P SHAMIL AHMED Vs. ORIENTAL BANK OF COMMERCE
DEBTS RECOVERY APPELLATE TRIBUNAL
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(1.) THE appellant is the auction purchaser of the properties in the public auction held on 11.1.2005. Six items of properties were brought to sale on that day. In fact, a corrigendum was issued in respect of Item 5 of the property where by the extent and the upset price of the property were reduced. THE auction purchaser is the successful bidder of Items 5 and 6 of the properties. Subsequent to the auction, the Recovery Officer also gave a letter to the appellant on 1911.2005 stating that P. Shamil Ahmed and four others have participated in the public auction held on 11.1.2005 for sale of piece and parcel of the properties and they have been declared as successful bidders. Subsequently, the Recovery Officer suo motu passed order on 18.2.2005 stating, "On perusal of the title deeds and other original documents relating to the auctioned properties, it is found that in respect of Item No. 5, the boundaries and dimensions as specified in the document do not conform with the description provided in the schedule to the DRC based on which the sale proclamation was issued. Further, in respect of Item No. 6, the original title deeds are not readily traceable, hence, it is not found feasible to provide necessary documents to enable proper conveyance of the title to the successful bidders". Stating so, the Recovery Officer cancelled the sale in respect of Items. 5 and 6. As against the same, the appellant preferred an appeal before the DRT in MA-75/2005 and the DRT dismissed the appeal. Aggrieved by the same, the auction purchaser has preferred this appeal.
I have heard the learned Advocate for the appellant/auction purchaser and the respondent Bank.
(2.) The fact that six items of properties were brought to sale in the public auction held on 11.1.2005, and that the appellant is the successful bidder in respect of Items 5 and 6 are not in dispute. Pursuant to the auction, the Recovery Officer also issued a certificate on 19.1.2005 declaring that they are the successful bidders in the auction held on 11.1.2005. But however, the Recovery Officer suo motu has taken up the matter for consideration and cancelled the sale only in respect of Item Nos. 5 and 6 by his order dated 18.2.2005. The reason for the cancellation is that the boundaries and dimensions as given for Item 5 are not correct and they do not conform with the description provided in the DRC. As far as Item 6 of the property concerned, the original title deeds are not readily traceable. Only on these grounds, he has chosen to cancel the sale.
It is on record that the appellant has filed an affidavit on 15.4.2005 wherein he has stated that in respect of Item 5, he will not make any claim or objection on the ground that the boundaries and dimensions do not conform with the description provided in the Schedule to the DRC. As far as Item 6 is concerned, he has sworn to the effect that he would be satisfied with the certified copy of the registered sale deed dated 12.8.1993 bearing document No. 2365/1993, and he will not make any claim against the respondent Bank or against the Recovery Officer-II, DRT-I, Chennai, and made a request to confirm the auction. This affidavit of undertaking given by the appellant was not at all taken into consideration either by the Recovery Officer or by the Presiding Officer. It is needless to say that when the properties are brought to auction through Court the said properties are sold on "As is where is condition" and the Tribunal will not be held responsible and liable for any encumbrance of the properties. It is for the auction purchasers to verify, inspect and satisfy themselves about the title, encumbrance and description of the properties, which are brought to sale. As such, the DRT will not be held liable for any defect in the property and when especially the appellant has filed an affidavit of undertaking to that effect. In view of the same, I do not consider that the Recovery Officer was correct in cancelling the sale.
(3.) NOW for the first time, the respondent Bank has come forward with a plea that the upset price fixed for Item Nos. 5 and 6 properties arc very low. I am not inclined to accept such an argument, for the simple reason that there was a corrigendum for Item No. 5 and the extent of the property was reduced, the upset price was also reduced. As far as Item No. 6 is concerned, there was no corrigendum and, therefore, the respondent cannot make any such objection at this distance of time. In fact, another telling feature in this case is, that after the publication of the auction notice only, a corrigendum was issued in respect of Item No. 5 and no corrigendum was issued in respect of Item No. 6 and this fact is also taken note of by this Tribunal for consideration in this appeal.;
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