Kumar Gupta approached this Court by filing Writ vs Magistrate, Varanasi to execute the recovery

4. When the matter was called out, Shri Sanjay Bhasin, learned counsel for the petitioner argued that the petitioner is a company registered under the provisions of Company's Act, which has Directors list, as taken out by the company secretary. It does not show any Director by the name of Abhishek Agrawal. However, Abhishek Agrawal entered into an agreement to sell with respondent no.6, Pradeep Kumar Gupta, on 03.03.2015 alleging himself to be duly authorized by a meeting of the Board of Directors of the company to execute the agreement to sell and the sale deed on behalf of the company. A copy of agreement to sell has been annexed as Annexure No.8 to the writ petition. Respondent no.6, Pradeep Kumar Gupta was promised the sale of one flat bearing Flat No.45, Block D, 2BHK on the 4th Floor, having a super built-up area of 1,155 square feet, in an apartment block known as 'Sudha Residency' as per plan and specification, for a sale consideration of Rs.37,00,000/-. The agreement to sell also states that the purchaser i.e. respondent no.6, Pradeep Kumar Gupta has paid a total amount of Rs.37,00,000/- towards sale consideration as full and final payment prior to execution of the agreement to sell. However, there is no description in the sale agreement regarding how the sale consideration of Rs.37,00,000/- was paid, that is, there is no mention of any bank draft, Cheque, UPI, RTGS. or any other method of such payment, including cash.

5. It has been submitted that on 15.12.2019, respondent no.6, Pradeep Kumar Gupta filed a complaint case bearing Complaint No.LKO187/ 12/0624/2016 titled Pradeep Kumar Gupta vs. M/s Sudha Realtors Private Limited, under the provisions of the Real Estate (Regulation and Development) Act, 2016 before respondent no.2 i.e. Uttar Pradesh, Real Estate Regulatory Authority, Lucknow (U.P. R.E.R.A.), alleging that he had been promised possession of Flat No.45 situated in Sudha Residency Apartment on making full and final payment of the sale consideration to the petitioner's company, but the same has not been done. The petitioner's company was not served any notice by the U.P. R.E.R.A. and the U.P. R.E.R.A. decided the aforesaid complaint case, along with two other similar matters relating to the same builder, ex-parte on 16.09.2020. In pursuance of the ex-parte order dated 16.09.2020, respondent no.6, without serving any notice to the petitioner's company, proceeded with execution proceedings under Section 63 of Real Estate (Regulation and Development Act, 2016 and respondent no.2, vide its order dated 08.03.2022, issued recovery certificate.

6. It has also been submitted that after issuance of recovery certificate, respondent no.6, Pradeep Kumar Gupta approached this Court by filing Writ C No.11067 of 2023 "Pradeep Kumar Gupta vs. State of U.P. and others", which was disposed of by a Division Bench of this Court vide order dated 18.12.2023, with a direction to the District Magistrate, Varanasi to execute the recovery certificate dated 10.02.2023 within a period of three months from the date a certified copy of this order is furnished before him, unless there is any legal impediment in this regard, in which case he shall inform the petitioner (respondent no.6 herein) in writing within the said period. The order dated 18.12.2023 passed by the Division Bench of this Court in Writ C No.11067 of 2023 is ex-parte, and therefore an application for recall of the order dated 18.12.2023 has been filed by the petitioner's company before this Court, which is pending.

7. Learned counsel for the petitioner has argued that against the ex-parte order dated 16.09.2020, the petitioner's company filed an appeal bearing First Appeal No.41 of 2024 before the U. P. Real Estate Appellate Tribunal, Lucknow, which was dismissed by order dated 01.04.2024 as defective on account of non-deposit of the statutory amount by the petitioner's company in compliance with Section 43(5) of the Act. Thereafter, the petitioner's company preferred RERA appeal bearing No.31 of 2024 before a Co-ordinate Bench of this Court, which was dismissed as withdrawn with liberty to file a fresh appeal vide order dated 15.07.2024. the petitioner's company filed fresh RERA Appeal bearing RERA Appeal Defective No.14 of 24 before this Court, which is pending disposal at the stage of Subsequently, condonation of delay.

8. Learned counsel for the petitioner has further argued that respondent no.6, Pradeep Kumar Gupta filed Contempt Application (Civil) No.3968 of 2024 wherein on 01.10.2024, a Co-ordinate Bench of this Court issued notice to the District Magistrate, Varanasi, and on 08.07.2025 directed the matter to be listed on 04.08.2025 and directed the District Magistrate, Varanasi to file an afÏdavit of compliance, failing which, he was required to appear in person before this Court. The then District Magistrate, Varanasi was the alleged contemnor. In pursuance of the order 18.12.2023 passed by a Co-ordinate Bench of this Court, respondent no.3, District Magistrate, Varanasi, directed the authority concerned to conduct the auction of two flats i.e. Flat No.D75 and Flat No.D95 and the same was done on 04.07.2025 without following due procedure. The petitioner's company has preferred an application under Section 193 of U.P. Revenue Code, 2006 for setting aside the auction sale dated 04.07.2025 before the Commissioner Varanasi Division, Varanasi, which is pending.

9. This writ petition has been filed by the petitioner alleging that he has been duped by respondent no.6, Pradeep Kumar Gupta and Abhishek Agrawal. Abhishek Agrawal entered into a fraudulent agreement to sell with respondent no.6, Pradeep Kumar Gupta and on the basis of such agreement, respondent no.6, Pradeep Kumar Gupta filed the aforesaid complaint case. The further proceedings that took place in the said matter have already been mentioned hereinabove.

10. It has been submitted that since the initial agreement to sell was a fraudulent transaction and fraud vitiates all acts, this Court should interfere and restrain respondent no.3, District Magistrate, Varanasi from transferring the auction proceeds to the account of respondent no.6, Pradeep Kumar Gupta.

11. We have heard Shri Shobhit Mohan Shukla, learned counsel for the U.P. R.E.R.A. and learned Standing Counsel, who appears on behalf of State- Respondents and perused the pleadings on record.

12. In prayer no.1 of the writ petition, the petitioner prays for quashing the auction dated 04.07.2025 along with execution proceedings arising out of the recovery certificate dated 10.02.2023, duly issued for execution of ex-parte order dated 16.09.2020. The ex-parte order dated 16.09.2020 was challenged in appeal bearing First Appeal No.41 of 2024, which was dismissed by the U. P. Real Estate Appellate Tribunal, Lucknow. The recovery certificate was issued on 10.02.2023. The ex-parte order dated 16.09.2020 and the recovery certificate dated 10.02.2023 were the subject matter in Writ C No.11067 of 2023, which was disposed of by a Division Bench of this Court vide order dated 18.12.2023, directing the District Magistrate, Varanasi to execute the recovery certificate dated 10.02.2023 within a period of three months from the date a certified copy of this order is furnished before him.

13. The petitioner, in the second prayer of the writ petition, prays for quashing the ex-parte order dated 16.09.2020, which had already been challenged by the petitioner in First appeal bearing First Appeal No.41 of 2024, and was dismissed as defective on account of non-deposit of the statutory amount by the petitioner's company in compliance with Section 43(5) of the Act, by order dated 01.04.2024. The ex-parte order dated 16.09.2020 has further been challenged in RERA Appeal bearing RERA Appeal Defective No.14 of 24 filed by the petitioner's company, which is pending before this Court. In pursuance of order dated 18.12.2023 passed in Writ C No.11067 of 2023 by a Division Bench of this Court, the auction proceedings were conducted on 04.07.2025. The Hon'ble Contempt Judge, by his order dated 04.08.2025 passed in Contempt Application (Civil) No.3968 of 2024, has already directed the respondent no.3, District Magistrate, Varanasi to deposit the amount recovered from auction proceeds in the account of respondent no.6. The Contempt Application (Civil) No.3968 of 2024, filed by respondent no.6, Pradep Kumar Gupta, is pending before this Court.

14. Insofar as the third relief claimed by the petitioner in the writ petition, is concerned, since both the aforesaid reliefs i.e. relief nos.1 and 2 cannot be granted by this court, the third relief, which is consequential in nature and seeks a mandamus directing respondent no.3 to 6 (sic 3 to 5) not to deposit any amount recovered from auction proceeds in the account of the respondent no.6, also cannot be granted.

15. The writ petition is, accordingly, dismissed, leaving it open to the petitioner to approach the appropriate forum. Order Date :- 13.8.2025/Mahesh MAHESH KUMAR High Court of Judicature at Allahabad, Lucknow Bench

4. When the matter was called out, Shri Sanjay Bhasin, learned counsel for the petitioner argued that the petitioner is a company registered under the provisions of Company's Act, which has Directors list, as taken out by the company secretary. It does not show any Director by the name of Abhishek Agrawal. However, Abhishek Agrawal entered into an agreement to sell with respondent no.6, Pradeep Kumar Gupta, on 03.03.2015 alleging himself to be duly authorized by a meeting of the Board of Directors of the company to execute the agreement to sell and the sale deed on behalf of the company. A copy of agreement to sell has been annexed as Annexure No.8 to the writ petition. Respondent no.6, Pradeep Kumar Gupta was promised the sale of one flat bearing Flat No.45, Block D, 2BHK on the 4th Floor, having a super built-up area of 1,155 square feet, in an apartment block known as 'Sudha Residency' as per plan and specification, for a sale consideration of Rs.37,00,000/-. The agreement to sell also states that the purchaser i.e. respondent no.6, Pradeep Kumar Gupta has paid a total amount of Rs.37,00,000/- towards sale consideration as full and final payment prior to execution of the agreement to sell. However, there is no description in the sale agreement regarding how the sale consideration of Rs.37,00,000/- was paid, that is, there is no mention of any bank draft, Cheque, UPI, RTGS. or any other method of such payment, including cash.

5. It has been submitted that on 15.12.2019, respondent no.6, Pradeep Kumar Gupta filed a complaint case bearing Complaint No.LKO187/ 12/0624/2016 titled Pradeep Kumar Gupta vs. M/s Sudha Realtors Private Limited, under the provisions of the Real Estate (Regulation and Development) Act, 2016 before respondent no.2 i.e. Uttar Pradesh, Real Estate Regulatory Authority, Lucknow (U.P. R.E.R.A.), alleging that he had been promised possession of Flat No.45 situated in Sudha Residency Apartment on making full and final payment of the sale consideration to the petitioner's company, but the same has not been done. The petitioner's company was not served any notice by the U.P. R.E.R.A. and the U.P. R.E.R.A. decided the aforesaid complaint case, along with two other similar matters relating to the same builder, ex-parte on 16.09.2020. In pursuance of the ex-parte order dated 16.09.2020, respondent no.6, without serving any notice to the petitioner's company, proceeded with execution proceedings under Section 63 of Real Estate (Regulation and Development Act, 2016 and respondent no.2, vide its order dated 08.03.2022, issued recovery certificate.

6. It has also been submitted that after issuance of recovery certificate, respondent no.6, Pradeep Kumar Gupta approached this Court by filing Writ C No.11067 of 2023 "Pradeep Kumar Gupta vs. State of U.P. and others", which was disposed of by a Division Bench of this Court vide order dated 18.12.2023, with a direction to the District Magistrate, Varanasi to execute the recovery certificate dated 10.02.2023 within a period of three months from the date a certified copy of this order is furnished before him, unless there is any legal impediment in this regard, in which case he shall inform the petitioner (respondent no.6 herein) in writing within the said period. The order dated 18.12.2023 passed by the Division Bench of this Court in Writ C No.11067 of 2023 is ex-parte, and therefore an application for recall of the order dated 18.12.2023 has been filed by the petitioner's company before this Court, which is pending.

7. Learned counsel for the petitioner has argued that against the ex-parte order dated 16.09.2020, the petitioner's company filed an appeal bearing First Appeal No.41 of 2024 before the U. P. Real Estate Appellate Tribunal, Lucknow, which was dismissed by order dated 01.04.2024 as defective on account of non-deposit of the statutory amount by the petitioner's company in compliance with Section 43(5) of the Act. Thereafter, the petitioner's company preferred RERA appeal bearing No.31 of 2024 before a Co-ordinate Bench of this Court, which was dismissed as withdrawn with liberty to file a fresh appeal vide order dated 15.07.2024. the petitioner's company filed fresh RERA Appeal bearing RERA Appeal Defective No.14 of 24 before this Court, which is pending disposal at the stage of Subsequently, condonation of delay.

8. Learned counsel for the petitioner has further argued that respondent no.6, Pradeep Kumar Gupta filed Contempt Application (Civil) No.3968 of 2024 wherein on 01.10.2024, a Co-ordinate Bench of this Court issued notice to the District Magistrate, Varanasi, and on 08.07.2025 directed the matter to be listed on 04.08.2025 and directed the District Magistrate, Varanasi to file an afÏdavit of compliance, failing which, he was required to appear in person before this Court. The then District Magistrate, Varanasi was the alleged contemnor. In pursuance of the order 18.12.2023 passed by a Co-ordinate Bench of this Court, respondent no.3, District Magistrate, Varanasi, directed the authority concerned to conduct the auction of two flats i.e. Flat No.D75 and Flat No.D95 and the same was done on 04.07.2025 without following due procedure. The petitioner's company has preferred an application under Section 193 of U.P. Revenue Code, 2006 for setting aside the auction sale dated 04.07.2025 before the Commissioner Varanasi Division, Varanasi, which is pending.

9. This writ petition has been filed by the petitioner alleging that he has been duped by respondent no.6, Pradeep Kumar Gupta and Abhishek Agrawal. Abhishek Agrawal entered into a fraudulent agreement to sell with respondent no.6, Pradeep Kumar Gupta and on the basis of such agreement, respondent no.6, Pradeep Kumar Gupta filed the aforesaid complaint case. The further proceedings that took place in the said matter have already been mentioned hereinabove.

10. It has been submitted that since the initial agreement to sell was a fraudulent transaction and fraud vitiates all acts, this Court should interfere and restrain respondent no.3, District Magistrate, Varanasi from transferring the auction proceeds to the account of respondent no.6, Pradeep Kumar Gupta.

11. We have heard Shri Shobhit Mohan Shukla, learned counsel for the U.P. R.E.R.A. and learned Standing Counsel, who appears on behalf of State- Respondents and perused the pleadings on record.

12. In prayer no.1 of the writ petition, the petitioner prays for quashing the auction dated 04.07.2025 along with execution proceedings arising out of the recovery certificate dated 10.02.2023, duly issued for execution of ex-parte order dated 16.09.2020. The ex-parte order dated 16.09.2020 was challenged in appeal bearing First Appeal No.41 of 2024, which was dismissed by the U. P. Real Estate Appellate Tribunal, Lucknow. The recovery certificate was issued on 10.02.2023. The ex-parte order dated 16.09.2020 and the recovery certificate dated 10.02.2023 were the subject matter in Writ C No.11067 of 2023, which was disposed of by a Division Bench of this Court vide order dated 18.12.2023, directing the District Magistrate, Varanasi to execute the recovery certificate dated 10.02.2023 within a period of three months from the date a certified copy of this order is furnished before him.

13. The petitioner, in the second prayer of the writ petition, prays for quashing the ex-parte order dated 16.09.2020, which had already been challenged by the petitioner in First appeal bearing First Appeal No.41 of 2024, and was dismissed as defective on account of non-deposit of the statutory amount by the petitioner's company in compliance with Section 43(5) of the Act, by order dated 01.04.2024. The ex-parte order dated 16.09.2020 has further been challenged in RERA Appeal bearing RERA Appeal Defective No.14 of 24 filed by the petitioner's company, which is pending before this Court. In pursuance of order dated 18.12.2023 passed in Writ C No.11067 of 2023 by a Division Bench of this Court, the auction proceedings were conducted on 04.07.2025. The Hon'ble Contempt Judge, by his order dated 04.08.2025 passed in Contempt Application (Civil) No.3968 of 2024, has already directed the respondent no.3, District Magistrate, Varanasi to deposit the amount recovered from auction proceeds in the account of respondent no.6. The Contempt Application (Civil) No.3968 of 2024, filed by respondent no.6, Pradep Kumar Gupta, is pending before this Court.

14. Insofar as the third relief claimed by the petitioner in the writ petition, is concerned, since both the aforesaid reliefs i.e. relief nos.1 and 2 cannot be granted by this court, the third relief, which is consequential in nature and seeks a mandamus directing respondent no.3 to 6 (sic 3 to 5) not to deposit any amount recovered from auction proceeds in the account of the respondent no.6, also cannot be granted.

15. The writ petition is, accordingly, dismissed, leaving it open to the petitioner to approach the appropriate forum. Order Date :- 13.8.2025/Mahesh MAHESH KUMAR High Court of Judicature at Allahabad, Lucknow Bench