HON'BLE SRI JUSTICE GHULAM MOHAMMED and HON'BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No. 10588 of 2009 Between: Gompa Surya Prakash Rao s/o Late Dalinaidu ..... PETITIONER AND The Indian Bank, Circle Office and one another .....RESPONDENTS ORDER: (Per Hon'ble Sri Justice Ghulam Mohammed) This Writ Petition has been filed by the petitioner challenging the tender notice dated 18.4.2009 issued in respect of plot No. 14 admeasuring 880 sft., 3rd Floor, Plot No. HIG-25 of Amma Enclave, Madhavadhar, Vuda Colony and consequently direct the respondents to register the sale deed in favour of the petitioner by receiving the balance amount as per the tender amount mentioned in sale notice dated 31.10.2006. Brief facts of the case are that the petitioner responded to the sale notice dated 31.10.2006 issued by the 2nd respondent published in Newspaper calling for the sealed tender from the general public in respect of residential flat No. 14 admeasuring 880 sft, 3rd floor in Amma Enclave, Madhavadhara, Vuda Colony, Visakhapatnam, and submitted his sealed tender by duly enclosing the EMD amount of Rs. 32,000/-. It is stated that the auction was conduced on 7.11.2006 at Indian Bank, Seethammapeta Branch and the petitioner became the successful bidder and on payment of 25% of the bid amount on 11.11.2006 the sale was confirmed in his favour and the second respondent issued receipt dated 11.11.2006 by duly acknowledging the confirmation of sale and the amount received. It is stated that as per the tender condition, the petitioner has to pay the balance amount of Rs. 4,69,305/- within 15 days. Thereafter the petitioner arranged the said amount and approached the 2nd respondent informing him to execute the sale deed and handover the vacant possession of the property in question but he was informed that the defaulter has not vacated the property and the bank is taking legal steps to evict him and after evicting, the same will be intimated to him. It is stated that the second respondent informed the petitioner that the possession of the property is already taken on13.3.2009 and once again the property is put to auction and auction is scheduled to be held on 27.5.2009 and this time the price is fixed as Rs. 11,54,000/-. Therefore, the petitioner participated in the auction and paid 25% of the sale price on 11.11.2006. Even then the Bank is not inclined to register the sale deed on the ground that loan amount of the defaulter now comes to Rs. 11,54,000/- and unless the entire amount is paid the property cannot be registered and informed that the amount paid on 11.11.2006 will also be forfeited. Being aggrieved by the same, the present Writ Petition has been filed. In the counter, it is stated that the property was sold by the respondent- bank in as is and where is condition and the same was also mentioned in proclamation of sale as clause No. 4. The petitioner has verified the said proclamation of sale property and participated in the auction and failed to pay the balance of sale consideration within stipulated time and also the time extended by the Authorized Officer from time to time and to cover up his lapses he came up with the present Writ Petition. The learned counsel appearing for the petitioner contended that the respondent-Bank should not have forfeited 25% of the amount paid towards sale price on 11.11.2006 and that the petitioner is ready and willing to pay the balance amount and because of non-delivery of possession he has not deposited the amount. On the other hand, the learned counsel appearing for the respondent- Bank vehemently contended that the petitioner has not deposited the amount and he has not shown any bonafides and he is not ready and willing to pay the amount and there was no other option for the respondent-Bank except to forfeit the amount under the Rules. Heard the learned counsel appearing for both sides and also perused the material made available on record. Having regard to the facts and circumstances of the case, we are of the view that since there is no justification on the part of the Bank to withheld the amount. The respondent-Bank should have first taken possession and then it should have issued tender notice inviting tenders to conduct sale of the property. In view of the above facts and circumstances of the case, we are not inclined to exercise our discretion under Article 226 of the Constitution of India and hence, the Writ Petition is liable to be dismissed. Accordingly, the Writ Petition is dismissed. However, we direct the Bank to repay the 1/4th of the amount to the petitioner with interest applicable to a Savings Bank Account, within a period of three weeks from the date of receipt of a copy of this order. There shall be no order as to costs. _______________________ GHULAM MOHAMMED,J _______________________________ NOOTY RAMAMOHANA RAO,J 24.08.2009 KA ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. 2 CD copies.