AJAY RASTOGI, J. - (1.)
(2.) MATTER has come up on application U/Art. 226(3) of the Constitution of India seeking vacation of interim order dt.12/11/2008. However, at joint request, matter has been finally heard at this stage. It is a second round of litigation at the behest of petitioner. Earlier joint petition (CWP -5906/2008) came to be filed by the petitioner alongwith principal borrower (M/s Glorious Marbles (P) Ltd, Nathdwara (Rajasmand) and decided vide agreed order dt.21/08/2008 (Ann.1) - operative part whereof reads ad infra: "In the facts and circumstances, it is directed that the respondents may proceed to notify the date of auction of the mortgaged property. The date for the auction shall not be earlier than eight weeks from today. Meanwhile, the petitioner is permitted to approach the Bank with buyers for purchase of the hypothecated goods and in case the conclusion of the sale of the marble the consideration shall be directly paid to the respondent -Bank. For this purpose, four weeks time is allowed to the petitioner. In case however, after depositing of the sale consideration received from the sale of the hypothetic goods, there remains any outstanding amount, the Bank shall convey the same within 3 days to the petitioner and the petitioner would be liable to deposit the same with the Bank within two weeks thereafter. In case the petitioner fails to clear the dues within a period of 4 weeks allowed for the sale of the hypothetic goods and a further period of two weeks from being informed of any further outstanding amount the respondent Bank would be free to proceed with auction sale of the hypothetic goods and/or mortgaged property of the petitioner in accordance with the auction notice. The date to be fixed for the auction shall not be less than 8 weeks from today which is fixed as 20/10/2008, as agreed. In view of the above and the agreed order passed, the writ petition as well as the application under Article 226(3) of the Constitution of India stand disposed of.
(3.) COUNSEL for petitioner submits that in terms of order dt.21/08/2008 (supra), the petitioner, who is one of guarantors, submitted application dt.11/09/2008 (Ann.2) in the Office of respondent -Bank for giving him permission for disposal of hypothecated goods referred to in order dt.21/08/2008 (supra) and after settling against outstanding dues, balance could be recovered by auctioning the mortgaged property. Counsel further submits that no decision was taken on the application dt.11/09/2008 submitted by the petitioner and in the absence of efforts being made by the Bank in disposing of the hypothecated property, auction proceedings being arbitrarily initiated pursuant to the agreed order dt.21/08/2008 (supra), were wholly unwarranted, which has compelled the petitioner to approach this Court.;