Case Note & Summary
This judgment arises from an application for modification of an order dated 27th July 2010 passed by the Bombay High Court in Letters Patent Appeal No. 256 of 2010. The original dispute involved recovery of dues by the Akola District Central Co-operative Bank Ltd. from the appellants/judgment debtors, Smt. Shantabai Shriniwas Singhee (since deceased) and her legal representatives. The property in question was mortgaged to the bank and was auctioned to Narendra Shankarrao Raut (respondent no. 6), who deposited 25% of the bid amount. The bank had initiated recovery proceedings under the Maharashtra Co-operative Societies Act. The Letters Patent Appeal was filed against an order in Writ Petition No. 5014 of 2009. In the order dated 27th July 2010, the Court had directed that the auction purchaser could deposit the balance amount but subject to further orders. The present application was filed by the auction purchaser seeking modification to allow him to deposit the balance amount and take possession of the property. The Court considered the submissions of the parties, including the bank's willingness to accept the balance amount and refund the excess to the judgment debtor. The Court allowed the modification, directing the auction purchaser to deposit the balance amount within four weeks, and ordered the bank to refund the excess amount to the judgment debtor after adjusting the dues. The Court also clarified that the auction purchaser would be entitled to possession only after full payment.
Headnote
A) Civil Procedure - Interim Order Modification - Auction Sale - The Court considered an application for modification of an interim order passed in a Letters Patent Appeal concerning recovery of dues by a co-operative bank. The applicant, an auction purchaser, sought permission to deposit the balance bid amount and take possession of the property. The Court allowed the modification, directing the applicant to deposit the balance amount within four weeks, and ordered the bank to refund the excess amount to the judgment debtor after adjusting the dues. (Paras 1-6)
Issue of Consideration
Whether the order dated 27th July 2010 in Letters Patent Appeal No. 256 of 2010 should be modified to allow the auction purchaser to take possession of the property and to direct the bank to refund the excess amount to the judgment debtor.
Final Decision
The Court allowed the application for modification. It directed the applicant/auction purchaser to deposit the balance amount within four weeks. Upon such deposit, the bank was directed to adjust the dues and refund the excess amount to the judgment debtor. The auction purchaser was entitled to possession only after full payment.
Law Points
- Modification of interim order
- auction sale of mortgaged property
- rights of auction purchaser
- deposit of balance amount
- refund of excess amount to judgment debtor
Case Details
2010 LawText (BOM) (10) 166
Civil Application No. 632 of 2010 in Letters Patent Appeal No. 256 of 2010 in Writ Petition No. 5014 of 2009
B.N. Mohta for applicants, A.P. Tathod for respondent nos. 1 and 2, D.B. Patel for respondent nos. 4 and 5
Smt. Shantabai wd/o Shriniwas Singhee (since deceased) by Lrs. Giriraj Shrinivasji Singhee and Dhanraj Shrinivasji Singhee
The Akola District Central Co-operative Bank Ltd. and others
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Nature of Litigation
Application for modification of an interim order in a Letters Patent Appeal concerning recovery of dues by a co-operative bank from judgment debtors.
Remedy Sought
The applicant (auction purchaser) sought modification of the order dated 27th July 2010 to allow him to deposit the balance bid amount and take possession of the auctioned property.
Filing Reason
The auction purchaser wanted to complete the sale by depositing the balance amount and obtaining possession, and the bank sought to recover its dues and refund the excess to the judgment debtor.
Previous Decisions
The Court had passed an order on 27th July 2010 in Letters Patent Appeal No. 256 of 2010, which included a clause regarding the deposit of the balance amount by the auction purchaser subject to further orders.
Issues
Whether the interim order dated 27th July 2010 should be modified to permit the auction purchaser to deposit the balance bid amount and take possession of the property.
Whether the bank should be directed to refund the excess amount to the judgment debtor after adjusting the dues.
Submissions/Arguments
The applicant/auction purchaser submitted that he had deposited 25% of the bid amount and was ready to deposit the balance.
The bank submitted that it had no objection to the modification and was willing to accept the balance amount and refund the excess to the judgment debtor.
Ratio Decidendi
An interim order can be modified to facilitate the completion of an auction sale where the auction purchaser is ready to deposit the balance amount and the bank has no objection, provided that the excess amount is refunded to the judgment debtor.
Judgment Excerpts
This is an application praying for modification of order passed in Letters Patent Appeal No. 256 of 2010 on 27th July, 2010.
In the order dated 27th July, 2010, this Court incorporated following Clause in the order:- 'In the event the auction purchaser deposits the balance amount, the same shall be subject to further orders.'
The learned counsel for the applicant submits that the applicant is ready and willing to deposit the balance amount.
The learned counsel for respondent nos. 1 and 2 submits that the bank has no objection for modification of the order.
In the result, the application is allowed. The applicant is permitted to deposit the balance amount within four weeks from today.
On deposit of the amount, the bank shall adjust the amount towards the dues and refund the excess amount to the judgment debtor.
Procedural History
The original dispute involved recovery proceedings by the Akola District Central Co-operative Bank Ltd. against the judgment debtors. The property was auctioned and the auction purchaser deposited 25% of the bid amount. The judgment debtors filed Writ Petition No. 5014 of 2009, which was dismissed. They then filed Letters Patent Appeal No. 256 of 2010, in which the Court passed an interim order on 27th July 2010. The auction purchaser filed Civil Application No. 632 of 2010 seeking modification of that order to allow deposit of the balance amount and possession. The present judgment disposes of that application.
Acts & Sections
- Maharashtra Co-operative Societies Act:
