MR. RAVI R. TRIPATHI, J. ( 1 ) THE present petition is filed by one shri Girish Ishwarlal Parekh challenging the order passed by the Deputy Secretary (Appeals), Agriculture and Cooperation department dated 25. 09. 2008, whereby revision Application No. 94 of 2008 was dismissed. 1. 1 The Review Application filed against the aforesaid order was also dismissed by order dated 07. 11. 2008. ( 2 ) THE petitioner has also brought into question the inaction on the part of the respondent No. 5 Bank with regard to the proposal given by the present petitioner for purchasing the property in question. The relief prayed for by the petitioner is in para-9 (B) which reads as under:- "9. (B) to quash and set aside the impugned two orders dated 25. 09. 2008 and 07. 11. 2008, which are at annexure 'l' and 'x' respectively and also hold that the auction proceedings which was held on 24. 08. 2006 is bad and illegal as the guarantor of the original loanee had participated in the auction proceedings and thereby the guarantor - respondent No. 7 purchased the property as highest bidder which is illegal as he cannot participate in the auction proceedings and thereby direct the proposal of the petitioner as it's better proposal or it may be directed to the respondent nos. 6 and 5 to re-auction the property in question. " ( 3 ) THE petitioner has set out the brief facts leading to the filing of the present petition in para-4. The same are to the effect that:- 3. 1 One Mr. Tulsidas Narsidas Kakkad and others, resident of village Madhapur (Ghed), mortgaged the property with the porbandar Vibhagiya Nagrik Sahkari Bank and as the borrower was not able to pay the debt, the property was auctioned. It is on record that the property was put to auction. The proceedings of the said auction are produced at Annexure-D, colly. , page No. 32 to 39, which pertain to auction which was scheduled on 22. 08. 2006, as it is recorded in the said proceedings, at page No. 35, the persons, who came to participate in the auction, quoted the price which was less then the upset price and therefore, the auction was postponed. 3. 2 The auction was again tried to be held on 23. 08. 2006 and the Sale Officer waited till 03. 00 pm, but nobody turned up. 3. 2 The auction was again tried to be held on 23. 08. 2006 and the Sale Officer waited till 03. 00 pm, but nobody turned up. 3. 3 Finally, on 24. 08. 2006, four persons came forward to make their bids, but from page No. 38 it transpires that only three persons submitted their bids, which were as under:-I. Gagabhai Badhabhai Malam Rs. 6,61,000/-II. Dineshchandra Narandas Kakkad Rs. 6,71,000/-III. Govindji Keshavji Majithiya Rs. 6,81,000/-The aforesaid parties were asked to raise their bids. Only two persons, viz. Gagabhai Badhabhai Malam and dineshchandra Narandas Kakkad raised their bids to Rs. 6,91,000/- and Rs. 7,01,000/-, respectively. They were asked to raise their bids further and only the aforesaid two parties raised their bids to Rs. 7,11,000/- and Rs. 7,25,000/-, respectively. Thus, dineshchandra Narandas Kakkad -respondent No. 7 herein stood as the highest bidder at Rs. 7,25,000/ -. 3. 4 The terms and conditions are set out at page No. 37, of which condition Nos. 6 and 9 are relevant for our purpose, which read as under:-" (6) The highest bidder shall have to pay 15% of bidding amount in cash immediately on the day of auction. Yet the said bidder asks for time, for unavoidable reasons, in respect of this amount, it shall be paid maximum within 24 hours time limit i. e. during the bank working hours and the remaining 85% amount shall have to be paid, if there is no objection or stay by court's order, with sale-deed stamp-paper and registration expenses within a period of 30 days. (9) If the highest bidder does not pay the remaining amount within the prescribed time limit, after paying 15% amount, the recovery expenses shall be deducted from the deposited amount and the highest bidder will have no right to purchase the property. "thus, it is clear from condition No. 9 that the remaining amount, after paying 15%, was to be paid within the time schedule set out in condition No. 6 and if that amount was not paid within that time schedule, the expenses incurred for the recovery was required to be deducted from the amount deposited and the right of the highest bidder to purchase the property was to cease. ( 4 ) AT the initial stage, it was put to the petitioner as to what is the offer he is making for the property, for which the highest bid was Rs. 7,25,000/ -. The learned advocate for the petitioner submitted that his client - the petitioner is ready to pay rs. 12 lacs for the property in question. 4. 1 The learned advocate for respondent no. 7 was also asked as to whether respondent No. 7 is willing to raise his offer to the same amount, i. e. Rs. 12 lacs. Initially, respondent No. 7 had some reservation in raising his offer to Rs. 12 lacs, but then he raised the offer to Rs. 12 lacs, but by that time, the petitioner had raised his offer to Rs. 15 lacs. When it is put to the learned advocate for respondent No. 7 as to whether his client is also ready to raise his bid to Rs. 15 lacs, respondent No. 7 refused to do so. (emphasis supplied) ( 5 ) IN view of the above, on 20. 02. 2009, the petitioner was allowed to deposit a sum of Rs. 12 lacs by handing over cheque bearing No. 040343 dated 20. 02. 2009 with the Bank. He was also asked to deposit a further sum of Rs. 3 lacs by cheque on or before 25. 02. 2009, which was done on the next day, i. e. 21. 02. 2009 and the Bank issued a certificate about the realization of the total amount of Rs. 15 lacs. The above exercise was required to be undertaken so as to ensure that the cheques deposited by the petitioner are duly honoured. ( 6 ) ON 25. 02. 2009 the Court issued Rule and made it returnable today, i. e. 03. 03. 2009. The matter is heard at length. ( 7 ) THE learned advocate for respondent no. 7 submitted that the present petition is not maintainable at the hands of the petitioner, who was not the party to the auction proceedings held on 22. 08. 2006, 23. 08. 2006 and finally on 24. 08. 2006. He submitted that the Bank had issued a public notice in a newspaper - 'jay Hind' on 21. 07. 2006 and the petitioner had chosen not to come forward to participate in auction proceedings. Not only that, the bank had also issued a public notice on 26. 08. 08. 2006, 23. 08. 2006 and finally on 24. 08. 2006. He submitted that the Bank had issued a public notice in a newspaper - 'jay Hind' on 21. 07. 2006 and the petitioner had chosen not to come forward to participate in auction proceedings. Not only that, the bank had also issued a public notice on 26. 08. 2006 before confirmation of the sale and the petitioner had not come forward, even at that stage. ( 8 ) THE learned advocate for respondent no. 7 vehemently submitted that the petitioner cannot be allowed to challenge the auction on any ground and more particularly, by invoking extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India, while challenging the order passed by the authorities, which are to be challenged under Article 227 of the Constitution of india. He submitted that it was respondent no. 7 who made the bid of the highest amount, i. e. Rs. 7,25,000/- for the property in question, which according to the valuation of the valuer of the Bank, was of rs. 5,76,000/- only, which included the land and the superstructure. The land was valued at Rs. 240 per sq. mt. as per the 'jantri' of the area in which the property is situated. He submitted that respondent No. 7 had paid a sum of Rs. 1,10,000/- to the Bank at the relevant time but he did not pay the remaining amount, not because he was not ready and willing, but the said amount was not paid because the title of the property was not clear. He submitted that it is only because the son of the original borrower, who is serving in the very same Bank and was passing the information to his father and also the petitioner who is sponsored by the debtor to challenge the auction. ( 9 ) THE learned advocate for respondent no. 7 placed heavy reliance on a decision of the Hon'ble the Apex Court in the matter of valji Khimji And Co. v. Official Liquidator of Hindustan Nitro Produce (Gujarat) Ltd. and Others, reported in (2008) 145 Comp cas 36 (SC ). He submitted that the Hon'ble the Apex Court has laid down in no uncertain terms that an auction can be called in question only on the ground of fraud and the same should not be easily interfered with by the Courts. He submitted that the Hon'ble the Apex Court has laid down in no uncertain terms that an auction can be called in question only on the ground of fraud and the same should not be easily interfered with by the Courts. He relied upon the following observations of the hon'ble the Apex Court:- "it may be noted that the auction sale was done after adequate publicity in well-known newspapers. Hence, if any one wanted to make a bid in the auction he should have participated in the said auction and made his bid. Moreover, even after the auction sale was confirmed by the High court on July 30, 2003, and any objection to the sale could have been filed prior to that date. However, in our opinion, entertaining objections after the sale is confirmed should not ordinarily be allowed, except on very limited grounds like fraud, otherwise no auction sale will ever be complete. " (emphasis supplied ). The learned ad vocateforrespondentno. 7 also relied upon the following observations made by the Hon'ble the Apex Court:-"it appears that the reasoning of the learned single judge, as also of the Division bench, was that the valuation of the assets of the company was made as if these assets were scarp. The reasoning of the learned single judge of the High Court thus seems to be that the assets in question was wrongly given out to be scrap and thus a proper bid was not obtained. In our opinion, there is nothing to show that the assets in question which were auctioned-sold were ever given out to be scrap. They are not mentioned as scrap in the advertisement or sale notice, nor is there any material to show that the valuer valued them treating them to be scrap. " (emphasis supplied ). 9. 1 The learned advocate for respondent no. 7 heavily relied upon the aforesaid observations made by the Hon'ble the Apex court and submitted that in the present case also, the property was valued by the government valuer at Rs. 5,76,000/- for land and superstructure. The land is valued at rs. 240 per sq. mt. As per the 'jantri' of the area, wherein property is situated. He submitted that therefore, the price offered by respondent No. 7 cannot be said to be inadequate by any standard. 5,76,000/- for land and superstructure. The land is valued at rs. 240 per sq. mt. As per the 'jantri' of the area, wherein property is situated. He submitted that therefore, the price offered by respondent No. 7 cannot be said to be inadequate by any standard. He submitted that when there is no question of the price, there is no ground of fraud. That being so, there is no reason for this Court to interfere with the auction, which had taken place on 24. 08. 2006 and was confirmed by the Bank. ( 10 ) HAVING taken into consideration the aforesaid submissions and the other relevant material placed on record of the case, the court is of the opinion that the matter warrants closer scrutiny and hence, interference at the hands of this Court. The officer which is made by the petitioner is of rs. 15 lacs, which is more than double the price offered by respondent No. 7. Not only that, the important factor which is required to be kept in mind is that respondent No. 7 himself agreed to raise the offer to Rs. 12 lacs. From this conduct of respondent No. 7, it is clear that he himself who was the guarantor for the same loan account knew while offering Rs. 7. 25 lacs that the property is worth Rs. 12 lacs. Besides, after having paid an amount of Rs. 1,10,000/-, he did not pay the remaining amount as provided in condition No. 6. As per condition No. 6, 15% of the amount was to be deposited immediately on the day of the auction in cash and if for some pressing circumstances, time was required then 24 hours (maximum)could have been granted. The rest of the amount, i. e. 85% was to be paid within 30 days, if in between, any objection or a court order is not received. The party was also required to supply the stamp paper for sale deed and the amount for expenses for registration of the same. ( 11 ) IT is not the case of respondent No. 7 that he had offered that amount to the Bank. In fact, the case of respondent No. 7 is that he, having come to know about the defect in title of the property, did not pay that amount. This fact is reflected in reply dated 29. 12. ( 11 ) IT is not the case of respondent No. 7 that he had offered that amount to the Bank. In fact, the case of respondent No. 7 is that he, having come to know about the defect in title of the property, did not pay that amount. This fact is reflected in reply dated 29. 12. 2006, which was filed in response to notice dated 20. 12. 2006 given by the Sale officer, a copy of which is produced at annexure-R-1, page No. 105. ( 12 ) THE question which arises for the consideration of this Court in this case is as to whether can it be said that the sale was confirmed, because condition No. 9 clearly provided that if the remaining amount of the sale consideration is not paid within the time prescribed in condition No. 6, the amount deposited will be liable to have the expenses for recovery deducted and the right of the bidder will stand forfeited. That being so, the contention raised by the learned advocate for respondent No. 7 is found to be not acceptable. Not only that, in view of the aforesaid fact, the decision of the Hon'ble the Apex Court is found to be not applicable to the facts of the present case. Besides, in that very judgment, the hon'ble the Apex Court has observed that:- "it could have been a different matter if the auction had been held without adequate publicity in well-known newspapers having wide circulation, but where the auction sale was done after wide publicity, then setting aside the sale after its confirmation will create huge problems. When an auction sale is advertised in well-known newspapers having wide circulation, all eligible persons can come and bid for the same, and they will be themselves to be blame if they do not come forward to bid at the time of the auction. They cannot ordinarily later on be allowed after the bidding (or confirmation)is over to offer a higher price. " 12. 1 In the present case, it is on record that the advertisement was published only in a newspaper named 'jay Hind', which is not a leading newspaper having wide circulation. Beside, the Hon'ble the Apex court has also observed:-Of course, the situation may be different if an auction sale is finalized say for Rs. 1 crore, and subsequently somebody turns up offering Rs. 10 crores. Beside, the Hon'ble the Apex court has also observed:-Of course, the situation may be different if an auction sale is finalized say for Rs. 1 crore, and subsequently somebody turns up offering Rs. 10 crores. In this situation it is possible to infer that there was some fraud because of somebody subsequently offers 10 crores, then an inference can be drawn that an attempt had been made to acquire that property /asset at a grossly inadequate price. This situation itself may indicate fraud or some collusion. However, if the price offered after the auction is over which is only a little over the auction price, that cannot by itself suggest that any fraud has been done. 12. 2 In the present case, it is on record that respondent No. 7 was the guarantor of the original borrower. He responded to an advertisement which was given in a newspaper, which was not having wide circulation. He offered an amount higher than the valuation of the property, i. e. Rs. 5,76,000/ -. For the very same property, respondent No. 7 agreed to pay Rs. l2 lacs. There is no convincing reason put forth by respondent No. 7 for which a person will offer an amount of Rs. l5 lacs even if the property is not worth the same. It is also difficult for this Court to believe that a person will come forward so as to damage respondent No. 7 by offering more than double. In the case on hand, the amount offered by the petitioner is more than double and that being so, it cannot be said that the same is 'little over the auction price'. In light of this discussion, this Court is of the opinion that the aforesaid judgment of the Hon'ble the Apex Court is not applicable to the facts of the present case. Besides, this Court is duty bound to take care of the interest of a public body like the bank, who deals with the public money, which is benefited by this decision. ( 13 ) IN view of the aforesaid discussion, the petition is allowed. Judgment and orders passed by the authorities dated 25. 09. 2008 and 07. 11. 2008, which are produced at annexures-'l' and 'x' are quashed and set aside. Rule is made absolute. No costs. As the Bank has already received the sale consideration of Rs. ( 13 ) IN view of the aforesaid discussion, the petition is allowed. Judgment and orders passed by the authorities dated 25. 09. 2008 and 07. 11. 2008, which are produced at annexures-'l' and 'x' are quashed and set aside. Rule is made absolute. No costs. As the Bank has already received the sale consideration of Rs. 15 lacs, the Bank is directed to proceed further with the execution of the sale deed in favour of the petitioner. ( 14 ) AT this juncture, the learned advocate for respondent No. 7 requests that the operation, implementation and execution of this judgment and order be suspended for some reasonable time. The request is found to be not reasonable. Respondent No. 7 refused to participate in inter se bidding in the open Court. After deep thinking, he raised his offer to Rs. 12 lacs, but thereafter refused to raise the same any further. That shows that the bonafides of respondent No. 7 are not clear. He wanted to take the benefit of the fact that advertisement was published in alow circulated daily and of the knowledge which he possessed, being the guarantor of the original borrower. The request is rejected. (HRR) (Application rejected)