GURPREET SINGH AHLUWALIA Vs. DISTRICT MAGISTRATE DEHRADUN

JUDGEMENT

(1.) Properties of the borrower were taken into possession by the Bank by exercising power under Subsection (4) of Section 13 of the Securitization & Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; notices for sale of the properties, in question, were published in various newspapers, copy of which is annexure No. 1 to the writ petition, calling the bids from the interested purchasers; petitioner submitted his bid of Rs. 32 lacs which was found to be highest; therefore, petitioner's bid was accepted to sell the properties, in question, in favour of the petitioner; petitioner admittedly deposited Rs. 16,50,200/- out of total consideration of Rs. 32 lacs with the Bank and requested the Bank to get the properties auctioned demarcated so that sale deed may be executed in favour of the petitioner after receiving balance consideration from the petitioner and physical possession thereof could be handed over to the petitioner; Bank has made several requests to the Collector, Dehradun to demarcate the properties auctioned and last letter was written on 03.03.2008, annexure No. 6 to the writ petition, requesting the Collector to demarcate the plot auctioned so that Bank may receive the balance of the consideration from the 2 bidder and may execute the sale deed in favour of the highest bidder, i.e. petitioner; no demarcation was carried out by the Revenue Authorities despite several requests made by the petitioner and the Bank; instead of pursuing the demarcation proceedings with the Revenue Authorities, Bank issued letter dated 23.04.2008, annexure No. 7 to the writ petition, calling the petitioner to make payment of balance amount out of Rs. 32 lacs on or before 30.04.2008, failing which, amount already paid by the petitioner, would stand forfeited; having received the letter dated 23.04.2008, petitioner sent reply / letter, annexure No.8 to the writ petition, to the bank requesting the Bank to get the properties demarcated at the earliest so that sale deed may be executed in favour of the petitioner having received balance amount from the petitioner, however, nothing was done by the Bank; feeling aggrieved, petitioner has preferred present writ petition.

(2.) It is contended in the counter affidavit that as per sale notice, bids were invited on "as is whereas basis", therefore, it was not the duty of the Bank to get the property demarcated before the execution of the sale deed and it was the duty of the bidder to satisfy himself about the identity of the property before submitting the bids.

(3.) In my considered opinion, the condition "as is whereas basis" does not mean that property may not be in existence at all. It only means whatever the condition of the property on the spot is same shall be sold in the same condition. However, if property is not at all in existence on the spot or is not identifiable / can be located on the spot, then neither sale deed can be 3 executed of the non existing property nor purchaser can be handed over possession thereof. Not only this, Bank itself has made several requests to the Collector to demarcate the property auctioned, therefore, Bank ought to have persuaded the Collector to undertake the demarcation proceedings at the earliest. Petitioner should not be allowed to suffer adversely for the lapses on the part of the Revenue Authorities or the Bank. On the other hand, Bank should also not loose interest on the outstanding amount to be paid by the petitioner. Present petition was preferred in the year 2008 and vide order dated 23.10.2008 Bank was directed not to create any third party interest meanwhile.