ORDER : 1. Present applicant preferred Special Civil Application No.18299 of 2017 before this Court to restrain respondent No.4-original petitioner (“the bank” for short) from taking any recovery action against mortgaged property, wherein, by order dated 28.09.2018, the applicant withdrew the application with a liberty to approach the Debt Recovery Tribunal (“the DRT”). The order dated 28.09.2018 deserves reproduction as under :- “Learned advocate Ms. Meena Vyas for the petitioner seeks permission to withdraw present petition with a liberty to approach learned DRT. Permission is granted. The petition stands dismissed as withdrawn with above liberty. Notice discharged. Registry is directed to return a sum of Rs.2 lakh deposited by the petitioner by way of Account Payee Cheque on proper verification.” 2. The bank has filed Special Criminal Application No. 9594 of 2018, wherein it has sought police protection for taking physical possession of the property that was in occupancy of the applicant. The bank being third party bona fide purchaser, the applicant made submissions before this Court to deposit the amount of Rs.10,00,000/- ( Rupees Ten Lakhs) with the bank for further negotiation and the same was recorded in the order dated 30.11.2018. The applicant deposited Rs. 10,00,000/- (Rupees Ten Lakhs only) bearing Cheque No.0011725 of Saraswat Co-Operative Bank Ltd., Branch Maninagar in favour of Authorised Officer, Vijaya Bank. 3. SA No.213 of 2018 was filed by the applicant against the bank in the DRT, which came to be disposed of with the observation that “the applicant shall vacate the premises within 07 days if any other auction purchaser provides a higher bid.” This was the order passed on 11.01.2019 by the DRT. 4. There was an unsuccessful auction and no bidder participated in the said auction dated 11.01.2019. The applicant informed the same to the bank vide letter dated 14.03.2019 and sought refund of amount of Rs.10,00,000/-, which was deposited on 30.11.2018. The Bank did not reply and did not refund the amount. 5. On 19.01.2020 the Bank took the physical possession of the property and failed to repay the amount of Rs.10,00,000/-. On 12.10.2020, the bank issued notice for removal of movable articles lying on the mortgaged property and the bank also stated that as per order dated 11.01.2019 of the DRT, it shall have the right to claim Rs.1,00,000/- per day and deduct the same for illegal occupation. On 12.10.2020, the bank issued notice for removal of movable articles lying on the mortgaged property and the bank also stated that as per order dated 11.01.2019 of the DRT, it shall have the right to claim Rs.1,00,000/- per day and deduct the same for illegal occupation. The auction became successful only on 22.09.2020 after four failures of public auction. 6. On 20.10.2020 the applicant replied to the bank and pointed out how illegally it has retained Rs.10 lakhs. On 07.04.2021 the applicant requested seven days’ time for removing the movable articles lying in the mortgaged property. The bank issued notice on 15.04.2021 which the applicant had responded to on 14.04.2021. The notice was issued for removing the articles and the same was replied to on 15.05.2021 and 17.05.2021 as the amount was not given. The applicant is before this Court seeking following reliefs: “(7) The petitioner therefore, pray that: (A) The Hon’ble Court may be pleased to issue an appropriate writ, order or direction by directing the respondent bank to refund back the money of Rs.10,00,000/- as deposited by the applicant by the virtue of order dated 30.11.2018 passed in Special Criminal Application No. 9594 of 2018 by this Hon’ble High Court of Gujarat; (B) This Hon’ble Court may be pleased to directing the respondent bank to refund back the money of Rs.10,00,000/- along with Fix Deposit interest from the date of application till the date of realization be passed against the defendants and in favour of the plaintiff. (C) This Hon’ble Court may be pleased to grant such other an further relief and/or order in the interest of justice in favour of the petitioners.” 7. Affidavit-in-reply is filed by Chief Manager of respondent No.4 Vijaya Bank. Pursuant to the custody notification dated 02.07.2019, amalgamation of Vijaya Bank, Dena Bank and Bank of Baroda came into force from 1st April, 2019. According to the respondent, the DRT, in its order dated 11.01.2019, directed handing over of the possession of the premises within seven days. However, the said order has not been complied with. The possession had been handed over physically by the applicant of the mortgaged property on 19.01.2020, but personal belongings of the applicant had not been vacated. Therefore, the notice came to be issued on 12.10.2020 for removal of personal belongings and movable articles. 8. However, the said order has not been complied with. The possession had been handed over physically by the applicant of the mortgaged property on 19.01.2020, but personal belongings of the applicant had not been vacated. Therefore, the notice came to be issued on 12.10.2020 for removal of personal belongings and movable articles. 8. The respondent Bank incurred cost while taking the possession of the mortgaged property by way of various litigations against the applicant and the bank has also paid the charges of advocate fees for appearing before the DRT, the trial Court, High Court, security agencies, newspaper publications, E-Auction service provider etc. Thus, in all, it incurred cost of Rs.11,58,950/- (Rupees Eleven Lakhs fifty eight thousand nine hundred fifty only). Thus, the bank has already incurred the expenditure of more than Rs. 10 lakhs. 9. It is also the say of the Bank that the final notice dated 15.04.2021 was issued by the Bank for removal of the movable articles from the mortgaged property. However, the applicant was not budging. The DRT, vide its order dated 11.01.2019, directed to pay damages for illegal use and occupancy of the property of Rs. 1,00,000/- per day. Therefore, the bank, since, has spent Rs.11,58,950/- (Rupees Eleven Lakhs fifty eight thousand nine hundred fifty only) towards the cost of litigation for taking possession on other grounds, shall also be required to be considered by the Court. 10. Additional affidavit has been filed by respondent No.4. According to him, the chronology of events have been detailed by way of this affidavit. It is urged that the Bank has acted fairly as per the law without prejudice to the rights of the person. Public notice for E-auction had been given and on six occasions someone participated and date of auction was fixed on 25.03.2021. Kaminiben D. Sonaviya participated and she was declared as the highest bidder. The applicant has not participated in E-Auction. Therefore, within seven days, the applicant was needed to vacate the said house i.e. on or before 01.04.2021, which has not been done by her. The applicant vacated on 01.04.2021 and, therefore, she needed to pay per day Rs. 01 lakh as per the order dated 11.01.2019. The applicant also has not given peaceful and vacant possession upto 31.05.2021 and, hence, respondents no.4 had to incur loss of expenditure. The applicant vacated on 01.04.2021 and, therefore, she needed to pay per day Rs. 01 lakh as per the order dated 11.01.2019. The applicant also has not given peaceful and vacant possession upto 31.05.2021 and, hence, respondents no.4 had to incur loss of expenditure. Therefore, the petition was dismissed and the Court below directed the applicant to pay the cost of Rs.11,58,950/-, which the bank had incurred. 11. This Court has heard extensively learned advocates on both the sides. 12. It is not in dispute that the applicant herein, by virtue of the order passed by this Court, when had gone to the DRT, the Tribunal on 11.01.2019 passed the order and held that if the applicant fails to deliver the possession within seven days from the date of auction, the bank will charge Rs. 1,00,000/- per day after expiry of seven days, as damages for illegal use and occupation of the property and further the bank will take physical possession of the property forthwith without serving them any prior 14 days notice for possession. 13. The chronology of events are as under: Sr. No. Dates Events 1. 11/01/2019 Respondent No.4 has taken symbolic possession of the property from the applicant by publishing the notice in the “Sandesh” news paper and Times of India published on 13/01/2019. 2. 24/01/2019 Respondent No.4 has issued the public notice in daily news paper Gujarat Samachar and Times of India for E-auction on 24/01/2019. 3. 19/01/2019 Respondent No.4 has issued the public notice in daily news paper Gujarat Samachar and Times of India for E-auction on 21/01/2019. 4. 19/01/2019 Respondent No.4 has taken the physical possession and made the Panchnama, however, some of the luggage (articles) were inside the house. 5. 26/02/2020 Respondent No.4 has issued the public notice in daily news paper Sandesh and The Economic Times for E-Auction on 26/02/2020. 6. 10/08/2020 Respondent No.4 has issued the public notice in daily news paper Divya Bhaskar and The Economic Times for E-auction on 10.08.2020. 7. 05/09/2020 Respondent No.4 has issued the public notice in daily news paper Sandesh and the Economic Times for E-auction on 05.09.2020. 8. 05/03/2021 Respondent No.4 has issued the public notice in daily news paper Gujarat Samachar and The Economic Times for E-auction on 05.03.2021. 9. 7. 05/09/2020 Respondent No.4 has issued the public notice in daily news paper Sandesh and the Economic Times for E-auction on 05.09.2020. 8. 05/03/2021 Respondent No.4 has issued the public notice in daily news paper Gujarat Samachar and The Economic Times for E-auction on 05.03.2021. 9. 25/03/2021 As per Public Notice dated 05.03.2021, the date of E-aucton was fixed on 25.03.2021 and only one Kaminiben D. Sonaviya had participated and she was declared as successful bidder and submitted the cheque of Rs.27,01,100/- to respondent No.4 along with letter dated 25.03.2021. 10. 25/03/2021 Respondent No.4 has issued email dated 25.03.2021 at 6:32 p.m. to successful bidder Kaminiben D. Sonaviya as a sale confirmation letter. 11. 26/03/2021 Respondent No.4 has issued the letter for acceptance of offer for purchase of auction property in favour of successful bidder Kaminiben D. Sonaviya on 26.03.2021. 12. 03/04/2021 Respondent No.4 has submitted the application to the Police Commissioner, Ahmedabad for police protection for handing over of the physical possession to auction purchaser and also, handover the luggage owned by the applicant which was lying in the house. 13. 30/04/2021 The Dy.Police Commissioner, Ahmedabad has given reply and directed the Bank to make the payment. 14. 29/05/2021 Respondent No.4 has submitted the application dated 29.05.2021 and requested the officer of the Police Commissioner, Ahmedabad to accept the payment for which they have issued the receipt on 29.05.2021. 15. 31/05/2021 The applicant submitted the application dated 31.05.2021 addressed to the Respondent No.4 Bank for taking away the luggage/personal belongings of the applicant. 16. 31/05/2021 Respondent No.4 has made the Panchnama and handed over the personal belongings/luggage to the applicant on 31.05.2021 and handed over peaceful and vacant possession to the successful bidder i.e. Kaminiben D. Sonaviya at 3:16 p.m. 17. 31/05/2021 Respondent No.4 has issued letter to successful bidder i.e. Kaminiben D. Sonaviya, stating that the original documents of the property with Sale Certificate have been handed over. 18. 31/05/2021 The successful bidder i.e. Kaminiben D. Sonaviya has issued letter dated 31.05.2021 addressed to respondent No.4 for acceptance of the peaceful and vacant possession of property. 19. 23/08/2021 Respondent No.4 has executed the registered Sale Deed dated 23.08.2021 vide registration no.6412 before Sub-Registrar, Ahmedabad-5 (Narol) in favour of the said Kaminiben D. Sonaviya. 14. 18. 31/05/2021 The successful bidder i.e. Kaminiben D. Sonaviya has issued letter dated 31.05.2021 addressed to respondent No.4 for acceptance of the peaceful and vacant possession of property. 19. 23/08/2021 Respondent No.4 has executed the registered Sale Deed dated 23.08.2021 vide registration no.6412 before Sub-Registrar, Ahmedabad-5 (Narol) in favour of the said Kaminiben D. Sonaviya. 14. It is quite clear from the chronology of events that the bank, on number of occasions, had conducted public auctions and lastly successful public auction conducted by the bank could take place on 25.03.2021. Respondent No.4 issued letter for expenses of valuation for purchase of auction property in favour of successful bidder. The Bank, on 03.04.2021, applied to the Police Commissioner, Ahmedabad for police protection to hand over the physical possession to auction purchaser. The Deputy Commissioner of Police directed the bank to make payment in that respect, which had been deposited on 29.05.2021. The applicant had been asked to take away luggage and personal belongings and hand over peaceful and vacant possession to the bidder. The sale deed had been executed on 23.08.2021 vide registration No.6412 and the applicant had handed over the possession and vacated the house on 31.05.2021. Panchnama was made by respondent No.4 at the time of handing over of peaceful and vacant possession to the successful bidder. 15. The insistence on the part of the Bank for vacant possession of the property prior to the auction having become successful was surely undesirable. It is only after the successful bid that the applicant was required to hand over the possession within seven days once the person is declared as highest bidder in the auction. In case of non-delivery of the possession within the stipulated period, the bank would be entitled to take Rs. 1,00,000/- per day as damages for illegal use and occupation. 16. The applicant was to participate in the auction and if she was successful, the bank was to adjust Rs. 10 lakhs already deposited towards the amount payable under Rules 9(3) and 9(4) of the Securitisation and Reconstruction Of Financial Assets And Enforcement Of Security Interest Act, 2002. 17. 1,00,000/- per day as damages for illegal use and occupation. 16. The applicant was to participate in the auction and if she was successful, the bank was to adjust Rs. 10 lakhs already deposited towards the amount payable under Rules 9(3) and 9(4) of the Securitisation and Reconstruction Of Financial Assets And Enforcement Of Security Interest Act, 2002. 17. As requirement of handing over the physical possession of the property to the bank was within seven days, if some other person other than the applicant was declared as highest bidder in the auction and that having happened on 26.03.2021, the handing over of the possession ought to be by 03.05.2021. However, while she was not be aware about the final auction and the successful bidder, on 07.04.2021 the applicant was requested for removing the movable articles. On 31.05.2021 the bank issued final notice for removing the movable articles. It appears that the amount of Rs. 10 lakhs, which was directed to be deposited with the Bank, had been deposited on 05.12.2018 and thereafter SA No.213 of 2018 came to be disposed of giving certain stringent directions. 18. Considering the fact that vacating of the premises was on 31.05.2021 after successful bid on 26.03.2021, the applicant went on demanding Rs.10 lakhs deposited on 05.12.2018. She reiterated her request for the amount to be paid to her by way of demand draft. 19. It is quite apparent from the order that the DRT had passed order dated 11.01.2019 directing the applicant to pay the damages for illegal use and occupancy of the property for Rs.1,00,000/- per day. As per the affidavit-in-reply filed by the respondent, the applicant was required to vacate the house on or before 01.04.2021 and as the same has not been done as she vacated on 31.05.2021. Therefore, according to the respondent, per day Rs. 1,00,000/- is needed to be paid as costs. However, what has been charged by way of cost from the applicant is Rs.11,58,950/-. It is the amount of cost, which has been incurred by the Bank, which includes the cost of litigation for taking possession. On one or the other ground, as reflected hereinabove, the applicant was not aware of the successful bid. However, as mentioned above, the applicant could not have been aware of the final auction that took place. This Court found that amount of Rs. 10 lakhs was deposited on 05.12.2018. On one or the other ground, as reflected hereinabove, the applicant was not aware of the successful bid. However, as mentioned above, the applicant could not have been aware of the final auction that took place. This Court found that amount of Rs. 10 lakhs was deposited on 05.12.2018. Physical possession of the property was to be handed over within 07 days of the finalization of the bid. Highest bidder in the auction, if is other than the applicant, then she needed to vacate the premises within 07 days and the bid having been finalized on 26.03.2021, handing over ought to have been on 03.05.2021, provided she was made aware of the successful bid. From the chronology of the events that took place, it can unhesitatingly be said that the intimation from the bank since had gone on 07.04.2021, the applicant had requested for 07 days time for removing movable articles lying in the mortgaged property. The bank issued final notice to remove the movable articles on 15.04.2021. The same had been replied to vide communications dated 15.05.2021 and 17.05.2021. The applicant went on asking for refund of Rs. 10 lakhs and considering her own condition when no reply had come for the refund of the amount, she eventually handed over the property on 31.05.2021. 20. Special Civil Application No. 18299 of 2017 was preferred by the applicant praying to restrain the respondent from taking any recovery action against the mortgaged property and the same had been withdrawn with a request to approach the DRT. The Court cannot be oblivious of the pandemic and dire need of mandatory requirements of the parties. The applicant vacated the premises after the time period of 07 days was over. However, even if from the date of the acknowledgment, if it is not disputed that by 07.04.2021, she was not aware, the request on the part of the applicant to refund the amount of Rs.10 lakhs to the bank and her difficulty to move without that amount, when has been duly explained, this refund of amount ought to have been regarded. Ideal situation would have been that the applicant, after vacating the premises, would have made a request to the bank for the refund of the amount. However, considering the period of pandemic, which had disturbed various financial equations, the Court is of the opinion that the amount should be refunded by the Bank. Ideal situation would have been that the applicant, after vacating the premises, would have made a request to the bank for the refund of the amount. However, considering the period of pandemic, which had disturbed various financial equations, the Court is of the opinion that the amount should be refunded by the Bank. The Bank being a public sector undertaking ought to have regarded the difficulties narrated by its customer. 21. Apt would be to refer to communication dated 07.04.2021 addressed to the Chief Officer, Bank of Baroda, which stated that the applicant had been intimated on 05.04.2021 of a successful bid of property situated at Shivpark, which was to be vacated as per the order dated 31.03.2018 within seven days of the successful bid. However, the possession had been already taken over on 19.01.2021. Since the bid had not been successful, she, had needed time of 07 days to allow her to remove her luggage and belongings. The affidavit-in-reply also states that the respondent bank had issued notice on 12.10.2020 for removal of personal belongings. The applicant handed over the physical possession of the mortgaged property on 19.01.2020. Various litigations had been fought by the bank. It had also considered advocate’s fees from DRT, trial Court, High court, Security Agencies, newspaper publications, E-Auction service provider, transportation of shifting the goods, videography during shifting of goods, valuation reports etc. What had been directed on 11.01.2019 by the DRT is to hand over the possession of the premises by the applicant within seven days of the successful bid and that had happened if chronology of events are looked at closely. Only on 26.03.2021, when the respondent bank issued a letter of acceptance of offer for purchase of auction property in favour of the successful bidder Kaminiben, this taking over of the physical possession of the mortgaged property by the bank on 19.10.2020 was certainly not what had been contemplated by the DRT in its order dated 11.01.2019. Being fully conscious, the bank had submitted the application to the Police Commissioner for handing over of the physical possession to the auction purchaser and for handing over to the luggage owned by the applicant, which was lying in the house. On issues of expenses over the offer of purchase by way of auction, it could have requested the applicant to take the luggage after having already taken possession of the premises on 19.10.2020. On issues of expenses over the offer of purchase by way of auction, it could have requested the applicant to take the luggage after having already taken possession of the premises on 19.10.2020. Being conscious of the fact that there was no successful bid unless offered and accepted as what makes the offer a contract is expenses and that, in fact, had happened on 26.03.2021. By intimating the applicant of this bid, what all the bank needed to do was hand over the belongings of the applicant, instead it had taken recourse to the Police Commissioner and had chosen to stretch the whole issue. Even in affidavit-in-reply it has stated as to under what circumstances it had taken over the possession of the premises when the successful bid had happened only on 26.03.2021. That itself is the reason for this Court to hold that under no pretext the bank can continue to enjoy the amount of Rs. 10 lakhs when the premises had already been taken over. The applicant was without her belongings for more than a year and, therefore, the bank cannot take shelter behind the cost it had incurred for which also there is no rationale. 22. Resultantly, the application is allowed. The amount of Rs.10,00,000/- (Rupees Ten lakhs only) deposited shall be given back to the applicant within four weeks from the date of receipt of the copy of this order. The amount shall be transferred in the account of the applicant through RTGS.