Debangsu Basak, J. - (1.) The forfeiture of earnest money deposit made by the first respondent is under challenge in the present writ petition.
(2.) Learned Senior Advocate appearing for the petitioner submits that, the first petitioner had participated in a sale conducted by the first respondent under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act, 2002). The first respondent had conducted the sale of the movables and the immovables separately. The first petitioner had participated in such sale separately. The first petitioner had made an offer for the movables. Initially, such offer was not accepted. Subsequently, negotiations were entered into between the parties in respect of both movables and immovables. He submits that, consequent to such negotiations, a new agreement was entered into between the parties, as appearing in the writing dated August 6, 2015. The parties had acted in terms of such agreement. The first petitioner had made payments, to the first respondent, in terms of such agreement. He submits that, the agreement dated August 6, 2015 contained a clause by which, the petitioner wanted the sale certificate for the immovable property, to be issued in favour of K.P. Commodities Pvt. Ltd. Such request was repeated in the letter dated August 18, 2015. The first respondent initially took a stand that, the possession of the immovable property cannot be made over till such time the movable properties were sold. Such was not the terms of the agreement dated August 6, 2015. In any event, the first respondent is required to issue the sale certificate in favour of the nominee of the first petitioner in terms of the agreement dated August 6, 2015. The refusal on the part of the first petitioner to do so, is bad in law. The first respondent had, thereafter, contended that the sale cannot be effected. The first respondent should, therefore, refund the earnest money deposit along with interest. The rate of interest should be commercial as the transactions had between the parties are commercial in nature. He relies upon (L. Hirday Narain v. Income-Tax Officer, Bareilly, 1971 AIR(SC) 33) and submits that, the writ petition was entertained by an Order dated February 10, 2016. The point of maintainability of the writ petition was not kept open. Therefore, the writ petition should be decided on merits.
(3.) Learned Advocate for the respondent submits that, the petitioners have a statutory alternative remedy available. The petitioner should be asked to avail of the same. In support of his contention that, a statutory alternative remedy is available and that, a writ petition should not be entertained when such statutory alternative remedy is available, he relies upon (Agarwal Tracom Pvt. Ltd. v. Punjab National Bank & Os., 2017 13 Scale 664). He submits that, the sale was conducted pursuant to a public notice dated April 14, 2015. The terms and conditions of the sale notice do not permit the purchaser to nominate any other person as the purchaser. He submits that, the correspondence between the parties did not bring about a novation of the contract. The initial terms and conditions of the sale stand. Therefore, the respondents are entitled to forfeit the entire earnest money deposit as sought to be done.;