Kerala High Court
A.P.Answar vs Canara Bank
Author: Antony Dominic
Bench: Antony Dominic
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
MONDAY, THE 4TH DAY OF MARCH 2013/13TH PHALGUNA 1934
OP (DRT).No. 246 of 2013 (O)
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PETITIONER(S) :
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A.P.ANSWAR, AGED 46 YEARS,
S/O.ABDUL AZEEZ, DOOR NO.1/1074A,
PALAKKATTUPARAMBU HOUSE, FORT KOCHI-682 001,
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER
MR.T.A.MOHAMMED SUNEER,
AGED 43 YEARS, S/O.T.M.LATE ABOOBACKER, DHARUL KARAM,
DOOR NO.12/1001 B, AANDIACHARI ROAD, PARAVANA JUNCTION,
KOCHI-2.
BY ADVS.SRI.BABU KARUKAPADATH
SMT.M.A.VAHEEDA BABU
SRI.JAGAN ABRAHAM M. GEORGE
SRI.K.A.NOUSHAD
SRI.P.U.VINOD KUMAR
SRI.P.G.PRAMOD
SRI.KANDAMPULLY RAHUL
RESPONDENT(S):
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1. CANARA BANK,
MATTANCHERRY BRANCH,
REPRESENTED BY ITS MANAGER.
2. M/S.JAIHIND OIL MILLS (KERALA),
6/1079, KOTTUKULAM ROAD, KOCHI-682 002.
3. RECOVERY OFFICER,
DEBTS RECOVERY TRIBUNAL, 8TH FLOOR, K.S.H.B BUILDING,
PANAMPALLY NAGAR, ERNAKULAM-682 036.
4. M/S.E-PROCUREMENT TECHNOLOGIES LTD.,
B-705, WALL STREET-II, OPP. ORIENT CLUB
NR. GUJARAT COLLEGE, ELLIS BRIDGE, AHMADABAD-380 006.
R5 IMPLEADED
5. M/S E PROCUREMENT TECHNOLOGIES LTD.,
B-705, WALL STREET-II, OP. ORIENT CLUB,
NR. GUJARAT COLLEGE,
ELLIS BRIDGE, AHAMADABAD-06.
ADDL. R5 IMPLEADED AS PER ORDER DATED 04.03.2013 IN I.A. NO.3307OF 2013.
R1 BY ADV. SRI.PAULY MATHEW MURICKEN,S.C.
R5 BY ADV. SRI.BABU PAUL
THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION ON
04-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (DRT).No. 246 of 2013 (O)
APPENDIX
PETITIONER(S) EXHIBITS :
EXT.P1- COPY OF THE PROCLAMATION DATED 27.06.2012 ISSUED BY THE 3RD
RESPONDENT.
EXT.P2- COPY OF THE D/D DATED 24.08.2012 PAID BY THE PETITIONER TOWARDS EMD.
EXT.P3- COPY OF THE SALE PROCLAMATION DATED 19.11.2012 ALONG WITH
CONDITIONS OF TENDER-CUM-E-AUCTION.
EXT.P4- COPY OF THE LETTER DATED 11.01.2013 RECEIVED BY THE PETITIONER,
SPECIFYING THE PAYMENT OF AMOUNT FOR DIGITAL SIGNATURE
CERTIFICATE.
EXT.P5- COPY OF THE COUNTER FOIL OF THE DEPOSIT SLIPS ISSUED BY ICICI BANK.
EXT.P6- COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER FOR DIGITAL
SIGNATURE CERTIFICATE.
EXT.P7- COPY OF THE EMAIL DATED 12.01.2013 RECEIVED BY THE PETITIONER.
EXT.P8- COPY OF THE EMAIL DATED 12.01.2013 GIVING INSTRUCTIONS FOR TAKING
DIGITAL ID.
EXT.P9- COPY OF EMAIL SEND BY THE PETITIONER TO THE REGIONAL OFFICE OF THE
CANARA BANK AND TO M/S.E-PROCUREMENTS TECHNOLOGIES LTD.
EXT.P10- COPY OF THE EMAIL COMMUNICATION RECEIVED BY THE PETITIONER FROM
CANARA BANK.
EXT.P11- COPY OF THE REPRESENTATION DATED 16.01.2013 SUBMITTED BY THE
PETITIONER.
RESPONDENTS' EXHIBITS : NIL
EXT.R5(1) : COPY OF THE EMD FOR RS.31 LAKHS DATED 14.01.13.
EXT.R5(2) : COPY OF THE E-MAIL DATED 22.01.2013.
EXT.R5(3) : COPY OF THE REMITTANCE OF RTGS DT.22/1/13.
EXT.R5(4) : COPY OF THE REMITTANCE OF RTGS DT.04.2.2013.
/ TRUE COPY /
NS P.A. TO JUDGE
ANTONY DOMINIC,J
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O.P(DRT) No.246 of 2013
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Dated this the 04th day of March, 2013
JUDGMENT
The second respondent had availed of a credit facility from the first respondent Bank. Default was committed and the Bank obtained recovery certificate against the second respondent. Finally, Ext.P1 proclamation of sale was issued for the sale of the property of the second respondent mentioned therein. Subsequently, cancelling Exts.P1, Ext.P3, a fresh proclamation for e-auction was published specify 15.01.2013 as the last date for receipt of the tender. Petitioner says that due to technical reasons attributable to the fourth respondent, the e- service provider of the Bank, the petitioner could not submit his tender. It was in such circumstances that he filed this original petition seeking to set aside the proposed sale of the property in pursuance to Ext.P3 and to direct the third respondent to afford him a reasonable OP(DRT) No.246 of 2013 : 2 : opportunity to participate in the tender process.
2. This Court heard the original petition on 18.01.2013 and posted the case to 21.01.2013 when the respondent Bank was directed to file a statement. Insofar as the interim order to stay further proceedings sought for by the petitioners is concerned, this Court passed the following order:
"2. When the original petition came up on 18.01.2013, this Court posted this case to today, with a direction to the Standing Counsel to get instructions.
3. Insofar as the interlocutory order sought by the petitioner is concerned, this Court had directed that petitioner should prove his bonafides by producing proof that he was capable of depositing the EMD and 25% including the EMD, which is payable if he is successful. However, nothing has been produced by the petitioner and the learned counsel has also expressed her inability to comply with the aforesaid direction of this Court."
OP(DRT) No.246 of 2013 : 3 :
3. Accordingly, the auction was proceeded with and the additional 5th respondent is the successful bidder who has remitted the entire amount of Rs.3.2 cores with the Bank on 04.02.2013.
4. The original petition was came up for orders before this Court on 26.02.2013 when counsel for the petitioner expressed his willingness to offer Rs.3.5 crores for the property in question. Taking note of that request, this Court passed order dated 26.02.2013, which reads thus:
"The auction purchaser Sri.P.K.Raju enters appearance through counsel and seeks time to file an application for getting himself impleaded in this original petition as an additional respondent. The counsel for the petitioner states that as against the highest offer of Rs.3.2 crores now received, the petitioner is willing to offer Rs.3.5 crores. Now that such a better offer has come, I see no reason to lose the offer which will be of benefit to the defaulter. In such circumstances, this case is adjourned to 4.3.2013 within which time, it will be open to OP(DRT) No.246 of 2013 : 4 : the auction purchaser to file his application for impleadment. In the mean time, the petitioner will also deposit the offered amount of Rs.3.5 crores with a nationalised bank and produce the receipt before this Court. The first respondent bank shall not do anything in furtherance of the sale already conducted, in the mean time."
5. It is accordingly that the matter has come up today for consideration. Today when the case was taken up, the counsel for the petitioner sought extension of time to comply with the deposit as ordered in the order dated 26.02.2013.
6. This is the case where the auction has been concluded in favour of the fifth respondent, who has deposited the entire sale consideration. In spite of that fact, since a substantial higher amount has been offered by the petitioner and since that higher amount would have been to the benefit of the defaulter, this Court was inclined to consider that offer. It was therefore that the petitioner was called upon to prove his bonafides by OP(DRT) No.246 of 2013 : 5 : depositing the offered amount. By making the request for extension of time, the petitioner has failed to prove the bonafides, which is the repetition of what transpired earlier before this Court as recorded in the order dated 21.01.2013. In such circumstances, I am not inclined to extend the time as sought for by the petitioner.
In view of the above and on account of intervention of third party rights, I do not think that any useful purpose will be served by keeping the original petition. Therefore, the original petition is dismissed.
Sd/-
ANTONY DOMINIC, JUDGE ln