The apex court observed, that the rights of an auction-purchaser in the property purchased by him cannot be extinguished except in cases where the said purchase can be assailed on grounds of fraud or collusion and the equitable rights vested in the auction-purchaser continues even during the pendency of a lis.
“REPORTABLE”
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 161 OF 2014
(Arising out of SLP (C) No.23000 of 2010)
Sadashiv Prasad Singh
... Appellant
Versus
Harendar Singh & Ors.
... Respondents
WITH
CIVIL APPEAL NO. 162 OF 2014
(Arising out of SLP (C) No.26550 of 2010)
Jagdish Singh Khehar, J.1
Dated; 8-1-2014
1.
On 11.9.1989, The Allahabad Bank (hereinafter referred to as ‘the Bank’)
sanctioned a loan of Rs.12.70 lac to M/s. Amar Timber Works, a partnership firm
having three partners, Jagmohan Singh, Payam Shoghi and Dev Kumar Sinha.
The above loan was sanctioned to M/s. Amar Timber Works, after its partners
had mortgaged certain properties to secure the loan amount. Since the loan
amount was not repaid in compliance with the commitment made by M/s. Amar
Timber Works, nine years later, in 1998, the Bank preferred Original Application
No.107 of 1998 before the Debt Recovery Tribunal for the recovery of the Bank’s
dues. The above Original Application was allowed on 21.11.2000. Accordingly, a
direction was issued for the recovery of Rs.75,75,564/- from M/s. Amar Timber
Works. For the execution of the order passed by the Debt Recovery Tribunal,
the Bank initiated recovery proceedings on 28.11.2000. During the pendency of
the recovery proceedings, Jagmohan Singh, one of the partners of M/s. Amar
Timber Works, died (on 27.1.2004).
On 16.4.2004, the Recovery Officer
attached plot No.722, located at Exhibition Road, P.S. Gandhi Maidan, Patna
(hereinafter referred to as ‘the property’) measuring 1298 sq.ft.
It would be
pertinent to mention that the aforesaid plot was in the ownership of Jagmohan
Singh, one of the partners in M/s. Amar Timber Works.
2.
On 10.6.2004, Harender Singh, brother of Jagmohan Singh, filed an
objection petition before the Recovery Officer alleging, that the attached property
did not belong to the judgment debtors, but had been purchased by him from his
brother Jagmohan Singh, by executing an agreement of sale dated 10.1.1991,
which was duly notarized though not registered. It would be relevant to mention,
that Harender Singh pursued the objection petition filed by him before the
Recovery Officer till 26.10.2005, but chose to abandon the proceedings
thereafter. The order passed by the Recovery officer when the Objector was
represented for the last time on 26.10.2005 is being extracted below:
“Ld. Advocate of Bank and objectors appears. Objector reiterated his
points and invited attention towards Section 53 of TP Act. Counsel of the
bank submits that he had to say nothing more than what was
said/submitted earlier. He also submits that D.Drs. was guarantor also in
this case hence his properties attached. Put up on 28.12.08 for further
hearing.
Sd/- Illegible
I/C R.O.”
3.
The recovery proceedings referred to above remained pending for a further
period of more than two years. Finally, the Recovery Officer passed an order
dated 5.5.2008, for the sale of the property by way of public auction on 4.7.2008.
The Recovery Officer fixed Rs.12.92 lacs as the reserve price, and also fixed
28.8.2008 as the date of its auction. At the auction held on 28.8.2008, Sadashiv
Prasad Singh, was the highest bidder. Accordingly, the Recovery Officer ordered
the sale of the property in his favour on 28.8.2008. On 22.9.2008, the Recovery
Officer, in the absence of any objections, confirmed the sale of the property in
favour of Sadashiv Prasad Singh.
The Recovery Officer also ordered, the
handing over of physical possession of the property to the auction purchaser.
Sadashiv Prasad Singh, the auction purchaser, took physical possession of the
property on 11.3.2009.
4.
In furtherance of the proceedings initiated through Mutation Case
No.295/2/09-10, the land in question was mutated in favour of the auction
purchaser. It would be relevant to mention that the application for mutation filed
by the auction purchaser, Sadashiv Prasad Singh, was supported by letter dated
14.10.2008 of the Ministry of Finance, Government of India, Realization
Authority, Patna. It would be relevant to mention, that no objections were filed in
the mutation case preferred by Sadashiv Prasad Singh, by or on behalf of
Harender Singh, before the Mutation Officer.
5.
On 27.11.2009, CWJC No.16485 of 2009 was filed by Harender Singh
before the High Court of Judicature at Patna (hereinafter referred to as the ‘High
Court’). In the aforesaid writ petition, Harender Singh assailed the order of the
Recovery Officer dated 5.5.2008, whereby, the property had been ordered to be
sold by public auction in discharge of the debt owed by M/s Amar Timber Works
to the Allahabad Bank. Vide its order dated 23.3.2010, the High Court ordered
the auction purchaser, i.e. Sadashiv Prasad Singh to be impleaded as a party-
respondent. On 27.11.2010, the High Court dismissed the above writ petition by
accepting the objections raised on behalf of the Bank, as well as, the auction
purchaser by holding as under :
“The above facts do weigh with the Court in not interfering with the sale or
the proceeding where it has been reached. The petitioner has no
satisfactory explanation for not approaching the Court well within time
challenging such a decision or the subsequent proceedings or orders of
the Recovery Officer at an appropriate time. The conduct of the petitioner
by itself has precluded and prevented this Court from passing any order in
his favour at this belated stage.
The writ application has not merit. It is dismissed accordingly.”
6.
Dissatisfied with the order dated 27.4.2010 whereby the writ petition filed
by Harender Singh was dismissed by a Single Bench of the High Court, he
preferred Letters Patent Appeal No.844 of 2010.
Before the Letters Patent
Bench, Harender Singh, brother of Jagmohan Singh, asserted that his brother
Jagmohan Singh had availed a loan of Rs.14.70 lacks. As against the aforesaid
loan amount, the Bank had initiated proceedings before the Debt Recovery
Tribunal for the realization of a sum of 75,75,564/-. The property under reference
was sold by way of public auction to Sadashiv Prasad Singh for a sum of
Rs.13.20 lacs. As against the aforesaid sale consideration paid by the auction
purchaser, Harender Singh, offered a sum of Rs.39 lacs before the Letters
Patent Bench. In the order passed by the Letters Patent Bench disposing of
Page 4
5
Letters Patent Appeal No.844 of 2010, it stands noticed that the Bank had
accepted to finally settle the matter on being paid a sum of Rs.45 lacs, subject to
the condition that the Harender Singh pays a sum of Rs.15 lacs immediately, and
the balance amount of Rs.30 lacs within a period of two years in a phased
manner. Even though the learned counsel representing the appellant, Harender
Singh was agreeable to proposal of the Bank, the rival parties could not amicably
settle the matter.
It is, therefore, that the letters patent Bench went on to
adjudicate the matter on its merits. The above factual position has been noticed
for the reason that it has a nexus to the final order which was eventually passed
by the Letters Patent Bench disposing of LPA No.844 of 2010. In fact, it would
be in the fitness of matters to extract paragraph 8 from the impugned judgment
rendered in LPA No.844 of 2010 in order to appreciate the niceties of the matter.
The aforesaid paragraph is, accordingly, being extracted herein :
“8. At this juncture, we may state that the brother of the appellant had
availed a loan of Rs.14.70 lacs. The said aspect is not disputed by Mr.
Ajay Kumar Sinha, learned counsel for the Bank. The Bank had initiated a
proceeding before the Tribunal for realization of approximately a sum of
Rs.75.75 lacs. The property has been sold for Rs.13.20 lacs. It is
submitted by Mr. Ojha that the prices have gone up and he is being offered
more than 39 lacs for the same. It is not in dispute that the price, the
auction-purchaser has tendered, is Rs.13.20 lacs. On the earlier occasion,
a suggestion was given whether the Bank would accept Rs.45 lacs in toto
to settle the dispute. Mr. Sinha, learned counsel for the Bank has obtained
instructions that the Bank has no objection to settle the same, if the
appellant pays Rs.15 lacs immediately so that the same can be paid to the
auction-purchaser and Rs.30 lacks should be paid within a period of two
years in a phased manner. Mr. Choubey, learned counsel for the appellant
submitted that the appellant is agreeable to pay the same. Mr. Ojha
submitted that he has instructions not to accept the suggestion.”
7.
During the course of appellate proceedings, the High Court referred to
Chapter V of the Recovery of Debts Due to Banks and Financial Institutions Act,
1993 (hereinafter referred to as the Debt Recoveries Act) and particularly to
Section 29 which is being extracted hereunder:
“29. Application of certain provisions of Income-tax Act.—The
provisions of the Second and Third Schedules to the Income-tax Act, 1961
(43 of 1961) and the Income-tax (Certificate Proceedings) Rules, 1962, as
in force from time to time shall, as far as possible, apply with necessary
modifications as if the said provisions and the rules referred to the amount
of debt due under this Act instead of to the Income-tax :
Provided that any reference under the said provisions and the rules
to the “assessee” shall be construed as a reference to the defendant under
this Act.”
The High Court while interpreting Section 29 extracted above, concluded that
certain provisions of the Income Tax Act and Income Tax (Certificate
Proceedings) Rules would be applicable mutatis mutandis in the matter of
recovery of debts under the Debt Recoveries Act. The High Court then referred
to Rule 11 of the Income Tax (Certificate Proceedings) Rules and arrived at the
conclusion that sub-rule (2) of Rule 11, had not been complied with by the
Recovery Officer, inasmuch as, the objection raised by Harender Singh had not
been adjudicated upon.
As such, the High Court finally concluded that the
proceedings before the Recovery Officer were in flagrant violation of the
provisions of Rule 11(2) of the Income Tax (Certificate Proceedings) Rules.
Having so concluded, the High Court set aside the proceedings conducted by the
Recovery Officer, including the sale of the property by public auction. In order to
appreciate the basis of the order passed by the High Court, Rule 11 of the
Second Schedule of the Income Tax Act, 1961, is being extracted herein:
“Investigation by Tax Recovery Officer.
11. (1)
Where any claim is preferred to, or any objection is
made to the attachment or sale of, any property in execution of a
certificate, on the ground that such property is not liable to such
attachment or sale, the Tax Recovery Officer shall proceed to investigate
the claim or objection:
Provided that no such investigation shall be made where the Tax
Recovery Officer considers that the claim or objection was designedly or
unnecessarily delayed.
(2)
Where the property to which the claim or objection applies has been
advertised for sale, the Tax Recovery Officer ordering the sale may
postpone it pending the investigation of the claim or objection, upon such
terms as to security or otherwise as the Tax Recovery Officer shall deem
fit.
(3)
The claimant or objector must adduce evidence to show that-
(a)
(in the case of immovable property) at the date of the service
of the notice issued under this Schedule to pay the arrears, or
(b)
(in the case of movable property) at the date of the
attachment,
he had some interest in, or was possessed of, the property in
question.
(4)
Where, upon the said investigation, the Tax Recovery Officer is
satisfied that, for the reason stated in the claim or objection, such property
was not, at the said date, in the possession of the defaulter or of some
person in truest for him or in the occupancy of a tenant or other person
paying rent to him, or that, being in the possession of the defaulter at the
said date, it was so in his possession, not on his own account or as his
own property, but on account of or in trust for some other person, or partly
on his own account and partly on account of some other person, the Tax
Recovery Officer shall make an order releasing the property, wholly or to
such extent as he thinks fit, from attachment or sale.
(5)
Where the Tax Recovery Officer is satisfied that the property was, at
the said date, in the possession of the defaulter as his own property and
not on account of any other person, or was in the possession of some
other person in trust for him, or in the occupancy of a tenant or other
person paying rent to him, the Tax Recovery Officer shall disallow the
claim.
(6)
Where a claim or an objection is preferred, the party against whom
an order is made may institute a suit in a civil court to establish the right
which he claims to the property in dispute; but, subject to the result of such
suit (if any), the order of the Tax Recovery Officer shall be conclusive.”
8.
Having dealt with the controversy in the manner expressed in the foregoing
paragraphs, the Division Bench of the High Court was of the view that the matter
in hand ought to be settled by working out the equities between the parties.
Accordingly, the High Court disposed of the matter in the following manner:
“12. Though we have held the same could not have been sold in auction,
yet equities are to be worked out. Regard being had to the fact that the
respondent-purchaser has deposited Rs.13.20 lac between 28.8.2008 to
22.9.2009 and thus the amount is with the Bank for almost more than one
year and 10 months and thereafter there had been challenge to the order
in the writ petition and after dismissal of the writ petition the present L.P.A.
has been filed in quite promptitude and that the amount of the respondent-
purchaser was blocked, it will be obligatory on the part of the appellant to
compensate the respondent-purchaser at least by way of payment of
interest at the Bank rate. We are disposed to think that if a sum of Rs.17
lacs is paid to the auction-purchaser, it would sub-serve the cause of
justice and house of the appellant shall be saved and, accordingly, it is
directed that the appellant shall deposit a sum of Rs.17 lacks within a
period of four weeks from today in the Bank. After such deposit, the Bank
shall hand it over to the purchaser by way of a bank draft. The same shall
be sent by registered post with acknowledgment due. Thereafter the
appellant shall deposit a further sum of Rs.32 lacs within a period of two
years; sum of Rs.16 lacs by 25th March, 2011 and further sum of Rs.16
lacs by 25th March, 2012. Needless to say pro-rate interest shall accrue in
favour of the Bank for the said period.
13. After the amount is paid to the purchaser, it would be the duty of the
Recovery Officer to hand over the possession to the appellant.”
9.
Sadashiv Prasad Singh, the auction purchaser, has assailed the impugned
order passed by the Division Bench of the High Court in LPA No.844 of 2010
praying for the setting aside of the order by which he has been deprived of the
property purchased by him in the public auction held on 28.8.2008, which was
subsequently confirmed by the Recovery Officer of the Debt Recovery Tribunal
on 23.9.2008. This challenge has been made by Sadashiv Prasad Singh by filing
Special Leave Petition (C) No.23000 of 2010. The impugned order passed by
the High Court on 17.5.2010, has also been assailed by Harender Singh by
preferring Special Leave Petition (C) No.26550 of 2010. The prayer made by
Harender Singh is, that order passed by the Division Bench places him in the
shoes of the auction purchaser, and as such, he could have only been asked to
pay a sum of Rs.17 lacs. Requiring him to pay a further sum of Rs.32 lacs is
unsustainable in law, and accordingly, deserved to be set aside.
10. Leave granted in both the Special Leave Petitions.
11. For the narration of facts, we have relied upon the pleadings and the
documents appended to Special Leave Petition (C) No.23000 of 2010.
12.
Learned counsel for the auction purchaser Sadashiv Prasad Singh, in the
first instance vehemently contended, that in terms of the law declared by this
Court, property purchased by a third party auction purchaser, in compliance of a
court order, cannot be interfered with on the basis of the success or failure of
parties to a proceeding, if auction purchaser had bonafidely purchased the
property.
In order to substantiate his aforesaid contention, learned counsel
representing Sadashiv Prasad Singh placed emphatic reliance, firstly, on a
judgment rendered by this Court in Ashwin S. Mehta & Anr. vs. Custodian & Ors.,
(2006) 2 SCC 385).
Our attention was drawn to the following observations
recorded therein :
“In that view of the matter, evidently, creation of any third-party interest is
no longer in dispute nor the same is subject to any order of this Court. In
any event, ordinarily, a bona fide purchaser for value in an auction-sale is
treated differently than a decree-holder purchasing such properties. In the
former event, even if such a decree is set aside, the interest of the bona
fide purchaser in an auction-sale is saved. (See Nawab Zain-ul-Abdin
Khan v. Mohd. Asghar Ali Khan (1887) 15 IA 12) The said decision has
been affirmed by this Court in Gurjoginder Singh v. Jaswant Kaur (1994) 2
SCC 368).”
(emphasis is ours)
On the same subject, and to the same end, learned counsel placed reliance on
another judgment rendered by this Court in Janatha Textiles & Ors. vs. Tax
Recovery Officer & Anr., (2008) 12 SCC 582, wherein the conclusions drawn in
Ashwin S. Mehta’s case (supra) came to be reiterated. In the above judgment,
this Court relied upon the decisions of the Privy Council and of this Court in
Nawab Zain-Ul-Abdin Khan v. Mohd. Asghar Ali Khan, (1887-88) 15 IA 12; Janak
Raj vs. Gurdial Singh, AIR 1967 SC 608; Gurjoginder Singh vs. Jaswant Kaur,
(1994) 2 SCC 368; Padanathil Ruqmini Amma vs. P.K. Abdulla, (1996) 7 SCC
668, as also, on Ashwin S. Mehta (supra) in order to conclude, that it is an
established principle of law, that a third party auction purchaser’s interest, in the
auctioned property continues to be protected, notwithstanding that the underlying
decree is subsequently set aside or otherwise. It is, therefore, that this Court in
its ultimate analysis observed as under:
“20. Law makes a clear distinction between a stranger who is a bona fide
purchaser of the property at an auction-sale and a decree-holder
purchaser at a court auction. The strangers to the decree are afforded
protection by the court because they are not connected with the decree.
Unless the protection is extended to them the court sales would not fetch
market value or fair price of the property.”
(emphasis is ours)
On the issue as has been dealt with in the foregoing paragraph, this Court has
carved out one exception. The aforesaid exception came to be recorded in Velji
Khimji and Company vs. Official Liquidator of Hindustan Nitro Product (Gujarat)
Limited & Ors., (2008) 9 SCC 299, wherein it was held as under :
“30. In the first case mentioned above i.e. where the auction is not subject
to confirmation by any authority, the auction is complete on the fall of the
hammer, and certain rights accrue in favour of the auction-purchaser.
However, where the auction is subject to subsequent confirmation by some
authority (under a statute or terms of the auction) the auction is not
complete and no rights accrue until the sale is confirmed by the said
authority. Once, however, the sale is confirmed by that authority, certain
rights accrue in favour of the auction-purchaser, and these rights cannot
be extinguished except in exceptional cases such as fraud.
31. In the present case, the auction having been confirmed on 30.7.2003
by the Court it cannot be set aside unless some fraud or collusion has
been proved. We are satisfied that no fraud or collusion has been
established by anyone in this case.”
(emphasis is ours)
It is, therefore, apparent that the rights of an auction-purchaser in the property
purchased by him cannot be extinguished except in cases where the said
purchase can be assailed on grounds of fraud or collusion.
13.
It is imperative for us, to adjudicate upon the veracity of the sale of the
property by way of public auction, made in favour of Sadashiv Prasad Singh on
28.8.2008. It is not a matter of dispute, that the lis in the present controversy
was between the Allahabad Bank on the one hand and the partners of M/s. Amar
Timber Works, namely, Jagmohan Singh, Payam Shoghi and Dev Kumar Sinha
on the other. Sadashiv Prasad Sinha was not a party to the proceedings before
the Debt Recovery Tribunal or before the Recovery Officer. By an order dated
5.5.2008, the Recovery Officer ordered the sale of the property by way of public
auction. On 4.7.2008, the Recovery Officer fixed Rs.12.92 lacs as the reserve
price, and also fixed 28.8.2008 as the date of auction. At the public auction held
on 28.8.2008, Sadashiv Prasad Sinha was the highest bidder, and accordingly,
the Recovery officer ordered the sale of the property in his favour on 28.8.2008.
In the absence of any objections, the Recovery Officer confirmed the sale of the
property in favour of Sadashiv Prasad Sinha on 22.9.2008.
Thereafter
possession of the property was also handed over to the auction-purchaser on
11.3.2009. Applying the law declared by this Court in the judgments referred in
the foregoing paragraphs irrespective of the merits of the lis between the rival
parties, namely, the Allahabad Bank and the partners of M/s. Amar Timber
Works, it is not open for anyone to assail the purchase of the property made by
Sadashiv Prasad Sinha in the public auction held in furtherance of the order
passed by the Recovery Officer on 28.8.2008. In the above view of the matter,
especially in the absence of any allegation of fraud or collusion, we are of the
view that the High Court clearly erred while setting aside the auction ordered in
favour of the auction-purchaser, Sadashiv Prasad Sinha in the impugned order
dated 17.5.2010.
14.
A perusal of the impugned order especially paragraphs 8, 12 and 13
extracted hereinabove reveal that the impugned order came to be passed in
order to work out the equities between the parties. The entire deliberation at the
hands of the High Court were based on offers and counter offers, inter se
between the Allahabad Bank on the one hand and the objector Harender Singh
on the other, whereas the rights of Sadashiv Prasad Sinha – the auction-
purchaser, were not at all taken into consideration. As a matter of fact, it is
Sadashiv Prasad Sinha who was to be deprived of the property which came to be
vested in him as far back as on 28.8.2008. It is nobody’s case, that at the time of
the auction-purchase, the value of the property purchased by Sadashiv Prasad
Sinha was in excess of his bid.
In fact, the factual position depicted under
paragraph 8 of the impugned judgment reveals, that the escalation of prices had
taken place thereafter, and the value of the property purchased by Sadashiv
Prasad Sinha was presently much higher than the bid amount. Since it was
nobody’s case that Sadashiv Prasad Sinha, the highest bidder at the auction
conducted on 28.8.2008, had purchased the property in question at a price lesser
than the then prevailing market price, there was no justification whatsoever to set
aside the auction-purchase made by him on account of escalation of prices
thereafter. The High Court in ignoring the vested right of the appellant in the
property in question, after his auction bid was accepted and confirmed, subjected
him to grave injustice by depriving him to property which he had genuinely and
legitimately purchased at a public auction. In our considered view, not only did
the Division Bench of the High Court in the matter by ignoring the sound, legal
and clear principles laid down by this Court in respect of a third party auction
purchaser, the High Court also clearly overlooked the equitable rights vested in
the auction-purchaser during the pendency of a lis. The High Court also clearly
overlooked the equitable rights vested in the auction purchaser while disposing of
the matter.
15.
At the time of hearing, we were thinking of remanding the matter to the
Recovery Officer to investigate into the objection of Harender Singh under Rule
11 of the Second Schedule to the Income Tax Act, 1961. But considering the
delay such a remand may cause, we have ourselves examined the objections of
Harender Singh and reject the objections for a variety of reasons. Firstly, the
contention raised at the hands of the respondents before the High Court, that the
facts narrated by Harender Singh (the appellant in Special Leave Petition (C)
No.26550 of 2010) were a total sham, as he was actually the brother of one of
the judgment-debtors, namely, Jagmohan Singh. And that Harender Singh had
created an unbelievable story with the connivance and help of his brother, so as
to save the property in question. The claim of Harender Singh in his objection
petition, was based on an unregistered agreement to sell dated 10.1.1991. Not
only that such an agreement to sell would not vest any legal right in his favour; it
is apparent that it may not have been difficult for him to have had the aforesaid
agreement to sell notarized in connivance with his brother, for the purpose
sought to be achieved. Secondly, it is apparent from the factual position depicted
in the foregoing paragraphs that Harender Singh, despite his having filed
objections before the Recovery Officer, had abandoned the contest raised by him
by not appearing (and by not being represented) before the Recovery Officer
after 26.10.2005, whereas, the Recovery Officer had passed the order of sale of
the property by way of public auction more than two years thereafter, only on
5.5.2008. Having abandoned his claim before the Recovery Officer, it was not
open to him to have reagitated the same by filing a writ petition before the High
Court. Thirdly, a remedy of appeal was available to Harender Singh in respect of
the order of the Recovery Officer assailed by him before the High Court under
Section 30, which is being extracted herein to assail the order dated 5.5.2008:
“30. Appeal against the order of Recovery Officer.— (1)
Notwithstanding anything contained in section 29, any person aggrieved by
an order of the Recovery Officer made under this Act may, within thirty
days from the date on which a copy of the order is issued to him, prefer an
appeal to the Tribunal.
(2) On receipt of an appeal under sub-section (1), the Tribunal may, after
giving an opportunity to the appellant to be heard, and after making such
inquiry as it deems fit, confirm, modify or set aside the order made by the
Recovery Officer in exercise of his powers under section 25 to 28 (both
inclusive).”
The High Court ought not to have interfered with in the matter agitated by
Harender Singh in exercise of its writ jurisdiction. In fact, the learned Single
Judge rightfully dismissed the writ petition filed by Harender Singh. Fourthly,
Harender Singh could not be allowed to raise a challenge to the public auction
held on 28.8.2008 because he had not raised any objection to the attachment of
the property in question or the proclamations and notices issued in newspapers
in connection with the auction thereof. All these facts cumulatively lead to the
conclusion that after 26.10.2005, Harender Singh had lost all interest in the
property in question and had therefore, remained a silent spectator to various
orders which came to be passed from time to time.
He had, therefore, no
equitable right in his favour to assail the auction-purchase made by Sadashiv
Prasad Sinha on 28.8.2008. Finally, the public auction under reference was held
on 28.8.2008. Thereafter the same was confirmed on 22.09.2008. Possession
of the property was handed over to the auction-purchaser Sadashiv Prasad
Sinha on 11.3.2009. The auction-purchaser initiated mutation proceedings in
respect of the property in question. Harender Singh did not raise any objections
in the said mutation proceedings.
The said mutation proceedings were also
finalized in favour of Sadashiv Prasad Sinha. Harender Singh approached the
High Court through CWJC No.16485 of 209 only on 27.11.2009. We are of the
view that the challenged raised by Harender Singh ought to have been rejected
on the grounds of delay and latches, especially because third party rights had
emerged in the meantime. More so, because the auction purchaser was a bona
fide purchaser for consideration, having purchased the property in furtherance of
a duly publicized public auction, interference by the High Court even on ground
of equity was clearly uncalled for.
For the reasons recorded hereinabove, we are of the view that the
impugned order dated 17.5.2010 passed by the High Court allowing Letters
Patent Appeal No.844 of 2010 deserves to be set aside.
The same is
accordingly set aside. The right of the appellant Sadashiv Prasad Sinha in Plot
No.2722, Exhibition Road, P.S. Gandhi Maidan, Patna, measuring 1289 sq.ft. is
hereby confirmed. In the above view of the matter, while the appeal preferred by
Sadashiv Prasad Sinha stands allowed, the one filed by Harender Singh is
hereby dismissed.
...............................J.
(A.K. Patnaik)
...............................J.
(Jagdish Singh Khehar)
New Delhi;
January 8, 2014
No comments:
Post a Comment