9911796707
TMI Blog1998 (2) TMI 464X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court was, therefore, not right in withholding the refund of the remaining amount of Rs. 9 lakhs along with the interest accrued thereon at the instance of the Syndicate Bank. If the bank is of the view that it has suffered any loss as a result of wrongful act of the appellant it will be open to it to adopt an appropriate remedy for claiming damages. Keeping that right of the bank open we allow this appeal partly. That part of the order of the High Court whereby the appellant's application for refund of Rs. 9 lakhs being the balance amount out of the total deposit of Rs. 59 lakhs was rejected is set aside and we allow Company Application to that extent. - CIVIL APPEAL NOS. 1292-93 OF 1998 - - - Dated:- 27-2-1998 - G.T. NANAVATI A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted on February 21, 1997. The High Court rejected the claim for refund of the earnest money on the ground that at that stage it was not proper to grant it as that might affect the right of the official liquidator to forfeit that amount in case it is held that he has suffered some loss as a result of the conduct of the appellant. As regards the claim of the Syndicate Bank for damages, the High Court merely stated that "in view of the order made in Company Application No. 542 of 1996, this application stands rejected." In the order passed on Company Application No. 542 of 1996, there is no discussion regarding the bank's claim for damages or regarding the claim of damages by the general body of creditors on account of the dilatory tactics ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he proceedings for confirmation of sale. If the court had confirmed the sale, the other terms and conditions in the offer of sale would have arisen. In the absence of such an event of confirmation of the sale, the only conclusion we have to draw is that the applicant is, prima facie, entitled to the entire refund of the money." He also submitted that the Division Bench of the High Court while disposing of the said application proceeded on a wrong assumption that the order dated April 12, 1996, passed by the learned single judge of that High Court was the final order as can be seen from the following observations made by it (page 466) : "The learned company judge made an order on April 12, 1996, and that order has not been challenged in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d almost one year it cannot be said with certainty at this stage that he will be liable to pay compensation for the alleged loss caused to the general body of creditors. The bank is a secured creditor and there is nothing to show that it had made the application for and on behalf of the general body of creditors. Their entitlement to damages and the extent of loss suffered by them, even if they are held entitled to claim damages on that count, is yet to be decided. In such circumstances, the court having not confirmed the sale and cancelled the bid of the appellant, ought not to have rejected the claim of the appellant except in respect of the earnest money deposit of Rs. 5 lakhs. The High Court was, therefore, not right in withholding the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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