{"id":21415,"date":"2011-01-10T00:00:00","date_gmt":"2011-01-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/goldie-sud-vs-punjab-national-bank-ors-on-10-january-2011"},"modified":"2017-05-14T14:09:10","modified_gmt":"2017-05-14T08:39:10","slug":"goldie-sud-vs-punjab-national-bank-ors-on-10-january-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/goldie-sud-vs-punjab-national-bank-ors-on-10-january-2011","title":{"rendered":"Goldie Sud vs Punjab National Bank & Ors on 10 January, 2011"},"content":{"rendered":"
Bombay High Court<\/div>\n
Goldie Sud vs Punjab National Bank & Ors on 10 January, 2011<\/div>\n
Bench: Dr. D.Y. Chandrachud, Anoop V.Mohta<\/div>\n
                                                   1                        wp2218.10.sxw\n    ssm\n\n\n              IN THE  HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                                  \n                   ORDINARY ORIGINAL CIVIL JURISDICTION\n\n                        WRIT PETITION NO. 2218 OF 2010 \n\n\n\n\n                                                          \n                                          WITH\n\n                       NOTICE OF MOTION NO. 634 OF 2010\n\n\n\n\n                                                         \n    Goldie Sud                                             .....Petitioner\n\n                 Vs.\n\n\n\n\n                                             \n    Punjab National Bank & Ors.                            ......Respondents\n                             \n                            \n    Mr. Zal Andhyarujina with Ms. Duhita Lewis and Mr. Santosh S. Shetty \n    for the Petitioner.\n    Mr. Virag Tulzapurkar, Sr. Advocate with Mr. Chirag Balsara with Ms. \n    Angeline Rodrigues, Ms. Jyoti Sinha, Ms. Savita Kandu, Mr. Vikrant \n        \n\n    Makhare and Mr. Uzair Kazi i\/by M\/s. Negandhi, shah & Himayatullah \n    for Respondent No.1.\n     \n\n\n\n    Mr.   Milind   Sathe,   Sr.   Advocate   with   Mr.   Cyrus   Ardeshir   i\/by   M\/s. \n    Kanga & Co. for Respondent No.3.\n    Mr. Ulhas G. Kerkar for Respondent No.4. \n\n\n\n\n\n                               CORAM :  DR. D.Y. CHANDRACHUD AND\n                                          ANOOP V. MOHTA, JJ.\n<\/pre>\n
                                  DATE    :  JANUARY 10, 2011.\n<\/p>\n
    ORAL JUDGMENT(PER DR. D.Y. CHANDRACHUD, J.):-\n<\/p>\n
          By these proceedings, the Petitioner seeks to impugn the legality <\/p>\n
    of the public auction that was conducted on 15 September 2010 by <\/p>\n
    the First Respondent of land and building situated on Plot No. 494, <\/p>\n
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    CTS   No.   F\/366,   Linking   Road,   Bandra,   Mumbai   400   050.     The <\/p>\n
    Petitioner is a co-owner and was co-mortgagor.  At the outset, counsel <\/p>\n
    appearing on behalf of the Petitioner stated before the Court that in <\/p>\n
    these proceedings under Article 226 of the Constitution of India, the <\/p>\n
    Petitioner   impugns   the   validity   of   the   auction   sale   purely   in   his <\/p>\n
    capacity as a bidder at the auction.\n<\/p>\n
    2      On 21 May 2010, the First Respondent invited bids for a public <\/p>\n
    auction of the immovable property in question.   The notice inviting <\/p>\n
    the   tenders   specifically   stipulated   that   the   reserve   price   was   14.62 <\/p>\n
    crores,   below   which   “the   property   will   not   be   sold”.   The   Petitioner <\/p>\n
    submitted a bid at the auction which was held on 28 May 2010 in the <\/p>\n
    amount of Rs.15.05 crores. The Petitioner, however, failed to comply <\/p>\n
    with his obligation of paying the balance of the sale consideration over <\/p>\n
    and   above   Rs.3,76,25,000\/-,   upon   which   the   auction   sale   was <\/p>\n
    cancelled   and   the   property   was   re-advertised.   While   issuing   an <\/p>\n
    advertisement for the public auction, the First Respondent once again <\/p>\n
    stipulated   a   reserve   price   of   Rs.14.62   crores   below   which,   it   was <\/p>\n
    stated, the property would not be sold.  At the second auction which <\/p>\n
    was held on 15 September 2010, the Petitioner submitted a bid of Rs.5 <\/p>\n
    crores, which was well below the reserve price of Rs.14.62 crores and <\/p>\n
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    below Rs.15.05 crores which was submitted at the first auction.  Four <\/p>\n
    bids   were   received   by   the   bank.   The   highest   bid   was   of   Rs.14.77 <\/p>\n
    crores of the Third Respondent whereas, the second highest bid was of <\/p>\n
    Rs.14.63   crores.   The   minutes   of   the   meeting   that   was   held   on   15 <\/p>\n
    September 2010, record that on scrutiny, it was found that only two of <\/p>\n
    the four bidders submitted bids in excess of the reserve price together <\/p>\n
    with the earnest money of 10% of the reserve price, as required.  The <\/p>\n
    bid submitted by the Petitioner was rejected on the ground that (i) the <\/p>\n
    bid submitted was below the reserve price of Rs.14.62 crores; and (ii) <\/p>\n
    it   was   without   furnishing   earnest   money   deposit.   The   sale   was <\/p>\n
    knocked down in favour of the Third Respondent for an amount of <\/p>\n
    Rs.14.77 crores.   The sale was confirmed and a sale-certificate was <\/p>\n
    issued which has been duly registered. A statement has been made <\/p>\n
    before the Court by counsel appearing on behalf of the Bank and the <\/p>\n
    auction purchaser that the title documents have been handed over and <\/p>\n
    possession has been handed over on an “as is where is basis”.\n<\/p>\n
    3      On behalf of Petitioner, four submissions have been urged before <\/p>\n
    the Court- (i) The jurisdiction under Article 226 of the Constitution is <\/p>\n
    discretionary   and   even   if   it   is   held   that   an   alternate   remedy   is <\/p>\n
    available under Section 17 of the Securitization and Reconstruction of <\/p>\n
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    Financial   Assets   and   Enforcement   of   Security   Interest   Act,   2002 <\/p>\n
    (SARFAESI Act), this would not oust the extra ordinary jurisdiction of <\/p>\n
    this Court; (ii) The remedy under Section 17 of SARFAESI Act, is not <\/p>\n
    an efficacious remedy; (iii) The Petitioner was wrongly excluded from <\/p>\n
    the   bidding   process   on   the   ground   that   his   bid   was   less   than   the <\/p>\n
    reserve price. The Petitioner had a bonafide strategy to bid below the <\/p>\n
    reserve price and it was not a condition of eligibility that every bid <\/p>\n
    should be at least of an amount equal to the reserve price;  (iv)  The <\/p>\n
    Petitioner   was   not   allowed   to   bid   on   the   ground   that   the   earnest <\/p>\n
    money   deposit   was   found   on   the   floor   of   the   premises   where   the <\/p>\n
    auction was conducted.    The demand draft which was found on the <\/p>\n
    floor was purchased by Megh Leasing & Investments Ltd. On the day <\/p>\n
    following the auction sale, that company had addressed a letter to the <\/p>\n
    issuing bank recording that the demand draft had been given by it to <\/p>\n
    the Petitioner “as a business transaction”.\n<\/p>\n
    4      Insofar   as   the   maintainability   of   the   Petition   is   concerned, <\/p>\n
    counsel   appearing   on   behalf   of   the   Respondents   stated   before   the <\/p>\n
    Court that in the facts and circumstances of this case and even on the <\/p>\n
    assumption   that   the   remedy   of   the   appeal   under   Section   17   is <\/p>\n
    available to an auction purchaser,  it would be appropriate and proper <\/p>\n
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    for this Court to entertain the Petition on merits and deal with the <\/p>\n
    challenge in order to render finality.  In view of the joint request made <\/p>\n
    by counsel for both the parties, the grievances of the Petitioner have <\/p>\n
    been considered on merits by consent.\n<\/p>\n
    5      The   terms   and   conditions   governing   the   first   auction   sale <\/p>\n
    specifically provided that the reserve price would be Rs.14.62 crores <\/p>\n
    below which the property would not be sold.  During the course of the <\/p>\n
    first auction, the Petitioner submitted a bid of Rs.15.05 crores.   The <\/p>\n
    Petitioner was unable to comply with the terms of the sale, following <\/p>\n
    which the sale was cancelled and the property was re-advertised.  On <\/p>\n
    the   second   occasion,   as   well,   the   bank   while  inviting   tenders, <\/p>\n
    specifically  stipulated the  condition  that  the  property  would not  be <\/p>\n
    sold   below   the   reserve   price   of   Rs.14.62   crores.   Despite   this,   the <\/p>\n
    Petitioner   submitted   a   bid   of   Rs.5   crores.   There   is   merit   in   the <\/p>\n
    submission urged by counsel for the Respondent that this bid of the <\/p>\n
    Petitioner was clearly not bonafide. No bidder, in the face of a specific <\/p>\n
    tender condition which stipulated that the property would not be sold <\/p>\n
    below   the   reserve   price,   would   come   forward   with   a   bid   that <\/p>\n
    represents a fraction of the reserve price. This assumes significance in <\/p>\n
    this   case   where   at   the   earlier   auction   with   the   same   conditions   of <\/p>\n
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\n                                                      6                        wp2218.10.sxw
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    tender, the Petitioner submitted a bid of Rs.15.05 crores.\n<\/p>\n
    6     However, it was urged by counsel on behalf of the Petitioner that <\/p>\n
    the submission of a bid in an amount equal to the reserve price or <\/p>\n
    higher is not a condition precedent to eligibility.  In other words, it has <\/p>\n
    been urged that a bid below the reserve price would not dis-entitle the <\/p>\n
    Petitioner from participating at the auction sale and it would be open <\/p>\n
    to a bidder to quote below the reserve price, as a matter of strategy so <\/p>\n
    as to await the process of inter-se bidding during the course of the <\/p>\n
    auction. Reliance has been placed on the provisions of regulation 9 of <\/p>\n
    the Security Interest (Enforcement) Rules, 2002.\n<\/p>\n
    7     Rule   8(5)   of   the   Rules   provides   that   before   effecting   sale   of <\/p>\n
    immovable property, the authorized officer is to approve valuation and <\/p>\n
    fix the reserve price in consultation with the secured creditor.   The <\/p>\n
    property   which   constitutes   a   secured   asset   can   thereupon   be   sold <\/p>\n
    through   one   or   more   modes   including   amongst   them,   by   inviting <\/p>\n
    tenders from the public or by holding a public auction.  In the event <\/p>\n
    that the secured asset has to be sold either by inviting tenders from <\/p>\n
    the public or by holding a public auction, a notice must be issued in <\/p>\n
    two leading newspapers of wide circulation in the locality inter alia <\/p>\n
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    describing the terms of the sale.  This includes the description of the <\/p>\n
    immovable property, the secured debt for the recovery of which the <\/p>\n
    property is to be sold,  the price below which the property may not be <\/p>\n
    sold, the time and place of auction and the deposit of earnest money <\/p>\n
    stipulated.   Rule 9(2) stipulates that the sale shall be confirmed in <\/p>\n
    favour of the purchaser who has offered the highest sale price in his <\/p>\n
    bid and would be subject to confirmation by the secured creditor.  The <\/p>\n
    first proviso of Rule 9(2) stipulates that no sale shall be confirmed, if <\/p>\n
    the   amount   offered   by   sale   price   is   less   than   the   reserve   price, <\/p>\n
    specified under Sub-Rule 5 of Rule 8.   The second proviso however, <\/p>\n
    lays down that if the authorized officer fails to obtain a price higher <\/p>\n
    than the reserve price, he may, with the consent of the borrower and <\/p>\n
    the secured creditor effect the sale at such price.\n<\/p>\n
    8      In the present case, the terms and conditions of sale provided <\/p>\n
    that the property would not be sold at a price less than the reserve <\/p>\n
    price. There was, therefore, in this case a clear indication by the First <\/p>\n
    Respondent   that   it   would   not   agree   to   any   amount   less   than   the <\/p>\n
    reserve price.  No bidder was therefore entitled to assume that a bid at <\/p>\n
    an amount less than the reserve price would possibly meet the consent <\/p>\n
    of the secured creditor. The secured creditor had in advance clearly set <\/p>\n
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    forth its intent not to accept any bid below the reserve price. That <\/p>\n
    apart, as a matter of fact, in the present case, the bank received two <\/p>\n
    bids  both   in   excess  of   the  reserve   price.  If  as submitted  before   the <\/p>\n
    Court on behalf of the Petitioner, the Petitioner submitted a bid below <\/p>\n
    the reserve price in the face of a clear stipulation to the contrary in the <\/p>\n
    notice   inviting   tenders,   he   was   taking   a   chance   or   wager.    The <\/p>\n
    Petitioner, by taking that chance must be conscious of the possibility of <\/p>\n
    being outbid by others who quoted in excess of the reserve price. The <\/p>\n
    submission of the Petitioner that every bidder is entitled to participate <\/p>\n
    in the inter-se bidding at an auction sale, even if the bid is below the <\/p>\n
    reserve price, cannot be accepted. If the submission is accepted, the <\/p>\n
    sanctity of the process would be lost and the tendering process would <\/p>\n
    be illusory. Taken to the logical conclusion, the submission implies that <\/p>\n
    even a bidder with a bid of one rupee, in the face of a reserve price of <\/p>\n
    Rs.14.62 crores would have to be considered in this tendering process.\n<\/p>\n
    If this is allowed, the process would lose its sanctity and become a <\/p>\n
    speculative exercise between bidders. When the bank notified to the <\/p>\n
    intending   bidders   that   the   property   would   not   be   sold   below   the <\/p>\n
    reserve   price,   this   was   clear   notice   of   the   fact   that   bids   below   the <\/p>\n
    reserve price would not be considered. The second proviso to Rule 9 <\/p>\n
    makes an enabling  provision by which a bid below the reserve price <\/p>\n
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    may be accepted by the authorized officer if he fails to obtain a price <\/p>\n
    higher than the reserve price.   This situation can arise only if a bid <\/p>\n
    higher than the reserve price is not obtained.  Moreover, even in such <\/p>\n
    a case, the consent of the borrower and the secured creditor to effect a <\/p>\n
    sale at such a price has to be obtained under the enabling provision of <\/p>\n
    the second proviso to Rule 9.  There is no vested right in a bidder to <\/p>\n
    participate in an auction sale by submitting a bid which is lacking in <\/p>\n
    bonafides as in the present case.\n<\/p>\n
    9     In view of the aforesaid findings which we have arrived at on <\/p>\n
    the second ground, the Petition is liable to fail.  In addition, we must <\/p>\n
    note   that   the   other   ground   on   which   the   bid   submitted   by   the <\/p>\n
    Petitioner was not considered, was that the Petitioner failed to deposit <\/p>\n
    the earnest money of Rs. 14.62 crores together with the bid.\n<\/p>\n
    10    In the minutes of the meeting of 15 September 2010, it has been <\/p>\n
    recorded  that  the  staff  of  the   bank  had  found  a  crumpled  piece   of <\/p>\n
    paper  on  the  floor of  the  hall  where  the  auction  was  taking  place.\n<\/p>\n
    Upon   being   unfolded   it   contained   a   demand   draft   of   the   Indian <\/p>\n
    Overseas Bank dated 15 September 2010, for Rs.1,46,20,000\/-. The <\/p>\n
    Petitioner   pointed   out   that   the   demand   draft   may   be   his   draft.\n<\/p>\n
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                                                     10                       wp2218.10.sxw\n    ssm\n\n\n<\/pre>\n
    However,   when   the   authorized   officer   asked   the   Petitioner   to <\/p>\n
    incorporate   the   details   of   the   demand   draft   in   his   bid   form,   the <\/p>\n
    Petitioner   refused   to   do   so.     On   15   September   2010,   the   First <\/p>\n
    Respondent  returned  the   demand  draft  to  the  issuing  bank,   on  the <\/p>\n
    ground   it   had   not   been   claimed.     The   issuing   banker   declined   to <\/p>\n
    accept   the   draft   following   which   the   First   Respondent   addressed   a <\/p>\n
    letter dated 16 September 2010.  The issuing bank by its letter dated <\/p>\n
    23   September   2010,   stated   that   the   purchaser   of   the   draft,   Megh <\/p>\n
    Leasing   and   Investments   Limited   had   informed   it   that   there   were <\/p>\n
    certain irregularities in the auction conducted by the First Respondent <\/p>\n
    and that the issuing bank was advised not to accept the draft.   The <\/p>\n
    issuing   bank   stated   that   since   there   was   a   dispute   between   the <\/p>\n
    purchaser  of   the   draft   and  the   First   Respondent,   the   draft   had  not <\/p>\n
    been accepted by the bank.  On 16 September 2010 Megh Leasing and <\/p>\n
    Investments Limited addressed a letter to the issuing banker stating <\/p>\n
    that it had purchased a draft and furnished it to the Petitioner ‘as a <\/p>\n
    business transaction’.\n<\/p>\n
    11     The contention which has been urged on behalf of the Petitioner <\/p>\n
    is   that   Megh   Leasing   and   Investments   Limited   had   financed   the <\/p>\n
    earnest money deposit on the occasion of the earlier auction and it <\/p>\n
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    would have been known to the bank that the demand draft which was <\/p>\n
    alleged to be found on the floor of the auction hall, in fact, belonged <\/p>\n
    to   the   Petitioner.   Counsel   submitted   that   the   tender   form   had   no <\/p>\n
    column where there was a provision for a bidder to incorporate the <\/p>\n
    details   of   the   demand   draft.     Moreover,   reliance   was   sought   to   be <\/p>\n
    placed on an FIR lodged by the bank on 15 September 2010 with the <\/p>\n
    Senior   Inspector   of   Police,   Marine   Drive   Police   Station,     where   the <\/p>\n
    bank is alleged to have recorded having refused to allow the bidder to <\/p>\n
    write   the   number   of   the   demand   draft   in   the   tender   form.     The <\/p>\n
    contents   of   the   FIR,   it   was   urged,   are   not   consistent   with   what   is <\/p>\n
    recorded in the minutes of the meeting held on 15 September 2010.\n<\/p>\n
    12     On the other hand, it is urged on behalf of the Respondent that <\/p>\n
    the demand draft was found on the floor of the auction hall and there <\/p>\n
    was nothing wrong with the bank requiring the Petitioner to certify <\/p>\n
    the ownership of the draft by incorporating the details in the bid form.\n<\/p>\n
    According   to   the   bank,   the   Petitioner   refused   to   do   so,   in   view   of <\/p>\n
    which the bank was justified in proceeding on the basis that the bid <\/p>\n
    was not accompanied by the requisite payment of the earnest money <\/p>\n
    deposit.\n<\/p>\n
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                                                        12                        wp2218.10.sxw\n    ssm\n\n\n    13     In   view   of   the   finding   that   we   have   arrived   at   on   the   first \n\n\n\n\n                                                                                       \n<\/pre>\n
    question,   the   second   submission   would   cease   to   have   practical <\/p>\n
    relevance.   Even on the assumption that the Petitioner submitted a <\/p>\n
    demand draft of earnest money,  the bid which was submitted by the <\/p>\n
    Petitioner was below the reserve price and was therefore not a valid <\/p>\n
    bid   that   was   required   to   be   considered.    In   any   event,   the   rival <\/p>\n
    contentions on the second issue to which we have made a reference <\/p>\n
    earlier,   raise   disputed   questions   of   fact.     Even   if   the   Petitioner,   as <\/p>\n
    contended by him, submitted a demand draft for the earnest money <\/p>\n
    deposit, the bid, which was below the reserve price was liable to be <\/p>\n
    rejected and has been correctly rejected on that ground.\n<\/p>\n
    14     Above all, this Court must be guided by the principle that a party <\/p>\n
    who   seeks   equitable   relief   in   the   exercise   of   the   extra   ordinary <\/p>\n
    jurisdiction under Article 226, should not be dis-entitled to reliefs on <\/p>\n
    the ground of its conduct.  In this case, as the record before the Court <\/p>\n
    shows, the conduct of the Petitioner was not bonafide.   Even on the <\/p>\n
    first occasion the Petitioner sought and was granted time by the Debts <\/p>\n
    Recovery Appellate Tribunal by its order dated 14 May 2010, to come <\/p>\n
    forward with a settlement of the dues of the bank.   On a statement <\/p>\n
    made by the Petitioner, the auction that was scheduled was stayed.\n<\/p>\n
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                                                      13                       wp2218.10.sxw\n    ssm\n\n\n<\/pre>\n
    Subsequently, on 17 May 2010, the Appellate Tribunal noted that the <\/p>\n
    request made before the Tribunal on the previous date, was not honest <\/p>\n
    and was made only to secure a stay. The interim order staying the <\/p>\n
    auction was vacated. The Petitioner participated in the first auction <\/p>\n
    and was unable to pay the remaining balance of the purchase price <\/p>\n
    upon which the auction had to be cancelled and the property was re-\n<\/p>\n
    advertised.     Despite   having   knowledge   of   the   fact   that   the   reserve <\/p>\n
    price   was  Rs.14.62  crores,   below  which  the  property  would  not   be <\/p>\n
    sold, and having quoted a price of Rs. 15.05 crores in the first auction, <\/p>\n
    the   Petitioner   submitted   a   bid   only   of   Rs.5   crores,   on   the   second <\/p>\n
    occasion.\n<\/p>\n
    15     The Petitioner has taken a chance on a speculative assumption <\/p>\n
    that bids at the auction would be below the reserve price.  In fact, the <\/p>\n
    submission of the Petitioner is that this was a part of a strategy.  The <\/p>\n
    bank having received bids in excess of the reserve price and having <\/p>\n
    confirmed   the   highest   bid,   we   have   not   found   any   merit   in   the <\/p>\n
    grievance of the Petitioner.\n<\/p>\n
    16     For all these reasons, we do not find any reason to entertain the <\/p>\n
    grievances   of   the   Petitioner   in   the   exercise   of   the   extra   ordinary <\/p>\n
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    jurisdiction under Article 226 of the Constitution.   The Petition shall <\/p>\n
    stand dismissed. No costs.\n<\/p>\n
    17    In view of the disposal of the Writ Petition, Notice of Motion No. <\/p>\n
    634 of 2010 does not survive and is disposed of, accordingly.\n<\/p>\n
      (ANOOP V. MOHTA, J.)                  (DR. D.Y. CHANDRACHUD, J.)<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 16:45:13 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Goldie Sud vs Punjab National Bank & Ors on 10 January, 2011 Bench: Dr. D.Y. Chandrachud, Anoop V.Mohta 1 wp2218.10.sxw ssm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 2218 OF 2010 WITH NOTICE OF MOTION NO. 634 OF 2010 Goldie Sud …..Petitioner Vs. Punjab […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-21415","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nGoldie Sud vs Punjab National Bank & Ors on 10 January, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/goldie-sud-vs-punjab-national-bank-ors-on-10-january-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Goldie Sud vs Punjab National Bank & Ors on 10 January, 2011 - 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