Judgment :- SRINIVASAN, J. 1. (O.S.A. No. 126/94 & Application No. 4029/94) This appeal is by the decree-holder (Punjab National Bank, Madras-1, hereinafter referred to as the ‘Bank’) in C.S. No. 180 of 1984 against the order of a learned single judge of this Court in Application No. 6488 of 1993. 2. The Bank is aggrieved by the direction contained in the judgment of the learned single judge whereby the Bank is directed to discharge all the statutory liabilities of defendants 1 to 16 towards income-tax, sales-tax and others in such a way that defendants 1 to 16 are not burdened with any liability after the execution of the sale deed. 3. The Bank obtained a decree passed on consent in C.S. No. 180 of 1984 on 14-6-1989. It was a decree based on mortgage and hypothecation. After some attempts were made to sell the properties through an Advocate-Commissioner and failed, the Bank entered into private negotiations with certain parties and ultimately, agreed with one K.K.R. Finance & Housing Development (P) Ltd. for sale of all the properties at Rs. 2.25 Crores. It is not necessary at this stage to set out all the terms of the agreement betw een the Bank and the said K.K.R. Finance & Housing Development (P) Ltd., which is called for the purpose of this order as ‘third-party purchaser’. 4. The Bank filed Application No. 6488 of 1983 for accepting the offer made by the said third-party purchaser and directing a sale in its favour of the properties which were the subject matter of the decree. While ordering that application, the learned judge has given the direction as stated above. The Bank is aggrieved by the aforesaid direction. 5. The contention of the Bank is that being a mortagagee, the Bank cannot be made to discharge the statutory liabilities of defendants 1 to 16 which consist of sales-tax, as well as income-tax. Arguments were advanced on both sides at length on the question whether there is a first charge over the properties having precedence over the mortgage rights of the bank in the mortgaged properties. 6. It is not necessary for us to decide the question in this appeal in view of the subsequent developments. The third-party purchaser was directed by the order under appeal to deposit a sum of Rs. 6. It is not necessary for us to decide the question in this appeal in view of the subsequent developments. The third-party purchaser was directed by the order under appeal to deposit a sum of Rs. 50 lakhs within two months from the date of the order and it was also directed to pay the balance within two months from the date of such payment. The order said that possession will be delivered after the entire amount is paid after the execution of the sale deed at the cost of the third party-purchaser. Alleging that as per the terms of the agreement between the Bank and the third-party purchaser, the Bank was bound to deliver all movables and machineries to the third-party purchaser immediately after the payment of Rs. 50 lakhs which the purchaser had agreed to pay within 24-hours from the passing of the order by the Court approving of the agreement and accepting the offer, the third-party purchaser stated that the order had not taken note of the fact that movables should be delivered to it immediately after the payment of the first instalment of Rs. 50 lakhs and consequently, the order should be modified permitting payment of Rs. 50 lakhs and taking of delivery of all the movables lying in the premises in question. 7. The said application was moved on the Original Side in Application No. 4029 of 1994. That was filed on 20-7-1994. In paragraph 4 of the affidavit filed in support of the said application it is stated that the applicant was not informed of the order of this Court. In paragraph 5 it is stated that the Chief Manager of the Bank informed the applicant of the order after a long delay and said that the order was not in consonance with the terms of the agreement in as much as the terms relating to payment of Rs. 50 lakhs within 24 hours from the order of the court against delivery of the movables lying in the properties was not incorporated in the order. It is also stated that the Chief Manager of the Bank was aggrieved by the order with regard to the statutory liabilities and informed the third-party purchaser that the Bank would be moving the Court for appropriate modification in the order and advised it to wait till such time they obtained the order. It is also stated that the Chief Manager of the Bank was aggrieved by the order with regard to the statutory liabilities and informed the third-party purchaser that the Bank would be moving the Court for appropriate modification in the order and advised it to wait till such time they obtained the order. In paragraph 6 of the affidavit it is stated that on 1-3-1994 the Chief Manager of the Bank suggested that in view of the delay in getting the order modified, the Earnest Money Deposit of Rs. 10 lakhs paid by the third-party purchaser need not be kept in suspense-account and might be kept as fixed deposit so that the money may earn interest instead of lying idle and the third-party purchaser agreed for the same and the amount was converted as fixed deposit. With the consent of both sides, this application is withdrawn from the Original Side and is being dealt with and disposed of now. 8. As pointed out already, the application for modification (No. 4029 of 1994) was filed by the third- party purchaser only on 20-7-1994, that is, after a lapse of more than four months when the Earnest Money Deposit was converted into fixed deposit on an agreement between the third-party purchaser and the Bank. It is also significant to note that the third-party purchaser has not disclosed in the affidavit the date on which the Bank informed it of the order made by the Court. In such circumstances, we are of opinion that the application for modification is not bona fide and it has been deliberately filed after a long delay. Under the agreement, according to the third party purchaser, it ought to pay a sum of Rs. 50 lakhs within 24 hours from the date of the order of the Court approving the agreement and permitting delivery of movables, In the order of the Court, the third-party purchaser was granted two months time to pay the first instalment of Rs. 50 lakhs. The third-party purchaser complied with none of the conditions. If really, the third-party purchaser was acting bona fide it could have paid the amount of Rs. 50 lakhs as first instalment as directed by the order of the Court and sought for delivery of movables as against that payment, which according to it, was agreed to under the agreement between the Bank and the third party itself. If really, the third-party purchaser was acting bona fide it could have paid the amount of Rs. 50 lakhs as first instalment as directed by the order of the Court and sought for delivery of movables as against that payment, which according to it, was agreed to under the agreement between the Bank and the third party itself. Instead of doing so, the third-party purchaser waited till 20th July, 1994 and filed the application for modification. 9. We are not inclined to accept the contention of counsel for the third-party purchaser that because the Chief Manager of the Bank has said that steps should be taken for getting the order modified, the third-party purchaser did not move the Court. It is clear from the affidavit of the third party that the Bank was concerned only with the direction to meet the statutory liabilities and not the question of delivery of movables. It is the third-party purchaser who ought to have taken steps to protect its interests and filed the application for modification, if so minded. That not having been done, we are not inclined to grant the modification prayed for by the third-party purchaser in Application No. 4029 of 1994. Consequently, the said application is dismissed. 10. In view of the dismissal of Application No. 4029 of 1994 and in view of the feet that the conditions imposed by the learned single judge in the order under appeal have not been complied with by the third-party purchaser, the agreement between the Bank and the third-party purchaser cannot be accepted and there cannot be a sale in terms of the said agreement Consequently, the order passed by the learned single judge directing sale on certain conditions is set aside. 11. Moreover, there was no application or affidavit before the Court by statutory authority setting out the details of tax liabilities. The Sales-tax Department would appear to have presented a petition but did not care to get it numbered. Nobody appeared before Court on behalf of any of the statutory authorities. As regards income-tax arrears of the mortagors, learned counsel for the defendants claims that he filed a memo before the learned Judge at the time of arguments. He admits that full details were not set out in the said memo. There is no memo available in the record before us. As regards income-tax arrears of the mortagors, learned counsel for the defendants claims that he filed a memo before the learned Judge at the time of arguments. He admits that full details were not set out in the said memo. There is no memo available in the record before us. The learned Judge has in one place stated that the defendants have not filed any counter and referred in another place to their counter. But learned counsel for the defendants admits unequivocally that no counter was filed by them. In the circumstances, there is no warrant for the Court to express its opinion on the priority of statutory liabilities of the mortgagors. The Court can decide the same as and when the statutory authorities approach it with appropriate applications. 12. We find that in Clause 7 of the decree, it is provided that the sale of the immovable properties mortgaged in favour of the Bank shall be held by the advocate-Commissioner. In the view we have taken in the present appeal, the advocate-Commissioner shall act in pursuance of Clause (7) of the decree. 13. As regards the sum of Rs. 10 lakhs deposited initially as Earnest Money by the third-party purchaser, the Bank has already converted it into fixed deposit and learned counsel for the Bank has made it clear that it has no objection whatever to give the money back to the third-party purchaser. It is open to the third-party purchaser to close the fixed deposit and withdraw the amount along with the interest accrued thereon, at any time it chooses. 14. If and when property is sold and the sale proceeds are received in Court, it is open to the concerned statutory authorities to file applications before the executing Court for recovery of such sums as are said to be due to them from the mortgagors. At that stage, the Court will consider whether the statutory liabilities will have precedence over the mortgage rights of the Bank. Hence, we are not deciding that question in this appeal. The direction contained in the order under appeal given by the learned judge that the Bank shall discharge the statutory liabilities is set aside and the question is left open to be decided if occasion arises in the execution stage. 15. O.S.A. No. 126 of 1994 is allowed as indicated above. There will be no order as to costs. The direction contained in the order under appeal given by the learned judge that the Bank shall discharge the statutory liabilities is set aside and the question is left open to be decided if occasion arises in the execution stage. 15. O.S.A. No. 126 of 1994 is allowed as indicated above. There will be no order as to costs. O.S.A. No. 146 of 1995 and Application Nos. 4864/91 and 5177/93 in C.S. No. 180 of 1984 16. The appeal is filed by the 18th respondent in Application No. 6488 of 1993. As we have pointed out already, the Bank obtained a decree by consent in O.S. No. 180 of 1984 on 14-6-1989. But even when the said suit was pending, on a direction by the Court, the movable properties were sold in favour of Aran Agarwal, who is the appellant in this appeal, through an advocate-Commissioner. On 14-5-1987 the sale was confirmed. The appellant, however, did not take delivery of the movable properties. According to the appellant, it was the advocate-Commissioner who failed to give delivery in spite of several demands and attempts made by the appellant. When the decree was passed in the suit, a provision was made in Clause 10 of the decree in the following terms: “That the Advocate-Commissioner herein shall continue to be in charge of the machinery and materials more fully set out in the schedule hereto and that with regard to the delivery of certain items sold to Mr. Arun Agarwal, the said Arun Agarwal shall be entitled to seek for delivery of the properties sold to him in appropriate application’. In spite of the said provision in Clause 10 of the decree, the appellant did not take any steps to get delivery of the movable properties purchased by him On the other hand, the Bank filed an application for a direction to sell all the properties including the movables which were already sold in favour of the appellant. The said direction was granted by an order dated 10-4-1991 by the learned single judge in Application No. 5103 of 1990. That order was challenged by the defendants in the suit in O.S.A. No. 100 of 1991. A Division Bench of this Court by judgment dated 19-6-1991 dismissed the appeal holding that the properties being in custodia legis , sale has to be effected only through the agency of the. Court. That order was challenged by the defendants in the suit in O.S.A. No. 100 of 1991. A Division Bench of this Court by judgment dated 19-6-1991 dismissed the appeal holding that the properties being in custodia legis , sale has to be effected only through the agency of the. Court. There was no specific mention in the order of the sale of movable properties in favour of the appellant even in 1987. The appellant herein was net a party to that appeal. 17. After the disposal of the appeal, the advocate-Commissioner published a notice of auction fixing 25th September, 1991 for selling all the movable and immovable properties as directed by the Court. On seeing the said notice, the appellant herein filed Application No. 4864 of 1991 for an injunction restraining the advocate-Commissioner from selling the movable properties and also for a direction to the advocate-Commissioner to deliver forthwith the plant and machinery, stocks and goods, purchased by the appellant pursuant to the Court order. That application is still pending. With the consent of parties, we have now withdrawn the said application to our Court and we are disposing of the same by this order. 18. The appellant also filed Application No. 5177 of 1993 for a refund of the amount paid as sale price for the movables together with interest thereon or in the alternative for delivering all the plant and machineries, etc. It is represented now by counsel on both sides that the said application was also heard along with Application No. 6488 of 1993 filed by the Bank for approval of the agreement between itself and the third-party purchaser. According to him after hearing arguments, the learned judge passed a common order. But unfortunately, in the order passed by the learned judge, the number of Application No. 5177 of 1993 or the cause-title thereof were not shown though in the body of the order, the contentions are referred and disposed of by the learned judge. According to him after hearing arguments, the learned judge passed a common order. But unfortunately, in the order passed by the learned judge, the number of Application No. 5177 of 1993 or the cause-title thereof were not shown though in the body of the order, the contentions are referred and disposed of by the learned judge. The relevant part of the order of the learned judge reads as follows: “As far as the claim of the 18th respondent is concerned, even though he had offered to purchase the machineries in 1987 and deposited the amount, since he had not taken delivery of the machineries, the Commissioner and the Auctioneer were obliged to keep them under safe custody incurring the expenses over salary of the watchman and other expenditures for safeguarding the machineries. Therefore, the claim of the 18th respondent for payment of interest on the amount deposited by him in Court cannot be considered favourably. Whatever interest that might have accrued on the amount deposited by the 18th respondent, will have to be adjusted towards the decree debt, since it is only from out of the sale proceeds the expenditure incurred by the Commissioner and the Auctioneer will ha be to be made by the plaintiff/decree holder. In that view, I am of opinion that the 18th respondent is entitled for return of Rs. 20 lakhs deposited by him alone without any interest on the said amount.” The appellant is aggrieved by the order negativing interest on the sum of Rs. 20 lakhs deposited by him in Court as sale price for the movable properties. According to him, he has deposited the amount as directed by the Court as early as in 1987 and there is no justification for him to be deprived of the interest thereon. It is also contended by him that the, suit (C.S. 81 of 1992) said to have been filed by the Bank for recovery of the charges incurred by it for appointing a security to safeguard the movables and machineries is still pending and the same is being contested by the appellant. It is also contended by him that the, suit (C.S. 81 of 1992) said to have been filed by the Bank for recovery of the charges incurred by it for appointing a security to safeguard the movables and machineries is still pending and the same is being contested by the appellant. According to learned counsel, before any decree is passed in the suit, there cannot be a provision in the present order made by the learned judge that the interest due on the amount paid by the appellant as sale price should be adjusted as against the decree which may be passed in the suit No doubt, there is some force in the contention. As the application is still pending we have now withdrawn the same to our file with the consent of both sides. 19. But there is a basic fallacy in the prayer for refund of the amount deposited by the appellant The sale in favour of the appellant was confirmed in 1987 and it was concluded. The sale price deposited by the appellant cannot be refunded to the appellant unless the sale is set aside by a proper order of the Court. The sale has not, till this date, been disturbed by any order of Court. Just because the Bank has chosen to file an application for a direction to sell all the properties including the movable properties which were sold to the appellant, it will not entitle the appellant to get back the refund of the amount deposited by it as if there is no sale. The Bank, no doubt, has committed a mistake in seeking a sale of the same movable properties again when they have already been sold to the appellant. However, the application filed by the appellant in Application No. 4864 of 1991 in which there is a specific prayer for a direction to deliver the movables has not yet been considered by the Court and it has been kept pending. That application should have been taken up and considered by the Court Even otherwise, in the present application (5177/93) there is an alternative prayer for delivery of movables. The learned judge has not made any reference to the said prayer and he has not kept in mind the fact that the sale in favour of the appellant has been concluded already in 1987. The learned judge has not made any reference to the said prayer and he has not kept in mind the fact that the sale in favour of the appellant has been concluded already in 1987. Apart from the above facts, the decree passed by the Court in the suit contains a specific direction in Clause 10, as pointed out already, that the appellant shall be entitled to seek delivery of the properties sold to him in an appropriate application. Thus the decree has itself confirmed the sale of movables in favour of the appellant. Consequently, it follows that the appellant is entitled to take delivery of the movables sold to him and not a refund of the sale price deposited by him. 20. Hence we grant the prayer in Application No. 4864 of 1991 and part of the prayer in Application No. 5177 of 1993 and direct the appellant to take delivery of the movables. The appellant shall give notice to (1) the advocate-Commissioner, (2) counsel for the plaintiff-Bank and (3) counsel for the defendants fixing the date and time for taking delivery. The advocate-Commissioner, on receipt of such notice, shall deliver the movables purchased by the appellant to the appellant 21. If the appellant finds any damage in the movables, then it is open to him to take such proceedings as may be advised, for recovery of damages, if any. 22. This order will not, in any way, prejudice the claim made by the Bank in C.S. No 81 of 1992. That suit has to be decided on its merits as between the parties thereto. 23. In the view we have taken, the question of the appellant claiming interest on the sum of Rs. 20 lakhs deposited by him as sale price for the movables does not arise. This appeal has to ail and it is dismissed. Application Nos. 4864 of 1991 and 5177 of 1993 are allowed to the extent indicated above. ADVOCATE-COMMISSIONERS REMUNERATION: 24. We have directed above that as per Clause 7 of the decree, the properties should be sold through the advocate-Commissioner named therein. He has already filed a memo for remuneration for the work done by him earlier and the learned single judge in his order dated 18-1-1994 has directed the Commissioner to give details of the work done by him, in order to fix the remuneration payable to him. He has already filed a memo for remuneration for the work done by him earlier and the learned single judge in his order dated 18-1-1994 has directed the Commissioner to give details of the work done by him, in order to fix the remuneration payable to him. It is open to the advocate-Commissioner to file an appropriate memo giving full details of the work done by him already and claim remuneration therefor. Similarly, he can file a memo for the work which he has to do hereafter for completing the sale. The learned judge on the Original Side will consider the memo or memos filed by the Commissioner and pass necessary orders.