1wp-9948-09 IN THE HIGH COURT JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9948 OF 2009 M/s New Goodluck Timber Mart ...Petitioner. vs. D.R.Worlikar and others ...Respondents. --- Mr. A.A.Siddique, Advocate for the Petitioner. Mr. M. W. Rajput, Advocate for Respondent No.3. Mr Suresh Kumar, Advocate for Respondent Nos.1, 2 and 4. --- CORAM: D.K.DESHMUKH AND A.R.JOSHI, JJ. DATED: 8TH MARCH,2010 2wp-9948-09 P.C.: 1. Rule. Rule returnable forthwith. Heard finally by consent of parties. 2. Admittedly, respondent No.1 held auction of the property. The petitioner was declared as successful bidder. He deposited the money but he was not being given possession of the property. Therefore, he filed Writ Petition No.2407/2008 in this Court. That petition was disposed of by the order dated 2.9.2008. That order reads as under:- The learned Counsel appearing for Respondent No.1 states that because of the order passed by the Industrial Court, he has not been in a position to deliver the possession of the machinery which is sold by him to the petitioner, therefore, in case the petitioner makes an application to him for refund of money, that application will be considered in accordance with law. The statement is accepted. In view of this statement, the petition is disposed of. 3. The Respondent No.1 stated before the Court that he is not in a position to deliver possession of the 3wp-9948-09 property. Therefore, if the petitioner makes an application for refund of the money that application will be considered in accordance with law. The petitioner, therefore, has made application for refund of the amount. That application is decided by the order dated 5.11.2008. The order reads as under: With reference to your letter dtd. 27-10-2008 it is to state that the auction of movable property was conducted as per rule and certificate of sale was issued in favour of M/s New Goodluck Timber Mart, Asalfa Village, Ghatkopar (W), Mumbai. Two letters to Police station, Wada, also were given for the purpose of delivery of possession of movable property. The responsibility in respect of movable property ends here and there is no compulsion to depute any officer of this office for the purpose of delivery of movable property. Further this office was not a party to order passed by Hon ble Industrial Court, Thane dated 24.9.2007 and complaint (ULP) No.31/2006 filed by Shri Hemant S.Patil and others against M/s Surya Conductors Pvt Ltd. Hence, any order passed by Industrial Court 4wp-9948-09 in the above said disputes is not binding on this office. Since the auction was completed as per law and property duly handed over, it was the sole responsibility of the highest bidder to collect the goods as per auction procedure. Therefore, the application filed by M/s New Goodluck Timber Mart for refund of money cannot be considered. 4. Now, in this order respondent No.1 says that possession of the property was handed over and therefore it was the responsibility of the petitioner to collect the goods. This position is contrary to the stand taken by Respondent No.1 before this Court in W.P. No. 2470/2008. Perusal of the order dated 2.9.2008 quoted above shows that respondent No.1 stated that it is his responsibility to place the petitioner in possession and tha8/3/2010t he is not in a position to do so. In our opinion, therefore, the order dated 5.11.2008 quoted above is clearly contrary to the stand taken by respondent No.1 before this Court earlier and it cannot be sustained. As the Respondent No.1 is not in a position to deliver the possession of the property in our opinion 5wp-9948-09 he has to refund the amount to the petitioner. 5. In the result, therefore, the petition is allowed. Respondent Nos. 1 to 4 are directed to refund to the petitioner within four weeks from today whatever amount that was deposited by the petitioner, as the purchase price of the property in relation to which the petitioner was declared as the highest bidder. Rule made absolute accordingly. No order as to costs. (JUSTICE D.K.DESHMUKH) (JUSTICE A.R.JOSHI)