Surender Kumar vs State Bank Of Mysore & Ors.
2009 Latest Caselaw 2742 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Judgment delivered on: 21.07.2009

+      W.P.(C) No. 5247/2008 & CM No. 10014/2008


SURENDER KUMAR                                                ..... Petitioner


                          -Versus-


STATE BANK OF MYSORE & ORS.                                   ..... Respondent

Advocates who appeared in this case:-

For the Petitioner : Mr. Balvinder Ralhan, Advocate. For the Respondent : Mr. J.L. Jain, Advocate for respondent no. 1.

Mr. A.N. Tiwari, Advocate for respondent nos. 3 to 5.

CORAM:-

HON'BLE MR. JUSTICE BADAR DURREZ AHMED HON'BLE MS. JUSTICE VEENA BIRBAL

1. Whether Reporters of local papers may be allowed to see the judgment ?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in Digest?

BADAR DURREZ AHMED, J (oral)

1. The petitioner is an auction purchaser of property which forms the

subject matter of S.A. No. 24/2005 entitled Snehlata vs State Bank of

Mysore which is a petition under Section 17 (1) of The Securitization and

Reconstruction of Financial Assets and Enforcement of Security Interest

Act, 2002 pending before DRT - I, Delhi. The petitioner sought

impleadment in the said S.A. No. 24/2005. That was not acceded to by the

DRT by virtue of its order dated 16.10.2006. Being aggrieved by the said

order, the petitioner preferred an appeal being Miscellaneous Appeal No.

59/2007 in S.A. No. 24/2005 before the Debts Recovery Appellate Tribunal,

Delhi. That was also dismissed by the order dated 09.05.2008. As per the

impugned order, the sale in favour of the petitioner has not been confirmed

and, as such, his right to participate in the S.A. had not crystallized. While

dismissing the appeal, the Debts Recovery Appellate Tribunal made the

following observations: -

"12. It is also noted from the reply filed on behalf of the respondents 3 to 5 herein (appellants in S.A.) that they have also deposited an amount equivalent to the bid money deposited by the present appellant (Rs.23.10 lakhs). By order dated 23.3.2006, the Tribunal below directed the Bank to return the bid money to the highest bidder. It has not been shown that the appellant challenged the said order before this Tribunal. If he has not taken back his bid money, then it is his own option that he wants to be in the fray on the expectation that the respondents 3 to 5 herein (appellants in S.A.) would fail and he would ultimately succeed in the sale being confirmed in his favour. But all such thinking or expectation does not back his insistence for being impleaded as a party in the S.A. pending before the Tribunal below, where, as I said, the principal question for decision is the scrutiny of the pre-auction action taken by the Bank qua the property in question.

13. In view of above discussion, I see no merit in this appeal and the appeal is hereby dismissed. The parties are directed to appear before the Tribunal below on 30.5.2008 for further progress in the case. The Tribunal below is directed to decide the S.A. as expeditiously as possible."

2. Before us, the learned counsel for the petitioner submitted that the

money deposited by the petitioner with the respondent no. 1 Bank has not

yet been returned to the petitioner despite the fact that the sale has not been

confirmed. The learned counsel appearing for the respondent no. 1 Bank

submits that the money has not been returned because the petitioner has not

asked for its return and, secondly, because the money had not been received

by it from the respondents 3 to 5 who are the heirs of the original borrower

(Late Shri Jagbir Gupta).

This submission of the learned counsel for the respondent no. 1 has

been countered by the learned counsel appearing on behalf of the

respondents 3 to 5 by referring to the affidavit filed on behalf of respondent

no. 3 (Smt. Snehlata Gupta who is the widow of Late Shri Jagbir Gupta). In

the said affidavit dated 21.03.2009, the orders passed by the DRT - I on

08.03.2006 and 23.03.2006 have been extracted. The first order dated

08.03.2006 clearly indicates that the property in question had been

auctioned by the respondent Bank on 03.03.2006 and 25 per cent of the

auctioned amount had been deposited by the auction purchaser (the

petitioner herein). The respondent Bank was granted liberty to receive the

balance amount from the highest bidder. However, the respondent Bank

was directed not to confirm the sale till the next date. On 23.03.2006, the

DRT - I passed an order indicating that the property had been auctioned for

a sum of Rs. 23.10 lakhs and that now the respondent no. 3 was ready to pay

the said amount. The said amount was tendered through four demand drafts

of Rs. 1.9 lakhs, Rs. 6.2 lakhs, Rs. 9 lakhs and Rs. 3 lakhs totalling Rs.

20.10 lakhs. These demand drafts were dated 22.03.2006 and had been

handed over by the counsel for the respondent no. 3 to the counsel for the

respondent Bank. The DRT - I gave a specific direction that the said

amount could be appropriated by the respondent Bank without prejudice to

their rights and contentions. The said order dated 23.03.2006 also noted that

by virtue of the earlier order dated 08.03.2006, there was a direction for not

confirming the sale and that the sale had not been confirmed till date. It is in

this context that the respondent no. 3 was directed to deposit the balance

amount of Rs. 3 lakhs totalling Rs. 23.10 lakhs which was the amount

offered by the petitioner. The said sum of Rs. 3 lakhs was to be deposited

by 31.03.2006. As per the counsel for the parties, it was deposited by that

date. The said order dated 23.03.2006 clearly indicated that in case the

amount was deposited by respondent no. 3 with the respondent Bank, the

respondent Bank was to return the amount paid by the highest bidder

immediately.

3. Unfortunately, the respondent Bank has not returned the bid amount

to the highest bidder. The ground taken, as noted above, is that the highest

bidder (petitioner herein) did not ask for the return of the said amount and

secondly, that the amount was not received from the respondents 3 to 5.

The above narration of facts clearly indicate that the demand drafts were

tendered on 23.03.2006 itself and the responsibility for encashing the same

and appropriating the same was clearly on the respondent Bank. The order

dated 23.03.2006 had also placed the responsibility of returning the money

to the petitioner. The respondent Bank cannot, therefore, be absolved of its

liability to pay interest to the petitioner when the money is returned to him.

Consequently, we direct the respondent Bank to return the entire sum of Rs.

23.10 lakhs deposited by the petitioner along with simple interest @ 8 per

cent p.a. w.e.f. 22.03.2006. The said amount would be returned within one

week to the petitioner. Apart from these directions, we are not inclined to

interfere with the impugned order nor has the petitioner pressed for any

other direction at this stage.

4. The writ petition stands disposed of.

5. Dasti.

BADAR DURREZ AHMED, J

VEENA BIRBAL, J JULY 21, 2009 kks