TaxTMI 
TaxTMI 
2026 (6) TMI 1221
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....40,000/- as consideration and despite he being provided with the 'sale certificate' as above, the respondent/Bank has never delivered to him possession of the property free from encumbrances, as it was obliged to do in terms of the provisions of law. Hence, being aggrieved the writ petitioner has come before this Court to pray for the relief inter alia that the Bank may be directed to hand him over the peaceful vacant possession of the purchased property or refund him the consideration money, earlier deposited with the Bank. (3). Mr. Biswarup Biswas, learned advocate for the writ petitioner has submitted that it is the statutory duty and obligation of the respondent/Bank to deliver possession of the property purchased by the writ petitioner being successful in the auction process. He says by relying on an information sheet obtained from the website of the Directorate of Land Records and Surveys, West Bengal, that the schedule property sold in auction by the Bank to the petitioner is an undivided and undemarcated part of larger plot of land measuring 0.66 decimal, within the said Mouza. He has further submitted that in the entire process starting from publication of notice, the B....
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....purpose of purchasing the subject property, he was constrained to approach the Bank time and again for delivery of possession. The Bank pacified him with a promise that the physical possession of the property will be delivered to him soon. Thereafter, on 21.05.2014, he had made a representation to the Bank to refund the entire amount, along with interest at the rate of 24% per annum, from the date of deposit, till the date of realisation, as he has mobilised this amount by securing loan from financiers. To his surprise, for the first time, the Bank by its letter dated 03.06.2014 had expressed its inability and also had come out with the fact that Civil Suits are pending before the Civil Courts and that Bank was defending the same. The Bank had promised to file petition for taking physical possession of the property, before the Chief Judicial Magistrate Court. Therefore, according to the learned counsel, the writ petitioner sent a letter dated 11.08.2014, saying that in view of the case pending before the Civil Court, he did not arrange for registration of the sale certificate. Therefore, he sought for a revised sale certificate for registering the same. While writing this letter, t....
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....g the innocent borrowers by selling their properties at throw away prices, not only below the market price, but also below the guideline rate. Such an argument cannot be countenanced and exploitation in any form, whether it be the borrower or auction purchaser is depreciable. So also, the statement that the auction purchaser should be beware of the title, even though it is sold by Bank does not also sound reasonable. The financial institutions, while issuing sale notification, discharge a statutory duty. So much of credibility is naturally fastened on the Bank. It is not expected from a Public Sector Bank, to state that purchaser shall be aware of encumbrances. Even though the auction purchaser should be aware of the encumbrances, which are visible by spot inspection and on enquiry, but the defect in title and the other materials on record shall be disclosed only by the secured creditor, as it would be within its exclusive knowledge. Therefore, it cannot be accepted that the auction purchaser should know each and every minute detail by site inspection. Therefore, the argument that the auction purchaser should be beware of encumbrances notwithstanding the failure of the Bank to disc....
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.... the authorised officer shall obtain valuation of the property from an approved valuer and in consultation with the secured creditor, fix the reserve price of the property and may sell the whole or any part of such immovable secured asset by any of the following methods:- (a) by obtaining quotations from the persons dealing with similar secured assets or otherwise interested in buying the such assets; or (b) by inviting tenders from the public; [(c) by holding public auction including through e-auction mode; or] (d) by private treaty. [Provided that in case of sale of immovable property in the State of Jammu and Kashmir, the provision of Jammu and Kashmir Transfer of Property Act, 1977 shall apply to the person who acquires such property in the State.] ** ** ** ** ** (7) every notice of sale shall be affixed on the conspicuous part of the immovable property and the authorised officer shall upload the detailed terms and conditions of the sale, on the web- site of the secured creditor, which shall include; (a) the description of the immovable property to be sold, including the details of the encumbrances known to....
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....with the writ petition. Neither the notice of sale nor the 'sale certificate' has ever disclosed about the undemarcated and undivided nature of the piece of land proposed to be sold by the Bank. Firstly, the bank cannot transmit a title, which it does not possess by itself in absolute terms. A portion of land which has not been partitioned by metes and bounds remains to be portion thereof and cannot be considered to be under lawful possession and title of any other person. The declaration obtained from official website has shown that the borrower possessed only 5 katha to total 66 decimal of land in the said Mouza. Though a boundary thereof has also been mentioned, no material as to partition thereof as metes and bounds is available. Be it mentioned that with passage of time the principle of caveat emptor (buyer beware) is increasingly giving way to the principle of caveat venditor (seller beware), requiring Banks as the secured creditors to be transparent. (14). So far as the information about the land collected from the website of Directorate of Land Records and Surveys, West Bengal and produced in Court on behalf of the petitioner is concerned, objection has been raised as ag....