Rajesh vs Central Bank of India and Others

Rakesh Kumar Jain, J.—This revision petition is directed against the order dated 10.02.2012 vide which the objection filed by respondent No. 1 has been allowed and the sale deed dated 01.10.2004 as well as sale proceedings in favour of the petitioner have been set aside. In brief, one Vijay Singh obtained loan from the respondent-Bank while mortgaging his residential house. Since he had not paid the instalments, therefore, the respondent-Bank filed the suit for recovery which was ultimately decreed. The mortgaged property was put to auction in terms of order 21 Rule 84 of the CPC. The said auction took place on 01.10.2004 in which the petitioner was the highest bidder for a sum of Rs. 40,000/-. The case of the respondents was that after the death of Vijay Singh (borrower), his widow-Smt. Rani had deposited the entire dues of the Bank amounting to Rs. 2,01,784/- alongwith interest.

The respondent-Bank filed objection under Section 47 CPC read with Order 21 Rule 19 of the CPC before the Executing Court challenging the auction proceedings on the ground that there was complete violation of Order 21 Rule 84 of the CPC.

Learned counsel for respondent-Bank has submitted that as per Order 21 Rule 84, the highest bidder is required to deposit 25% money at the time of auction and in case the bid money is not deposited, the auctioneer has to put the property for resale. He referred to Order 21 Rule 84 of the CPC which read as under:-

"84. Deposit by purchaser and re-sale on default.-(1) On every sale of immovable property the person declared to be the purchaser shall pay immediately after such declaration a deposit of twenty-five per cent'' on the amount of his purchase-money to the officer or other person conducting the sale, and in default of such deposit, the property shall forthwith be re-sold.

(2) Where the decree-holder is the purchaser and is entitled to set-off the purchase-money under rule 72, the Court may dispense with the requirements of this rule."

Learned Executing Court has allowed the objection of the respondent-Bank on the ground that the decree-holder led no evidence to show that the auction purchaser has immediately deposited 25% amount of the bid money on the date of auction rather it came on record that the entire money was deposited on 09.10.2004 after expiry of eight days.

Learned counsel for the petitioner has argued that the entire amount of Rs. 40,000/- was paid by the auction purchaser on 01.10.2004 to the Tehsildar/Auctioneer. He has referred to an affidavit dated 11.04.2009 purported to have been sworn by Sh. R.S. Bhambu, the then Tehsildar/Auctioneer, in which he has stated that "Rajesh was the highest bidder and he deposited the whole auction amount at the site." It is submitted by learned counsel for the petitioner, that once it has been admitted by way of an affidavit by the Auctioneer himself that the entire amount of auction was paid by the petitioner at the time of auction, it cannot be determined against him that he had failed to discharge his burden of paying 25% of the auction money at the time of auction on 01.10.2004 which was eventually deposited only by the auctioneer only on 09.10.2004 in the Treasury. It is further submitted that the very fact that the amount has been deposited itself shows that he had money with him. He has, thus, submitted that there is no fault on the part of the petitioner for which he should not be penalized as the amount was already paid.

On the other hand, learned counsel for the respondent has argued that Order 21 Rule 84 is a mandatory provision as held by the Supreme Court in the case of Manilal Mohanlal Shah and Others Vs. Sardar Sayed Ahmed Sayed Mahamad and Another, . He has also referred to the decision of this Court in the case of Ramesh Kumar Verma v. State Bank of India and another, 2004(4) R.C.R. (Civil) 435.

Learned counsel for the respondent has submitted that if the amount of Rs. 40,000/-, as averred by the petitioner, was paid to the auctioneer at the site, it would have been found mentioned some where in the auction proceedings. He has produced before me the auction proceedings and in which there is no reference by the auctioneer about the payment of Rs. 40,000/- on 01.10.2004.

From the above narration, it is clear that there is no dispute about the facts of the case concerning the decree and auction proceedings. The only dispute is about the fact of deposit of Rs. 40,000/- by the petitioner at the time of auction with the auctioneer. This fact is tried to be proved by the petitioner by way of an affidavit of the auctioneer in which he has mentioned that the amount was paid by the petitioner at the site, but there is no order in this regard recorded in the auction sheet or the proceedings. Had the amount been deposited at the time of auction, it would have been recorded by him in the auction proceedings which would itself speak about the proceedings carried out on the said date.

Regard may be had to the judgment of this Court in the case of Ramesh Kumar Verma''s case (supra) in which similar situation had arisen. In the said case, facts were that property belonging to M/s. R.K. Fancy Twisters (Judgment-debtor) was mortgaged with the decree-holder. The land was put to auction vide order dated 21.08.1997 passed by the Civil Judge (Senior Division), Panipat. The auction took place on 19.09.1997 in respect the land measuring 16 marlas. 24 persons participated in the auction but Ramesh Kumar Verma-petitioner in the said case was the highest bidder. According to him, he deposited 25% of the auction money with the Tehsildar at the spot, who conducted the auction, immediately on the fall of the hammer. Tehsildar deposited the said money in the Treasury on 26.9.1997. The facts of the Ramesh Kumar Verma''s case and the facts of present case are almost similar because in the aforesaid case auction was held on 19.09.1997 and the money was deposited by the Tehsildar on 26.9.1997 and in the present case auction took place on 01.10.2004 and money was deposited by the Tehsildar on 09.10.2004. However, Order 21 Rule 84 provides that the money has to be paid on the date of auction to the extent of 25%. The fact as to whether the money was paid or not, as required in the aforesaid provision, has to be proved by leading cogent evidence but the petitioner is only relying upon the affidavit of the Tehsildar without there being any proof of recording the said fact by Tehsildar in the auction proceedings.

In the cited case, this Court did not believe the story propounded by the auction purchaser and it was held that the amount as required under Order 21 Rule 84 was not deposited. While relying upon the decisions in Ganpat Ram Khosla v. Kishan Lal and another, (1958) 60 PLR 349 , Manilal Mohanlal Shah and Others Vs. Sardar Sayed Ahmed Sayed Mahamad and Another, and Sardara Singh (Dead) by Lrs. and Another Vs. Sardara Singh (Dead) and Others, , it was held that the deposit of 25% amount of the auction money under Order 21 Rule 84 CPC is mandatory otherwise the sale is non est.

In view of the fact that the petitioner has failed to prove deposit of 25% of the auction money, at the time of fall of hammer on 01.10.2004, the sale was not complete. In view of the above, the findings recorded by the learned Court below does not require any interference by this Court.