IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16485 of 2009 1. HARENDAR SINGH S/O LATE GURU CHARAN SINGH, R/O HOME NO. 938, EXHIBITION ROAD, BEHIND HOTEL BIKRAM, P.S- GANDHI MAIDAN, DISTT- PATNA Versus 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, GOVT. OF BIHAR, OLD SECRETARIAT, PATNA 2. THE CHIEF MANAGER, ALLAHABAD BANK, MAIN OFFICE, OPPOSITE - KOTWALI, P.S & P.O- DISTT- PATNA 3. THE PRESIDING OFFICER, DEBT. RECOVERY TRIBUNAL, BORING ROAD, PATNA 4. THE DEBT RECOVERY OFFICER, DEBT RECOVERY TRIBUNAL, BORING ROAD, PATNA 5. THE DISTRICT MAGISTRATE, PATNA 6. THE SENIOR SUPERINTENDENT OF POLICE, PATNA 7. SHRI SADASHIV PRASAD SINGH SON OF SHRI MALESHWAR SINGH, DIRECTOR, STARNET MARKETING PVT. LTD. 110, URMILA TOWER, BANK MORE, DHANBAD. ----------- For the Petitioner :- M/S. K. N. Choubey, Sr. Advocate & Ambuj Nayan Chaubey. For the respondent Bank :- Mr. Ajay Kumar Sinha For Respondent No. 7 :- Mr. Ajit Kumar Ojha. ----- 6 27/04/2010 There is a long history to the present litigation but all the facets of the same need not be noticed here. It is not that every aspect of the dispute relates to the petitioner. Petitioner had a brother Late Jagmohan Singh, who was a partner of one M/s Amar Timber Works. There was a huge borrowing from the respondent Bank by the said - 2 - partnership firm and certain properties were mortgaged. When default was made in re-payment the respondent Allahabad Bank was left with no option but to initiate a proceeding for recovery. A proceeding under the Debt Recovery Act was initiated and the stage from which the present petitioner got interested is when the proceeding was pending before the Recovery Officer of the Debt Recovery Tribunal at Patna in R.P. No. 167 of 2000. Reason for the petitioner to appear before the Recovery Officer and to file objection was because certain property was sought to be attached and sold which the petitioner claims to be his. According to him late Jagmohan Singh had nothing to do with the said property and this property, obviously, could not be attached and sold in lieu of the dues. The objection filed on behalf of the petitioner has been duly noted and reflected in the order dated 28.10.2004 which is part of the writ application. The Recovery Officer has dealt with the objections as well as various facets of the law but adjourned the matter, may be for further consideration as well as production of few documents on behalf of the Bank. The proceeding meandered and - 3 - ultimately it seems that an order for proclamation was made, notice issued in the news paper and finally on 28.08.2008 auction sale was held and respondent no. 7 turned out to be the auction purchaser. Much after the sale and possession of the property was given the present petitioner filed the writ application in question on 27.11.2009 challenging the entire proceeding and decision of the Recovery Officer. Learned Senior Counsel representing the petitioner submits that the property in question was purchased by the present petitioner for a bonafide consideration from late Jagmohan Singh under the circumstances that one of the stair case to his property also fell in the share of portion of late Jagmohan Singh and he decided to purchase the said property in terms of annexure-1 dated 10.01.1991. If the right, title and interest in the property had passed in the hands of the petitioner, this property could not be auction sold by the Bank for recovery of the dues of the judgment debtor i.e. his brother. The other submission is that till the objection was decided by the Recovery Officer, he did not have the requisite power to pass any order of attachment and sale. If he has done so, then the entire proceeding stands vitiated and - 4 - the sale requires to be set aside. Yet another submission on behalf of the petitioner is that the sale has been effected in breach of section 68-B of the Second Schedule of the Debt Recovery Act as provided under section 29 of the Act. Attachment and sale is far too distant in time and, therefore, the sale has to be knocked off by judicial intervention. Final submission in this regard is that Rule 60 contemplates an opportunity to be given to the property holder to redeem the property by re-payment on certain terms and conditions. The petitioner is still willing to comply with those conditions and the property could be returned to him on the basis of those terms and conditions. The stand of the learned counsel representing the respondent Bank is that the objection filed on behalf of the present petitioner is only a sham. So is the transaction contained in Annexure-1. According to him there was only an agreement to sale and that too was entered between the brother of the petitioner who was the borrower as well as the present petitioner with the object of camouflaging this property from any future auction for the borrowings made by him. Such transaction has no legal value or cannot stand any - 5 - legal scrutiny. It is also his stand that the petitioner after filing the objection abandoned the proceeding which would be evident from series of orders which have come to be recorded by the Recovery Officer. He kept mum thereafter for reasons known to him alone. He did not raise any objection against the attachment, the proclamation thereafter and even when notices were issued in the news paper for sale. There is nothing to indicate that he was serious about challenging the sale. The auction sale was effected and possession given on 28.08.2008 but the writ application has been filed at a very belated stage now to undo things which have already been done in distant past. The stand of the private respondent is that he was a bona fide purchaser in auction sale. He deposited the requisite amount in terms of his bidding and possession came to be given to him in terms of the declaration made by the Recovery Officer. Thereafter he got the property mutated. There was never any challenge by the petitioner at any point of time except by putting up some resistance at the time of delivery of possession and when the district administration arrived at the venue. - 6 - The Court must fairly record that the Court is not very happy in the manner the proceeding was conducted by the Recovery Officer. Though in the order dated 28.10.2004 there is a detailed discussion on the objection of the petitioner and various aspects of law raised therein but some how no final conclusion had been recorded or reached. This Court has been given a bona fide understanding or perception by the petitioner that his objection had not been finally heard and decided. To that extent his submission was worthy of consideration but the Court is not willing to go the whole hog only for the reason that thereafter he had appeared before the Recovery Officer on many a dates and then given up appearing before the Recovery Officer for the reasons best known to him. He failed to participate in the proceeding and he also failed to challenge any of those decisions before the High Court or any other forum. There is a long silence. The petitioner has allowed things to drift and reach a conclusion. Even after auction sale he did not decide to come before the Court for more than a year. This by itself shows lack of keenness on the part of the petitioner to pursue the matter. The conduct of the petitioner to that extent may even amount - 7 - to waiver of his rights. The above facts do weigh with the Court in not interfering with the sale or the proceeding where it has reached. The petitioner has no satisfactory explanation for not approaching the Court well within time challenging such a decision or the subsequent proceedings or orders of the Recovery Officer at an appropriate time. The conduct of the petitioner by itself has precluded and prevented this Court from passing any order in his favour at this belated stage. The writ application has no merit. It is dismissed accordingly. AMIN (Ajay Kumar Tripathi, J.)