JUDGMENT : VIJU ABRAHAM, J. W.P. (C) No. 41671 of 2022 1. It is averred that petitioner is the successful bidder in an auction conducted by the 2 nd respondent invoking the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'the SARFAESI Act') in respect of 3 Acres 20 cents of land and building situated therein comprised in old Survey Nos.9658, 9859, 9608 and 9614 of Kollam East Village (Re.Survey No.3 of block 68). The property was originally owned by one N.Sundareswaran, who availed financial assistance from the 1 st respondent Bank mortgaging the above mentioned properties and when he committed default, the bank invoked the provisions of the SARFAESI Act and sold the properties in auction, after publishing notice for the proposed sale in Hindu and Mathrubhoomi daily dated 18.6.2008. The petitioner participated in the auction and he was the highest bidder and accordingly, petitioner's bid was accepted by the bank. The sale was confirmed in favour of the petitioner for a bid amount of Rs.4,45,50,000/-. The petitioner remitted the bid amount and Ext.P1 sale certificate was issued in his favour. As per Ext.P1 sale certificate, the property is described as per the sale notification, as 3 acres and 20 cents of land. The two liabilities mentioned in the encumbrance certificate were settled at the instance of the petitioner. After getting sale certificate, it was noticed that the property sold in auction was not measured in full extent of 3 acres and 20 cents of land. The petitioner requested respondents 1 and 2 to take steps to handover physical possession of the land in full. Accordingly, the respondents by their letter dated 23.12.2008 requested the Tahsildar/Village Officer, Kollam to identify the property with boundaries. The Village officer by Ext.P2 replied that out of the 3 acres and 20 cents of land sold, he could identify only 1 Hectre 18 Ares 16 Sq.M equivalent to 291 cents 855 Sq.links. As such there is a shortage of 28.145 cents of land out of 3 acres 20 cents of land sold to the petitioner by the 2 nd respondent bank. As such there is a shortage of 28.145 cents of land out of 3 acres 20 cents of land sold to the petitioner by the 2 nd respondent bank. The petitioner submits that during the pendency of the legal proceedings in the matter, some portion of the land was encroached by the neighbouring landlords and a certain portion was illegally sold by the previous owner to the 3 rd party while the mortgage was subsisting in favour of the 1 st respondent bank. The petitioner repeatedly requested respondents 1 and 2 to take steps to identify the balance portion of the property and in the meanwhile, to register the identified portion of the property, out of the balance portion of land to be identified. Alleging inaction on the part of the bank, the petitioner has approached this Court filing W.P.(C).No.7740 of 2009. The said writ petition was disposed of as per Ext.P3 recording the submission of respondents 1 and 2 that they have no objection in the registration in relation to 291.855 cents and directing them to complete the registration in respect of 291.855 cents in accordance with law and further, directed respondents 1 to 3 to expedite the process of identifying the balance extent out of 3.20 acres of land. In compliance with the direction of this Court, the 2 nd respondent executed the sale deeds in favour of the petitioner in respect of the identified portion of 291.855 cents of land by way of 7 sale deeds. In spite of the specific direction in Ext.P3, no steps were taken for identifying the 28.145 cents of land and registering the balance portion to the petitioner and thereupon the petitioner was constrained to approach this Court filing Contempt of Court case No.422 of 2010. In the said contempt petition the 3 rd respondent - Tahsildar filed Ext.P5 affidavit intimating that they have identified the land which is currently in the possession of the neighbouring land owner, SNDP Sagha Yogam, where Sree Krishnaswami Temple is situated. Accordingly this Court dropped the contempt proceedings without prejudice to the rights of the parties. In the said contempt petition the 3 rd respondent - Tahsildar filed Ext.P5 affidavit intimating that they have identified the land which is currently in the possession of the neighbouring land owner, SNDP Sagha Yogam, where Sree Krishnaswami Temple is situated. Accordingly this Court dropped the contempt proceedings without prejudice to the rights of the parties. Thereupon the petitioner approached this Court filing W.P(C) No.19633 of 2011 seeking a direction to respondents 1 and 2 to take physical possession of the entire 3 acres 20 cents of land sold as per Ext.P1 Sale Certificate and also for directing respondents 1 and 2 to take appropriate steps under Section 14 of the SARFAESI Act for taking physical possession of the 28.145 cents of land found short out of 3 acres 20 cents and to give physical possession to the petitioner. This Court passed an interim order on 27.07.2011, as follows: “Admit. Standing counsel takes notice for respondents 1 and 2. Government Pleader takes notice for the 3 rd respondent. The learned counsel for the bank submits that the balance property is in the possession of somebody else and the bank is taking appropriate proceedings to see that the balance property is also taken possession of and handed over to the petitioner. The respondents shall take appropriate steps in this regard within 2 weeks." No action was taken by the respondent bank and later an Advocate Commissioner was appointed by the Judicial First Class Magistrate Court, Kollam to take possession of 5.5cents of land in survey No.9658/5, resurvey No.46 in block No.68 out of the 3 acres 20 cents of land sold to the petitioner after demarcating, with the help of the Taluk Surveyor. On the basis of the same the petitioner was given possession of 5.5 cents of land and also executed Sale Deed No.1461 of 2015 in favour of the petitioner. Thus, the balance extent of land remaining to be given possession to the petitioner is 22.645 cents. Ultimately the writ petition was heard and disposed of as per Ext.P9 judgment directing the Chief Judicial Magistrate, Kollam to consider and dispose of M.C.No.41 of 2017, filed by the bank under Section 14 of the SARFAESI Act, and pass final order on the same and deferred the request of the petitioner for prorata adjustment of sale consideration paid by the petitioner for the issuance of Ext.P1 Sale Certificate. As no further action was taken in this regard, the petitioner has filed the present writ petition seeking the following reliefs: i. To issue a writ of mandamus or other appropriate writ, order or direction directing the respondents 1 and 2 to identify and to put the petitioner in physical possession of 22.645 cents of land out of the land sold as per Ext.P1 sale certificate forthwith; ii. To issue a writ of mandamus or other appropriate writ order or direction directing to the respondents 1 and 2 in view of their failure to handover physical possession of the balance extent of 22.645 cents of land to the petitioner, to pay the petitioner the proportionate cost of that property amounting to Rs.31,36,117/- with interest at the rate of 12% per annum from 29.09.2008 forthwith iii To declare that petitioner is entitled to get physical possession of the entire land sold as per Exhibit P1 Sale Certificate and respondents 1 and 2 are bound to give physical possession of the entire land and register the sale deed in favour of the petitioner. iv To issue a writ of mandamus or other appropriate writ or direction directing C.J.M. Kollam to pass final orders in M.C.No.41 of 2017 without any further delay. v. To dispense with the production of English Translation of the documents in vernacular languages. vi. To pass such other and further orders as are deemed just and necessary in the facts and circumstances of the case. The petitioner would further contend that later the Chief Judicial Magistrate Court in M.C.No.41 of 2017 directed the Advocate Commissioner to take physical possession of the property at the earliest. Consequently, the Advocate Commissioner has produced Ext.P12 mahazar along with a sketch showing the details of the disputed property before the Chief Judicial Magistrate. The Commissioner has also produced a statement for having given 21 cents 86 Sq.links of property in old survey No.9608, block No.68, survey No.3 Kollam East village to the authorised officer of the bank. Though in the mahazar it has been stated that notice has been given to the parties, no such notice has been given to the petitioner. On production of the same, by Ext.P15 order, the proceedings were closed. Though in the mahazar it has been stated that notice has been given to the parties, no such notice has been given to the petitioner. On production of the same, by Ext.P15 order, the proceedings were closed. The petitioner would submit that though in Ext.P12 the Commissioner has stated that the mahazar has been prepared with notice to the contesting parties and has produced a sketch prepared by the Surveyor, going by Ext.P12, the inspection of the Advocate Commissioner was on 13.02.2023, but the sketch appended to the report is signed by the Taluk Surveyor, Kollam on 06.10.2020. Further, the petitioner would contend that item No.I property marked on the sketch having an extent of 1 hectare 18 Ares 16 Sq.M. is the property for which sale deed has already been executed in favour of the petitioner and the property mentioned as item No.II and III are properties which are included in this 1 hectare 18 Ares 16 Sq. M., for which the sale deed has already been executed in favour of the petitioner. On the basis of the same it is the contention of the petitioner that the sketch and report submitted by the Advocate Commissioner is without any basis. Further, the petitioner submits that pursuant to the direction issued by this Court to the learned Government Pleader to get instructions as to whether the concerned Revenue Officers were put on notice with regard to inspection by the Advocate Commissioner and whether they had participated in identification of the property and handing over possession to the authorised officer, a report has been submitted by the learned Government Pleader along with a memo dated 14.06.2023 stating that going by the records, the Revenue Authorities were not issued with notice and their presence was not there at the time of preparation of the report. 2. The petitioner relies on Ext.P5 affidavit filed by the Additional Tahsildar, Kollam, who is the 3 rd respondent in Con.Case No.422 of 2010 wherein it is admitted that the Taluk Surveyor was successful in identifying the land which has to be handed over to the petitioner by the Bank, but as per the resurvey records that land is currently in the possession of SNDP Sagha Yogam, and the same has well defined boundary with compound walls constructed about 25 years ago, where the Sree Krishnaswami Temple is situated. On the basis of the same it is the contention of the petitioner that the bank is not in a position to hand over the physical possession of an extent of 22.645 cents of land, even after more than 17 years, which form part of 3 Acres 20 cents of land, for which sale consideration has already been paid by the petitioner and therefore, a direction may be issued to the bank to pay the petitioner the proportionate cost of that property amounting to Rs.31,36,117/- with interest at the rate of 12% per annum from 29.09.2008. The petitioner relies on the judgment in Leelamma Mathew v. Indian Overseas Bank, 2022 (6) KLT 424 (SC) and the judgment in Ravi Kumar v. UCO Bank, MANU/AP/0398/2018 in support of his contentions. 3. A detailed counter affidavit has been filed by respondents 1 and 2 wherein it is stated that pursuant to the direction issued by this Court, the proceedings before the Chief Judicial Magistrate were continued and the Advocate Commissioner submitted a report before the Chief Judicial Magistrate and as per Ext.R1(g) order. The petition filed under Section 14 of the SARFAESI Act was closed based on the report of the Advocate Commissioner and it is reported that the possession of the property has been handed over to the bank. It is also contended that it is for the petitioner to challenge the order of the Chief Judicial Magistrate by filing a fresh writ petition. 4. A detailed reply affidavit has also been filed by the petitioner to the said counter affidavit. It is stated that even though in Ext.R1(g) order it is reported that the possession of the property has been handed over to the authorised officer of the bank, till date the bank is not in a position to take the physical possession of the land and execute a sale deed in favour of the petitioner in respect of 22.645 cents of land. It is also stated that it is the duty of the respondent bank to deliver the possession of the property sold under SARFAESI Act, which the bank has failed to do. W.P. (C) No. 3355 of 2023 5. It is also stated that it is the duty of the respondent bank to deliver the possession of the property sold under SARFAESI Act, which the bank has failed to do. W.P. (C) No. 3355 of 2023 5. It is averred that petitioner is the successful bidder in an auction conducted by the 2 nd respondent invoking the provisions of the SARFAESI Act in respect of 47.20 cents of land with a building situated therein comprised in old Survey Nos. 9635, and 9636 (Re Survey No.64 of block 74) of Kollam East Village in a public auction held on 10.11.2008. It is contended that the property was originally owned by one N.Sundareswaran, who has availed financial assistance from the 1 st respondent Bank by mortgaging the above said properties and later, when he committed default, SARFAESI proceedings were initiated by the bank and in the said proceeding, the property was sold in auction. The petitioner participated in the auction and she was the successful bidder and the sale was confirmed on 02.12.2008 in favour of the petitioner. Thereafter, the bid amount of Rs.82,05,000/ was remitted by the petitioner. Ext.P1 is the sale certificate issued in favour of the petitioner. As per the description of property mentioned in the sale certificate, the total extent is 47.250 cents, which is the extent shown in the notification of sale. Later, it was found that the properties sold in auction was not measuring the full extent of 47.250 cents and the petitioner made a request before the respondent bank for measuring the property with the help of Tahsildar to determine the real boundaries and extent before handing over the physical possession of the properties. Ext.P2 report and sketch received from the Village Officer showed that as per re-survey records the total extent of land available in the property sold was only 17.94 Ares (44.31 cents) and there is a shortage of 2.94 cents in the property sold to the petitioner. It is understood that the shortage portion of the property is somewhere lying in the neighbouring property. Thereafter, the petitioner again sent a communication requesting for the identification of 2.94 cents of land, found short as per the report of the Village Officer, Kollam East Village. No action was taken to execute the document and complete the registration of the land already identified. Thereupon the petitioner approached this Court filing W.P.(C)No.19975 of 2011. Thereafter, the petitioner again sent a communication requesting for the identification of 2.94 cents of land, found short as per the report of the Village Officer, Kollam East Village. No action was taken to execute the document and complete the registration of the land already identified. Thereupon the petitioner approached this Court filing W.P.(C)No.19975 of 2011. When the writ petition came up for admission, the counsel for the respondent bank sought for time to move the Chief Judicial Magistrate under Section 14 of the SARFAESI Act and by Ext.P3 this Court has granted time for moving the Chief Judicial Magistrate Court in this regard. The Chief Judicial Magistrate Court appointed an Advocate Commissioner, who filed a report expressing difficulty in identifying the property without the help of a surveyor and the Chief Judicial Magistrate Court, Kollam as per Ext.P4 order dated 16.12.2011 granted assistance of the Village Officer to identify the property. A further direction was issued by the Chief Judicial Magistrate as per Ext.P7 directing the Taluk surveyor, Kollam to give necessary assistance to the Advocate Commissioner to execute the order. Later, the writ petition itself was disposed of as per Ext.P9 directing the bank to register the property which is available with it in favour of the petitioner and also directed the bank that as and when the remaining property is recovered, in pursuance to the proceeding, which is then pending before the Chief Judicial Magistrate Court, Kollam, the documentation in respect of the balance extent of the property shall also be completed by the bank without delay. The bank ultimately executed a sale deed in favour of the petitioner in respect of 44.330 cents of property for a proportionate value of Rs.76,97,940/- and handed over the possession of the properties to the petitioner after executing Ext.P10 sale deed. As regards the balance property to be identified and taken possession of, no steps were taken by the respondents in that regard. It was revealed that an I.A. filed by the bank in M.C.No.365 of 2016 before the Chief Judicial Magistrate Court, Kollam as CMP No.6995 of 2011 was dismissed by the Chief Judicial Magistrate as per Ext.P11 order, for non appearance of the respondents 1 and 2. The petitioner was all along contacting the bank officials to take steps in this regard. The petitioner was all along contacting the bank officials to take steps in this regard. Thereupon the petitioner was constrained to approach this Court filing W.P.(C)No.3176 of 2016 for compelling the respondents to comply with the conditions of the sale certificate and hand over physical possession of the entire property sold or in the alternative to direct the respondents to pay back to the petitioner an amount of Rs.5,07,060/- being the proportionate cost of 2.92 cents of properties, out of the total consideration of Rs.82,05,000/- with 18% per interest from 10.12.2008, in case they failed to identity and give physical possession of such land to the petitioner. Ultimately, this Court disposed of the said writ petition directing the Chief Judicial Magistrate Court, Kollam to dispose of MC No.365 of 2016 and the claim for pro-rata refund of the sale consideration was deferred, till a decision is taken by the Chief Judicial Magistrate Court. The petitioner is not aware of the outcome of the proceedings before the Chief Judicial Magistrate Court and respondents 1 and 2 have not taken any earnest steps to get the matter disposed of finally. It is in the said circumstances that the present writ petition has been filed. 6. No counter affidavit is seen filed in this writ petition. 7. I have heard the rival contentions on both sides. 8. In W.P.(C)No.41671 of 2022, the sale certificate was issued as early as on 17.11.2008, which was for an extent of 3 acres and 20 cents of the land and the petitioner has paid an amount of Rs.4,45,50,000/- towards sale consideration. It is an admitted case that out of the 3 acres 20 cents of land, sale deeds were executed in favour of the petitioner, except for 22.645 cents of land. In Ext.P5 counter affidavit filed by the Tahsildar in Con.Case No.422 of 2010, it is specifically stated that the said extent of land, which is to be handed over to the petitioner by the bank is in possession of the neighbouring land owner, SNDP Sagha Yogam, which has well defined boundary with compound wall constructed about 25 years ago, where the Sree Krishnaswami Temple is situated. A report in this regard was also submitted by the Additional Tahsildar. A report in this regard was also submitted by the Additional Tahsildar. The petitioner has a case that, till date the bank has not taken physical possession of the property and since the sale happened as early as in 2008, the petitioner is entitled for refund of the proportionate cost of the property having an extent of 22.645 cents with interest at the rate of 12% per annum from 29.09.2008. 9. In W.P.(C)No.3355 of 2023 also, the sale took place in the year 2008 in respect of 47.250 cents and the petitioner being the successful bidder, has remitted the total bid amount of Rs.82,05,000/- in 2008 itself and it is an admitted case that going by Ext.P2 report of the Village Officer, there is a shortage of 2.94 cents in the property sold to the petitioner. Even though the sale certificate was issued as early as on 2008 and the petitioner has paid the full bid amount to the bank, till date the bank is not able to hand over possession to the petitioner the land having an extent of 2.94 cents and therefore it is contended that the petitioner is entitled to get the proportionate cost of that extent of property, amounting to Rs.5,07,060/- with interest at the rate of 12% per annum from 10.12.2008. 10. The Apex Court in Leelamma Mathew 's case cited Supra has considered an identical case and held in paragraph 5.4 as follows: “5.4 Rule 8 of the 2002 Rules cast a duty on the authorized officer to take all precautions before putting the secured asset to sell. As per sub - rule(5) of Rule 8 before effecting sale of the immovable property (secured assets) the authorised officer shall obtain valuation of the property from an approved valuer and in consultation with the secured creditor and fix the reserve price of the property and may sell the whole or any part of such immovable secured asset. Therefore, when the reserve price was fixed the same was for 54 cents. Therefore, it can be presumed that the Bank was aware that the actual area of the secured asset is less than 54 cents. As per Section 54 of the Transfer of Property Act the seller was bound to disclose any buyer any material defect in the property of which the buyer is not aware and which the buyer could not ordinarily discover. As per Section 54 of the Transfer of Property Act the seller was bound to disclose any buyer any material defect in the property of which the buyer is not aware and which the buyer could not ordinarily discover. Under the circumstances also the submission on behalf of the Bank that the property was put to auction on “as is where is” and “as is what is” condition, thereafter the plaintiff shall not be entitled to compensation of the less area cannot be accepted.” The Apex Court held that Rule 8 of the Security Interest (Enforcement) Rules, 2002 cast a duty on the authorized officer to take all precautions before putting the secured asset to sale. In Leelamma Mathew 's case cited Supra the Apex Court relying on Section 54 of the Transfer of Property Act held that the seller was bound to disclose the buyer any material defect in the property of which the buyer is not aware and which the buyer could not ordinarily discover and rejected the contention of the bank that the property was put to auction on “as is where is” and “as is what is” condition. 11. In Ravi Kumar 's case cited supra, the High Court of Judicature of Hyderabad while considering the question as to whether the bank is to be made liable for returning auction amount to the purchaser as the bank was failed to hand over the physical possession of the auction property held that the bank ought not to have put the subject property to sale without even securing actual physical possession thereof and also held that the bank is bound to refund the amount paid by the petitioners along with interest from the date of deposit by the petitioners till the date of repayment by them. Paragraphs 5 to 13 of the said judgment reads as follows: “5. Rules 8 and 9 of the Security Interest (Enforcement) Rules, 2002 (for brevity, the Rules of 2002') deal with sale of immovable secured assets, time of such sale, issuance of the sale certificate and delivery of possession, etc. Rule 9(6) states that upon confirmation of the sale and compliance with the terms of payment, the authorized officer shall issue a certificate of sale of the immovable property in favour of the purchaser in the form given in Appendix V to the rules. Rule 9(6) states that upon confirmation of the sale and compliance with the terms of payment, the authorized officer shall issue a certificate of sale of the immovable property in favour of the purchaser in the form given in Appendix V to the rules. This form in Appendix V contains a recital that delivery and possession of the scheduled property were handed over to the purchaser. Rule 9(9) states that the authorized officer shall deliver the property to the purchaser free from encumbrances known to the secured creditor on deposit of money. 6. The aforestated statutory scheme demonstrates that the secured creditor has to deliver the possession of the property to the auction purchaser after the sale. In the present case, the sale certificate issued by the bank to the petitioner contains a recital that possession of the subject property was delivered to the petitioner but, obviously, it was not a factually correct statement. 7. In this regard, it may be noted that failure to deliver to the auction purchaser the possession of the property sold vitiates the sale. In RAMKRIPAL RAGHUPATI SINGH Vs. UNION OF INDIA, MANU/MH/3480/2016, a Division Bench of the Bombay High Court was also dealing with a case arising under the SARFAESI Act. The auction purchaser of the property brought to sale by the bank under the provisions thereof was not delivered possession, owing to the mischief played by the borrower. On facts, the Bombay High Court condemned the inaction on the part of the bank in taking steps to deliver peaceful possession of the property to the auction purchaser and adjourned the matter to enable the bank to take effective steps by the next date of hearing, failing which the Court proposed to pass orders directing refund of the entire sale consideration along with interest and costs. 8. In ATISHAYA CONSTRUCTION PVT. LTD. Vs. CENTRAL BANK OF INDIA, MANU/GJ/1517/2014, the Gujarat High Court was dealing with the claim of an auction purchaser for refund of the sale consideration paid by it as the bank which had sold the property was unable to deliver possession thereof. This was also a case arising under the SARFAESI Act. Therein, the bank had resorted to sale of the property without even securing the possession thereof, as in the present case, and had also failed to mention this fact in the sale notice. This was also a case arising under the SARFAESI Act. Therein, the bank had resorted to sale of the property without even securing the possession thereof, as in the present case, and had also failed to mention this fact in the sale notice. It was only after receipt of the full sale consideration from the auction purchaser that the bank disclosed that an application for taking possession of the property was still pending with the Chief Metropolitan Magistrate concerned. On behalf of the bank, it was contended that symbolic possession of the property had been taken over and the offer of the auction purchaser was accepted on an 'as is where is and 'as is what is basis. It was therefore argued that the auction purchaser had acquiesced with the fact that physical possession of the property would be handed over to it only after the application pending before the Chief Metropolitan Magistrate was decided. Referring to Rule 9 of the Rules of 2002, the Court observed that the certificate of sale of immovable property in favour of the purchaser was to be issued in the form given in Appendix-V to the Rules of 2002 and perusal of the same reflects that the authorized officer, issuing the said certificate, is required to deliver possession of the scheduled property. It was therefore concluded that once the sale was confirmed after payment was made in full, the bank must issue the sale certificate and deliver possession of the property in question to the purchaser. As in that case, possession was not handed over despite the payment being made in full, the learned Judge held that the statutory provision had not been complied with and directed refund of the sale consideration. The case on hand stands on an identical footing on facts. 9. In ROYAL STAR TRADING COMPANY VS.. IFCI LIMITED, MANU/DE/2267/2014, Delhi High Court was also dealing with a case arising under the SARFAESI Act, wherein the auction purchaser prayed for refund of the sale consideration paid by him along with interest as he was not delivered possession of the property sold. The immovable property therein, along with plant and machinery in the factory, were covered by a mortgage/ hypothecation and were accordingly put to sale on an 'as is where is or whatever there is' basis. The immovable property therein, along with plant and machinery in the factory, were covered by a mortgage/ hypothecation and were accordingly put to sale on an 'as is where is or whatever there is' basis. The highest bidder, the petitioner therein, called upon the financial institution to issue the sale certificate and hand over possession. A sale certificate was issued under Rule 9(6) and Rule 7(2) of the Rules of 2002 within two weeks from the date of payment of the consideration, even before delivery of possession. When the petitioner went to take possession of the property sold, it found that certain valuable components of the plant and machinery had been removed, considerably reducing its value. The petitioner therefore declined to take possession of the said assets and called upon the financial institution to refund 50% of the purchase price on account of fall in the value of the assets sold or in the alternate, refund the entire consideration along with interest. Faced with this situation, the learned Judge referred to Rule 7(2) of the Rules of 2002, which provides that the authorized officer shall issue a certificate of sale in the form prescribed in Appendix-III to the Rules specifying the movable secured assets sold and observed that transfer of title in the said movable assets would take place on the sale becoming absolute, i.e., upon issuance of the sale certificate under Rule 7(2) of the Rules of 2002. The form of the sale certificate prescribed in Appendix-III to the Rules of 2002 clearly indicated that handing over possession was an inseverable part of the transaction. As in that case, the sale certificate had been issued even prior to the delivery of possession, the Court opined that the same was not in compliance with the Rules of 2002. The argument of the financial institution that as the assets had been offered for sale on an 'as is where is or whatever there is' basis, it would not be liable for the loss of valuable components thereafter, was rejected on the ground that Clause 2.4 of the terms and conditions provided for inspection of the assets by interested parties and therefore, Clause 2.6 would not absolve the financial institution from delivering the assets that were inspected by the petitioner pursuant thereto. The writ petition was allowed directing refund of the amount paid by the petitioner, duly cancelling the sale certificate issued by the financial institution. 10. Applying the same principle, it is not open to the bank to now claim that the petitioners should accept the rest of the building excluding the western portion on the ground floor, As the bank put the entire property to sale, it is duty bound to deliver the whole of the property sold and not just a part thereof. Further, the above case law makes it clear that the secured creditor/bank cannot seek to shield itself by saying that the property was sold on an 'as is where is' and 'as is what is basis and claim Immunity. It is not open to a reputed bank, such as the UCO Bank, to baldly state that it obtained the subject property as security for the loan sanctioned by it to a borrower and that once it proposed to sell it on an 'as is where is' and 'as is what is' basis, it is freed from all responsibility. 11. The duty cast upon the secured creditor to deliver the possession of the property sold under the SARFAESI Act is clear and specific, as elaborated in the Rules of 2002 and, in consequence, under the Transfer of Property Act, 1882. Notably, in HARYANA FINANCIAL CORPORATION Vs. RAJESH GUPTA, MANU/SC/1892/2009, the Supreme Court negatived the contention of the seller that when a secured asset is sold on an 'as is where is' basis, the purchaser cannot thereafter be permitted to wriggle out of a confirmed bid on the ground that there is a material defect in the property sold. Further, the concept of 'as is where is' and 'as is what is' basis has lost its significance in the current commercial milieu and the principle of caveat venditor is more on the rise as compared to the outdated principle of caveat emptor. The Transfer of Property Act, 1882, requires the seller to own up to certain duties and it is not open to a responsible bank to take an innocent auction purchaser for a ride by selling to him a property without possession and thereafter claim protection under the principles of 'buyer beware'. 12. The Transfer of Property Act, 1882, requires the seller to own up to certain duties and it is not open to a responsible bank to take an innocent auction purchaser for a ride by selling to him a property without possession and thereafter claim protection under the principles of 'buyer beware'. 12. On the above analysis, this Court finds that the bank ought not to have put the subject property to sale without even securing actual physical possession thereof. Further, the allegation of the petitioners that the bank did not disclose this fact in the sale notice remains unrebutted. Despite the sale having been held as long back as on 27.05.2016, the bank is not in a position even as on date to deliver actual physical possession of the property sold. It is not open to the bank to harass and victimize innocent auction purchasers by making them part with their valuable monies with no consequential return therefor. 13. The writ petition is accordingly allowed. The bank shall refund the sum of Rs. 1,02,31,000/- paid by the petitioners along with interest at 18% per annum, from the date of deposit by the petitioners till the date of repayment to them, within three weeks from today. This rate of interest is adopted by taking a cue from MATHEW VARGHESE Vs. M. AMRITHA KUMAR, MANU/SC/0114/2014: (2014) 5 SCC 610 , as the bank is itse responsible for this imbroglio and the petitioners are entitled to be reimbursed with a higher rate of interest for the inconvenience and loss suffered by them.” 12. After considering the rival contentions of both the parties and in the light of the judgments cited Supra, and taking into consideration the fact that the sale took place as early as in 2008 and the whole of the bid amount was remitted by the petitioners in 2008 itself and even after this distance of time the bank could not hand over physical possession and execute sale deed in respect of 22.645 cents of property to the petitioner in W.P.(C)No.41671 of 2022 and 2.92 cents of property to the petitioner in W.P. (C)No.3355 of 2023, I am of the considered opinion that the respondent bank is liable to return the petitioners the proportionate cost of their property with interest. 13. 13. Accordingly, W.P.(C)No.4167 of 2022 is disposed of, with direction to respondents 1 and 2 to pay the petitioner the proportionate cost of that property having an extent of 22.645 cents, i.e. Rs.31,36,117/- with interest at the rate of 9% per annum from 29.09.2008, within a period of two months from the date of receipt of a copy of this judgment. W.P.(C)No.3355 of 2023 is disposed of directing respondents 1 and 2 to pay the petitioner proportionate cost of 2.92 cents of property, ie., Rs.5,07,060/-, with 9% per interest from 10.12.2008, within a period of two months from the date of receipt of a copy of this judgment.