Gujarat High Court
Hiralben Mayurbhai Vakharia vs State Bank Of India on 29 October, 2021
Bench: J.B.Pardiwala, Niral R. Mehta
C/SCA/16580/2021 ORDER DATED: 29/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16580 of 2021
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HIRALBEN MAYURBHAI VAKHARIA
Versus
STATE BANK OF INDIA
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Appearance:
MR. SANDIP C BHATT(6324) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 29/10/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1. We have heard Mr.Sandip C. Bhatt, the learned counsel appearing
for the writ applicant.
2. The controversy involved in the present litigation is in a very
narrow compass. It appears from the materials on record that in
accordance with the auction notice issued by the Recovery Officer-II, the
Flat No.L-501 admeasuring 74 Sq. Yards on the 5 th floor of 'Abhishek
Apartment' situated opp.Ganesh Vidhayalaya, Nava Wadaj, Ahmedabad
was put to auction. The writ applicant herein participated in the auction
proceedings of the said flat referred to above and was declared as the
successful bidder. The bid of Rs.18.40 lakh as against the reserved price
C/SCA/16580/2021 ORDER DATED: 29/10/2021
of Rs.16 lakh came to be accepted by the Recovery Officer. The writ
applicant deposited 25% of the bid amount, but unfortunately failed to
deposit the balance 75% of the bid amount within the period of 15 days
from the date of the auction proceedings.
3. The facts of this case are bit unusual. We are saying so because the
writ applicant is residing as on date in the very same flat with her family.
The writ applicant appears to have landed up in trouble in connection
with one another transaction so far as the flat is concerned. The learned
counsel appearing for the writ applicant pointed out that the writ
applicant has applied for loan so far as the balance amount to be
deposited is concerned. According to him, the loan has already been
sanctioned and the writ applicant is likely to receive the cheque from the
bank within a span of 10 days from today. In the aforesaid background,
the writ applicant preferred I.A. No.351 of 2021 before the Debts
Recovery Tribunal-I, Ahmedabad. The same came to be rejected on
7.10.2021 and the matter has now been adjourned to 16.11.2021. The said
orders reads, thus;
"Dated: 07.10.2021
Present : Ms. Sangeeta Athavle counsel for CH Bank alongwith
Mr. Hemendra Chaudhary Officer of CH Bank. Mr. Dharmesh
C/SCA/16580/2021 ORDER DATED: 29/10/2021
Gurjar counsel for Auction Purchaser/Mrs. Hiral Mayurbhai
Vakharia
None for CDs
The counsel for Auction Purchaser/Mrs. Hiral Mayurbhai
Vakharia submitted that he has filed IA 351/2021 requesting to
extend the time to deposit the remaining 75% of the sale
proceeds up to 15.10.2021. Record reveal that auction was
held on 15.09.2021 and the TPO was declared as highest
bidder for Rs. 18,40,000/- against reserve price of Rs.
16,00,000/-.
The counsel for CH Bank handed over reply dated
07.10.2021. The counsel for CH Bank submitted that Recovery
Officer has no authority to extend the time for depositing the
sale proceeds and requested to forfeit the EMD of H1 bidder,
CH Bank relied on the judgment dated 20.03.2013 of
Karnataka High Court in Writ Petition No. 37978/2009 titled
Shri Ramesh Mehar V/s. The Recovery Officer & Ors.
Para-13 of the judgment is relevant;
'..... Rule 57, 58 of Income Tax Rules deal with process
of recovery of amount due and present no difficulty in
enforcing them for recovery of dues under RDD Act. It is
clear from a plain reading of the above that the provision
is mandatory in character. The use of the word 'Shall' is
both textually and contextually indicative of the making of
the deposit of the amount being a mandatory requirement.
It is thus clear there is no reason to hold that Rule 57 & 58
of the Income Tax Rules are anything but mandatory in
nature, so that breach of the requirements under those
Rules will render the auction non est in the eyes of law."
C/SCA/16580/2021 ORDER DATED: 29/10/2021
In light of the facts above, the IA No.351/2021 is liable to be
dismissed and his dismissed accordingly."
4. The fervent appeal on behalf of the writ applicant is that in peculiar
facts of this case, she may be permitted to deposit the balance amount i.e.
75% with the Recovery Officer within next 10 days i.e. no sooner she
receives the cheque from the bank of the loan amount. The Tribunal says
that it is not permissible to extend the period of 15 days as prescribed
under Rule 57 of the ITCP Rules. This is the controversy involved in the
present litigation.
5. Let Notice be issued to the respondents returnable on 22.11.2021.
6. Let there be an ad-interim order in terms of Para.6(D). Direct
service is permitted.
(J. B. PARDIWALA, J)
(NIRAL R. MEHTA,J)
V.J. SATWARA
