TMI Blog2022 (7) TMI 1505X X X X Extracts X X X X X X X X Extracts X X X X ..... ot acted in accordance with the provisions of the enactment in question. - the plea of the respondent is rejected that the Writ Petition ought to be dismissed in view of existence of alternative remedy under Sec.17 of the Act. Whether the petitioner is entitled to any relief? - HELD THAT:- As per Or.XXXVIII Rule 11 CPC, where property is under attachment by virtue of the provisions of the said Order XXXVIII CPC and a decree is subsequently passed in favor of the plaintiff, it shall not be necessary upon an application for execution of such decree to apply for reattachment of the property. So the attachment before judgment granted shall be effective and operative even after passing of the decree and while executing the decree it is not necessary to re-attach the property - So if the petitioner had to get clear title from the Bank pursuant to the tender /public notice dt.24.4.2019 (P4), he would have to satisfy the said decree in the above suit as well. Had the petitioner been aware of this, he might not have participated in the tender issued by the Bank at all. No intending purchaser wants to buy fresh litigation or take on other unknown liabilities against third parties, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vable property comprising of Khata No.936/1411, Khasra No. 1981/307 (2-0) measuring 2 bigha as per jamabandi for the year 2006-07, Deed No.207 dt. 17.05.1977 situated in the revenue limits of village Kukar Majra, Hadbast No.64, Tehsil Amloh, District Fatehgarh Sahib in the name of M/s Pawan Engineering Works. The 1st Lot property was owned by M/s Krishna Agricultural Steelworks, Mandi Gobindgarh and the 2nd Lot property mentioned herein above is owned by M/s Pawan Engineering Works. As per the tender notice, the reserve price of the properties was fixed at 3.95 Crores for the 1st Lot of property, and 1.10 Crores for the 2nd Lot properties. The petitioner submitted a bid on 24.05.2019, and made a deposit of 10% of the reserve price amounting to 50,50,000/-. The petitioner had quoted 7.22 Crores for both Lots, and deposited on 27.05.2019 a further sum of 35 Lakhs. Thereafter, the petitioner claims to have verified the records of the property from the Tehsil office by securing copy of the jamabandi (Annexure P- 2) of the above properties. In the said jamabandi, there were certain entries qua the properties mentioned above regarding orders passed by the High Court of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the above properties to sale, either by way of tender and e-auction, and this order was extended from time to time. Reply Filed by the Respondent-Bank The respondent-Bank has filed reply along with application for vacating the stay. According to the Bank, the e-Auction/Tender Notice issued by it, contained the following conditions:- The Sale through e-Auction/by calling Tenders is being held on AS IS WHERE IS and AS IS WHAT IS BASIS . Any other encumbrances know to the Bank- is not known. The Authorized Officer of the Bank shall not be responsible for any charge, lien, encumbrances, or any other dues to the Government or anyone else in respect of properties auctioned. The Intending Bidder is advised to make their own independent inquiries regarding the encumbrances on the property including statutory liabilities, arrears of property tax, electricity dues etc. It is the contention of the respondent-Bank that in view of the above condition, it was the duty of the intending bidder to make his own independent enquiries regarding encumbrances on the property such as statutory liabilities, arrears of property tax, electricity dues etc., and the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents have placed reliance on the decision of the Supreme Court in the case of Aggarwal Tracom Pvt.Ltd. vs. Punjab National Bank Order in SLP No.33514 of 2016 to contend that the Writ Petitions under Article 226 of the Constitution of India cannot be entertained when effective statutory remedy is available to the aggrieved person, in a later judgment rendered in the case of Authorized Officer, State Bank of Travancore and Another Vs. Mathew K.C 2018 (3) SCC 85 , the Supreme Court held that there are well defined exceptions to the rule of exhaustion of alternative remedy as laid down in decision of Commissioner of Income Tax and Others vs. Chhabil Dass Agarwal 2014 (1) SCC 603 and one of such exceptions mentioned in Para 15 of the said judgment is where the statutory authority has not acted in accordance with the provisions of the enactment in question. Similar view has been taken by this Court also in the case of M/s Skytone Electricals (India) Limited vs. Canara Bank and Others Passed in CWP No.12301 of 2020 on 14.07.2020, Division Bench of Punjab and Haryana High Court. Therefore we reject the plea of the respondent that the Writ Petition ought to be dismissed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es for publishing of any other thing which the authorized officer considers it material for a purchaser to know in order to judge the nature and value of the property . In these circumstances, a duty is cast upon the Authorized Officer to publish all details with regard to the property, whether the property has any encumbrances or not, whether the property is a vacant property or is tenanted, whether there is any other charge on the said property, and all other details which is material for the purchaser to know in order to judge the nature and value of the property. 35 . In the present case, the advertisement does not disclose any such detail about the property from which it can be easily inferred that the same is in possession of some third-party, or that there is a litigation pending or for some material reason, it would be difficult to obtain the vacant possession of the property . A joint reading of section 13 (4) of the SARFAESI Act and Rule 9 (clauses 9 and 10) would clearly show that the Authorized Officer, shall deliver the property to the purchaser, free from all encumbrances, on deposit of money as specified in sub rule 2. However, the aforesaid rule does not pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the aforesaid circumstances the respondent Bank cannot take umbrage of the clause as is where is as it is where it is in order to deny physical possession of the auction property to the petitioner and to non-suit him. In other words, the respondent cannot shirk away the statutory responsibility to deliver possession of the property free from all encumbrances, to the person who was paid full consideration for the said property. 39. Accepting the contention of the Bank would be absolutely inequitable, wholly arbitrary and may on the contrary permit withholding of necessary information by the secured creditor in relation to its valuation in order to seek a higher price of the property. If such an advantage is permitted, it would directly affect the credibility of the entire process and the object of the SARFAESI Act, which is sought to be achieved . 40. The third-party, who comes forward to purchase the secured asset must have the confidence that he would get the property at the earliest and in case, considerable long time is consumed in transferring the property not only it would defeat the purpose of the Act but would also cause colossal loss and injury to a au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejecting the plea that a sale on as is where is basis constitutes a shield of protection. It went on the held that the concept of as is where is and as is what is basis has lost its significance in the current commercial milieu and the principle of caveat venditor is more on the rise as compared to the outdated principle of caveat emptor; that the Transfer of Property Act, 1882, requires the seller to own up to certain duties and it is not open to a responsible bank to take an innocent auction purchaser for a ride by selling to him a tainted property and thereafter claim protection under the principles of buyer beware . It held that the innocent Auction Purchasers cannot be victimized by the Banks by the carelessness of exercising minimum care to ascertain the encumbrances attached to the secured asset, and if it proceed to sell the property without informing the bidders of the same, such a sale would be vitiated. This decision was also upheld by the Supreme Court in SLP No. 8022 of 2018 on 09.04.2018. In another case Shaik Janimiya Vs. State Bank of India, SAM Branch II, Rep by its Authorized Officer, Kachiguda, Hyderabad 2020(4) Andh LD 397 passed by the Divis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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