AZAD SINGH SOLANKI Vs. PUNJAB NATIONAL BANK

JUDGEMENT

(1.) The petition (i) impugns the communication dated 26 th May, 2014 of the respondent Punjab National Bank (Bank) to the petitioner to the effect that upon the failure of the petitioner to pay balance 75% of the bid amount within the prescribed time, the amount deposited by the petitioner till then with the respondent Bank shall stand forfeited; and, (ii) seeks mandamus to the respondent Bank to refund the earnest amount of Rs.40,20,000/ - to the petitioner along with interest.

(2.) The petition came up before this Court first on 28 th July, 2014 when the counsel for the respondent Bank appearing on advance notice was asked to obtain instructions whether the respondent Bank was agreeable to refund the amount forfeited. The counsel for the respondent Bank on 19th November, 2014 informed that the respondent Bank was not so agreeable. Notice of the petition was issued and pleadings have been completed. On 18th January, 2016 when the petition came up for hearing, attention of the senior counsel for the petitioner was invited to the order dated 18th March, 2015 of the Supreme Court in Civil Appeal No.3053/2015 titled National Highways Authority of India Vs. MEIL - EDB LLC (JV) quoted by me in CCPL Developers Pvt. Ltd. Vs. GAIL (India) Ltd. and on request of the counsels the matter was adjourned to 11th February, 2016 when after hearing arguments judgment was reserved.

(3.) It is the case of the petitioner (i) that in pursuance to the notice got published by the respondent Bank in the newspapers on 27th March, 2014 of e - auction of property no.E -131 ad measuring 100 sq. yards in Khasra No.174 min situated in the abadi deh of Village Mohammadpur, New Delhi, the petitioner submitted its bid in the sum of Rs.1,20,00,000/ - and which during e -auction was enhanced to Rs.1,60,80,000/ - and being the highest was accepted by the respondent Bank on 2nd May, 2014; (ii) that in accordance with the terms and conditions of e -auction the petitioner deposited Rs.12,00,000/ - with the respondent Bank on 28th April, 2014 and Rs.28,20,000/ - on 30th April, 2014, being 25% of the bid amount; (iii) the petitioner was required to deposit remaining 75% of the bid amount within the stipulated period of 15 days; (iv) that the petitioner though had made all arrangements for payment of the balance 75% of the bid amount but learnt that the aforesaid property was subject matter of multiple litigations and a disputed property and that the Debt Recovery Tribunal (DRT) -I, Chandigarh in SA No.71/2012 had restrained the respondent Bank from putting the subject property to e -auction; (v) the petitioner addressed a communication dated 17th May, 2014 to the respondent Bank seeking clarification and to which a confusing and evasive reply dated 17th May, 2014 was given by the respondent Bank but denying that it had been restrained from auctioning the property and pleading that the property was auctioned on "as is where is basis" in terms of the order dated 23 rd April, 2014 of the Chief Metropolitan Magistrate; (vi) the petitioner addressed yet another communication dated 20th May, 2014 to the respondent Bank and to which a response dated 22nd May, 2014 was sent by the respondent Bank; (vii) yet another letter dated 23rd May, 2014 also from the petitioner elicited the impugned communication dated 26th May, 2014; (viii) that the auction aforesaid by the respondent Bank is in violation of the order of the DRT -I, Chandigarh in SA No.71/2012 copy whereof is purported to be Annexure P -17 to the petition (but neither is there any P -17 to the petition nor is it shown in the index to the petition); (ix) that owing to the order dated 13th July, 2012 of this Court in W.P.(C) No.3600/2014 also, the respondent Bank was not entitled to auction the property; (x) that the mortgage itself of the subject property with the respondent Bank was under challenge; (xi) that sale of the property on "as is where is basis" does not entitle the respondent Bank to sell a property without even having a marketable and clean title thereto; (xii) that the property, in the sale notice was wrongly described as commercial; and, (xiii) that the auction aforesaid is in violation of the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act).