Single judge allowed the writ petition filed by a purchaser challenging forfeiture of deposit after auctioned machinery was not available. Court held the auction was on as-is basis andavailability issues were not adjudicable in writ. Petitioner lacked bona fides.
Petition found devoid of merit and disposed of with no costs awarded.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 17TH DAY OF SEPTEMBER 2013
BEFORE
THE HON’BLE MR. JUSTICE A S BOPANNA
WRIT PETITION No.29914/2011 (GM-KSFC)
BETWEEN:
R K MURTHY S/O RAJAGOPALACHAR AGED 45 YEARS R/A 6TH MAIN, 2ND CROSS SHANKARAPURA, MANDYA ... PETITIONER (BY SRI PRAKASH M H & SRI I SPRAMOD CHANDRA, ADVS.)
AND:
(BY SRI GURURAJ JOSHI, ADV.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO QUASH THE IMPUGNED LETTER DATED 27.11.2009 VIDE ANNEXURE O ISSUED BY THE RESPONDENT NO.2.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING :
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O R D E R
The petitioner is before this Court assailing the letter dated 27.11.2009 impugned at Annexure-O to the petition.
had issued a notification dated 03.02.2009 inviting bids from the interested parties to purchase the movable properties of M/s. Gurushree Marbles to whom the respondents had advanced loan and the said proceedings was taken to recover the said loan. The petitioner is stated to be the successful bidder in respect of the auction conducted by the respondents. The petitioner had quoted a sum of Rs.1,30,000/- for the machineries which were offered for sale. Subsequently, the petitioner is said to have noticed that all the machineries for which he had offered his bid were not available and therefore, the petitioner had addressed communication to the respondents indicating that he would not be in a position to lift the machineries as the machineries for which he had quoted are not available. The parties had exchanged
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correspondence between them and by the impugned communication dated 27.11.2009, the respondents had indicated that the proceedings had been cancelled and the amount deposited by the petitioner would be forfeited. The petitioner in that regard had approached the District Consumer Forum, Mandya, in M.D.F.No.155/2009 which was dismissed on 28.01.2011. Pursuant thereto the instant petition has been filed.
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listed and in any event, after having inspected the same, the bid had been submitted and it was accepted as well. Initially, when the petitioner had raised certain objections, the same had been replied and the petitioner had been intimated that the available materials could be taken by him. It is pointed out that at that juncture, he did not seek to rescind from the contract to proceed further and at this juncture, making such allegation, cannot be accepted.
view the fact that the issue relating to the auction having been conducted and the petitioner having been the successful bidder not being in dispute, the only question is as to whether the challenge raised by the petitioner to the impugned communication dated 27.11.2009 could be accepted in the instant petition. First and foremost, what is necessary to be noticed is that the auction conducted is in respect of certain movables. The petitioner, who had participated in the said auction, certainly, would have to bid for the same with open eyes. Though it is contended
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at this juncture that the machineries as listed in Annexure-F which was enclosed to the letter dated 20.03.2009 is not available and when the respondents contend that the machineries were sold on as is where is basis and the petitioner had bid after satisfying himself, the disputed question with regard to the number of machineries that had been offered for sale and the bid that had been offered by the petitioner cannot be in any event adjudicated in a writ petition.
noticed in the instant case is that subsequent to the issue of impugned communication dated 27.11.2009, the petitioner had approached the District Consumer Forum, Mandya, in M.D.F.No.155/2009. Though it is contended that the Consumer Forum during the course of the order has made some observation that the petitioner would not answer the definition of the ‘Consumer’, a detailed perusal of the order would indicate that notwithstanding the same, the forum has proceeded to consider the merits of the rival contentions, more particularly, after
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appointing the Commissioner to inspect the premises and take note of the machineries that were available and the
conduct of the parties with regard to the same.
that despite the Commissioner having listed the machineries that were available and were offered to the petitioner, the petitioner did not choose to receive the same. It is in that circumstance, the Forum was of the view that the grievance put forth by the petitioner cannot be accepted. If this aspect of the matter is also kept in view, I am of the opinion, that the petitioner even if was aggrieved by the fact that all machineries were not available, if not seeking to rescind from the contract, the petitioner could have also received the materials without prejudice and could have raised the issue with the respondents relating to the shortfall, but the manner in which the petitioner has dragged on the proceedings would indicate that the petitioner did not have bonafide intention. In any event, at this juncture, it is not in dispute that the machineries have been stolen and the
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investigation in that regard is being conducted.
Therefore, in any event, to the extent of the challenge made to the communication dated 27.11.2009 before this
Court in this writ petition, it would not be sustainable.
Accordingly, the petition being devoid of merit is disposed of.
No costs.
Sd/-
JUDGE
akc/bms
3 issues framed by the court
Whether the writ court can adjudicate disputes regarding the counting and availability of machinery in an 'as is where is' auction.
Whether the petitioner exercised bona fide intention to lift the materials when they were not available.
Whether the communication forfeiting the bid can be sustained when the petitioner approached the Consumer Forum.
1 provisions across 1 enactments
R K Murthy
Karnataka State Financial Corporation
A S Bopanna
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
