DEBANGSU BASAK,J. - (1.) The petitioner seeks refund of purchase price paid in respect of purchase of a flat. Learned Advocate for the petitioner submits that, the State Bank of India (SBI) had put up a sale notice (for immovable property) under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, by virtue of an E-Auction sale notice dated March 12, 2017. The petitioner had participated in such sale of the flat. The petitioner had purchased the same. However, after purchase, the petitioner had not been put in possession thereof. According to him, SBI is not giving actual physical possession of the property. The flat bears a false assessee number. The Kolkata Municipal Corporation (KMC) authorities did not issue the completion certificate in respect of the flat. Therefore, the flat could not have been put up for sale by the SBI. The sale being bad in law, the petitioner is entitled to refund of the purchase price along with interest.
(2.) Learned Advocate appearing for the State Bank of India (SBI) submits that, the petitioner is yet to put in full consideration money. The sale had happened on the basis of the terms and conditions of the sale as appearing in the sale notice dated March 12, 2017. The sale was on "as is where is basis" and "whatever there is basis". The petitioner ought to have apprised himself with the defects in title if any. According to him, there is no defect in title. The petitioner was required to pay balance consideration within the time stipulated. The petitioner not having paid balance consideration within the time stipulated. SBI is entitled to forfeit the earnest money. No question arises for refund of the earnest money. I have considered the rival contentions of the parties and the materials made available on record.
(3.) The petitioner had participated in an E-Auction pursuant to a sale notice dated March 12, 2017 in respect of the flat. The petitioner had become the highest bidder in respect of the flat concerned. The petitioner had deposited 25% of the sale price in respect of the flat concerned. There are various terms and conditions of the sale. The relevant clauses 8 and 9 are as follows: "8. E-Auction is being held on "AS IS WHERE IS BASIS" AND "AS IS WHAT IS BASIS" and will be conducted "On Line". The auction will be conducted through the Bank's approved service provider M/s e-Procurement Tecnologies Ltd Help Line: 09002715034,079-40230812/816/806/827/813-820 at the web portal https://sbi.auctiontiger.net. 9. To the best of knowledge and information of the Authorized Officer, there is no encumbrances on the property/ies put on auction and intending bidders should make their own independent inquiries regarding the encumbrances, title of property/ies put on auction and claims/rights/dues/affecting the property, prior to submitting their bid. The e-Auction advertisement does not constitute and will not be deemed to constitute any commitment or any representation of the bank. The property is being sold with all the existing and future encumbrances whether known or unknown to the bank. The Authorized Officer/Secured Creditor shall not be responsible in any way for any third party claims/rights/dues. (Note-If there is any encumbrance known to the Bank it should be informed).";