THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE P.DURGA PRASAD W.A.No.210 of 2003 Date of Judgment: 08-12-2010 Between: 1. The Special Category Deputy Registrar (OSD) Cooperative Central Bank, Chittoor District and others. ..Appellants And 1.N.Ibrahim Khan and another ..Respondents THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE P.DURGA PRASAD W.A.No.210 of 2003 Judgment: (Per Honourable Sri Justice A.Gopal Reddy) This Writ Appeal under Clause 15 of the Letters Patent is directed against the orders of the learned single Judge passed in W.P.No.20117 of 1998, dated 10-10-2002 allowing the writ petition setting aside the order passed by the Special Category Deputy Registrar (OSD) Officer on Special Duty Co-operative Central Bank, Chittoor District, confirming the auction sale in favour of the 4th respondent in the writ petition and issuing sale certificate through impugned proceedings dated 10-06-1998. For the sake of convenience, the parties are arrayed as shown in the writ petition. To put short, the undisputed facts are that the writ petitioner obtained two loans of Rs.2,500/- on 20-03-1976 and Rs.2,500/- on 27-03- 1976 from the respondent—bank for the purpose of digging a well by mortgaging an extent of Ac.5.03 cts. of land with an interest at the rate of 11% per annum to be repayable in nine years (1+8) in instalments at the rate of Rs.971.60 ps. As the petitioner could not repay the amounts, the respondent-bank foreclosed the loan and issued a notice to the petitioner. Thereafter, the mortgaged property was brought to sale and auction was conducted on 15-10-1985. Aggrieved by the said order, the petitioner filed W.P.No.11966 of 1985 before the High Court, who by order dated 16-10- 1985 stayed the auction scheduled to be conducted on 16-10-1985 and further directed that if for any reason the sale of the said land has already been held, confirmation of the said sale shall be stayed subject to the condition that the petitioner deposits a sum of Rs.977.78 ps., within a period of three weeks from the date of receipt of a copy of the order. The said order of the court has been communicated to the respondents by way of telegram. However, according to the petitioner, the respondents have conducted the auction without taking into account the orders passed by this Court on 16- 10-1985 and passed the impugned order dated 22-06-1998 confirming the sale in favour of the 4th respondent for a sum of 7,700/-. The respondents filed their counter stating that they received order copy in W.P.No.11966 of 1985, dated 16-10-1985 only on 31-10-1985 and even before the said order was received by them the auction was conducted and the sale was knocked down in favour of the 4th respondent, who stood as highest bidder in the auction. The said writ petition was disposed of on 30-09-1988 directing the petitioner to pay the total amount due either in lumpsum or in six months instalments. In case the petitioner failed to repay the loan amounts, liberty is granted to the respondents to confirm the sale. Thereafter, the petitioner filed a petition seeking extension of time and the same was extended by two more months with a direction to the respondents to furnish the statement of accounts to the petitioner. Accordingly the respondents have furnished the statement of account on 18-04-1989 to the petitioner and his counsel. In the meanwhile, petitioner’s sisters filed O.S.No.241/1989 claiming right over the property mortgaged by the petitioner to the respondent-bank. The said suit was dismissed on 05-04- 1995 and thereafter, the sale was confirmed in favour of the 4th respondent and subsequently Sale Certificate was issued on 10-06-1998. A reply affidavit has been filed stating that this Court in WPMP No.4297 of 1989 in W.P.No.11966 of 1985 directed the bank authorities to furnish statement of account to the writ petitioner and the petitioner was directed to deposit the amount within two months from the date of furnishing the statement of accounts. Further, pursuant to the interim stay granted in WPMP No.16574 of 1985, 16-10-1985, the petitioner has deposited a sum of Rs.1,977.78 ps. on 04-11-1985. Though the statement of account is directed to be furnished to the petitioner, the same has not been furnished to the writ petitioner or his counsel facilitating the petitioner to pay the amount. It is specifically averred that as per sub-rule 11(g) of Rule 52 of the Rules, 15% of the price of immovable property has to be deposited on the same day of auction and as per sub-rule (h) the balance of sale consideration and the amount required towards stamp fees for the certificate shall be paid within 15 days from the date of sale. Sub-rule 11(i) clearly states that if the purchaser defaults in payment of sale amounts, the Registrar may forfeit the amount already paid to the Government and has power to resale the immovable property. The balance amount, as contemplated under sub-rule 11(h) of Rule 52, has not been paid within 15 days and it was paid only on 29-06-1998 nearly after 13 years from the date of auction. It is denied about service of statement of account either to the petitioner or to the counsel. Even in the records there are many corrections regarding amount payable by the writ petitioner. The amount payable is only 1,976.78 ps which was corrected as Rs.10,678.98 ps. Therefore, the same is liable to be set aside. Questioning issuance of sale certificate in favour of 4th respondent by proceedings dated 10-06-1998 the above writ petition has been filed contending that the 4th respondent has not paid the auction amount within 15 days as contemplated under sub-rule 11(g) of Rule 52 of A.P. Co- operative Societies Rules, 1964 (for short “the Rules”) and prayed for setting aside the order dated 10-06-1998 passed by the 1st respondent. The learned single Judge after considering the entire evidence on record allowed the writ petition permitting the writ petitioner to deposit a sum of Rs.5,000/- with the respondent bank within four weeks from the date of receipt of the order and on such deposit is being made the respondents shall restore the possession in favour of the petitioner and also issue the Land Clearance Certificate, which is impugned in the present appeal. Mr. Srinivas Polavarapu, learned counsel for the appellants contends that as per the directions of the Court the petitioner was supplied statement of account through letter dated 18-04-1989 and on dismissal of suit—O.S.No.241 of 1989 only the sale was confirmed on 10-06-1998. He further contends that the petitioner has suppressed the directions issued by the Court on 30-09-1988 in W.P.No.11966 of 1985 with regard to payment of loan amount and the receipt of statement of account through their letter dated 18-04-1989 to the petitioner and his counsel. The balance sale consideration has been deposited by the 4th respondent on 06-11-1985 within 15 days. Therefore, the writ petitioner is not entitled to any relief. Smt. Neeraja Sudhkar Reddy, learned counsel for the 1st respondent/petitioner while supporting the order under appeal contends that the respondents have not followed the procedure as contemplated under sub-rules 11 (g) and (h) of Rule 52 of the Rules and notice as such was issued to the petitioner before confirmation of sale in favour of the 4th respondent. She further contends that letter dated 15-04-1989 addressed by the Branch Manager informing about deposit of the amount as per the interim order in WPMP No.16574 of 1985 enclosing the statement of account was sent to the advocate representing the bank but not to the petitioner or his counsel. The letter dated 18-04-1989 also addressed to Sri P.M.Gopal Rao, advocate of the bank enclosing the statement of account for enabling him to place the same into the Court and also supplying the same to the petitioner’s counsel, but so far the same has not been furnished. The statement of account filed along with writ petition also discloses penal interest was calculated from 01-07-1978 to 31-03-1989. She further contends that bank authorities have filed the appeal aggrieved by the orders of the learned single Judge but not the auction purchaser and prays for dismissal of appeal. Admittedly, the auction was held on 22-10-1985; therefore, the auction purchaser has to deposit the balance amount within fifteen days from the date of sale i.e. on or before 06-11-1985. The learned Judge after verifying the record held that there is no evidence to establish that the balance sale consideration has been paid as per sub-rule 11(h) and the records produced by the respondents shows that there are corrections at page No.27 with black ink as to the amount payable by the petitioner; whereas in page No.30 the amount was Rs.1978.78 ps. which has been corrected as Rs.10,678.48 ps. plus further interest and there is no proper explanation for over writings either in the counter filed by the bank or at the time of arguments. As the counter as well as record does not disclose about the deposit of balance sale consideration and confirmation of the sale in favour of the 4th respondent, which is liable to be set aside and accordingly set aside. It is not disputed by the learned counsel for the appellant that on the date of interim order i.e. on 16-10-1985 the amount due payable by the writ petitioner was Rs.4,575.40 ps. and as per the interim order a sum of Rs.1,977.78 ps. has been paid on 04-11-1985; therefore the balance is only Rs.2,597.62 ps. As per the calculation memo enclosed along with the letter addressed to the counsel representing the bank also do not tally with the figure as stated by the learned counsel for the bank. Even assuming that the auction was conducted on 22-10-1985 and the balance sale consideration was paid on 06-11-1985, if the same is adjusted towards loan amount of the writ petitioner, after deducting Rs.2,597/- from Rs.7,700/- how they have arrived Rs.14,945/- as on 31-03-1989 has not been substantiated. The letter dated 15-04-1989 addressed by the Branch Manager to the General Manager, District Co-operative Central Bank Limited enclosing calculation memo, marking copy to the advocate of the bank, do not disclose about communication of the copy to the writ petitioner as directed by this Court. Further, the letter of bank dated 18-04-1989 also addressed to the advocate of the bank with a request to file the statement of account in the court and also supply a copy of the same to the petitioner’s counsel for enabling the petitioner to deposit the said amount as per the court order. Therefore, the plea taken by the respondents in the counter that the writ petitioner suppressed the fact of receipt of statement of account is devoid of merit. The learned single Judge after considering the facts in detail and also verification of the record was of the view that the record do not support about deposit of the balance sale consideration. Curiously, the 4th respondent—auction purchaser has not pleaded about his deposit of the amount or substantiated the plea and even after setting aside the auction sale he has not preferred any appeal. Had he really been deposited the amount within the specified period, as a prudent purchaser he will not kept quiet when adverse orders are passed against him. Taking all these facts into consideration, we feel the discretionary order passed by the learned single Judge in allowing the writ petition do not suffer from any manifest illegality warranting interference. The Writ Appeal fails and it is accordingly dismissed. There shall be no order as to costs. ________________ A.GOPAL REDDY, J. ________________ P.DURGA PRASAD,J. 08-12-2010 Murthy