RAM KARAN GUPTA Vs. DAYANAND GUPTA

JUDGEMENT

(1.) These are two petitions which have been filed by the petitioner Ram Karan Gupta.

(2.) On behalf of the petitioner vehement arguments have been addressed challenging the auction whereby the Court auctioneer had accepted 25% of the bid amount; his contention is that there is a mandate under Order 21 Rules 84 & 85 of the Code whereby 25% of the bid amount has to be deposited immediately i.e. on the fall of the hammer; attention has been drawn to the pleadings before the Executing Court; contention being that the Auction Purchaser in his reply in para 24 (page 107 of the paper book of Execution First Appeal) has clearly admitted that 25% the bid amount i.e. a sum of Rs.2.40 crores had been deposited on 11.10.2010; contention being that the mandate under Order 21 Rules 84 & 85 of the Code has not been complied with and since the bid amount had not been deposited on 08.10.2010, the entire sale transaction is void and is liable to be set aside. To support his submission, learned counsel for the petitioner has placed reliance upon the judgment of the Apex Court Manilal Mahonlal Shah and Others Vs. Sardar Sayed Ahmed Sayed Mahmad & another, 1954 AIR(SC) 349 as also another judgment of the Apex Court Balram Vs. Ilam Singh & Others, 1996 AIR(SC) 2781; submission being reiterated that the mandate of Order 21 Rule 84 of the Code specifically postulates that 25% of the purchase money in an auction bid has to be paid immediately on the person being declared as a purchaser and the balance 75% has to be paid within 15 days of the sale; both the provisions are independent and mandatory and upon non-compliance of these provisions, there is no sale at all. Attention has also been drawn to the reply filed by the Court auctioneer in the pending execution proceedings wherein the Court auctioneer has stated that 25% of the bid amount comprising of Rs.2.40 crores had been paid by the auction purchaser on the same day i.e. 08.10.2012; submission being that this version of the court auctioneer is clearly in conflict with the version of the auction purchaser who has admitted that this amount has been deposited on 11.10.2010; mandate of Order 21 Rules 84 & 85 of the Code not having been complied with, sale is void. Further objection of the petitioner that since he is a member of the family, he be permitted to get the sale deed executed in his favour; contention being that in family matters, the member of the family should be given a preemptive right and by accepting this proposal of the petitioner, no prejudice will be suffered as the full auction amount which was in the sum of Rs.9.60 crores is ready to be paid by the petitioner; his contention is that in fact an application to the said effect had also been filed by him before the Executing Court but this request has not been acceded to by the impugned order.

(3.) Arguments have been countered. It is pointed out that 25% of the sale figure comprising of Rs.2.40 crores had been paid by the auction purchaser on 08.10.2010 itself and the record speaks for itself.