S. Chandrashekhar, J. - (1.) AGGRIEVED by order dated 11.04.2008 in R.P. No. 18 of 2005 which was affirmed by the Debts Recovery Tribunal, Ranchi vide order dated 22.01.2010, the present writ petition has been filed.
(2.) THE brief facts of the case are that, respondent Nos. 1 to 4 in the present proceeding are the borrowers and respondent No. 5 is the guarantor. The borrowers defaulted in making payment of the loan amount and consequently, P.T. No. 198 of 1998 was instituted in which the Debts Recovery Tribunal, Patna passed order dated 14.01.2002 allowing the claim of the respondent -Canara Bank for Rs. 25,34,735.10 with pendente lite and future interest. Subsequently, R.P. No. 18 of 2005 proceeded before the Recovery Officer, Patna against the certificate -debtors who failed to pay the certified amount and accordingly, the land comprised in Khewat No. 1, Khata No. 37, Plot No. 27 (Sub Plot No. 18) under Thana No. 194 measuring 10 Katha, 10 Chhatak and 9 sq.ft. land was auctioned on 08.11.2005. The property was sold to the respondent No. 6 for Rs. 22 lacs. A sale certificate was issued in favour of respondent No. 6 on 22.12.2005 and R.P. No. 18 of 2005 was accordingly, closed. The respondent No. 6 thereafter, on 22.02.2007 filed an application before the Recovery Officer, seeking refund of Rs. 22 lacs with poundage fee and other expenses. The said application has been allowed vide order dated 11.04.2008 and the same has been affirmed by the Debts Recovery Tribunal, Ranchi vide order dated 22.01.2010. Aggrieved, the petitioner -Canara Bank has filed the present writ petition. Mr. D.K. Prasad, the learned counsel for the petitioner submits that after the sale certificate was issued to the respondent No. 6 and R.P. No. 18 of 2005 was closed vide order dated 22.12.2005, the Recovery Officer became functus -officio and he has no jurisdiction to pass an order on an application seeking refund of the sale price. It is further submitted that the error committed by the Recovery Officer has been ignored by the Debts Recovery Tribunal, Ranchi and therefore, the petitioner was constrained to approach this Court. The learned counsel for the petitioner submits that for any defect found in the title of the land which was put on auction sale, the application dated 22.02.2007 by the respondent No. 6 was not maintainable.
(3.) MR . L.C.N. Shahdeo, the learned counsel for the respondent No. 6 raises a preliminary objection as to the maintainability of the writ petition on the ground of availability of alternative remedy under the Recovery of Debts due to Banks and Financial Institutions Act, 1993 and submits that the present writ petition is not maintainable. It is further submitted that since it was the responsibility of the Bank to satisfy itself with the title of mortgaged property which ultimately was found imperfect, the entire auction sale stood vitiated and therefore, the respondent No. 6 was entitled for recovery of the sale amount. Since the sale certificate was issued by the Recovery Officer, the application for refund of the sale amount could have been entertained by the Recovery Officer alone.;