IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11504 of 2009 M/S AKASH TYRE HOUSE PVT.LTD. Versus THE UNION OF INDIA & ORS ----------- 3 10.9.2009 Heard the learned counsel for the petitioner, Bank as well as the counsel for the respondents no.7 and 8. The petitioner is aggrieved by order dated 3.8.2009 passed by Debt Recovery Officer, D.R.T., Patna, in R.P.No.13 of 2006 whereby mortgaged properties of petitioner have been auction sold for Rs.63.30 lacs to respondents no.7 and 8 jointly. The petitioner further prays for permission to sell the mortgaged properties for Rs.83/- lacs in order to settle his loan account under one time settlement scheme. The petitioner took cash credit loan of Rs.52/- lacs on 1.2.2001 from S.B.I., Exhibition Road Branch, which was subsequently enhanced to Rs.17/- lacs vide letter dated 27.3.2002. Petitioner no.1 through its Director, Umesh Kumar Churiwala, deposited title deed on 1.2.2001 of three Flats situated at Mohalla- Salimpur Ahra in the town of Patna with intention to create equitable mortgage in favour of the Bank. Subsequently the credit Account of the petitioner was transferred from Exhibition Road Branch to Specialized Commercial Branch, Dakbunglow Road, Patna. The petitioner obtained valuation report of the mortgaged property from an approved Chartered Engineer, Shri Ram Balak Prasad, who valued the same at Rs.72,04,800/-. The 2 valuation report is contained in Annexure-1. The Bank too got the mortgaged properties valued on 27.3.2002 through its valuer, Shri Upendra Kishore who valued the same as Rs.62.19 lacs. The valuation report is contained in Annexure-2. The Bank filed O.A. Case No.7/04 before D.R.T. ,Patna, for recovery of the debt of Rs.84,85,477.42 paise with pendentelite and future interest of 13% per annum. The aforesaid case was decreed vide order dated 22.2.2006. The Bank filed R.P.Case No.13 of 2006 for recovery of the decretal amount. By order dated 21.8.2008 passed in R.P.Case No.13 of 2006, the entire properties was attached. The petitioner filed writ application bearing C.W.J.C. No.14020/08 against it which is pending. Learned counsel submits that the Bank again got the mortgaged properties valued by Shri Upendra Kishore, who valued the same this time at Rs.46,71,668/- on 9.2.2006. The said report is contained in Annexure-3. The petitioner again filed application on 31.10.2008 before the Assistant Deputy General Manager, State Bank of India, Patna for settlement of loan A/c for Rs.83/- lacs and requested for permission to sell the mortgaged properties. The aforesaid application is contained in Annexure-4. No response came. Finding no way out, the petitioner approached General Manager, S.B.I., Mumbai, who directed the petitioner vide its letter dated 23.12.2008 to approach respondents no.4 and 5. Thereafter the petitioner filed various representations dated 6.1.2009 and 2.4.2009, 3 as contained in Annexure-6 series. Later on, the entire mortgaged properties of the petitioner was put to auction sale and the publication appeared in daily newspaper on 15.2.2009. In the auction sale, minimum value mentioned in the notice was Rs.73/- lacs. Thereafter another auction notice dated 5.6.2009 was published in ‘Hindustan daily’ dated 7.6.2009 wherein the minimum value was kept at Rs.66/- lacs. The petitioner has filed interlocutory application bearing I.A. No.5816/09 for quashing the order dated 3.9.2009 passed by Recovery Officer, D.R.T., Patna in R.P.No.No.13/06 whereby auction sale has been confirmed. As subsequent development took place during the pendency of the writ application, the prayer for amendment in relief portion is allowed. Amongst others, the petitioner has raised two main issues. He submits that Annexure-2 gives details of the mortgaged properties. He submits that the ground floor, first floor and second floor of flat in question measuring 1716 square feets was mortgaged whereas auction sale has been made in respect of 3438 square feet. Thus, he submits that the properties which was not even mortgaged has been auction sold .Thus he submits that the aforesaid auction sale and confirmation of sale is bad. He submits that the property was valued by a Government valuer on 7.1.2002 as Rs.72,04,800. Surprisingly one Upendra Kishore valued the three flats including land on 7.2.2006 at Rs.46.71 the lacs. The report is contained in Annexure-3. 4 However, Shri Upendra Kishore again on request of Bank on 4.10.2008 valued it at Rs.73/- lacs. On the basis of the aforesaid submissions, the petitioner has based his grounds for reliefs. Learned counsel for the Bank as well as respondents no.7 and 8 stated that the petitioner ought to have moved the Debt Recovery Tribunal in appeal in view of section 7 of the Recovery of the Debt Dues to Banks and Financial Institutions Act, 1993. Learned counsel for the Bank and respondents in support of their contentions have relied upon the decision in the case of P.N.B. vrs.K.Krishna reported in 2000 SC 3208. However, it seems strange as to how the valuation of the property was estimated at Rs.46,71,668/- by Upendra Kishore on 9.2.2006 as contained in Annexure-3, whereas the same property was again valued by him as Rs.73/- lacs on 4.10.08. It is relevant to note that another approved valuer has valued it on 27.3.2002 at Rs.62,19 lacs. After hearing the learned counsel for the parties this Court observes that if the petitioner files appeal before the Tribunal he may take all these points before the learned court itself. Thus, this Court disposes of this writ application. The limitation matter would be considered sympathetically. In the meantime, status quo as of today would be maintained for four weeks. Anilkrsinha (Samarendra Pratap Singh, J.)