L. Narasimha Reddy, J.

One V. Rosaiah obtained loan from Vijayawada Branch of Vijaya Bank, Eluru Road, the 2nd respondent herein, by mortgaging an item of immovable property. Since he did not repay the borrowed amount, the Authorized Officer of the Bank, the 1st respondent herein, published a sale notice on 07-01-2009, proposing to sell the mortgaged item of property. In the notice, it was mentioned that the premises are in an area of 149.76 sq.yards, with a house constructed thereon.

The respondent participated in the auction and emerged as the highest bidder for a sum of Rs.22,25,000/-. The sale was confirmed and sale certificate was also issued.

Stating that the area of the premises, on physical verification is found to be only 96 sq.yards, the respondent got issued a notice to the appellants. A reply was given by the appellants, stating that they are not responsible for the deficiency as to extent. Not satisfied with the reply, the respondent filed O.S.No.1206 of 2009, in the Court of II Additional Senior Civil Judge, Vijayawada, claiming a sum of Rs.9,18,275.67 ps., being the principal amount of Rs.8,19,199/-, representing the proportionate cost of the shortfall and interest thereon. She pleaded that once the appellants have mentioned the extent of the plot of land, upon which the building was existing, they were under obligation to ensure that the purchaser is delivered the property according to the specifications. It is stated that the premises were got measured only when the possession was delivered, and when the discrepancy of the extent was brought to the notice of the appellants, they did not make good the loss, suffered by her.

Appellants filed written-statement. According to them, the extent, as mentioned in the title deeds, deposited with them, as a measure of mortgage; was indicated in the auction notice, and that the respondent was supposed to verify every detail before participating in the auction. An objection was also raised as to the maintainability of the suit, on the ground that the relief, if any, has to be claimed by initiating proceedings under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘the Act’).

Through a judgment dated 09-02-2012, the trial Court decreed the suit. Hence, this appeal.

Sri E. Ajay Reddy, learned counsel for the appellants submits that though the extent of 149.76 sq. yards was mentioned in the notification, any purchaser would get the property on, as is where is basis, and the respondent was under obligation to verify each and every aspect, before participating in the auction. He contends that when the sale is for an item of property, and not on the basis of the extent, there was no basis for the trial Court in passing the decree.

Sri Y. Subrahamanyam, learned counsel for the respondent, on the other hand, submits that the auction notice issued by the appellants is an offer; it is but natural that the offer must be of a specific item, and any discrepancy therein amounts to misrepresentation. He contends that the respondent did not have any opportunity to measure the area, before a sale certificate was issued to her, and it was the duty of the appellants to verify the extent, before issuing the notification, and to deliver the same extent, after the sale became final.

The respondent filed the suit for recovery of the amount, representing the cost of the area, that fell short of, what is mentioned in the auction notice. On the basis of the pleadings before it, the trial Court framed the following issues for its consideration:

1. Whether the plaintiff is aware of physical features and exchange and participated in the auction and became highest bidder and that the defendants are not liable to pay the suit amount as pleaded in para 5 of written statement is true?

2. Whether the suit is not maintainable u/s.31 of SARFA & ESI Act?

3. Whether the suit is liable for rejection under order VII Rule 11 C.P.