The court emphasized the principle that a petitioner's previous conscious act to fructify the sale of auctioned property by depositing the balance amount may preclude them from questioning the E-auction through a subsequent writ petition.

Aparesh Kumar Singh, J.

Heard counsel for the parties.

2. The same petitioner approached this Court in WPC No. 2075/2016 inter-alia alleging that without confirmation of sale in terms of Security Interest (Enforcement) Rules, 2002 in respect of E-auction sale held on 07.04.2016 by the same respondent Bank for the same property, Bank is insisting upon payment of balance 75% amount and intends to forfeit 25% of the Bid amount. That writ petition was disposed of on 22.04.2016 after recording the submissions of the learned counsel for the respondent Bank, on instruction, that sale certificate would be issued in favour of the petitioner without any delay, who has been declared to be the highest bidder and is supposed to deposit the balance 75% amount within a period of 15 days of E-auction sale that would expire on 22.04.2016. In such circumstances, this Court observed that it is up to the petitioner to deposit the balance 75% amount by 27.04.2016, whereupon the respondent Bank would issue sale certificate without any delay.

3. Now the petitioner has approached this Court in the present writ application alleging that E-auction sale held on 07.04.2016 in respect of the same property, has been undertaken on a misrepresentation by the respondent Bank as no sale of the leasehold property can be executed by the respondent Bank. Property in question stands leased out to one Bijay Kumar Pandey in tripartite lease deed executed on 02.09.2005 with the Jharkhand State Housing Board. The lease period is of 90 years after deducting the period of lease already enjoyed by the third party in the lease deed namely, Manoj Bihari Sinha, the original allottee. The property therefore, could not have been auction sold without consent of the Jharkhand State Housing Board.

4. Learned Senior counsel for the petitioner has read out the E-auction sale notice which specifies in bold letters that auction is for realisation of the mortgaged assets of the borrower under the SARFESI Act by sale of the same on “As is where is basis”. This is a clear misrepresentation on the part of the respondent Bank leading to the entire auction being vitiated. Therefore, prayer has been made for quashing of the auction notice dated 01.03.2016 and also refund of the bid amount of 25% deposited by the petitioner along with the cost of litigation etc.

5. Learned counsel for the respondent Bank submits that the petitioner participated with his eyes and ears open at the time of auction and as a matter of fact, there is no misrepresentation in E-auction notice. Clause-20 thereof specifically provides for inspection of the property by the intending bidders who may contact the respondent Bank at the concerned Branch. It is submitted that there has been no objection from the respondent Jharkhand State Housing Board any time during course of the SARFESI proceeding leading to E-auction of mortgaged property of the borrower. From the E-auction notice itself, it is clear that it is being sold on “as is where is basis”. Petitioner has earlier approached this Court with an intent and purpose to deposit the balance 75% of the amount on which this Court has granted indulgence to do so by 27.04.2016. He should therefore be denied the discretionary remedy by this Court as he appears to be using the forum of Court becoming wise one after the other. Learned counsel for the respondent Bamk further submits that once auction sale is executed, remaining act on the part of the Jharkhand State Housing Board for transfer of lease in favour of the petitioner, is also to be undertaken with cooperation of the respondent Bank.

6. In reply, learned counsel for the petitioner has again referred to E-auction notice and submits that the opening paragraph thereof are very clear that the transfer is not through the lease, but through sale of the property described therein which again is misleading and shows acquisition of the mortgaged property by the Bank through Sale Deed dated 02.09.2005 in the name of Bijay K