M.M. Kumar, J. - (1.) THIS petition filed under Article 226 of the Constitution prays for quashing order dated 31.5.2005(P -3), passed by the Recovery Officer, Debts Recovery Tribunal -II, Chandigarh, dismissing the application filed by the petitioner in which prayer was made for return of the amount deposited in respect of the auction property, which in fact was under litigation. A further prayer has also been made for quashing order dated 22.8.2006 (P -7), passed by the Recovery Officer, Debts recovery Tribunal -II, Chandigarh, in which prayer for re -calling order dated 31.f 2005 (P -3) has been rejected.
(2.) BRIEF facts of the case, which have led to filing of the instant petition are that the Debts Recovery Tribunal, Chandigarh Bench, Chandigarh (for brevity, 'the Tribunal', passed a decree/recovery certificate dated 4.1.2001 against M/s. Cut Fast Industries, which is a partnership firm carrying on the business at Ludhiana, for recovery of Rs. 15,16,882/ - along with interest @ 18.32% per annum and costs of Rs. 35,860/ -. The Punjab National Bank (respondent Bank) filed an application for recovery/execution of the aforementioned recovery certificate before the Recovery Officer of the Tribunal and the mortgaged property of M/s Cut Fast Industries, Ludhiana, was put to sale. The petitioner offered the highest bid of Rs. 14,50,000/ - and was, thus, declared successful purchaser on 15.1.2004. An amount of Rs. 3,65,000/ -, which is 25% of the total bid amount, was deposited by the petitioner within the prescribed time and for the remaining total price she had prepared four demand drafts dated 31.1.2004, worth Rs. 10,85,000/ - However, the petitioner before depositing the remaining 75% of the amount came to know that the property auctioned to her is subject matter of litigation in Civil Court, Ludhiana, between various partners of the judgment debtor M/s Cut Fast Industries and others and the litigation has been pending much before the court auction. It was found that two suits being Civil Suit No. 211, dated 17.11.1998 Mohit Bansal etc. v. Jogesh Aggarwal etc. and Civil Suit No. 36, dated 27.1.2004 Binod Bansal v. Darshana Devi etc. were pending. The aforementioned fact was not disclosed at the time of court auction or earlier thereto. The court auction was held by holding out that the property was free from all encumbrances. As a consequence, the petitioner filed an objection petition dated 27.1.2004 (P -1) before the Recovery Officer of the Tribunal by making an offer that she was/prepared to deposit the remaining 75% amount if clear title of the property in question was transferred to her, failing which she had prayed that the amount of 25% already deposited by her be refunded. The aforementioned application was dismissed on account of non -appearance of the counsel for the petitioner, vide order dated 31.5.2005 (P -3). Thereafter, an application for re -calling order dated 31.5.2005 was filed on 17.3.2006 (P -4) along with an application for restoration and condonation of delay (P -5 & P -6). However, the aforementioned applications were also dismissed on 22.8.2006 (P -7). After issuance of notice of motion, when the matter came up for consideration before a Division Bench of this Court on 10.10.2006, learned Counsel for the respondent bank apprised the Court that the property in dispute has already been sold and accordingly the Division Bench passed interim direction that if the sale was not confirmed then the same was not to be confirmed till passing of further orders.
(3.) IN the written statement filed by the respondent bank the stand taken is that the property which was put to auction is not subject matter of litigation before any Civil Court and the petitioner has failed to deposit the sale price within the stipulated period, which was mandatory. It has been insisted that the bid amount of 25% paid by the petitioner stands forfeited by the Recovery Officer who has ordered re -sale of the property. The property has been re -auctioned on 31.7.2006 and an amount of Rs. 162000/ - (more than Rs. 16 lacs) was accepted. With regard to the suits filed by the parties it has been alleged that the suits are inter se between the partners of the firm and the property in dispute is not the asset of the firm. It is not disputed that the receiver is to take charge of all the assets of the firm by doing numerous acts including preparation of inventories of articles belonging to the firm at 15 -A, Industrial Area 'A' Ludhiana. The property in dispute which is admittedly owned by Mohit Bansal and Kamlesh Aggarwal has not been attached by the receiver. It is, thus, claimed that the Recovery Officer of the Tribunal was under no obligation to disclose any facts as the property in dispute is not involved in any litigation and that the petitioner has given bid with her eyes open and as such is not entitled to refund of any amount deposited by her. The written statement is duly supported by an affidavit.;