Ram Karan Gupta vs Dayanand Gupta & Ors
2011 Latest Caselaw 5433 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of Judgment: 11.11.2011

+     CM (M) No. 1093/2011 & CM Nos.17530-31/2011

RAM KARAN GUPTA                                           ..... Petitioner
                           Through        Mr. Maninder Singh and
                                          Mr. Sanjeev Sachdev, Sr.
                                          Advocates with Mr. Praveen
                                          Chauhan, Mr. Amol Sinha, Ms.
                                          Anshum Jain & Mr. Nitin
                                          Kaushik, Advocates.

                    versus


DAYANAND GUPTA & ORS                          ... Respondent
                 Through       Mr. Rajeev Mehra, Sr.
                               Advocate with Mr S.A. Khan,
                               Advocate.
                            And
E.F.A No. 15/2011, Cav. No. 496/2011 & CM Nos.10602-
03/2011

RAM KARAN GUPTA                                           ..... appellant
                           Through        Mr. Maninder Singh and
                                          Mr. Sanjeev Sachdev, Sr.
                                          Advocates with Mr. Praveen
                                          Chauhan, Mr. Amol Sinha,
                                          Ms. Anshum Jain & Mr. Nitin
                                          Kaushik, Advocates.

                    versus


DAYANAND GUPTA & ORS                                     ... Respondent
                 Through                  Mr. Rajeev Mehra, Sr.
                                          Advocate with Mr S.A. Khan,
                                          Advocate.



CM (M) No. 1093/2011 & E.F.A No.15/2011                       Page 1 of 12
 CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

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

     2. To be referred to the Reporter or not?                Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J. (Oral)

1. These are two petitions which have been filed by the

petitioner Ram Karan Gupta.

(i) The first is Execution First Appeal No. 15/2011. This

appeal has been directed against the impugned order dated

24.03.2011 vide which the Executing Court had disposed of

the application filed by the auction purchaser under Order

21 Rules 94 & 95 of the Code of Civil Procedure (hereinafter

referred to as the „Code‟) as also the objections filed by the

objector/ judgment debtor namely Ram Karan Gupta and

had directed that since the auction of the suit property

dated 08.10.2010 has been confirmed, a sale certificate be

directed to be issued in the name of the auction purchaser

and necessary documents for the mutation of the said

property had been given. Execution petition had been

disposed of accordingly.

(ii) The second petition is CM No. 1093/2011 which has

assailed the order dated 09.08.2011 passed by the

Executing Court whereby the application filed by the

auction purchaser under Order 21 Rule 95 of the Code for

delivery of the suit property in his favour for which an

earlier order had been passed by the Executing Court on

24.03.2011 (impugned order in the Execution First Appeal)

had also been disposed of directing all the judgment

debtors/decree holder to comply with the formalities

regarding execution of the relevant document in favour of

the auction purchase and to handover the vacant physical

possession to him within two months from the date of the

order i.e. within two months from 09.08.2011.

These two petitions are the subject matter of the present

proceedings.

2. On behalf of the petitioner vehement arguments have been

addressed challenging the auction whereby the Court auctioneer

had accepted 25% of the bid amount; his contention is that there

is a mandate under Order 21 Rules 84 & 85 of the Code whereby

25% of the bid amount has to be deposited immediately i.e. on the

fall of the hammer; attention has been drawn to the pleadings

before the Executing Court; contention being that the Auction

Purchaser in his reply in para 24 (page 107 of the paper book of

Execution First Appeal) has clearly admitted that 25% the bid

amount i.e. a sum of Rs.2.40 crores had been deposited on

11.10.2010; contention being that the mandate under Order 21

Rules 84 & 85 of the Code has not been complied with and since

the bid amount had not been deposited on 08.10.2010, the entire

sale transaction is void and is liable to be set aside. To support his

submission, learned counsel for the petitioner has placed reliance

upon the judgment of the Apex Court reported in AIR 1954 SC 349

Manilal Mahonlal Shah and Others Vs. Sardar Sayed Ahmed

Sayed Mahmad & another as also another judgment of the Apex

Court reported in AIR 1996 SC 2781 Balram Vs. Ilam Singh &

Others; submission being reiterated that the mandate of Order 21

Rule 84 of the Code specifically postulates that 25% of the

purchase money in an auction bid has to be paid immediately on

the person being declared as a purchaser and the balance 75%

has to be paid within 15 days of the sale; both the provisions are

independent and mandatory and upon non-compliance of these

provisions, there is no sale at all. Attention has also been drawn to

the reply filed by the Court auctioneer in the pending execution

proceedings wherein the Court auctioneer has stated that 25% of

the bid amount comprising of Rs.2.40 crores had been paid by the

auction purchaser on the same day i.e. 08.10.2012; submission

being that this version of the court auctioneer is clearly in conflict

with the version of the auction purchaser who has admitted that

this amount has been deposited on 11.10.2010; mandate of Order

21 Rules 84 & 85 of the Code not having been complied with, sale

is void. Further objection of the petitioner that since he is a

member of the family, he be permitted to get the sale deed

executed in his favour; contention being that in family matters,

the member of the family should be given a preemptive right and

by accepting this proposal of the petitioner, no prejudice will be

suffered as the full auction amount which was in the sum of

Rs.9.60 crores is ready to be paid by the petitioner; his contention

is that in fact an application to the said effect had also been filed

by him before the Executing Court but this request has not been

acceded to by the impugned order.

3. Arguments have been countered. It is pointed out that 25%

of the sale figure comprising of Rs.2.40 crores had been paid by

the auction purchaser on 08.10.2010 itself and the record speaks

for itself.

4. Record has been perused. Submission of learned counsel for

the respondent has force. Record shows that the property which is

the subject matter of the present dispute is property bearing No.

I-87, Ashok Vihar, Phase-I, New Delhi; Ms. Shubra Mendiratta had

been appointed as the Court auctioneer and a public noted had

been issued advertising the sale of this property in terms of Order

21 Rule 67 (2) of the Code; this public notice clearly states that

the Court auctioneer namely Shubhra Mendiratta will announce

terms and conditions on the spot; entry fee of Rs.10 lacs had to be

been deposited by each participant by way of a demand draft in

the name of the Court auctioneer; this public notice is dated

04.09.2010. The auction was admittedly held on 08.10.2010.

Contention of the petitioner that the entry fee of Rs.10 lacs has

not been paid by the petitioner is also ill-founded; vehement

contention of the petitioner is that in the report of the Court

auctioneer dated 08.10.2010, there is no mention that the entry

fee of Rs.10 lacs has been deposited by the auction purchaser

namely M/s J.S. Exims Pvt. Ltd.

5. Before disposing of the execution petition on 24.03.2011

and the rival contentions of the respective parties, the Executing

Court had recorded the statement of the Court auctioneer which

is dated 21.03.2011, the Court auctioneer Ms. Shubhra

Mendiratta has on oath clearly stated that she has received the

sum of Rs.10 lacs vide DD No.36515 & 36516 dated 08.10.2010 as

an entry fee from the auction purchaser; merely because this did

not find mention in the report of the court auctioneer is no ground

to hold that this amount had in fact not been deposited; perusal of

the report of the Court auctioneer which is dated 8.10.2010

shows that there were 24 persons who had participated in this

auction and their names finds mention in this report; in terms of

the conditions of the auction, a person was entitled to bid only if

he had paid the entry fee of Rs.10 lacs; the Court auctioneer on

oath has also deposed that this amount of Rs.10 lacs has been

received as entry fee vide the aforenoted DD from the auction

purchaser; this argument of learned counsel for the petitioner is

thus completely forceless. It is also not in dispute that the earnest

money of Rs.2.40 crores (25% of the bid amount of Rs.9.60 crores)

has been paid by 27 demand drafts details of which finds mention

in the Challan which had been submitted in the Treasury of the

State Bank of India; these drafts find mention at the back page of

the Challan; these demand drafts are undisputedly dated

08.10.2010. At this stage, it would also be relevant to note that

08.10.2010 was a Friday and 09.10.2010 being a second Saturday;

10.10.2010 being a Sunday; the Court auctioneer had thereafter

at the earliest on 11.10.2010 moved an application before the

concerned Court seeking permission of the Court to deposit 25%

of the aforenoted bid amount of Rs.2.40 crores which application

is on record. Permission had accordingly been granted on the

same day. The submission of learned counsel for the petitioner

that this challan shows that the amount had in fact been deposited

on 15.10.2010 is an argument worthy of no merit as the demand

drafts are admittedly dated 08.10.2010; the report of the court

auctioneer which is dated 08.10.2010 clearly mentions that these

demand drafts of Rs.2.40 crores has been deposited by the auction

purchaser with the Court auctioneer on 8.10.2010; it was

obviously for the reason noted supra i.e. 09th and 10th October,

2010 being Court holidays that the Court auctioneer could move

the Court seeking permission of the Court to deposit the

aforenoted amount only as early as on 11.10.2010 which

permission was granted and the amount was deposited thereafter.

6. The mandate of Order 21 Rules 84 & 85 of the Code is to

ensure that 25% of the bid amount is paid on the date of the

auction itself which in clear terms had been done by auction

purchaser; he had paid Rs. 2.40 crores on 8.10.2010 itself to the

court auctioneer and this also find mention in her report dated

08.10.2010. This has also been reiterated by the court auctioneer

in her statement on oath before the Executing Court dated

21.03.2011. Details of the drafts have been mentioned in the said

statement and merely because the details of the said drafts did

not find mention in the report dated 08.10.2010 is again no

argument of the petitioner to hold that these amounts were in fact

not been paid by the auction purchaser on the said date. It is also

not the case of the petitioner before this Court that these drafts

have been anti-dated i.e. that have been prepared subsequently

but given on an earlier date.

7. The submission of the petitioner that the auction purchaser

in his reply in the proceeding before the Executing Court in para

24 (page 107 of the Execution First Appeal) had stated that the

payment of Rs.2.40 crores has been deposited on 11.10.2010 also

has to be read necessarily in conformity with the earlier part of

his reply wherein in paras 11 & 12 he has clearly stated that 25%

of the bid amount was paid immediately by the auction purchaser

with the Court auctioneer; para 24 merely states that the amount

was deposited on 11.10.2010 which is the date when the amount

was deposited in the court treasury after taking the necessary

permission from the court. Emphasis is on the word "pay" as

appearing in Order 21 Rule 84 and there is a clear distinction

between "pay" and "deposit". Thus this does not in any manner

amount to an admission by the auction purchaser that he had not

paid Rs.2.40 crores to the Court auctioneer on 08.10.2010.

8. This 25% bid amount had in fact been paid immediately.

9. The word „immediately‟ as occurring in Order 21 Rule 84 of

the Code has in fact been expanded by the Apex Court in AIR

2007 SC 998 Rosali Vs. V.Talco Bank & Others where the Court

has noted herein as under:-

"The term "immediately", therefore, must be construed having regard to the aforementioned principles. The term has two meanings. One, indicating the relation of cause and effect and the other, the absence of time between two events. In the former sense, it means proximately, without intervention of anything, as opposed to "mediately," In the latter sense, it means instantaneously.

31. The term "immediately," is, thus required to be construed as meaning with all reasonable speed, considering the circumstances of the case. (See Halsbury‟s Laws of England, 4th Edition, Vol. 23 para 1618 p.1178).

32. In a given situation, the term "immediately" may mean "within reasonable time. Where an act is to be done within reasonable time, it must be done immediately."

10. This was a case where the auction purchaser had been

granted time to pay the amount on the next day as the Bank was

closed on the previous day which in the circumstances of the case

the Apex Court had noted to have fulfilled the specific

requirement of law.

11. Dealing with the principle of the interpretation of a statute,

the Apex Court had noted that a statute must be read reasonably;

it must be construed having regard to its legislative intent; it has

to be meaningful; it must fulfill the object and purport of the

legislative intent; it is also a well settled principle of law that the

common sense construction rule should be taken recourse to in

certain cases. With these observations in mind, the term

immediately had been expounded by the Apex Court. In the

instant case record clearly speaks for itself; 27 drafts of Rs.2.40

crores had been paid to the Court auctioneer on 08.10.2010 and

this finds mention in the report of the Court auctioneer dated

08.10.2010; the Court auctioneer had moved an application

seeking permission of the Court to deposit the aforenoted amount

on 11.10.2010 only for the contingencies explained above i.e. 09 th

and 10th October, 2010 being holidays of the Court; the mandate

of Order 21 Rule 84 of the Code is upon the auction purchaser to

pay 25% of the bid amount immediately which in this case he had

adhered to. 25% of the bid amount had been paid by the Auction

Purchaser to the court auctioneer on 8.10.2010 i.e. on that day

itself and at the cost of repetition, this finds mention in the

statement of the Court auctioneer also which had been recorded

on 21.03.2011 pursuant to which the impugned order was passed.

12. There is no dispute to the proposition that Order 21 Rules

84 & 85 of the Code are mandatory provisions; said provisions

have been fully complied with. The objections of the objector are

without any merit. The order of the trial Court confirming the sale

and directing the parties to execute documents of title in favour of

the auction purchaser thus suffers from no infirmity.

13. Both petitions are dismissed.

INDERMEET KAUR,J NOVEMBER 11, 2011 A