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2018 Supreme(Jhk) 916
IN THE HIGH COURT OF JHARKHAND AT RANCHI
ANUBHA RAWAT CHOUDHARY, J.
Smt. Basanti Munda – Petitioner
Versus
State Bank of India through its Manager and Others – Respondents
W.P. (C) No. 1179 of 2015
Decided On : 16-03-2018
For the Petitioner: Mr. Shashank Shekhar.
For the Respondents: Mr. Amritansh Vats, Mr. Rajesh Kumar, Mr. Arup Kumar Dey, Mr. Vineet Prakash.
The appellate authority has the jurisdiction and duty to consider the appeal, even if the sale was concluded and the sale certificate was duly registered. The court also emphasized the importance of condoning delay in filing the appeal and the need for the appellate authority to hear the parties before deciding the appeal on its merits.
Headnote:
DELAY CONDONATION - APPEAL AGAINST AUCTION SALE - [Bihar and Orissa Public Demand Recovery Act, 1914, Section 29, 60, 65] - The court remitted the matter to the appellate authority for fresh consideration on the point of condonation of delay and for further consideration on the merits of the matter after hearing the parties. The court set aside the order passed by the Deputy Commissioner and directed the Deputy Commissioner to hear the matter afresh, adding the petitioner and the auction purchaser as party respondents in the appeal. The Deputy Commissioner was directed to first decide the petition for condonation of delay and then proceed to decide the appeal on merits if the delay was condoned.
Fact of the Case:
The case involved a writ petition filed by the petitioner seeking relief from the notice to vacate the premises and challenging the orders passed by the District Certificate Officer and the Deputy Commissioner in Certificate Case No. 33/1985-86. The proceedings arose from a certificate case initiated by a bank for recovery of dues from the respondents. The mortgaged property was sold by public auction to a successful bidder who later sold the property to the petitioner. The petitioner received a notice to vacate the premises, leading to the writ petition.
Finding of the Court:
The court set aside the impugned orders and remitted the matter to the appellate authority for fresh consideration on the point of condonation of delay and for further consideration on the merits of the matter after hearing the parties. The court directed the Deputy Commissioner to hear the matter afresh, adding the petitioner and the auction purchaser as party respondents in the appeal. The Deputy Commissioner was directed to first decide the petition for condonation of delay and then proceed to decide the appeal on merits if the delay was condoned.
Issues: The issues included the condonation of delay in filing the appeal, the legality and validity of the auction sale, the impact of setting aside the auction sale on the subsequent sale made to the petitioner, and the authority of the appellate authority to set aside the concluded sale.
Ratio Decidendi: The court held that the appellate authority had the jurisdiction and duty to consider the appeal, even if the sale was concluded and the sale certificate was duly registered. The court also emphasized the importance of condoning delay in filing the appeal and the need for the appellate authority to hear the parties before deciding the appeal on its merits.
Final Decision: The court allowed the writ petition, set aside the impugned orders, and remitted the matter to the appellate authority for fresh consideration. The Deputy Commissioner was directed to hear the matter afresh, add the petitioner and the auction purchaser as party respondents, and first decide the petition for condonation of delay before proceeding to decide the appeal on its merits.
1. Heard Mr. Shashank Shekhar, counsel appearing on behalf of the petitioner.
2. Heard Mr. Amritansh Vats, counsel appearing on behalf of the respondent nos. 3 & 4.
3. Heard Mr. Vineet Prakash, counsel appearing on behalf of the respondent no. 5.
4. Heard Mr. Rajesh Kumar, counsel appearing on behalf of the respondent-State Bank of India.
5. Heard Mr. Arup Kumar Dey, JC to GP-I counsel appearing on behalf of the respondent- State.
6. The instant proceedings inter-alia arises out of proceedings before District Certificate Officer, Ranchi in Certificate Case No. 33/1985-86 and also Certificate Appeal No. 126R15/2001-02 before the learned Deputy Commissioner, Ranchi arising out of the said certificate case.
7. This writ petition has been filed by the petitioner for the following reliefs:
(a) For quashing notice dated 07.02.2015 issue by Circle Officer, Namkum, received by the petitioner on 03.03.2015 whereby and whereunder the petitioner has been directed to vacate the premises by 31st March, 2015.
(b) For quashing order dated 01.03.2013 and 20.01.2014 passed by District Certificate Officer, Ranchi in Certificate Case No. 33/1985-86 whereby the petition filed by the vendor of the petitioner Patras Bando (Respondent No. 5) for impleading his as party has been rejected.
(c) For quashing the order dated 22.10.2012 passed in Certificate Appeal No. 126R15/2001-02 whereby and whereunder the learned Deputy Commissioner, Ranchi has allowed the said certificate Appeal and directed the Certificate Holder to vacate the premises within one month.
(d) During pendency of this application, stay of all further proceeding pursuant to the Certificate Appeal No. 126R15/2001-02 pursuant to notice dated 07.02.2015.
(e) During pendency of this application, stay of all further proceeding pursuant to the impugned notice dated 07.02.2015.
8. The certificate proceedings involved in this case was initiated at the instance of the Respondent No. 1 for recovery of dues from the Respondent Nos. 3 and 4 and in the certificate proceedings the mortgaged property was sold by public auction to Respondent No. 5 who in turn sold the property to the petitioner.
9. The records of the said Certificate Case No. 33/1985-86 was called for by this Court vide order dated 14.03.2018 and all the parties to this writ petition have gone through the records of Certificate Case No. 33/1985-86 which was made available to them for their perusal.
10. After hearing the counsel for the parties, after considering the materials on record and after considering the records of the certificate case with the assistance of the counsels appearing for the parties, this court finds the following facts:-
(i) M/s. Sinha Surgical & Chemical Manufacturing Company (respondent no. 3) through its partner/borrower sought financial assistance from State Bank of India in which Smt. Anjali Sinha-respondent no. 4 was one of the guarantors.
(ii) Respondent No. 3 after receiving the loan, defaulted in making payment of the loan amount and in order to recover the dues, the Bank initiated a Certificate Case bearing Certificate Case No. 33/1985-86 against the Respondent nos. 3 and 4. The certificate proceeding was for realization of a sum of Rs. 3,00,007/-.
(iii) Vide order dated 31.07.1996 of the records of the certificate officer, it has been recorded that the details of the property of the certificate-debtors was filed by the Bank on that day and the Bank had prayed for auction of the property and there was an order passed for publication of auction notice fixing the date as 09.09.1996.
(iv) The notice for auction was published in news-paper Prabhat Khabar but nobody turned up for auction on 09.09.1996.
(v) On 20.08.1998, it has been recorded that as the certificate-debtor has not deposited any amount warrant was directed to be issued fixing the date as 13.10.1998.
(vi) However, in the meantime on 14.09.1998 an application was filed by the certificate- debtor depositing an amount of Rs. 45000/- in total and after hearing t
