Judgment :- M. Venugopal, J. 1. The Petitioner has filed the present Writ Petition praying for issuance of a Writ of Certiorarified Mandamus calling for the records of the Respondent/Bank relating to the impugned communication dated 11.02.2013 and to quash the same. Further, the Petitioner has also sought for refund of Rs.4.70 Lakhs together with interest at 18% per annum by the Respondent/Bank to him. 2. According to the Learned Counsel for the Petitioner, the Respondent/Bank brought out an advertisement in leading dailies inviting sealed tenders from the prospective purchasers to purchase the vacant property of an extent of Rs.1330 Sq. ft. belonging to one R.Devendran in Survey No.27/1 and 32/1 in Pozhichalur Village, Saidapet Taluk, Chennai MGR District. Also that the Respondent/Bank purported to have taken possession on 21.06.2012 under Section 13(4) of the Securitisation and Reconstruction of Financial Assistance and Enforcement of Security Interest Act, 2002, in order to recover a sum of Rs.11,36,088/-. 3. Moreover, the claim of the Respondent/Bank is that the property has been mortgaged in its favour by the borrower [D.Raghuraman] who availed the credit facilities. The last date for submission of tender was fixed as 20.11.2012 till 5.00 p.m. The date and time of opening the tender was fixed as 21.11.2012 at 10.30 a.m. 4. The Learned Counsel for the Petitioner brings it to the notice of this Court that the Petitioner submitted his tender for Rs.18.80 Lakhs along with Earnest Money Deposit of Rs.1.70 Lakhs and he was declared as the Successful Bidder by the Authorised Officer. The Respondent/Bank through letter dated 21.11.2012 directed the Petitioner to pay 15% of the sale price besides the EMD amount. Added further, the Petitioner was required to pay the balance 75% of the sale consideration within 15 days from the date of communication of sale confirmation. 5. The Respondent/Bank, by means of letter dated 28.11.2012, acknowledged the Petitioner's payment of Rs.4.70 Lakhs by way of Demand Draft being the 25% of the bid amount and directed him to pay the balance 75% of the amount viz., Rs.14,10,000/-within 15 days. The Petitioner applied for encumbrance certificate to ascertain any subsisting encumbrance over the property and found that the property viz., the subject matter of the auction stands in the name of G.Shanmugam and G.Sekar. The Petitioner applied for encumbrance certificate to ascertain any subsisting encumbrance over the property and found that the property viz., the subject matter of the auction stands in the name of G.Shanmugam and G.Sekar. These two persons, through Sale Deed dated 11.01.2001, have purchased the property [registered Document No.250/2001] from Devendran and they mortgaged the property with the Tambaram Cooperative Building Society Limited on 08.06.2001 as per the registered mortgage deed bearing Document No.1390/2001. From the encumbrance certificate, it transpired that the aforesaid persons redeemed property from Tambaram Cooperative Building Society through receipt dated 25.03.2008 [vide registered Document No.1220/2008]. Subsequently, they created an Equitable Mortgage by depositing 'Title Deeds' on 13.04.2009 with Repco Bank, as per the registered Document No.1275/2009. 6. The Learned Counsel for the Petitioner strenuously contends that in view of the aforesaid encumbrances surrounding the property, the Petitioner addressed a letter dated 11.12.2012 wherein he had stated that always he was ready to remit the balance amount, provided the bank dispels the clog over the clear title of the property. However, he had not received any reply from the Respondent/Bank. Again he issued a reminder on 19.01.2013. 7. The Respondent/Bank issued a reply on 02.02.2013 stating that the Petitioner convinced that the mortgagor's title is not disputed and that he paid the 25% of the bid amount on the same day because of the said reason. Also, the Respondent/Bank informed him that G.Shanmugam and G.Sekar filed a SARFAESI Appeal during the last week of November 2012 before the Debts Recovery Tribunal-III and the same was disposed of on 02.01.2013. Also that the Petitioner, if he could not pay the amount on or before 05.02.2013, the amount paid by him would be forfeited and the sale would be cancelled. Therefore, he issued a reply dated 04.02.2013 seeking clarification of the Respondent/Bank whether the owner had clear title over the property and further expressed the impracticability of paying the balance amount inasmuch as the encumbrance over the property is very much subsisting etc. 8. That apart, the Petitioner, through encumbrance certificate obtained from Sub Registrar's office, Pammal in respect of the property, came to know that R.Devendran had conveyed 1350 Sq.ft. of land in Survey No.27/1 and 32/1 to and in favour of R.Premnath and M.Ravindranath, by means of registered Sale Deed dated 22.01.2001 [registered as Document No.304/2001]. 8. That apart, the Petitioner, through encumbrance certificate obtained from Sub Registrar's office, Pammal in respect of the property, came to know that R.Devendran had conveyed 1350 Sq.ft. of land in Survey No.27/1 and 32/1 to and in favour of R.Premnath and M.Ravindranath, by means of registered Sale Deed dated 22.01.2001 [registered as Document No.304/2001]. When the Respondent/Bank Officials were confronted with the encumbrances surrounding the property, they had not stated anything, except through their letter dated 11.02.2013 by referring to the bank's earlier letter dated 04.2.2013 that despite all clarifications provided, he had failed to pay the remaining 75% of the sale amount and therefore, the 25% of the bid amount paid by him on 21.11.2012 was forfeited. 9. In the epitome of factual backdrop presented supra, the Petitioner has projected the present Writ Petition before this Court, challenging the order dated 11.02.2013 issued by the Respondent/ Bank. 10. It is the submission of the Learned Counsel for the Petitioner that the order of the Respondent/Bank dated 11.02.2013 forfeiting 25% of the sale consideration remitted by the Petitioner is a non- speaking one. 11. The Learned Counsel for the Petitioner contends that the Respondent/Bank has not provided adequate opportunity to him, to explain his stand and anxiety in purchasing the property loaded with litigation and the impugned order passed by the Bank is in negation of the principles of natural justice. 12. Advancing his arguments, the Learned Counsel for the Petitioner urges before this Court that the Respondent/Bank failed to provide requisite and necessary clarifications sought for by the Petitioner in regard to the existence of mortgage and as to how the property was offered as security and also not provided an opportunity to him even for inspecting the documents to buttress their stand. 13. Finally, it is the plea of the Petitioner counsel that the forfeiture of the 25% of the total bid amount viz., 4.70 Lakhs by the Respondent/Bank as per communication dated 11.02.2013 is an illegal one. Consequently, the Respondent/Bank is liable to refund the said sum of Rs.4.70 Lakhs with interest at 18% per annum to the Petitioner. 14. 13. Finally, it is the plea of the Petitioner counsel that the forfeiture of the 25% of the total bid amount viz., 4.70 Lakhs by the Respondent/Bank as per communication dated 11.02.2013 is an illegal one. Consequently, the Respondent/Bank is liable to refund the said sum of Rs.4.70 Lakhs with interest at 18% per annum to the Petitioner. 14. To lend support to the contention that when encumbrance is not notified in the sale notice, the impugned order dated 11.02.2013 forfeiting the amount of Rs.4.70 Lakhs paid by the Petitioner to the Bank is illegal, the Learned Counsel for the Petitioner relies on the Judgment of this Court in Jai Logistics rep. By its Partner G.Bhasker V. The Authorised Officer, Syndicate Bank, Coimbatore, [ 2010 (4) CTC 627 at page 628] wherein, in paragraph 5, it is held as follows: "5. We have considered the submissions. Of course, in the aforesaid judgment, the Supreme Court, while considering a sale by the Official Liquidator, has held that it is the duty of the intending purchaser to satisfy himself as to the encumbrance before participating in the bid. Having participated in the bid, the intending purchaser cannot later on turn around and question the Official Liquidator on the ground that the encumbrance was not notified. In that case, the provisions of the Rules as applicable in the present case are not applicable to the Official Liquidator. But in the case on hand, once possession is taken over under Section 13(4) or under Section 14 of the SARFAESI Act, whenever the secured creditor contemplates a sale of immovable property, they will have to follow Rule 8 of the Security Interest (Enforcement) Rules, 2002. Rule 8(6)(f) mandates the secured creditors to set out in the terms of sale notice any other thing which the authorised officer considers it material for a purchaser to know in order to judge the nature and value of the property. A reading of the said rule, in our opinion, would also include the encumbrance relating to the property. Rule 8(6)(f) mandates the secured creditors to set out in the terms of sale notice any other thing which the authorised officer considers it material for a purchaser to know in order to judge the nature and value of the property. A reading of the said rule, in our opinion, would also include the encumbrance relating to the property. We are inclined to read the rule in that way keeping in mind the interest of the intending purchaser to be put on notice as to the encumbrance, as otherwise he/ she will be purchasing the property and simultaneously buying the litigation as well and an intending purchaser may not bid in the event he/she came to know of any encumbrance over the property. That is why the rule specifically contemplates a provision for the authorised officer, while notifying the sale, to specifically state as to the encumbrance. It will be a different issue in the event the auction notice indicated that it is the duty of the intending purchaser to verify not only the encumbrance by way of alienation of the property, but also the other statutory liabilities and in that case, the intending purchaser cannot later on turn around and seek for either the refund of the earnest money deposited or insist the bank to clear the encumbrance. In the absence of such indication in the sale notice, in our considered view, the respondent-bank would not be justified in compelling a purchaser to go ahead with the sale by depositing the balance sale consideration together with the encumbrance." 15. A cursory running of the eye over the contents of Tender-cum-Auction Sale Notice dated 19.10.2012 of the Respondent/Bank clearly mentions that the Respondent/Bank has invited Sealed Tenders from prospective Purchasers who are interested in the mortgaged property which was taken possession by the Bank on 21.06.2012, under Section 13(4) of the SARFAESI Act, 2002, to recover a sum of Rs.11,36,088/-as on 30.09.2012 with further interest and other charges thereon. It is also stated that the property has been mortgaged in favour of the Bank for the credit facilities availed by the Borrower-D.Raghuraman. The reserve price for the property mentioned in the Auction Notice is Rs.16,63,000/-. The EMD is fixed at Rs.1,70,000/-. It is also stated that the property has been mortgaged in favour of the Bank for the credit facilities availed by the Borrower-D.Raghuraman. The reserve price for the property mentioned in the Auction Notice is Rs.16,63,000/-. The EMD is fixed at Rs.1,70,000/-. The last date for submission of Tenders is fixed as 20.11.2012 upto 5.00 p.m. and the last date and time of opening of Tenders is stated as 21.11.2012 at 10.30 a.m. 16. More importantly, the Clauses (1) and (2) of the 'Terms and Conditions' of Tender cum Auction Sale dated 19.10.2012 categorically spotlight and highlight that 'The property can be inspected on 16.11.2012 between 10.00 am and 2.00 pm. at their own expenses. The property shall be transferred / conveyed on "as is where is" basis and "as is what is" condition by means of a sale certificate in the name of the Purchaser only.' Clause 7 of the Terms and Conditions of the Tender Cum Auction Sale speaks of 'The successful Tenderer/Bidder shall deposit 25% of the sale price including EMD, on the same date and the balance amount within 15 days from the confirmation of the sale by the Bank, otherwise the entire amount paid by the Bidder shall be forfeited by Authorised Officer without any notice and the sale will be cancelled' etc. 17. As seen from the Respondent/Bank's communication dated 21.11.2012, the Petitioner has been informed that his bid for Rs.18,18,000/-being the highest bid in respect of the property has been accepted and further, he has been declared as successful bidder in respect of the sale. Also, he has been advised to pay 15% of the sale price by the evening of 21.11.2012 besides the EMD amount, failing which he has been informed that the EMD amount will be forfeited by the Authorised Officer without notice and the sale will be cancelled. That apart, the Petitioner has been advised to pay the balance 75% of the sale price within 15 days from the date of communication of Sale Confirmation as per terms of sale and also that he has been informed that in case of his failure to pay the amount as stated earlier, the entire bid amount paid by him shall be forfeited by the Authorised Officer without any notice and the sale would be cancelled. 18. 18. At this stage, it is to be pointed out that the Petitioner has taken part in the bid on 21.11.2012 for Rs.18,18,000/-. 19. Indeed, the Respondent/Bank through its communication dated 28.11.2012 addressed to the Petitioner has confirmed the receipt of 25% of the bid amount being Rs.4,70,000/- from the Petitioner in the following manner: "1. IDBI Bank, Pallavaram branch Demand Draft No:001338 Dt.20.11.2012 for Rs.1,70,000/-. 2. IDBI Bank, Pallavaram branch Demand Draft No:001352 Dt.21.11.2012 for Rs.3,00,000/-" and once again, the Bank has reiterated by mentioning that "Please note that the Sale has been held under 'As is Where is' and 'As is what is' basis". The Respondent/Bank has also requested the Petitioner to pay 75% of the balance Bid amount being Rs.14,10,000/- within 15 days from the date of communication of sale confirmation and further informed that in case of his failure to pay the balance bid amount within the stipulated date, the entire amount so far paid of Rs.4,70,000/- shall stand forfeited without any notice and that the sale in his favour shall stand automatically cancelled. 20. It comes to be known that the Petitioner on 19.01.2013 addressed a letter to the Chief Manager of the Respondent Bank, Micro ARM Branch, Chennai – 8 by inter alia stating that he has not received any reply from the bank's end in regard to his letter dated 11.12.2012 wherein he has requested the Bank to clarify and confirm as to whether the borrower viz., D.Raguraman has clear title over the property and whether any dispute/suit is pending over the property before any court of law/Tribunal, so as to enable him to pay the balance 75% of the bid amount and proceed to register the property in his name. 21. The Respondent/Bank, through its communication dated 02.02.2013 [for the letter of the Petitioner dated 11.12.2012 and 19.01.2013] addressed to the Petitioner, has, among other things, stated that it was categorically clarified to him that subsequent encumbrance if any, in the property will be and is subject to Indian Bank's mortgage/charge over the said property and having convinced himself that the mortgagor's title is not disputed, he paid 25% of the bid amount on the same day etc. Further, the Bank has also stated that the DRT-III has concluded that there is no illegality in the proceedings of the bank in the SARFAESI Appeal [filed by Shanmugam and Sekar] and ultimately, the SA filed by the alleged subsequent purchasers has been dismissed. Therefore, there is no impediment for the Petitioner in regard to the payment of 75% of the balance sale amount and accordingly, the Petitioner has been advised to pay the said remaining sale price immediately i.e. on or before 05.02.2013 failing which he has been informed that 25% of the bid amount paid by him shall be forfeited by the Authorised Officer without any notice and the sale would be cancelled. 22. Being dissatisfied with the reply dated 02.02.2013 sent by the Respondent/Bank to the Petitioner, he sent a communication dated 04.02.2013 to the Chief Manager of the Respondent/Bank, Chennai – 8 reiterating that since the property bears such encumbrance, it is not practically possible to pay the balance amount and when such encumbrance over the property is existing, inviting tender from the prospective purchasers is not fair on the part of the Indian Bank and also request of the Respondent/Bank to intimate him well in advance, by giving at least 10 clear days in regard to his clarification on the clear encumbrance so as to enable him to pay the balance 75% of the balance amount. 23. It is to be pointed out that Section 55 of the Transfer of Property Act speaks of 'Rights and Liabilities of buyer and seller'. Undoubtedly, the seller must do what a prudent owner should do. The provisions of Section 55(1) of the Transfer of Property Act, 1882 enable the buyer, before completion of the sale transaction to ascertain if the title offer is free from reasonable doubt. Once he has executed the conveyance and the sale is completed, he has no remedy on the contract, except seeking the relief in respect of fraud. 24. In Law, it is the "Caveat Emptor" [Purchaser Beware]. If the sale is vitiated by fraud, the buyer can sue the seller to set aside the sale and to recover the price. As per Section 55(2) of the Transfer of Property Act if the title is restricted viz., subject to statutory charge – there cannot be a covenant of higher title. If the sale is vitiated by fraud, the buyer can sue the seller to set aside the sale and to recover the price. As per Section 55(2) of the Transfer of Property Act if the title is restricted viz., subject to statutory charge – there cannot be a covenant of higher title. To put it differently, if the title is subject to certain restrictions, there cannot be a covenant for enjoyment of a higher title. 25. We aptly point out that the 'Caveat Doctrine' applies when condition of an Auction Sale is printed and published and would be purchasers were distinctly told to satisfy themselves of the nature of the property before purchase and on purchase, if any encumbrance is found, the Doctrine applies, in our considered opinion. 26. It is to be borne in mind that the sale is a transfer for a price paid or promised or part paid or part promised. Where the consideration is price promised, the promise is itself the consideration, and there is no scope for a charge. Likewise, when the price is part paid and part promised, and the amount to be paid is fully paid. The difference between a sale in consideration of covenant to pay a sum of money in the future and a sale in consideration of a sum of money which the buyer covenants to pay, may seem good, but there lies a real distinction. The former gives rise to a charge, the latter does not. 27. No wonder, the seller is by Section 55(1) (a) of the Transfer of Property Act has a duty to disclose latent defects. There is no duty caused on the buyer to disclose latent advantages. If the property is not sold free from encumbrances and they are not discharged at the time of conveyance, ordinarily, the buyer is not bound to pay the sale consideration. He may under Section 13(1)(c) of the Specific Relief Act, 1963, compel the vendor to discharge the encumbrance; or in the alternative, he may, under Section 55(5), discharge it himself and set off the amount against the purchase money, or recover it by a subsequent suit against the vendor. If the sum due on the encumbrance is greater than the purchase money, he may retain the latter as security for the seller discharging it. If the sum due on the encumbrance is greater than the purchase money, he may retain the latter as security for the seller discharging it. In such a case, he may not be liable for interest on the purchase money until the seller has shown himself ready and willing to pay the difference and discharge the encumbrance. 28. Besides the above, after completion by conveyance, the ownership of the property having passed to the buyer, the buyer is the owner and the property is at his risk. After completion, the transfer passes to the buyer all rights of ownership, and such rights as are under Section 8 of the Transfer of Property Act and the legal incidents thereof. 29. At this stage, we deem it appropriate to recall the decision in R.Muninarayana Reddy and others V. C.P.Chinnaswamy Gownder, [AIR 1952 Mysore 120] wherein it is held that 'No presumption that sale is free from encumbrance'. 30. It is to be noted that 'an Earnest Money is forfeited, when the transaction falls due to the fault of vendee' as per the decision of the Hon'ble Supreme Court in Maula Bux V. Union of India, [AIR 1970 Supreme Court 1955]. Furthermore, the 'Earnest Money' is guaranteed for the performance of contract, as per the decision in P.Gopalaratna Iyengar V. A.Rajaratna Mudaliar, [AIR 1938 Madras 246]. 31. Continuing further, it is to be remembered that 'Earnest Money is part of the purchase price when the transaction goes forward; it is forfeited when the transaction falls through by reason of the fault or the failure of the vendee', as per the decision in (Kunwar) Chiranjit Singh V. Har Swarup, [1926 Madras Weekly Notes (Privy Council) 145]. 32. It cannot be lost sight of that 'a suit for refund of Earnest Money is maintainable without any prayer for specific performance', as per the decision in Chaudhary Rambabu Singh V. Dalip Kumar and another, [AIR 1981 Madhya Pradesh 158]. 33. That apart, it is to be borne in mind that a Writ Court cannot be converted into a fact finding Court of Law, particularly in the cases of this nature. 34. 33. That apart, it is to be borne in mind that a Writ Court cannot be converted into a fact finding Court of Law, particularly in the cases of this nature. 34. Also, in the decision Nagammal and others V. Ayyavu Thevar and others, [AIR 1973 Madras 353], it is held as follows: "What is called 'advance' may be a deposit or earnest money and what is termed as "deposit" may ultimately be proved to be an advance. The mere description by the parties cannot conclude this question. It is the intention of the parties gatherable from the agreement that has to be looked into." 35. There is no two opinion of the fact that the SARFAESI Act, 2002 has been enacted with a view to enforce security interest of lending banks. The said Act is an enactment for quick recovery of debts due to banks and financial institutions. In fact, the said Act is a special one, which overrides any provision to the contrary in R.D.D.B.F.I. Act, 1993 or any other earlier Act of Parliament or State Legislations relating to the field it attracts. 36. In the instant case, the Petitioner has not availed remedy, if any, under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, however, he has chosen to file the present Writ Petition directly before this Court. 37. Be that as it may, as far as the present case is concerned, the Petitioner has taken part in the Auction Bid in respect of the property in issue on 21.11.2012 for Rs.18.80 Lakhs and stood as the highest bidder, has been accepted by the Respondent/Bank and further, he has been declared as the successful bidder in respect of the sale. Even the Tender Cum Auction Sale Notice dated 19.10.2012 clearly contains a condition that the property shall be transferred/conveyed on "as is where is" basis and "as is what is" condition by means of a sale certificate in the name of the Purchaser only. He has also remitted the EMD of Rs.4,70,000/-being the Earnest Money which has been duly acknowledged by the Respondent/Bank. However, he has not paid the 75% of the balance amount of Rs.14,10,000/-. He has also remitted the EMD of Rs.4,70,000/-being the Earnest Money which has been duly acknowledged by the Respondent/Bank. However, he has not paid the 75% of the balance amount of Rs.14,10,000/-. Inspite of all clarifications provided by the Respondent/Bank, the Petitioner has failed to pay the balance 75% of the sale amount and ultimately, through the impugned order dated 11.02.2013, the Bank has forfeited the Earnest Money Deposit of Rs.4,70,000/- remitted by the Petitioner on 21.11.2012. 38. In the instant case, in the upshot of discussions, it is latently and patently clear that it is the Petitioner's duty as an intending purchaser to satisfy himself as to the encumbrance, cloud or shroud surrounding the property in question before taking part in the Auction Bid conducted by the Respondent/Bank on 19.10.2012. It is not open to the Petitioner, after taking part in the Auction Bid held on 19.10.2012 and also after remitting an Earnest Money of Rs.4,70,000/-, to come out with a plea that there are encumbrances over the property which were not notified in the Auction Notice. On the facts of the present case, we are of the considered view that the Bank has clearly, in Clause 2 of the Terms and Conditions of the Auction Notice, spelt out its stand that the property brought in Auction Sale through Notice dated 19.10.2012 shall be transferred/conveyed on "as is where is" basis and "as is what is" condition by means of a sale certificate in the name of the Purchaser only. Only with the open eyes, the Petitioner has taken part in the Auction Bid, held on 19.10.2012. After taking part in the Auction held on 19.10.2012, we are of the considered view that, it is not open to the Petitioner to question the impugned order dated 11.02.2013 of the Respondent/Bank in forfeiting 25% of the bid amount paid by him on 21.11.2012. As such, we unhesitatingly held that the Writ Petition filed by the Writ Petitioner is not maintainable, in law. Consequently, the Writ Petition fails. 39. In the result, the Writ Petition is dismissed. As such, we unhesitatingly held that the Writ Petition filed by the Writ Petitioner is not maintainable, in law. Consequently, the Writ Petition fails. 39. In the result, the Writ Petition is dismissed. We make it clear that the dismissal of the present Writ Petition will not preclude the Petitioner to work out his remedy against the Respondent/Bank as per prevailing law for the time being in force, before the competent forum, if he so desires/advised in the manner known to law and in accordance with law, in which event, the appropriate forum is to consider the claim of the Petitioner in a dispassionate manner, untrammeled by any of the observations/discussions made by this Court in this Writ Petition. No costs.