JUDGMENT :

Riyaz I. Chagla, J.

1. Rule. Rule made returnable forthwith. Heard by consent of parties.

2. The Petitioner by the present Petition challenges the judgment and order dated 28th April 2008 passed by the Debts Recovery Appellate Tribunal at Mumbai (for short "D.R.A.T.") by which the judgment and order dated 20th December 2007 of Debts Recovery Tribunal-II and order dated 15th June 2007 passed by the Recovery Officer, D.R.T.-II was upheld.

3. The Petitioner has sought a direction against the Respondent No. 8 and/or Respondent No. 9 to refund to the Petitioner a sum of Rs. 1.10 Crores being Earnest Money Deposit (for short "EMD") deposited by the Petitioner pursuant to the Petitioner having been declared as a successful bidder of the immovable property of Respondent No. 2 in the auction held by the Recovery Officer.

4. The brief background of facts is necessary:-

(i) Respondent Nos. 3 and 4 were partners in the Respondent No. 2-firm.

(ii) Respondent No. 2 was granted credit facility in the year 1982 against mortgage of factory and land at Survey No. 200 (Part) CTS No. 286/1 to 2 of Bhandup village, Mumbai Suburban District (hereinafter referred to as "the said property").

(iii) The account of Respondent No. 2 had become NPA in 1992 and Respondent No. 1 filed Recovery Suit in this Court bearing Suit No. 2667 of 1993.

(iv) Thereafter, the Suit was transferred to the D.R.T. and numbered as OA No. 2449 of 1999.

(v) The D.R.T.-II passed the order decreeing the Original Application on 20th June 2003.

(vi) Respondent No. 2 and others filed Writ Petition No. 1754 of 2003 before this Court which in turn was dismissed on 28th July 2003.

(vii) A Review Petition was also preferred by Respondent No. 2 and others being Review Petition No. 14 of 2003 before the D.R.T.-II which also got dismissed on 20th November 2003.

(viii) An Appeal was preferred by Respondent No. 2 and others against the order dated 20th November 2003 and in which a Miscellaneous Application No. 105 of 2004 was taken out for waiver of pre-deposit in D.R.A.T. The waiver Application was rejected by the D.R.A.T. on 23rd August 2008.

(ix) The mortgage property was put to auction on 23rd May 2007 on "as is where is basis" for reserve price of Rs.11 Crores. The entire bid amount was to be deposited within 15 days from the date of sale.

(x) A public notice which was issued regarding auction of the said property and which was published by the Recovery Officer of D.R.T.-II, the said property was disclosed, as only being mortgaged to the Respondent No. 1-Bank in the column which read as "details of encumbrances to which the property is liable" and in the column marked as "claims, if any which have been put forward to the property and any other known particulars being on its nature and value" it was shown as "not known".

5. It is the case of the Petitioner that although the public notice was published by the Recovery Officer, in the table giving the schedule of the immovable property, the column wherein the encumbrances to which the said property was liable was not disclosed. It is the Petitioner's case that these encumbrances on the said property namely tenancies/leases claimed by Maharashtra State Electric Board, Allahabad Branch, Central Warehousing Corporation, etc. were not mentioned. The names of the said parties were also not mentioned in the claims column despite the fact that there was existence of such tenancies/leases which would affect the value of the said property.

6. The physical inspection of the said property had been provided by the Respondent No. 1-Bank to all bidders on 21st May 2007. It is only after the said inspection that the said property was put to auction on "as is where is basis" for reservation price of Rs. 11 Crores. The entire bid amount was to be deposited within 15 days from the date of the sale i.e. on 6th June 2007. Whereas 25 percent of the bid amount was to be deposited immediately which was a condition of the auction sale.

7. The EMD of Rs. 1.10 Crores had