Gujarat High Court
Bank Of Baroda vs Sangita Ashokkumar Kava on 2 January, 2024
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/LPA/2/2024 ORDER DATED: 02/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 2 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 11049 of 2022
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 2 of 2024
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BANK OF BARODA
Versus
SANGITA ASHOKKUMAR KAVA
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Appearance:
MR BHARAT T RAO(697) for the Appellant(s) No. 1
MR VIPULKUMAR M ASODIYA(8298) for the Appellant(s) No. 1
MR VIMAL A PUROHIT(5049) for the Respondent(s) No. 1
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 02/01/2024
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
1. Having perused the material on record, it is more than evident
that the physical possession of the property in question was not
handed over to the auction purchaser on account of an interim order
date 23.10.2019 passed by the Debts Recovery Tribunal, on the
application moved by the debtor. A perusal of the order dated
23.10.2019 passed by the Debts Recovery Tribunal indicates that a
wrong statement was made before the Debts Recovery Tribunal on
behalf of the Bank on 19.08.2019 about non receipt of bids, with
respect to the auction sale conducted by the Bank. A further perusal
thereof indicates that the counsel for the Bank appearing before the
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Debts Recovery Tribunal was indicated of the order sheet dated
19.08.2019 and the Tribunal had confirmed the correctness of the
statement made by the learned counsel and the signature made by
him on the order sheet itself. It is also noted that the learned
counsel appearing for the Bank made a submission that the
statement about non receipt of bids on 19.08.2019 was given by
him on the instruction of the concerned official of the Bank. The
copy of the payment schedule of the property given to the auction
purchaser at page 25 of the paper book under the seal of the Bank
indicates that the date of first deposit towards the bid amount was
19.08.2019.
2. Repeated submission has been made by the learned counsel
Mr. Bharat T. Rao appearing for the Bank that 20.08.2019 was the
date of submission of the bid as per the auction notice dated
27.07.2019 and the initial payments were to be made by the
prospective bidder by 19.08.2019, i. e. the date prior to the date of
auction, i. e. 20.08.2019. The contention is that the statement was
made by the learned counsel for the Bank before the Debts
Recovery Tribunal in the first half of 19.08.2019 by then bids were
not submitted. The Debts Recovery Tribunal, therefore, was not
correct in observing that a wrong statement was made by the
learned counsel appearing for the Bank on the instructions of the
official of the Bank. The submission, thus, is that no fault can be
attached to the Bank for the interim order granted by the Debts
Recovery Tribunal on 23.10.2019. There is no question of mis-
statement on the part of the official of the Bank when the auction
bid was to be submitted by the second half on 19.08.2019 and the
auction was to be held only on 20.08.2019. The submission, thus, is
that the finding returned by the learned Single Judge that the
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C/LPA/2/2024 ORDER DATED: 02/01/2024
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auction was held on 27.07.2019 and the petitioner was selected as
highest bidder in the said auction, is incorrect.
3. We do not find any substance in the submissions of the
learned counsel for the appellant Bank for the reason that there was
no occasion for the Bank to make any statement before the
Tribunal, if the auction was not held, or the bids were not received
by the Bank by the first half of 19.08.2019, to the effect that the
Bank had not received any offer towards the proposed sale of the
property in question. Further, there is no clarity about the date of
actual auction and the declaration of the petitioner as higher bidder
in the instant Appeal. The payment details of the property attached
at page 25 of the paper book indicates that the bid amount of
Rs.92,74,000/- was to be paid by the petitioner in the installments
and the first payment was to be made on 19.08.2019 itself. The
copy of the auction notice at page '23' of the paper book is illegible.
The typed pages from 23/A to 23/G do not give the correct date of
auction of the property in question. The auction notice dated
27.07.2019 was for auction of 35 properties indicated therein and
the property in question was at item-8. The date of auction of the
property in question has not been disclosed in the Appeal. In the
affidavit filed on behalf of the Bank at page '67' of the paper book, it
is stated that the Bank had published the auction notice on
27.07.2019 for the property in question amongst others and the
auction was to be held on 20.08.2019. The further statement is that
the petitioner participated in the auction held on 20.08.2019. The
statements made in paragraph 6 of the affidavit of the Bank, filed
before the learned Single Judge, however, do not give the correct
picture of the date of the auction. In the Memo of Appeal, it is again
sought to be submitted that the auction was successfully held on
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20.08.2019 and the respondent was found successful bidder and
had deposited the entire bid amount of Rs.92,74,000/- up to
15.10.2019 as per the schedule, which is mentioned at page '25' of
the paper-book.
4. From the above noted facts, it is more than evident that the
Bank has not come with the clear and categorical statement with
regard to the date of auction. The statement was made before the
Debts Recovery Tribunal without completion of the auction
proceedings when time for receipt of the offer by the Bank was not
over, which has resulted in passing of the interim order dated
23.10.2019. In any case, the bona fide of the Bank in dealing with
the petitioner as an auction purchaser is found doubtful. The
reasoning given by the learned Single Judge in the judgment
impugned that the Bank is at fault in making the mis-statement and
creating a situation where the auction purchaser could not get the
possession of the auctioned property despite having made the
deposits till 15.10.2019, cannot be faulted.
5. Moreover, the only dispute raised in the instant Appeal is
about the interest, which the Bank has to pay to the auction
purchaser for the deposits made before it uptil 15.10.2019. The
learned Single Judge has directed the Bank to pay the interest on
the basis of the rate of F.D.R. prevailing as on 15.10.2019. We do
not find any reason to interfere in the order passed by the learned
Single Judge to pay the interest, which the Bank has earned on the
money lying with it.
6. For the above noted reasons, we do not find any error in the
judgment impugned. The Appeal is devoid of merits and hence,
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dismissed. The Civil Application for interim relief does not survive
and the same is accordingly, disposed of.
(SUNITA AGARWAL, CJ )
(ANIRUDDHA P. MAYEE, J.)
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