issued to him. Moreover, the writ petition was filed
  by the borrower more than four years after the issuance
  of sale certificate. The above facts are eloquent and
  indicate that the observations made by the Single Judge
H that borrower was victimized and a fraud was practiced
  GM, SRI SIDDESHWARA CO-OPERATIVE BANK                  535
        LTD. & ANR. v. SRI IKBAL & ORS.
upon, have no basis. The finding by the Single Judge that       A
the sale of secured interest had been in violation of
borrower's right to livelihood and the observation of the
Division Bench that non-compliance of Rule 9 has
violated the borrower's right to property, are
misconceived. [Paras 26 and 32] (546-B-C; 549-C-H]              s
     1.2. A reading of sub-rule (1) of Rule 9 of Security
Interest (Enforcement) Rules, 2002 makes it manifest that
the provision is mandatory. Similarly, Rule 9(3) which
provides that the purchaser shall pay a deposit of 25%
of the amount of the sale price on the sale of immovable C
property also indicates that the said provision is
mandatory in nature. As regards balance amount of
purchase price, sub-rule (4) provides that the said amount
shall be paid by the purchaser on or before the fifteenth
day of confirmation of sale of immovable property or D
such extend.ed period as may be agreed upon in writing
between the parties. The period of fifteen days in Rule
9(4) is not that sacrosanct and it is extendable if there is
a written agreement between the parties for such
extension. 2002 Rules do not prescribe any particular. E
form for such agreement except that it must be in writing.
Therefore, term 'written agreement' means a mutual
understanding or an arrangement about relative rights
and duties by the parties. For the purposes of Rule 9(4),
the expression "written agreement" means nothing more F
than a manifestation of mutual assent in writing. The word
'parties' for the purposes of Rule 9(4) must mean the
secured creditor, borrower and auction purchaser. [Para
18] [542-D-H]
     1.3. The borrower had given a letter dated 13.11.2006      G
to the Bank giving his express consent that the auction
made in favour of the auction purchaser may be accepted
and sale-certificate be issued to him. It is evident from the
letter that at the time of auction sale on 11.01.2006, the
borrower was present. He did not object to the auction          H
   536     SUPREME COURT REPORTS                 [2013] 8 S.C.R.


A being held before expiry of 30 days from the date on
  which the public notice of sale was published. He also·
  agreed that bid given by the auction purchaser for
  Rs.8,50,000/- which was highest bid be accepted as the
  auction purchaser happened to be his known person. It
B is also clear from the letter that the borrower expressly
  gave consent in writing that the balance sale price may
  be accepted from the auction purchaser and sale
  certificate be issued to him. The above letter sent by the
  borrower to the Bank has been accepted by the Bank.
C Thus, there is a written agreement between the borrower
  and the Bank for extension of time up to 13.11.2006. The
  auction. purchaser made the payment of the balance
  purchase price forthwith on that day, i.e., 13.11.2006. This
  indicates that he was impliedly a party to the written
  agreement between the Bank and the borrower. In the
0
  circumstances, the condition in Rule 9(4) viz. "such
  extended period as may be agreed upon in writing
  between the parties" be treated as substantially satisfied.
  The Single Judge of High Court was clearly in error in
  holding that the letter dated 13.11.2006 written by the
E borrower to the Bank cannot be construed as written
  agreement falling under Rule 9(4). [Paras 20 and 22] [543-
  D-E; 544-F-H; 545-A-C]

       1.4. It is settled position in law that even if a provision
F is mandatory, it can always be waived by a party (or
  parties) for whose benefit such provision has been made.
  The provision in Rule 9(1) being for the benefit of the
  borrower and the provisi9ns contained in Rule 9(3) and
  Rule 9(4) being for the benefit of the secured creditor (or
G for that matter for the benefit of the borrower), the secured
  creditor and the borrower can lawfully waive their right.
  These provisions neither expressly nor contextually
  indicate otherwise. The question whether there is waiver
  or not depends on facts of each case and no hard and
H fast rule can be laid down in this regard. In the present
                   ..



  GM, SRI SIDDESHWARA CO-OPERATIVE BANK                   537
        LTD. & ANR. v. SRI IKBAL & ORS.
case, the letter dated 13.11.2006 sent by the borrower to        A
the Bank leaves no manner of doubt that the borrower
had waived his right under Rule 9(1) or for that matter
under Rule 9(3) and Rule 9(4) as well. The plea of
disowning the letter saying that on one signed blank
paper, the above document has been prepared, has                 B
neither been accepted by Single Judge nor the Division
Bench. There is no justification for this Court as well not
to accept the letter dated 13.11.2006 as true and genuine.
[Paras 23 to 25] [545-D-H; 546-A-B]
    2.1. An alternative remedy is not an absolute bar to         C
the exercise of extraordinary jurisdiction under Article
226, but where a statute provides efficacious and
adequate remedy, the High Court will do well in not
entertaining a petition under Article 226. On misplaced
considerations, statutory procedures cannot be allowed           D
to be circumvented. [Para 31] [549-A-B]
     2.2. Against the action of the Bank u/s. 13(4) of the
Act, the borrower had a remedy of appeal to the Debts
Recovery Tribunal u/s. 17. The remedy provided under             E
Section 17 is an efficacious remedy. The borrower did not
avail of that remedy and further remedies from that order
and instead directly approached the High Court in
extraordinary jurisdiction under Article 226 of the
Constitution of India. The Single Judge was clearly in
error in invoking his extraordinary jurisdiction under           F
Article 226 in light of the peculiar facts of the case. [Paras
27 and 32] [546-C-E; 550-A-B]
    United Bank of India vs. Satyawati Tondon and Ors.
(2010) 8 SCC 110: 2010 (9) SCR 1 - relied on.                    G
                        Case Law Reference:
    2010 (9) SCR 1             relied on           Para 30
    CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
6989-90 of 2013.                                                 H
    538      SUPREME COURT REPORTS                 [2013] 8 S.C.R.


A       From the Judgment and Order dated 17.01.2012 of the
    High Court of Karnataka Circuit Bench at Gulbarga in WA Nos.
                       of
    50009 and 5001 a 201'2.
                                   WITH
B C.A. Nos. 6991-6992 of 2013 .
       . S.N. Bhat, Raja Venkatappa Naik, Raja Raghvendra Naik,
    S.K. Tandon, Pramod Deo Pujari (for Rameshwar Prasad
    Goyal), Shantha Kr. Mahale, Rajesh Mahale, Harish Hebbar,
    S.N. Bhat for the Respondent.
c         The Judgment of the Court was delivered by
          R.M. LODHA, J. 1. Leav~ granted.
        2. The question to which we have to turn in these appeals,
    by special leave, centres around Rule 9 of the Security Interest
o   (Enforcement) Rules, 2002 (for short, "2002 Rules").
       3. The facts are these: on 08.02.1996, the respondent
  no.1, lkbal (hereinafter referred to as "borrower"), took a
  housing loan of Rs. 5,00,000/- from Sri Siddeshwara Co-
  operative Bank Ltd. (for short, "the Bank"). He mortgaged his
E immovable property being RS No.872, Plot No.29,
  Mahalbagayat situate at Bijapur. The borrower committed
  default in repayment of the said housing loan. Despite several
  reminders when the borrower failed to make payment of the
  loan amount, the Bank issued a notice on 16.02.2005 calling
F upon him to repay the outstanding loan amount of Rs.
  10,43,000/- with interest and costs failing which it was stated
  in the notice that the mortgaged property will be sold according
  to law.
       4. The borrower failed to make payment of the outstanding
G loan amount as demanded in the notice dated 16.02.2005. The
  Bank then issued a notice to him on 30.06.2005 under Section
  13(2) of the Securitisation and Reconstruction of Financial
  Assets and Enforcement of Security Interest Act, 2002 (for short,
  "SARFAESI Act"). In that notice borrower was informed that if
H he failed tb dischame the outstanding dues within 60 days, the
 GM, SRI SIDDESHWARA CO-OPERATIVE BANK           539
LTD. & ANR. v. SRI IKBAL & ORS. [R.M. LODHA, J.)
Bank may exercise action u.nder Section 13(4) of the                 A
SARFAESI Act and the mortgaged property shall be sold.
     5. On 09.12.2005, the Bank got the mortgaged property
valued which was fixed at Rs.9,00,000/-.

     6. On 18.12.2005, the Bank published the auction notice         B
in the local newspapers. The conditions of the public notice
were also mentioned in the auction notice.

     7. Bashir Ahmed (appellant in two appeals and respondent
no.3 in the appeals of the Bank), who we shall refer to hereafter c
as "auction purchaser" made the payment of Rs.90,000/-
towards earnest money deposit on 18.12.2005 itself. The public
auction was conducted on 11.01.2006. The auction purchaser
gave the bid of Rs.8,50,000/- which was accepted being the
highest bid. The auction purchaser made payment of 0
Rs.1,45,000/- towards 25% of the sale consideration. However,·
he did not make the payment of remaining 75% within 15 days
of the confirmation of sale in his favour. He made the payment
towards balance sale price in installments on various dates and
the final payment was made on 13.11.2006. On 16.11.2006,
the Bank issued the sale certificate in favour of the auction E
purchaser.

      8. The proceeds from the sale of the mortgaged property
fell short of the total outstanding amount against the borrower.
As on 09.02.2007, Rs.2,27,000/- remained outstanding against         F
him. The Bank moved the Joint Registrar of Co-operative
Societies for recovery of the outstanding amount. In those
proceedings, on 26.02.2007 an ex parte award for a sum of
Rs.2,37,038/- including the interest and miscellaneous
expenses was passed against the borrower.                            G

     9. The Bank levied execution of the ex parte award
somewhere in 2011. It was then that the borrower challenged
the sale certificate issued in favour of the auction purchaser and
the notice dated 09.02.2007 in two writ petitions before the         H
    540     SUPREME COURT REPORTS                    [2013) 8 S.C.R.


A   Karnataka High Court, Circuit Bench at Gulbarga.

       10. The Single Judge of that Court, after hearing the
  parties, by his order of 12,12.2011 quashed the sale certificate
  issued in favour of the auction purchaser and the demand notice
B dated 09.02.2007. In that order the Bank was granted liberty
  to conduct fresh sale in accordance with the law. The Single
  Judge made certain observations against the authorised officer
  and directed the Additional Registrar of the High Court to send
  a copy of the order to the Superintendent of Lokayukta Police
C at Bijapur for further action in accordance with law.

         11. The Bank as well as the auction purchaser challenged
    the order of the Single Judge in intra-court appeals but without
    any success.

0        12. Both Single Judge as well as the Division Bench held
    that mandatory requirements of Rule 9 were not followed and,
    therefore, despite the remedy of appeal to the borrower
    provided under Section 17 of the SARFAESI Act, a case was
    made out for interference.

E        13. We have heard Mr. S.N. Bhat, learned counsel for the
    Bank (appellants in the appeals arising from SLP(C) No.17704-
    17705/2012), Mr. Raja Venkatappa Naik, learned counsel for
    the auction purchaser (appellants in the appeals arising from
    SLP(C) Nos.12106-12107/2012) and Mr. Rajesh Mahale,
F   learned counsel for the borrower.

         14. SARFAESI Act lays down the detailed and
  comprehensive procedure for enforcement of security interest
  created in favour of a secured creditor without intervention of
G the court or tribunal. Section 13(2) requires the secured creditor
  to issue notice to the borrower in writing to discharge his
  liabilities within 60 days from the date of the notice. Such notice
  must indicate that if the borrower fails to discharge his liabilities,
  the secured creditor shall be entitled to exercise its rights in
H terms of Section 13(4).
  GM, SRI SIDDESHWARA CO-OPERATIVE BANK           541
 LTD. & ANR. v. SRI IKBAL & ORS. [R.M. LODHA, J.]
     15. There is no dispute that a notice in terms of Section         A
13(2) was given by the Bank to the borrower on 30.06.2005.
That the Bank proceeded for the enforcement of security interest
in one of the modes provided under Section 13(4) is also not
in dispute. The borrower in the writ petitions filed before the
Karnataka High Co.urt set up the plea that there was non-              B
compliance of Rule 9 and that had rendered the sale in favour
of the auction purchaser bad in law. The Single Judge and the
Division Bench were convinced by the borrower's contention.
We are required to see the correctness of that view.

     16. 2002 Rules have been framed by the Central                    C
Government in exercise of the powers conferred on it by sub-
section (1) and clause (b) of sub-section (2) of Section 38 read
with sub-sections (4), (10) and (12) of Section 13 of the
SARFAESI Act.
                                                                       D
      17. Rule 9* provides for the detailed procedure with regard
to sale of immovable property including issuance of sale
certificate and delivery of possession. Sub-rule (1) of Rule 9
states that rio sale of immovable property shall take place
before the expiry of 30 days from the date on which the public         E
notice of sale is published in newspapers as referred to in the
proviso to sub-rule (6) or notice of sale has been served to the
borrower. Sub-rule (2) provides that sale shall be confirmed in
favour of the purchaser who has offered the highest sale price
in his bid. This is subject to confirmation by the secured creditor.   F
There is a proviso appended to sub-rule (2) which provides that
no sale under this rule shall be confirmed if the amount offered
by sale price is less than the reserve price but this is relaxable
in view of the second proviso appended to sub-rule (2). Sub-
rule (3) lays down that on every sale of immovable property, the       G
purchaser shall immediately make the deposit of 25% of the
amount of the sale price. In default of such deposit, the property
shall forthwith be sold a91:iin. Sub-rule (4) provides that the
balance amount of purchase price payable shall be paid by the
purchaser on or before the fifteenth day of .confirmation of sale      H
    542     SUPREME COURT REPORTS                   [2013] 8 S.C.R.


A of the immovable property or such extended period as may be
  agreed upon in writing between the parties. Sub-rule·(5) makes
  a provision that if the balance amount of purchase price is not
  paid as required under sub-rule (4), then the deposit shall be
  forfeited and the property shall be resold and the defaulting
B purchaser shall forfeit all claim to the property or to any part of
  the sum for which it may be subsequently sold. According to
  sub-rule (6), on confirmation of sale by the secured creditor and
  if the terms of payment have been complied with, the authorised
  officer exercising power of sale shall issue a certificate of sale
c of the immoveable property in favour of the purchaser in the
  form given in Appendix V to the 2002 Rules.

        18. A reading of sub-rule (1) of Rule 9 makes it manifest
  that the provision is mandatory. The plain language of Rule 9(1)
  suggests this. Similarly, Rule 9(3) which provides that the
D purchaser shall pay a deposit of 25% of the amount of the sale
  price on the sale of immovable property also indicates that the
  said provision is mandatory .in nature. As regards balance
  amount of purchase price, sub-rule (4) provides that the said
  amount shall be paid by the purchaser on or before the fifteenth
E day of confirmation of sale of immovable property or such.
  extended period as may be agreed upon in writing between
  the parties. The period of fifteen days in Rule 9(4) is not that
  sacrosanct and it is extendable if there is a written agreement
  between the parties for such extension. What is the meaning
F of the expression 'written agreement between the parties' in
  Rule 9(4)? 2002 Rules do not prescribe any particular form for
  such agreement except that it must be in writing. The use of
  term 'written agreement' means a mutual understanding or an
  arrangement about relative rights and duties by the parties. For
G the purposes of Rule 9(4), the expression "written agreement"
  means nothing more than a manifestation of mutual assent in
  writing. The word 'parties' for the purposes of Rule 9(4) we
  think must mean the secured creditor, borrqwer and auction
  purchaser.
H
 GM, SRI SIDDESHWARA CO-OPERATIVE BANK           543
LTD. & ANR. v. SRI IKBAL & ORS. [R.M. LODHA, J.]
     19. On behalf of the borrower, the following non-               A
compliances were brought forth: (i) the auction notice of sale
was _published on 18.12.2005 under Rule 9(1 ). The public
auction should have been conducted not before 30 days
therefrom, i.e., it must have been conducted on .or after
17.01.2006 but the public auction in fact was conducted on           B
11.01.2006; (ii) 25% of the sale price from the auction
purchaser should have been collected on the day of
confirmation of sale in his favour, i.e., on 11.01.2006 but
instead Rs. 90,000/- were adjusted which he deposited as
earnest money deposit and a sum of Rs.1,45,000/- was only            c
received which could not have been done, and (iii) on or before
expiry of fifteenth day from the confirmation of sale, the auction
purchaser did not pay the balance amount and having not done
that in terms of Rule 9(5) the deposit made by the auction
purchaser should have been forfeited and property resold.            0
     20. In response to the above allegations, the Bank relied
upon the letter dated 13.11.2006 written by the borrower to the
Bank giving his express consent that the auction made in favour
of the auction purchaser may be accepted and sale-certificate
be issued to him.                                                    E

    21. The letter dated 13.11.2006 sent by the borrower to
the Bank reads as follows:

     "General Manager,                                               F .
     Shri. Shiddheshwar Co-op. Bank,
     Bijapur.

     Sub. : Issue of sale certificate of auctioned my house
     property.
                                                                     G
     I, Iqbal Balasab Mallad humbly submits in writing as under;

     On my request the mortgaged property to my housing loan
     account no.194, is sold on 11.01.2006, in public auction
     for Rs.8,50,000/- to my known person, Sri. Basheer
                                                                     H
    544      SUPREME COURT REPORTS                [2013] 8 S.C.R.


A         Ahmed Gulam Hussain lnamdar, as he was the highest
          bidder. But, Sri. B.G. lnamdar could not repay the loan
          within one month. Today the said person is making the
          payment of entire balance amount of Rs.2 Lakhs and I
          request you to issue him the sale certificate as I have
B         consented.

          I request to appropriate the sale amount of Rs.8,50,000/-
          to my loan account.

           Thanking you,
c
                                                    Yours faithfully,

                                                                Sd/-
           Dated : 13.11.2006                         (1.B. Mallad)

D         Signature of G.M.
          And
          Seal of the Bank.

          Sci/-
E         General Manager
          Shri. Shiddheshwar Co-op. Bank Ltd., Bijapur"

       22. Two things clearly emerge from the above letter. First,
  at the time of auction sale on 11.01.2006 the borrower was
  present. He did not object to the auction being held before
F expiry of 30 days from the date on which the public notice of
  sale was published. He also agreed that bid given by the
  auction purchaser for Rs.8,50,000/- which was highest bid be
  accepted as the auction purchaser happened to be his known
  person. Second, and equally important, the borrower expressly
G gave consent in writing that the balance sale price may be
  accepted from the auction purchaser now and sale certificate
  be issued to him. The above letter sent by the borrower to the
  Bank has been accepted by the Bank. Thus, there is a written
  agreement between the borrower and the Bank for extension
H
       GM, SRI SIDDESHWARA CO-OPERATIVE BANK 545
      LTD. & ANR. v. SRI 1.KBAL & ORS. [R.M. LODHA, J.]
     of time up to 13.11.2006. The auction purchaser made the              A
     payment of the balance purchase price forthwith on that day,
     i.e., 13.11.2006. This indicates that he was impliedly a party
     to the written agreement between the Bank and the borrower.
     In the circumstances, there is no reason why the condition in
     Rule 9(4) viz. "such extended period as may be agreed upon            B
     in writing between the parties" be not treated as substantially
     satisfied. The learned Single Judge was clearly in error in
     holding that the letter dated 13.11.2006 written by the borrower
     to the Bank cannot be construed as written agreement falling
     under Rule 9(4).                                                      c
           23. There is no doubt that Rule 9(1) is mandatory b\jt this
     provision is definitely for the benefit of the borrower. Similarly,
     Rule 9(3) and Rule 9(4) are for the benefit of the secured
     creditor (or in any case f9r the benefit of the borrower). It is
     settled position in law that even if a provision is mandatory, it     D
     can always be waived by a party (or parties) for whose benefit
     such provision has been made. The provision in Rule 9(1) being
     for the benefit of the borrower and the provisions contained in
     Rule 9(3) and Rule 9(4) being for the benefit of the secured
     creditor (or for that matter for the benefit of the·borrower), the    E
     secured creditor arid the borrower can lawfully waive their right.
     These provisions neither expressly nor contextually indicate
     otherwise. Obviously, the question whether there is waiver or
--   not depends on facts of each case and no hard and fast rule
     can be laid down in this regard.                                      F

          24. The letter dated 13.11.2006 sent by the borrower to
     the Bank leaves no manner of doubt that the borrower had
     waived his right under Rule 9(1) or for that matter under Rule
     9(3) and Rule 9(4) as well.
                                                                           G
          25. It is true that before the High Court the borrower
     disowned the letter dated 13.11.2006 and a plea was set up
     by him that on one signed blank paper the above document has
     been prepared but neither the learned Single Judge nor the
     Division Bench acce.pted the said version of the borrower.            H
    546       SUPREME COURT REPORTS                   [2013] 8 S.C.R.


A   Rather they proceeded on the basis that the letter dated
    13.11.2006 was written by the borrower to the Bank. There is
    no justification for us not to accept the letter dated 13.11.2006
    as true and genuine.

B      26. In view of what we have discussed above, learned
  Single Judge was not justified in quashing the sale certificate
  dated 16.11.2006 issued in favour of the auction purchaser and
  the notice dated 09.02.2007. The Division Bench also
  committed an error in upholding .the erroneous order of the
C learned Single Judge.

       27. There is one more aspect in the matter which has
  troubled us. Against the action of the Bank under Section 13(4)
  of the SARFAESI Act, the borrower had a remedy of appeal
  to the Debts Recovery Tribunal (ORT) under Section 17. The
D remedy provided under Section 17 is an efficacious remedy.
  The borrower did not avail of that remedy and further remedies
  from that order and instead directly approached the High Court
  in extraordinary jurisdiction under Article 226 of the Constitution
  of India.
E
          28. The learned Single Judge brushed aside the argument
    of alternative remedy by holding as follows :

          "16. As regards alternate remedy submitted by the learned
          counsel for respondents II to IV, in the decision cited supra,
F         the Supreme Court has held that the rule of exhaustion of
          alternate remedy is a rule of discretion and not a rule of
          compulsion. The court has to assign reasons for
          entertaining writ petition without exhausting alternate
          remedy. The petitioner has been victimized by fraudulent·
G         acts of respondents Ill and IV. The Ill respondent had
          misused his official position and petitioner has been
          deprived of his property in the manner not known to law.
          There is violation of Article 21 of the Constitution of India.
          The petitioner has been deprived of his shelter. The right
H         to livelihood is an integral facet of the right to life under
         GM, SRI SIDDESHWARA CO-OPERATIVE BANK           547
        LTD. & ANR. v. SRI IKBAL & ORS. [R.M. LODHA, J.]
             Article 21 of the Constitution, (Narendra Kumar Vs. State              A
             of Haryana), (1994) 4 SCC 460. Therefore, the
             submission of learned counsel for respondents II to IV that
             petitioner should have availed alternate remedy cannot be
             accepted."
                                                                                    B
           29. The learned Division Bench in this regard observed
       thus:

             "14. Though the petitioner could agitate these matters in
             an appeal filed under Section 17 of the Act, it is settled
             law that when a Constitutional right of an individual is               c
             affected by statutory authorities by trampling upon the
             mandatory requirements oflaw, this court cannot be a silent
             spectator. It becomes not only a right, but the duty of this
             court to interfere and strike at these illegal activities and
             uphold the Constitutional right of a citizen of this country.          D
             Therefore, the learned Single Judge rightly interfered with
             these illegal acts of statutory authorities in its jurisdiction
             under Article 226 and it cannot be found fault with."

            30. In Satyawati Tondon 1 , the Court was concerned with                E
       an argument of alternative remedy provided under Section 17
       of SARFAESI Act. Dealing with this argument, the Court had
       observed that where an effective remedy was available to the
       aggrieved person, the High Court must insist that before
       availing the remedy under Article 226 the alternative remedies
                                                                                    F
       available to him under the relevant statute are exhausted. In
       paragraphs 43,44 and 45 (pg. no. 123) of the Report, the Court
       stated as follows :
"'.•
             "43 .. Unfortunately, the High Court overlooked the settled
             law that the High Court will ordinarily not entertain a petition       G
             under Article 226 of the Constitution if an effective remedy
             is available to the aggrieved person and that this rule
             applies with greater rigour in matters involving recovery of

       1.   United Bank of India v. Satyawati Tondon and Others; (2010) 8 SCC 10.   H
    548      SUPREME COURT REPORTS                     (2013] 8 S.C.R.


A       taxes, cess, fees, other types of public money and the dues
        of banks and other financial institutions. In our view, while
        dealing with the petitions involving challenge to the action
        taken for recovery of the public dues, etc. the High Court
        must keep in mind that the legislations enacted by
B       Parliament and State Legislatures for recovery of such
      . dues are a code unto themselves inasmuch as they not only
        contain comprehensive procedure for recovery of the dues
        but also envisage constitution of quasi-judicial bodies for
        redressal of the grievance of any aggrieved person.
c       Therefore, in all such cases, the High Court must insist that
        before availing remedy under Article 226 of the
        Constitution, a person must exhaust the remedies available
        under the relevant statute.

          44. While expressing the aforesaid view, we are conscious
D         that the powers conferred upon the High Court under Article
          226 of the Constitution to issue to any person or authority,
          including in appropriate cases, any Government,
          directions, orders or writs including the five prerogative
          writs for the enforcement of any of the rights conferred by
E         Part Ill or for any other purpose are very wide and there is
          no express limitation on exercise of that power but, at the
          same time, we cannot be oblivious of the rules of self-
          imposed restraint evolved by this Court, which every High
          Court is bound to keep in view while exercising power
F         under Article 226 of the Constitution.

          45. It is true that the rule of exhaustion of alternative remedy
          is a rule of discretion and not one of compulsion, but it is
          difficult to fathom any reason why the High Court should
          entertain a petition filed under Article 226 of the
G
          Constitution and pass interim order ignoring the fact that
          the petitioner can avail effective alternative remedy by filing
          application, appeal, revision, etc. and the particular
          legislation contains a detailed mechanism for redressal of
          his grievance."
H
  GM, SRI SIDDESHWARA CO-OPERATIVE BANK 549
 LTD. & ANR. v. SRI IKBAL & ORS. [R.M. LODHA, J.]
     31. No doubt an alternative remedy· is not an absolute bar       A
to the exercise of extraordinary jurisdiction under Article 226
but by now it is well settled that where a statute provides
efficacious and adequate remedy, the High.Court will do well
in not entertaining a petition under Article 226. On misplaced
considerations, statutory procedures cannot be allowed to be          B
circumvented.

      32. If the facts of the present case are seen, it is apparent
that the borrower had been chronic defaulter in repayment of
the loan amount. Before issuance of notice under Section 13(2)        C
on 30.06.2005 a demand notice was given by the Bank to the
borrower on 16.02.2005 calling upon him to pay the outstanding
loan amount but he did not comply with that notice. Thereafter,
13(2) notice was given to him on 30.06.2005 but he did not
bother to pay the outstanding dues. The secured interest which
was immovable property was put up for auction more than six           D
months after the notice under Section 13(2) was given to him
by the Bank but still the outstanding payment was not made.
The auction was held on 11.01.2006 in his presence and he
did not raise any objection about time of the auction. When the
auction purchaser did not make the balance amount in time             E
and took about 11 months in paying the balance amount, the
borrower gave his written consent to the Bank that balance
purchase price may be accepted from the auction purchaser
and sale certificate may be issued to him. Moreover, the writ
petition was filed by the borrower more than four years after         F
the issuance of sale certificate. The above facts are eloquent
and indicate that the observations made by the Single Judge
that borrower was victimized and a fraud was practiced upon,
have no basis. The finding by the Single Judge that the sale of
secured interest had been in violation of borrower's right to         G
livelihood and the observation of the Division Bench that non-
compliance of Rule 9 has violated, the borrower's right to
property are misconceived. In our view, there was no
justification whatsoever for the learned Single Judge to allow
the borrower to by-pass the efficacious remedy provided to him        H
    550      SUPREME COURT REPORTS                   [2013) 8 S.C.R.


A   under Section 17 and invoke the extraordinary jurisdiction in his
    favour when he had disentitled himself for such relief by his .
    conduct. The Single Judge was clearly in error in invoking his
    extraordinary jurisdiction under Article 226 in light of the peculiar
    facts indicated above. The Division Bench also erred in
s   affirming the erroneous order of the Single Judge.

      33. Before we close, one more fact may be noted. The
  auction-purchaser over and above the sale price of
  Rs.8,50,000/-, has discharged the entire liability of the borrower
  towards the bank by making further payment of more than
C Rs.2,37,000/-.

       34.We are, thus, satisfied that impugned orders cannot be
  sustained. Appeals are, accordingly, allowed. The impugned
  orders are set aside. The writ petitions filed by the borrower
D before the High Court are dismissed with no order as to costs ..

    K.K.T.                                          Appeals allowed.