V.B. Soni v. Citi Bank NV and Ors.

1. The petitioner claims that one M/s. Combit Advertising Network Ltd. (not party in this writ petition) was the owner of Flat No.M-73, Top Floor, Greater Kailash, Part-II, New Delhi; that the said flat was mortgaged with the respondent no.1 Citi Bank; that upon default by the said M/s Combit Advertising Network Ltd in re-payment of its dues, the respondent no.1 Bank obtained permission from the Court for auction of the said flat; that the respondents no.3 & 4 property brokers offered the said flat as for sale to the petitioner; that the petitioner paid the entire sale price of Rs.21,50,000/- W.P.(C) 1626/2011 2011:DHC:3119 to the respondent no.1 Bank which issued a Sale Certificate to the petitioner and also handed over possession of the flat to the petitioner; however the receipts of payment of sale consideration handed over to the petitioner showed the money to have been received from the respondents no.3 also; that the respondent no.3 inspite of assurance did not get the receipt rectified; that the petitioner asked the respondent no.1 Bank to rectify the aforesaid receipts to show the consideration to have been received from the petitioner; that the petitioner also approached the respondent no.1 Bank and respondent no.2 City Global Services for execution of the sale deed in his name but they are insisting upon the petitioner getting an affidavit from the respondents no.3 & 4. Averring collusion between the respondents no.1 & 2 on the one hand and the respondents no.3 & 4 on the other hand, this writ petition has been filed seeking mandamus to the respondents no.1 & 2 to execute the sale deed of the flat in favour of the petitioner to complete the transaction and also seeking to restrain the respondents no.1 & 2 from registering any sale documents of the flat in the name of any other persons or in the names of respondents no.3 & 4.

2. The writ petition was listed on several occasions for admission. Question of maintainability thereof was put to the counsel for the petitioner. In fact, the Registry also had objected to the maintainability of the writ petition and the writ petition has been listed with office objection.

3. The counsel for the petitioner has today referred to head note B of Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust Vs. V.r. Rudani AIR 1989 SC 1607 and to the head note of M/s. Hyderabad Commercials Vs. Indian Bank 1991 SC 247 to contend that writ can be maintained against any person and ought not to be confined only to statutory authorities and instrumentalities of the state and that the Bank is an instrumentality of the state.

4. Without adverting to the aforesaid aspect, adjudication of the present matter will entail returning findings on disputed facts. The payment which the petitioner claims to have made was admittedly partly in cash and partly by cheques in favour of respondents no.3 & 4 and not respondent no.1 Bank. It is not explicable as to why huge amounts were transacted in cash; the respondents no.3 & 4 are obviously not obliging the petitioner and owing whereto the sale deed claimed by the petitioner has not been executed in his favour. It is not understandable as to why they are described in the writ petition as proforma parties. In fact, no Sale Certificate or possession letter also have been produced before this Court. The petitioner only relies upon an Email dated 31st August, 2009 stating that the Sale Certificate had been issued in the name of the respondent no.3 and the petitioner.

5. Thus, even if any of the respondents fail to appear inspite of notice even if issued, there is nothing before this Court to believe the petitioner to grant relief to him.

6. It is thus felt that the writ petition in any case is not maintainable. The same is dismissed with liberty to the petitioner to seek alternative remedies in law. No order as to costs. CM No.3438/2011 (for exemption) Allowed, subject to just exceptions.

RAJIV SAHAI ENDLAW, J JUNE 02, 2011 bs..