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CALCUTTA HIGH COURT
Jyotirmay Bhattacharya, A.C.J. and Sahidullah Munshi, J.
State Bank of India and Ors. —Appellants
versus
K.D. Fabrics Private Limited
and Anr. —Respondents
G.A. 3849 of 2017, APOT 220 of 2017 arising out of W.P. 660 of 2017
Decided on 21.12.2017
For the Appellants:Mr. Joy Saha, Sr. Advocate Mr. Kunaljit Bhattacharyee and Ms. Sohini Bhattacharya, Advocates
For the Respondents:Mr. M.S. Tiwari and Mr. R.K. Tiwari, Advocates
IMPORTANT POINT
Giving appropriate relief to petitioner by moulding relief on materials available before Court, is not unknown to legal parlance.
Headnote:Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002—Sections 13(4) and 17—Auction sale of secured asset—Direction to Bank to refund sale price of property put on auction—There is hardly any scope for challenging that part of order by which Bank was directed to refund bid amount together with interest to writ petitioners (auction purchasers) as bank has failed to complete sale by registering sale certificate and also failed to deliver possession of property sold on auction after making it free from all encumbrances to auction purchaser/writ petitioner in discharge of its obligation as per condition of sale of property in auction, till date—Though it is true that such relief by way of refund of bid money has not been prayed by writ petitioner in writ petition, but giving appropriate relief to petitioner by moulding relief on materials available before Court, is not unknown to legal parlance—Order passed by Writ Court upheld. (Paras 5, 11 to 15)
Result: Appeal dismissed.
Jyotirmay Bhattacharya, A.C.J.—This Mandamus Appeal is directed against an order passed by the learned Single Judge on 4th December, 2014 in WP No. 1125 at the instance of the Respondent Bank.
2. By the impugned order, the respondent bank was directed to refund the sum of Rs.1,21,00,000/- to the writ petitioner which the writ petitioner paid to the bank as the sale price of the property in question put on auction sale by the Bank to recover the dues of the borrower in exercise of the powers under the SARFAESI Act, 2002, within seven days from the date of the order together with interest at the rate of 12% per annum on and from the date of receipt of the purchase price until full payment thereof to the writ petitioner. The respondent bank was directed to pay costs of Rs.25,000/- to the writ petitioner.
3. Let us now consider the legality of the impugned order in the facts of the instant case.
4. To realise the unpaid dues of its debtor, the respondent bank put up an immovable property belonging to its debtor for sale in auction under the provision of SARFESI Act, 2002. Pursuant to an advertisement published in the newspaper on 14.08.2011, the writ petitioner offered its bid and the writ petitioner being the highest bidder, was allowed to put in the bid money amounting to Rs.1,21,00,000/- which was accepted by the bank on 20.09.2011. Sale certificate was also issued in favour of the writ petitioner on 29th October 2011. However for some reason or other, the sale could neither be completed by registering the sale certificate, nor possession of the property-inquestion could be delivered by the bank to the writ petitioner till date.
5. It is rightly pointed out by Mr. Saha, learned Senior counsel appearing for the bank that the writ petitioner did not pray for refund of the money deposited by it with the bank. In fact the writ petitioner prayed for delivery of physical possession of the property in question by the bank to the petitioner.
6. In this context, Mr. Saha, learned Counsel contended that the writ court was not justified in directing for refund of the sale price which the writ petitioner deposited for purchasing the suit property.
7. Mr. Tiwari learned Advocate for the writ petitioner, submitted that since the bank is unable to complete the said sale and deliver peaceful possession thereof to the writ petitioner since September, 2011, the writ petitioner is not only deprived of enjoying the said property but at the same time is also deprived of utilizing its money which it deposited with bank almost seven years ago. He contended that in this context the writ petitioner is not interested in involving itself into this prolong litigation for receiving delivery of possession of the said property.
8. Fact remains that though the proceeding under Section 17 of the SARFESI Act, 2002, initiated by the debtor challenging auction sale, attained its finality before the Debt Recovery Tribunal, but the appeal arising therefrom and the application for condonation of delay are awaiting consideration before the Debt Recovery Appellate Tribunal.
9. While disposing of the proceeding under Section 17 of the said Act, the sale held on 20th September, 2011, was quashed as notice under Section 8(6) was neither issued properly as per rules, nor notice under Rule 9(2) was served upon the borrowers as per Rules. The respondent bank was thus directed to refund the bid amount received by the bank from the auction purchaser i.e. Rs.1,21,00,000/- along with interest @12% per annum to the auction purchaser. The bank was directed to pay sum of Rs.25,000/- to the writ petitioner on account of costs. The applicant (borrower) was directed to deposit the equivalent amount which the bank was required to pay to the writ petitioner, with the bank and within four weeks from the date of such deposit, the bank was directed to realise the said property from mortgage. Respondent bank was given liberty to proceed against the applicants (borrowers) and other
