UCO BANK Vs. ARIF HUSSAIN

JUDGEMENT

(1.) This is an application under Sec. 115 of the Code of Civil Procedure, 1908 (for short, "the Code") challenging the order dtd. 28/4/2023 passed by the learned Civil Judge No.2, Kamrup (M) at Guwahati in petition No.1703/2022 arising out of the Title Suit No.177/2022. By the said impugned order, the application which was filed by the petitioners under Order VII Rule 11 of the Code was rejected.

(2.) For deciding as to whether the said rejection of the application vide the impugned order dtd. 28/4/2023 can be interfered with in the instant proceedings under Sec. 115 of the Code, this Court finds it relevant to take note of the statements made in the plaint.

(3.) The respondent No.1 herein as plaintiff had filed Title Suit No.177/2022. The facts as stated in the plaint are that the defendant No.1 had issued an e-auction sale notice for sale of four numbers of immovable properties under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act , 2002 (for short, "the Act of 2002") read with proviso to Rule 8(6) of the Security Interest (Enforcement) Rules, 2002 (for short, "the Rules of 2002) on 23/12/2020 by publishing the said in the newspaper. The plaintiff upon perusal of the said advertisement participated in the online question bid in respect to one of the properties to be auctioned which has been specifically described in Schedule-A to the plaint. Upon participation of the plaintiff, he became the highest bidder for bidding an amount of Rs.75,60,000.00 for the property described in Schedule-A. Under such circumstances, the plaintiff received an e-mail on 30/1/2021 at 7:05 PM with the titled as 'Sale Intimation Letter' confirming that the quoted amount of Rs.75,60,000.00 for the property described in Schedule-A and also stating therein that the status of the lot is Subject to Approved (STA). Subsequent thereto, another e-mail was received by the plaintiff at 7:32 PM from the Authorized Officer of defendant No.1 who is the defendant No.2 in the suit which contained details regarding the e-auction and the acceptance of the same as the highest bidder, and accordingly, declared the plaintiff as the "H1 bidder for the said property". The plaintiff thereupon was required to deposit 25% of the bid amount, which came to Rs.18,90,000.00. Apart from that the plaintiff was also directed by a message received from the defendants No.1 and 2, to deposit the remaining 75% of the entire bid amount within the next 15 days i.e. on or before the 14/2/2021 in the account provided by the defendants. It was also mentioned in the message as stated in the plaint that in the circumstance, the plaintiff failed to deposit the said amount, it would result in the cancellation of the sale and any amount deposited relating to the bid shall be considered to be forfeited. The plaintiff thereupon deposited Rs.13,78,000.00 on 1/2/2021 and on 12/2/2021 deposited the remaining amount of Rs.56,70,000.00, and therefore, in total had deposited Rs.75,60,000.00 on 12/2/2021. The confirmation of the payments 1/2/2021 and 12/2/2021 was communicated vide a letter dtd. 17/2/2021 which was sent by the defendant No.1. Thereupon, the plaintiff was asked on 2/9/2021 to be present on the spot of the mortgaged property i.e. Schedule-A property on 4/9/2021, i.e. the date on which the learned Magistrate would bestow the physical possession of the mortgaged property to the plaintiff. However, on that date, the plaintiff could not visit on account of the health condition of his niece. Be that as it may, a letter was written to the plaintiff dtd. 6/9/2021 by the defendant No. 1 & 2 stating inter-alia that the Bank on 4/9/2021, in the absence of the plaintiff along with the learned Magistrate and other police personnel reached at the spot for taking physical possession of the mortgaged property. However as the guarantor one Shri Dharnya Ram Koch had offered a compromise proposal for Rs.1,05,00,000.00 on the spot for settlement of the NPA of the proforma defendant No.3 and also deposited the said sum in the 'No Lien Account' alleging inter-alla that there was mass agitation against physical possession as the guarantor wanted to settle the loan account, so the learned Magistrate refused to take physical possession of the mortgaged property taking into consideration the apprehended breach of peace and tranquility and law and order situation as claimed by the Bank. It is therefore the case of the plaintiff that the plaintiff had duly paid the amount and defendant Bank had also accepted the said amount and the defendant Bank cannot now resile from the proceedings of the e-auction. The plaintiff therefore claimed that the plaintiff was entitled to damages. Accordingly, the suit was filed seeking declaration to the effect that the cancelling of the auction sale by the defendant bank was highly illegal and without just cause for which the plaintiff was entitled to compensation as claimed for in the suit.