Bank of India Vs. Ajit Jain & Ors  INSC
623 (1 December 1994)
R.M. (J) Sahai, R.M. (J) Hansaria B.L. (J) R.M. Sahai, J.:
1995 SCC Supl. (1) 683 JT 1995 (1) 60 1994 SCALE (5)65
These appeals are by the decree holder. The appellant a statutory bank, filed a
suit for recovery of Rs.5,22,585.37 with cost and future interest against
respondent no.2 sometime in 1975. The suit was decreed with costs and future
interest at 6% per annum on 7th April 1976.
On 12th August 1976 the appellant filed an execution
application for sale of suit property of the respondent no.2. On this
application the Executing
Court issued the
warrants of attachment on 25th August 1976.
The property was auctioned on 15th June 1979
for a sum of Rs. 1,90,000/-. The appellant filed an objection against the sale
and claimed that the reserved price of the property being Rs.6,00,000/- the
sale was vitiated as the property was sold in violation of not only the
reserved price fixed by the appellant but was contrary to the procedure
required to be followed.
was filed by the judgment debtor too. The property was purchased by Shri Ajit
Jain and four others. The objections were contested by the auction purchasers.
The Executing Court dismissed both the objections filed
by the appellant and the judgment debtor. The appellant, however, filed an
appeal against dismissal of the objection and confirmation of the sale in favour
of the auction purchaser.
order was set aside by the High Court as the objections had been dismissed
without affording any opportunity to the objectors to lead evidence. in
pursuance of the order passed by the High Court the Trial Court framed issues
both in the objection filed by the judgment-debtor and the appellant and
permitted the parties to lead evidence as well. The Trial Court dismissed both
the objections and directed a sale certificate under O.XXI R.90 of the Code of
Civil Procedure, to be issued in respect of the property in dispute in favour
of auction purchasers. This order was challenged in first appeal before the
High Court. Four of the auction purchasers stated before the Court that the
auction sale may be set aside. The learned Single Judge was of the opinion:'
that since four of the auction purchasers stated, 'that the sale in the present
case is void being in violation of mandatory provisions of law, hence the
present application is maintainable and the sale was Iiable to be set aside
without entering into another controversy'. This order was set aside by the
bank has now filed an appeal in this Court. We have heard the learned counsel
for parties at length. When this appeal came up for hearing on 11th May 1994 we were of opinion that due to
protracted litigation a decree obtained by the appellant as far back as 1976
has not been executed.
Shri Ajit Jain who is the auction purchaser, has entered into possession and is
continuing as such since past many years. In view of this we had passed
execution of decree for Rs.5,22,585.37, Plot No.360-61 in Industrial Area, Chandigarh along with building constructed
thereon and machinery in smiled was sold on 15.6.79 for a consideration of Rs.1
lakh and 90 thousand. The bank decree holder filed an objection under Order 21
Rule 19 of the C.P.C. claiming various irregularities in auction proceedings.
Objections were filed by judgment-debtor as well. Since then the litigation has
been going on between the parties and this appeal has been filed by the decree
holder against remand order passed by the Division Bench of the High Court
directing the Single Judge to decide the dispute on merits as out of five
auction purchasers one had not consented for setting aside the sale.
Having heard learned counsel for parties and considering the long delay which
has taken place we are of the opinion that it would be in the interest of
justice and all the parties if the matter is amicably settled as four out of
five auction purchasers have given in writing that the sale be set-aside. In
our opinion, the decree holder and auction purchasers should be adequately
compensated. But what should be the compensation to be agreed between the
parties? We, therefore, direct this appeal to come up for further orders in the
3rd week of July, 1994 in Chambers if the bench is not sitting.
hope that the parties in the meantime shall negotiate and workout the solution
and report the compromise to this Court when the appeal is taken up on the next
date." This order was passed by us as we were of the opinion that if the
sale were to be set aside it would work hardship against Shri Ajit Jain who is
one of the auction purchasers and is in exclusive possession of the property. Whereas
if it is upheld then it would be extremely unjust to the appellant. As stated
earlier the decree was for Rs.5,22,585.37 in 1976. It has swelled to nearly Rs.15,00,000/-
and the bank would be getting only Rs.l,90,000/-. That the property is
valuable, cannot be disputed, as even according to auction purchaser the rent
which accrued from the premises in dispute between 17.3.1979 to 19.9.1984 came
to Rs.7,35,000/-. This itself shows that the sale of the property for a sum of
.Rs. 1,90,000/- was inadequate. In this context it is necessary to mention that
one of the pleas raised by the appellant and the judgment- debtor was that the
auction purchaser prevented any bidder from entering the plea of auction. We
consider it unnecessary to record any finding on it. But the inadequacies of
the amount for which the property was sold coupled with the statement of four
of the auction purchasers that the sale was vitiated gives credence to the plea
raised on behalf of the appellant. No further need be said.
the circumstances we dispose of these appeals under Article 142 of the Constitution
of India to do substantial and complete justice between the parties. Shri Ajit
Jain during course of arguments had agreed that he would not stick to the price
of 63 Rs. 1,90,000/- and was willing to pay substantial amount both to the bank
and to the decree-holder so that the future litigation may be avoided provided
his claim alone to the property was accepted. That in our opinion does not
present any difficulty. Since four of the auction purchasers have voluntarily
withdrawn from the auction they cannot have any right or claim over the
property in dispute. In case they have contributed any amount towards payment
of the auction amount they shall be entitled to claim refund from Shri Ajit
Ajit Jain shall PaY a sum of Rupees Fifteen Lakhs to the bank even though if
the dues are taken as on today they are more than Rupees Fifteen Lakhs. This
payment would be in full and final settlement of the dues outstanding against
the judgment-debtor and it would result in discharging him of all the claims of
the appellant-bank against him. Shri Ajit Jain shall further pay a sum of Rs.5,00,000/-
to the judgment-debtor. The amount of Rs.3,00,000/- withdrawn by the judgment
debtor from the rent deposited shall not be adjusted towards this payment.
amount in deposit shall be paid to the judgment- debtor. Shri Jain shall
deposit balance amount, that is, Rupees Five Lakhs minus the amount which is
lying in deposit towards rent and Rupees Fifteen Lakhs minus Rupees One Lakh
Ninety Thousand, the auction amount as we are informed this amount is lying in
deposit with the Court. All these amounts shall be deposited within three
months from today.
bank and the judgment-debtor shall be entitled to withdraw the same.
case of failure to deposit the judgment and order of all the courts including
auction sale held on 15th
June 1979 shall stand
appeals are disposed of accordingly. Parties shall bear their own costs.