The main legal point established is that the secured creditor, under the SARFAESI Act, 2002, is obligated to apprise itself of all encumbrances and liabilities in respect of the property prior to putting it up for sale, and cannot benefit from its own negligence.

DEBANGSU BASAK, J.

1. The petitioner seeks cancellation of a letter dated October 26, 2017 issued by the Corporation Bank. He seeks a direction upon the bank to reimburse the municipal tax paid on account of an immovable property along with interest.

2. Learned Advocate appearing on behalf of the petitioner submits that, the bank undertook E-Auction of an immovable property by a notice dated March 30, 2017. The petitioner participated therein. The petitioner became successful in such auction. The petitioner was put into possession of such immovable property. A Sale Certificate was issued in favour of the petitioner. The Sale Certificate states that the sale was free from all encumbrances. Subsequently, the petitioner was faced with claims for liabilities in respect of the immovable property on two counts. One is property tax payable to the Kolkata Municipal Corporation and the other is maintenance charges. According to him, the petitioner is not liable to pay any maintenance charge or property tax for the period up to April 3, 2017, being the date of sale. He refers to the correspondence exchanged between the parties and submits that, no liability of the property can be foisted upon the petitioner for the period prior to the Sale Certificate dated April 3, 2017. In support of such contentions, he relies upon Judgment and Order dated May 1, 2018 delivered in W.P. No. 128 (W) of 2016 (M/s. Poddar Commodities Pvt. Ltd. & Anr. Vs. Arms & Anr.) and Judgment and order dated September 12, 2018 delivered in W.P. No. 27685 (W) of 2017 (Yashika Reality Private Limited & Ors. Vs. Kolkata Municipal Corporation & Ors.).

3. Learned Advocate appearing on behalf of the bank submits that, the property was put up for sale on 'as is where is' and 'as is what is' basis. He refers to the notice inviting the E-Auction. He submits that, the petitioner ought to have apprised himself as the quality of the defect in title, if any, and the liability in respect of the property. The petitioner not having done so cannot claim that, the petitioner is not liable to pay the arrear property tax or the maintenance charges. Moreover, the bank did not have any knowledge of such dues. An authorized officer of the bank exercising jurisdiction under the provisions of the Securitisation & Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002 is not the owner of the property. He has no obligation to look into such issues. The petitioner not having discharged his obligations cannot claim such amount from the bank. In support of his contentions, he relies upon a decision of the Madras High Court dated October 28, 2009 passed in W.P. No. 19557 of 2009 and M.P. No. 1 of 2009 (V. Sambandan vs. The Punjab National Bank & Anr.). He submits that, the writ petition is not maintainable as the petitioner has other alternative remedies available. He points out that, Kolkata Municipal Corporation is not a party respondent in the proceedings. Therefore, according to him, no relief can be granted to the petitioner.

4. The petitioner participated in an E-Auction undertaken by the bank. The bank put up immovable property for sale, by E-Auction notice dated February 24, 2017. The E-Auction was conducted under the provisions of the SARFAESI Act, 2002. The relevant terms and conditions of the E-Auction are as follows:-

"Terms ad Conditions:

(A) E-Auction is being held on '"AS IS WHERE IS" & "AS IS WHAT IS" BASIS and the Bank is not responsible for title, condition or any other fact affecting the property.

(E) There is no encumbrances on the property. However the intending bidders should make their own independent enquiries regarding the encumbrances, title of the property put on auction and the claims/rights/dues affecting the property, prior to submitting their bid. The E-Auction advertisement does not constitute and will not be deemed to constitute any commitment or any representation of the Bank to sell the property. The Authorized Officer/Secured Creditor