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Narayan Yadav (D) thr. L.Rs. Vs. The State of Bihar and Ors. - (Supreme Court) (25 Feb 2020)

Application for setting aside the sale can be made only after deposit of purchase money

MANU/SC/0222/2020

Property

Present civil appeal is filed by the Appellants, aggrieved by the judgment and order passed in Letters Patent Appeal by the High Court. It is contended by the learned Counsel appearing for the Appellants, that the Respondent-writ Petitioners did not make any deposit along with their application filed on 15th July, 1983 as required under Section 28 of the Bihar And Orissa Public Demands Recovery Act, 1914. It is submitted that, when there is a mandatory requirement of deposit for making an application to set-aside the sale, no application could have been entertained for setting aside the sale in absence of such deposit within the time stipulated under law.

Further, it is submitted, that in absence of any power conferred on the Certificate Officer, the Certificate Officer had no authority to either extend the time for deposit, or to entertain the application for setting aside the sale, which was not supported by deposit. It is contended that as the Certificate Officer had committed an error in allowing the application of the writ-Petitioners for setting aside the sale, the same was rightly interfered with by the Collector in revision petition, and the same was confirmed by the Board of Revenue.

It is not in dispute that the mortgaged land was sold in auction, in the initiated certificate proceedings by the competent authority on 15th June, 1983. From a reading of Section 28 of the Act, it is clear that the certificate-debtor, or any person whose interests are affected by the sale, may, at any time within thirty days from the date of the sale, can make an application to the Certificate Officer to set aside the sale by depositing the amount specified in the proclamation of sale, along with interest @ six and a quarter per centum per annum, and with penalty, a sum equal to ten percent of the purchase money. It is clear from the language of the aforesaid Section, that the application is to be filed at any time within thirty days from the date of sale by depositing the amount. If the application filed under Section 28 of the Act is to be treated as valid, it must be along with the deposit as contemplated under Section 28(1) of the Act.

In present case, admittedly the deposit of purchase money along with penalty was not deposited within a period of thirty days from the date of sale. A reading of the order passed by the Certificate Officer itself indicates that the auction amount was not deposited and the Respondent-objector-writ Petitioners were permitted to deposit the same by 22nd September, 1983. Section 28 of Act is intended to safeguard the interests of persons who are affected by the sale, to approach the competent authority within the prescribed time by depositing the purchase amount along with ten percent thereof as penalty which is payable to auction purchaser for retaining the land.

The learned Single Judge of the High Court has allowed the writ petition by recording a finding that the Certificate Officer is satisfied with the claim of the objector-writ Petitioners, and has allowed the application. Even in the Letters Patent Appeal filed by the Appellants, the High Court has rejected the appeal by recording a finding that whether or not it was a fit case for extension of time, is basically judicial discretion, and no case is made out to show that such discretion was exercised erroneously or capriciously. When the Section mandates for filing an application by making a deposit within a particular time, present Court is of the view that, there is no discretion left to the authority to extend the time.

Consequently, the order passed by the learned Single Judge is set-aside confirming the order of the Board of Revenue. In effect, the application filed by the Respondent-writ Petitioners under Section 28 of Act, 1914 stands rejected. The Respondent-writ Petitioners are entitled for refund of money deposited by them before the Certificate Officer. Appeal allowed.

Tags : PURCHASE MONEY   DEPOSIT   TIME PERIOD  

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