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Allahabad High Court · body

2009 DIGILAW 308 (ALL)

KALU RAM v. STATE OF U P

2009-01-28

ARUN TANDON, ASHOK BHUSHAN

body2009
ASHOK BHUSHAN AND ARUN TANDON, JJ. Heard Sri Raj Kumar, learned Counsel for the petitioner and learned Standing Counsel. 2. By this writ petition the petitioner has prayed for a writ of mandamus directing the respondent No. 3 to extend the period for depositing the balance amount of sale price. A further writ, order or direction in the nature of man damns has been sought to make easy installments to deposit the balance amount of sale price. 3. The brief facts of the case necessary for deciding the issues raised in the writ petition are; that the agricultural property of respondent No. 5 was mort gaged with Punjab and Sind Bank in accordance with the provisions of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 towards recovery of dues against the respondent No. 5. A sale notice dated 3. 10. 2008 in pursuance of the 2002 Act was published by authorised officer of the Punjab and Sind Bank fixing the minimum reserve price as Rs. 6,00,000/ -. Offers in sealed cover were invited. The sale of the property was to take place in accordance with the Security Interest (Enforcement) Rules, 2002. The sale notice issued dated 7. 10. 2008 was referable to Rule 8 (5) (b) of the 2002 Rules. The petitioner deposited the earnest money of Rs. 60,000/- and submitted an offer of Rs. 6,50,000/- for the property. The petitioners case further is that he being the highest bidder, 25% of the bid amount i. e. , Rs. 1,62,500/- was deposited by him and letter dated 14. 11. 2008 was issued to the petitioner for depositing the balance 75% amount according to the conditions of the bid. According to the terms and conditions of the bid (Annexure-1 to the writ petition) bid were to be submitted on or before 10. 11. 2008 and were to be opened on 11. 11. 2008 at 11 a. m. Successful bidders were required to deposit 25% of the sale price immediately and balance amount of 75% of the sale price within 15 days of the confirmation of the sale or such ex tended period as permitted upon in writing by the authorised officer. The peti tioner on 27. 11. 2008 wrote a letter to the zonal manager praying that the time to deposit 75% of the balance amount of sale price be extended up to 5. 12. 2008. The peti tioner on 27. 11. 2008 wrote a letter to the zonal manager praying that the time to deposit 75% of the balance amount of sale price be extended up to 5. 12. 2008. Petitioners case in the writ petition is that despite the aforesaid application, the respondents did not extend the period for depositing the balance amount of sale price. The petitioner claimed to have moved another application on 6. 12. 2008 with a prayer to extend the period for depositing the balance amount of sale price up to 15. 12. 2008. The petitioners case further in the writ petition is that his offer was accepted on 12. 11. 2008 and he was given letter on 14. 11. 2008 and the balance amount was to be deposited by 27. 11. 2008. The peti tioners claim extension of period as per provisions of Rule 9 (4) of the 2002 Rules. 4. Learned Counsel for the petitioner in support of the writ petition sub mitted that the petitioner is entitled for extension of period which can be granted as per Rule 9 (4) of the 2002 Rules. He submits that Rule 9 (4) gives right to the petitioner to pray for extension of period for depositing the balance amount of sale price but his application has not been considered. He submits that this Court may direct the respondents to consider the prayer of the peti tioner for extension of the period for deposit. 5. The issue which has been raised in the writ petition is as to whether the petitioner is entitled to claim extension of period of deposit of 75% amount of sale price and whether the respondents are under statutory duty to consider the prayer of the petitioner for extension of period and whether in the facts of the present case, the petitioner has made out a case for issuing a writ of man damus to the respondents to consider the prayer of the petitioner for extension of time. 6. The relevant rules on which reliance has been placed by Counsel for the petitioner is Rule 9 (4 ). Rule 9 (4) of 2002 Rules, which is relevant is quoted herein below. "9 (4 ). 6. The relevant rules on which reliance has been placed by Counsel for the petitioner is Rule 9 (4 ). Rule 9 (4) of 2002 Rules, which is relevant is quoted herein below. "9 (4 ). The balance amount of purchase price payable shall be paid by the purchaser to the authorised officer on or before the fifteenth day of confirmation of sale of the immovable property or such extended period as may be agreed upon in writing between the parties. " 7. In paragraph 21 of the writ petition, it has been stated by the peti tioner that the offer was accepted on 12,11. 2008 and the balance amount was to be deposited by 27. 11. 2008. The petitioner moved two applications for extension of period for depositing the balance amount of sale price on 7. 11. 2008 and 6. 12. 2008 on which according to the petitioner no time has been extendec1. The submission of the petitioner is that by virtue of sub-rule (4) of Rule 9, the peti tioner is entitled to pray for extension of time and the respondents are under statutory obligation to consider such prayer. Sub-rule (4) of Rule 9 requires that balance amount of purchase price shall be paid by the purchaser on or before the 15th day of the confirmation of sale or such extended period as may be agreed upon in writing between the parties. 8. The relevant words which are to be noticed are "such extended period as may be agreed upon in writing between the parties". A plain reading of sub-rule (4) of Rule 9 does not indicate that any right has been given to purchaser to claim for extension of time if balance amount has not been deposited within 15 days of confirmation of sale. At this stage, it is also relevant to notice terms and condition No. 6 of sale which is being quoted herein below - "6. The balance amount (75%) of the sale price to be paid within 15 days of the confirmation of the sale or such extended period as permitted upon in writing by the authorised officer. In case of default, all amounts deposited/paid to the bank till then shall be forfeited and the property shall be resold. " 9. The balance amount (75%) of the sale price to be paid within 15 days of the confirmation of the sale or such extended period as permitted upon in writing by the authorised officer. In case of default, all amounts deposited/paid to the bank till then shall be forfeited and the property shall be resold. " 9. The condition No. 6 of sale as noticed above, uses the words "or such ex tended period as permitted upon in writing by the authorised officer", whereas the sub-rule (4) of Rule 9 uses the word as may be agreed upon in writing be tween the parties. 10. The word agree has been defined in The Law Lexicon 1997 Edition Ramanatha Aiyar as follows : Agree. To concur; to come to a mutual assent; to come into harmony; to promise; to contract; to assent; to unite in mental action,. . . . . " 11. A plain meaning of word agree clearly indicate a voluntary act. Neither any duty to agree nor any statutory obligation to consider for extension of time can be read in sub-rule (4) of Rule 9. When the prayer for extension of time made by the petitioner has not been acceded it simply means that exten sion was not agreed upon. In the event, the extension is not agreed upon, no fur ther action is required to be done at the end of the respondents. 12. The terms and condition No. 6 of sale uses the word permitted. The word permit has been defined in Law Lexicon as follows at page 144. "permit. To grant permission to give leave to grant express licence or liberty to. . . . . . . " 13. When the time of deposit has not been extended, the period of 15 days provided for in the condition No. 6 for deposit of the balance amount continued to bind the parties. The word permit conveys an affirmative action. Petition ers case in the writ petition is that on the application moved by the petitioner for extension of time, no time was granted. 14. In view of the above, it is clear that neither Rule 9 (4) nor terms and conditions of sale cast any statutory obligation on the authorised officer or the Bank to consider the application of the petitioner for extension of time. 14. In view of the above, it is clear that neither Rule 9 (4) nor terms and conditions of sale cast any statutory obligation on the authorised officer or the Bank to consider the application of the petitioner for extension of time. The pe titioner has come up in the writ petition seeking a writ of mandamus. It is well settled that a writ of mandamus can be issued only when the authority failed to perform a duty imposed by a statute. Learned Counsel for the petitioner in his submission has prayed that the authorities be directed to consider the a placation of the petitioner. An order to consider an application submitted by the petitioner can be made by this Court only when some right is established by the petitioner in this regard. The Apex Court in A. P. S. R. T. C. at others v. G. Srinivas Reddy and others JT 2006 (3) SC 189 had considered the cases in which High Court, while exercising the writ jurisdiction can pass an order requiring the authority to consider and decide the matter. Following was laid down in paragraph 13. 1 and 13. 2 of the aforesaid judgment. "13. 1. Where an order or action of the State or an authority is found to be illegal, or in contravention of prescribed procedure, or in breach of the rules of natural justice, or arbitrary/unreasonable/irrational, or prompted by mala fides or extraneous consideration, or the result of abuse of power, such action is open to judicial review. When the High Court finds that the order or action requires interference and exercises the power of judicial re view, thereby, resulting in the action/order of the State or authority being quashed, the High Court will not proceed to substitute its own decision in the matter, as that will amount to exercising appellate power, but require the authority to consider and decide the matter again. The power of judi cial review under Article 226 concentrates and lays emphasis on the deci sion making process, rather than the decision itself. 13. 2. The High Courts also direct authorities to consider, in a differ ent category of cases. The power of judi cial review under Article 226 concentrates and lays emphasis on the deci sion making process, rather than the decision itself. 13. 2. The High Courts also direct authorities to consider, in a differ ent category of cases. Where an authority vested with the power to decide a matter, fails to do so in spite of a request, the person aggrieved ap proaches the High Court, which in exercise of power of judicial review, di rects the authority to consider and decide the matter. In such cases, while exercising the power of judicial review, the High Court directs consideration without examining the facts or the legal question (s) in volved and without recording any findings on the issues. The High Court may also direct the authority to consider afresh, where the authority had decided a matter without considering the relevant facts and circum stances, or by taking extraneous or irrelevant maters into consideration. In such cases also, High Court may not examine the validity or tenability of the claim on merits, but require the authority to do so. " 15. In view of the proposition laid down by the Apex Court in the afore said judgment and facts of the present case, no case has been made out to issue any direction to the respondents to consider the application of the petitioner for extension of time to deposit the balance amount of sale price. The petitioner is not entitled for any relief in the writ petition. The writ petition is dismissed. Petition Dismissed. .