Umiya Electric Works Through ... vs Authorized Officer Of Bank Of ...
2023 Latest Caselaw 6828 Guj

                                                                                         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
=====================================================
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
=====================================================

 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

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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

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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

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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

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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