The Assam Financial Corporation Vittiya Bhavan Vs Jiyaur Pasa

THE ASSAM FINANCIAL CORPORATION AND 3 ORS (INCORPORATED UNDER STATE FINANCIAL ACT 1951) HAVING ITS HEAD OFFICE AT VITTIYA BHAVAN MD SHAH ROAD PALTAN BAZAR GUWAHATI ASSAM-781008 REPRESENTED BY ITS MANAGING DIRECTOR 2:THE MANAGING DIRECTOR ASSAM FINANCIAL CORPORATION VITTIYA BHAVAN MD SHAH ROAD PALTAN BAZAR GUWAHATI ASSAM-781008

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3:THE DEPUTY GENERAL MANAGER (P AND A) ASSAM FINANCIAL CORPORATION VITTIYA BHAWAN MD SHAH ROAD PALTAN BAZAR GUWAHATI ASSAM-781008 4:THE BRANCH MANAGER ASSAM FINANCIAL CORPORATION NALBARI BRANCH DIST-NALBARI ASSAM-781335 -----------Advocate for : MR S HOQUE Advocate for : SC AFC appearing for THE ASSAM FINANCIAL CORPORATION AND 3 ORS

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BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

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ORDER

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Date : 03-09-2025

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Heard Mr. S. Bora, learned counsel for the review petitioner. Also heard

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Mr. S. Hoque, learned counsel for the sole respondent.

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Page No.# 3/11

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The review petitioner, who was the respondent No.1 in WP(C) No.1169/2022, has put to challenge the impugned order dated 07.08.2024, passed in WP(C) No.1169/2022, on the ground that certain vital and relevant facts had not been brought on record by the review petitioner, due to which the impugned order dated 07.08.2024 was passed in WP(C) No.1169/2022.

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The facts of the case is that a Notice for Sale dated 09.11.2021, for a Public Auction of land was issued by the Assam Financial Corporation for the minimum offset price of Rs.75 lakhs. The petitioner's offered price of Rs.75,51,000/- was accepted by the respondent authorities in the public auction held on 25.11.2021, wherein the writ petitioner was the only participant. The writ petitioner, accordingly, deposited earnest money of Rs.7,55,100/- vide banker's cheque dated 22.11.2022. However, in pursuance to negotiations held between the petitioner and the Assam Financial Corporation, the writ petitioner agreed to enhance his bid amount by another Rs.9,000/-, thereby rounding of the bid of the petitioner from Rs.75,51,000/- to Rs.75,60,000/-, on 24.12.2021. The review petitioner, i.e. the Assam Financial Corporation, thereafter, cancelled the public auction vide communication dated 13.01.2022, informing the petitioner about the same and returned the earnest money of Rs.7,55,100/- vide cheque No.803096 dated 13.01.2022. However, the said amount was not encashed by the petitioner.

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The contents of the communication dated 13.01.2022 issued by the respondents, cancelling the auction is reproduced below as follows:-

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Page No.# 4/11

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"Sub: Cancellation of Auction.

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This has a reference to the "Notice for Sale" published by the Corporation in The Assam Tribune & Asomiya Pratidin dice for 2 published you had participated in the in the auction process for purchase of the mortgaged property of the unit mentioned at serial no, 1 of the said notice on 25,11.2021. We are to inform you that, public auction of the asset of the above mentioned unit has been cancelled for technical grounds and fresh sale notice shall be published shortly after due cancelled on hic invite you to participate in the next auction process if you desire so.

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Now, as the process has been cancelled I am directed by our Head Office of the Corporation to refund the Earnest Money deposited by you against the said auction process.

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Accordingly, we are forwarding herewith a cheque bearing No.803096 dated 13.01.2022 drawn on State Bank of India, Nalbari Branch amounting to Rs.7,55,100.00 (Rupees seven lakh fifty five thousand one hundred) only.

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Please acknowledge receipt of the above."

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Being aggrieved with the action of the Assam Financial Corporation, the petitioner filed WP(C) No.1169/2022 on 24.01.2022 and the same was listed before this Court on 23.02.2022, wherein an interim order was passed to the effect that the Assam Financial Corporation should not alienate the auctioned land.

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The prayer of the writ petitioner in WP(C) No.1169/2022 was for a

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direction to be issued to the respondent authorities, to accept the remaining bid amount of Rs.68,04,900/- for the auctioned land.

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The Assam Financial Corporation, thereafter, submitted their affidavit in WP(C) No.1169/2022 and the only stand taken by them in their affidavit was that the Sale Notice dated 09.11.2021 and the public auction held on 25.11.2021 was cancelled on "technical grounds" and that the 10% earnest money had been returned to the writ petitioner. The review petitioner's further stand was that the Sale Notice dated 09.11.2021 at Sl. No. 1 contained two mistakes, which are as follows:-

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"(i). The name of the borrower Sri Bhupendra Ray Baruah was mistakenly published as Sri Bhupendra Rai Baruah.

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(ii). In the details of the mortgage land published in the notice for sale dag No.1918 was omitted due to clerical mistake."

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Thus, the stand of the Assam Financial Corporation in WP(C) 1169/2022 was that due to the unintentional clerical mistake in the Sale Notice dated 09.11.2021, the sale notice had been cancelled.

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On considering the stand taken by the writ petitioner and the Assam Financial Corporation in the writ petition, this Court held that though the public auction had been cancelled on "technical grounds", there was no elaboration as to what was meant by "technical grounds" by the Assam Financial Corporation. This Court, thus, held that the vague explanation given by the Assam Financial Corporation for cancelling the public auction by

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using the term "technical grounds" could not be accepted. This Court held that when the land document had clearly defined the area of the land, which had not been controverted by any person, there was no justification for the Assam Financial Corporation to cancel the auction only because the Assam Financial Corporation had forgotten to add a certain number in the auction notice. The relevant portions of the impugned order dated 07.08.2024 passed in WP(C) No.1169/2022 are reproduced hereinbelow as follows:-

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"13. The contents of the Jamabandi, as reproduced above, shows that land measuring 3 Bighas was covered by Patta No.184 and Dag Nos.1689 & 1918. When the area of the land has been clearly marked out as 3 Bighas in the Jamabandi in relation to Patta No.184, which is in Dag Nos.1689 & 1918 and there is nothing to the effect that the said area has been encroached upon or the said land is overlapping some other land or there is any litigation in respect of the said land, this Court is unable to understand as to what prejudice would be caused to anybody, if the petitioner is handed over the possession of the land and the documents to the land covered by Patta No.184, which is under Dag Nos.1689 & 1918 is mutated in the petitioner's name.

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It is not the case of the respondents that the land measuring 3 bighas is not identifiable or that the defect in the auction notice is not a curable defect. When the Jamabandi has clearly defined the area of the land and has recorded the fact that the 3 bighas land is covered by Patta No.184 in Dag Nos.1689 & 1918, which has not been controverted by any person, this Court is of the view that there is no

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justification for the respondents to cancel the auction, only because the respondents had forgotten to add Dag No. 1918 in the auction notice.

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In respect of the spelling mistake made by the respondents in the "Notice for Sale" with regard to the name of the owner of the land, wherein Bhupendra Rai Baruah has been shown to be Bhupendra Ray Baruah, this Court does not find the said mistake to be a justifiable reason for cancelling the auction, especially when there is no issue raised by any person that Bhupendra Rai Baruah @ Bhupendra Ray Baruah is not the owner of land covered by Patta No.184 in Dag Nos.1689 & 1918. The reasons for cancelling the auction, in the view of this Court, is not reasonable, given the fact that the State respondents have not taken a stand that 3 Bighas of land had not been auctioned in the public auction held on 25.11.2024, in pursuant to the "Notice for Sale" dated 09.11.2021. The alleged clerical mistake made by the respondents in omitting to put Dag No.1918 in the "Notice for Sale", in the view of this Court, is also a curable defect, as the same can always be made right in the Sale Deed, which is to be made subsequently.

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In view of the reasons stated above, this Court is of the view that the impugned "cancellation of auction" letter dated 13.01.2022 issued by the AFC is arbitrary and unreasonable. The same is set aside. The respondents are directed to complete the formalities required for transfer of the land in question in the name of the petitioner, pursuant to the public auction held on 25.11.2024. In this respect, the respondents shall immediately issue a communication to

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the petitioner, within a period of 1 (one) month from today, fixing a date for completion of all formalities, for transfer of the land covered by Patta No.184 in Dag Nos.1689 & 1918 measuring 3 Bighas @ Rs.75,60,000/-, in the name of the petitioner, after the petitioner is given time to pay the balance amount of the auction price."

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The Assam Financial Corporation has now come up with the present review petition, stating that the impugned order dated 07.08.2024 passed in WP(C) No.1169/2022 should be reviewed, as certain vital facts had not been brought to the notice of the Court by the Assam Financial Corporation. He submits that the Assam Financial Corporation had forgotten to inform this Court that a fresh Sale Notice dated 22.01.2022 had been published by the Assam Financial Corporation, which was never put to challenge by the writ petitioner. Further, the review petitioner had also forgotten to mention the fact that the borrower of the loan, namely Sri Bhupendra Ray Baruah had deposited Rs.8 lakhs by cash on 01.02.2022, followed by another amount of Rs.5,11,126/- by cash on 28.02.2022, thereby, liquidating his entire dues amounting to Rs.13,11,120/-. He submits that in view of the borrower of the loan amount, having liquidated the loan amount by 28.02.2022, the fresh Sale Notice published on 22.01.2022 was cancelled on 03.02.2022. The learned counsel for the review petitioner, thus, prays that the impugned order should be recalled and the writ petition should be dismissed.

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Mr. S. Hoque, learned counsel for the writ petitioner, i.e. the sole respondent in the present review petition, submits that the contents of the review petition are an afterthought and all the submissions made on facts in

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the review petition, were never a part of the affidavit-in-opposition filed by the Assam Financial Corporation, i.e. the respondent Nos.1-4, in WP(C) No.1169/2022. He submits that the affidavit filed by the respondent Nos.1-4 in WP(C) No.1169/2022 had been filed on 01.09.2022, i.e. long after the alleged issuance of the fresh Sale Notice dated 22.01.2022 and the alleged repayment of the loan amount in the month of February, 2022 and the cancellation of the fresh Sale Notice dated 22.01.2022 on 03.02.2022.

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However, the said facts were not made a part of the affidavit of the review petitioner filed on 01.09.2022 in WP(C) No.1169/2022. Thus, the new statements/ averments made in the present review petition should not be accepted.

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The counsel for the writ petitioner further submits that when the auction of the property had been settled with the writ petitioner for Rs.75,51,000/-, which was subsequently enhanced to Rs.75,60,000/- on 24.12.2021, it is not understood as to how the review petitioner could have accepted Rs.13,11,120/- as final settlement of the dues with the alleged borrower, thereby losing out on revenue amounting to Rs.62,48,880/-.

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13. I have heard the learned counsels for the parties.

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As can be seen from the submissions made by the counsels for the parties and the documents on record, the writ petitioner had participated in the public auction on the basis of the Sale Notice dated 09.11.2021 and his bid had been accepted @Rs.75,51,000/-. The same was enanhanced to

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Rs.75,60,000/- on 24.12.2022, as agreed by the Assam Financial Corporation and the writ petitioner. The only stand taken by the Assam Financial Corporation in cancelling the public auction held on 25.11.2021, vide communication dated 13.01.2022, was on account of "technical grounds".

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In the affidavit-in-opposition filed by the Assam Financial Corporation on 01.09.2022 in WP(C) No.1169/2022, the grounds for cancelling the Sale Notice was that there were two mistakes mentioned in Sl. No.1 of the said notice. No other reason had been given by the Assam Financial Corporation for cancelling the Sale Notice and the consequential public auction. Keeping the above limited grounds in view, WP(C) No.1169/2022 had been decided by the impugned order.

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The review petitioner has now sought to review the impugned order on the ground that a fresh Sale Notice had been issued on 22.01.2022 and that the loan amount had been repaid in full by the borrower Bhupendra Ray Baruah on 01.02.2022 and 28.02.2022, by depositing Rs.13,11,120/- by cash. No such averment has been made in the affidavit filed in WP(C) No.1169/2022 by the Assam Financial Corporation. Further, there is no mention of the alleged fresh Sale Notice dated 22.01.2022 in the affidavit filed by the Assam Financial Corporation in WP(C) No.1169/2022. The cancellation of the fresh Sale Notice dated 22.01.2022 on 03.02.2022 by the Assam Financial Corporation is also not mentioned in the affidavit filed by the Assam Financial Corporation in WP(C) No.1169/2022. It is surprising to note that the fresh sequence of facts/events, as made out by the review

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petitioner, does not support the case of the review petitioner. The reason being that the loan taken by the borrower had been repaid fully only on 22.08.2022. As such, the cancellation of the fresh Sale Notice dated 22.01.2022 on the ground that the loan had been repaid, could have been done only on a date subsequent to 28.02.2022 and not on 03.02.2022. It is also surprising to learn that when the amount offered/bid of the writ petitioner for the auctioned land had been agreed at an amount of Rs.75,60,000/-, the Assam Financial Corporation had accepted the deposit of Rs.13,11,120/- by cash, as repayment of the loan amount. No reasons have been given by the review petitioner, as to why the above facts were not mentioned in the affidavit of the review petitioner in WP(C) No.1169/2022. On considering the provisions of Order 47 CPC and the fact that a completely new story has been made out by way of the present review petition, without making any attempt to explain the same, this Court is of the view that no grounds for review have been made out by the review petitioner. The story of the review petitioner can only be said to be an afterthought and cannot be accepted by this Court.

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17. The review petition is accordingly dismissed.

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JUDGE

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Comparing Assistant

The Assam Financial Corporation Vittiya Bhavan v. Jiyaur Pasa

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The Assam Financial Corporation Vittiya Bhavan v. Jiyaur Pasa

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