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TMI Blog1995 (1) TMI 291X X X X Extracts X X X X X X X X Extracts X X X X ..... in Kalinga Sevenska Limited. Through public advertisement, sealed tenders were invited for sale of the aforesaid shares. The sealed tenders were opened on July 27, 1988. The highest offer was by Nilasaila Nayak at Rs. 114 per share followed by A.P. Singh at Rs. 111, Kedar Rout (appellant in A.H.O. No. 82 of 1993) at Rs. 101, Pradipta Mohanty (appellant in A.H.O. No. 84 of 1993) at Rs. 85 and Sricharan Das at Rs. 57.19 per share. Kedar Rout had offered to purchase 5,000 equity shaves. At the first instance, the offer of Nilasaila Nayak, the highest bidder, was accepted by the learned company judge on August 1, 1988, but as he failed to deposit the consideration within the stipulated period, the learned company judge by his order dated September 16, 1988, directed acceptance of the offer of the second highest bidder A.P. Singh. After receiving the order of acceptance, A.P. Singh died and the learned company judge by order dated February 7, 1989, permitted his son to deposit the entire value of all the shares by a specified date. The son failed to comply. Meanwhile on February 6, 1989, Sricharan Das (the sixth highest bidder) had filed an application before the official liquidator me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for negotiation and the matter having attained finality cannot be reopened. In his counter in Miscellaneous Case No. 74 of 1989, Sricharan Das stated that in view of the rejection of the prayer of Pradipta Mohanty in Miscellaneous Case No. 62 of 1989, on August 7, 1989, the subsequent miscellaneous case was not maintainable. He claimed to have understood that leave of the court was obtained for effecting sale by negotiation and he having suo motu applied to the official liquidator to purchase all the shares at Rs. 114 per share which was the highest offer in the sealed tenders, the same was considered and accepted with the leave of the learned company judge on May 30, 1989, followed by confirmation on July 17, 1989. Meanwhile he has already sold 5,895 shares to different buyers on August 25, 1989, and the transferees having acquired rights in respect of such shares, the matter cannot be reopened. Rule 272 of the aforesaid rules directs that every sale of property belonging to a company shall be subject to confirmation by the court. Rule 273 directs that all sales shall be made by public auction or by inviting sealed tenders or in such manner as the judge may direct. Thus the two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of offers in sealed covers by intending purchasers by a certain date. Thus the learned company judge not only fixed the mode of sale but also specified the date for receipt of the offers in sealed covers. Orders dated May 30, 1989, and July 17, 1989, accepting the sale and confirming the same have, however, been passed in the administrative file and not in the judicial record. Order No. 143, dated August 7, 1989, is the first order in the judicial record indicating these facts. Herein it is stated that "it was considered proper to sell away the equity shares by negotiation and the application of Sricharan Das who offered to purchase the shares at Rs. 114 per share was accepted on May 30, 1989, and after he deposited the entire value at the above rate and after due verification, the sale was confirmed on July 17, 1989." Now it is necessary to go slightly deeper into the facts. The offers of Sricharan Das and Kedar Rout were dated January 5, 1988, and that of Pradipta Mohanty was dated January 4,1988. Admittedly, Kedar, Pradipta and Sricharan were the third, fourth and sixth highest bidders respectively. Sricharan raised his offer to Rs. 114 per share in his application dated Febru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred by Pradipta Mohanty having been rejected by order dated August 7, 1989, the question of entertaining a fresh application against the order of confirmation of sale does not arise. There is nothing on record to show that prior to the filing of Miscellaneous Case No. 62 of 1989, Pradipta was aware or made known about acceptance of the sale in favour of Sricharan Das on May 30, 1989, or about confirmation of sale in his favour by the court on July 17, 1989. In his application he had merely stated to have learnt from some source, which he believed to be true, that a person who had offered a much lower price, had applied to purchase and the same has been accepted. It may be noted here that acceptance of the offer of Sricharan Das and the order of confirmation of sale in his favour were made in the administrative file on the absence of Pradipta Mohanty although his offer was higher and on such facts on some vague information Pradipta had started Miscellaneous Case No. 62 of 1989 praying for setting aside the order accepting the offer of the person whose bid was lower. Apparently Pradipta came to know about acceptance and confirmation from order dated August 7, 1989, passed in the j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r through negotiation Sricharan Das fails to be the highest bidder, they having purchased the shares from a person owning them through purchase in a sale which was not conducted in a fair manner. Mr. Lal for respondent No. 1 attacked the maintainability of the appeal at the instance of a bidder relying on the decision in J.N. Bowri v. Official Liquidator, AIR 1960 Assam 190 ; [1961] 31 Comp Cas 220 . In this case, the winding up proceeding was started at the instance of a creditor and in the proceeding certain immovable properties were advertised for sale. There were two offers. "J" first offered a sum of Rs. 80,000 which he later increased to Rs. 94,251. The other bidder "H" gave an offer of Rs. 91,000 which they later increased to Rs. 1,03,001. This later offer of "H" was accepted by the court and the fact of acceptance was intimated to "H". Two days thereafter "J" filed an application for reconsideration of the matter and for an order that the property may be sold to "J" for a sum of Rs. 1,05,000. The application was heard and the court ordered that it saw no reason to modify its orders accepting the offer of "H". Against this order an appeal was carried to the High Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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