NEUTRAL CITATION
C/SCA/9429/2021 ORDER DATED: 15/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9429 of 2021
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UMIYA ELECTRIC WORKS THROUGH PROPRIETOR DIPAK BABULAL
PATEL
Versus
AUTHORIZED OFFICER OF Bank OF INDIA
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Appearance:
RITESH D PATADIA(6460) for the Petitioner(s) No. 1
KULDEEP K ADESARA(9222) for the Respondent(s) No. 1
MR KM PARIKH(575) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 15/09/2023
ORAL ORDER
1. RULE returnable forthwith. Learned Assistant Government Pleader Mr. Jay Trivedi waives service of notice of rule on behalf of the respondent - State and learned advocate Mr. K.M. Parikh waives service of notice of rule on behalf of the respondent - Bank.
2. By consent of learned advocates appearing for the respective parties, the matter was heard finally.
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3. Heard learned advocate Mr. Ritesh D. Patadia appearing for the petitioner and learned advocate Mr. K.M. Parikh appearing for the respondent - Bank.
4. By way of this petition, the petitioner has prayed for a direction against the respondent Bank for refund of EMD amount being Rs.3,92,000/- with interest.
5. As per the case of petitioner, the petitioner has participated in an auction, pursuant to an advertisement for auction, dated 5.2.2021 in local newspaper, deposited a sum of Rs.3,92,000/- towards EMD through NEFT from ICICI Bank Ltd in the account of respondent Bank on 5.3.2021. The auction was in respect of plant and machinery situated at Survey No.38 paikki, Village : Madhvipura, Gatadiya Highway, Ghela Somnath Road, Taluka: Jasdan, District : Rajkot. After depositing the aforesaid EMD, as per the case of the petitioner, as the family members of the petitioner were suffering from COVID-19, the Page 2 of 7 Downloaded on : Sat Sep 16 17:24:17 IST 2023 NEUTRAL CITATION C/SCA/9429/2021 ORDER DATED: 15/09/2023 undefined petitioner sent an e-mail to the Bank, one day prior to the date, on which the auction was scheduled i.e. on 7.3.2021, as the auction was scheduled on 8.3.2021. However, despite the fact that aforesaid mail was sent, the mail was sent upon wrong email address by the petitioner and therefore, the aforesaid mail was never received by the Bank. Ultimately, the petitioner was the only person, who had shown interest in the property. However, as the petitioner did not participate in the auction, on that day, the auction remained unsuccessful.
6. Thereafter, as the petitioner did not participate in the auction, the petitioner requested the respondent Bank for refund of the EMD, on account of COVID-19 situation. However, the Bank did not return the aforesaid amount of EMD of Rs.3,92,000/- and therefore, this petition is preferred.
7. Learned advocate Mr. Ritesh Patadia submitted that on account of COVID-19 situation, as the Page 3 of 7 Downloaded on : Sat Sep 16 17:24:17 IST 2023 NEUTRAL CITATION C/SCA/9429/2021 ORDER DATED: 15/09/2023 undefined family members of the petitioner were suffering from COVID-19, the petitioner opted out of the auction and did not participate in the auction. The petitioner sent an email intimating the respondent Bank about the aforesaid facts. However, the email was sent on a wrong email address. Yet, the fact remains that, just one day prior to the auction, which was scheduled on 8.3.2021, the petitioner sent an email on 7.3.2021, showing the reasons why he intended to opt out from the auction.
7.1 Learned advocate Mr. Patadia submitted that in similar set of facts, even after participating in the auction, the Hon'ble Supreme Court in case of Alisha Khan Versus Indian Bank (Allahabad Bank) and others reported in Special Leave to Appeal (C) No(s). 15959- 15960 of 2021, has vide order dated 13.12.2021, directed the respondent Bank to return the amount, already deposited by the petitioner, by deducting Rs.50,000/- towards expenditure Page 4 of 7 Downloaded on : Sat Sep 16 17:24:17 IST 2023 NEUTRAL CITATION C/SCA/9429/2021 ORDER DATED: 15/09/2023 undefined incurred by the respondent Bank, for conducting the fresh auction. Learned advocate Mr. Patadia submitted that in the instant case also, by deducting the amount towards expenditure incurred by the Bank towards auction, the respondent Bank may be directed to return the remaining amount of EMD to the petitioner.
8. Learned advocate Mr. K.M. Parikh vehemently opposed the aforesaid petition and submitted that fact remains that email sent by the petitioner on 7.3.2021 showing his inability to participate in the auction has not reached the Bank. It is the duty of the petitioner to send the email on correct email address. On 8.3.2021, because of absence of non-participation of the petitioner in the auction, could not conduct the auction and ultimately, Bank had to enter into an OTS with the principal borrower. However, learned advocate Mr. Parikh could not point out that because of OTS, the Bank has incurred any losses.
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9. I have heard learned advocates appearing for the respective parties and perused the judgment of the Hon'ble Supreme Court in case of Alisha Khan (Supra), considering the fact that in the judgment, relied upon by learned advocate Mr. Patadia also, what was considered by the Hon'ble Supreme Court was the situation of COVID-19 pandemic as well as considering the fact that the respondent Bank has not incurred any losses because of opting out of the petitioner, of that case from the auction process. The Hon'be Supreme Court directed the respondent Bank to refund the entire amount, deposited by the petitioner, by deducting a sum of Rs.50,000/-, towards the expenditure incurred by the Bank for conducing an auction.
10. In the instant case also, as the Bank has already arrived at an OTS with the original borrower and as learned advocate Mr. Parikh from the record could not indicate that the Bank has incurred any losses, the interest of justice Page 6 of 7 Downloaded on : Sat Sep 16 17:24:17 IST 2023 NEUTRAL CITATION C/SCA/9429/2021 ORDER DATED: 15/09/2023 undefined would be served if, the Bank is directed to refund an amount of EMD deposited by the petitioner by deducting a sum of Rs.50,000/- towards the cost incurred by the Bank for carrying out the auction.
11. In view of above, the present petition is partly allowed. Rule made absolute to the aforesaid extent only. Direct service is permitted.
(NIRZAR S. DESAI,J) Pallavi Page 7 of 7 Downloaded on : Sat Sep 16 17:24:17 IST 2023