Decided on October 11,2004



K.J.Paratwar, - (1.) BEING aggrieved by the order passed by learned Recovery Officer (Shri S.S. Iyer) of this Tribunal on 14.7.2004 below application at Exh. 47 in Recovery Proceeding No. 158 of 2002 one of the successful auction purchaser has preferred this Appeal.
(2.) The impugned order was passed in the aforesaid application taken out by her for setting aside sale of Flat No. 11, 4th Floor, Kala Niketan CHS Ltd., Bhulabhai Desai Road, Mumbai 400026. The main ground on which the said application was taken out (which are also the grounds in this Appeal) are that there was material irregularity in the proclamation published in Economic Times dated 31.1.2004 stating the area of the Flat to be 990 sq. ft. as against correct area of about 700 sq. ft.
(3.) IT is contended that the appellant had taken inspection between 4.30 p.m. and 6.00 p.m. of the Flat on 9.2.2004. At that time, however, he was asked to take only cursorily look since respondent Nos. 2 to 6 were residing therein. Considering the condition of the Flat, its location, the society outstandings, the appellant felt that the prevailing market price was Rs. 7,000/- to Rs. 9,000/- per sq. ft. As such, on 10.2.2004, he put up his bid for Rs. 41 lacs before the learned Recovery Officer with earnest deposit of Rs. 10 lacs. At the time of auction on 11.2.2004, he was the sole bidder. He was informed that the price offered by him was low considering the reserve price and would have to be substantially improved. The appellant therefore went on increasing the bid up to Rs. 91 lacs considering the Flat to be of the size of 990 sq. ft. (carpet area since that is the presumption unless indicated otherwise which was not done in this matter). The appellant deposited the purchase money upon which sale was confirmed in his favour and Sale Certificate dated 15.3.2004 was issued. The appellant was also handed over possession of the Flat on 22.4.2004. However, his family astrologer advised him to wait till 15.5.2004 because of the then on going inauspicious period. As such, the appellant visited the Flat around 18.5.2004 when he realized that the Flat is much smaller than 990 sq. ft. He therefore got the Flat measured through Architect who certified area to be 697 sq. ft. He then sought confirmation of the area of the Flat from the society's record who informed the same to be 705.06 sq. ft. and that the construction was completed in 1968.;

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