Madras High Court
K.N.Balan vs A.Chandran on 20 September, 2023
C.R.P.No.1361 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
C.R.P.No.1361 of 2015
and
M.P.No.1 of 2015
K.N.Balan .. Petitioner
Vs.
1.A.Chandran
2.G.Senthil Murugan
K.Nachimuthu Gounder (Died)
3.P.Maheswari
4.P.Indiradevi
5.Indhirani
6.Minor.G.Dhanya
Represented by Natural Guardian
Mother Indhirani
7.R.Sekar .. Respondents
PRAYER : Civil Revision Petition is filed under section 115 of Civil
Procedure Code, to set aside the Fair and Decreetal order, dated
22.12.2014 made in E.P.No.10 of 2009 in O.S.No.29 of 2006 on the file
of the I Additional District Judge, Erode.
1/10
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C.R.P.No.1361 of 2015
For Petitioner : Mr.M.Guruprasad
For Respondents : Mr.A.Prabakaran for R1 and R2
: Mr.M.V.Venkataseshan for R7
Senior Counsel for Mr.V.V.Sathya
: Not Ready in Notice for R3
: Served, No Appearance for R4, R5
: R6 Minor Represented by R5
ORDER
This Civil Revision Petition arises against E.P.No.10 of 2009. The
petitioner before me is a Judgment debtor. He suffered a decree in
O.S.No.29 of 2006 on 16.09.2008. Pursuant to the decree, E.P.No.10 of
2009 was filed for the purpose of attachment and sale of the property
charged under the decree.
2. An auction sale was held on 24.04.2013 and the property was
purchased by the 7th respondent. The 7th respondent deposited a sum of
Rs.7,75,000/- (Rupees seven lakhs and seventy five thousand only) less
the poundage charges of Rs.93,030/- (Rupees ninety three thousand and
thirty only). That left a balance of Rs.23,35,000/- (Rupees twenty three
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C.R.P.No.1361 of 2015
lakhs and thirty five thousand only) and amount towards stamps to be
deposited.
3. The 7th respondent was unable to deposit the remaining amount
within the time fixed by Code of Civil Procedure since a stay was
operating in CMA.No.1610 of 2013. The stay stood vacated, after the
dismissal of the appeal. A memo was filed by the auction purchaser
stating that the appeal had been dismissed and he should be permitted to
deposit the remaining amount of 75 %. The Court went through the order
of this Court, dated 20.12.2013 and directed issuance of challan on
30.01.2014.
4. The counsel for the auction purchaser received a challan on
03.02.2014 but he did not pay the entire amount on that day. What was
deposited was only the balance 75 % of the auction amount. As per
Order 21 Rule 85 as amended by this Court, an auction purchaser should
not only deposit the purchase money within a period of 15 days from the
date of sale but he should also deposit the general stamps required for
registration of sale certificate to be issued under Order 21 Rule 94 of
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C.R.P.No.1361 of 2015
CPC.
5.Though the auction purchaser had brought to the notice of the
Court that the stay had been vacated on 20.12.2013 and obtained challan
on 03.02.2014, he did not pay the amount towards general stamps till
18.07.2014, the rule is mandatory. The auction purchaser will also have
to deposit the general stamps required towards registration of the
certificate and the balance of sale consideration.
6. It has been held by the Supreme Court in Gas Point Petroleum
India Limited v. Rajendra Marothi and others in 2023(6) SCC 391, that
failure to deposit the amounts as required under Order 21 Rule 85
nullifies the sale and the purchase under the Court auction becomes null
and void. This position of law is settled as early as in Manilal Mohanlal
Shah v. Sardar Sayed Ahmed Sayed Mahmad case reported in AIR
1954 SC 349.
7. A learned Single Judge, taking note of this position of law, had
applied the Judgment of the Madras High Court in Subbammal Vs.
P.Gurusamy Thevar and others case reported in AIR 1974 Mad. 278 and
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C.R.P.No.1361 of 2015
set aside the sale. He held that deposit of the purchase money together
with the amounts towards general stamps is mandatory and in case the
amounts are not deposited, the sale held by the Court is null and void.
The judgment of the learned Single Judge of this Court in Velayutha
Pandian Vs.Vallisundari is reported in 2019(1) MWN (Civil) 278.
8. At this stage, Mr.M.V.Venkataseshan, learned senior counsel
appearing for the 7th respondent submitted that it may be verified if Order
21 Rule 85 of the CPC as amended by the Madras High Court continues
to be in force. On the submission of the learned counsel, reference was
made to the Rule committee and it was represented by the Administrative
Officer of the Madras High Court that the said Rule continues to be in
force.
9. The Rule being in force and the auction purchaser admittedly
having not paid the amounts towards general stamps within a period of
15 days from the date of auction, the sale is void. I am left with no other
option than to declare that the sale as null and void. I was inclined to pass
an order directing the executing Court to order fresh auction of the
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C.R.P.No.1361 of 2015
property.
10. At this stage, Mr.M.Guruprasad, learned counsel of the
Judgment debtor submitted that his client is willing to pay the entire
amount due under the decree in O.S.No.29 of 2006. According to him,
the entire dues comes to Rs.26,52,355/- (Rupees twenty six lakhs fifty
two thousand three hundred and fifty five only). The counsel for the
decree holder is present. He is willing to receive the demand draft drawn
in favour of the decree holders. Mr.M.Guruprasad has handed over the
drawn demand drafts for following sums :
(1) Rs.7,02,355/- drawn in demand draft No.711000 issued by South
Indian Bank Limited, Bhavani Branch.
(2) Rs.9,50,000/- drawn in demand draft No.006125 issued by HDFC
Bank, Cutchery Road, Erode Branch.
(3) Rs.7,00,000/- drawn in demand draft No.597418 issued by State
Bank of India, Erode Branch.
(4) Rs.3,00,000/- drawn in demand draft No.597419 issued by State
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C.R.P.No.1361 of 2015
Bank of India, Erode Branch.
11. In fine, the entire decree amount has been paid by way of
demand drafts and therefore nothing remains to be adjudicated in the
Execution Petition. The Judgment debtor having paid the entire amount
due under the decree and the said amount having been received by the
decree holder, full satisfaction is recorded. The executing Court shall
record the same and pass appropriate orders terminating the Execution
Petition.
12. The auction purchaser has deposited the amount into Court in
two phases (i.e.,) on 25.04.2013 and 04.02.2014. He has also deposited
the amounts towards the general stamps on 05.08.2014. Since the sale
itself is held to be null and void, the auction purchaser is entitled to take
refund of the amount deposited by him.
13. The counsel for the decree holder as well as the counsel for the
Judgment debtor have stated that they have no objection for the
withdrawal of the amount by the auction purchaser. Therefore, the
executing Court is directed to return the amounts deposited by the
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C.R.P.No.1361 of 2015
auction purchaser without insisting on “No Objection” from either the
judgment debtor or the decree holder.
14. The Judgment debtor has successfully dragged on the matter
from 2013 till date. For the default in payment of general stamps, the sale
has been set aside. That does not mean the auction purchaser should
suffer on account of the recalcitrant attitude shown by the Judgment
debtor. It is true that the Judgment debtor settled the entire decree amount
today but the auction purchaser has been denied the amount that he has
deposited from the year 2013 to till date. Therefore, I quantify the costs
at Rs.1,50,000/- (Rupees one lakh and fifty thousand only) which the
Judgment debtor shall pay to the auction purchaser within a period of
four (4) weeks from today.
15. In case, the Judgment debtor does not pay the amount, there
shall be a charge in favour of the auction purchaser for an amount of
Rs.1,50,000/- (Rupees one lakh and fifty thousand only) over the suit
schedule mentioned property. The amount shall be paid directly to the
auction purchaser on or before 31.10.2023. The payment shall be made
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C.R.P.No.1361 of 2015
either by cheque or through demand draft or RTGS/NEFT. The payment
which shall be duly acknowledged and the receipt shall be given by the
auction purchaser.
16. With the above directions, the Civil Revision Petition stands
allowed. No costs. Consequently, connected miscellaneous petition is
closed.
20.09.2023
Index:Yes/No
Speaking Order :Yes/No
Neutral Citation:Yes/No
MKN2/VEDA
To
The I Additional District Judge, Erode.
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C.R.P.No.1361 of 2015
V.LAKSHMINARAYANAN,J.
MKN2/VEDA
C.R.P.No.1361 of 2015
and
M.P.No.1 of 2015
20.09.2023
https://www.mhc.tn.gov.in/judis
