Krishna Ambaramold vs Krishna Ambaram Trust

A.S. Bopanna, J.

Though the petition is listed in the stage of hearing on Interlocutory Application and there is an indication with regard to taking steps in respect of the unserved respondents, considering the fact that the issue relates to the acceptance of the Commissioner''s Report and the unserved respondents would not be necessary for consideration of that aspect and also since the matter lies in a narrow compass, the petition itself is taken up for consideration and disposed of by this order.

Petitioner herein is the petitioner No. 1(b) in FDP No. 30/2006 in respect of the preliminary decree granted. On noticing that the physical division of the property among the sharers is not possible, the property which is the subject herein is put to auction so as to distribute the sale proceeds in consonance with the shares allotted to each of the parties in the preliminary decree. In the said process, the Court Commissioner had been appointed by the Court below for conducting sale of the property which is the subject matter in this petition. The Commissioner having conducted the sale has submitted his report on 27.07.2014. The court below while accepting the report of the Commissioner has directed confirmation of the sale of the second item of the schedule property as per the public auction conducted on 21.07.2014. The petitioner herein is assailing the order of the court below whereby the report has been accepted and the sale has been confirmed.

The learned counsel for the petitioner while assailing the order would contend that the court below was not justified in accepting the report of the Commissioner when infirmities in the nature of the proceedings conducted by the Commissioner has been raised before the court below. It is his contention that firstly, the advertisement made is not appropriate, secondly, the place chosen for conducting the auction is not justified and further the manner in which the Commissioner has proceeded on the date of auction in a hurried manner would not be justified and these aspects would indicate that the auction has been conducted in a manner to benefit the successful purchaser without giving opportunity to any other competent bidder to offer a higher price than the reserve price.

The learned counsel would also point out that though only one Mr. Irfan Razack was the bidder, the order presently indicates that the sale is to be confirmed in favour of two others whose name is indicated in the operative portion of the order. Further, it is also his case that the property in question would fetch more than the price for which the bid has been accepted and therefore the report of the Commissioner as well as the order of the court below is liable to be set aside.

The learned counsel for the respondents including the learned counsel for the successful bidder seek to sustain the order impugned herein. In so far as learned counsel for the party respondents in the final decree proceedings they would contend that despite earlier proceedings, the price better than the one which is presently offered has not been received. It is pointed out, though at an earlier stage an offer of Rs. 27 Crores has been made, that was only at the instance of the petitioner herein but the same had not been carried through and therefore the present procedure adopted is the most appropriate procedure and the same does not call for any interference.

The learned counsel for the successful bidder would raise contentions with regard to the maintainability of this petition itself since the petitioner has not deposited 5% of the bid amount which is a requirement as contemplated under Order 21 Rule 89 of Code of Civil Procedure, before a confirmation order is assailed in the higher forum. He has also placed reliance on the decision of the Hon''ble Supreme Court in the case of Ram Karan Gupta Vs. J.S. Exim Ltd. and Others, .

In the light of the contentions put forth, I have perused the petition papers including the report submitted by the Commissioner on 27.07.2014 before the court below as also the order passed by the court below accepting the report of the Commissioner and directing confirmation of the sale.

In so far as the contention raised with regard to the manner in which the sale has been conducted, at the outset it is necessary to notice that the Commissioner appointed by the Court is none other than a Retired District and Sessions Judge of repute. While undertaking the process, he has published the proposed sale in the ''Times of India'' and the ''Deccan Herald'' newspapers which are widely circulated. The place wherein the auction would be held is also indicated. The learned counsel for the petitioner, no doubt, contended that at first instance, when a notification was made certain errors had occurred in the notification with regard to the description of the property. The same in my opinion would not vitiate the present proceedings since a subsequent notification with the corrections thereto has been made and thereafter the proceedings has been held.

With regard to the place wherein the auction has been held, the documents had been submitted by the Commissioner before the court below for having paid the amount for utilizing the place in Hotel AJ International. Though the learned counsel without any material on record contended that the successful bidder has a stake the said hotel, even that aspect cannot vitiate the sale because the place has been utilized for that purpose even if it is a fact. Based on the paper publication any other person who was interested could also go over to that place and take part in the auction process and in any event no other person who was unable to go there because of that reason has raised any grievance.

Further the contention that the Commissioner has concluded the proceedings in a hurried manner also cannot be accepted. I am of the said opinion for the reason that the order passed by the court below would indicate that having taken note of the report submitted by the Commissioner, with regard to the commencement of the auction and the conclusion thereof and the number of bidders who have taken part, the court below has accepted the report. It is not the case of the petitioner that either immediately thereafter or before the court below any other bidder had approached the court complaining that they were intending to take part in the said auction but they were denied opportunity. No other proposed purchaser has approached this court nor the petitioner has brought one before this court.

Further, though the petitioner contends that at an earlier instance, the offer for the property was at Rs. 27 Crores, even as on today, no other person is challenging the offer that has been made by the successful bidder except for contention being put forth by the petitioner to prolong his occupation. If fact the party respondents who are to receive a share from the amount that would be realized by sale of the property are not raising any issue on that aspect.

With regard to the contention raised by the successful bidder that the requirement under Order 21 Rule 89 of Code of Civil Procedure has not been complied. Not only as per the decision rendered by the Hon''ble Supreme Court cited above, in addition to that, even before this court an opportunity was granted to the petitioner to deposit the amount and thereafter put forth the contention in this petition. To that effect, the order was passed on 05.11.2014.

When the petition is taken up today, the learned counsel for the petitioner would candidly submit that the petitioner does not intend to deposit the said amount. Further as already noticed, the petitioner has also not brought any other purchaser before this court. In the said background, if the report of the Commissioner is noticed and the consideration made by the court below while accepting the report of the Commissioner is taken into consideration, when the offer made is similar to that of the reserved price which had been fixed and when there is no other higher offer, certainly the court below was justified in accepting the report and directing confirmation of the sale more particularly in a circumstance when all other co-sharers except the petitioner have any grievance.

Having arrived at the above conclusion only, the only other aspect which requires consideration is as to whether the contention raised by the learned counsel for the petitioner that the operative portion of the order directing the sale to be confirmed in favour of Sri. Rizwan Razack and Sri. Noman Razack despite they were not the bidders could be accepted and in that view whether the order would admit of any infirmity. To secure clarification on this aspect the matter had been passed over and at this juncture, the learned counsel for the successful bidder has placed before this court a letter dated 22.07.2014 addressed to the Registrar, City Civil Court, which is a part of the record before the court below while depositing the amount. As has been indicated therein a request has been made by the successful bidder to confirm the sale in his favour as also his brothers namely Sri. Rizwan Razack and Sri. Noman Razack. In that circumstance, when the court below has taken note of the fact that the bid made by Sri. Irfan Razack is in the capacity as a Chairman and Managing Director of M/s. Prestige Group and in that circumstance, he has sought for confirmation of the sale in the joint names and not in the name of any other stranger to the auction, the court below has not committed any error in directing confirmation in the manner as has been done.

Therefore taking into consideration all the above aspects, I see no reason to interfere with the order impugned herein.

The petition being devoid of merits, therefore stands disposed.