Judgment:
ORDER
V.G. Sabhahit, J.
1. These writ appeals are filed by the petitioner in W. P. No. 11374/2008 being aggrieved by the order dated 25.8.2008 wherein the learned Single Judge has dismissed the writ petition filed by the petitioner.
2. The appellant herein filed W. P. No. 11374/2008 seeking for quashing of the notice of sale by inviting tender dated 22.7.2008 issued by the respondent as being bad, illegal and arbitrary and for quashing the communication dated 26.5.2008 of respondent forfeiting the petitioner's advance payment of Rs. 45,25,000/- equivalent to 25% of the petitioner's bid price and for a direction to the respondent to take vacant possession of the immovable property and possession of the movable properties in accordance with the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter called 'the Act') and the provisions of the Security Interest (Enforcement) Rules, 2002 and to deliver vacant possession of movable and immovable properties by accepting the balance payment.
3. It is averred in the writ petition that respondent is a creditor within the meaning of Section 2(1)(zd) of the Act. On 20.1.2008 the respondent-Bank as the secured creditor got issued a notice of sale by inviting tenders from the general public, under the provisions of Rules 6(2) and 8(6) of the 2002 Rules with respect to the sale of secured assets (both immovable and movable) of M/s. Ultra Dew and Mr. T.H. Aradhya, the 'Borrowers' whose account was with the respondent-Bank had been classified as a non-performing asset and action for enforcement of the respondent's security interest had been initiated under the Act against the said borrowers. The sale of the said secured assets was to be held on 5.2-2008 at the premise of the respondent-Bank. The sale of immovable and movable properties are under an 'as is where is condition'. The intending bidders were to bid for both properties by submitting closed cover/sealed bids along with an EMD of Rs. 14,31,953/- for the schedule-A immovable property and an EMD of Rs. 2,96,000/- for the schedule-B movable properties. The successful bidder was required to deposit 25% of the successful bid amount (inclusive of the EMD already paid) on the same day and the balance bid amount within 15 days from the date of confirmation of sale and in case of default committed by the successful bidder the entire amount paid, inclusive of the EMD was to be forfeited. In response to Annexure-A and in compliance with the tender terms and conditions stipulated therein, the petitioner submitted his closed cover/sealed tender along with the requisite EMD payment within time and his bid is accepted as final bid of Rs. 1,81,00,000/- was accepted. The EMD paid by the petitioner was adjusted towards the bid amount payable. The petitioner thereafter requested for permission to deposit Rs. 27,97,047/- towards the balance amount of 25% of the bid amount payable by the petitioner in terms of condition (d) of Annexure-A, by the next day i.e. by 6.2.2008. The respondent agreed and extended time till the next date i.e. 6.2.2008 for the payment of the balance price of 25% of the bid amount and the petitioner was directed to pay the balance price of bid amount of Rs. 1,35,75,000/- on or before 19.2.2008, failing which the sale would stand cancelled and the 25% bid amount paid as on date would stand forfeited with the respondent having the liberty of conducting a fresh sale of the said secured assets on any other suitable date. On 9.2.2008 two interim certificates of sale were issued by the respondent in favour of the petitioner in respect of sale of the said secured assets i.e. both immovable and movable properties. Petitioner by his letter dated 11.2.2008 requested that the time for payment of the balance sale consideration be extended from 19.2.2008 to 20.3.2008 which request was granted by the respondent. Petitioner visited the property in question some time during the second week of March, 2008 at which time he was shocked to be restrained by rowdy elements who threatened the petitioner of bodily harm if he tried to enter the premises. The petitioner was shocked to say the least as he had expected the respondent to have safeguarded the secured assets, the possession of which they were as per law required to have taken. On 14.3.2008, the petitioner addressed a letter to the respondent, whereby the petitioner informed the respondent of his inspection of the secured immovable property and of the fact that the properties were in possession of certain third persons and further expressed his concern as to when he would get possession of the said property on the payment of the balance sale consideration and he requested for a confirmation of the availability of all the movable properties that were sold to him by sale notice dated 20.1.2008. The petitioner expressed his willingness to pay the balance amount on being given vacant possession of the property together with all the movable properties listed for sale. In response to the said letter, the petitioner received a letter dated 17.3.2008 from the respondent, wherein he was informed that the property was brought for sale by sealed tenders on an 'as is where is' condition and the bid was made by the petitioner knowing this condition, that a sale certificate would be issued by the respondent in favour of the petitioner immediately on the receipt of the balance 75% of the sale consideration and that after registration of the sale certificate with the sub-Registrar, physical possession was to be taken by the petitioner. Regarding the movable properties, the petitioner was informed that one of the respondent's branch official would accompany the petitioner at the time of taking possession and a suitable decision would be taken at that time and he was requested to pay the balance amount by 20.3.2008. The petitioner was taken by surprise to be informed that it is his responsibility to take physical possession of the properties after the registration of the sale certificate in his name and was further shocked that the respondent was not in a position to confirm whether the list of movable properties that was sold to him in terms of the sale notice dated 20.1.2008 were available for sale and by his letter dated 19.3.2008, the petitioner expressed his shock at being informed for the first time that by virtue of the 'as is where is' condition, the property was to be transferred by sale to him without the delivery of vacant possession and the liability of taking possession was his. The petitioner on several occasions visited the office of the respondent to ensure that his grievances are addressed and on every occasion, the respondent has orally assured the petitioner that they would ensure that vacant possession of the said immovable property is handed over and all the movable properties listed in the sale notice were made available and ready even prior to the petitioner making payment of the balance sale consideration. Despite these oral assurances, by letter dated 1.4.2008, the respondent while reiterating their stand in their letter dated 17.3.2008 informed the petitioner that as he had not deposited the balance amounts with respect to the immovable and movable properties within the extended period of 20.3.2008, the amount equivalent to 25% of the bid amount that had already been deposited by the petitioner stood forfeited as per the conditions of the tender stipulated in the sale notice and thereafter, petitioner made request for further extension of time and gave him one more opportunity to pay the balance amount from the date of receipt of the letter and petitioner got issued notice dated 11.4.2008 in response to which respondent issued letter dated 30.4.2008 wherein the misrepresented dates and twisted facts are already on record and attempted to lay the entire blame on the petitioner and therefore, the petition for the above said reliefs.
4. The learned Single Judge after hearing the counsel appearing for the petitioner, perusing the material on record held that petitioner had not complied with the terms of the tender though he had deposited 25% of the bid amount, balance 75% of the bid amount was not deposited within fifteen days from the date of the bid or within the extended time i.e. till 20.3.2008 and therefore he has committed breach of contract and mere correspondence would not extend the date for depositing the balance amount and the petitioner ought to have deposited 75% of the balance amount and thereafter work out his remedy, in accordance with law and when the petitioner himself has committed breach of contract, the respondent as per the terms of the contract power to notify the property for re-auction and therefore, the petitioner is not entitled to any relief in the writ petition and accordingly, dismissed the writ petition. Being aggrieved by the said order of the learned Single Judge dated 25.8.2008, the writ petitioner has preferred this writ appeal.
5. We have heard the learned Counsel appearing for the appellant.
6. Learned Counsel appearing for the appellant-writ petitioner submitted that petitioner had already deposited 25% of the bid amount and balance of 75% of bid amount could not be deposited within fifteen days from the date of auction or within the extended time as respondent committed breach of contract as vacant possession of the property was not made available and the correspondence made with the respondent-Bank reveal that property was in possession of the third party and respondents were not themselves aware of the movable properties that are available in the premises and request for further extension of time has been wrongly rejected and therefore, the learned Single Judge ought to have allowed the writ petition and order dismissing the writ petition is liable to be set aside.
7. We have given careful consideration to the contention of the learned Counsel appearing for the appellant and scrutinised the material on record.
8. The material on record would clearly show that the bid of the petitioner for Rs. 1,81,00,000/- was accepted as the highest bid on 5.2.2008. He prayed for one day's time for depositing 25% of the bid amount including EMD and time was granted on 6.2.2008. 25% of the bid amount has been paid and he was required to pay Rs. 1,35,75,000/- within fifteen days from 5.2.008. However, he made a request for extension of time till 20.3.2008 and the time was granted for payment of balance amount. However, he did not pay the balance amount of 75% of the bid amount of Rs. 1,35,75,000/- even within the extended time i.e. on or before 20.3.2008 and he went on making correspondence and issued legal notice on 30.4.2008 without complying his part of the contract and therefore, it is clear that petitioner has not deposited 75% of the bid amount s per the terms of the contract within the extended time i.e. 20.3.2008. However, he went on making correspondence with the respondent about the vacant possession of the property and particulars of the movable property. The averments made in the writ petition itself show that tenders were called for auction of movable and immovable properties on 'as is where is' condition and the petitioner having knowledge of the said facts has submitted his bid and petitioner has not complied with the terms of the contract of depositing 75% of the bid amount within 20.3.2008 i.e. within the extended time for depositing the said amount and the said fact is indisputable having regard to the material on record and therefore, when the petitioner has not complied with the conditions of bid, it is not open for him to contend that there is lapse on the part of the respondent and the respondent has committed breach of contract. The mere fact that Section 13(4) of the Act enables the respondent-Bank to take possession of the property would not necessarily mean that respondent would have taken vacant possession of the property before 75% of the bid amount is deposited and there is also no merit in the contention of the learned Counsel appearing for the appellant that respondent has committed breach of contract. The learned Single Judge having regard to the material on record has rightly held that no ground is made out for granting any relief in the writ petition in exercise of the writ jurisdiction and accordingly, dismissed the writ petition.
9. Having regard to the above said material on record, we hold that the impugned order passed by the learned Single Judge does not suffer from any error or illegality as to call for interference in these intra court appeals and accordingly, we pass the following order:
The writ appeals are dismissed.