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CASE NO.: Appeal (civil)  6129 of 2000

PETITIONER: Rosali V.

RESPONDENT: Taico Bank and Ors

DATE OF JUDGMENT: 23/01/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

S.B. Sinha, J.

       A judgment and order dated 8.01.1999 passed by the High Court of  Karnataka at Bangalore in CRP No. 3528 of 1998 is in question before us,  which arises in the following factual matrix.

       M/s. Nellai Small Match Producers Service Industrial Co-op. Society  Ltd. filed a suit against N. Dharmaraj, Respondent No. 2 herein in the Court  of Principal Subordiante Judge in the State of Tamil Nadu for realization of  some amount owing and due to it.  The said suit was decreed.  The said  decree was transferred for execution to the Court of City Civil Judge,  Bangalore.  The matter ultimately was transferred to the Court of the 17th  Additional City Civil Judge, Banaglore.

       A proclamation of sale of immovable property bearing No. 1138/8, II  Main Road, Vijaynagar, Bangalore was issued on 21.10.1988 whereupon the  auction sale was held.  In the said auction sale Smt. Mahadevi S.  Havannavar became the highest bidder having given a bid for a sum of Rs.  3,25,000/-.  The said deal was accepted by the learned Executing Court on  26.10.1988.  It is stated that the said sale was conducted at about 4.00 p.m.  on the said date and keeping in view of the fact that the banks at that time  were closed, the court directed the auction purchaser to deposit the amount  by the next day in the following terms:

"Sale proclamation and warrant not served at spot.   TRD files vakalath for the bidder did accepted  (sic), permitted to deposit 25% of the sale amount  by tomorrow.  Property is free from encumbrances  as it stands for balance of consideration by 11.11."

       It is not in dispute that pursuant to or in furtherance of the said  direction, the auction purchaser deposited the amount of 25% of the sale  amount on 27.10.1988 and deposited the balance amount on 11.11.1988.   

       Smt. Leelavathi, Respondent No. 3 herein, in the meanwhile, had  instituted a suit in the Court of Addl. City Civil Judge Bangalore being O.S.  No. 2493 of 1981 on 17.08.1981 for specific performance of contract against  Respondent No. 2 in respect of the self-same property wherefor a sum of Rs.  1,05,000/- said to have been paid by way of advance.  The said suit was  decreed by the said Civil Judge by a judgment and order dated 20.04.1985.   An appeal was preferred thereagainst before the High Court which was  dismissed by an order dated 6/8.03.1996.

       After the auction sale was confirmed, Respondent No. 3 appears to

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have filed an application purported to be under Order XXI Rule 97 of the  Code of Civil Procedure (Code).  It is not in dispute that by an order dated  11.11.1988 as no objection was filed and the entire amount had been  deposited, the sale was confirmed and the sale certificate was directed to be  issued to the auction purchaser.  Sale certificate on a stamp paper, which had  been furnished in the meanwhile, was issued by the Court on 17.11.1988.  

        It is also stated that the property in question had been allotted by the  Bangalore Development Authority to the original owner.  The Bangalore  Development Authority by a registered deed of sale dated 16.01.1990  transferred the property in favour of Shri Sangamesh G. Havannavar,  husband of the auction purchaser Smt. Mahadevi S. Havannavar as in the  meantime she had died.

       On or about 5.02.1992, the said Shri Sangamesh G. Havannavar  transferred his right, title and interest in the said property in favour of the  appellant herein in terms of a registered deed of sale dated 5.02.1992.

       It is contended that the appellant obtained licence from the appropriate  authority for renovation of the existing ground floor and for construction of  the first floor and pursuant to grant of sanction in this behalf had made  constructions upon incurring a cost of Rs. 8,00,000/- therefor.  He is said to  have been residing therein.

       Appellant herein was not impleaded as a party in the said execution  proceedings.  Respondent No. 3, however, obtained warrant of delivery of  possession of the said property in execution of the decree of specific  performance passed in her favour.  On or about 01.08.1998, the appellant  obstructed in taking possession pursuant to the said warrant of delivery of  possession and eventually filed an application under Order XXI Rule 97, 98,  100 and 101 of the Code.  From the objection filed by Respondent No. 3, it  transpired that the auction sale had allegedly been set aside at the instance of  the decree holder on the premise that the sale was void as it was confirmed  before expiry of 30 days from the date of acceptance of the bid and other  litigations by an order dated 27.09.1996 which is to the following effect:

"Dhr. KAB Jdr. SGK To hear Dhr. and to produce copy of orders in  RFA. Sri MRG for Dhr submits that the sale is void in  view of the confirmation before 30 days and other  litigations.  Hence sale is set aside for these  reasons."

       The said order appears to be vague.  No reason has been assigned in  support thereof.  On what ground the decree holder was permitted to raise  the said  contention was not disclosed.   

       A revision application was filed by the appellant herein before the  High Court which by reason of the impugned judgment has been dismissed.   It appears that the vendor of the appellant had also filed a revision  application and the same was also disposed of by reason of the said  judgment.

       The High Court in its impugned judgment, however, opined that in  view of the fact that the 25% of the bid amount was not deposited on  26.10.1988 and was deposited on 27.10.1988, the provision of Order XXI  Rule 84 was not complied with and in that view of the matter the auction  sale was bad in law. For arriving at the said finding, reliance was placed  upon a decision of this Court in Manilal Mohanlal Shah and Ors. v. Sardar  Sayed Ahmed Sayed Mahamad and Anr. [AIR 1954 SC 349].

       Mr. T.L. Viswanath Iyer, learned senior counsel appearing on behalf

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of the appellant, would submit that the the predecessor of the appellant  having deposited the 25% amount on 27.10.1988 pursuant to or in  furtherance of the order passed by the learned Judge himself, the same  cannot be said to be in contravention of  the provisions of Order XXI Rule  84 of the Code.   

       It was submitted that had an opportunity of hearing been given to the  appellant, he could have shown that the bid having been accepted at 4  O’Clock, there was no other way to deposit the 25% of the bid amount in the  bank and only with a view to obviate the same, the learned Judge directed  the auction purchaser to deposit the said amount on the next day.

       Mr. Iyer would urge that, in any event, non-compliance of Order XXI  Rule 84 of the Code having not been raised by the decree holder, the High  Court committed a manifest error in relying thereupon as also the decision of  this Court in Manilal Mohanlal Shah (supra).

       Mr. S.S. Javali, learned senior counsel appearing on behalf of the  respondents, however, would submit that the judgment debtor and  Respondent No. 2 herein had colluded with the auction purchaser with a  view to defeat the decree of specific performance of contract.  The learned  counsel argued that in the first appeal preferred by Respondent No. 2 against  the judgment and decree dated 20.04.1985 passed in favour of Respondent  No. 3, Respondent No. 2  had undertaken not to sell or transfer the said  property.  The learned counsel contended that the auction sale being mala  fide, this Court should not interfere with the impugned judgment.

       In view of the rival contentions of the parties, as noticed hereinbefore,  the questions which would arise for our consideration are:

(i)     What would be the meaning of the term "immediately" occurring  in Order XXI Rule 84 of the Code, in view of the peculiar facts  and circumstances of this case? (ii)    Whether the sale was void only because it was confirmed before  expiry of the period of 30 days.

       Order XXI Rule 84(1) of the Code reads as under:

"84. Deposit by purchaser and re-sale on default.-- (1) On every sale of immovable properly the  person declared to be the purchaser shall pay  immediately after such declaration a deposit of  twenty-five per cent on the amount of his  purchase-money to the officer or other person  conducting the sale, and in default of such deposit,  the property shall forthwith be re-sold."   

       What would be the meaning of the term "immediately" came up for  consideration before this Court, as noticed hereinbefore, in Manilal  Mohanlal Shah (supra) wherein it was held:

"Having examined the language of the relevant  rules and the judicial decisions bearing upon the  subject we are of opinion that the provisions of the  rules requiring the deposit of 25 per cent of the  purchase-money immediately on the person being  declared as a purchaser and the payment of the  balance within 15 days of the sale are mandatory  and upon non-compliance with these provisions  there is no sale at all. The rules do not contemplate  that there can be any sale in favour of a purchaser  without depositing 25 per cent of the purchase- money in the first instance and the balance within  15 days. When there is no sale within the

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contemplation of these rules, there can be no  question of material irregularity in the conduct of  the sale. Non-payment of the price on the part of  the defaulting purchaser renders the sale  proceedings as a complete nullity. The very fact  that the Court is bound to re-sell the property in the  event of a default shows that the previous  proceedings for sale are completely wiped out as if  they do not exist in the eye of law. We hold,  therefore, that in the circumstances of the present  case there was no sale and the purchasers acquired  no rights at all."

       We are, however, in this case, faced with a different situation.

       Having regard to the fact that the appellant had explained that it was  not possible for his predecessor in interest to deposit the 25% of the amount  immediately after such declaration, as the banks, at that point of time, were  closed and furthermore having regard to the fact that presumably the court in  that view of the matter had directed the auction purchaser to deposit the  amount on the next day, we are of the opinion that it satisfies the  requirements of law.

       It is a well-settled principle of interpretation of a statute that where  literal meaning leads to anomaly and absurdity, it should be avoided. [See   Raghunath Rai Bareja and Another v. Punjab National Bank and Others \026  2006 (13) SCALE  511]

        It is equally well-settled that the Parliament must be held to have  intended to lay down a reasonable statute unless a plain meaning of the Act  leads to different conclusion.  It is trite that a statute must be read  reasonably.  [See Ashok Lanka and Another v. Rishi Dixit and Others   (2005) 5 SCC 598]  

       In Lalit Mohan Pandey v. Pooran Singh and Ors. [(2004) 6 SCC 626],  this Court opined:

"A statute must be construed having regard to the  legislative intent. It has to be meaningful. A  construction which leads to manifest absurdity  must not be preferred to a construction which  would fulfill the object and purport of the  legislative intent."

       [See also State of Himachal Pradesh and Ors. v. Surinder Singh  Banolta, 2006 (12) SCALE 571]

       It is the duty of the court to accept a construction which promotes the  object of a legislation.  [Sanjay Dutt v. State through CBI Bombay (II)  (1994) 5 SCC 410]

       It is also a well-settled principle of law that common sense  construction rule should be taken recourse to in certain cases.

       In Halsbury’s Laws of England (Fourth Edition) Volume 44(1)  (Reissue), it is stated:

"1392. Commonsense Construction Rule. It is a  rule of the common law, which may be referred to  as the commonsense construction rule, that when  considering, in relation to the facts of the instant  case, which of the opposing constructions of the  enactment would give effect to the legislative  intention, the court should presume that the  legislator intended common sense to be used in

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construing the enactment.

1477.   Nature of presumption against absurdity.  It  is presumed that Parliament intend that the court,  when considering, in relation to the facts of the  instant case, which of the opposing constructions  of an enactment corresponds to its legal meaning,  should find against a construction which produces  an absurd result, since this is unlikely to have been  intended by Parliament.  Here ’absurd’ means  contrary to sense and reason, so in this context the  term ’absurd’ is used to include a result which is  unworkable or impracticable, inconvenient,  anomalous or illogical, futile or pointless, artificial  or productive of a disproportionate counter- mischief.

1480.   Presumption against anomalous or illogical  result.  It is presumed that Parliament intends that  the Court, when considering, in relation to the facts  of the instant case, which of the opposing  constructions of an enactment corresponds to its  legal meaning, should find against a construction  that creates an anomaly or otherwise produces an  irrational or illogical result.  The presumption may  be applicable where on one construction a benefit  is not available in like cases, or a detriment is not  imposed in like cases, or the decision would turn  on an immaterial distinction or an anomaly would  be created in legal doctrine.  Where each of the  constructions contended for involves some  anomaly then, in so far as the court uses anomaly  as a test, it has to balance the effect of each  construction and determine which anomaly is  greater.  It may be possible to avoid the anomaly  by the exercise of a discretion.  It may be,  however, that the anomaly is clearly intended,  when effect must be given to the intention.  The  court will pay little attention to a proclaimed  anomaly if it is purely hypothetical, and unlikely to  arise in practice."

       In Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental  Action Group and Others [(2006) 3 SCC 434], this Court observed:

"It is also a fundamental proposition of  construction that the effect of deletion of words  must receive serious consideration while  interpreting a statute as this has been repeatedly  affirmed by this Court in a series of judgments\005"

       While applying the principles of interpretation, the courts are also  required to keep in mind the following two well-settled principles of law:

(i)     Actus Curiae neminem gravabit (an act of Court shall prejudice no  man) [See Satyabrata Biswas and Others v. Kalyan Kumar Kisku  and Others (1994) 2 SCC 266 Ram Chandra Singh v. Savitri Devi  and Ors., (2003) 8 SCC 319,  Board of Control For Cricket in India  and Another Vs. Netaji Cricket Club and Others (2005) 4 SCC 741  and Union of India v. Pramod Gupta (D) By LRs. and Ors. (2005)  12 SCC 1]; and  (ii)    lex non cogit ad impossibilia (the law does not compel a man to do  that what he cannot possibly perform) [See Ram Chandra Singh

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(supra) and Board of Control For Cricket in India (supra)]

       The term "immediately", therefore, must be construed having regard  to the aforementioned principles.  The term has two meanings.  One,  indicating the relation of cause and effect and the other, the absence of time  between two events.  In the former sense, it means proximately, without  intervention of anything, as opposed to "mediately".  In the latter sense, it  means instantaneously.

       The term "immediately", is, thus, required to be construed as meaning  with all reasonable speed, considering the circumstances of the case.  [See  Halsbury’s Laws of England, 4th Edition, Vol. 23, para 1618, p. 1178]

       In a given situation, the term "immediately" may mean "within  reasonable time.  Where an act is to be done within reasonable time, it must  be done immediately.  [See M/s. Gangavishan Heeralal v. M/s. Gopal  Digambar Jain and Others, AIR 1980 MP 119 at 123, Keshava S. Jamkhandi  v. Ramachandra S. Jamkhandi, AIR 1981 Kar 97 at 101, Ramnarayan v.  State of M.P., AIR 1962 MP 93 at 98, R. v. Inspector of Taxes, (1971) 3 All  ER 394 at 398 and R. v. HU Inspector of Taxes, (1972) 1 All ER 545 at 555]

       In Bombay Dyeing (supra), this Court observed:

"In ’The Interpretation and Application of  Statutes’, Reed Dickerson, at p.135 discussed the  subject while dealing with the importance of  context of the statute in the following terms:

"... The essence of the language is to  reflect, express, and perhaps even affect  the conceptual matrix of established ideas  and values that identifies the culture to  which it belongs. For this reason, language  has been called "conceptual map of human  experience"."

       In K.S. Muthu v. T. Govindarajulu and Anr. [2000 (4) SCALE 175],  this Court opined:  

"\005In the circumstances when the Appellant was  not in a position to perform the direction given by  the Court in view of the holiday, the Court cannot  expect the Appellant to perform what is  impossible..."

       In Crawford on Statutory Construction at page 539, it is stated :

"271. Miscellaneous Implied Exceptions from the  Requirements of  Mandatory Statutes, In General.- Even where a statute is clearly mandatory or  prohibitory, yet, in many instances, the courts will  regard certain conduct beyond the prohibition of  the statute through the use of various devices or  principles.  Most, if not all of these devices find  their jurisdiction in considerations of justice.  It is  a well known fact that often to enforce the law to  its letter produces manifest injustice, for frequently  equitable and humane considerations, and other  considerations of a closely related nature, would  seem to be of a sufficient caliber to excuse or  justify a technical violation of the  law."      

       [See also Dove Investments Pvt. Ltd. and Ors. v. Gujarat Industrial

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Inv. Corporation Ltd. and Anr. (2006) 2 SCC 619].

       We, therefore, are clearly of the opinion that the High Court was not  correct in holding that in the facts and circumstances of the case, the  provisions of Order XXI Rule 84 had not been complied with.

       It is interesting to note that in Dakshayani v. Branch Manager &  Others [ILR 1997 Kar. 1940], interpreting Order XXI, Rule 84, the  Karnataka High Court itself held  

"4. On that basis if we interpret the law though  there is no power in the Court to extend the time  fixed by the statute still the expression  immediately is capable of taking within its sweep a  situation where an act is impossible of  performance on the day on which the auction is  held as it happened in Savithramma’s case when  the bank itself was on strike and no deposit could  have been made in the bank or in the event the  auction sale is held after Court hours, a receipt  order in that regard cannot be obtained for deposit  of such an amount. Such amount could be  deposited only after obtaining a receipt Order. If  next day also happens to be a holiday, the day  immediately thereafter coming up which is a  working day will be the day on which such act will  have to be performed. If any other interpretation is  given it would stultify the very object of law\005"

       We may consider another aspect of the matter.  With a view to  consider the question as to whether he intended to abide by the provisions of  a statute or the order of a court, his conduct is relevant.  If one intended to  comply with order of a court but by reason of fortuitous circumstances, he is  not in a position to do so, the statute would not be held to be operating  harshly in such a case.  

       We, therefore, are of the opinion that having regard to the order of the  court and the other circumstances stated by the appellant, his predecessor-in- interest not being able to deposit the 25% of the bid amount upon acceptance  of bid did not render the auction sale void, as was opined by the High Court.

       We may also notice that the auction purchaser had deposited the full  purchase money within the time stipulated in terms of Order XXI Rule 85 of  the Code.

       We do not know under what circumstances the decree holder himself  filed an application for setting aside the sale.  Only because the sale was  confirmed within a period of 30 days from the date of acceptance of the bid,  the same by itself, in our opinion, was not decisive to set aside the sale after  8 years.  We, therefore, are unable to agree with the findings of the  Executing Court or the High Court.   

       The impugned orders are set aside.  However, we make it clear that  we have not gone into the other contentions raised by the respondents herein.   All other contentions, therefore, may be determined by the Executing Court,  if raised, in accordance with law.

       The appeal is allowed.  We, however, make no order as to costs.