The main legal point established is that the bank should refund the amount paid by the petitioner as the bank had realized the debt amount in the subsequent sale.

S. Manikumar, J.

1. Petitioner/auction purchaser, has contended that when India Bulls Housing Finance Ltd., Chennai, first respondent, brought the subject property for auction, on 30/9/2015, he was declared as highest bidder in the auction, for a bid amount Rs.1,25,50,000/-. Auction was confirmed, on 31/10/2015. He paid a sum of Rs.31,37,500/- towards 25% of the sale price towards EMD. Due to ill health, he could not pay the balance amount and sought for extension of time upto 25/3/2006. Bank did not agree and brought the subject property once again, for auction, by issuing e-auction notice, dated undated fixing the auction, on 30/7/2016. Reserve price for the auction has been fixed at Rs.1,25,00,000/-.

2. On the above facts, the petitioner has prayed for a writ of certiorarified mandamus, to quash the e-auction, issued by the first respondent, undated vide Online Auction, https://eauction.npasource.com and consequently, direct the first respondent to allot the property viz., bearing Plot No.23 to an extent of 3 grounds (7200 sq.ft) comprised in New Survey No.160/1A2, 160/2A2 and 166/3A4, as per patta bearing No.3134 situated at Paradise farm Land, Sholinganallur Village, Tambaram Taluk, Kancheepuram District, in favour of the petitioner, as per letter of confirmation, dated 31/10/2015.

3. Mr.M.Rajasekhar, learned counsel for the petitioner submitted that when Rs.31,37,500/-, representing 25% of the sale amount, including EMD has already been paid, Bank ought not to have reissued e-auction sale notice, without considering the representation of the writ petitioner, seeking for extension of time, for payment of balance amount.

4. Responding to the rule nisi issued, and inviting the attention of this Court to the letter, dated 2/9/2016, stated to have been submitted by the petitioner, after filing of the instant writ petition, Mr.C.Uma Shankar, learned counsel for the Bank submitted that expressing difficulty in making payment of the balance amount i.e., 75%, writ petitioner has sought for refund of 25% of the sale price, including EMD amount. It is also the submission of the learned counsel that earlier, vide letter, dated 31/5/2016, writ petitioner was informed that if the balance 75% amount was not paid in terms of clause xiii of the terms and conditions of the bid form, forfeiture would be made.

5. Learned counsel for the Bank further submitted that a sum of Rs.31,37,500/- deposited by the petitioner is in no lien account. As per the notice issued, under Section 13 (2) of the SARFAESI Act, 2002, a sum of Rs.94,12,500/- was due from the borrower. In the subsequent auction conducted, property has been sold for Rs.1.46 crores and that auction was also confirmed. He further added that the borrower has not challenged the subsequent sale. Submissions of the learned counsel for the Bank is placed on record.

6. Though in July 2016, petitioner has sought for a writ of certiorarified mandamus, to quash the impugned auction notice, dated undated, fixing the auction on 31/7/2016, from the submissions of the learned counsel for the Bank, it could be seen that the auction had already been conducted and confirmation made. In the earlier auction, petitioner has offered a bid amount of Rs.1,25,50,000/-, whereas in the later auction, property has been sold for a higher value at Rs.1,46,00,000/-. According to the learned counsel for the Bank, borrower has not challenged the subsequent sale and confirmation.

7. Though in the month of July 2016, writ petitioner has sought for a writ of certiorarified mandamus, as stated supra, on 2/9/2016, petitioner and his wife seemed to have written a letter, dated 2/9/2016, to India bulls Housing Finance Limited, seeking for refund of 25% of the sale price, including EMD. For brevity, letter dated 2/9/2016, is reproduced hereunder:-

“We are in receipt of you bid dated 30/10/2015 for Rs.1,25,25,000/- vide DD No.300079 dated 30/10/2015, drawn on Indian Bank being the earnest money i.e., 10% of the reserve pri