Dismissed

Sanjay Kumar v. S.B.I. & Ors.

Punjab & Haryana HC21 May 2012CR/1974/2012

Case brief

AI extract

What is this about?

This revision petition challenged an executing court order dismissing objections to a property sale. The court noted the petitioner raised procedural violations after significant delay, without using available deposit mechanisms, and held the petition was not bona fide.

What did the court decide?

The civil revision petition challenging the sale order was dismissed in view of the petitioner's lack of bona fides and delayed filing.

Sanjay Kumar Vs S.B.I. & Ors. — Execution and Attachment | Punjab & Haryana HC (2012)

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Civil Revision No. 1974 of 2012 [1]

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Civil Revision No. 1974 of 2012 (O&M) Date of decision: 21.5.2012

Sanjay Kumar

.. Petitioner

State Bank of India and others

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.. Respondents

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CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL

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Present: Mr. Adarsh Jain, Advocate for the petitioner.

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Rajesh Bindal J.

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Challenge in the present petition filed by the judgment-debtor is to the order dated 12.3.2012, passed by the learned executing court, whereby the objections filed by the petitioner after sale of the mortgaged property, were dismissed.

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Learned counsel for the petitioner submitted that there is total violation of the mandatory procedure established in law for sale of the property by the court. In the present case, provisions of Order 21 Rules 54 (1-A) and 66(2) CPC have been violated, which require a notice to be issued to the judgment-debtor for settling the terms of proclamation of sale and the procedure to be adopted for proclamation of sales by public auction. In the present case, no notice was issued before settling the terms of proclamation of sale; minimum value of the property in question was not fixed; place of auction was not specified and neither the decretal amount sought to be recovered nor the property attached was specified. To show his bonafides, the petitioner is ready to pay some amount. The sale being bad on that account deserves to be set aside. In support, reliance was placed upon Desh Bandhu Gupta v. N. L. Anand & Rajinder Singh, (1994) 1 SCC 131; Ambati

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Civil Revision No. 1974 of 2012 [2]

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Narasayya v. M. Subba Rao and another, 1989 Supp. (2) SCC 693; Hirabai v. Hanumanth Krishnaji Bhide and others, (1996) 10 SCC 747; D. S. Chohan and another v. State Bank of Patiala, (1997) 10 SCC 65 S. Mariyappa (dead) by LRs. and others v. Siddappa and another, (2005) 10 SCC 235; Sai Enterprises v. Bhimreddy Laxmaiah and another, (2007) 13 SCC 576 and Mahakal Automobiles and another v. Kishan Swaroop Sharma, (2008) 13 SCC 113.

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In addition to the legal submissions made by learned counsel for the petitioner, as have been noticed above, it was also submitted that it is a case in which suit for recovery was filed by the bank in the year 1996, which was decreed on 26.11.2001 for a sum of 2,59,950/- plus interest . The loanee-deceased Baldev Prakash had raised a loan of 1,35,000/- by mortgaging the property in question which has been sold by way of auction. Baldev Prakash has now expired. The petitioner, who is his son, was also guarantor of the loan.

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Heard learned counsel for the petitioner and perused the paper

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book.

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After passing of the decree in the year 2001, the judgmentdebtor did not deem it appropriate to pay the decretal amount. The bank filed execution on 12.6.2003. However, no recovery could be effected as the mortgaged property could not be sold for one reason or the other, the net result being that the bank was not able to recover the decretal amount.

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It is mentioned in the petition itself that during the period the execution remained pending, objections against the execution of decree were filed and were dismissed. Once even date of auction was also fixed, but no auction could be conducted. Now when the property has been sold more than 10 years after the passing of the decree and 8 years after filing of the execution by the bank, the petitioner filed objections raising technical pleas regarding non-settlement of terms for proclamation of sale or the procedure followed. To show his bonafides, the petitioner had even offered to pay some amount. However, the fact remains that the conduct of the petitioner, the manner in which the proceedings have continued, lacks bonafides. Had the judgment-debtor been serious to pay the decretal

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Civil Revision No. 1974 of 2012 [3]

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amount, the same should have been paid immediately after the decree was passed in 2001. It was not done. The bank had to file execution in the year 2003. Even thereafter the matter was prolonged for a period of more than 8 years. After the auction had been conducted, the objections have been filed. Even at this stage, had there been any bonafides and intention of the petitioner to pay the decretal amount and settle the dispute once for all, the petitioner could very well avail of the rights available to a judgment debtor under Order 21 Rule 89 CPC by depositing the amount in terms thereof. Even that was not done. The rules or procedure are not meant to be misused in the manner, it has been done in the present case. The conduct of the petitioner being not fair, this court would not like to interfere with the impugned order.

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Accordingly, the present petition is dismissed.

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(Rajesh Bindal) Judge

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21.5.2012 mk

Sanjay Kumar v. S.B.I. & Ors.

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Sanjay Kumar v. S.B.I. & Ors.

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