Neutral Citation No. - 2025:AHC-LKO:47498-DB Court No. - 2 Case :- WRIT - C No. - 7827 of 2025 Petitioner :- Sudha Realtors Pvt.Ltd.Thru. Director Rajesh Singh Respondent :- State Of U.P. Thru. Its Prin. Secy. Urban Development Lko. And 5 Others Counsel for Petitioner :- Mukteshwar Mishra,Poornendra Kumar Awasthi Counsel for Respondent :- C.S.C.,Shobhit Mohan Shukla Hon'ble Mrs. Sangeeta Chandra,J. Hon'ble Brij Raj Singh,J. 1. A mention was made in the morning for taking up this matter urgently, as the petitioner was likely to suffer undue hardship. 2. We have granted permission with the condition that written notice be given to all the respondents that the matter shall be taken up at 2:15 P.M. in the post-lunch session. 3. This petition has been filed by the petitioner with the following main prayers : "(i) To issue a writ of certiorari or a writ, order or direction in nature of certiorari quashing auction dated 04.07.2025 along with execution proceedings arising out of recovery certificate bearing letter No.1927 / UP RERA / Vassoli / 2022- 23 dated 27.02.2023 duly issued for execution of ex-parte order dated 16.09.2020. (ii) To issue a writ or certiorari, or a writ, order or direction in nature of certiorari quashing the proceeding of Complaint No.LKO187/11/0912/2019 along with order dated 16.09.2020 and all other consequential proceedings. (iii) To issue a writ of mandamus or a writ order or direction in nature of mandamus directing the opposite party nos.3 to 6 to not to deposit any amount recovered from auction proceeds in the account of opposite party no.2 or 6." 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, Abdul Rauf, on 21.08.2015 alleging himself to be duly authorized by a meeting of the Board of Directors of the company to execute the agreement to sell, sale deed on behalf of the company and to receive the consideration money. A copy of agreement to sell has been annexed as Annexure No.6 to the writ petition. Respondent no.6, Abdul Rauf was promised the sale of one flat bearing Flat No.84, Block D, 3BHK on the 8th Floor, having a super built-up area of 1,340 square feet, in an apartment block known as 'Sudha Residency' as per plan and specification, for a sale consideration of Rs.37,53,340/-. The agreement to sell also states that the purchaser i.e. respondent no.6, Abdul Rauf has paid a total amount of Rs.37,53,340/- towards sale consideration as full and final payment prior to execution of the sale deed. However, there is no description in the sale agreement regarding how the sale consideration of Rs.37,53,340/- 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 20.11.2019, respondent no.6, Abdul Rauf filed a complaint case bearing Complaint No.LKO187/11/0912/2019 titled Abdul Rauf vs. M/s Sudha Realtors Private Limited, under the provisions of Real Estate (Regulation and Development) Act, 2016 before the 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.84 situated in the 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 ex-parte order dated 16.09.2020, respondent no.6, Abdul Rauf, 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, Abdul Rauf approached this Court by filing Writ C No.10188 of 2023 "Abdul Rauf vs. State of U.P. and others", which was disposed of by a Division Bench of this Court vide order dated 20.11.2023, with a direction to the District Magistrate, Varanasi to execute the recovery certificate dated 27.02.2023 within a period of three months from the date a certified copy of this order. 7. Learned counsel for the petitioner has further argued that respondent no.6, Abdul Rauf filed Contempt Application (Civil) No.3539 of 2024 wherein on 02.01.2025, a Co-ordinate Bench of this Court issued notice to the District Magistrate, Varanasi, and on 09.07.2025 directed the matter to be listed on 04.08.2025 and also directed the District Magistrate, Varanasi to file an affidavit 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 20.11.2023 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. 8. This writ petition has been filed by the petitioner alleging that he has been duped by respondent no.6, Abdul Rauf and Abhishek Agrawal. Abhishek Agrawal entered into a fraudulent agreement to sell with respondent no.6, Abdul Rauf and on the basis of such agreement, respondent no.6, Abdul Rauf filed the aforesaid complaint case. The further proceedings that took place in the said matter have already been mentioned hereinabove. 9. 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, Abdul Rauf. 10. 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. 11. 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 27.02.2023, duly issued for execution of the ex- parte order dated 16.09.2020. The recovery certificate dated 27.02.2023 was the subject matter in Writ C No.10188 of 2023, which was disposed of by a Division Bench of this Court vide order dated 20.11.2023, directing the District Magistrate, Varanasi to execute the recovery certificate within a period of three months from the date a certified copy of this order. 12. The petitioner, in the second prayer of the writ petition, prays for quashing the ex-parte order dated 16.09.2020 and also other consequential proceedings. In pursuance of order dated 20.11.2023 passed in Writ C No.10188 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.3539 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.3539 of 2024, filed by respondent no.6, Abdul Rauf, is pending before this Court. 13. 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. 14. The writ petition is, accordingly, dismissed, leaving it open to the petitioner to approach the appropriate forum. Order Date :- 13.8.2025 Mahesh Digitally signed by :- MAHESH KUMAR High Court of Judicature at Allahabad, Lucknow Bench