JUDGMENT
Page 0763
1. This Writ Appeal is filed by the purchaser questioning the correctness of the order passed by the learned Single Judge in [CASE NUMBER] dated 12.1.2006 in quashing the order of confirmation of sale of the property in question and sale certificate dated 11.8.2005 issued in favour of appellant, urging various grounds:
2. The learned Sr. Counsel Mr. [ENTITY] appealing on behalf of the appellant submits that the first respondent herein has not availed alternative remedy provided to him under [SECTION] of the [ACT] (in short 'the Act') as the order that would be passed under [SECTION] of the Act is an order passed under [SECTION] of the Act, an appeal under [SECTION] of the Act is provided i.e. to other authority is maintainable. Therefore, the learned Single Judge ought not have exercised his extra-ordinary jurisdiction to quash the impugned order of confirmation of sale and certificate of sale. The learned Sr. Counsel in support of the above legal contention has relied upon the Division Bench decision of this Court reported in [PRECEDENT]. Hence, he had urged that the order passed by the learned Single Judge is liable to be set aside.
3. The second ground of attack of the order passed by the learned Single Judge is that the finding recorded by him in the impugned order at para 7 without specifying as to which provision of the Act and the Rules are violated by respondents 2, 3 and 5 in not conducting the sale of the properly of Page 0764 respondent No. 1 in conformity with the provisions of the Act and the Rules, that by itself does not amount to violation of the statutory provision of [SECTION] of the [ACT] to quash the confirmation order and the sale certificate issued by the second respondent in favour of the appellant.
4. The third ground urged by the learned Sr. Counsel is that, the first respondent had not come forward to deposit the awarded amount with interest payable in favour of second respondent-Bank before either second respondent or respondent No. 3. Therefore, first respondent is not entitled for the reliefs as granted by the learned Single Judge in the Writ Petition.
5. Rebutting the above said legal submission of the learned Counsel for the appellant, Sri [ENTITY], learned Counsel for the first respondent had vehemently contended in justifying the impugned order passed by the learned Single Judge inter alia contending that even assuming that an alternative remedy is provided under the provision of [SECTION] of [ACT] for the first respondent, it is not a bar for this Court to exercise its extraordinary jurisdiction under [SECTION] & [SECTION] of the [ACT] to do complete justice in the case. The learned Single Judgs after issuing notice to the parties giving opportunity to them and perusing the record of the second respondent-Registrar found that there is infraction of [SECTION] of the Rules in conducting the sale which has vitiated the sale therefore, he ought not have confirmed the sale and issued sale certificate in favour of the appellant. Therefore he submits that the order passed by the learned Single Judge in exercise of his jurisdiction need not be interfered with by this Court in exercise of judicial review power in this appeal, as the appellant has not made out ground to interfere with the impugned order.
6. While justifying the finding recorded by the learned Single Judge, the learned Counsel for the first respondent in respect of violation of [SECTION] of the Rules in conducting the sale and for not following mandatory provisions of the Rules by the Sale Officer, the learned Single Judge has referred to the order impugned therein placing strong reliance upon [SECTION] which reads as follows:
[SECTION]
(a) The Sale Officer shall serve or cause to be served a copy of the demand notice issued under [SECTION] upon the judgment-debtor or, if he is not available, upon some adult male member of his family or upon his authorized agent, or if such service is not possible, shall affix a copy thereof on some conspicuous part of the immovable property about to be attached and sold or sold without attachment, as the case may be;
(b) xxx
(c) xxx
(d) Proclamation of sale shall be published by affixing a notice in the office of the Recovery Officer and in the [ENTITY] Office at least thirty Page 0765 days before the date fixed for the sale. It shall also be published by beat of drum in the village on two consecutive days previous to the date of sale and on the day of sale prior to the commencement of the sale. Such proclamation shall, where attachment is required before sale, be made after the attachment has been effected. Notice shall also be given to the decree-holder and the judgment-debtor. The proclamation shall state the time and place of sale and specify as fairly and accurately as possible -
(i) the property to be sold;
(ii) any encumbrance to which the property is liable;
(iii) the amount for the recovery of which sale is ordered; and
(iv) every other matter which the Sale Officer considers material for a purchaser to know in order to judge the nature and value of the property.
7. The above said mandatory requirement of law has not been done in the present case by the sate officer the fifth respondent herein. Therefore, there is statutory violation of [SECTION] of the Rules. The first respondent has clearly averred in the writ petition that there is no notice affixed either in the office of the Recovery Officer or in the [ENTITY] office or on conspicuous part of the immovable property about to be attached and sold. Notice of demand was not served upon him as required under [SECTION] allowing him to make payment or in the case of non-payment of particulars of immovable property if any to be attached sold or to be sold without attachment as the case may after specified by the recovery officer. The same shall be notified to be published by affixing the notice of proclamation as required under [SECTION] of the Rules which prescribes that the sale shall be made after the expiry of not less than 30 days calculated from the date on which notice of the proclamation was affixed in the office of the Recovery Officer and Tahsildar of [ENTITY]. The time and place of sale of the immovable property shall be fixed by the Recovery Officer and the place of sale shall be in the village where the property to be sold is situated or such adjoining prominent place of public resort as may be fixed by the said Recovery Officer. The said mandatory provision has not been complied with by the fifth respondent Therefore, the learned Single Judge has exercised his jurisdiction invoking judicial review power and recorded a finding of fact after considering the pleadings and record holding that the statutory provisions of Rules referred to supra are not complied with by the fifth respondent in conducting public auction of sale of the immovable property of the first respondent. Therefore, the impugned order in this Appeal need not be interfered with by this Court.
8. Further, the learned Counsel elaborating his submission contends that the property worth about Rs. 30 lakhs is sold at Rs. 12 lakhs by the fifth respondent. As confirmation of sale has been made by second respondent without their being proper market valuation of the property sold by following the mandatory procedure as provided under the above Rules. No doubt the first respondent has got a statutory right to take steps within 30 days from Page 0766 the date of sale of immovable property by filing an application seeking for setting aside the same on the ground of material irregularity or mistake in conducting the sale of the immovable property in public auction, thereafter, under [SECTION] of the Rules, the sale has to be confirmed after expiry of 30days from the date of sale, if no such application is filed for setting aside the sale either under [SECTION] or [SECTION] or if such application has been made and is rejected, the said Recovery Officer shall make an order confirming the sale. The above said procedure is also not followed by him. No notice of sale, no notice of demand and also the procedure as contemplated under [SECTION] of the Rules i.e. by beat of drum for consecutive days before the date of sale fixed is also not followed. Therefore, the learned Single Judge has rightly recorded his finding on the basis of pleadings and record of fifth respondent holding that the mandatory procedure as contemplated under [SECTION] of the Rules to conduct public auction of the immovable property of first respondent is not followed by fifth respondent. Therefore, the Single Judge has rightly set aside the impugned order and certificate of sale which are challenged in the writ petition. Therefore the impugned order passed by the learned single judge is perfectly justified as the same is in conformity with law and based on the record of fifth respondent, hence this Court need not interfere with the same in exercise of its appellate power and jurisdiction.
9. Sri [ENTITY], the learned Counsel appearing on behalf of 2nd respondent-Bank sought to justify the confirmation order and the sale certificate issued by the second respondent in favour of the appellant placing strong reliance upon the statement of objection filed by it before the learned Single Judge in the writ petition. The learned Single Judge after perusal of the record noticing the fact that attachment notice and proclamation notice in respect of he property in question as required under the provisions of the rules has not been issued which important aspect of the case has not been considered by the learned single judge while recording the finding on merits of the case. He further sought to set-aside the order passed by the learned Single Judge and supported the case of appellant-purchaser.
10. After hearing the learned Counsel for the parties, we have perused the order passed by the learned Single Judge and examined the legality of the same keeping in view the rival legal contentions urged on behalf of the parties. The legal contention urged by the learned Sr. Counsel on behalf of the appellant that the alternative remedy is provided to the first respondent under [SECTION] of the Act as the order of confirmation of sale and issuance of sale certificate is an order falls within [SECTION] of the Act and therefore exercise of judicial review power by he learned Single Judge is extraordinary jurisdiction, cannot be accepted by us for the reason that as rightly the first respondent has shown to the learned single judge on facts pleaded that alternative remedy for the first respondent is no bar for him having regard to the facts of the case particularly the finding of fact recorded by him holding that there is infraction of statutory provision of [SECTION] of the Rules as right is there in favour of the first respondent as the Page 0767 said property was mortgaged to the second respondent Therefore, the above said contention urged by the learned Sr. Counsel must fail. Accordingly it is rejected.
11. The second contention urged by him that finding recorded by the learned Single Judge holding that there is no notice of 30 days by publishing the same in the newspaper as contemplated under [SECTION] of the Rules is not the legal requirement on the part of fifth respondent, what is contemplated under the said rule is proclamation of salebe published by affixing a notice in the office of the Recovery Officer and in the [ENTITY] Office at least thirty days before the date firxed for the sale. Merely because the 7 days notice is published in the local newspaper could not have been construed that there is statutory obligation on the part of the Recovery Officer to issue public notice in the newspaper. This contention is examined by us with reference the submission made on behalf of first respondent keeping in view the ground 8(d) of the Writ Petition. There is specific averment made by the first respondent in the writ petition stating that no notice was issued to him calling upon him to pay the entire amount to the second respondent before the sale of his immovable property was conducted by the fifth respondent. It is further stated that alleged sale proclamation was published on 28.6.2005. The public auction of the sale of property in question had taken place on 5.7.2005. Therefore, on the 7th day of publication of proclamation of sale the sale of the immovable property had taken place which is violative of [SECTION] of the Rules. The proclamation was never fixed on the notice board in the office of the Recovery Officer or in the [ENTITY]a office and no beat of drum for two consecutive days prior to the date of sale was fixed in the village which is once again infraction of Rules that has adversely affected the statutory right of the first respondent.
12. The learned Single Judge after perusal of the record has recorded a finding of fact on the contentious issue that arose for his consideration. No doubt, he has not adverted to various aspects of infraction as contended by the learned Counsel for the first respondent which are extensively adverted to in this order, none-the-less the conclusion arrived at by him and recording finding holding that there is infraction of [SECTION] of the Rules in conducting the public auction of sale to sell the property is perfectly correct. The said finding of fact recorded by the learned single judge with reference to the ground No. 8(d) of the Writ Petition and the record of the fifth respondent which we are accepting the same particularly in the absence of a specific plea required to be pleaded by the Bank in their statement of counter stating that Recovery Officer under [SECTION] of the Rules demand notice was served upon the first respondent calling upon him to pay the amount due to the second respondent Bank. Therefore the learned Single Judge has accepted: the case pleaded by the first respondent after perusal of the record and rightly held that the sale of immovable property of him is in contravention of statutory rules referred to supra which are mandatorily to be complied with and the same cannot be found fault with by this Court in exercise of appellate power and jurisdiction in this Appeal.
Page 0768
13. We have carefully examined the reasons and legal contentions with regard to acquisition of property by the appellant. The learned Single Judge has recorded a finding on fact holding that property is sold in a public auction by the Recovery Officer for a sum of Rs. 12 lakhs though its value at Rs. 30 lakhs according to the first respondent which measures 10 cents in Mangalore city. The submission made on behalf of appellant and first and second respondent-bank is with regard to valuation of property is that there is inconsistent plea taken by the first respondent and further the market value of the property as claimed by the first respondent is an exaggeration and the same is without factual foundation and therefore the learned single judge could not have accepted the said ground urged by the first respondent and therefore the finding recorded in this regard is erroneous in law, hence the same is liable to be set aside.
14. The said submission made by the learned Sr. counsel for the appellant-purchaser we are not prepared to accept in this Appeal, having regard to the finding recorded by the learned Single Judge on this important aspect of the case. Further it is very relevant for us to refer to the decision in the case of [PRECEDENT]. wherein the Supreme Court, dealing with the powers and authority of the Corporation in exercise of its power under [SECTION] of the [ACT] after referring to the Judgment of Supreme Court in in the case of [PRECEDENT], it has held thus at para 16, which is reiterated in the subsequent decision in the case of [PRECEDENT]. which relevant portion is extracted hereunder:
Corporation to be a trustee of the debtor or person claiming title through him. It saddles the Corporation or the officer concerned with in-built duties, responsibilities and obligations towards the debtor in dealing with property and entails him to act as a prudent and reasonable man standing in the shoes of the owner. According to Prof. [ENTITY], a noted author on Trusts, trusteeship has become a readily available tool for everyday purpose of organisation, financing, risk shifting, credit operations, selling disputes and liquidation of business affairs. [ENTITY], the other renowned writer on Equity observed that one of the exploits of equity, the largest and the most important, is the innovation and development of the trust Thus, trust has been and is Page 0769 being applied for all purposes. Trusteeship is an institution of elasticity and generality. The broad base of the concept of the property or its management vested in one person and obligation imposed for its enjoyment by other is an accepted Hindu jurisprudence.
15. In view of the law laid down by the Apex Court in the above case regarding trust reposed with the fifth respondent coupled with the statutory duty cast upon him it is incumbent upon the sale officer to follow the mandatory procedure as laid down under the Rules and law laid down by the Apex Court in the cases referred to supra to get market value of the immovable property which would be sold in public auction for realisation of awarded amount in favour of the second respondent bank. For the reasons stated supra, we accept the finding of fact recorded in the order of the learned Single Judge regarding non-following the mandatory procedure as contemplated under [SECTION] of the Rules by the fifth respondent and respondent No. 3 in not giving wide publicity for sale of the property in question. The auction purchaser was only the person participated in the public auction therefore his bid was accepted by fifth respondent The amount for which he had bid cannot be construed as the true market value of the property in question. For this reason also the learned Single Judge after perusal of the record of respondents No. 3 and 5 having regard to the rights involved in immovable property of the first respondent herein has rightly exercised his discretionary power and quashed the confirmation order of sale and sale certificate issued in favour of fifth respondent in respect of the property, which cannot be found fault with by this Court in exercise of our jurisdiction and power in this Appeal.
16. The learned Single Judge after quashing the confirmation order and issuance of the sale certificate issued in Form No. 10 dated 11.8.2005, remitted back the matter to the competent authority viz respondent No. 3 to re-do it and to take appropriate decision in accordance with law. While directing so, he has also clarified in the operative portion of the order that if the first respondent herein is willing to pay the entire award amount with interest and other expenses, it is open for the second respondent-Bank to consider his request and settle the matter in full and final settlement of the claim. In this regard, the learned Counsel Mr. [ENTITY] appearing on behalf of first respondent submitted that during pendency of the writ petition first respondent wanted to deposit the awarded amount with the Bank but the some was not received by it. Now the first respondent is willing to deposit the same before the Bank. In this view of the matter and also for the reason that learned Single Judge after recording a finding of fact on the basis of facts pleaded and records produced he has held that the sale in the public auction is not in conformity with the provisions of the Act and the Rules. Therefore, the question of remanding the matter to the competent authority viz respondent No. 3 to take a decision in that regard afresh does not arise and therefore that portion of the remand order is set aside as the same is wholly unnecessary.
Page 0770
17. Since the first respondent has come forward to deposit the amount with the second respondent, if it is deposited within four weeks from the date of receipt of this order the same may be accepted with interest payable on the awarded amount. Otherwise, it is open to the second respondent to recover the same in accordance with the provisions of the Act and the Rules by executing the Award against the first respondent.
18. For the reasons stated supra, the Writ Appeal is dismissed.