Canara Bank vs M/S. Shilpee Housing Development ...
2023 Latest Caselaw 812 Jhar

                       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                         W.P.(C) No. 4890 of 2019
                Canara Bank, A Banking Company constituted under the
                Banking Companies (Acquisition and Transfer of Undertakings)
                Act, 1970, through Shri Kaushik Kumar Prabudh                      -Petitioner
                                           Versus
                1. M/s. Shilpee Housing Development Private Limited
                   Office at S.P. Verma Road, Patna
                2. Ajay Bihari Prasad
                3. Prem Kumar
                4. Mamta Sinha
                5. Satish Chandra
                6. Rahul Jha                                                 --Respondents
                                           ---

CORAM: HON'BLE MR. JUSTICE RAJESH KUMAR

---

For the Petitioner : Mr. A. K. Mehta, Advocate For the Respondent No. 6 : M/s. L.C.N. Shahdeo, Yash Raj Gupta, Advs.

---

07/21.02.2023 Heard learned counsel for the parties.

2. The present writ petition has been filed by the Petitioner-Bank against the judgment dated 21.03.2018 passed in Appeal Sr. No. 184 of 2015 passed by the Debts Recovery Appellate Tribunal, Allahabad, whereby the auction purchase has been annulled and direction has been given for returning the amount deposited to the Petitioner-Bank towards the purchase of the impugned property i.e., the landed property.

3. The brief facts are quoted hereinbelow:

The Petitioner-Bank has lent certain loan to the borrowers and for non- refund of the same, a recovery proceeding has been initiated in the year 1998 before the D.R.T, Patna being P.T No. 198 of 1998. The learned D.R.T., Patna has passed the order on 21.01.2002 in favour of the Bank for recovery of the due amount. The amount determined was Rs. 25,34,735.10 with interest and for recovery of the same, certificate has been issued on 21.01.2002. On the strength of the said certificate, recovery proceeding has been initiated being R.P. No. 18/2005.

During the recovery proceeding, the property as detailed has been put on auction.

"Mouja Gari, Thana: Ranchi, District: Ranchi, P.S.: No. 194, Khewat No.: 1, Khata No. 37, Plot No. 27, Sub-Plot No. 18, Area 10 K 10 Chhatak 9 sq.ft. bounded by North: 20' of wide road.

South: 6' vide service lane.

East: Plot No. 27, Sub Plot No. 19.

West: Plot No. 27, Sub Plot No. 17."

4. The auction has been held on 08.11.2005 with stipulation "as is where is basis" and the present respondent no. 6 has been declared highest bidder and accordingly certificate of sale was issued in favour of the respondent no. 6 on 22.12.2005.

5. It appears that a petition has been filed by the present respondent no. 6 for recovery of auction amount along with poundage fee, construction cost of boundary wall with interest before the Recovery Officer on 22.02.2007. On such petition, record has been called for vide order dated 28.02.2007. Notice has been issued to the present petitioner on 10.04.2007. Thereafter, the petitioner has filed rejoinder and after completion of the pleadings, the Recovery Officer has passed the impugned order dated 11.04.2008 in R.P.No. 18 of 2005. By this order, the sale has been annulled and the Bank has been directed to refund the amount to the highest bidder (present respondent no. 6).

6. Being aggrieved, the Bank has filed an appeal being Appeal no. 05 of 2008 before the D.R.T, Ranchi which has been dismissed vide order dated 22.01.2010. This order has also been impugned.

7. It appears that being aggrieved by the above two orders, a writ petition has been preferred being W.P.(C) No. 2825 of 2010 before this Court, which has been held not maintainable giving liberty to the petitioner to approach Debt Recovery Appellate Tribunal, Allahabad.

8. It further appears that utilizing the above liberty, a petition has been preferred before D.R.A.T, Allahabad which has been numbered as Appeal Sr. No. 184 of 2015 which has been dismissed vide order dated 21.03.2018 upholding the impugned order passed by the Recovery Officer as well as D.R.T. The above three orders have been impugned in the present writ petition.

9. Two issues have been raised before this Court:

(i) The Bank has a prefect title as the transaction has taken place before coming into force of the Urban Land (Ceiling & Regulation) Act and as such the basis for annulling the auction was wrong;

(ii) As per the terms of the auction, the stipulation was "as is where is basis" and as such the present respondent no. 6 could not have filed any petition for annulment of the auction. So far as the land in question is concerned, it appears that the impugned property/mortgaged property was purchased by the borrower-

Satish Chandra from one Joyti Krishna Das after taking No Objection Certificate from the competent authority on 01.04.1986. It further appears that Urban Land (Ceiling & Regulation) Act has come into effect from 01.04.1976. It further appears that the said transaction has been made in the year 1986 i.e., after 10 years of coming into force of Urban Land (Ceiling & Regulation) Act on the basis of No Objection Certificate. The said No Objection Certificate contains the stipulation in the following terms:

^^fuEufyf[kr fooj.kksa ds LrEHk&3 esa mfYyf[kr (vf/klhek ,oa vf/kfu;e 1976) dk 33 dh /kkjk 26&27 ds vUrZxr uksfVl fn;k gS ftlesa LrEHk&3 esa vafdr Hkwfe varj.k (fodzh) iV~Vk ;k vU;kU; ftlesa LrEHk 3 esa mfYyf[kr i{k ds djuk pkgrs gSaA varj.k esa l{ke inkf/kdkjh dks dksbZ vkifRr ugh gS kwfe gncUnh ifjlhek vf/kfu;e 76 ds izko/kku dksbZ izfrdwy izHkko ugha iM+rk gksA"

10. Thus, the very issue raised by the petitioner-Bank that all transaction was before coming into effect of the Urban Land (Ceiling & Regulation) Act is not supported by the fact of the case. The alleged permission also clearly stipulates that it is subject to the Urban Land (Ceiling & Regulation) Act.

11. The second objection raised by the petitioner-Bank regarding stipulation "as is where is basis" is concerned, the same has been considered by the Debt Recovery Appellate Tribunal, Allahabad in detail and the same has been negated.

12. "As is where is basis" is a stipulation regarding the patent defect existing in the property to be auctioned. No clear cut stipulation has been made in the bid of auction to the effect that the bidder should himself verify the title and other defects of the property to be auctioned. Further in the present case, only the auction has been held and the sale certificate has been issued but no sale deed has been executed or registered. It is also well settled law that in the landed property, title passes only through registered sale deed. In the present case, no sale deed much less registered has been executed till the impugned orders have been passed.

13. So far as the issue of title is concerned, it cannot be decided either by the Tribunal or by any authority. It has to be decided by the competent Civil Court, but prima facie facts suggest and it has been held by all the three Forums that the property, in question, has been purchased after

10 years of coming into effect of Urban Land (Ceiling & Regulation) Act and by operation of law this land has already vested in the State of Jharkhand.

14. Considering the above factual aspect, discussion made and considering the concurrent finding of fact recorded by all the three Forums, this Court finds no reason to interfere with the impugned orders as same are finding of the facts. Accordingly, the present writ petition is hereby dismissed.

(Rajesh Kumar, J) jk