S. KRISHAN SHARMA Vs. UNITED BANK OF INDIA

JUDGEMENT

(1.) THIS appeal impugns the order dated 24.8.2012 of DRT -I, Delhi passed on I.A. No. 647/2012 filed by respondent Nos. 2 and 3 in S.A. No. 88/2012 whereby the S.A. applicants have been directed to pay a sum equal to 5% of the purchase money to the auction purchaser, the respondent Nos. 2 and 3 herein, as compensation in terms of Rule 89(a) of Order 21 CPC. The facts and circumstances of the case indicate that in SA No. 65/2010 filed by the appellants and others against the Bank, the Tribunal below had restrained the Bank from proceeding against the secured asset provided the S.A. applicants pay Rs. 40 lacs in a month. In the appeal (No. 361/2010) filed by the appellants against the said order, though this Tribunal had reduced the deposit to Rs. 24 lacs, but no deposit was made by the appellants. The aforesaid SA was dismissed by the DRT vide order dated 10.12.2010 and the appeal (No. 473/2010) filed against the dismissal of SA was also dismissed by this Tribunal for non -payment of the directed amount.

(2.) THE Receiver, appointed by the ACMM Delhi took the actual physical possession of the property in question after the DRT declined to grant interim relief in S.A. No. 88/2012 filed by the appellants and the Bank put it for auction sale. The respondent Nos. 2 and 3 made a bid of Rs. 6,25,50,000/ - at the auction, which was the highest, but the sale was not confirmed due to a restraint order of the DRT. The appellants approached the DRT for redemption of the mortgage under Section 13(8) of the SARFAESI Act and the Tribunal below, vide order dated 3.8.2012, directed them to deposit Rs. 1.65 crores within one week, which was deposited with the Bank on 11.8.2012. The appellants thereafter filed an application (I.A. No. 680/2012) for setting aside the auction sale on the ground that with the deposit of Rs. 1.65 crores, entire principal amount due on them stood paid and the Tribunal was to adjudicate upon the interest only. Respondent Nos. 2 and 3, however, filed an application (No. 647/2012) for confirmation of the sale in their favour on the ground that Rs. 1.65 crores were not deposited within the given time in terms of order dated 3.8.2012. The learned Tribunal below disposed of both the applications by the order dated 24.8.2012 and while allowing the application IA 680/2012 and setting aside the auction sale directed the Bank to return the sale consideration to the auction purchasers with interest and while disposing of the application IA 647/2010 directed the appellants to pay a sum equal to 5% of the purchase money to the auction purchasers as compensation in terms of Rule 89(a) of Order 21, CPC. Feeling aggrieved with that direction, the borrower/mortgagors have filed this appeal.

(3.) HIS next argument was that under Rule 89(a) of Order 21, CPC, 5% of the purchase money can be ordered to be paid where the sale of the property in execution of a decree is sought to be set aside, whereas in the instant case, the sale in favour of the respondent Nos. 2 and 3 was not completed due to the stay of its confirmation by the Tribunal below and as such they were not entitled to receive any amount in terms of the said provision. It was also argued by Mr. Bhandari that the appellants had not sought the setting aside of the sale of the property in question in terms of Order 21 Rule 89(a) CPC, but had sought the redemption of mortgage in accordance with Section 13(8) of the SARFAESI Act and as such the order impugned for payment of 5% of purchase money to the auction purchaser in terms of Order 21 Rule 89(a), CPC is bad in law.