Karnataka High Court
M/S. Kadur Engineering Pvt. Ltd., vs M/S. Mint Towers Pvt. Ltd., on 13 January, 2021
Author: Krishna S.Dixitpresided Byksdj
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.17934 OF 2019 (GM-CPC)
BETWEEN:
1 . M/S. KADUR ENGINEERING PVT. LTD.,
(A COMPANY REGISTERED UNDER THE
COMPANIES ACT, 1956)
HAVING ITS REGISTERED OFFICE AT
NO.27, 4TH CROSS,
5TH MAIN, JAYAMAHAL,
BENGALURU - 560 046.
REP. BY MR. PRAKASH B. NARAYAN,
SINCE DEAD BY HIS LRS.,
PETITIONER NO.2 TO 4
2 . SMT. NIRMALA PRAKASH NARAYANA,
W/O. LATE PRAKASH B. NARAYAN,
AGED ABOUT 54 YEARS,
3 . SMT. VYDHEHI P. KADUR,
D/O. LATE PRAKASH B. NARAYAN,
AGED ABOUT 34 YEARS,
4 . MR. KARNA P. KADUR,
S/O. PRAKASH B. NARAYAN,
AGED ABOUT 29 YEARS,
PETITIONER NOS.2 TO 4 ARE
RESIDING AT NO.27, 4TH CROSS,
5TH MAIN, JAYAMAHAL,
BENGALURU - 560 046.
...PETITIONERS
(BY SRI. L.GOVINDARAJ, ADVOCATE FOR P2-P4)
2
AND:
1 . M/S. MINT TOWERS PVT. LTD.,
(A COMPANY REGISTERED UNDER
THE COMPANIES ACT, 1956)
HAVING ITS REGISTERED OFFICE AT
NO.1, 15TH CROSS STREET,
SHASTRY NAGAR, ADYAR,
CHENNAI - 600 020,
ALSO AT:
NO.69, RACE COURSE ROAD,
COIMBATORE - 641 018.
2 . VAITHI HOLDINGS PVT. LTD.
REPRESENTED BY ITS AUTHORISED REPRESENTATIVE
SRI. JOSHUVA.S,
S/O SUNDARDAR, NO.5/7B,
INDIRANAGAR, VADUVAILLI,
VADAVALLI, COIMBATORE,
TAMILNADU - 641 041.
ALSO AT:
NO.M-203,
"THE RETREAT MINT HOMES",
SENTHIL NAGAR,
SOWRIPALYAYAM ROAD,
COIMBATORE - TN 641 028.
...RESPONDENTS
(BY SRI. C.R.GOPALASWAMY, ADVOCATE FOR C/R
(CP.NO.5406/2019))
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
THE ENTIRE RECORDS ON THE FILE OF THE JUDGE ADDL.
COURT OF SMALL CAUSES, MYSORE IN EXECUTION
NO.66/2013; SET ASIDE THE IMPUGNED ORDER DATED
29.03.2019 PASSED BY THE JUDGE ADDL. COURT OF SMALL
CAUSES AND SCJ MYSORE IN EXECUTION NO.66/2013 ON
(1)I.A.NO.24 & 25 FILED BY THE PETITIONERS/JUDGMENT
DEBTORS UNDER ORDER 21 RULE 90 & U/S 151 SEEKING FOR
SETTING ASIDE THE COURT SALE CONDUCTED ON 01.09.2018
PRODUCED VIDE ANNEXURE-A AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
Petitioners being the judgment debtors are invoking the
writ jurisdiction of this Court for assailing the order dated
29.03.2019, a copy whereof is at Annexure-A whereby their
application in I.A.No.24 & 25 filed under Order 21 Rule 90
r/w Section 151 of CPC, 1908 for setting aside the subject
Auction Sale of the properties in question have been rejected
by the learned Additional Small Causes Judge, Mysuru and
consequently the Auction Sale has been retained.
2. After service of notice, the respondent decree
holder & respondent auction purchaser having entered
appearance through their panel counsel, resist the writ
petition making submission in justification of the impugned
order and the grounds on which it has been structured.
3. Having heard the learned counsel for the parties
and having perused the petition papers, this Court is inclined
to grant some reprieve as under & for the following reasons:
(a) first respondent's specific performance suit in
O.S.No.767/2006 having been disposed off on the basis of
compromise on 31.10.2012, the subject execution
proceedings in Ex.No.66/2013 have been instituted; therein
the auction sale of the subject properties took place pursuant
to orders of the learned Judge of the Court below and the
second respondent being the highest bidder has bought the
property in question and made the initial deposit of part of
sale price.
(b) A careful perusal of the proceedings of the Court
below show that the subject property arguably being of huge
value, possibly, its disposal would have fetched more money
than what is quoted by the auction purchaser as the highest
bid amount; justice of the case requires that the subject
property be put to a fresh public auction, since the petitioners
have shown the bonafide by depositing two crore rupees in
the Registry and the same is released to the first respondent
already.
(c) By the fresh auction sale of the subject property, no
prejudice would be caused to the second respondent-highest
bidder since the amount deposited by him being part of the
auction price is liable to be refunded and that he would be
permitted to participate in the fresh auction process in the
contemplation along with others.
(d) The vehement contention of learned advocates for
the decree holder and the auction purchaser that the
execution proceedings are being dragged on with one or the
other pretext and therefore, there has to be a terminal point
to this lis so that the victorious party in the legal battle reaps
the fruits of litigaton, has got force; be that as it may.
This court is of a considered opinion that the re-auction
of the subject property would cause justice to both the sides
by allaying the apparent grievance of the petitioners that the
suit properties are sold for a song, with connivance of
respondents.
In the above circumstances, this Writ petition succeeds;
a Writ of Certiorari issues quashing the impugned order; the
Court below shall re-auction the subject property with the
following calendar of events:
(i) A fresh proclamation shall be ordered within two
weeks, of the intended Auction Sale and the same
shall be published at least in two Daily News Papers
one in Kannada & another in English, that are in
circulation in the concerned area;
(ii) It is open to the Judgment Debtors to seek
proclamation of sale through more than the aforesaid
two news papers and that for all publication of
proclamation cost will be deposited in the court
below within two weeks;
(iii) The publication in the news papers shall be done
within two weeks following the fresh order of
proclamation that the entire cost thereof shall be
borne & deposited by the JDrs in the Court below
forthwith and in any circumstance within two weeks
following the order for fresh proclamation;
(iv) The contemplated auction sale shall be held on or
before 31.03.2021, after following the rules of
fairness and transparency;
(v) It is open to the second respondent to participate in
the fresh auction sale in contemplation;
(vi) The amount deposited by the second respondent-
Auction Purchaser shall be re-funded to him
forthwith and that he will be entitled to additional
6% of amount in deposit which shall be defrayed
from the proceed of the fresh auction sale in
contemplation; and,
(vii) Whatever the amount the first respondent has
received from the sides of the judgment debtors in
these proceedings shall be given due discount.
Discretion is left with the court below to make minor
alterations in the stipulations above if justice of the case
warrants and reasons therefor shall be recorded.
Now, no costs.
Sd/-
JUDGE
DS
