ORDER : Ujjal Bhuyan, J. Heard Mr. K.V. Rusheek Reddy, learned counsel for the petitioner and Mr. Raja Shekar Rao Salvaji, learned Standing Counsel for the respondent. 2. By filing this writ petition under Article 226 of the Constitution of India, petitioner seeks a direction to the respondent – State Bank of India, Stressed Assets Management Branch, Hyderabad, to refund to the petitioner the additional amount proportionate to the price of the deficit land admeasuring 44 sq. yards in respect of the schedule property purchased by the petitioner in the e-auction conducted by the respondent. 3. Case of the petitioner is that respondent had issued a notice dated 20.02.2019 under Rule 9 (1) of the Security Interest (Enforcement) Rules, 2002 (referred to hereinafter as ‘the SARFAESI Rules’) for holding e-auction of the schedule property. Details of the schedule property have been mentioned by the petitioner in the affidavit supporting the writ petition, which for the sake of convenience are extracted hereunder: “Land admeasuring 200 sq. yards of the property bearing No.3-117 with six shops in Ground Floor, undivided share of land admeasuring 105.00 Square Yards, Pr.87.79 Square Meters, having plinth area of 987.00 Square Feet in RCC in Survey No.92, situated at Hanuman Nagar, Gaddiannaram Village, Sarrornagar Revenue Mandal, Ranga Reddy District Region, Sub-district Saroornagar and RCC Residential Building located on first floor bearing No.3-117 admeasuring 1427 sq. ft. with undivided share of land admeasuring 95 sq. yards in Sy.No.92, situated at Hanuman Nagar, Gaddiannaram village, Saroornagar Revenue Mandal, Ranga Reddy District.” 4. E-auction was held on 15.03.2019 in which petitioner participated and offered bid amount of Rs.1,38,00,000-00. Petitioner was found to be the highest bidder and was accordingly declared as the successful bidder. Pursuant thereto petitioner paid the entire bid amount to the respondent within the prescribed period; whereafter respondent issued sale confirmation letter to the petitioner on 16.03.2019 and two sale certificates dated 14.05.2019. Immediately thereafter two sale deeds both dated 15.05.2019 were executed by the respondent in favour of the petitioner. 5. After some delay, respondent handed over physical possession of the schedule property to the petitioner in the month of January, 2020. 6. Petitioner made an application dated 03.02.2020 to the Greater Hyderabad Municipal Corporation (GHMC) for mutation of the schedule property in his name. However, GHMC informed him that an amount of Rs.18,39,915-00 was pending as tax arrears against the schedule property. 6. Petitioner made an application dated 03.02.2020 to the Greater Hyderabad Municipal Corporation (GHMC) for mutation of the schedule property in his name. However, GHMC informed him that an amount of Rs.18,39,915-00 was pending as tax arrears against the schedule property. Initially, when the petitioner had brought this fact to the notice of the respondent, there was evasion and denial by the respondent regarding pending tax arrears, which compelled the petitioner to approach this Court by filing Writ Petition No.5230 of 2020. It was only thereafter that respondent cleared the pending tax arrears with respect to the schedule property. Petitioner again made an application to the GHMC for grant of building permission to develop the existing building which was granted by the GHMC on 30.09.2020. As per the permission so granted, the area of the schedule property was admeasuring only 156 sq. yards as against 200 sq. yards mentioned in the two sale deeds as well as in the sale notice dated 20.02.2019. 7. According to the petitioner a perusal of the sale notice and the sale deeds would go to show that the total area of the land purchased by the petitioner in the e-auction held on 15.03.2019 was 200 sq. yards, whereas as per the building permission granted by GHMC the total area of land of the schedule property is 156 sq. yards. There is thus deficit of 44 sq. yards for which petitioner had paid additional amount in the e-auction sale. 8. In view of such development, petitioner issued legal notice dated 08.12.2020 to the respondent for refund of the excess amount proportionate to the deficit land i.e. 44 sq. yards. Respondent replied to the legal notice on 21.01.2021 stating that valuation of the schedule property was carried out by the bank valuer, further stating that the schedule property is as per the details furnished in the sale notice. Aggrieved thereby, petitioner has filed the present writ petition seeking the relief as indicated above. 9. Respondent has filed counter affidavit. Stand taken in the counter affidavit is that petitioner had participated in the e-auction held on 15.03.2019 after satisfying himself of the title, possession and physical verification of the extent of the schedule property. After the petitioner’s bid turned out to be successful, respondent had issued the sale confirmation letter on 16.03.2019. 9. Respondent has filed counter affidavit. Stand taken in the counter affidavit is that petitioner had participated in the e-auction held on 15.03.2019 after satisfying himself of the title, possession and physical verification of the extent of the schedule property. After the petitioner’s bid turned out to be successful, respondent had issued the sale confirmation letter on 16.03.2019. As per the sale confirmation letter, petitioner had to pay the balance sale consideration before 29.03.2019. Petitioner had requested the respondent for extension of time for payment of the balance amount vide letter dated 19.03.2019, which was accepted by the respondent and accordingly time for payment of the full amount was extended till 29.04.2019. However, petitioner failed to make the payment even within the extended period, but made the payment on 13.05.2019 which was accepted by the respondent. It was thereafter that respondent had issued the sale certificates dated 14.05.2019 as per Rule 9 (6) of the SARFAESI Rules. 10. Respondent has taken a stand that petitioner was fully aware that the schedule property was a mortgaged property. Respondent had put to auction sale the schedule property due to non-repayment of loan availed of by the borrower. Petitioner after physically verifying the documents and the schedule property purchased the same in the e-auction. After more than one year, petitioner has now come out with this objection. 11. As to the allegation of the petitioner that there was delay in handing over physical possession of the schedule property to the petitioner, it is stated that the original property owner had challenged the order of the Chief Metropolitan Magistrate, Cyberabad under Section 14 of the SARFAESI Act by filing Writ Petition No.9782 of 2019. It is stated that initially High Court had granted interim stay restraining the advocate commissioner from taking over physical possession of the property. Subsequently, the interim stay was vacated on disposal of the writ petition, vide order dated 13.08.2019. Thereafter physical possession of the schedule property was handed over to the petitioner on 04.01.2020. 12. Respondent has stated that it had got the schedule property valued by an empanelled valuer. As per the report of the empanelled valuer dated 05.08.2015, physical measurements of the scheduler property were found to be intact. After physically verifying the documents and the schedule property, petitioner had purchased the property in e-auction. 12. Respondent has stated that it had got the schedule property valued by an empanelled valuer. As per the report of the empanelled valuer dated 05.08.2015, physical measurements of the scheduler property were found to be intact. After physically verifying the documents and the schedule property, petitioner had purchased the property in e-auction. Respondent has stated that petitioner was provided with a copy of the approved plan for construction of the building comprising of ground floor plus first floor issued by the gram panchayat office of Gaddiannaram dated 21.03.1984. The approval for construction of building was given for 156.66 sq. yards leaving aside the remaining land for road widening. 13. Regarding pending tax arrears, it is stated that respondent was equally in the dark about such dues. Ultimately, after the Court’s order in W.P.No.5230 of 2020 respondent had cleared the dues. 14. Finally it is contended that respondent is the largest public sector bank in India and cannot be accused of misleading the petitioner or committing fraud. Petitioner had remained silent for almost two years. There is an inordinate delay on the part of the petitioner in raising the contention as to shortfall in the area of the schedule property, which in any case was sold on ‘as is where is’ basis, ‘as is what is basis’ and ‘whatever there is basis’. It is asserted that as per physical measurement of the schedule property, the total extent of land is 200 sq. yards. Such enormous delay would imply that petitioner had not physically verified the schedule property either before purchasing the property or after purchasing the property and even before applying to GHMC for building permission. In the circumstances it is submitted by the respondent that there is no merit in the writ petition and it should be dismissed. 15. Petitioner has filed rejoinder affidavit. While reiterating the averments made in the affidavit supporting the writ petition, it is additionally stated that petitioner was not given an opportunity to physically verify the subject property and that petitioner had purchased the same based on the assurances and representations of the respondent. 16. Learned counsel for the petitioner while reiterating the averments made in the writ petition as well as in the rejoinder affidavit submits that respondent had completely misled the petitioner and sold of the schedule property stating the same to have an area of 200 sq. 16. Learned counsel for the petitioner while reiterating the averments made in the writ petition as well as in the rejoinder affidavit submits that respondent had completely misled the petitioner and sold of the schedule property stating the same to have an area of 200 sq. yards; whereas in physical terms the total land area is 156 sq. yards. Thus on good faith and thinking that petitioner had purchased the property having total land area of 200 sq. yards paying the entire sale consideration of Rs.1.38 crores. Had it been made known to the petitioner at the time of bidding that the total land area was actually 156 sq. yards, the bid amount would have been certainly a much lesser amount. Respondent being the seller cannot escape from its liability to disclose true facts at the time of auction sale and for failure to do so, is now required to refund back the excess money collected from the petitioner which would be proportionate to the additional area of 44 sq. yards. In support of his submissions, learned counsel for the petitioner has placed reliance on the following two decisions: (1) Mr. Mandava Krishna Chaitanya Vs. UCO Bank, 2018 SCC OnLine Hyderabad 196 and (2) Poysha Power Generation (P) Ltd Vs. Registrar, Debts Recovery Tribunal, 2019 SCC OnLine Madras 26348. 17. Per contra, learned counsel for the respondent submits that petitioner had participated in the auction sale on 15.03.2019 voluntarily and with his eyes wide open. It is not at all believable that petitioner had parted with valuable consideration worth Rs.1.38 crores purchasing the schedule property in auction without verifying the land documents, without making site visit and taking measurements thereof. This is further fortified by the inordinate delay in making the claim that too after obtaining permission from the GHMC. While reiterating the pleadings made in the counter affidavit, learned counsel for the respondent has distinguished the two decisions Mandava Krishna Chaitanya (1 supra) and Poysha Power Generation (2 supra) relied upon by the petitioner. 18. Further, referring to Section 55 of the Transfer of Property Act, 1882, more particularly, to Clause (a) thereof, he submits that there was no concealment at all of any latent defect in the schedule property by the respondent. Therefore, there being no merit, the writ petition should be dismissed. 19. Submissions made by learned counsel for the parties have been duly considered. 20. Therefore, there being no merit, the writ petition should be dismissed. 19. Submissions made by learned counsel for the parties have been duly considered. 20. Facts are not in dispute. Nonetheless, we may mention that as per e-auction sale notice dated 20.02.2019 issued by the respondent, the subject properties were mentioned at Sl.Nos.3 and 4 of the schedule of property to be auctioned. Sl.No.3 describes house bearing No.30117 with six shops at ground floor, admeasuring 105 sq. yards having plinth area of 987 sq. ft of Hanuman Nagar, Gaddiannaram village. Sl.No.4 is the property being residential building at first floor having MCH No.3-117 with plinth area of 1472 sq. ft and undivided share of 95 sq. Yards of Hanuman Nagar, Gaddiannaram village. Thus, the two schedule properties put together comprised 105 sq. yards plus 95 sq. yards equal to 200 sq. yards. This measurement of the property is also mentioned in the sale certificate dated 14.05.2019 as well as in the two sale deeds dated 15.05.2019. After more than 1 ½ years petitioner complained that the total land area is only 156 sq. yards and not 200 sq. yards. This complaint he made was on the basis of the permission granted by the GHMC dated 30.09.2020. 21. We have carefully perused the building permission order dated 30.09.2020. From the same we do not find any mention that the total land area is 156 sq. yards. On the contrary we find that there are areas mentioned which are road affected areas. That apart, it is very difficult to accept the contention of the petitioner that without making any physical verification of the land documents as well as making physical visit to the site he had purchased the land in e-auction sale only on assurance of the respondent. Any prudent person purchasing the land in auction by making high payments would not do so. It is plain and simple. If what the petitioner contends is allowed it would lead to chaos in execution of SARFAESI proceedings. 22. At this stage we may refer to Section 55 of the Transfer of Property Act, 1882 which deals with the rights and liabilities of buyer and seller. It is plain and simple. If what the petitioner contends is allowed it would lead to chaos in execution of SARFAESI proceedings. 22. At this stage we may refer to Section 55 of the Transfer of Property Act, 1882 which deals with the rights and liabilities of buyer and seller. Sub-Section (1) (a) of Section 55 says that in the absence of a contract to the contrary, the seller is bound to disclose to the buyer any material defect in the property or in the seller’s title thereto of which the seller is and the buyer is not aware and which the buyer could not with ordinary care discover. In the instant case there is no material defect in the property or in the seller’s title thereto which the seller i.e., the respondent was aware of with the petitioner being in the dark. 23. Regarding the two decisions relied upon by the petitioner we are of the view that those two decisions are clearly distinguishable on the facts of the present case. In Mandava Krishna Chaitanya (1 supra) the property in question was tainted on grounds more than one. It fell within the full tank level of a lake and thus was situated in no construction zone; the said land was also treated as ceiling surplus land. That apart, possession of the property could not even be handed over by the bank to the auction purchaser as the sale was effected without the bank securing actual physical possession of the land. Furthermore, the bank did not deny the factum of confirmation of lease having been created by the borrower in relation to the land, thus the land being clearly encumbered. Thus such sale of land would not amount to clear conveyance of title. All these facts were suppressed by the secured creditor while conducting auction sale. Therefore, such auction sale was interfered with by the Court, with the direction to refund the sale consideration. 24. Insofar the case of Poysha Power Generation (2 supra) is concerned, the borrower (third respondent) became a sick industry and was unable to repay its debts. It made a reference to the Board of Directors for Industrial and Financial Reconstruction (BIFR) under the Sick Industrial Companies (Special Provision) Act, 1985. This was done before the e-auction took place. 24. Insofar the case of Poysha Power Generation (2 supra) is concerned, the borrower (third respondent) became a sick industry and was unable to repay its debts. It made a reference to the Board of Directors for Industrial and Financial Reconstruction (BIFR) under the Sick Industrial Companies (Special Provision) Act, 1985. This was done before the e-auction took place. Though the bank was fully aware of this fact, the same was suppressed in the e-auction notification; rather it was declared that the schedule property which was the subject matter of the e-auction was free from all encumbrances. When the auction purchaser came to know about it he did not pay the balance 75% of the sale amount for which the 25% deposit made by him was forfeited by the bank. In the facts and circumstances of that case, Madras High Court interfered with the matter and directed the bank to refund the forfeited amount to the auction purchaser with interest @ 12% p.a. 25. Evidently, the facts of the above two cases are completely different. There is nothing on record to show that the actual area of the schedule property is 156 sq. yards which the respondent knew but intentionally showed it as 200 sq. yards. The materials on record do not indicate any such concealment by the respondent. That being the position, we are not inclined to entertain the writ petition. 26. Accordingly, writ petition is dismissed. However, there shall be no order as to costs. Miscellaneous petitions if any pending in this writ petition shall also stand dismissed.