CR No.4207 of 2010 - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CR No.4207 of 2010 DATE OF DECISION: 08.07.2010 **** Arvinder Singh . . . . Petitioner VS. Union of India through Defence Estate Officer, Kendriya Sadan Sector 9, Chandigarh and another . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.V.K. Thakur, Advocate for the petitioner. **** RAKESH KUMAR JAIN J. The petitioner has challenged the order dated 26.5.2010 (Annexure P-5) passed by District Judge, Bathinda by which he has dismissed objections filed by the judgment debtors (hereinafter referred to as ‘JD’) against the sale of the attached property and an application filed by the petitioner, who has purchased property in question in the Court auction held on 19.3.2010 who could not deposit balance 75% of the sale consideration within the stipulated period and had filed two applications, one for allowing him to deposit CR No.4207 of 2010 - 2 - balance 75% of the total sale consideration dated 12.4.2010 and the other application dated 24.5.2010 for condonation of delay caused in depositing the balance sale consideration of 75%. The learned District Judge Bathinda vide his order dated 26.5.2010 dismissed the application filed by JD against the sale of the attached property and application filed by the petitioner/auction purchaser for condoning the delay in depositing balance sale consideration of 75% or in a way permitting him to deposit the said amount after the expiry of the stipulated period. Since this revision petition has been filed only by the auction purchaser, therefore, the Court is concerned with his prayer for depositing balance sale consideration of 75% after due date which has been declined by the learned Court below vide its order dated 26.5.2010 (Annexure P-5) In brief, an execution application was filed by the decree holders against the JD in which the Court had attached the property of JD and put it to Court auction, which was held on 19.3.2010, in which petitioner was declared to be the highest bidder for an amount of Rs.30,08,000/-. He deposited 25% of the auction amount, namely Rs.7,52,000/- at the time of bid and was required to deposit the remaining 75% of the auction amount on or before 3.4.2010. Admittedly, the remaining sale consideration was not deposited by the petitioner. He filed an application before the Executing Court on 12.4.2010 simply praying that he may be allowed to deposit the remaining 75% of the sale consideration i.e. 22,56,000/-. In the said application, no reason was assigned by the petitioner for not depositing the balance sale consideration on or before 3.4.2010. Later on, the petitioner filed an application dated 24.5.2010 seeking CR No.4207 of 2010 - 3 - condonation of delay in depositing the balance sale consideration. Again no reason was assigned in the application except for averring that he is an illiterate rustic villager and was not aware of complication of law therefore, he could not deposit the remaining 75% of amount within 15 days but he is ready and willing to deposit the same. The learned Court below rejected the prayer of the petitioner with the following observations: - “The auction of the attached property was held on 19.3.2010 and in that way, the auction purchaser was obliged to deposit 75% of the bid money before 3.4.2010 positively but he filed the application on 6.5.2010 i.e. after a gap of 47 days. No circumstances have been explained by the auction purchaser in the application as to why he could not deposit 3/4th of the bid money within the stipulated period. In the case of the citation, it was observed by the Hon’ble Himachal Pradesh High Court that the auction purchaser could not deposit the remaining amount of 75% of the sale price in compliance of Rule 85 of Order XXI of the Code of Civil Procedure, as he was made to understand by the auctioneer-Tehsildar that he was to deposit the balance of the sale price after the same was confirmed by the Hon’ble High Court and the order of confirmation of sale was not only passed in his absence, but notice of the said order was also sent to him after near about one year by which period he had already deposited the balance of sale price, on receipt of notice seeking his clarification whether he had deposited the auction money or not and, CR No.4207 of 2010 - 4 - therefore, it was held that auction purchaser could not be held ‘defaulter’ and the sale could not be set aside. Apparently, no such circumstances have been brought out by the auction purchaser in our case and, therefore, the Court has got no option but to set aside the sale of the attached property of the JD in default of the auction purchaser having deposited the 75% of the bid money within the stipulated period. Since the sale of the property of the JD could not be confirmed because of the default on the part of the auction purchaser, who has not been able to make out any circumstances as to why he could not deposit the balance 75% of the bid money, I am of the considered view that in such a circumstance taking into account the status of the institution of which property was involved in the auction proceedings, as also the valuable time of the Court, it is desired expedient that the deposit of 25% of the bid money be forfeited to the State after defraying the expense of the sale and to order the re-sale of the property. Ordered accordingly. The auction purchaser being a defaulter shall have no claim against the property of JD or to any part of the sum for which it may subsequently be sold.” Aggrieved against the aforesaid order, present revision petition has been preferred in which learned counsel for the petitioner has basically repeated the averments made in the CR No.4207 of 2010 - 5 - applications referred to hereinabove. He has also submitted that 25% amount, deposited by him at the time of bid, has been illegally ordered to be forfeited. In order to appreciate the submissions made by learned counsel for the petitioner, it would be worthwhile to refer to some provisions, namely, Order 21 Rule 84, 85 and 86 of the Code of Civil Procedure, 1908 (for short ‘CPC’): “Order 21 Rule 84: - Deposit by purchase and re-sale on default – (1) On every sale of immovable property the person declared to be the purchaser shall pay immediately after such declaration a deposit of twenty-five per cent. On the amount of his purchase-money to the office or other person conducting the sale, and in default of such deposit, the property shall forthwith be re-sold. (2) Where the decree-holder is the purchaser and is entitled to set off the purchase –money under rule 72, the Court may dispense with the requirements of this rule. Order 21 Rule 85: - Time for payment in full of purchase-money – The full amount of purchase-money payable shall be paid by the purchaser into Court before the Court closes on the fifteenth day from the sale of the property; Provided that, in calculating the amount to be so paid into Court, the purchaser shall have the advantage of any set-off to which he may be entitled under rule 72. CR No.4207 of 2010 - 6 - Order 21 Rule 86: - Procedure in default of payment – In default of payment within the period mentioned in the last preceding rule, the deposit may, if the Court thinks fit, after defraying the expenses of the sale, be forfeited to the Government, and the property shall be re-sold, and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may subsequently be sold.” According to Order 21 Rule 84 of the CPC, at the time of auction the highest bidder is required to deposit 25% of the purchase money. In case of his fault of deposit, the Court has no alternative but to resell the property forthwith. As per Order 21 Rule 85, after the deposit of 25%, the remaining 75% has to be paid by the auction purchaser in Court before the Court closes on the 15th day from the date of sale of the property. In this regard, no permission of the Court is required for deposit of the amount. Order 21 Rule 86 further provides that where the auction purchaser continues to commit default in depositing amount as per Order 21 Rule 85, the initial deposit of 25% is to be forfeited after defraying the expenses incurred in the sale and the property has to be resold. The defaulting auction purchaser shall forfeit his claim to the property or to any part of the amount for which the property may be subsequently sold, meaning thereby he cannot claim reimbursement of the amount which has been deposited by him at the time of initial bid and would loose his claim CR No.4207 of 2010 - 7 - over the property for all times to come which was intended to be purchased by him. Needless to say that in the case of “Manilal Mohanlal Shah and Others Vs. Sardar Sayed Ahmed Sayed Mahmad and another” AIR 1954 SC 349, the Hon’ble Supreme Court has held that provisions of Order 21 Rule 84, 85 & 86 of the CPC are mandatory in nature and the period of 15 days cannot be extended at all, therefore, there is no error in the order of the learned Court below by which the application filed by the petitioner for permission to deposit the balance sale consideration of 75% has been declined as the time period enshrined in Order 21 Rule 85 of the CPC cannot be extended. In view of the above discussion, I do not find any merit in the present revision petition and as such the same is hereby dismissed. No costs. (RAKESH KUMAR JAIN) 08.07.2010 JUDGE Vivek