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2000 DIGILAW 879 (PNJ)

Ramesh Kumar Verma v. State Bank of India

2000-08-08

M.L.SINGHAL

body2000
JUDGMENT M.L. Singhal, J. - Property belonging to M/s R.K. Fancy Twisters (judgment- debtor), which was mortgaged with the State Bank of India (decree-holder) was ordered to be sold at an action sale vide order dated 21.8.1997 of Civil Judge, Senior Division, Panipat. On 19.9.1997, the auction sale took place so far as land measuring 16 Marlas, which is part of killa No. 5/16/3 situated in village Shiva Kheri, Tehsil and District Panipat is concerned. As many as 23 persons participated in the auction. Ramesh Kumar Verma (petitioner herein) was the highest bidder. He offered to purchase the property at the rate of Rs. 102/- per square metre. His bid was accepted. As per him, he deposited 25% of the auction money with the Tehsildar at the spot, who conducted the auction immediately on the fall of the hammer. Tehsildar deposited the said money in the Treasury on 26.9.1997. On 3.10.1997, auction purchaser filed application before the Court seeking permission to deposit balance amount. Judgment-debtor filed objections to this application inter alia saying that sale is void ab initio as 25% of the auction money had not been deposited by him at the spot with the fall of hammer on 19.9.1997. He filed reply to the objections controverting the allegations made in the objection petition. J.D. filed independent objections on 15.10.1997 assailing the auction sale on various grounds. On 21.2.1998. Civil Judge, Senior Division, Panipat (Executing Court) set aside the auction sale on the ground that 25% of the auction money had not been deposited with the auctioneer at the spot with the fall of the hammer and as such the sale was irregular. 2. Not satisfied with this order dated 21.2.1998 of Civil Judge, Senior Division, Panipat (Executing Court), Ramesh Kumar Verma auction purchaser has come up in revision to this Court. 3. I have heard the learned counsel for the parties and have gone through the record. 4. Learned counsel for the petitioner submitted that the auction purchaser had deposited 25% of the sale money amounting to Rs. 12342/- with the Court auctioneer at the spot and he was not to blame if the auctioneer could not deposit this amount in Treasury on the next working day. 4. Learned counsel for the petitioner submitted that the auction purchaser had deposited 25% of the sale money amounting to Rs. 12342/- with the Court auctioneer at the spot and he was not to blame if the auctioneer could not deposit this amount in Treasury on the next working day. He submitted that the auctioneer deposited the amount on 26.10.1997 in the Treasury and the auctioneer has given detailed reasons in his report submitted by him to the Executing Court as to why he could not deposit this amount of Rs. 12342/- in Court on the next working day. He stated that he could not deposit this amount on 20.9.1997 and 21.9.1997 as they happened to be close days for the Courts. Thereafter, he became busy on account of election duty. He deposited the amount in the Treasury on 26.9.1997. He submitted that the auctioneer appeared before the Court and made statement giving reasons why the could not deposit Rs. 12342/- in Court on the next working day and why he deposited the amount in the Treasury on 26.9.1997. He submitted that the statement of he auctioneer should have been accepted particularly when he was not cross-examined at all. He submitted that when a witness is not cross-examined by the adversary, it should be taken that he admits that part of his statement as correct. In support of this submission, he has drawn my attention to Ganpat Ram Khosla v. Kishan Lal and another, 1958 PLR 349 where it was held that "a party should put to his opponents witnesses so much of his case as concerns that particular witness and on failure to do so, the Court will be entitled to presume that the witnesss account has been accepted." He further submitted that in this case, the judgment-debtor did not appear into the witness box to controvert what the auction purchaser has stated and, therefore, whatever auction purchaser has stated that should have been accepted without any demur. Suffice it to say, it was the duty of the auction purchaser to satisfy the Court that he had complied with the mandatory provisions of Order 21 Rule 84 CPC. Suffice it to say, it was the duty of the auction purchaser to satisfy the Court that he had complied with the mandatory provisions of Order 21 Rule 84 CPC. Order 21 Rule 84 CPC lays down as follows :- "Deposit by purchaser and re-sale on default - (1) On every sale of immoveable property, the person declared to be the purchase shall pay immediately after such declaration a deposit in cash or cheque drawn on a scheduled bank of twenty-five per cent on the amount of his purchase-money to the officer or other person conducting the sale, and in default of such deposit, the property shall forthwith be re-sold. (2) Where the decree-holder is the purchaser and is entitled to set-off the purchase money under rule 72, the Court may dispense with the requirement of this rule." 5. It was for the auction purchaser to satisfy the Court he had deposited 25% of the bid money at the spot with the auctioneer. Ipse dixit of the auctioneer cannot be accepted when there is no note recorded by him at the foot of the bid sheet that the auction purchaser had deposited a sum of Rs. 12342/- as 25% of the sale money with him at the spot. If the auction purchaser had deposited 25% of the sale money at the spot with the auctioneer on 19.9.1997, the auctioneer would have deposited that amount in the Court on the next working day. Not depositing that amount in the Treasury on the next working day gives rise to an inference that amount was not deposited with the auctioneer by the auction purchaser at the spot on 19.9.1997. Provisions of Order 21 Rule 84 CPC are mandatory in character. It was held in Manilal Mohanlal Shah and others v. Sardar Sayed Ahmed Sayed Mahmad and another, AIR 1954 Supreme Court 349 that "the provisions of Order 21 Rules 84, 85 and 86 requiring the deposit of 25 per cent of the purchase money immediately, on the person being declared as a purchaser, such person not being a decree holder, and the payment of the balance within 15 days of the sale, are mandatory and upon non-compliance with these provisions there is no sale at all. The rules do not contemplate that there can be any sale in favour of a stranger purchaser without depositing 25 per cent of the purchase money in the first instance and the balance within 15 days. When there is no sale within the contemplation of these rules, there can be no question of material irregularity in the conduct of the sale. Non- payment of the price on the part of the defaulting purchaser renders the sale proceedings as a complete nullity. It was held in Sardara Singh (dead) by LRs and another v. Sardara Singh (dead) and others, 1990(4) SCC 90 that "the requirement of deposit contained in Sections 85, 86 and 88 of the Punjab Land Revenue Act, which are substantially the same as Order 21 Rules 84 and 85 of the Civil Procedure Code, are mandatory and failure to comply with either of them renders the entire sale null and void and non est. Once the effect of non-payment of the amount is to render the sale non -existent, it becomes the imperative duty of the authority to re-sell the property as the purchaser forfeits all claims to the property for default of payment." It is thus clear that if 25 per cent of the sale money is not deposited with the auctioneer at the spot with the fall of the hammer, the sale held in favour of the auction purchaser is no sale in the eye of law and is non est. 6. Non-deposit of 25 per cent of the sale money with the auctioneer by the auction purchaser at the spot with the fall of hammer is not a mere irregularity. If it were a mere irregularity, it could be viewed as a material consideration if this irregularity had done substantial injury to the judgment-debtor. Since the requirement as to the deposit of 25% of the sale money at the spot with the auctioneer is mandatory, the question whether there was or was substantial injury to the JD does not arise. For the reasons given above, this revision fails and is dismissed. Revision dismissed.