SRI AJEYA MATILAL, HON`BLE PRESIDING MEMBER

Ld. Counsel appearing for the Appellant is present.

Respondent is found absent on repeated call.

Being aggrieved and dissatisfied with the judgment dated 11.03.2022 passed by Unit-II, Kolkata allowing the complaint case being No. CC/215/2018 in part on contest with a direction upon the OP No. 1 for refunding of Rs.9,65,300/- after deducting 10% as administrative charges for conducting e-auction and further direction upon the OP No. 1 to pay Rs.10,000/- to the Complainant as litigation cost, the Appellant preferred this appeal.

Heard the submission of the Ld. Counsel for the Appellant.

Perused the materials on record.

Considered.

It is submitted by the Ld. Counsel for the Appellant that the notice in the Telegraph Newspaper publication was made on 09.02.2018, with detailed terms and conditions of the Auction.

It would appear from the annexure `A’, a copy of newspaper publication that address of M/s. Sarson Restaurant was at 50/1/B Purna Das Road, Kolkata-700029.  The description of the suit property has been given in Para -5 on page No. 35 of the appeal prayer which is situated at Anil Moitra Road, Kolkata-700019 measuring area of 260 Sq.ft., which is supported by information derived from RTI reply of the concerned Municipality.

Terms and conditions were given in Para-G of the Memo of appeal.

Respondents were at liberty to inspect the property in question on 16.02.2018 and 20.02.2018.  They inspected the property on 16.02.2018 and 20.02.2018.  They participated in the auction on 28.02.2018 and became the highest bidder.

They paid initially 10% of EMD and 25% of the bid amount was deposited on the date of auction. But they did not make any subsequent payment pursuant to the agreed terms and conditions within the given date line.

On query, it is found that they were not in a position  to make any payment because no bank was financing them for reasons best known to the Bank. Ld. Counsel for the Appellant stated that Ld. DCDRC emphasised too much on the issue of natural justice.  In this context Ld. Counsel referred to a decision of the Hon`ble Apex Court reported in case of Shri Ramaswamy cited State of Uttar Pradesh V. Nawab Hussain(1977 (3) SCR 428) wherein it was observed when a matter is governed by a contract of agreement between the parties that is above natural justice and the matter is not maintainable in the Writ Petition because it is a public law      and not available in private field and the matter is governed by a non-statutory contract.  This was the observation of the Hon`ble Apex Court in respect of application of principle of natural justice (audi alteram partem).

It is also submitted that following the auction,  the respondents did not pay for the auctioned property. Accordingly, the matter was re- auctioned and property was sold as per Rules to the subsequent highest bidder.

Considering the pleadings of the Appellant and the evidence on record we find that the impugned judgment cannot be sustained as it suffers from illegality. 

Accordingly, the appeal is allowed without any cost. Impugned judgment dated 11.03.2022 passed by Unit-II, Kolkata in Complaint case being No. CC/215/2018 is set aside.

Order of interim stay, if there is any, in connection with the present appeal stands vacated.