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Judgment
J.M. Malik, J
The whole controversy centres around the auction proceedings conducted by the authorised officer on 27.12.2004. The learned Trial Court vide its order dated 29.12.2010 upheld the auction proceedings. Aggrieved by the said order the instant appeal has been preferred.
After having subjected the evidence on a closet scrutiny and having heard the Counsel for the parties at length, I find that the demand raised by the learned DRT vide recovery certificate dated 23.1.2006 shakes the very genesis, foundation, basis and fiber of the demand/adjudication made by the learned DRT in the recovery certificate. It may be mentioned here that the learned Counsel for the appellants and proforma respondent Nos. 5 to 7 did not pick up a conflict with the main judgment but his grievance is in respect with the recovery certificate only. In case the Court agrees with this contention, the subsequent proceedings will automatically go in a tizzy.
Shri A.L. Varma, Presiding Officer, DRT vide his order dated 17.9.2003 made the following observations. A civil suit was filed by the PNB for recovery of debtagainst the appellant M/s.Dashmesh Khad Store, defendantNo. 1, Shri Inderjit Singh Bedi, defendant No. 2, Smt. Avinash Kaur, defendant No. 3, Shri Gurnam Singh, defendant No. 4 and Shri Inder Singh, defendant No. 5. The said suit was decreed on 7.1.2002 for an amount of Rs. 5,90,605/- along with pendente lite and future interest @ 15.5% along with costs to the tune of Rs. 21,367.75, The application for issuance of recovery certificate was filed before the learned DRT on 7.1.2002. At that time the total outstanding was Rs. 10,95,924.75 along with pendente lite and future interest up to 25.10.2002.
Para 6 of the learned Trial Court's order dated 7.3.2003 clearly goes to show that the recovery certificate issued by the learned Trial Court was wrong. In order to understand the position clearly and unambiguously, it would be worthwhile to produce para 6 of the said order which reads:
Issue Recovery Certificate in accordance with the judgment passed by Civil Court, Firozepur against defendants/JDs for an amount of Rs. 10,95,524.75 including pendente lite and future interest @ 15.5% p.a. from 26.10.2002, till realisation and costs of the application.
It is apparent that the recovery certificate should have been issued at Rs. 5,90,605/- principal amount. The appellant was also liable to pay costs at Rs. 21,367.75. The suit was filed before the Civil Court on 14.6.1997. The appellant was liable to pay pendente lite and future interest w.e.f. 14.6.1997. The recovery certificate should have mentioned that the appellant is liable to pay principal amount in the sum of Rs. 5,90,605/-as on 14.6.1997. The pendente lite and future interest @ 15.5% would start on 14.6.1997 for Rs. 5,90,605/- plus costs in the sum of Rs. 21,367.75. The impugned order wrongly mentions that pendente lite and future interest @ 15.5% should be paid for principal amount of Rs. 10,95,524.75 w.e.f. 26.10.2002. The recovery certificate wrongly shows principal amount of Rs. 10,95,524.75. It should have been Rs. 5,90,605/- plus costs in the sum of Rs. 21,367.75 total being Rs. 6,11,972.75. This was the principal amount and the appellant is liable to pay the pendente lite and future interest w.e.f. 14.6.1997 till the realisation of the entire amount. It is thus clear that a small error may make the things to go haywire.
Although, the recovery certificate dated 17.9.2003 had attained finality and no appeal was preferred against it, yet very foundation and basis of the demand raised by the learned DRT is not in consonance with the well settled law and rules. The excessive demand raised by the Court than its due makes the judgment without jurisdiction. The law of limitation will have no application. The Counsel for the Bank and auction purchasers could not explain these knotty questions. Again, it is not out of place to mention here that this question was raised before this Court for the first time.
The second controversy dwells on the question whether the sale was affected at the notified area or not. This is indisputable fact that the auction was not conducted at the spot. It is admitted fact that the property in dispute is situated at zero line of the Indo-Pak border. Special permission is required to enter that area by public at large. The public notification goes to reveal that the auction was to be conducted at the spot but it was conducted at the distance of 3 kilometres away from the actual spot.
The respondent Bank has placed on record certain pamphlets which are in Punjabi language but these are silent about the place where the auction was to be conducted. The learned Counsel for the respondents in order to bring his point home has cited an authority reported in Atwal Agro Chemical Mentha Oil Industries v. State Bank of India, 2011(1) ISJ D.B. (Ban), wherein it was held:
9....It is well settled that unless a case of serious prejudice is made out, the procedural irregularities, if any, committed by a quasi-judicial authority do not warrant any interference. The petitioner has failed to make out a case as to how the slight change in the place of auction has caused any prejudice to them, especially when the exhibition of the property at the spot would have inspired more confidence to give a better offer to the bidders. The fact that there were sufficient participants in the auction also belies the petitioner's plea regarding lack of publicity.
The learned Counsel for the auction purchaser has produced on record photo copies of two sale deeds in order to show that the price of the land in question is reasonable and just.
The arguments urged by both the Counsel for the respondents are vulnerable to refutation. These photo copies or the original sale deeds should have been produced before the learned Trial Court. Originals and affidavits of sellers or buyers would have gone a long way to bring the Courts face-to-face with the reality. The appellants should have got an opportunity to rebut the said evidence. In absence of all these formalities the position does not begin to jell.
I have perused the original record. The reserve price was fixed for Rs. 9 lacs. There were only two sets of bidders who participated in the auction. The following extracts from the auction proceedings is relevant and produced as follows:
Surinder Pal himself and for Satpal and Vinod Kumar in equal share
9,01,000/-
Falak Singh
9,02,000/-
Surinder Pal himself and for Satpal and Vinod Kumar in equal share
9,03,000/-
Surinder Pal himself and for Satpal and Vinod Kumar in equal share
9,05,000/-
The above said chart clearly goes to show that the above said auction was conducted in a suspicious manner. It is well settled that cartel has three quite different meanings: (1) an agreement between hostile nations; (2) an. anticompetitive combination usually that fixes commercial prices; and (3) a combination of political groups that work towards common goals. It appears that the instant case is covered under Clause (2) mentioned above. The Apex Court in the case of Union of India v. Hindustan Development Corporation, AIR 1994 SC 998, was pleased to hold that the cartel is an association of producers who by an agreement themselves attempt to control production, sale and prices of the product to obtain a monopoly in any particular industry or commodity. It appears that Surinder Pal, Sat Pal and Vinod Kumar formed a cartel to kill competition and control the price as is evident from the above said extracts. The report filed by the Tehsildar goes to show that the value of the property in dispute is worth Rs. 36-40 lacs.
Moreover, the present case is fully covered by the authority reported in Swastik Agency and Others v. State Bank of India, Bhubaneswar and Others, : AIR 2009 Ori 147, wherein it was held:
Thus, the legal position remains that every statutory provision requires strict adherence, for the reason that the statute creates rights in favour of the citizens, and if any order is passed de hors the same, it cannot be held to be a valid order and cannot be enforced. As the statutory provision creates legal rights and obligations for individuals, the statutory authorities are under a legal obligation to give strict adherence to the same and cannot pass an order in contravention thereof, treating the same to be merely decoration pieces.
The question further arises that Rule 8(6) provides for publication of auction notice in two leading newspapers having wide circulation in the locality and one of them must be in vernacular language. Rule 38 of the Orissa Minor Mineral Concession Rules, 2004 contains similar provision where, upset price is more than Rs. 5 lakh. The purpose of such a requirement is to give notice to maximum number of intending auctioneers so that the best possible price may be fetched. Section 4(1) of the Land Acquisition Act, 1894 also contains a similar provision. Suchprovisions have consistently been held to be mandatory, vide Smt. Laxmi Devi v. State of Orissa and Ors., : AIR 1990 Ori 196; Nutakki Sesha-rantanam v. Sub-Collector, Land Acquisition, Vijayawada and Ors., : AIR 1992 SC 131;and Sanjeevanagar Medical and Health Employees' Co-operative Housing Society v. Mohd. Abdul Wahab and Ors., : AIR 1996 SC 3360. Non-compliance thereof has always been held to be fatal. Further, question does arise as to whether in a newspaper in vernacular language it is necessary to publish a notice in vernacular language or it could be published in English. Language used in the statute does not specifically suggest that notice itself should also be in a vernacular language. However, if the notice is published in English language in a vernacular newspaper, it would not serve the purpose of making publication of the notice therein.
The facts of the instant case are similar. Parallels can be drawn between these two cases.
Counsel for the appellant has cited an authority reported in State Bank of Patiala v. M/s. Khosla Engg. Co., : AIR 1993 P&H 207, wherein it was held:
13....That alone, however, cannot be sufficient to set aside the sale but, as noticed above, inadequate price fetched was caused by the reason of material irregularity. If the sale was to be conducted in a proper manner and at the Court House as per notice of sale, it was but natural that many more persons besides nine who only participated would have been attracted and actually offered their bids. For the reason, that the auction took place at the spot instead of Court House, many prospective purchasers must have been precluded from participating in the bid, thus, resulting into inadequate price which is a direct result of irregularity in the conduct of sale.
The above said flaws go to rip as under the basics of the edifice built by the Bank. For the above detailed reasons, I hereby set aside the auction sale, direct the learned DRT to issue fresh recovery certificate wherein the principal amount should be mentioned as Rs. 5,90,605/- as on 14.6.1997 plus costs of the case in the sum of Rs. 21,367.75 total being Rs. 6,11,972.75. It is further ordered that the borrower would pay the pendente lite and future interest @ 15.5% p.a. w.e.f. 14.6.1997 till realisation of the entire amount. The said recovery certificate be prepared within 20 days from today. The borrowers/appellants may pay the same within 45 days from today failing which the Bank is not precluded auctioning the property as per law. The public notices must mention that the auction of property in dispute will be held at a particular place because it is not possible to auction the property at the spot as the said area falls under the zero line of the Indo-Pak border. Other formalities be strictly complied with, including the fact that public notices must be published in English as well as in vernacular language. The auction purchasers be paid the auction money back along with interest @ 6% p.a. simple within a period of three months from today.
The appeal stands disposed of.
Copies of this order be furnished to the parties as per law and one copy be sent to the learned DRT forthwith.