Research › Search › Judgment

Rajasthan High Court · body

2012 DIGILAW 696 (RAJ)

Govind Saini v. Ajmer Central Cooperative Bank Ltd.

2012-03-20

AJAY RASTOGI

body2012
Hon'ble RASTOGI, J.— The auction purchaser has approached this Court assailing the cancellation of the auction proceedings vide order dt. 26.5.2007 by the respondent Bank. 2. The respondent No. 4 was the principal borrower and when he committed default and failed to repay the outstanding dues of the secured creditor, the property which was mortaged and security interest was created it was half of 12 Bigha 5 Biswa of Khata No. 165 Kita 18, was put to auction by the respondent Bank on 9.3.2007. The present petitioner was the auction bidder who participated and deposited the auction bid amount for a total sum of Rs. 4.62 lacs while DLC rate, where the subject land was is situated, at the relevant point of time, was almost Rs. 4 Lacs per Bigha and before the secured creditor would have initiated further action regarding confirmation of auction sale, the principal borrower raised objection on 5.4.2007 regarding under valuation and admittedly deposited the whole of the outstanding dues alongwith interest and other expenses which the secured creditor incurred in terms of Clause 3 of the auction notice and taking note thereof, the auction proceedings were cancelled by the secured creditor vide order dt. 26.5.2007. 3. It has also been brought to the notice of the Court that during pendency of the writ petitioner, after the release of property pursuant to the order impugned dt. 26.5.2007, it has been further sold by the principal borrower by registered sale deed in favour of one Smt. Vimla Devi on 24.5.2007 and she too has been impleaded as party respondent on an application filed by the petitioner but no necessary amendments have been sought and there is no relief claimed against the added respondent in the present writ petition. 4. Counsel for petitioner submits that as per R. 94(13)(i)(b)(ii) of the Rajasthan Cooperative Societies Rules, 2003, if the principal borrower deposits the outstanding dues and makes application within thirty days from the date of sale, the Recovery Officer shall pass an order setting aside the sale and shall repay to the purchaser, the auction money so with 5%, to be deposited by the applicant. However, in the instant case, the principal borrower admittedly cleared his outstanding dues on 24.5.2007 which is after the expiry of 30 days from the date of auction which took place on 9.3.2007 and that being so, the very decision of the recovery officer in cancelling the auction proceedings pursuant to the order impugned dt. 26.5.2007 is not legally sustainable and requires to be interfered with by this Court. 5. It is admitted case that before there could be any confirmation of the auction bid, the principal borrower deposited the outstanding dues alongwith all other ancillary charges he was supposed to deposit in term of Clause 3 of the auction notice pursuant to which auction was held on 9.3.2007. 6. In the reply filed by the respondents, apart from the money being deposited by the principal borrower, it has also been averred that the auction sale could not have been otherwise confirmed since the DLC rates of the land where the subject land was situated, was Rs. 4 Lacs a Bigha and the half of the share of the land of the principal borrower of 12 Bigha and 5 Biswa was put to auction for a total sum of Rs. 4.62 lacs and that was otherwise not possible to confirm the auction sale. 7. Mr. R.P. Garg, counsel for respondents submits that after the NPA account being cleared and all other ancillary charges being deposited by the principal borrower, there was no justification available with the respondents to confirm the auction sale and in view of the subsequent development taken place, the auction proceedings stood cancelled by the recovery officer vide order dt. 26.5.2007 and in these circumstances, it does not require interference by this Court. 8. Mr. Reashm Bhargava, appearing for the added respondents Smt. Vimla Devi, submits that she has been impleaded as one of the respondents but there is no pleading on record and no relief has been claimed against her in absence whereof, the property, which she purchased through registered sale deed and that cannot otherwise be questioned in the instant writ petition. 9. So far as the principal borrower is concerned, he has taken U turn and submits that he has no objection if auction sale is confirmed by the recovery officer and he infact is supporting the plea of the petitioner who was auction purchaser. 10. 9. So far as the principal borrower is concerned, he has taken U turn and submits that he has no objection if auction sale is confirmed by the recovery officer and he infact is supporting the plea of the petitioner who was auction purchaser. 10. I have heard counsel for the parties and with their assistance have gone through the material available on record. 11. Pursuant to the auction notice, the auction was held on 9.3.2007 and the petitioner was auction bidder who made an offer of Rs. 4.62 Lacs whereas the DLC rates of the area where the land was situated admittedly as per the documents placed on record, was Rs. 4 lacs a bigha and the total share of the principal borrower was put to auction was half of the 12 Bigha 5 Biswa of the agricultural land and the auction sale could not be confirmed by the recovery officer being undervalued and pending thereof the principal borrower also raised objection on 5.4.2007 and gave complete details of the DLC rates of the area where the land was situated and opposing the confirmation and deposited the outstanding dues and cleared the NPA account with all ancillary charges as contemplated on 24.5.2007. Taking all the circumstances in consideration when the NPA account became cleared and there was no dues against the principal borrower, the recovery officer and apparently the auction bid was undervalued, in these facts and circumstances, considered it appropriate to cancel the auction sale proceedings vide order Anx. 10 dt. 26.5.2007 and this Court does not find any manifest error being committed by the recovery officer in passing of the order impugned which may require interference of this Court. 12. So far as the submission made by counsel for petitioner that as per R. 94(13)(i)(b)(ii) of the Rules, 2003, it was to be deposited within 30 days of the auction sale and once the principal borrower failed to deposit, the respondents committed error in cancelling the auction proceedings, is of no substance for the reason that apart from the NPA account being cleared by the principal borrower, the recovery officer was otherwise not supposed to confirm the auction sale when the total bid amount of the bidder offer was Rs. 4.62 lacs and at the same time, the DLC rates of the area where the subject land was situated was Rs. 4.62 lacs and at the same time, the DLC rates of the area where the subject land was situated was Rs. 4 lacs per bigha and the NPA account being cleared by the principal borrower, the impediment of R. 94(13)(i)(b)(ii) of the Rules, 2003, certainly could not have come in the way of the recovery officer in cancelling the recovery proceedings vide order impugned dt. 26.7.2007. 13. This Court would like to record that after the cancellation of the auction proceedings, which is impugned in the instant writ petition, the subject land was again sold by the principal borrower through registered sale deed on 24.5.2008 and third party rights have also been created thereafter and that is a further reason for this Court for not interfere in such proceedings. 14. Consequently, I find no substance in the instant petition and the same is accordingly dismissed.