ANIRUDDHA BOSE,J. - (1.) This appeal is against an order passed by the learned First Court on 18th January, 2017 in relation to writ petition brought by an auction-purchaser of property of a defaulting borrower of the appellant bank. The auction-purchaser is interested in having actual possession of the property and it is not his case that the money deposited by him ought to be returned. Before us also the prayer for refund has not been pressed. Learned First Court in the order, which is assailed before us, observed and directed:- "A secured creditor is obliged to take actual possession of its secured assets particularly the immovable property prior to putting up such assets for sale under the provisions of the securitisation and reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI). In the present case, the Bank Authority did not do so. They had allowed the petitioner to participate in an auction and became the highest bidder in respect of an immovable property in respect of which the bank did not have actual physical possession on the date of putting up the property for sale. The petitioner had paid a sum of Rs. 20.51 lakhs as the sale consideration to the Bank on March 14, 2012. The Bank not being in a position to make over possession since 2012 is liable to refund the sale consideration with reasonable interest, at the very least. In such circumstances, the bank will make over a sum of Rs. 20.51 lakhs to the petitioner together with interest calculated at the rate of 10 per cent per annum on and from the date of receipt of such deposit till the date of making over such payment to the petitioner. It is expected that the Bank Authority will pay the petitioner before January 24, 2017. List the writ petition in January 24, 2017 for further consideration. This rate of interest is awarded in view of the fact that the nationalised bank pays interest at such rate in respect of fixed deposits. The bank ought not to have sold a property without having actual physical possession in respect thereof to the petitioner."
(2.) Mr. Dutt, learned counsel appearing for the Bank submitted that the learned First Court's order was erroneous to the extent the Court held that a secured creditor is obliged to take actual possession of secured assets, particularly the immovable property prior to putting up such assets for sale under the SARFAESI Act, 2002. Furthermore, Mr. Dutt has pointed out that there was no prayer in the writ petition for refund of money, which we have already observed in the earlier part of this order. Hence the bank is aggrieved by this interim order.
(3.) Having considered rival submissions and considering the fact that the writ petition is still pending before the learned First Court, we are inclined to make any pronouncement on the legal submissions made on behalf of the bank so far merit of the main case is concerned. So far as interim direction for refund of money is concerned, we find from the 'Auction cum Sale Notice' dated 16th October, 2011 that the property was auctioned on as is where is basis. Clause 7 of 'Auction cum Sale Notice' further stipulated:- "7. For inspection of the property and other particulars, the intending bidders may contact the Branch Manager (Phone No.2637 7332) and they are at liberty to make their own assessment/enquiry about the property.";