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TMI Blog2016 (11) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... arlier point of time, the issuance of notice as well as notice for sale of the flat had been challenged, whereas the subsequent application had been filed after the auction had been held. The cause of action in respect of both the applications was not same and therefore, in our opinion, the second application for a different cause of action was maintainable. Thus we do not intend to disturb the judgment delivered by the High Court. However, looking at the nature of litigation faced by the auction purchaser, we modify the order and direct that the amount already paid by the auction purchaser shall be returned to the auction purchaser with simple interest at the rate of 10% till the said amount is paid. - Civil Appeal Nos.10676-10677 of 2016 (@ SLP (C) No. 32638-32639 of 2011) - - - Dated:- 8-11-2016 - Anil R. Dave And Uday Umesh Lalit, JJ. JUDGMENT Anil R. Dave, J. 1. Leave granted. 2. The present appeals are directed against the judgment dated 24.08.2011 rendered by the High Court of Calcutta, whereby the High Court has dismissed the revision petition filed by the appellant under Article 227 of the Constitution of India and affirmed the order of the Debt Recov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7/1, Queens Park, Kolkata-700019 (hereinafter referred to as the flat ) which was in the names of Respondent nos. 2 and 3. 7. Being aggrieved by said notice dated 10th August, 2009, Respondent nos. 1 and 3 preferred application no.92/2009 under Section 17 of Act, 2002 on 15th September, 2009 against Respondent no.4 bank by stating that the act of taking symbolic possession of the flat in question was illegal, without jurisdiction and was in violation of the Act and Regulations made thereunder, primarily for the reason that no advertisement was published in the newspaper in terms of Rule 8 (2) of the Rules and no possession notice under Rule 8 (1) was affixed on the said property and hence, prayed for quashing of notice dated 17th January, 2009 and also for quashing all steps taken under the Act. 8. Taking cognizance of the aforesaid application, the learned Presiding Officer, DRT, Kolkata vide order dated 17th December, 2009 directed Respondent nos.1 and 3 to pay a sum of ₹ 15 lakh before 26th December, 2009 and directed the Respondent bank to maintain status-quo and in case the borrowers fail to deposit the said sum before the stipulated date, Respondent no. 4 bank w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties to complete the pleadings. However, on 14th January, 2010, the Respondent borrowers filed an application for depositing the amount payable but on the same day, taking judicial notice of the subsequent developments, the Tribunal dismissed the said application as it had become infructuous. 15. In the aforestated circumstances, the Respondent borrowers filed another application under Section 17(1) of the Act challenging the validity of the demand notice dated 17th January, 2009 and sale of property which had taken place in January 2010 in pursuance of the aforestated notice. The Tribunal ordered to maintain status-quo as on 28th January, 2010. 16. Being aggrieved by the order of the Tribunal, Writ Petition No.169 of 2010 was filed by the present Appellant i.e. the auction purchaser, but the High Court disposed of the Petition as the matter was pending before the Tribunal. Ultimately, the Tribunal passed an order dated 10th June, 2010 in O.A. No.4 of 2010 setting aside the sale certificate. However, it permitted the borrowers to make payment within three weeks and if the amount was paid within three weeks, the bank was directed to refund the purchase money to the Appellant w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct had been duly considered by the Tribunal at an earlier point of time and as the borrowers had failed to furnish the bank guarantee, the creditor bank had rightly confirmed the sale in favour of the Appellant company. 21. On the other hand, the learned counsel for the Respondent borrowers had submitted that several serious irregularities had been committed by the bank in conducting the auction. Requisite notice, as required as per the Rules, had not been given and he had supported the judgment delivered by the High Court. According to him, if for any reason the auction sale is postponed, the entire process for holding the auction should be started afresh and as no fresh notice was given before conducting the auction, the sale effected by the bank was absolutely improper as held by the High Court. He had thus supported the reasons assigned by the High Court for setting aside the auction sale. 22. On behalf of the Respondent bank, the learned counsel submitted that the bank was prepared to accept the amount due and payable by the respondent borrower and in that event it would return the amount received from the Appellant along with interest thereon, as directed by the High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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