TaxTMI 
TaxTMI 
2022 (7) TMI 1505
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....o.1410 Khasra No. 1982/307 (1-16) measuring 1 bigha 16 biswa, Sale Deeds Nos. 920 dt 15.10.1974, Sale Deed No.208 dt. 17.05.1977, Sale deed No.759 dt. 11.06.1985, Sale Deed No.2494 dt. 05.02.1986, Sale Deed No. 2496 dt. 05.02.1986 total measuring 7 bigha 7 biswa as per jamabandi for the year 2006-07, situated in the revenue limit of village Kukar Majra, Hadbast No.64 Tehsil Amloh, District Fatehgarh Sahib in the name of M/s Krishna Agricultural Steel Works, Mandi Gobindgarh. Lot 2: Immovable property comprising of Khata No.936/1411, Khasra No. 1981/307 (2-0) measuring 2 bigha as per jamabandi for the year 2006-07, Deed No.207 dt. 17.05.1977 situated in the revenue limits of village Kukar Majra, Hadbast No.64, Tehsil Amloh, District Fatehgarh Sahib in the name of M/s Pawan Engineering Works. The 1st Lot property was owned by M/s Krishna Agricultural Steelworks, Mandi Gobindgarh and the 2nd Lot property mentioned herein above is owned by M/s Pawan Engineering Works. As per the tender notice, the reserve price of the properties was fixed at 3.95 Crores for the 1st Lot of property, and 1.10 Crores for the 2nd Lot properties. The petitioner submitted a bid on 24.05.2019, and ma....
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....e confirmation letter in his favour, and also for a direction to the respondentBank to issue a 'No Objection Certificate' of the properties in question in favour of the petitioner and get the entries cleared in the revenue record. Alternatively, petitioner also sought refund of 1.8 Crores deposited by the him towards 25% of the bid amount. Events After filing of the Writ Petition While issuing notice of motion, this Court on 27.08.2019, restrained the respondent-Bank from putting the above properties to sale, either by way of tender and e-auction, and this order was extended from time to time. Reply Filed by the Respondent-Bank The respondent-Bank has filed reply along with application for vacating the stay. According to the Bank, the e-Auction/Tender Notice issued by it, contained the following conditions:- "The Sale through e-Auction/by calling Tenders is being held on "AS IS WHERE IS" and "AS IS WHAT IS BASIS". Any other encumbrances know to the Bank- is not known. The Authorized Officer of the Bank shall not be responsible for any charge, lien, encumbrances, or any other dues to the Government or anyone else in respect of properties auctioned. T....
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....te. At this point of time, 3 years later, in our opinion, it would be a travesty of justice to dismiss the Writ Petition on the ground of non-availment of the alternative remedy by the petitioner. Also, as we shall point out later in this judgment, if there is a violation of the provisions of the Act by the respondent-Bank, the Writ Petition can be entertained by this Court, and it is not necessary to relegate the parties to avail alternative remedy. Though counsel for respondents have placed reliance on the decision of the Supreme Court in the case of Aggarwal Tracom Pvt.Ltd. vs. Punjab National Bank Order in SLP No.33514 of 2016 to contend that the Writ Petitions under Article 226 of the Constitution of India cannot be entertained when effective statutory remedy is available to the aggrieved person, in a later judgment rendered in the case of Authorized Officer, State Bank of Travancore and Another Vs. Mathew K.C 2018 (3) SCC 85 , the Supreme Court held that there are well defined exceptions to the rule of exhaustion of alternative remedy as laid down in decision of Commissioner of Income Tax and Others vs. Chhabil Dass Agarwal 2014 (1) SCC 603 and one of suc....
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....018 , a Division Bench of the High Court of Allahabad High Court (Lucknow Bench) held :- "33....xxxxxxxxx 34. In this regard, we would like to mention that relevant provisions of the SARFAESI Act and the Security Interest (Enforcement) Rules have already been quoted wherein sub rule (5) of Rule 8 of the Rules, 2002, provides for publication of the notice into leading newspapers which shall include details as set forth in sub-clause (a) to (f). Sub-clause 6 (f) of Rule 8 provides for publishing of "any other thing which the authorized officer considers it material for a purchaser to know in order to judge the nature and value of the property". In these circumstances, a duty is cast upon the Authorized Officer to publish all details with regard to the property, whether the property has any encumbrances or not, whether the property is a vacant property or is tenanted, whether there is any other charge on the said property, and all other details which is material for the purchaser to know in order to judge the nature and value of the property. 35. In the present case, the advertisement does not disclose any such detail about the property from which it c....
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....rial aspect of the property must have been disclosed by the secured creditor inasmuch as the secured creditor is under a mandate to disclose any aspect which the Authorized Officer considers it material for the purchaser to know in order to judge the nature and value of the property as mandated under rule 8(6). The respondent bank has failed to disclose any such circumstance or material fact from which it could be gathered that the physical possession of the property would be difficult or near impossible. In the aforesaid circumstances the respondent Bank cannot take umbrage of the clause "as is where is" "as it is where it is" in order to deny physical possession of the auction property to the petitioner and to non-suit him. In other words, the respondent cannot shirk away the statutory responsibility to deliver possession of the property free from all encumbrances, to the person who was paid full consideration for the said property. 39. Accepting the contention of the Bank would be absolutely inequitable, wholly arbitrary and may on the contrary permit withholding of necessary information by the secured creditor in relation to its valuation in order to seek a higher pric....
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....due diligence at least at the stage of putting the secured asset to sale, if not at the time of taking the said property as security while granting loans, so that the bidders in the auction can rest assured that the secured creditor has taken necessary measures in this regard and proceed to participate in the auction sale. It also held that ignorance of the secured creditor as to the encumbrances on the property sold by it is no longer an acceptable argument in the light of the decisions of various Courts rejecting the plea that a sale on 'as is where is' basis constitutes a shield of protection. It went on the held that the concept of 'as is where is' and 'as is what is' basis has lost its significance in the current commercial milieu and the principle of caveat venditor is more on the rise as compared to the outdated principle of caveat emptor; that the Transfer of Property Act, 1882, requires the seller to own up to certain duties and it is not open to a responsible bank to take an innocent auction purchaser for a ride by selling to him a tainted property and thereafter claim protection under the principles of 'buyer beware'. It held that the innocent Auction Purchasers....