Orissa High Court
Mohammed Gafur vs Bank Of Baroda & Anr. .... Opposite Party ... on 31 October, 2025
Author: Sanjeeb K Panigrahi
Bench: Sanjeeb K Panigrahi
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT,
CUTTACK
Date: 07-Nov-2025 19:20:18
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.18224 of 2025
(In the matter of an application under Articles 226 and 227 of the
Constitution of India, 1950).
Mohammed Gafur .... Petitioner(s)
-versus-
Bank of Baroda & Anr. .... Opposite Party (s)
Advocates appeared in the case through Hybrid Mode:
For Petitioner(s) : M/s. Swadha Rath, Adv.
For Opposite Party (s) : Mr. Gurudutta Kar, Adv.
CORAM:
DR. JUSTICE SANJEEB K PANIGRAHI
DATE OF HEARING:-23.09.2025
DATE OF JUDGMENT: -31.10.2025
Dr. Sanjeeb K Panigrahi, J.
1. The Petitioner has filed the present Writ Petition assailing the impugned letter/order dated 30.01.2025 issued by the Bank of Baroda, represented through its Chief Manager, Regional Office, Sambalpur.
2. The Petitioner further prays for a direction to the Opposite Party-Bank to refund the auction deposit amounting to ₹22,43,000/- (Rupees twenty- two lakh forty-three thousand only) along with interest at the rate applicable to fixed deposits.
I. FACTUAL MATRIX OF THE CASE:
3. The brief facts of the case are as follows:
(i) The Opposite Party-Bank had issued an advertisement dated 22.08.2024 inviting e-auction bids for the sale of immovable assets under the Page 1 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 07-Nov-2025 19:20:18 provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.
(ii) The Petitioner participated in the said e-auction held on 20.09.2024 and submitted a bid for Property No. 1, corresponding to Khata No. 171/2566, Plot No. 266, measuring Ac. 0.200 dec., situated at Mouza-
Parmanadapur, P.S.-Bhawanipatna, Tahasil-Kalahandi, District- Kalahandi, belonging to M/s Swaraj Automobiles.
(iii) The Petitioner's bid, being the highest, was accepted, and she was accordingly declared as the successful bidder for the said property.
(iv) Prior to the auction, the Petitioner requested the Opposite Party-Bank to furnish relevant documents of the property, including the map, for verification. Pursuant thereto, a map dated 02.01.2020, prepared by the Revenue Inspector, Medinipur, was supplied to the Petitioner. In the said map, a road was shown as adjoining the property.
(v) On the basis of the documents furnished by the Bank, particularly the aforesaid map showing road access, and relying on the representations and assurances of the Bank authorities regarding delivery of physical possession of the property, the Petitioner deposited the margin money in good faith.
(vi) Acting on such representation, the Petitioner deposited earnest money of ₹2,00,000/- (Rupees two lakh only). Upon being declared the highest bidder, he further deposited 25% of the bid amount, as demanded by the Bank, amounting to ₹14,23,625/- (Rupees fourteen lakh twenty-three thousand six hundred twenty-five only). Thus, a total of ₹16,23,625/- (Rupees sixteen lakh twenty-three thousand six hundred twenty-five only) was paid to the Bank.
Page 2 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 07-Nov-2025 19:20:18
(vii) Thereafter, when the Petitioner visited the auctioned property to take physical possession, she discovered to her utter dismay that the land had no access road and was completely enclosed by adjoining plots, obstructing ingress and egress. The purported road shown on the southern side had, in fact, been acquired by the Railways for construction of a rail line and was not open for private use.
(viii) The Petitioner then applied to the Revenue Inspector, Lanjigarh, seeking the map relating to the Rail Link Project adjoining the auctioned land. The map furnished by the Revenue Inspector confirmed that the plots shown as a road on the southern side had already been acquired by the Railways for the said Rail Link Project.
(ix) By this time, the Petitioner had already sought a refund of the entire amount deposited with the Bank towards the purchase. However, by the impugned letter dated 30.01.2025, the Opposite Party-Bank rejected the request for refund, citing that the property was sold on an "As is where is, as is what is, and whatever there is" basis, and consequently forfeited the deposited amount.
(x) Upon verification from local residents, it was further revealed that no road connected to the property and that the land was completely landlocked. Comparison of the map furnished by the Bank with the actual physical condition of the property confirmed that no road existed adjoining the plot, contrary to the representation made by the Bank.
(xi) To ascertain the factual position, the Petitioner engaged an Amin to conduct a field verification. The Amin's report and corresponding sketch conclusively established that the auctioned land was surrounded by other plots on all sides and had no access road for ingress or egress. Page 3 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 07-Nov-2025 19:20:18
(xii) In the aforesaid circumstances, the Petitioner, having no other speedy, effective, or efficacious remedy, has approached this Court by invoking its extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India.
II. SUBMISSIONS ON BEHALF OF THE PETITIONER:
4. Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions:
(i) The present writ petition is maintainable, as the action of the Opposite Party-Bank involves clear misrepresentation and violation of statutory obligations under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, the Rules framed thereunder, and the Transfer of Property Act, 1882. The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 does not provide any efficacious alternative remedy in cases involving fraud or misrepresentation. In any event, Section 34 of the Act expressly bars the jurisdiction of civil courts in respect of measures taken by the Bank under the Act.
(ii) The Bank represented that the auctioned property had road access on its southern side, inducing the Petitioner to participate in the e-auction.
Acting upon this assurance, the Petitioner deposited 40% of the bid amount. However, after demarcation, the property was found to be landlocked, without any approach road. Prior to making such deposit, the Petitioner had repeatedly requested the Bank to verify the demarcation, having noticed a Railway Line near the property during inspection. The Bank officials assured her that the Railway Line did not Page 4 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 07-Nov-2025 19:20:18 obstruct road access and that demarcation would clarify the issue. The deposit was made in reliance on these assurances.
(iii) Such conduct amounts to fraud and misrepresentation, particularly since a public sector bank is duty-bound to act fairly, transparently, and with due diligence. The Bank's false representation regarding access induced the Petitioner to deposit a total sum of ₹22,43,000/-, which it now seeks to forfeit.
(iv) Maps prepared by the Amin on 04.04.2025 and by the Revenue Inspector in connection with the Rail Link Project confirm that the property is landlocked and encumbered. Under the SARFAESI Rules, 2002, the Bank was bound to disclose such encumbrances but failed to do so. The plea that the sale was conducted on an "As is what is, as is where is, and whatever there is" basis is untenable, since the auction advertisement itself described the property as having a road on its southern side, a representation directly contradicted by the subsequent maps.
(v) The Bank relied on a Revenue Inspector's report purportedly of 2024, whereas the report actually dated back to 2020, when the ground reality was different. The road shown therein had since been acquired by the Railways, a material fact not disclosed by the Bank. Moreover, inconsistencies appear in the Bank's own records, as while the auction notice referred to a southern road, a later sketch map dated 10.01.2025 depicted a road on the eastern side, revealing lack of verification and due diligence.
(vi) Plot No. 274, shown as a road in the Bank's sketch map, has already been acquired by the Railways for the Rail Link Project, as confirmed by the Revenue Inspector, Lanjigarh, through a certified map dated 05.02.2025. Page 5 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 07-Nov-2025 19:20:18 The Bank has not denied this fact in its counter affidavit, and under the principle of non-traverse, the same stands admitted.
(vii) Reliance on a belatedly prepared sketch map and the justification for forfeiture of the deposit are contrary to law and equity. Misrepresentation regarding road access constitutes a material defect rendering the auction sale voidable. Suppression of this vital fact, coupled with contradictory records, evidences mala fide conduct on the part of the Bank. Forfeiture of the Petitioner's deposit in such circumstances is arbitrary, unjustified, and unsustainable in law.
(viii) The materials on record, including the auction advertisement, the demarcated sketch map dated 10.01.2025, and the certified map issued by the Revenue Inspector, Lanjigarh, dated 05.02.2025, conclusively demonstrate that the property sold in auction is landlocked. The advertisement described a road on the southern side of the plot, whereas the later demarcation showed a road on the eastern side (Plot No. 274), which had already been acquired by the Railways. Despite being aware of this, the Bank failed to disclose the fact, thereby selling a property with a material defect.
(ix) The objection regarding maintainability under Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 is misconceived. Section 17 confers jurisdiction on the Debts Recovery Tribunal only in respect of measures under Section 13(4) and does not extend to cases involving fraud, misrepresentation, or mala fides by the secured creditor. It is a settled principle that fraud vitiates all proceedings, and therefore the bar of alternate remedy does not apply.
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(x) The "As is where is, what is and whatever there is" clause cannot be construed as a licence to mislead or conceal material defects. The clause merely signifies that the property is sold in its existing physical condition. It does not absolve the seller of its statutory duty of disclosure. Under Section 55 of the Transfer of Property Act, 1882 and Rule 8(6)(f) of the Security Interest (Enforcement) Rules, 2002, the Bank was obligated to disclose encumbrances or material defects known to it. Non-disclosure of the fact that the property had no approach road constitutes a clear breach of that duty.
III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES :
5. The Learned Counsel for the Opposite Parties earnestly made the following submissions in support of his contentions:
(i) The writ petition is not maintainable in fact or in law. An efficacious alternative remedy lies under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 before the Debts Recovery Tribunal. Under Section 17 of the Act, any grievance against measures taken under Section 13(4), including auction sales, is triable by the Debts Recovery Tribunal. Hence, the petitioner ought to have invoked that forum rather than approaching this Court under Article 226 of the Constitution.
(ii) The borrower's secured asset was proceeded against under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 due to loan default. An e-auction notice dated 22.08.2024 expressly stated that the property would be sold on an "As is Where is," "As is What is," and "Whatever There is" basis. Page 7 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 07-Nov-2025 19:20:18
(iii) The Bank fixed 16.09.2024 between 11:00 a.m. and 1:00 p.m. for inspection and granted thirty days' notice to prospective bidders to verify title, boundaries, access, and other particulars. The petitioner voluntarily participated in the auction held on 20.09.2024, emerged as the highest bidder, and deposited about 40 percent of the bid amount, signifying full acceptance of the auction terms and the property's condition.
(iv) The petitioner thereafter sought extensions to pay the balance amount, first by letter dated 02.12.2024 citing a medical emergency and again by letter dated 26.12.2024 citing illness of a family member. The Bank, by communication dated 07.12.2024, granted the first request subject to the condition that failure to comply would entail forfeiture of 25 percent of the deposit.
(v) Having failed to pay within the extended period, the petitioner for the first time on 06.01.2025 alleged that the property was landlocked and sought demarcation and refund. This plea was clearly an afterthought raised only after repeated defaults.
(vi) On 10.01.2025, the Revenue Inspector, Medinipur, furnished a demarcated sketch map showing a road abutting the eastern boundary.
By reply dated 30.01.2025, the Bank enclosed this sketch, clarified that the sale was conducted strictly in accordance with the SARFAESI Rules, and again called upon the petitioner to pay the balance amount, failing which forfeiture would follow. The Bank denies knowledge of any railway acquisition affecting access and submits that the demarcation confirms road connectivity on the eastern side.
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(vii) Having had ample opportunity to inspect the property and having participated with full knowledge of the "As is Where is" condition, the petitioner cannot now resile from the terms accepted. The later plea of absence of road access is belated and untenable. The sale process complied with Rules 6(2), 8(6), and 9(1) of the Security Interest (Enforcement) Rules, 2002.
(viii) The petitioner has suppressed material facts, including his two letters seeking extensions and the Bank's conditional permission, and now seeks to evade contractual obligations by alleging fraud or misrepresentation.
(ix) In view of the lapse of more than ninety days after the auction and the petitioner's failure to deposit the balance amount despite extensions, the Bank rightly invoked forfeiture of 25 percent of the deposit in strict conformity with the auction terms and applicable Rules.
(x) Allegations of mala fides are baseless. The Bank, a public institution, acted bona fide, followed the statutory procedure, granted reasonable indulgence, and furnished all relevant documents promptly.
(xi) The writ petition, filed to circumvent the consequences of default and contractual forfeiture, is misconceived and not maintainable either on jurisdictional grounds or on merits. The Bank therefore prays that the petition be dismissed in limine with costs, leaving the petitioner free to pursue any statutory remedy before the competent forum. IV. EXAMINATION OF THE LEGAL MATRIX:
6. Heard learned counsel for the respective parties and duly perused the materials placed on record.
Page 9 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 07-Nov-2025 19:20:18
7. The controversy in the present case centers on two key questions, namely whether the writ petition is maintainable despite the availability of an alternative remedy under Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and whether the forfeiture of the petitioner's deposit pursuant to the auction conducted by the Bank of Baroda is vitiated by arbitrariness, misrepresentation, or non-disclosure of material facts.
8. Before adverting to the factual aspects of the case, it is necessary to examine the legal position governing the maintainability of a writ petition under Article 226 of the Constitution in matters arising under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.
9. It is well settled that though the Act provides an alternative remedy under Section 17 before the Debts Recovery Tribunal, the existence of such remedy is not an absolute bar to the exercise of writ jurisdiction. The High Court may still entertain a petition where the action of the secured creditor is alleged to be vitiated by fraud, misrepresentation, or lack of adherence to statutory obligations.
10. In this regard, the Supreme Court in Harbanslal Sahnia v. Indian Oil Corporation Ltd1 observed that:
"7. ...the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies:
(i) where the writ petition seeks enforcement of any of the fundamental rights;1
(2003) 2 SCC 107.Page 10 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 07-Nov-2025 19:20:18
(ii) where there is failure of principles of natural justice; or
(iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged."
11. In the present case, the grievance of the petitioner is not directed against any measure under Section 13(4) as such but against the conduct of the Bank in allegedly misrepresenting a material aspect of the property. The allegation of suppression of the fact that the property was landlocked, followed by forfeiture of the deposit, if established, would strike at the root of the Bank's statutory duty of disclosure and the integrity of the auction process. The plea of alternative remedy therefore cannot defeat maintainability.
12. Coming to the merits of the case, it is not disputed that the Bank had published an auction notice dated 22.08.2024 describing the property as having a road on its southern side. The petitioner participated in the auction relying on this representation, deposited 40 percent of the bid amount, and later discovered that the property had no access road, the alleged road having been acquired by the Railways for a Rail Link Project. The Bank has not denied the acquisition of Plot No. 274, shown as the access road in its own sketch map, which stands confirmed by the map issued by the Revenue Inspector, Lanjigarh, dated 05.02.2025.
13. The duty of fair disclosure is inherent in every statutory sale under the SARFAESI framework, particularly when the secured creditor acts in a fiduciary capacity while disposing of the borrower's property.
14. Section 55 of the Transfer of Property Act, 1882 obliges a seller to disclose to the buyer any material defect in the property or title of which the buyer is unaware and which could not be discovered with ordinary care. Page 11 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 07-Nov-2025 19:20:18 Failure to disclose such a defect, including lack of access, constitutes breach of that duty.
15. The "As is Where is" and "As is What is" clauses, though standard in auction sales, merely indicate that the property is sold in its existing condition and that the purchaser bears the risk of apparent defects ascertainable by inspection. These clauses protect the creditor from complaints regarding minor or discoverable imperfections but do not dispense with the duty of fairness and disclosure.
16. The protection of these clauses cannot extend to concealment or misrepresentation of material facts that go to the root of the purchaser's ability to enjoy or use the property. They do not authorise a secured creditor to rely on inaccurate information of its own making or to disregard facts that ought reasonably to have been verified.
17. In Haryana Financial Corporation & Another v. Rajesh Gupta,2 the Supreme Court considered a purchaser's claim for refund on the ground that the seller had failed to disclose a material defect and the relevant title documents. The Court rejected the defence that the sale was conducted on an "As is Where is" basis and that the purchaser was bound by his bid. It held that the seller, having failed to give a fair and accurate description of the property, had not discharged its legal obligations, and therefore could not take refuge behind the "As is Where is" clause.
18. This principle, however, does not mean that every inaccuracy or omission on the part of a secured creditor will vitiate an auction 2 (2010) 1 SCC 655.
Page 12 of 14Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 07-Nov-2025 19:20:18 conducted on an "As is Where is" basis. The application of the rule must depend on the nature and gravity of the defect, the representations actually made by the creditor, and the opportunity available to the purchaser for independent verification. Where the description of the property is general and no specific assurance is given, the purchaser is expected to satisfy himself regarding its physical condition, access, and boundaries. The secured creditor cannot ordinarily be faulted for defects that were open to inspection or ascertainable through reasonable diligence.
19. Ordinarily, the existence or absence of a road is a matter open to physical inspection, and in an 'As is Where is' sale, the purchaser bears primary responsibility to satisfy himself on such aspects. However, where the secured creditor itself represents in official documents that the property abuts a public road, it assumes a limited obligation to ensure that such representation corresponds with the factual and legal position as on the date of sale. The omission to verify this, even if inadvertent, constitutes a lapse affecting the fairness of the auction process. The 'As is Where is' clause protects the Bank against undisclosed or minor physical imperfections but does not extend to inaccuracies in particulars officially published by the Bank
20. In view of these circumstances, the forfeiture of the petitioner's deposit cannot be sustained. The Bank, as a statutory creditor vested with public trust, was expected to exercise due diligence and ensure accuracy of the information published in the auction notice. Having failed to do so, it must bear the consequences of that lapse. The Bank is accordingly directed to refund the amount deposited by the petitioner, together with Page 13 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 07-Nov-2025 19:20:18 interest at the rate applicable to fixed deposits, within eight weeks from today.
21. Accordingly, the Writ Petition stands allowed to the extent indicated above.
22. Interim order, if any, passed earlier stands vacated.
(Dr. Sanjeeb K Panigrahi) Judge Orissa High Court, Cuttack, Dated the 31st Oct., 2025/ Page 14 of 14