Rajasthan High Court - Jodhpur

Sharda Enterprises vs Bank Of Baroda on 25 October, 2024

Author: Kuldeep Mathur

Bench: Kuldeep Mathur

[2024:RJ-JD:42437]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                S.B. Civil Writ Petition No. 15732/2024

Sharda Enterprises, through Kamala Choudhary W/o Omprakash
Bhanwariya, aged 53 R/o Bhawario Ki Dhani, Boroonda, Jodhpur
                                                                    ----Petitioner
                                     Versus
Bank of Baroda, through its Authorized Officer, Chand Pole
Branch, Jodhpur, Rajasthan.
                                                                  ----Respondent


For Petitioner(s)          :     Mr. Ankur Mathur
For Respondent(s)          :     Mr. Vinit Sanadhya


        HON'BLE MR. JUSTICE KULDEEP MATHUR

Order 25/10/2024

By way of filing the present writ petition under Article 226 of

the Constitution of India, the petitioner has prayed for the

following reliefs:-

"It is, therefore, prayed that the writ petition preferred by the petitioner may kindly be allowed in toto and the following reliefs may kindly be granted in favour of the petitioner:-

a. The respondent bank may kindly be directed to include the machinery and other assets as part of the auctioned immovable property pursuant to the auction/ sale notice dated 31.07.2024 (Annexure 1).

b. Alternatively, order a re-auction of the immovable property along with the machinery and other assets, and refund the entire amount paid by the petitioner in full, along with any applicable interest or costs incurred.

c. Grant any other relief as this Hon'ble Court deems fit and proper under the facts and circumstances of the case."

2. Learned counsel for the petitioner submitted that the

respondent-Bank of Baroda (hereinafter referred to as 'Bank')

issued an auction/ sale notice dated 31.07.2024 (Annexure-01)

for the sale of three immovable properties, including two disputed

industrial plots (lot Nos.1 and 2) situated at Khasra No.1007,

[2024:RJ-JD:42437] (2 of 7) [CW-15732/2024]

Riyan, Pipar City, Jodhpur. Drawing attention of the Court towards

the sale notice (Annexure-01) for sale of immovable assets under

the Securitization and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002 read with proviso to

Rules 6(2) and 8(6) of the Security Interest (Enforcement) Rules,

2002, learned counsel submitted that the properties mentioned in

the sale notice were to be sold on "As is where is", "As is what is"

and "Whatever there is" basis on 06.09.2024 by the respondent-

Bank. The petitioner participated in the auction proceedings

conducted by the respondent- Bank on 06.09.2024 and was

declared the highest bidder for two industrial plots i.e. plots

situated in Khasra No.1007, Riyan, Pipar City.

3. Learned counsel for the petitioner contended that on being

declared the highest bidder, as per the auction terms, the

petitioner had deposited the required payment to the respondent-

Bank. To the utter disbelief and surprise of the petitioner, the

authorities of the respondent- Bank orally informed the petitioner

that the machinery and other accessories attached or appurtenant

to the plot/ land would not be a part of the sale. Being aggrieved

and surprised by the aforesaid information orally communicated to

the petitioner, the petitioner forwarded e-mails dated 07.09.2024

(Annexure-07) and 08.09.2024 (Annexure-08) to the respondent-

Bank stating therein that before auction, the petitioner was made

to understand that all the industrial property, machinery and its

belongings i.e. the stone crusher machine and its accessories

attached to the plot/land situated in Khasra No.1007 shall be an

integral part of the auction proceedings conducted pursuant to

[2024:RJ-JD:42437] (3 of 7) [CW-15732/2024]

sale/auction notice for sale of immovable properties (Annexure-

01). However, the respondent- Bank did not give any

reply/response to the emails dated 07.09.2024 (Annexure-07) and

08.09.2024 (Annexure-08).

4. Learned counsel for the petitioner vehemently and fervently

submitted that the definitions of immovable property as given in

The Registration Act, 1908, The Transfer of Property Act, 1882 and

The General Clauses Act, 1987 clearly indicate that the immovable

property includes apart from land and building, things attached to

the earth or permanently fastened to anything so attached to the

earth. It was thus urged that since in the present case, the

auction was conducted on an "As is where is", "As is what is" and

"Whatever there is" basis, the stone crusher machine i.e. stone

cutter and its accessories which was physically attached to the

land at the time of auction is required to be considered as a part

of the immovable property in question. Particularly when the same

is attached or embedded into the earth. It was urged that the

action of the respondent- Bank in exclusion of the crusher

machine i.e. stone crusher and its accessories from the sale

proceedings conducted pursuant to the sale notice dated

31.07.2024 (Annexure-01) deserves to be declared illegal and

arbitrary by this Court.

5. In support of his arguments, learned counsel for the

petitioner has placed reliance upon the judgments rendered in the

cases of:-

I. "The Sub-Registrar Amudalavalasa vs. M/s Dankuni Steels

Ltd."; Civil Appeal No(s).3134-3135 of 2023

[2024:RJ-JD:42437] (4 of 7) [CW-15732/2024]

II. "Duncans Industries Ltd vs. State of U.P, & Ors." reported in

2000 (1) SCC 633

III. "J. Kuppanna Chetty, Ambati Ramayya.. vs. Collector of

Anantapur and Ors." reported in AIR 1965 AP 457

6. Per contra, drawing attention of the Court towards the

auction notice, learned counsel appearing on behalf of respondent-

Bank submitted that in the auction notice, it was clearly indicated

that sale/auction notice for the sale of immovable assets under

the SARFAESI Act pertains to "Industrial Plot with Factory

Building" situated at Khasra No.1007 Riyan, Pipar City. The

sale/auction notice further indicates that all the bidders were at

liberty to make inspection of the property on 02.09.2024, prior to

participation in the bidding process. Further, in case of any doubt

the bidders were at liberty to approach the dealing officer of the

Bank, namely, Ashok Singharia. It was contended that in view of

the specific stipulation with regard to immovable property for

which sale notice dated 31.07.2024 (Annexure-01) was issued,

the petitioner who had participated in the auction proceedings

with open eyes, now cannot seek a direction from this Court for

inclusion of the stone crusher machine i.e. stone cutter machine

and its accessories affixed to the land in question to be included in

the auction/ sale proceedings which have taken place on

06.09.2024. It was thus prayed that the present writ petition may

be dismissed being devoid of any merit.

8. Heard learned counsel for the parties at Bar. Perused the

material available on record.

[2024:RJ-JD:42437] (5 of 7) [CW-15732/2024]

9. The relevant portion of the auction notice (Annexure-04) as

available on the website of the respondent- Bank wherein 'General

Details' of the immovable assets put to auction reads as under:-

"Property Sub Type : Industrial Plot with Factory Building

Property Title : Industrial Plot with Factory Building for sale in Khasara No.1007, Main Jodhpur Road, Village Riyan, Pipar City Dist. Jodhpur (Raj.), Jodhpur

Property Address : Property situated at Khasara No.1007, Main Jodhpur Road, Village Riyan, Pipar City, Jodhpur (Raj.)

Borrower name : Shrawan Ram S/o Mr. Chunni Lal

Registered Address of Borrower : 275, Subhash Colony, Ward No.9, Pipar City, Dist. Jodhpur (Raj.) 342601

Area (Sq.feet) :2500.00"

10. It is a settled law that High Court is not supposed to interfere

in the auction proceedings while exercising its jurisdiction under

Article 226 of the Constitution of India, unless in the opinion of the

Court the decision of the executives who are dealing with the

auction proceedings is totally arbitrary or unreasonable.

11. In the present case, a perusal of the material available on

record clearly indicates that respondent- Bank before conducting

auction proceedings pursuant to the auction notice in which, the

petitioner submitted the highest bid while giving description of the

immovable property as reiterated above clearly indicated that the

same would be consisting of "Industrial Plot with Factory Building".

In other words, the auction notice clearly shows that the stone

crusher machine i.e. stone crusher machine and its accessories

have not been included in the auction. On a careful perusal of the

[2024:RJ-JD:42437] (6 of 7) [CW-15732/2024]

writ petition, this Court finds that though the petitioner in para 4

of the writ petition has stated that prior to participating in the

bidding process, upon seeking clarification from the respondent-

Bank as to whether the crusher machine and other accessories

attached to the land were included in the auction or not, the bank

officials confirmed that machinery was included as a part of the

auction. But no material to support the aforesaid contention has

been placed on record. On the contrary, learned counsel for the

respondent appearing for the Bank vehemently submitted that

prior to participating in the bidding process, the petitioner neither

inspected the property qua which the auction proceedings were to

be conducted nor has ever contacted the bank officials to seek any

clarification.

12. In the opinion of this Court, since in the present case, the

description of immovable property qua which auction proceedings

were to take place pursuant to the sale/auction notice dated

31.07.2024 was already made clear to all the bidders, there was

no reason whatsoever available with the petitioner to presume

that the plant and machinery attached to the plots in question

would also be sold/ auctioned on "As is where is", "As is what is"

and "Whatever there is" basis. As a matter of fact, the various

clauses/terms of the sale/auction notice dated 31.07.2024 are to

be given plain, literal and grammatical meaning of the expression

used in the same. Reading an unexpressed term in the

sale/auction notice dated 31.07.2024 is neither justified nor

permissible under law. An unexpressed term can be implied if and

only if the Court finds that the respondent- Bank must have

[2024:RJ-JD:42437] (7 of 7) [CW-15732/2024]

intended that clause/term to form part of the tender sale/auction

notice dated 31.07.2024.

The definition of immovable property shown to this Court

from various statutes is of no help to the petitioner for the simple

reason that the authorized officers of the respondent- Bank while

conducting the auction proceedings as well as the applicants to

the bidding process were under an obligation to adhere to the

terms and conditions of the sale/auction notice and thus, it was

totally impermissible for the petitioner to seek deviation from the

same at a later stage. Had the petitioner had any grievance with

regard to the sale/auction notice which clearly indicated that

immovable property in the present case would mean "Industrial

Plot with Factory Building" only, the petitioner ought to have

challenged the sale/auction notice dated 31.07.2024 (Annexure-

01) before the respondent- Bank conducted the auction

proceedings. Failure to challenge the sale notice dated 31.07.2024

(Annexure-01) prior to finalization of the auction proceedings in

question now dis-entitles the petitioner from seeking any relief by

way of invoking extra-ordinary jurisdiction of this Court under

Article 226 of the Constitution of India.

11. That being the position, the writ petition is dismissed being

meritless. All pending applications also stand disposed of.

12. No order as to costs.

(KULDEEP MATHUR),J 451-divya/-