Ashok Gupta vs Grewal Rice Mills and Others

A.S. Nehra, J.—This revision petition is directed against the order dated 25th July, 1990, passed by the Additional District Judge, Sangrur, by which the application of the petitioner, who is a Court Auctioneer, for payment of commission fee was declined.

Punjab Financial Corporation (Respondent No. 5) filed an application u/s 31 of the State Financial Corporation Act, 1951, in the Court of Additional District/Judge, Sangrur, against respondents No. 1 to 4. In that case, immovable property owned by respondents No. 1 to 4 was ordered to be sold by the then Additional Sessions Judge, Sangrur, vide order dated 23rd July, 1988, and the sale was to be conducted on the spot on 30th August, 1988. The petitioner was directed to conduct the sale proceedings. The auction conducted by the petitioner on 30th August, 1988 was set aside by the Court vide its order dated 26th February, 1990 an account of the fact that the auction proceedings suffered from material irregularity because the proclamation was made on l6th August, 1988 and the sale was to be conducted after fifteen days of the proclamation, where as the sale was conducted on 30th August 1988 i.e, one clay/before the due date. This resulted in substantial loss to the judgment- debtor.

The petitioner filed an application on 14th March, 1990 for payment of commission amounting to Rs. 7,375/- And the same was dismissed by the learned Additional District Judge, Sangrur, on the ground that the auction- conducted by the petitioner on 30th August, 1988, had been set aside by the Court vide it order dated 26th February, 1990, on account of the fact that the auction proceedings were found to have suffered from material irregularity.

Relevant rule, i.e. Rule 23 contained in, Punjab and Haryana High Court Rules and Orders Volume I, Chapter 12-L, which is applicable to the facts of the present case, reads as under:-

"23. Charges of Court Auctioneers.-(1) No commission shall be paid on the . proceeds of sales set aside for a material irregularity in publishing or conducting the sale. The commission on the proceeds of a sale set aside for any other cause shall be paid by the person at whose instance and for whose benefit'' the sale is set aside and the Court Auctioneer shall be entitled to his share of such commission.

(ii) If a sale is set aside, the purchase money shall be refunded in full to the Auction Purchaser unless it is-set aside at his instance and for his benefit in which event the commission due under paragraph 22 shall be deducted from the sum to be refunded.

(iii) Where a sale is set aside after the commission has been paid to the Court Auctioneer, the Court shall recover it from him and shall refund it to the Auction Purchaser if he is entitled to the refund of the whole of the purchase money. In such cases, the Government share of the commission shall also be refunded.

(iv) In cases in which auction sales are ordered, but not completed or do not take place at all, the Court Auctioneer shall be paid only his actual expenses, provided that if there has been, in the opinion of the Court, clear negligence on the part of the auctioneer (e.g. failure to advertise, leading to absence of bidders) he will not be entitled to any compensation. The amount of actual expenses if held due under this rule will be determined by the Court and shall be paid by the decree-holder or the judgment-debtor, as the Court may direct."

Shri Arun Nehra, Advocate for the respondents, has contended that the petitioner is not entitled to get any commission on the proceeds of the sale because the auction sale had been set aside by the Court on 26th February, 1996, as the auction sale suffered from material irregularity resulting in substantial loss to the judgment-debtor. In support of this argument, he has relied upon Rule 23, ibid.

After hearing the learned counsel for the parties, I find no merit in the revision petition. Since the auction sale has been set aside for material irregularity in conducting the sale, petitioner is not entitled to recover his commission.

In view of the above discussion, the revision petition is dismissed.