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2017 Supreme(Mad) 2632
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M.V. MURALIDARAN, J.
Canara Bank Represented by its Manager, Ghetticheviyur Branch - Petitioner
Versus
G.K. Subramaniam Proprietor M/s. Gomathi Oil Mills & Ors. - Respondents
CRP (NPD) No.2415 of 2012, M.P.No.1 of 2012
Decided On : 12-07-2017
For the Petitioner: Mr. T.C.A. Srinivasan
For the Respondents: Mr. N. Ishtiaq Ahmed, Mr. R.T. Doraisamy
Headnote:
Civil Procedure Code,1908 - Order 21 Rule 90,66 and 66(2)(e) and Section 151 - Recovery of Debts Due to Banks and Financial Institutions Act (51 of 1993), Section 5(2)(b) - It is case of petitioner that the Bank has filed Civil Suit against respondents/defendants for recovery of amount with cost and interest at the rate and preliminary decree was passed and final decree was passed - But, respondents/defendants have not filed any appeal against judgment and decree passed in O.S.No.7 - After decree, petitioner has filed the Execution Petition in E.P.No.4 of before learned Additional District Judge (Fast Track Court-II)for executing decree and later the property belongs to the judgment debtor was attached along to the respondents/defendants and same was public auctioned - Thereafter, petitioner/bank has filed a petition in E.A.No.30 for setting aside the auction sale, filed - In petition, petitioner/bank has alleged that the bank has filed the Execution Petition for sale to execute the decree passed in O.S.No.7 against 1st respondent - Pursuant to that, Court viz., the Additional District Judge, Fast Track Court-II, also brought property for public auction sale and accordingly, 2nd respondent is highest bidder and taken the property in Item Nos.1 and 2 of the petition mentioned property – Held, In this case on hand, it is no dispute that the proclamation of sale by public notice was issued by the Executing Court and the notice was issued to this petitioner/decree holder, but on the other hand, this petitioner/plaintiff have not made any objection for the valuation of the property - In fact, Court himself has fixed value of both the items of the property has given by the petitioner/plaintiff at the rate in item Nos.1 and 2 respectively, whereas Court Amin has given for the value of both the properties - After issuing proclamation of the sale by public notice without making any objection, this petitioner cannot say that Court has fixed the minimum value, when the property was valued in high and the petitioner/plaintiff have no right at all to file the petition for setting aside the auction sale - Thus being case of petitioner/plaintiff, he would very well inform the learned Executing Court by producing the SARFAESI Act and praying for transfer of the Execution Petition to Debt Recovery Tribunal, but, all along the petitioner/plaintiff has keep quite and not made any whisper about the SARFAESI Act, but accepting the public auction sale conducted by the Executing Court -Therefore, this Court not warranting interference in the order passed by the Executing Court in E.A.30 in E.P.No.4 on the file of the learned Additional District Court (Fast Track Court No.II), and the same is liable to be dismissed- In the result, this Civil Revision Petition is dismissed by confirming the order passed.
1. The decree holder in E.P.No.4 of 2007 is the Civil Revision Petitioner before this Court, challenging the order passed in E.A.No.30 of 2008 in E.P.No.4 of 2007 in O.S.No. 7 of 2002, dated 02.08.2011, on the file of the learned Additional District Court (Fast Track Court No.II), Gobichettipalayami.
2. The petitioner is the Canara Bank, Ghetticheviyur Branch representing by its Branch Manager. It is the case of the petitioner that the Bank has filed the Civil Suit against the respondents/defendants for recovery of amount of Rs.6,22,074/- with cost and interest at the rate of 16.25% per annum and the preliminary decree was passed on 24.07.2002 and final decree was passed on 30.07.2004. But, the respondents/defendants have not filed any appeal against the judgment and decree passed in O.S.No.7 of 2002. After the decree, the petitioner has filed the Execution Petition in E.P.No.4 of 2007 before the learned Additional District Judge (Fast Track Court-II), Gobichettipalayam for executing the decree and later the property belongs to the judgment debtor was attached along to the respondents/defendants and the same was public auctioned. Thereafter, the petitioner/bank has filed a petition in E.A.No.30 of 2008 for setting aside the auction sale held on 13.11.2008, filed under Order 21 Rule 90 and Section 151 of C.P.C.
3. In the petition, the petitioner/bank has alleged that the bank has filed the Execution Petition for sale to execute the decree passed in O.S.No.7 of 2002, against the 1st respondent. Pursuant to that, the Court viz., the Additional District Judge, Fast Track Court-II, also brought the property for public auction sale and accordingly, the 2nd respondent is the highest bidder and taken the property in Item Nos.1 and 2 of the petition mentioned property at Rs.2,13,500/- and Rs.50,400/- respectively.
4. Therefore, the petitioner has filed an application by stating that there is a material irregularity and fraud committed in conducting the sale. The petitioner/bank also states that item No.1 of the property mentioned in the execution petition was mortgage property and item No.2 of the property mentioned in the execution petition was property was attached by the Court as per the judgment in I.A.No.652 of 2001 in O.S.No.346 of 2000, on the file of the Principal Sub-Court, Gobichettipalayam, when the suit is pending before the Court.
5. The petitioner also states that in Plot Nos.1 and 2 in Item No.2 properties mentioned in the execution petition were mentioned as item No.1 and 2 in the attachment petition in I.A.No.652 of 2001. The petitioner who is the decree holder has valued the said property at Rs.1,00,000/- and Rs.50,000/- respectively in the said attachment petition. The Court Amin, who attached that property on 27.08.2001 was valued the properties as Rs.2,00,000/- and Rs.1,00,000/- respectively. The petitioner also states that in the counter affidavit filed by the 1st respondent/Judgment debtor in EPR.No.4 of 2007 on 09.09.2008 stated that the value of the Item No.1 of the properties mentioned in the execution petition (mortgaged properties) as Rs.5,00,000/- and item No.2 of the properties mentioned in the execution petition (item No.1 and 2 in the attachment petition) as Rs.3,00,000/-. But, the Executing Court fixed the upset price for item No.1 of the properties mentioned in the execution petition as Rs.1,25,000/- and item No.2 of the property mentioned in the execution petition which contain two plots as Rs.50,000/- which is very very low on the following grounds for Item No.2:
“(a) Plot (1) in item No.2 land measuring 0.39.5 Hec. (0.97 = acre) in New S.F.No.317/2 Shanthipalayam village was valued by the petitioner/decree holder as Rs.1,00,000/- as on 20.07.2001.
(b) Plot (1) in item No.2 was valued by the amin on 27.08.2001 as Rs.2,00,000/-.
(c) Plot 2 in item No.2 house property was valued by the petitioner/decree holder as Rs.50,000/- as on 20.07.2001.
(d) Plot 2 in item No.2 house property was valued by the amin
