DEEPAK KUMAR JAIN SON OF SHRI SURENDRA KUMAR JAIN Vs. KRISHAN KUMAR SHARMA SON OF LATE SHRI GORDHAN LAL

JUDGEMENT

(1.) judgment and decree in the suit for partition laid by the respondent-plaintiff (hereinafter 'plaintiff') Krishan Kumar Sharma was passed by the Additional Senior Civil Judge (Senior Judge) No.4, Kota. A first regular appeal there against was dismissed as also the Second Appeal on 25.05.2015. It appears that as the property in issue belonging to the late Goverdhan Lal father of the plaintiff the defendants of which partition had been decreed could not be conveniently divided between the plaintiff and the defendants, it was agreed that in execution the property be sold off and the consideration received be divided between the parties in the suit in terms of their entitlement i.e. ?th each.

(2.) At the court auction which followed for the suit property being House No.49, Shastri Nagar, Dadabari, Kota the petitioner Deepak Kumar Jain's bid for a sum of Rs. 1,23,000/- was the highest. As per the terms and conditions of the auction, the highest bidder deposited 25% of the bid amount-aggregating to Rs. 30,75,000/- with the learned Executing Court on 21.04.2017. The remainder ?th bid amount had to be deposited in terms of the terms and conditions of the auction within 15 days from the date of auction and in the event the 15th day being a holiday, the next date following. The petitioner as the highest bidder then moved an application on 22.04.2017 before the Trial Court praying that as he intended to avail a bank loan for payment of the remainder ? bid amount, photocopies of documents pertaining to the house auctioned such as letter of allotment, letter of possession, registration , permission to construct and NOC in proof of liabilities in respect of water and electric supplies being fully discharged be furnished. Vide v dated 12.05.2017, even subsequent to 15 days lapsing from the date of auction within which the remainder ?th bid amount was to be paid under the notified terms and conditions of the auction the Trial Court, in its wisdom proceeded to direct that the photocopies of the documents set out in the petitioner's application be submitted including the photocopy of the istered sale deed of the property auctioned. Certain documents pursuant to the court's order dated 12.05.2017 were submitted in Court by the plaintiff in the suit. Another application then came to be filed by the petitioner before the Trial Court stating that photocopies of all the documents required had not been received such as of the letter of allotment and possession and it was prayed that they be directed to furnished. It has been submitted that the trial court vide its order dated 12.05.2017 required the said photocopies be produced or else an affidavit be filed by the plaintiff that he was not in possession of the said documents. It appears photocopy of the letter of allotment and possession were not furnished nor the affidavit in regard to their not being in possession was filed. Thence the trial court in its order dated 10.10.2017 noticed the delay in deposit of ?th remainder bid amount and recording that a photocopy of the registered sale deed of the house auctioned had been furnished to the petitioner-auction purchaser the remainder of ?th bid amount be deposited in court by 17.11.2017 failing which the auction dated 18.04.2017 would be liable to be cancelled and consequences follow. Aggrieved the petitioner-auction purchaser has approached this Court.

(3.) Mr. D.K. Garg appearing for the petitioner has submitted that it was incumbent upon the Trial Court to facilitate supply of photocopies of the letter of allotment and letter of possession of the property which was auctioned on 18.04.2017 for the inspection of the auction purchaser. For this Mr. D.K. Garg placed reliance on section 55(i) (b) of the Transfer of Property Act, 1882 which provides that in the absence of a contract to the contrary, the seller is bound to produce to the buyer on his request for examination all documents of title relating to the property which are in the seller's possession or power. Mr. D.K. Garg submitted that without compliance with the aforesaid statutory obligation the sale transaction even if it be based on an auction by the Court cannot be proceeded with. It was submitted that in this view of the matter the trial court ought to have of necessity ensured that the photocopies of the documents i.e. the letter of allotment and letter of possession demanded by the petitioner were furnished to him to avail the bank loan and pay remainder ?th of the bid amount. Alternatively, he submitted the auction 18.04.2017 should have been cancelled and 25% of the bid amount i.e. Rs. 30,75,000/- deposited by the petitioner refunded to him. Mr. D.K. Garg submitted that the trial court failed to exercise its jurisdiction in failing to so do. It was submitted that this Court therefore direct that photocopies of the letter of allotment issued by the RHB and letter of possession qua the property auctioned be furnished to the petitioner as such documents are necessary to facilitate a loan from the SBI for payment of the remainder ?th amount. As a last desperate argument Mr. D.K Garg submitted that the petitioner be allowed additional time to pay the remainder ?th bid amount. I find no force in the contentions of Mr. D.K. Garg. They are absolutely untenable. The terms and conditions of the auction of the property in issue notified by the Court on 18.04.2017 were quite categorical and compliant with Order 21, Rule 66 CPC. The auction purchaser was required to deposit ?th of the total bid amount within 24 hours of the auction being held and remainder ?th within 15 days thereof and in the event the 15 day being a holiday, on the date of following with consequences of failure inexorably following.