1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1135 OF 2009 IN EXECUTION APPLICATION NO.197 OF 2004 IN ARBITRATION PETITION NO.2 OF 2001 The National Small Industries Corporation Ltd. .. Applicants versus M/s.Kamal Traders & Ors. .. Respondents and Enpee Enterprises Pvt Ltd .. Applicants versus Sheriff of Bombay & Ors. .. Respondents Mr.M.Bajpai i/by R.J.Singh & Co for the claimants. Mr.Yadunath Chaudhari- Auction purchaser of Flat No.3B. Mr.N.C.Parekh i/by M/s.M.Hiralal & Co for the purchaser of flat No.3A. Mr.Jaideep Mitra i/by Deven Dwarkadas & Partners for respondent No.3. Ms.J.M.Sidhwa i/by B.N.Bhabda for the applicants in Chamber Summons No.1135 of 2009. CORAM : A.S.OKA, J. DATE : 12th November 2009. P.C: . Heard learned counsel appearing for the applicant in support of the chamber summons. The prayer in this chamber summons is for directing the Sheriff of Bombay to refund a sum of Rs.5,00,000/- paid by the applicant towards the earnest money deposit. An auction sale of two flats being Flat 2 No.3B and 3A, more particularly described in the Sheriff’s notice published in Times of India ordered. A bid was submitted by the applicant. The bid related to flat No.3A. The bid submitted by the applicant was found to be highest and he was declared as successful purchaser of the said flat No.3A in auction held on 31st March 2009 at about 2.15 p.m. It appears that as per the terms and conditions of the sale, 25% of the amount of purchase price was to be deposited up to 4.00 p.m on the same day and thereafter the balance purchase price was to be deposited within 30 days. The case of the applicant is that he got pay-order prepared for Rs.67,00,000/- representing more than 25% of the bid amount. The case of the applicant that the pay- order was prepared and kept ready by 5.30 p.m on 31st March 2009. As the amount was not paid by 4.00 p.m, the said amount has been forfeited. 2. The learned counsel appearing for the applicant invited my attention to the Sheriff’s notice of auction published in newspaper. She submitted that the applicant will have to be treated as an unsuccessful bidder and in terms of the 2nd clause of the said notice, the applicant will be entitled to refund of Rs.5,00,000/-. She submitted that it is an admitted position that the pay- order representing more than 25% of the sale price was obtained by the applicant on the same day and there was a delay of only one and half hours in tendering the pay-order. She submitted that as the flat has been successfully sold, the amount of RS.5,00,000/- being earnest money deposited by the applicant cannot be retained by the Sheriff. 3 3. I have given careful consideration to the submissions. The public notice of sale also refers to further terms and conditions of the sale which were available with the Sheriff’s office. Clause 5 of the said terms and conditions enjoins the successful bidder to deposit 25% of the amount of the purchase price on the same day of the auction sale up to 4.00 p.m in the office of the Sheriff. Clause 6 of the said terms and conditions provides that the person whose bid has been accepted shall pay purchase price in accordance with clause No.5 which is referred to above failing which the property shall be again put up for sale. Clause No.6 provides that in such a case, earnest money deposit of Rs.5,00,000/- and any other amount paid towards the sale shall be forfeited. The 2nd clause of public notice of the Sheriff will not help the applicant as the same refers to the refund of the earnest money deposit to unsuccessful bidders. The case of the applicant who is the successful bidder will be governed by Clauses 5 and 6 of the terms and conditions of the sale. The admitted fact is that 25% of the purchase price could not be deposited by the applicant by 4.00 p.m. Therefore, the flat was ordered to be re-sold and earnest money deposit of Rs.5,00,000/- has been rightly forfeited in terms of Clause No.6. 4. The learned counsel appearing for the applicant submits that a sympathetic view will have to be taken by the Court as subsequently the said flat No.3A has been successfully sold and the entire sale price has been deposited. The applicant was fully aware of all the terms and conditions including Clause Nos.5 and 6. Admittedly, the applicant could not 4 comply with the requirement of the Clause No.5 by depositing 25% of the amount by 4.00 p.m. After having participated in the auction on the basis of the said terms and conditions, now the applicant cannot come to the Court and contend that the condition regarding forfeiture should be relaxed. In the circumstances, no relief can be granted in favour of the applicant. Chamber summons is dismissed. (A.S.OKA,J)