ASHOK KUMAR KEDIA Vs. BALAJI BUILDERS

JUDGEMENT

(1.) These petitioners are filed to set aside the Order dated 20-4-1989 in O.S. No.87 of 1989 and to implead the petitioner herein as second respondent in the appeal. O.S. No.87 of 1989 came to be filed against the order in Application No.1385 of 1989 in Application No.5578 of 1988 in C.S. No.34 of 1983. It was in Application No.5578 of 1988, the highest offer made by the appellant at Rs. 23,00,000/- was accepted, and it was directed to deposit the amount with the plaintiff Bank on or before 10-3-1989, and that the plaintiff could appropriated Rupees 15,00,000/ - as per order dated 26-7-1988. The remuneration of the auctioneer was fixed at Rs. 50,000/-. Thereafter the appellant filed Application No.1385 of 1989 asking for extension of time till 5-4-1989 for paying the balance amount stating therein the reasons which had necessitated the request for extension of time. This was rejected by a cryptic order "no grounds to extend time are made out. Dismissed." It is against this Order dated 14-3-1989, O.S.A. No.87 of 1989 was filed and it was allowed for reasons stated therein by taking note of the fact that amounts had since been deposited. It is thereafter these petitions are filed stating that though the petitioner herein in ranked as fifth defendant in the suit, without impleading the defendants, the application for extension of time had been filed, and in the appeal also, they were not impleaded, and that presently there is an offer for Rs. 23,50,000/- from one Priya Exports (P.) Ltd., and if the Order in the C.S.A. is set aside, it could enable defendants to get a better price and reduce the liability to the plaintiff Bank.

(2.) Mr. Vedantham Srinivasan, learned counsel for the petitioner, submits that, in Application No.1385 of 1989, and in the appeal, defendants ought to have been impleaded as parties; but plaintiff would point out that the highest offer made by the appellant was accepted by agreement arrived at between the parties; and therefore, non-impleadment cannot be complained of. In the order of the learned Judge dated 3-3-1989, it is stated as follows:-

(3.) Therefore, having given consent for the offer made by the appellant, it is not now open to the petitioner to claim that there is an offer from Priya Exports (P.) Ltd., which would enable defendants to get another Rupees 50,000/-. Regarding the time within which the amount has to be deposited, it was the learned Judge who fixed the date, and it was not one arrived at by consent of parties. Even so, as held in Periyakkal v. Dakshyani, AIR 1983 SC 428, the Court has the jurisdiction under S. 148, C.P.C. to grant extension of time, provided valid grounds are made out. The petition filed by appellant had referred to the amounts set apart by it having been utilised as advance tax, and that on the order passed, it had remitted Rs. 4,00,000/ - on 10-3-1989 and will be remitting another sum of Rupees 2,00,000/- on 13-3-1989 and because of the financial year ending, the entire amount could not be made ready within the short notice, and the balance will be remitted by 15-4-1989 and it undertakes to pay interest at 12% on the balance of the amount till date of payment. These reasons, were found to be acceptable and reasonable and it resulted in the appeal being allowed, when by then the appellant had deposited the amount with the plaintiff Bank. Having agreed for the price for which the property could be sold, it is not now open to the petitioner to claim that still higher amount could be realised. There is no affidavit filed by Priya Exports (P.) Ltd. This is not even a case wherein the entire amount offered is deposited into Court and asking for setting aside the sale. This is not a case wherein, as some times happened, double the amount is offered, and that the Court had been completely, misguided in assessing the market value by auction. In any event, there is no need to look at the present offer made from any of these perspectives, because the defendants had agreed to accept the offer made by the appellant.