IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 06.07.2011 CORAM THE HONOURABLE MR. JUSTICE A.ARUMUGHASWAMY A.S. NO. 469 OF 2008 P.K.Sengodan .. Appellant/Plaintiff - Vs - 1. The Branch Manager Tamil Nadu Industrial Investment Corporation Ltd. Dr. Sankaran Road Namakkal. 2. The Divisional Manager Special Recovery Branch Tamil Nadu Industrial Investment Corporation Ltd. Door No.3/3, Valmiki Street Subramanian Nagar Salem Town. .. Respondents/Defendants Appeal filed under section 96 of CPC against the judgment and decree dated 28th Sept., 2007, made by the Additional District Judge, Fast Track Court, Namakkal in O.S. No.234 of 2004. For Petitioner : Mr. R.Subramanian For Respondents : Mr. R.P.Kabilan, SC, for M/s. R.Krishnaswami JUDGMENT The plaintiff filed the suit for specific performance against the defendants for the relief of sale of the land as shown in the description, i.e., 15,788 sq.ft., together with an ACC superstructure measuring 1140 sq.ft. for a sum of Rs.5,43,107/-. The suit has been filed by the plaintiff on the strength that he was the successful bidder in the auction, for an amount of Rs.7,25,000/=. According to the plaintiff, he has also paid the 10% amount, i.e., Rs.72,500/= immediately and the balance amount was to be paid within a period of 30 days therefrom. However, after bidding in the auction, the plaintiff applied for an encumbrance certificate, which showed that there is an encumbrance of an extent of 5300 sq.ft., which has been ear-marked for public purpose and that the plaintiff would be sold only the balance portion of 15788 sq.ft. However, the said fact was https://hcservices.ecourts.gov.in/hcservices/ not mentioned in the publication and, since there was misrepresentation in the publication, the plaintiff filed the suit praying for a decree for specific performance of sale of 15,788 sq.ft. alone for a total sale consideration of Rs.5,43,107/=. 2. The defendant contended the suit stating that the plaintiff cannot contend that he can pay only for 15788 sq.ft., as he has purchased the land in public auction. Further, the plaintiff has not paid the balance bid amount within the time stipulated and, therefore, cannot raise the plea that he cannot be asked to pay for the 5300 sq.ft., area that has been ear-marked for public purpose. It was also contended that the publication carries the information that the land is being auctioned in 'as is where is' condition and the plaintiff should have satisfied himself before bidding in the auction and cannot at a later stage contend that he cannot be made to pay for the 5300 sq.ft. of area, which has been ear-marked for public purpose, as he has purchased the land in the public auction. Hence, it was contended that the suit has to be dismissed and the judgment and decree of the trial court has to be confirmed. 3. On the side of the plaintiff, P.W.s 1 and 2 were examined and Exs.A-1 to A-12 were marked. The defendants examined D.W.1 and marked Exs.B-1 to B-4. Witness exhibits X-1 and X-2 were also marked. On the basis of both oral and documentary evidence, the trial court dismissed the suit against which the plaintiff has preferred the present appeal. 4. The point that arises for consideration in this appeal is :- “If the publication is a misconceived one, whether the plaintiff is entitled for the relief of specific performance less 5300 sq.ft. of land out of the total extent of 21088 sq.ft.?” 5. The plaintiff is the appellant. It is not in dispute that the defendant advanced loan to the company, M/s.Shine Granites and the owner of the property is the guarantor for the said debt. Publication was issued by the defendant for auctioning the property of an extent of 21088 sq.ft., along with a superstructure of 1140 sq.ft., The said publication as well as the terms and conditions set forth in the publication are not in dispute. It is also not in dispute that the plaintiff was the successful bidder for an amount of Rs.7,25,000/=, out of which he deposited Rs.72,500/=, being the 10% amount to be paid on confirmation of the bid and the balance amount to be paid within 30 days therefrom. 6. It is vehemently contended by the appellant that since the publication misrepresented the facts as if the entire extent of 21088 sq.ft., is to be sold, though the actual extent to be sold is only 15788 sq.ft., and 5300 sq.ft. is ear-marked for public purpose, the plaintiff cannot be made to pay the sale consideration for the entire extent, rather the plaintiff should be allowed to pay only for the extent of 15788 sq.ft., which the trial court lost sight of and, therefore, the appeal has to be allowed. https://hcservices.ecourts.gov.in/hcservices/ 7. On the other hand, learned senior counsel appearing for the defendant/respondent contended that publication has been effected, wherein one of the terms mentioned is 'as is where is' condition. Knowing fully well about such terms, the plaintiff participated in the auction where he was the successful bidder and he having deposited 10% of the amount, he should have deposited the balance amount within the stipulated time of 30 days, which he failed to do and, therefore, now he cannot seek remedy that he be allowed to pay only for the extent of 15788 sq.ft.. Further, the auction being a public auction, the prayer of the plaintiff cannot be acceded to and for violation of the terms and conditions the respondent was right in forfeiting the amount and, therefore, he prayed that the appeal be dismissed and the judgment and decree of the trial court be confirmed. 8. Heard the learned counsel appearing on either side and perused the materials available on record. 9. As already noticed above, the terms and conditions as shown in the publication are not disputed. It is also admitted by either side that the guarantor is not the owner of the entire extent of 21088 sq.ft., while he is the owner only in respect of an extent of 15788 sq.ft. along with a superstructure measuring 1140 sq.ft., the balance of 5300 sq.ft., has been ear-marked for public purpose. Therefore, it is clear from the above that the extent mentioned in the publication is not a correct one. It is also clear from the pleadings as well as the evidence that the guarantor is entitled only for an extent of 15788 sq.ft. of land and not the whole 21088 sq.ft. As submitted by the learned counsel for the appellant, the respondent being a public undertaking is expected to publish correct facts/details as to the extent of area of the property to be auctioned and cannot publish fanciful details to attract the bidders for the purpose of obtaining higher bid. However, it is clear from the records that the respondent was also not aware of the actual fact that 5300 sq.ft. was ear-marked for public purpose, due to which it has published the entire extent as the available area of the guarantor, though the guarantor is entitled for 15788 sq.ft. alone. 10. Be that as it may. The plaintiff, with open eyes, without ascertaining the actual extent of the property for the seventh time, participated in the auction and was the successful bidder. Only thereafter, based on Ex.P-7, encumbrance certificate, he came to know about the actual extent of the property and sought to make payment only for the reduced extent of 15788 sq.ft., which the respondent refused, as the appellant purchased the property in public auction and that the respondent has no authority to accept a lesser price for the lesser extent of land. In the above background, neither the respondent nor the guarantor can be held responsible. It is for the auction purchaser to be aware of the encumbrance made and the 1st and 2nd respondent cannot in any way certify as to the title of the guarantor's property. https://hcservices.ecourts.gov.in/hcservices/ 11. Finding : Accordingly, the point is answered against the appellant/plaintiff, that he is not entitled for the relief of specific performance for lesser extent as indicted above. 11. On a careful consideration of all the above aspects, finding no infirmity with the judgment and decree of the trial court, this Court holds that no interference is called for with the impugned judgment. However, as the respondent has given the wrong extent of area in the publication, which has led to this adjudication, they are not entitled for any costs. Further a perusal of the records it is seen that the court fee paid by the plaintiff also is not in accordance with Section 42 of the Tamil Nadu Court Fees Act. However, at this stage, this Court is not inclined to go into the same. With the aforesaid observations, this appeal is dismissed. However, there will be no order as to costs. Sd/ Deputy Registrar /true copy/ Sub Asst.Registrar GLN To 1. The Additional District Judge, (Fast Track Court) Namakkal 1 cc To M/s.R.Subramanian, Advocate, SR.40094 1 cc To Mr.R.P.Kabilan, Advocate, SR.40115 A.S. NO. 469 OF 2008 KSK (CO) RH (8.8.11) https://hcservices.ecourts.gov.in/hcservices/