Decided on May 02,2006

Satyam Prakashan And Ors. Appellant
Canara Bank And Anr. Respondents


P.K.Deb, J. (Chairperson) - (1.) THIS appeal has been preferred against the judgment and order dated 15th February, 2005 passed by the learned Presiding Officer (In -charge), D.R.T., Lucknow in appeal No. 18/03, whereby and whereunder the order passed by the Recovery Officer in D.R.C. No. 220/02/LKO regarding sale and confirmation of the sale in pursuance of the recovery certificate has been upheld and confirmed.
(2.) THE immovable property of the appellant Satyam Prakashan was mortgaged to the respondent -Canara Bank of Chauri Chauki branch, Bareili as a security towards the loan advance to the same firm. When the appellant failed to repay the loan amount, a case was filed against them by Canara Bank and the same was decreed and as per decree recovery certificate was issued on the basis of which D.R.C. No. 220/02 was filed by the Canara Bank before the Recovery Officer at Lucknow. In the process of recovery, the mortgaged property was sold in auction on 11th August, 2003 at a sum of Rs. 20 lacs and odd. The auction purchaser respondent No. 2 Anupam Kapoor had deposited the required 25% of the sale amount on the date of the sale and the balance amount was also deposited within the time -frame and then the sale was confirmed, although in the meantime objection has been filed challenging the sale by the appellant on 28th August, 2003. It may be mentioned here that when making such objection challenging the sale on the ground of technical irregularity, no amount was deposited by the appellant as required under Section 29 of RDDBFI Act vis -a -vis under Rule 61 (b) of the Second Schedule of the Income -tax Act. The technical irregularities raised are (1) there was discrepancy in one side of the boundary given in the sale proclamation i.e. graveyard was shown on one boundary while it was not there actually; (2) the valuation and the fixed price as determined by the Recovery Officer is much below than the fair price; (3) the sale was held hurriedly within seven days from the date of publication causing the sale being conducted without proper bidders. On factual aspect it is an admitted fact that the appellant's objection was rejected after considering the technical irregularities as raised from the side of the appellant and also on consideration of the objections raised from the side of the Bank and the auction purchaser, the auction purchaser i.e. respondent No. 2 has already been put in possession through District Magistrate. It was also found that the plea of forcible possession as raised from the side of the appellant was nullified from the fact that Tehsildar had given the possession with the help of Police on the order of the District Magistrate and during the delivery of possession son of proprietor of the appellant was present and he signed in the delivery of possession papers. Regarding the first technical objection, the Recovery Officer held that due to some mistake graveyard was shown on the one side of the boundary of the mortgaged property, although the graveyard was on a bit distance. The boundary was required for the purpose of identification of the mortgaged property. Nowhere it has been alleged by any of the parties that on the basis of the description of the land given in the proclamation, the mortgaged property could not be identified. So such technical objection was invalidated.
(3.) REGARDING the improper valuation, it has been held that at no point of time the appellant borrower has ever raised any objection regarding fixation of the reserve price on the basis of the valuation report, although at every stage, the appellant was present. It has also been held that regarding improper valuation the appellant has cooked up/manufactured a story as an afterthought by collecting some documents. It was further held that the appellant was given opportunity on previous occasion also by the Lucknow Bench of the Hon'ble Allahabad High Court in staying the sale as was fixed earlier on giving a deposit of Rs. 5 lacs from the side of the appellant, but the appellant did not deposit any amount and kept mum, when the sale process was initiated for the second time and being held in presence of the appellant.;

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