Rajat Fiscal Services Private Limited and anr. Vs. the Oriental Bank of Commerce and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/595
CourtKolkata High Court
Decided OnNov-14-2014
JudgeDebangsu Basak
AppellantRajat Fiscal Services Private Limited and anr.
RespondentThe Oriental Bank of Commerce and ors.
Excerpt:
in the high court at calcutta constitutional writ jurisdiction original side present: the hon’ble justice debangsu basak w.p no.769 of 2014 rajat fiscal services private limited & anr. versus the oriental bank of commerce & ors.for the petitioners : mr.arindam banerjee, advocate ms.arpita saha, advocate mr.sushil kr. sewah, advocate for the respondents : md.matibur rahman, advocate md.nasiruddin, advocate md.abid jamal, advocate ms.pratima ray chowdhury, advocate hearing concluded on : november 11, 2014 judgment on : november 14, 2014 debangsu basak, j.:the petitioners seek refund of purchase price from the respondent no.1. the petitioner no.1 is the purchaser of an immovable property put up for sale by the respondent no.1 under the provisions of the securitization and reconstruction of financial assets and enforcement of security interest act, 2002 (sarfaesi act, 2002).it is submitted on behalf of the petitioner that, the respondent no.1 published an advertisement putting up various immovable properties for sale. the petitioners became interested in property no.4 being a flat at 7, camac street, kolkata-700017. the advertisement appeared in the times of india on july 17, 2012. the petitioners participated in the sale and were declared as the highest bidder. a sale certificate dated november 2, 2012 was issued in favour of the petitioner no.1 by the respondent no.1. it is pointed out from the advertisement as well as the sale certificate that the immovable property put up for sale was described to be a 2,258 square feet super built up area. according to the petitioners.after the petitioners were declared as the highest bidder and the sale certificate dated november 2, 2012 was issued, the petitioners obtained certified copies of the deed of conveyance relating to the flat in question, the petitioners found that the sale deeds recorded an area of 1,807.7 square feet instead of 2,258 square feet. it is submitted on behalf of the petitioners that, the petitioners participated in the auction on the basis that the property was 2,258 square feet of super built up area. the petitioners.therefore, claim refund for the value of 450.3 square feet being the difference of the actual area with that of the advertised area. according to the petitioners.the differential amount is rs.38,98,944/-. the petitioners claim interest at the rate of 24 per cent per annum on such differential amount. it is pointed out on behalf of the petitioners that, they did not take inspection of the immovable property concerned prior to making their bid. according to the petitioners.after the sale was concluded in their favour, the bank obtained possession of the property concerned and made over the same to the petitioners.since, the bank was not in actual possession of the property when it put the property up for sale, the question of the petitioners taking any inspection of the property does not arise. on behalf of the bank it is contended that, a valuation report was obtained in respect of the property concerned. the valuer considered the area of the property. the valuer found the built up area to be 1,807.7 square feet and the super built up area to be 2,258 square feet. accordingly, the bank published advertisement inviting sale. in the advertisement the property is described to be having 2,258 square feet of super built up area. i have considered the rival contentions of the parties and the materials made available on record. the respondent no.1 proceeded to put up few immovable properties up for sale by the sale notice dated july 17, 2012. the terms and conditions of the sale are relevant. the respondent no.1 invited sealed tenders from the public for the purchase of the properties mentioned in the sale notice on “as is where is” and “as is what is” basis. the sale notice also provided that, the properties can be inspected by the intending purchaser by august 4, 2014 and for any clarification regarding documents, title deeds, etc., the same may be clarified at the park street branch of the respondent no.1. in the instant case, the purchaser admittedly did not inspect the property concerned in terms of the sale notice prior to participating in the public auction. the petitioners participated in the public auction in terms of the sale notice dated july 17, 2012. it is not the case of the writ petitioners that in spite of request being made, the respondent no.1 did not provide documents of title in respect of immovable property concerned prior to the writ petitioners participating in the sale notice or that the respondent no.1 refused inspection. as the purchaser the writ petitioner no.1 was obliged to satisfy itself as to title of the property as well as the area of the property put up for sale. the sale was conducted on “as is where is” and “as is what is” basis. the sale notice also specified that the intending purchasers can inspect the immovable property and seek clarification with regard thereto. the writ petitioners did not take any inspection and did not seek any clarification. the petitioners cannot be allowed to set up alleged misdescription of area of the flat in the sale notice to claim refund after not having exercising its option to inspect the flat and satisfy themselves as to the area available and other aspects. the contention of the writ petitioners that, the calculation of the super built up area published in the sale notice is without any basis. firstly, the writ petitioners made no effort to check the actual area of the immovable property put up for sale. they participated in the sale without making such inquiry. the writ petitioners cannot be allowed to urge to that there is a misdescription in the area of the property. secondly, the respondent no.1 obtained a valuation report with regard to the immovable property concerned. the valuer calculated the built up area and the super built up area and gave a basis for such calculation. it is not for the writ petitioners to assail such basis after a concluded deal. thirdly, it is not for the writ court to grant relief to a party which has been negligent of his rights. i find no merit in the writ petition. w.p.no.769 of 2014 is dismissed. there will no order as to costs. [debangsu basak, j.].
Judgment:

IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction Original Side Present: The Hon’ble Justice Debangsu Basak W.P No.769 of 2014 Rajat Fiscal Services Private Limited & Anr.

versus The Oriental Bank of Commerce & ORS.For the Petitioners : Mr.Arindam Banerjee, Advocate Ms.Arpita Saha, Advocate Mr.Sushil Kr.

Sewah, Advocate For the Respondents : Md.Matibur Rahman, Advocate Md.Nasiruddin, Advocate Md.Abid Jamal, Advocate Ms.Pratima Ray Chowdhury, Advocate Hearing concluded on : November 11, 2014 Judgment on : November 14, 2014 DEBANGSU BASAK, J.:The petitioners seek refund of purchase price from the Respondent No.1.

The Petitioner No.1 is the purchaser of an immovable property put up for sale by the Respondent No.1 under the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act, 2002).It is submitted on behalf of the petitioner that, the Respondent No.1 published an advertisement putting up various immovable properties for sale.

The petitioners became interested in Property No.4 being a flat at 7, Camac Street, Kolkata-700017.

The advertisement appeared in the Times of India on July 17, 2012.

The petitioners participated in the sale and were declared as the highest bidder.

A sale certificate dated November 2, 2012 was issued in favour of the Petitioner No.1 by the Respondent No.1.

It is pointed out from the advertisement as well as the sale certificate that the immovable property put up for sale was described to be a 2,258 square feet super built up area.

According to the petitioneRs.after the petitioners were declared as the highest bidder and the sale certificate dated November 2, 2012 was issued, the petitioners obtained certified copies of the deed of conveyance relating to the flat in question, the petitioners found that the sale deeds recorded an area of 1,807.7 square feet instead of 2,258 square feet.

It is submitted on behalf of the petitioners that, the petitioners participated in the auction on the basis that the property was 2,258 square feet of super built up area.

The petitioneRs.therefore, claim refund for the value of 450.3 square feet being the difference of the actual area with that of the advertised area.

According to the petitioneRs.the differential amount is Rs.38,98,944/-.

The petitioners claim interest at the rate of 24 per cent per annum on such differential amount.

It is pointed out on behalf of the petitioners that, they did not take inspection of the immovable property concerned prior to making their bid.

According to the petitioneRs.after the sale was concluded in their favour, the bank obtained possession of the property concerned and made over the same to the petitioneRs.Since, the bank was not in actual possession of the property when it put the property up for sale, the question of the petitioners taking any inspection of the property does not arise.

On behalf of the bank it is contended that, a valuation report was obtained in respect of the property concerned.

The valuer considered the area of the property.

The valuer found the built up area to be 1,807.7 square feet and the super built up area to be 2,258 square feet.

Accordingly, the bank published advertisement inviting sale.

In the advertisement the property is described to be having 2,258 square feet of super built up area.

I have considered the rival contentions of the parties and the materials made available on record.

The Respondent No.1 proceeded to put up few immovable properties up for sale by the sale notice dated July 17, 2012.

The terms and conditions of the sale are relevant.

The Respondent No.1 invited sealed tenders from the public for the purchase of the properties mentioned in the sale notice on “as is where is” and “as is what is” basis.

The sale notice also provided that, the properties can be inspected by the intending purchaser by August 4, 2014 and for any clarification regarding documents, title deeds, etc., the same may be clarified at the Park Street branch of the Respondent No.1.

In the instant case, the purchaser admittedly did not inspect the property concerned in terms of the sale notice prior to participating in the public auction.

The petitioners participated in the public auction in terms of the sale notice dated July 17, 2012.

It is not the case of the writ petitioners that in spite of request being made, the Respondent No.1 did not provide documents of title in respect of immovable property concerned prior to the writ petitioners participating in the sale notice or that the Respondent No.1 refused inspection.

As the purchaser the Writ Petitioner No.1 was obliged to satisfy itself as to title of the property as well as the area of the property put up for sale.

The sale was conducted on “As is where is” and “As is what is” basis.

The sale notice also specified that the intending purchasers can inspect the immovable property and seek clarification with regard thereto.

The writ petitioners did not take any inspection and did not seek any clarification.

The petitioners cannot be allowed to set up alleged misdescription of area of the flat in the sale notice to claim refund after not having exercising its option to inspect the flat and satisfy themselves as to the area available and other aspects.

The contention of the writ petitioners that, the calculation of the super built up area published in the sale notice is without any basis.

Firstly, the writ petitioners made no effort to check the actual area of the immovable property put up for sale.

They participated in the sale without making such inquiry.

The writ petitioners cannot be allowed to urge to that there is a misdescription in the area of the property.

Secondly, the Respondent No.1 obtained a valuation report with regard to the immovable property concerned.

The valuer calculated the built up area and the super built up area and gave a basis for such calculation.

It is not for the writ petitioners to assail such basis after a concluded deal.

Thirdly, it is not for the Writ Court to grant relief to a party which has been negligent of his rights.

I find no merit in the writ petition.

W.P.No.769 of 2014 is dismissed.

There will no order as to costs.

[DEBANGSU BASAK, J.].