@JUDGMENTTAG-ORDER
N. A. Britto, J.@mdashBy the present application, the Applicant/Petitioner seeks the recall of Judgment/Order dated 18-7-2006 in Writ Petition No. 260 of 2006 on the ground that the same was obtained by fraud by Respondent Nos.3 and 6. The Petitioner had filed the said writ petition also on the ground that there was fraud in selling the property on 14-3-2003 and/or obtaining sale certificate dated 19-4-2003.
2. The dispute is regarding the property known as "Quennem" surveyed under no.284/1 admeasuring 37,895 sq. meters situated at Taleigao.
3. The case of the Petitioner is that "in the affidavit in reply dated 21-6-2006 filed on behalf of Respondent No.3 it was stated that the petition was incompetent for non-joinder of necessary parties despite intimation to the Petitioner that third party interest has been created". It is further stated that Respondent No.3 had also stated that based upon the sale certificate dated 19-4-2003, the Respondent No.3, vide public notice dated 31-1-2006 invited bids for the sale of the suit property and the highest bidder was one Smt. Nilima Satoskar whose bid was accepted by Respondent No.3 and in pursuance of acceptance of the said bid the said Smt. Nilima Satoskar had arranged to deposit an amount of Rs.7,04,00,000/-by way of Demand Drafts and the Petitioner had chosen to prefer the said petition only on 16-6-2006 despite full knowledge that Respondent No.3 was in the process of auctioning the said property, by which time third party rights were already created. The case of the Petitioner is that by making the said statement on oath by Respondent No.3, Respondent No.3 gave an impression to this Court that third party rights were created and therefore interference of this Court was not called for. The Petitioner further stated that believing the said statement of Respondent No.3, the Petitioner sought to join the said Smt. Nilima Satoskar as party Respondent and she was heard through a Counsel, and, in the course of the hearing it was submitted on behalf of Respondent No.6, that the property was sold to Respondent No.6, and the Demand Drafts of Respondent No.6 were encashed by the Bank, and in the light of the said statements, this Court came to the conclusion that the petition suffered from laches, there was no material irregularity in the conduct of public auction and third party rights were created. In fact the Petitioner has relied upon paras 29 and 33 of the Judgment, impugned in the application. The Petitioner has stated that Respondent Nos.3 and 6 have played a fraud on this Court when they stated that Respondent No.6 had purchased the property on auction, and that as a matter of fact no purchase was made by Respondent No.6 but on the contrary the sale deed dated 21-7-2006 shows that the said property has been sold by Respondent No.3 to a company known as "Shitij Build Con Pvt. Ltd. and further shows that Respondent No.3 had invited bids for the purchase of the said property, and the said Shitij Build Con Pvt. Ltd. had offered the highest bid of Rs.7,04,00,000/-, and the said company had paid the said amount to the Bank, and the name of Respondent No.6 does not figure anywhere in the said sale deed. The case of the Petitioner is that the Petitioner came to know about the fraud played by the said Respondents when they received a notice dated 6-10-2006 from the Office of the Mamlatdar in mutation proceedings of survey no.284/1. The Petitioner therefore has sought for recalling the said Order of this Court dated 18-7-2006, and for deletion of the name of Respondent No.6.
4. Mr. S. D. Lotlikar, learned Senior Counsel on behalf of the Petitioner, submits that the fundamental reason why the Writ Petition came to be rejected is that this Court was made to believe by Respondent Nos.3 and 6 that the suit property was already sold by Respondent No.3 to Respondent No.6 and thus third party rights were created.
5. On the other hand, Mr. M. S. Sonak, learned Counsel on behalf of Respondent No.3, submits that the Judgment/Order of this Court dated 18-7-2006 has attained finality by the dismissal of the SLP filed by the Petitioner against the same, and in case the Petitioner came to know of the sale deed on or about 6-10-2006, and thus knew about the fraud, such a fact ought to have been agitated before the Hon''ble Apex Court in the pending Special Leave Petition. Learned Counsel further submits that this petition also suffers from laches as it is filed after about 16 months from the date of the impugned Judgment or in any case after a period of 11 months from the date of the knowledge of the alleged fraud.
6. We are not at all impressed with the submission made by learned Senior Counsel on behalf of the Petitioner. A party is said to commit fraud when such a party deliberately deceives another with a design of securing some unfair or undeserved benefit by taking undue advantage. It can be seen from the impugned Judgment that the aforesaid property was mortgaged in favour of Respondent No.3 for a loan taken by the Petitioner as principal borrower in the sum of Rs.42,50,000/- and another loan of Rs.75,00,000/- taken by one Sandeep S. Verlekar in the name of S. V. Real Estate for which the Petitioner has stood as a guarantor, and on account of non payment of the said two loans awards were obtained by Respondent No.3-Bank dated 11-7-2000 in the sum of Rs.68,56,752/-with further interest at the rate of 20% from 1-4-2000 and for Rs.1,81,86,950/-with 20% interest from 30-1-2000. The Respondent-Bank having initiated execution proceedings, public auctions were fixed for the sale of the property first on 5-10-2002, then on 25-2-2003 and again on 14-3-2003 as there were no bidders, and, on the last date an application having been made on behalf of Respondent No.3-Bank to enable Respondent No.3 to participate in the auction, the same was allowed as a result of which Respondent No.3 became the purchaser of the said property for a sum of Rs.3,96,58,101/-and subsequently on 19-4-2003 a certificate came to be issued in favour of Respondent No.3.
7. An appeal having been filed against the issuance of the said sale certificate to the Registrar, Co-operative Societies, the same came to be dismissed on 9-5-2006 on the ground that he had no jurisdiction to entertain the same. The Registrar had also noted that there was no request to set aside the auction sale and in case they wanted the sale to be set aside they ought to have filed an application either under sub rule 13 or 14 of Rule 37 with required deposit of money, which was not done. Various contentions were raised on behalf of the Petitioner and they have been dealt with in the impugned Judgment. One of the grounds why the petition came to be dismissed is that the Petitioner had approached this Court with delay and laches, and this has been dealt in para 29 of the Judgment since the sale was finalized on 14-3-2003, the sale certificate issued on 19-4-2003 but the petition came to be filed only on 17-6-2006 i.e. beyond 3 years. The Court also held that there was no material irregularity in conducting the said sale and this aspect has been dealt with by the Court in paras 23, 25 and 28 of the Judgment. If there was no material irregularity in conducting the auction sale it is but obvious that Respondent No.3 became the owner of the said property after the property was sold to the Respondent-Bank and as such was in a position to deal with the same in whatever manner it liked. The two Valuation Reports and in what circumstances they came to be given has been dealt with in para 27 of the Judgment. That third party rights were created before the Writ Petition was filed, is only one of the circumstances which was taken into consideration whilst disposing the Writ Petition, and, it can now be seen from the reply filed on behalf of Respondent No.3 that the bid of Respondent No.6 for Rs.7,04,00,000/-was accepted and payment made by Demand Drafts dated 8-6-2006 and 10-6-2006 and only when it came to the execution of sale deed that at the instructions of the said Respondent No.6 that the sale deed came to be executed in favour of the said Shitij Build Con Pvt. Ltd. We find nothing wrong in the said conduct of Respondent No.3 much less a fraud as alleged by the Petitioner. The petition was dismissed with the observation that the petition was a belated attempt on the part of the Petitioner to set aside the auction. This application appears to be yet another belated attempt to revive the claims made by the Petitioner in the petition. The application therefore deserves to be dismissed and is hereby dismissed with costs.
