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Judgment
R.S. Ramanathan, J.—The Respondents 1 to 5 in CRP (PD) No.3241 of 2010 are the Trustees of the Thondai Mandala Adi Saiva Vellal Community''s Sri Prasanna Vinayagar Koil Trust and they filed Trust O.P. No. 106 of 2003 on the file of the Principal District Court, Chengalpattu, seeking permission of the Court under Section 34 of the Indian Trust Act, to sell the properties mentioned in the schedule to the Petition for a sum of Rs. 30,20,000/-.
By order, dated 23.12.2003, the learned Principal District Judge permitted the Respondents 1 to 5 in CRP (PD) No.3241 of 2010 to sell the Petition mentioned properties for a sum, not less Rs. 55,90,000/- and as there was no offer to purchase the said property for the said sum, they filed I.A. No. 285 of 2004 in Tr.O.P. No. 106 of 2003 to permit the Petitioner''s Trust to conduct auction to sell the property for the highest. bidder in the auction and that Petition was allowed and Mr. V. Paul Dass, retired Sub-Judge and practicing Advocate was appointed as ''Advocate Commissioner'' to sell the property subject to the conditions stated therein. The Advocate Commissioner conducted the auction after giving paper publication and wide publicity and the Revision Petitioner, in both the Revisions, also attended the auction held on 25.3.2006 by depositing necessary caution deposit of Rs. 1,00,000/-. and in the auction, the 6th Respondent in CRP (PD) No.3241 of 2010 herein was declared as highest bidder of Rs. 30,20,000/- and that was accepted and aggrieved by the same, these Revision Petitions were filed by the Revision Petitioners to set aside the auction knocked in favour of the 6th Respondent and direct the Court to conduct re-auction in open Court. Those two Petitions were dismissed and aggrieved by the same, these two Revisions were filed.
Mr. AR. L. Sundaresan, the learned Senior Counsel appearing for the Revision Petitioner in CRP (PD) No. 4364 of 2010 submitted that the auction was not conducted in a congenial atmosphere and as per the auction notice, the auction ought to have been commenced at 10.30 p.m. and admittedly, the auction commenced only at 2.30 p.m. and the Advocate Commissioner allowed various persons to take part in the auction by purposefully delaying the auction and the Petitioners were not permitted to participate in the auction and the persons, who were set up by the 6th Respondent. only were allowed to participate in the auction. Latter, the 6th Respondent was declared. as a successful bidder, having quoted the amount of Rs. 30,20,000/- and even according to the Advocate Commissioner, he has not complied with the condition namely depositing 25% of the bid amount immediately after the action was over and he deposited Rs. 6,00,000/- on that date and deposited the remaining amount of Rs. 2,00,000./- only on 27.12.2005 and therefore, the Advocate Commissioner ought not to have declared the 6th Respondent as successful bidder and the Court below ought not to have approved the Sale Deed in favour of the 6th Respondent and the Court below ought not to have dismissed the Petition filed by the Revision Petitioners, when earlier the auction price was fixed at Rs. 55,95,000/-.
The learned Senior Counsel further submitted that the Petitioner in CRP (PD) No. 4364 of 2010 was not permitted to participate in the auction and though, the Petitioner offered Rs. 36,00,000/-, a mass entered into the auction place pushed him to a comer and did not permit his offer of Rs. 36,00,000/-. to be noted by the Advocate Commissioner and the Petitioner in CRP (PD) No.4364 of 2011 also stated in the Affidavit filed to set aside the auction that the Petitioner was prepared to buy the property for Rs. 45,00,000/- and the Petitioner lodged his protest to the Advocate Commissioner about the manner in which the auction was conducted and as the Advocate Commissioner did not heed to the request of the Petitioner, the Applications were filed by the Petitioner to set aside the auction.
The learned Counsel for the Petitioner in CRP (PD) No. 3244 of 2011 also endorsed the argument of the learned Senior Counsel Mr. AR. L. Sundaresan.
Mr. G. Rajagopalan, the learned Senior Counsel appearing for the 6th Respondent, who was declared as successful bidder, submitted that the Court below rightly dismissed the Applications and even though, the Petitioners attended the auction, they did not participate in the auction and only 11 persons including the 6th Respondent participated and submitted their bid amount and as the bid amount offered by the 6th Respondent was the highest, he was declared as successful bidder and on that date, no request was made by the Petitioners and the Application was filed belatedly after a week and therefore, there is no bona fide and the offer made by the Petitioner in CRP PD) No.4364 of 2010 was prepared to buy the property for Rs. 45,00,000/-, was purposefully made only with a view to set aside the auction and that was contrary to the offer made by the Revision Petitioner in the auction and according to the Revision Petitioner, he offered Rs. 36,00,000/- and if really. the Revision Petitioner was prepared to buy the property for a sum of Rs. 45,00,000/-, he ought to have offered Rs. 45,00,000/- on that date. According to the Revision Petitioner, he offered only Rs. 36,00,000/- and that would also prove the fraudulent act on the part of the Revision Petitioner in CRP (PD) No.4364 of 2010 to set aside the action and therefore, the Court below has rightly dismissed the Applications.
The learned Senior Counsel further submitted that. the Advocate Commissioner had also given evidence and the Revision Petitioners were not able to get any answer in support of their contention during the cross-examination of the learned Advocate Commissioner and the 6th Respondent has substantially complied with the order by paying the entire amount within two days from the date of the auction and he waited for nearly 4 years to get the Sale Deed due to the pendency of the Applications filed by the Petitioners and therefore, there is no need to set aside the auction or interfere with the order of the Court below.
The learned Senior Counsel appearing for the Revision Petitioner in CRP (PD) No. 4364 of 2010 also relied upon the following judgments in support of his contention :
P. Aruntugham v. State of Tamil Nadu, by its Secretary, Commercial Taxes & Religious Endowments Department, Fort St. George, Chennai-600009 and others, 2008 (1) CTC 279;
R Venugopala Naidu and others v. Venkatarayulu Naidu Charities and others, 1989 Supp. (2) SCC 356: AIR 1990 SC 444;
The Idol of Arulmighu Thayumanaswami by Executive Officer, Rockfort, Tiruchi v. K.Arumugham and 3 others, 2001 (4) CTC 260; and
Joint Commissioner Hindu Religious and Charitable Endowments, Admn. Department v. Jayaraman and others, 2006 (1) SCC 257.
It is admitted by both parties that initially, the Court fixed a price of Rs. 55,95,000/- for selling the property and as there was no bidder for the said amount, the property was allowed to be sold in public auction by fixing the upset price at Rs. 18,00,000/-
According to the learned Senior Counsel for the Revision Petitioners though the auction was scheduled to be held at 10.30 on 23.7.2008, admittedly the auction was conducted at 2.30 p.m. on that date and the Petitioners were not permitted to participate in the auction and the mass, which crowded at the auction place physically pushed the Revision Petitioners to a corner and therefore, the Petitioners were prevented to register their offer of Rs. 36,00,000/- and therefore, the auction was not conducted in a congenial atmosphere and therefore, the auction is liable to be set aside.
It is further contended by the learned Senior Counsel appearing for the Revision Petitioner in CRP (PD) No.4364 of 2010 that the Revision, Petitioner was prepared to buy the property for a sum of Rs. 45,00,000/- and he was having three demand drafts for a total sum of Rs. 10,00,000/- and that was also proved by the Petitioner.
As per the averment in the Plaint filed by the Petitioner in CRP (PD) No.3241 of 2010, he also offered Rs. 35,00,0001/- but he was prevented from registering his offer and thereby, he was prevented from participating in the auction.
According to the Report of the Advocate Commissioner and his evidence, sufficient Police protection was provided in the auction hail and the Bank officials were present to receive the drafts and considering the number of participants, namely 125, the auction could not be conducted at 10.30 p.m. as announced and the registration of the names and drafts of all the participants would have taken nearly two hours and therefore, the auction was conducted at 2.30 p.m. Therefore, having regard to the number of participants and having regard to the manner, in which the deposits were received by the learned Advocate Commissioner on that date, it cannot be stated that the auction is liable to be set aside on the ground that the auction was not conducted at 11.30 a.m. Therefore, I hold that no illegality can be attached to the manner in which the auction was conducted at 2.30.a.m. on that date.
The next submission of the Senior Counsel was that the Petitioners offered Rs. 34,00,000/- & Rs. 35,00,000/- respectively and they were not permitted to register their offer with the Advocate Commissioner and the crowd pushed them to a corner and before registering their offer, the auction was knocked in favour of the 6th Respondent. Though, the Revision Petitioners alleged to have made protest before the learned Advocate Commissioner on that date itself, admittedly, they got back the demand drafts from the Advocate Commissioner only on 30.3.2006 and no representation or protest Petition was given in writing by the Revision Petitioners immediately after the auction was over and till the date of filing Application to set aside the auction held on 25.3.2006, they have not sent any Petition.
Therefore, having regard to the Report of the Advocate Commissioner and the evidence adduced by the parties, I hold that the there was no evidence to come to the conclusion that the Revision Petitioners were prevented from participating in the auction and they were also prevented from registering their offer. Nevertheless, having regard to the judgments relied by the learned Senior Counsel, the Court below ought not to have dismissed the Applications.
As stated supra., the Applications to set aside the auction were filed on 5.4.2006 by the Revision Petitioner in CRP (PD) No. 4364 of 2010 and on 27.3.2006 by the Revision Petitioner in CRP (NPD) No. 3241 of 2010. In the Petition filed by the Revision Petitioner in CRP (PD) No. 4364 of 2010, he offered to purchase the property at Rs. 43,80,500/- and the Petitioner in CRP (PD) No. 3241 of 2010 reiterated his earlier offer of Rs. 35,00,000/- Admittedly the property was originally offered to be sold at Rs. 55,96,000/- and there were no offer and therefore, the upset price was fixed at Rs. 18,00,000/- and directed to be sold in public auction.
In the judgment reported in R. Venugopala Naidu and others v. Venkatarayulu Naidu Charities and others, 1989 Supp (2) SCC 356 : AIR 1990 SC 444, relying upon the judgment reported in Chenchu Rand Reddy, v. Government of Andhra Pradesh, 1986 (3) SCC 391, the Hon''ble Supreme Court held that the property of Religious and Charitable Endowments or Institutions must be jealously protected and care must be taken to fix the reserve price after ascertaining the market value for safeguarding the interest of the endowment.
In R. Venugopala Naidu Venkatarayulu Naidu Charities, 1989 Supp (2) SCC 356 : AIR 1990 SC 444, the judgment reported in C. Rami Reddy v. Government of A.P., AIR 1986 SC 1158, was followed and the property was directed to be sold in public auction by giving wide publicity regarding the date, time and place of public auction and directed that the reserve price also be after ascertaining the market value.
In the judgment reported in the case of P. Arumugham v. The State of Tami Nadu, by its Secretary, Commercial Taxes car Religious Endowments Department, Fort St. George, Chennai-600009 and others, 2008 (1) CTC 279, the Hon''ble Division Bench of this Court in a similar situation, set aside the auction holding that the earlier auction lost its significance in view of the passage of time and the land value had also increased in the meantime. Further, having regard to the nature of the property, namely temple property, the Court has to protect the interest of the temple.
As stated supra, the Court fixed the price of Rs. 55,90,000/- for selling the property at the first instance and as there was no bidder, the property was allowed to be sold in public auction and while appointing the Advocate Commissioner to sell the property in public auction, the Court has fixed a sum of Rs. 18,00,000/- as upset price and no.materials were furnished now to decide how the upset price of Rs. 18,00,000/- was fixed.
As the per judgment reported in R. Venugopala Naidu Venkatarayulu Naidu Charities, 1989 Supp (2) SCC 356 : AIR 1990 SC 444, the reserve price should have fixed after ascertaining the market and no materials were placed before me, regarding the market value and it is not a case of the parties that the upset price of Rs. 31,80,000/- was fixed on the basis of the market value. Further, the Revision Petitioner in CRP (PD) No.4364 of 2010 has also offered Rs. 45,00,000/- immediately after the auction was over and before confirmation of auction and the Sale Deeds were executed only in the year 2010, after the Applications filed by the Revisions Petitioners were dismissed. Therefore, considering the passage of time and increase in land value and considering the fact that the upset price was not. fixed after taking into consideration the market value of the property and the offer made by the Revision Petitioners to buy the property at Rs. 45,00,000/-, in the interest of the institution, the orders of the Court below are set aside.
Accordingly. the auction held on 23.5.2006 is set aside and the learned Principal District Judge, Chengalpettu is directed to appoint. an Advocate Commissioner t.o sell the property in public auction and fix the upset price after ascertaining the market value of the property. The amount deposited by the 6th Respondent shall be refunded to the 6th Respondent and the 6th Respondent is also entitled. to get the refund of stamp duty paid by him for getting the Sale Deed in his favour and the Petitioners are jointly directed to deposit the stamp duty and. Registration charges paid by the 6th Respondent for getting the Sale Deed as a condition precedent. for setting aside the auction sale within a period of two months from the date of receipt of a copy of this order and if they fail to deposit the said amount, the amount can be recovered from them, as if a decree has been passed against them for that amount.
With the above observation.. both the Revisions are allowed. Consequently, connected Miscellaneous Petitions are closed. No costs.