(Per : HONOURABLE MR.JUSTICE D.H.WAGHELA) The appellant has invoked clause 15 of the Letters Patent to challenge order dated 29.12.2011 in Special Civil Application No.803 of 2010 of learned Single Judge of this Court whereby the appellant's petition was dismissed with the observation that no leniency could be shown to the petitioner by exercising extraordinary jurisdiction under Articles 226 and 227 of the Constitution. The prayers in the original petition of the appellant were to the effect that the respondent Bank may be prevented from taking over possession of residential premises of the appellant and sale proceedings initiated by the Bank against the appellant may be set aside.
There is no dispute about the facts that the appellant had borrowed money from the respondent No.1-Bank and upon his failure to pay the amount of loan with the interest accrued thereon, judgment and decree dated 16.12.2002 was made by the Joint Registrar and Member of Board of Nominees at Bhavnagar in Summary Suit No.129 of 2002. Thereafter pursuant to the execution proceedings, the property in question of the appellant came to be auctioned and sale certificate was issued to the highest bidder. It was at that stage, as late as in the year 2010 that the appellant approached this Court by way of writ petition. After exhaustively dealing with the contentions and arguments of the appellant, learned Single Judge dismissed the petition by impugned judgment.
Learned counsel Mr. Hiren Modi appearing for the appellant vehemently argued that, as a matter of fact the appellant's house was not properly auctioned and it being the only residential accommodation of the appellant which the appellant's father-in-law was now prepared to buy at much higher price, the appellant and the Bank ought to be granted some relief and time in the interest of justice. Even as no illegality could be pointed out by him as such from the impugned judgment, as for the auction held by the Bank, it was only argued that three highest bidders had made a cartel as was evident from the demand drafts of EMD issued by same Bank with sequential numbers. It however could not be denied that pursuant to the advertisement for auction of the property not less than 15 bidders had submitted their bids and respondent No.2 herein turned up to be the highest bidder. Therefore, as on the date of the auction, the highest bid was accepted by the Bank. It was, however, submitted that out of the fifteen bidders only three bidders were invited and allowed to offer higher price. On the other hand, even as the auction was held on 07.12.2009 the appellant first moved the High Court only in February 2010. As recorded in the impugned judgment, the respondent Bank has already accepted bid of respondent No.2 and no averment was made in the petition to the effect that there was a bidder who was ready and willing to offer higher price than the price offered by respondent No.2, who was the highest bidder. A finding of fact is also recorded in the impugned judgment to the effect that multiple avenues were resorted by the petitioner or his guarantor just to restrain the respondent Bank from executing the judgment and award dated 06.12.2002 only with a view to delaying recovery of dues of the Bank.
In the above set of facts, as no illegality worth the name could be pointed out in the impugned judgment the appeal is liable to be dismissed. Even as the above order was dictated in the open Court, learned counsel Mr. Modi requested that in view of the interim relief granted to the appellant having been operative and having been extended upto 16.01.2012, it may be further extended by 15 days for giving a chance to the appellant to approach the higher forum. Therefore, the appeal as well as the Civil Application are summarily dismissed subject to the direction that the interim relief granted in the original petition shall stand extended upto 2nd February 2012.
[D.
H. WAGHELA, J.] [N.
V. ANJARIA, J.] Amit Top