IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR <<>> :: O R D E R :: Vinod Purohit Vs. Vijaya Bank & ors. S.B. CIVIL WRIT PETITION NO.367/2008 Date of Order :: 23rd January 2008. PRESENT HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr.A.K.Rajvanshy, for the petitioner. .... BY THE COURT: Having heard learned counsel for the petitioner and having perused the material placed on record, this Court is satisfied that the learned executing court had been justified in passing the impugned order dated 19.12.2007 and the said order does not call for any interference. In an auction sale held on 18.07.2007 for recovery of an amount of Rs.75,49,038/- in execution of decree obtained by the respondent No.1 against the respondent No.2, the petitioner put a bid of Rs.1,22,00,000/-. The petitioner deposited 25% on the amount of purchase money with the executing court concerned on the next day i.e., 19.07.2007; 1 and then deposited the remaining amount of Rs.91,25,000/- on 07.08.2007 i.e., beyond the period of 15 days from the date of the said auction. While the proceedings were pending before the executing court, it appears that certain objections and propositions came up including the objection raised by one M/s. Thar Desert Palace Pvt. Ltd. stating some alleged transaction with the judgment debtor, the owner of the property; and a suggestion came up on behalf of the said objector of permitting private sale of the property. Another person, Shri Manish Lodha submitted an affidavit on 08.08.2007 before the executing court (Annex.4) alleging, inter alia, that certain persons created a pool and prevented him from putting his bid; and that auction purchaser, the present petitioner Shri Vinod Purohit, was a person working at the instance of the persons related with Hotel Ratanada International who were interested in purchasing the property for it being situated adjacent to the Hotel. The said Shri Manish Lodha also stated that he was ready to purchase the property for an amount of Rs.1,55,00,000/-. The petitioner, while stating that the attempt on the part of the said Shri Manish Lodha to put a bid of Rs.1,55,00,000/- was not legal and the property was not carrying the value of more than Rs.1,22,00,000/-, submitted a proposition before 2 the executing court on 04.12.2007 (Annex.11) that if the court treats the value of the property beyond Rs.1,22,00,000/-, then the bidder Vinod Purohit (the present petitioner) was ready to deposit immediately a sum of Rs.1,57,00,000/-. The executing court has considered all the facts and circumstances of the case and the propositions available on record in its impugned order dated 19.12.2007. In an appropriate comprehension of the entire matter, learned executing court though has rejected the suggestion made on behalf of M/s.Thar Desert Palace Pvt. Ltd., but has noted that as per the requirements of Rule 84 of Order 21 of the Code of Civil Procedure ('CPC'), 1/4th of the amount was required to be deposited immediately and the default could lead to resale but has found this to be essentially a mistake on the part of Sale Ameen of directing deposit by the next day. However, thereafter, the executing court has also noticed (per Rule 85 of Order 21 CPC) that the remaining 3/4th amount was required to be deposited by the present petitioner within 15 days i.e., by 03.08.2007 but the cheque in relation to the said 3/4th amount was deposited only on 07.08.2007; and, therefore, indisputably the amount was not deposited within the time contemplated by law. The learned executing court has also observed that the auction proceedings could not be considered to have been conducted properly particularly when 3 a proposition has been stated by said Shri Manish Lodha that he was ready to purchase the property for an amount of Rs.1,55,00,000/- and then, the petitioner has also stated before the court that he was ready to purchase the property for Rs.1,57,00,000/- The learned executing court has, therefore, refused to confirm the sale as made by the Sale Ameen with the observation that merely because the property was in mortgage with the Bank, the court cannot ignore the interest of justice and the maximum price ought to be fetched so that not only the amount of bank is paid off but the rights of the judgment debtor are also not adversely affected. Seeking to assail the order of resale as made by the learned executing court in this writ petition, learned counsel Mr.A.K.Rajvanshy appearing for the petitioner has strenuously contended that the requirements of the relevant Rules are only of a deposit within reasonable time and when the Sale Ameen himself had given the time to the petitioner to deposit 25% of the amount by the next day and the petitioner did make such deposit, it cannot be said that there was any contravention of the requirements of Rule 84 of Order 21 CPC. Learned counsel further submitted that even the time provided under Rule 85 of Order 21 CPC is not of mandatory character and could be extended reasonably and suitably by the executing court in the given set of facts and circumstances 4 of the case. Learned counsel contended that in the present case, the petitioner has not committed any such default that could be indicative of any other intention on his part and rather he made the entire deposit on 07.08.2007 and, at the most could be said to have delayed the deposit merely by 3-4 days. According to the learned counsel, such delay having occurred in view of unnecessary objection coming up before the court and for the larger amount required to be deposited, cannot be said to be fatal to the rights of the petitioner. Learned counsel has referred to and relied upon the decisions of the Hon'ble Supreme Court in the case of Rosali V. v. Taico Bank & others: AIR 2007 SC 998; that of this Court in the case of Ramesh Chand v. Shiv Charan & others: 1997(3) RLW (Raj.) 2001 and the Notes of Cases as reported in AIR 1994 NOC 338 (Himachal Pradesh) in the case of UCO Bank v. Gian Chand and others. Learned counsel further submitted that objection, if any, could have been raised only by the judgment debtor or the decree holder and no such objection having been raised by them, the executing court was not justified in ordering re-auction and has referred to the decision of the Full Bench of the Hon'ble Kerala High Court in the case of Kerala Financial Corporation, Vellayambalam, Trivandrum v. Syndicate Bank, Calicut and others: AIR 1999 Kerala 213. Submissions as made on behalf of the petitioner in 5 challenge to the impugned order dated 19.12.2007 remain fundamentally bereft of substance. From the admitted fact situation of this case, it is but apparent that the requirements of Rules 84 and 85 of Order 21 CPC cannot be said to have been carried out. Even if it be assumed that the delay in deposit of 25% on the amount of purchase money as contemplated by Rule 84 of Order 21 CPC is not attributable to the petitioner as according to the petitioner, the Sale Ameen granted him time for making such deposit by the next day, the fact nevertheless remains that the full amount of purchase money payable was required to be paid by the purchaser i.e., the present petitioner 'before the Court closed on the fifteenth day from the sale of the property', per the requirements of Rule 85 of Order 21 CPC. The petitioner was, thus, required to make such deposit before the court closed on 03.08.2007 but, admittedly, he made such deposit only on 07.08.2007. The explanation suggested in that regard by learned counsel for the petitioner in this writ petition does not find any mention before the learned executing court. No prayer for enlargement of time had not been stated by the petitioner even in his application as made on 07.08.2007 (Annex.7-A) while making such deposit. Prior to that, the petitioner made an application on 26.07.2007 with the suggestion that he was ready to make deposit immediately 6 or as per the orders. It is feebly suggested in this petition that executing court did not pass any specific order on the said application as made by the petitioner on 26.07.2007. The submissions remain hollow for the fundamental reason that no such application was requisite nor there was any occasion for the petitioner to move an application merely declaring that he was ready to make deposit. Such declarations are of no worth in the face of the requirements of law that it is the deposit itself that is required to be made by the 15th day from the sale of property. In view of the admitted non-compliance of the requirements of Rule 85 of Order 21 CPC, the learned executing court cannot be said to have committed any error in proceeding under Rule 86 and ordering re-auction. Apart from the delay on the part of the petitioner, the significant fact available on record is that the petitioner himself, by moving application on 04.12.2007 before the executing court, offered an amount of Rs.1,57,00,000/- for the same property. Before that a suggestion of the said Shri Manish Lodha was available before the executing court that he was ready to purchase the property in the sum of Rs.1,55,00,000/- and on the said proposal he had deposited an amount of Rs.40,00,000/- before the executing court. Leaving aside all other aspects of the matter, even from the proposition as 7 stated by the petitioner himself, the executing court was perfectly justified in coming to the conclusion that the property in question carries the value more than Rs.1,22,00,000/-, the bid as offered by the petitioner. Such conclusion is fortified by the proposition stated by none other than the petitioner himself. Once the executing court was satisfied that the auction sale has failed to fetch proper price and that higher bid amount is available towards the sale price of the property, the executing court was justified in making order of re-sale of the property. The executing court has further taken care to balance the equities from all angles, and rather the executing court in the facts of the case has not made any further order of forfeiting any amount deposited by the petitioner; and has kept intact the bid amount as made by the petitioner in the sum of Rs.1,57,00,000/- and so also the offer as made by Shri Manish Lodha in an amount of Rs.1,55,00,000/- Learned counsel suggested that the proposition as stated by Shri Manish Lodha was not bona fide and such want of bona fide on his part has come to fore immediately after passing of the impugned order dated 19.12.2007 when he moved an application for refund of the amount deposited by him. Without pronouncing anything in that regard being essentially not related with the subject matter of this writ petition, suffice is to notice that learned executing court has 8 not accepted even such application made to it by the said proposer and has kept the said application pending for decision only after completion of auction proceedings. Even at the costs of repetition, it could be noticed that whether the said proposal or any other objection as already dealt with were bona fide or not, from the very proposition as stated by the petitioner of his being ready to purchase the property in the sum of Rs.1,57,00,000/-, the petitioner has effectively demonstrated that his own bid of Rs.1,22,00,000/- was not adequate nor could be said to be bona fide in the circumstances of the case. In the aforesaid view of the matter, there appears no reason to consider any interference in the order made by the learned executing court and the same is affirmed as being legal and justified. The decisions relied upon by learned counsel for the petitioner have no bearing on the questions at hand. As noticed above, it is not only the delay of deposit per Rule 84 of Order 21 CPC that comes in question but there is an unexplained delay of deposit beyond the time permitted by Rule 85 of Order 21 CPC. So far enlargement of time is concerned, noteworthy it is that the petitioner has not even made a prayer for enlargement of time before the executing court and, again, it may be pointed out that apart from not making such prayer, the petitioner himself later on suggested 9 and offered higher sale price. So far raising of objection by the judgment debtor or decree holder is concerned, such question is not germane to the issue at hands for the simple reason that it is a case where re-auction is ordered by the executing court for default on the part of auction purchaser in making timely deposit coupled with the significant factor that executing court was satisfied that property carried value more than that offered and could fetch higher price. The executing court has dealt with the matter in accordance with law while keeping the propositions already stated before it intact. There is no reason to consider any interference in the order impugned. The writ petition fails and is, therefore, rejected. (DINESH MAHESHWARI),J. MK 10 11