A petitioner who has successfully participated in an auction sale conducted by a Bank under the SARFAESI Act, 2002 is entitled to refund of the entire money with interest if there has been a misrepresentation made by the Bank.

JUDGMENT

Moushumi Bhattacharya, J. - WPO 2186 of 2022 was directed to be listed along with WPA 15802 of 2022 by an order dated 1st August, 2022. GA 1 of 2022 has been filed by the writ petitioner in WPO 2186 of 2022. WPA 15802 of 2022 has been filed by the respondent no. 1 after WPO 2186 of 2022. The two writ petitions and the application are being disposed of by this judgment.

2. The undisputed facts from the two writ petitions and the connected application, are these.

3. The petitioner was the successful auction purchaser of a sale conducted by the respondent no. 1 Central Bank of India pursuant to a paper publication made by the Bank on 25th May, 2014. The property for sale was described in the Auction Sale Notice and the total consideration money was indicated at Rs. 35 lacs. The petitioner initially paid 25% of the total consideration money and subsequently the entire balance amount. The communication dated 3rd July, 2014 from the Bank to the petitioner indicates that the petitioner was declared as the successful auction purchaser. A sale certificate was issued in favour of the petitioner on 29th September, 2014.

4. The respondent Bank failed to hand over physical possession of the property in question to the petitioner. The petitioner wrote several letters to the Bank which are part of records. The first writ petition, namely WPO 2186 of 2022, is a result of the failure of the Bank to hand over the physical possession of the property to the petitioner, the sale certificate for which was also issued to the petitioner on 29th September, 2014. The relief prayed for in WPO 2186 of 2022 is for a direction on the Bank to refund the entire money to the petitioner along with interest at 10% per annum on and from 29th September, 2014, which is the date of issue of the sale certificate.

5. The Bank thereafter filed WPA 15802 of 2022 wherein the petitioner is the respondent no. 4. The Bank prayed for a direction on the District Magistrate, South 24 Parganas, to take possession of the secured asset under section 14 of the SARFAESI Act, 2002.

6. By an order dated 19th May, 2022, passed in WPO 2186 of 2022, a Coordinate Bench directed the Bank to put in a sum of Rs. 35,36,698/- together with interest at 10% p.a as on 29th September, 2014 with the Registrar, Original Side of this Court. The Court noted the conduct of the Bank in sitting on the petitioner's money and gave an opportunity to the Bank to explain its conduct on affidavits. Affidavits are complete in both the writ petitions.

7. The petitioner in WPO 2186 of 2022 has filed the present application GA 1 of 2022 for a direction on the Registrar, Original Side to permit the petitioner to withdraw the amount of Rs. 62,39,042/- which is the accumulated sum of Rs. 35,36,698/- plus interest at 10% p.a from 29th September, 2014 onwards.

8. The adjudication which is invited from the Court is whether the petitioner's claim for refund of the money paid for purchase of the property pursuant to the Auction Sale Notice should be allowed over the relief prayed for by the Bank for a direction on the District Magistrate to take possession of the secured asset which was the subject matter of the Auction Sale Notice issued by the Bank. From the relief claimed by the Bank in the subsequent writ petition, it is clear that the Bank was not in possession of the property on the date of the Auction Sale Notice. That position has not changed till date.

9. The Auction Sale Notice categorically asserts that the Bank is in possession of the property and that the property is free from all encumbrances. The Auction Sale Notice did not contain any statement of the Bank not being in actual possession of the property as on the date of issue of the Auction Notice. There is little doubt that the contents of the Notice persuaded the petitioner to participate in the auction and the petitioner made over the entire consideration money of Rs. 35 lacs to the Bank on the basis of the Auction Notice as well as the Bank's letter