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Saturday, September 10, 2016

Section 76 of the Multi State Cooperative Societies Act, 1984=Without availing of the procedure provided by Rule 37 (13) of the Multi State Co-operative Society Rules, 2002 by which the defaulter/ borrower could approach the authorities with an amount of 5% to be paid to the auction purchaser together with the full amount of the outstanding loan and expenses of attachment and sale to the decree holder, with interest thereon, within 30 days of confirmation of sale. If this were done, the said sale could have been set aside. Since the borrower did not repay at any stage the money borrowed by him, the borrower filed a Writ Petition being Writ Petition No. 325 of 2007 dated 21.6.2007 before the High Court of Bombay at Goa to quash both the award and the certificate of sale accorded in favour of the Appellant.=material irregularity in conducting the sale. For the petitioner to make out such a ground, he has first to apply to the recovery officer within 30 days from the date of sale. And further, the appellant has to make out a case that he has sustained substantial injury by reason of such irregularity. = A charge of malafides has to be made out with great clarity and particularity. Also, the appellant cannot claim to be in the dark as every auction sale was publicly advertised in newspapers. = LUDOVICO SAGRADO GOVEIA Vs. CIRILA ROSA MARIA PINTO & ORS.

                                                                  REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL NO.8756 OF 2016


Ludovico Sagrado Goveia                            …Appellant

                             Versus

Cirila Rosa Maria Pinto and Ors.                  ...Respondents




                               J U D G M E N T


R.F.Nariman, J.


The present appeal is filed by the successful purchaser at an  auction  held
in execution of an order dated  5.10.2010  of  the  Assistant  Registrar  of
Cooperative  Societies  passed  under  Section  76  of   the   Multi   State
Cooperative Societies Act,  1984  [hereinafter  referred  to  as  “the  1984
Act”]. The brief facts of the present appeal are as follows.

Respondent No. 3 in the High Court, as Proprietor  of  M/s  Gable  Builders,
obtained a loan of Rs. 40 lacs from the  Mapusa  Branch  of  the  Goa  State
Cooperative Bank Ltd. The said  loan  was  sanctioned  for  the  purpose  of
construction of a Bungalow. By a deed of  mortgage  executed  on  2.12.1997,
the said loan was secured by mortgaging the western part  of  the  scheduled
property admeasuring 8000 sq. mts. The principal borrower  failed  to  repay
the loan installments. That being so, recovery  proceedings  were  initiated
under Sections 74 and 76 of the said Act by the Bank against respondent  No.
3 and two sureties of the said loan. The Assistant Registrar of  Cooperative
Societies, by an Award dated 5.10.2007,  noticed  that  despite  being  duly
served summons by Registered post A.D., all  the  three  opponents  remained
absent. As a result, an ex-parte award was  passed  holding  all  the  three
opponents jointly and severally liable to pay the loan dues amounting to  Rs
55,04,583/- .  It  may  be  mentioned  that  interest  was  payable  at  21%
compounded under the said deed of mortgage dated 2.12.1997.

A demand notice dated 12.6.2001 was then issued by the Bank  under  Rule  22
of the Multi State Co-operative Society Rules, 1985 against  all  the  three
said persons for  a  principal  amount  of  Rs.  60,59,646/-  together  with
further interest at 19% per annum from 1.4.2001 till the date of payment.

In spite of receiving the said notice, the  defaulters  failed  to  pay  any
amount towards bank dues, and the bank then  referred  the  said  award  for
execution to the Sale and Recovery Officer, Regional Office at  Verem,  Goa.
The said Recovery Officer issued a proclamation notice for  sale  by  public
auction of the mortgaged property by  publishing  a  notice  dated  2.1.2002
which was duly published in  the  Daily  Herald  on  5.1.2002.  Nobody  came
forward in response to the said notice. Between January  2002  and  February
2007 several proclamation notices were issued – six  in  all-  to  sell  the
said mortgaged property, but no bidders came forward to  purchase  the  said
property. The Bank then decided to  sell  the  said  mortgaged  property  by
adopting the mode of selling property by  sealed  tender.  Accordingly,  the
Sale and Recovery Officer issued a tender  notice  dated  18.3.2007  calling
for sealed tenders. The said notice was published in a local newspaper  “The
Tarun Bhagat” also of the same date. As per the said tender  notice,  sealed
quotations were invited from the public on or before 23.3.2007.

Two sealed tenders were received on 20.3.2007.  A  bid  of  Rs.  86,00,000/-
received from the appellant in the  present  appeal  was  found  to  be  the
highest and accordingly, since the appellant paid the entire bid  amount  of
Rs. 86,00,000/-, a Sale Certificate in favour of the  appellant  was  issued
on 23.4.2007.

Without availing of the procedure provided by Rule  37  (13)  of  the  Multi
State Co-operative Society Rules, 2002  by  which  the  defaulter/  borrower
could approach the authorities with an amount  of  5%  to  be  paid  to  the
auction purchaser together with the full amount of the outstanding loan  and
expenses of  attachment  and  sale  to  the  decree  holder,  with  interest
thereon, within 30 days of confirmation of sale.  If  this  were  done,  the
said sale could have been set aside. Since the borrower  did  not  repay  at
any stage the money borrowed by him, the  borrower  filed  a  Writ  Petition
being Writ Petition No. 325 of 2007 dated 21.6.2007 before  the  High  Court
of Bombay at Goa to quash  both  the  award  and  the  certificate  of  sale
accorded in favour of the Appellant.

By the impugned judgment dated 23.12.2013, the High Court has held that  the
Multi State Co-operative Societies Act,  1984  was  repealed  by  the  Multi
State Co-operative Societies Act, 2002, [hereinafter  referred  to  as  “the
2002 Act”] which Act came into force on 19.8.2002.  According  to  the  High
Court, the new Act deems an award passed by the Assistant  Registrar  as  an
award  in  an  arbitration  case,  which  is  executable  only   under   the
Arbitration and Conciliation Act, 1996  [hereinafter  referred  to  as  “the
1996 Act”], and this being the case, the auction proceedings were set  aside
by the High Court stating that the award dated 5.10.2002 would be liable  to
be executed only in  the  manner  provided  by  the  1996  Act.  It  is  the
correctness of this judgment that has to be inquired  into  in  the  present
appeal.

Learned counsel for the appellants has placed  the  relevant  provisions  of
both the 1984 Act and 2002 Act, and has  relied  in  particular  on  Section
126(6) of the 2002 Act to contend that all legal proceedings that  had  been
initiated under the 1984 Act would continue under that Act. This  being  the
case, it is clear that as execution  proceedings  were  initiated  prior  to
19th August, 2002, which is the date of coming into force of the  2002  Act,
the said proceedings would be saved despite repeal of the 1984  Act  by  the
2002 Act.

On the other hand, learned counsel appearing on behalf  of  the  respondent,
argued that, under the 2002 Act, the 1996 Act  alone  would  get  attracted,
and that, therefore, the High Court judgment was  correct.  Learned  counsel
further argued that even if the impugned judgment  were  to  be  set  aside,
other points remained to be argued in the Writ Petition so that  the  matter
could then be remanded back to the High Court for further  consideration  of
these other points.

We have heard learned counsel for  the  parties.  Before  dealing  with  the
contentions raised before us it will be important to set  out  some  of  the
relevant statutory provisions.

“Multi-State Co-operative Societies Act, 1984

74. (1) Notwithstanding anything contained in any other  law  for  the  time
being in force, if any dispute (other than a dispute regarding  disciplinary
action  taken  by  a  multi-State  co-operative  society  against  its  paid
employee or an industrial dispute as defined in clause (k) of section  2  of
the Industrial Disputes Act, 1947) touching the constitution, management  or
business of a multi-State co-operative society arises-
(a)  among members, past members and persons claiming through members,  past
members and deceased members, or
(b)    between a member, past member or a person claiming through a  member,
past member or deceased member and the  multi-State   co-operative  society,
its board or any officer, agent or employee of the multi-State  co-operative
society or liquidator, past or present , or
(c)      between the multi-State co-operative society or its board  and  any
past board, any officer, agent or employee, or any past officer, past  agent
or past employee or the nominee,  heirs  or  legal  representatives  of  any
deceased officer, deceased agent, or deceased employee  of  the  multi-State
co-operative society, or
(d)     between the multi-State co-operative society and  any  other  multi-
State co-operative society, between a multi-State co-operative  society  and
liquidator of another multi-State co-operative society  and  the  liquidator
of another multi-State co-operative society.
Such dispute shall be referred to the Central Registrar for decision and  no
court shall have jurisdiction to entertain any suit or other proceedings  in
respect of such dispute :
      Provided that all disputes in which a  national  co-operative  society
is a party shall be  referred  to  the  Central  Registrar  or  any  officer
empowered to exercise the powers of the Central Registrar.

(2)   For the purposes of sub-section (1), the following shall be deemed  to
be disputes touching the constitution, management or business  of  a  multi-
State co-operative society, namely :-
(a)    a claim by the multi-State  co-operative  society  for  any  debt  or
demand  due  to  it  from  a  member  or  the  nominee,   heirs   or   legal
representatives of a  deceased  member,  whether  such  debt  or  demand  be
admitted or not;
(b)      a claim by a surety against the principal debtor where  the  multi-
State co-operative society has recovered  from  the  surety  any  amount  in
respect of any debt or demand due to it  from  the  principal  debtor  as  a
result of the default of the principal debtor, whether such debt  or  demand
is admitted or not;

(3)    If any question arises whether a  dispute  referred  to  the  Central
Registrar is or is not a dispute touching the  constitution,  management  or
business of a multi-State co-operative society, the decision thereon of  the
Central Registrar shall be final and shall not be called in question in  any
court.

76.   Settlement of disputes.-  (1)  The Central Registrar may,  on  receipt
of the reference of dispute under section 74,-

     (a)   elect to decide the dispute himself, or

     (b) transfer it for disposal to any other person who has been  invested
by the Central Government with powers in that behalf.

(2)  The Central Registrar may  withdraw  any  reference  transferred  under
clause (b) of sub-section (1)  and decide it himself or refer the  same  for
decision  to  any  other  person  who  has  been  invested  by  the  Central
Government with powers in that behalf.

(3)   The Central Registrar or  any  other  person  to  whom  a  dispute  is
referred for decision under this section may, pending the  decision  of  the
dispute, make such interlocutory orders as he  may  deem  necessary  in  the
interest of justice.

85.  Execution of decision, etc.  –  Every  decision  or  order  made  under
section 30. Section 31, section 73, section 76, section 90,  section  92  or
section 93 shall, if not carried out.-

(a)  on a  certificate  signed  by  the  Central  Registrar  or  any  person
authorized by him in writing in this behalf, be deemed to be a decree  of  a
civil court and shall be executed in the same manner as if it were a  decree
of such court ; or

(b)   where the decision or order provides for the  recovery  of  money,  be
executed according to the law for the time being in force for  the  recovery
of arrears of land revenue :

    Provided that any application for the recovery in  such  manner  of  any
sum shall be made –

 To the Collector and shall be accompanied by a certificate  signed  by  the
Central Registrar or by any person authorized by  him  in  writing  in  this
behalf ;

Within twelve years from the date fixed in the decision or order and  if  no
such date is fixed, from the date of the decision or order, as the case  may
be; or

(c)   be executed by the Central Registrar or any person authorized  by  him
in writing in this behalf, by attachment sale or sale without attachment  of
any property of the person or a  multi-State  co-operative  society  against
whom the decision or order has been made.



Multi-State Co-operative Societies Act, 2002


84. Reference of disputes.-  (1) Notwithstanding anything contained  in  any
other law for the time being in force, if any dispute [other than a  dispute
regarding disciplinary action taken by a  multi-State  co-operative  society
against its paid employee or an industrial dispute as defined in clause  (k)
of section 2 of the Industrial Disputes Act, 1947  (14  of  1947)]  touching
the constitution, management  or  business  of  a  multi-State  co-operative
society arises-

(a)  among members, past members and persons claiming through members,  past
members and deceased members, or

(b)  between the member, past member and persons claiming through a  member,
past member or deceased member and  the  mutli-State  co-operative  society,
its board or any officer, agent or employee of the mutli-State  co-operative
society or liquidator, past or present, or

(c)   between the multi-State co-operative society  or  its  board  and  any
past board, any officer, agent or employee, or any past officer, past  agent
or past employee, heirs or legal representatives of  any  deceased  officer,
deceased  agent  or  deceased  employee  of  the  multi-State   co-operative
society, or

(d)   between the multi-State co-operative and  any  other  multi-State  co-
operative  society,  between  a   multi-State   co-operative   society   and
liquidator of another mutli-State co-operative society  and  the  liquidator
of another multi-State co-operative society.

            Such dispute shall be referred to arbitration.

(2)   For the purposes of sub-section (1), the following shall be deemed  to
be disputes touching the constitution, management or business  of  a  multi-
State co-operative society, namely:-

(a)  a claim by the multi-State co-operative society for any debt or  demand
due to it from a member or the nominee, heirs or legal representatives of  a
deceased member, whether such debt or demand be admitted or not;

(b)   a claim by a surety against the  principal  debtor  where  the  multi-
State co-operative society has recovered  from  the  surety  any  amount  in
respect of any debt or demand due to it  from  the  principal  debtor  as  a
result of the default of the principal debtor, whether such debt  or  demand
is admitted or not ;

(c)   Any dispute arising in connection with the election of any officer  of
a multi-State co-operative society.

(3)   If a question arises whether a dispute referred to  arbitration  under
this section is or is not a dispute touching  the  constitution,  management
or business of a multi-State co-operative society, the decision  thereon  of
the arbitrator shall be final and shall not be called  in  question  in  any
court.

(4)   Where a dispute has been referred  to  arbitration  under  sub-section
(1), the same shall be settled or decided by the arbitrator to be  appointed
by the Central Registrar.

(5)   Save as otherwise provided under  this  act,  the  provisions  of  the
Arbitration and Conciliation Act, 1996 (26  of  1996)  shall  apply  to  all
arbitration under this Act  as  if  the  proceedings  for  arbitration  were
referred for settlement or decision under the provisions of the  Arbitration
and Conciliation Act, 1996.

94. Execution of decisions,  etc.-   Every  decision  or  order  made  under
section 39 or section 40 or section 83 or section 99 or section  101  shall,
if not  carried out,-

(a)  on a  certificate  signed  by  the  Central  Registrar  or  any  person
authorized by him in writing in this behalf, be deemed to be a decree  of  a
civil court and shall be executed in the same manner as if it were a  decree
of such court and such decree shall be executed by the Central Registrar  or
any person authorized by him in writing in this behalf,  by  attachment  and
sale or sale without attachment of any property of the person of the  person
or a multi-State co-operative society against whom  the  decision  or  order
has been made; or

(b)  where the decision or order provides for  the  recovery  of  money,  by
executed according to law for the time being in force for  the  recovery  of
arrears of land revenue:

        Provided that any application for the recovery of any sum  shall  be
made in such manner-

To the Collector and shall be accompanied by a  certificate  signed  by  the
Central Registrar or by any person authorized by  him  in  writing  in  this
behalf;

Within twelve years from the date fixed in the decision or order and  if  no
such date is fixed, from the date of decision or order, as the case may  be;
or


(c)   be executed by the Central Registrar or any person authorized  by  him
in  writing  in  this  behalf,  by  attachment  and  sale  or  sale  without
attachment of any property of  the  person  or  a  multi-State  co-operative
society against whom the decision or order has been made.



126. Repeal and saving. (1)  The  Multi-State  Co-operative  Societies  Act,
1984 (51 of 1984) is hereby repealed.



(2) Without prejudice to the provisions contained  in  the  General  Clauses
Act, 1897 (10 of 1897) with respect  to  repeals,  any  notification,  rule,
order, requirement, registration, certificate, notice, decision,  direction,
approval,  authorisation,  consent,  application,  request  or  thing  made,
issued, given or done under  the  Multi-State  Co-operative  Societies  Act,
1984 (51 of 1984) shall, if in  force  at  the  commencement  of  this  Act,
continue to be in force and have effect as if made, issued,  given  or  done
under the corresponding provisions of this Act.



(3) Every multi-State co-operative society, existing immediately before  the
commencement of this Act which has been registered  under  the  Co-operative
Societies Act, 1912 (2 of 1912) or under  any  other  Act  relating  to  co-
operative societies  in  force,  in  a  y  State  or  in  pursuance  of  the
provisions of the Multi-unit Co-operative Societies Act, 1942  (6  of  1942)
or the Multi-State Co-operative Societies Act, 1984 (51 of 1984),  shall  be
deemed to be registered under the corresponding provisions of this Act,  and
the bye-laws of such society shall, in so far as they are  not  inconsistent
with the provisions of this Act, or the  rules,  continue  to  be  in  force
until altered or rescinded.



(4) All appointments, rules and orders made, all notifications  and  notices
issued and all suits and other proceedings instituted under any of the  Acts
referred  to  in  sub-section  (1)  shall,  in  so  far  as  they  are   not
inconsistent with the provisions  of  this  Act,  be  deemed  to  have  been
respectively made, issued and instituted under this Act, save that an  order
made cancelling the  registration  of  a  multi-State  co-operative  society
shall be deemed, unless the society has already been finally liquidated,  to
be an order made under section 86 for its being wound up.



(5) The provisions of this Act shall apply to-

(a) any application for registration of a multi-State co-operative  society;


(b) any application for registration of amendment of bye-laws  of  a  multi-
State co-operative society,

pending at the commencement of this Act and to  the  proceedings  consequent
thereon and to any registration granted in pursuance thereof.



(6) Save as otherwise provided in this Act, any legal proceeding pending  in
any court or before the Central Registrar or  any  other  authority  at  the
commencement of this Act shall be continued to be in that  court  or  before
the Central Registrar or  that  authority  as  if  this  Act  had  not  been
passed.”




The first thing that can be noticed  is  that  an  adjudication  made  under
Section 74 and 76 of 1984 Act can be executed  in  the  manner  provided  by
Section 85 of the 1984 Act. Every decision or order made  under  Section  76
can be executed in three ways. We are  concerned  with  sub-clause  (c),  in
particular, inasmuch, as on the facts of the  present  case,  the  execution
application was made to attach and sell the property of the persons  against
whom the said order has been made.

The scheme of the  2002  Act  which  replaces  the  1984  Act  is  a  little
different. Section 84 of the 2002 Act corresponds to Section 74  and  76  of
the 1984 Act. With this difference – that disputes that have  been  referred
to arbitration are now to be settled or decided  by  the  Arbitrator  to  be
appointed by the Central Registrar, and the provisions,  therefore,  of  the
1996 Arbitration and Conciliation Act shall apply to such arbitration as  if
the proceedings for arbitration were referred  for  settlement  or  decision
under the provisions of the said Act.

Thus it can be seen that Section 84 (4) and (5) of the new Act  provide  for
a different scheme. Equally, Section 94  which  provides  for  execution  of
certain decisions and orders made  under  the  2002  Act,  mentions  various
Sections, but Section 84 is conspicuous by its absence.  This  is  obviously
for the reason that the entire proceedings have now to  be  conducted  under
the 1996 Act, including execution of the arbitration Award  made  under  the
said Act. The  question  before  the  High  Court  was  whether  proceedings
initiated under the old Act could continue under the said Act.

 For this, it is important to advert  to  Section  126(6),  which  has  been
completely missed by the High Court. By this Section, any  legal  proceeding
pending before any authority at the commencement of the 2002 Act   shall  be
continued to be before that authority as  if  the  2002  Act  had  not  been
passed.

The  expression  “legal  proceeding”  has  been  the   subject   matter   of
consideration in the Federal Court decision in Governor-General  in  Council
v. Shiromani Sugar Mills Ltd., AIR 1946 FC 16. In that decision Section  171
of the Indian Companies Act, 1913 came up for  consideration.  That  Section
reads as follows:
“When a winding-up order has been made or a provisional liquidator has  been
appointed, no suit or other legal proceeding  shall  be  proceeded  with  or
commenced against the company except by leave of the court, and  subject  to
such terms as the court may impose.”

The Federal Court held that the  expression  “other  legal  proceedings”  in
Section 171 of the Indian  Companies  Act,  1913  comprises  any  proceeding
initiated by the revenue for recovery of tax dues under  the  Indian  Income
Tax Act. There is no warrant for a narrow construction  of  such  expression
as meaning ‘proceedings only in  courts’.  The  Federal  Court  specifically
held that initiating and putting into force the  collection  of  arrears  of
income tax as arrears of land revenue by authorities under  the  Income  Tax
Act would be a “legal proceeding”.

In Binod Mills Co. Ltd. Ujjain (M.P.)  v.  Suresh  Chandra  Mahaveer  Prasad
Mantri, Bombay, 1987 (3) SCC 99, this Court had to  construe  Section  5  of
the M.P. Sahayata Upkram (Vishesh Upbandh) Adhiniyam,  1978.  Section  5  of
the said Adhiniyam reads as follows:
“5.  Suspension  of  suits  or  other  legal  proceedings   against   relief
undertakings.—As from the date specified  in  the  notification  under  sub-
section (1) of Section 3,  no  suit  or  other  legal  proceeding  shall  be
instituted or commenced or, if pending, shall be proceeded with against  the
industrial undertaking during the  period  in  which  it  remains  a  relief
undertaking any law, usage, custom,  contract,  instrument,  decree,  order,
award, settlement or other provisions whatsoever notwithstanding.”

This Court referred in detail to the aforesaid Federal Court  decision,  and
further went on to hold that Section 5  would  include  execution  petitions
that were filed to execute decrees under the Code of Civil Procedure.

It is thus clear that the proceeding in execution  initiated  under  Section
85(c) of 1984 Act and pending before the  authorities  under  the  said  Act
prior to 19th August, 2002, would continue unhindered by the repeal  of  the
1984 Act by the 2002 Act.  This  being  the  case,  it  is  clear  that  the
judgment under appeal is incorrect, and would have to be set aside.


20.   In the affidavit in reply filed by the bank to the Writ Petition,  the
bank states that  it  has  recovered  the  entire  loan  due  together  with
interest amounting to Rs.85,15,311.75 as against  Rs.86  lakhs  received  in
the  auction  proceedings,  and  admits  that  the  balance  amount  of  Rs.
74,688.25 over and above the loan dues are payable to the  appellant.   This
being the case, and in order to do complete justice between the parties,  it
is ordered that the amount of Rs.74,688.25, together with  interest  at  the
rate of 19 per cent compounded per annum with effect from 1st  April,  2007,
be paid by the bank to the appellants within a period  of  four  weeks  from
the date of pronouncement of this judgment.



21.   Learned counsel for the respondent exhorted  us  to  send  the  matter
back for a decision on grounds (V) and (VI) of the Writ Petition which  read
as follows:

“(V) The Petitioner further submits that the said  Sale  Certificate  issued
by Respondent no.2 pursuant to the  notice  dated  17.3.2007  is  also  void
being passed under the colour of powers, in as much as the  Respondent  no.2
could not give a go-bye to the mandate of Rule 36  of  the  Multi-State  Co-
operative Societies Rules and decided to hold the auction and/ or  open  the
tenders in a period short of 15 days, in as much as the said Rule  does  not
provide for relaxation. On the other  hand,  it  mandates  that  the  notice
shall be of a period of 15 days.

(VI) The entire action of the Respondent No. 2  is  malafide  and  meant  to
favour of the Respondent No.3 in as much  as  facts  stated  above  make  it
clear that, that apart, the conduct of the Respondents in not providing  the
 certified copies of  the proceedings and  keeping  the  Petitioner  in  the
dark when she is the owner of the property and  surreptitiously  seeking  to
hold the auction giving a go-bye to  the  statutory  requirements  makes  it
clear that the Respondent No. 2 acted malafide with  respect and  which  act
vitiates the entire proceedings.”


22.   We find that after six failed attempts to sell the property  we  would
not be inclined to accede to this request at this point in  time.  We  find,
on the facts of this case, that at no stage were the respondent –  borrowers
ready to pay back the entire money borrowed by them as far back as in  1997.
We also find that a Writ Petition was filed in 2007  without  attempting  to
set aside the certificate of sale granted under either Rule 37(13)  or  (14)
of the Multi State Co-operative Society Rules, 2002[1].     It  is  of  some
significance that it is not the appellant’s case that the property has  been
sold  at  an  undervalue.   Also,  as  has  been  pointed  out  above,   the
opportunity to have the sale certificate set aside  under  Rule  37(13)  has
not been availed.  Ground V of the Writ Petition  is  in  reality  a  ground
relatable to Rule 37(14), as,  according  to  the  petitioner,  there  is  a
material irregularity in conducting the sale.  For the  petitioner  to  make
out such a ground, he has first to apply to the recovery officer  within  30
days from the date of sale.  And further, the appellant has to  make  out  a
case  that  he  has  sustained  substantial  injury  by   reason   of   such
irregularity.  Ground V  of  the  Writ  Petition  does  not  even  refer  to
substantial injury for the reason that is not the appellant’s case that  the
property has been sold at a gross undervalue.  No relief  can  be  given  in
the Writ Petition so as to circumvent the statutory provisions contained  in
Rule  37(13)  and  (14).   Ground  VI  is  totally  vague  and  lacking   in
particulars.  A charge of malafides has to be made out  with  great  clarity
and particularity.  Also, the appellant cannot claim to be in  the  dark  as
every auction sale was publicly advertised in newspapers. We, therefore,  do
not accede to counsel’s fervent plea to remit the rest of the Writ  Petition
to the High Court for hearing.

We therefore set aside the judgment under appeal as a whole. There will  not
be any order as to costs.


..............................J.
(DIPAK MISRA)


..............................J.
(R.F. NARIMAN)
New Delhi;
September 6, 2016
-----------------------
[1]    (13) (a) Where immovable property has been sold by the Sale  Officer,
any person either owning such property or holding  an  interest  therein  by
virtue of a title acquired before such sale may apply to have the  sale  set
aside on his depositing with the recovery officer –
       (i) for payment to the purchaser a sum equal to five per cent of  the
purchase money, and
       (ii)  for  payment  to  the  decree-holder,  the  amount  of  arrears
specified in the proclamation of sale as that for the recovery of which  the
sale was  ordered  together  with  interest  thereon  and  the  expenses  of
attachment, if any, and sale and other costs due in respect of such  amount,
less amount which  may  since  the  date  of  such  proclamation  have  been
received by the decre?

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