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CASE NO.: Appeal (civil)  6760-6761 of 2004

PETITIONER: M/s. Shilpa Shares and Securities and others

RESPONDENT: The National Co-operative Bank Ltd. and others

DATE OF JUDGMENT: 02/05/2007

BENCH: S. B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

MARKANDEY KATJU, J.

1.      These appeals have been filed against the impugned judgment and  order dated 16.1.2003 of the Bombay High Court in writ petition No.  105/2003.

2.      Heard learned counsel for the parties and perused the record.

3.      The appellant had taken a loan from respondent No. 1, which is a co- operative bank registered under the Maharashtra Co-operative Societies Act,  1960 (hereinafter referred to as the ’Act’).  Since the appellant was in default  in payment of the loan, recovery proceedings were taken under the  Maharashtra Co-operative Societies Rules, 1961 (hereinafter referred to as  the ’Rules’).

4.      In pursuance to the recovery, recourse was taken to the procedure for  attachment and sale of the property of the appellant prescribed in Rule 107  of the Rules, framed under the Act.  An auction was held for sale of the  appellants’ properties.  Under Rule 107(11)(g) of the Rules, 15% of the price  of the immovable property has to be deposited by the auction purchaser at  the time of the purchase, and the remaining 85% of the purchase money has  to be paid within 15 days from the date of such sale.  Admittedly, in the  present case, the aforesaid 85% of the purchase money was not paid within  15 days from the date of the sale nor even thereafter.

4.      In Manilal Mohanlal Shah and others vs. Sardar Sayed Ahmed  Sayed Mahmad and another AIR 1954 SC 349, it has been held that in  such circumstances there is no sale at all if the balance purchase money is  not paid within 15 days.  It is not a mere irregularity.  Non-payment of the  said amount renders the sale proceedings a complete nullity.  

5.      In Balram  vs. Ilam Singh and others 1996 (5) SCC 705, it has been  held that the obligation of the purchaser to deposit the full purchase money  within time is a mandatory requirement and non-compliance of the rule  renders the sale a nullity and not a mere irregularity.

6.      In view of the above, we are of the opinion that the auction sale of the  appellants’ property was a nullity, and there was no valid auction sale.    

7.      In view of the above, the appeals are  allowed.  The impugned  judgment is set aside and it is held that there was no valid sale of the  appellant’s property.

8.      We, therefore, direct that the said property be again auction sold after

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advertising it in at least two well-known newspapers having wide  circulation, mentioning therein the date, time and place of the auction sale  and after complying with the procedure under Rule 107 of the Rules.   No  costs.