RAMAJEYAM LORRY AGENCY Vs. V B GIRI

JUDGEMENT

(1.) IN this appeal, the appellant has challenged the order dated 24.4.1998 passed on Application Nos. 1457 and 1464 of 1998 in C.S. No. 201 of 1981, by the learned single Judge on the Original Civil Jurisdiction of this Court, accepting the highest offer and directing the issue of sale certificate in favour of respondent No. 14, in respect of the property, viz. , House No. 1/110, Third Block, Java Nagar, Bangalore-11, inter alia contending that the appellant's offer was the highest bid amount and the auction suffers from material mis-directions and illegality, and that the learned Judge failed to take note of the bona fides of the appellant and equities between the parties. Hence, in substance, he is seeking for setting aside the auction sale conducted and issuance of sale certificate in favour of J.P. Balasubramaniam and three others.

(2.) THE respondents 1 to 13 who are decree-holders have filed an application bearing No. 3124 of 1993, seeking for a directing to appoint an Advocate Commissioner to sell two items of properties, which includesthe one that was bid by the appellant herein. THE sale proclamation was issued and conditions of sale were enumerated in the sale proclamation. Though the sale was fixed on 16.3.1997, auction was postponed and parties were directed to submit their offers. On an earlier occasion, by order dated 23.3.1998, the Commissioner was directed to accept the highest offer of Rs. 67 lakhs given by Mr. Sathish D. Shah of Bangalore, with a direction that 25% of the sale consideration to be deposited by 27.3.1998 in the name of the Registrar and the entire sale consideration to be deposited within eight weeks. THE intending purchaser deposited the entire amount within the time given by way of seven demand drafts, drawn on Centurian Bank. THEn, few more persons came forward offering higher prices. THE appellant is one of those who offered Rs. 85 lakhs, but sought for time for payment. Respondent No. 14 herein and three others offered Rs. 71 lakhs by way of five demand drafts on that day itself. Since the offer made by Respondent No. 14 was higher, the same was accepted and Respondent No. 14 and three others were directed to file the draft sale certificate, under Order 38, Rule 11 of the Original Side Rules, within three days. THE amount deposited by Mr. Satish D. Shah was ordered to be returned with Rs. 50,000/- as compensation, by 27.4.1998 and the amount deposited by Respondent No. 14 was ordered to be kept in deposit in the name of the Registrar, to the credit of the suit.

(3.) THE same view was taken in Rukminibai v. Gajadhar (AIR 1955 Nagpur 185), wherein it has been held that the provision of 0.21, R. 89(1), when is in the nature of indulgence to the judgment-debtor, must be strictly complied with. In Raman v. Authrose (AIR 1952 Travancore-Cochin 321), it has been held that the responsibility for paying the correct amount within the time lies with the person who seeks to set aside the sale, following Kalidasa Chetty v. Dodda Siddha Chetty (AIR 1947 Madras 56 = (1946) 59 L.W. 409). So also, in Amritlal Narsilal v. Sadasiv (AIR (31) 1944 Bombay 232), the High Court of Bombay held that the deposit under Rule 89, Order 21 is intended not merely for the benefit of the auction-purchaser and decree-holder, but also to maintain solemnity of court sales. Equitable principles cannot over-ride imperative provisions of Rule 89. Rule 89(1), Order 21 is being intended to guard the interests of the decree-holder and to ensure the judgment-debtor an opportunity to recover his property.