Allowed

Smt S Sumathi v. the Commissioner

Karnataka HC3 Jan 2023WP/36431/2014

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a writ petition seeking refund of the Earnest Money Deposit and interest, quashing an impugned forfeiture order. The Court held that a discrepancy between the advertised and actual site dimensions justified the refund, directing the BDA to return the deposit with 8% interest.

What did the court decide?

Quashed the order of forfeiture; directed refund of Earnest Money Deposit of Rs. 4,00,000/- with 8% interest within eight weeks.

Smt S Sumathi Vs the Commissioner — Property and Title | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA, BENGALURU

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DATED THIS THE 3^RD DAY OF JANUARY, 2023

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BEFORE

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THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

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WRIT PETITION NO.36431 OF 2014(BDA)

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BETWEEN:

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SMT. S SUMATHI, D/O K.SHIVALINGAIAH, AGED ABOUT 35 YEARS, RESIDING AT NO.23, 5^TH CROSS, AZADNAGAR, CHAMARAJPET, BANGALORE-18.

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...PETITIONER

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(BY SRI.DILLI RAJAN, ADVOCATE FOR SRI. K N SUBBA REDDY, ADVOCATE)

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AND:

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THE COMMISSIONER, BANGALORE DEVELOPMENT AUTHORITY, KUMARA PARK ROAD, BANGALORE – 560 001.

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THE FINANCIAL MEMBER, BANGALORE DEVELOPMENT AUTHORITY KUMARA PARK ROAD, BANGALORE – 560 001.

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… RESPONDENTS

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(BY SRI. B S SACHIN, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 3.7.2014 ISSUED BY THE R-2 VIDE ANN-G AND QUASH / SET ASIDE NOTIFICATION AND ALL FURTHER PROCEEDINGS IN PURSUANCE OF THE NOTIFICATION DATED 11.7.2014 SO

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FAR AS IT RELATES TO SERIALNO.47 SITE NO.123 OF NAGARABHAVI, 1^ST STAGE, 3^RD BLOCK IS CONCERN VIDE ANN-H AND ETC.,

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THIS PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-

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ORDER

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Petitioner is knocking at the doors of Writ Court seeking a Writ of Mandamus to the Respondents to repay the Earnest Money Deposit amount of Rs. Four Lakh which she has deposited with them on 21.03.2014 whilst bidding in the e-auction. She also seeks such a refund with interest.

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Learned counsel for the Petitioner vehemently argues that his client has participated in the subject e- auction vide Notification dated 03.02.2014 a copy whereof avails at Annexure-A wherein the dimension of the site in question was specifically stated to be only 95.16 square meters, whereas the site on the ground admeasures much more than that. Counsel further argues that had her client known of larger dimension, she would not have staked her claim in the auction at all

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and therefore, she has withdrawn her bid and sought for the refund of Ernest Money Deposit. This request having been denied, a direction is to be issued to the BDA for refunding the said amount with interest, argues he.

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Learned Sr. Panel Counsel appearing for the Respondent – BDA opposes the Petition contending that site is not something that would be kept in box like Schrödinger’s Cat and it was open for the public view and therefore, Petitioner with eyes wide open having participated in the e-auction, now cannot seek refund of forfeited Earnest Money Deposit after withdrawing the bid

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that was already accepted; therefore the amount deposited has been rightly forfeited. He hastens to add that in any event, no interest is payable should refund be ordered. So contending, he seeks dismissal of the writ petition.

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Having heard the learned counsel for the parties and having perused the petition papers, this

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Court is inclined to grant indulgence in the matter as under and for the following reasons:

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a) the e-auctioning was pursuant to subject Notification wherein dimension of the site in question was stated to be only 95.16 square meters. This was the representation to public. Where certain things are projected to the public at large, the participation takes place with the assumption that what is so projected is true & correct. Should that be belied, the obligation which otherwise would fasten on the participants in the auction can not be fastened. It is so because, there was discussion in the BDA Management vide Note Sheets dated 23.04.2014 at Annexure-F wherein the dimension of the site is stated to be much more than what was projected. Therefore, there is least justification for the Respondent – BDA to forfeit the Earnest Money Deposit.

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b) Learned counsel for the Petitioner is more than justified in arguing that where the money of the citizen is wrongly retained by forfeiture or otherwise, the refund

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has to take place with levy of interest consistent with

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Parliamentary intent as enacted in the Interest Act, 1978. In any event, there is some glowing Polestar that lurks in Section 34 of CPC, 1908 in matters like this. Considering all aspects of the matter, this Court is of a considered view that interest at the rate of 8% needs to be levied on the amount to be refunded within a reasonable period and that would do justice to both the sides.

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In the above circumstances, this Petition succeeds; a Writ of Mandamus issues to the Respondents to refund to the Petitioner the Earnest Money Deposit of Rs.4,00,000/- (Four Lakh rupees) only, within eight weeks with interest at the rate of 8% reckoned from the date of the faulty Endorsement dated 03.07.2014 at Annexure-G which is liable to be ignored.

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If delay in refunding is brooked, interest rate would be 12% and not 8% and further that the consequential

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excess amount may be recovered from the erring officials of the BDA.

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Costs made easy.

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Sd/JUDGE

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Bsv

Smt S Sumathi v. the Commissioner

Case brief

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Smt S Sumathi v. the Commissioner

Case brief

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