9911796707
TMI Blog2004 (9) TMI 396X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Companies Act. The same mill was closed on 31-3-1987. This Court has passed a winding up order dated 22-11-1991 in Company Petition No. 37 of 1987. The Official Liquidator took the possession of the property in question in 1992. 2.2 Situation and description of the property of the company in liquidation are as under: There is a property known as Vivekanand Mills property situated in T.P. Scheme No. 11 of Final Plot No. 39 which abuts on the main Rakhial Road which is a major route both for intercity and intracity public transport. This final plot is in the general industrial zone of the development plan of the Ahmedabad Municipal Corporation and is located at about a kilometer away on the east of the walled city of Ahmedabad. The land is also situated near Raipur Mills and Ramkrishna Mills (all these textile mills are closed down and their buildings and machineries are sold and are cleared off the site). This property is known as property in question. 2.3. The details of the vacant land of the company (in liquidation) are as under: SurveySq. YardsTotalRemarks no.Sq. Yards 428193Leasehold 21210040293Leasehold 79780Ownership 5A3993Ownership 5B/1629O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed an advertisement for sale of the land in question on 17-4-2000 in Sandesh. Thereafter, this Court passed an order and fifth attempt was made to sell the land. The Sale Committee fixed upset price of the land in question at Rs. 3.60 crores. At that time, one offer was received for Rs. 2.60 crores from one Monali Textiles which was rejected because of conditional offer and it was not as per the terms and conditions stipulated by the Court. 2.9 It may be noted that, thereafter, the Official Liquidator again published advertisements on 4-8-2000 in Gujarat Samachar Ahmedabad Edition and Indian Express Ahmedabad Edition. Thereafter, this Court passed further orders and 4th attempt was made by the Sale Committee in August 2000 fixing upset price at Rs. 2.80 crores. The Official Liquidator spent Rs. 13,107 for the cost of advertisement. At that time, one offer was received from one Mahalaxmi Textiles which was rejected because of conditional offer and it was not as per the terms and conditions stipulated by the Court. 2.10 From the record, it appears that this Court passed an order in September 2000 in Civil Application No. 360 of 2000 regarding sale of the land in question. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by a demand draft and also stating that M/s. Narnarayan Estate Developers Pvt. Ltd. has made a net offer of Rs. 1.81 crores exclusive of all taxes and dues payable to Ahmedabad Municipal Corporation and other authorities. If any party had deposited the EMD earlier by demand draft and the EMD is still lying with the Official Liquidator, the party shall produce the proof for the same before the Official Liquidator at 11.00 a.m. on 5-12-2003 and if any amount less than Rs. 28 lakhs was given by demand draft by way of EMD, the party shall bring the EMD for the balance amount by a demand draft." 2.14 In view of the aforesaid circumstances, one Narnarayan Estate Developers Private Limited send an offer for Rs. 1.81 crores excluding all tax liability of the Ahmedabad Municipal Corporation, which shall be borne by the purchaser. The Sale Committee decided to recommend the offer on the said terms and conditions. 2.15 Thereafter, M/s. Narnarayan Estate Developers Pvt. Ltd. filed Company Application No. 277 of 2003 in Company Application No. 37 of 1983 with prayer that this Court may be pleased to accept the offer made by the applicant for the purchase of land in question for Rs. 1,71 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icant is willing to pay Rs. 2 crores 20 lakhs for the property in question. It is submitted that this being the highest offer, the same may be accepted and the orders dated 26-12-2003 and 5-12-2003 may be recalled and reviewed accordingly. 3.2 One Devanand Khemaji Vachheta has filed affidavit in reply on behalf of the opponent No. 3, M/s. Khemaji Jodhaji Brothers on 19-2-2004 and opposed the said application. 4. Contentions raised by learned counsel Mr. S.N. Soparkar as regards maintainability of the application 4.1 Before the learned counsel, Mr. Mihir Thakore, could argue the matter, on behalf of the applicant, the learned counsel, Mr. S.N. Soparkar, appearing for opponent No. 3, has raised the following contentions against the maintainability of the application: 4.2 Preliminary contentions raised by learned counsel Mr. S.N. Soparkar 4.3 The present application is for review of the order passed by this Court on 26-12-2003. The Court has passed order in the review proceedings as the Court has reviewed its earlier order dated 5-12-2003. Learned counsel has submitted that, in view of the provisions of Order 47, Rule 9 of the Code of Civil Procedure, review of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order." [Emphasis supplied] 5.3 Rule 9 of Code of Order 47 of the Code of Civil Procedure reads as follows: "Bar of certain applications. No application to review an order made on at application for a review or a decree or order passed or made on a review shall be entertained." 5.4 Relying upon the aforesaid provisions, the learned counsel for the applicant has made the following submissions : 5.5 In the present case, the applicant is not an aggrieved party, nor was the opponent No. 3 an aggrieved party when he moved Civil Application No. 209 of 2003 and made offer of Rs. 20 lakhs more than the earlier successful bidder, and, in such a case, when a party is not an aggrieved party, then its application for modification/recall of an order cannot be termed as a review application in terms of Order 47, Rule 1 of the Code. 5.6 The review application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms of legislative provision has been the subject of a good deal of judicial interpretation, not, however, in all cases harmonious. That the power given by the Indian Code is different from the very restricted power which exists in England appears plain from the decision of Charles Bright Co. v. Sellar (1), where the Court of Appeal discussed the history of the procedure in England and explained its limits." [Emphasis supplied] (p. 150) 5.8 The learned counsel has also referred to and relied upon the judgment of the Court of Appeal, in the case of Bisheshwar Pratap Sahi v. Parath Nath AIR 1934 PC 213, wherein, the Court (Privy Council) observed as under: "It is obvious that the above mentioned ground is not one of the grounds specified in Order XLVII, Rule (i) and the application for review can only be supported, if at all, by reference to the words or for any other sufficient reason . These words are of a general character, and apart from authority would seem to leave the sufficiency of the reason to the unfettered discretion of the Court. But there is authority to the contrary, and it has been held that a limited meaning must be put upon the above mentioned wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the present opponent s application i.e. C.A. No. 209 of 2003 for recalling/modification of an earlier order dated 5-12-2003 was not a review application as the same was not falling within the provisions of Order 47, Rule 1 of the Civil Procedure Code and, therefore, it cannot be contended by the opponent No. 3 that the present application seeks to review an order passed on a review application. Learned Counsel has further submitted that the order which the present applicant seeks to be modified/recalled is not an order that has been passed in an adversorial proceeding. It is, further, submitted that the Court did not pass an order in an adversorial proceeding where the Court has to decide as to right between the parties and, therefore also, in strict sense, this is not a review application. 5.13 While deciding upon the present application or also at the time of passing the order dated 26-12-2003 upon the application of the opponent No. 3, this Court was exercising jurisdiction under Rule 9 read with Rule 6 of the Companies (Court) Rules, 1959. Both the applications were filed before this Court under Rule 9 of the Companies (Court) Rules, 1959 and this Court exercises i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (at least Rs. 50 lakhs more) than the price at which it has been sought to be acquired by the opponent No. 3. 5.16 Section 457 of the Companies Act provides for power of the Liquidator in a winding up to sell the movable and immovable property of a company by public auction the whole thereof to any person or body corporate or to sell the same in parcels with the sanction of the Court. "457. Powers of Liquidator. (1) The liquidator in a winding up by the Court shall have power, with the sanction of the Court, ( a )to institute or defend any suit, prosecution, or other legal proceeding, civil or criminal, in the name and on behalf of the company; ( b )to carry on the business of the company so far as may be necessary for the beneficial winding up of the company; ( c )to sell the immovable and movable property and actionable claims of the company by public auction or private contract, with power to transfer the whole thereof to any person or body corporate, or to sell the same in parcels; ( d )to raise on the security of the assets of the company any money requisite; ( e )to do all such other things as may be necessary for winding up the affairs of the company and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Single Judge. In that context, after quoting rule 273 of the Companies (Court) Rules, 1959, the Court observed: (SCC pp. 540-541, para 6) 6. The principles which should govern confirmation of sales are well established. Where the acceptance of the offer by the Commissioners is subject to confirmation of the Court the offer does not by mere acceptance get any vested right in the property so that he may demand automatic confirmation of his offer. The condition of confirmation by the Court operates as a safeguard against the property being sold at inadequate price whether or not it is a consequence of any irregularity or fraud in the conduct of the sale. In every case it is the duty of the Court to satisfy itself that having regard to the market value of the property the price offered is reasonable. Unless the Court is satisfied about the adequacy of the price the act of confirmation of the sale would not be a proper exercise of judicial discretion. In Gordhan Das Chuni Lal Daduwala v. T. Sirman Kanthimanthinatha Pillai AIR 1921 Mad. 286, it was observed that where the property is authorised to be sold by private contract or otherwise it is the duty of the court to satisfy itse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red a higher price even now at Rs. 45,00,000. Keeping in view the interest of the company and the creditors and the workmen to whom the sale proceeds would be applied, the learned Company Judge was right in exercising her discretion to reopen the auction and directing Mr. Shantilal Malik as well to make a higher offer than what was offered by the appellant. In every case it is not necessary that there should be fraud in conducting the sale, though on its proof the sale gets vitiated and it is one of the grounds to set aside the auction sale. Therefore, the discretion exercised by the learned Single Judge cannot be said to be unwarranted. Under the circumstances, we are satisfied that the Division Bench of the Calcutta High Court committed manifest illegality in interfering with the order of the learned Single Judge. The appeal is allowed. The order of the Division Bench is set aside...." (p. 791) 5.22 In Lica (P.) Ltd (No. 2) v. Official Liquidator [1996] 85 Comp. Cas. 792 , the Supreme Court dealing with a similar question observed thus : "The purpose of an open auction is to get the most remunerative price and it is the duty of the Court to keep openness of the auction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng upon the above decisions, has submitted that it is the duty of the Court to see that the property put up on auction gets the best possible price and for that the Court should always reopen the auction when a new bidder comes forward with a higher price than the successful bidder. It is further submitted that, by such procedure, even the Court s credibility in the minds of people is preserved. 6. Submission of learned senior advocate, Mr. S.N. Soparkar on behalf of the respondent No. 3 6.1 Learned Senior Counsel, Mr. S.N. Soparkar, has submitted and elaborated his submission which I have noted earlier that the application filed by the opponent No. 3 is a review application under Order 47, Rule 1 of the CPC, because the order passed becomes final and the party has acted upon the said order by depositing the amount, taken possession and incurred expenses. He further submitted that the present applicant is not a party to any proceedings and, therefore, the order cannot be recalled and/or modified at the instance of the present applicant. The word Recall and Review has the same meaning. The expression recall a judgment is to be understood either to revoke, cancel, vacat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of its own order. Further, there is no provision in the entire the Companies (Court) Rules that a third party can apply for review and/or revocation or recalling of the order. The only remedy available either to initiate appropriate proceedings as available under the Companies Act and under the Companies (Court) Rules. 6.6 On the grounds stated in the application, it clearly shows that it amounts to recall/review of the order passed by the Court. When there is no mistake apparent on the face of record nor any new grounds have been mentioned in the application, the present application is not maintainable at law and deserves to be dismissed with costs. 6.7 It is further submitted that the applicant has relied upon a judgment of the Privy Council, AIR 1922 p. 122, i.e. Chhajju Ram s case ( supra ) which is not applicable in the present case, and, on the contrary, it is helpful to the opponent No. 3 as the opponent No. 3 had satisfied all the three grounds before filing the review application. It is submitted that the sufficient grounds for review of an order means the grounds should be analogous to the grounds mention therein. Neither new evidence is brought on record nor a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore also, the application is not maintainable and deserves to be dismissed. 6.11 It is further submitted that under Order 47, Rule 9, no application to review an order made on an application for review or decree or an order passed or made on review shall be entertained. Assuming the contention of the applicant that the opponent No. 3 had already filed Civil Application No. 209 of 2003 for recalling or modification of the order, it is a review application as per the say of the applicant. It is submitted that once the Court reviewed its order, the Court cannot review or recall the same order under Order 47, Rule 1(9) of the Code and, therefore, the present application must fail and meet with the fate of dismissal only. 6.12 The decisions mentioned by the applicant pertain to review and the applicant has not mentioned under which provision the present application came to be filed before this Court. 6.13 It is the case of the respondent No. 3 that the contention of the applicant is that the Code of Civil Procedure is not applicable directly to the provisions of Companies Act. The learned advocate for the respondent No. 3 submitted that the said contention of the applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the Act and these Rules. It is submitted that, in view of the judgment of this Court in the case of Saurashtra Cement Chemicals Industries Ltd. ( supra ), the present application under Rule 9 is nothing but an application under Order 47, Rule 1 of the CPC and, therefore, it is a Review Application and the same deserves to be dismissed. It is submitted that the inherent powers cannot be used to upset or distort the scheme of things under the Act and the Rules. It is submitted that the inherent powers of the Court under section 151 of the CPC cannot be resorted to when the aggrieved party has got exclusive remedy available under law. Thus, where the relief sought required modification or correction of earlier order, such relief could be granted under the specific provisions of Order 47, Rule 1 of the Code and not under section 151 of the Code or under analogous Rules 6 and 9 of the Company (Court) Rules, 1959. 6.17 This view has also been taken by the Andhra Pradesh High Court in the case of O.P. Jalan v. Deccan Enterprises (P.) Ltd. [2000] 100 Comp. Cas. 193. It is submitted that the inherent powers of the Court is not a substantive power but merely a procedural po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the facts of the present case. 6.21 It is submitted that the applicant has placed reliance on a decision of the court in the case of Divya Mfg. Co. (P.) Ltd v. Union of India [2000] 6 SCC 69, 2 which has no application in the facts of the present case. It is submitted that the facts of that case and the facts of the present case are entirely different one, and the same cannot be compared with the facts of the present case. In the said decision, the court has categorically mentioned that the possession of the property has not been handed over and no development on the land in question took place and, therefore, in that circumstances, the court was pleased to accept the higher offer because the earlier offer was at much below price. 6.22 While, in the present case, the sale was confirmed and before the amount came to be deposited, it was reopened on the application being made by the opponent No. 3 on the very next day. Therefore, the possession given was only paper possession and no further expenses have been incurred by the earlier purchaser. It is submitted that, in the present case, the sale came to be confirmed in favour of the present opponent No. 3 on 5-12-2003 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 3 only on 29-12-2003 pursuant to the amount deposited by the opponent No. 3, and, therefore, the Court was pleased to pass an order on 17-1-2004. ( ii ) The opponent No.3 had deposited Rs.1 crore with the Official Liquidator on 18-12-2003 (at that time only). ( iii ) On 29-12-2003, the Official Liquidator sent a letter whereby he confirmed the handing over the possession of the land to the opponent No. 3. ( iv ) After getting possession of the land, the opponent No.3 had approached the Ahmedabad Municipal Corporation for payment of Municipal Taxes of Rs. 2,00,48,000 and the opponent No.3 had also submitted a blank cheque in favour of the Ahmedabad Municipal Corporation towards the dues of the Municipal Taxes/Education Cess. ( v ) The opponent No. 3 would make the remaining amount of Rs.1 crore on or before the due date specified in the order by this Court. ( vi ) The opponent No. 3 has also paid land revenue to the City Mamlatdar to the tune of Rs. 4,42,147. ( vii ) The opponent No. 3 has also appointed a contractor for repairing of the compound wall. The opponent No. 3 executed a contract on 27-1-2004 for an amount of Rs. 7,21,000 and the work is in progress. ( vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Submission of learned Advocate, Mr. Mishra, for the workers 7.1 Learned advocate Mr. Mishra, who is appearing for the workers, has stated that it is no doubt true that the valuation was done in June 2003 and we are in July 2004. Normally, the price of real estate is increasing, but, so far as Ahmedabad is concerned, the land is situated surrounding the mill area which is thickly populated. There are other Mills closed. So there is large number of open land available in the vicinity of the said land. In view of the facts that there was heavy rain in 2000, earth-quake in 2001 and communal riots in 2002 in Gujarat generally and particularly in Ahmedabad, the price of the land has not increased but to some extent it has decreased because of financial crisis in the market. He has submitted that, if this Court permits the applicant to rebid, there will be further inordinate delay. The workers are interested in more money if the Company fetches but the Court must consider that the workers should get money during their life-time. Some of the workers are very old people, and they will not be able to see the colour of money during their life-time if further bidding is again permitted. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the court finds that the error pointed out in the review petition was under mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration had resulted in miscarriage of justice, nothing would preclude the Court from rectifying the error. The mere fact that different views on the same subject are possible, is no ground to review the earlier judgment passed by a bench of the same strength. [Re: Power to Review: Its scope. Mulla on CPC -16th Edition-Vol. 4-Page 4105] 8.6 In view of this, the application made by the present applicant does not fall strictly within Order 47 of the Code of Civil Procedure, i.e. review of the order. In view of the same, the contention of the opponent No. 3 that, in view of the Rule 9 of Order 47 of the CPC, the present application is not maintainable, cannot be accepted by this court. However, still the application made by the applicant is maintainable in view of the inherent provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s such that their dispositions express all the cases that may possibly be covered. It is, therefore, the duty of a judge to apply them, not only to what appears to be regulated by their express provisions of the law or within the consequences that may be gathered from it - Shankar Hari s case ( supra ), Hurro Chunder Roy v. Shoorodhone Debia [1868] 9 WR 402, 406. [ See : What is inherent power CPC by Mulla 16th Edition, 1st Volume, page 1422] 8.9 The Gujarat High Court, in the case of Sinha Watches (India)(P.) Ltd v. Gujarat State Financial Corpn. [1985] 58 Comp. Cas. 489 , more particularly, observed as under: "It must be stated at the outset that rule 6 of the Companies (Court) Rules, 1959, provides that save as provided by the Act or by these rules, the practice and procedure of the Court and the provisions of the Code so far as applicable, shall apply to all proceedings under the Act and the Rules. Rule 9 provides that nothing in these rules shall be deemed to limit or otherwise affect the inherent powers of the Court to give such directions or pass such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. It is, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the property at Rs. 450 per square yard, and the net value of the property is Rs. 2,50,64,000 (Rupees two crores 50 lakhs sixty four thousand only), He has done his valuation on the oral instructions of the Central Bank of India, Ahmedabad. In his valuation report, the Valuer has observed that the aforesaid land in which Vivekanand Mills premises are situated abuts on the main Rakhial Road which is a major route both for intercity and intracity public transport. This final plot is in the general industrial zone of the development plan of the Ahmedabad Municipal Corporation and is located at about a kilometer away on the east of the walled city of Ahmedabad. The land is also situated near Raipur Mills and Ramkrishna Mills (all these textile mills are closed down and their buildings and machineries are sold and are cleared off the site). In view of the availability of large plots of industrial land in such large supply as compared to comparatively lessor demand for industrial land on account of recession in the industrial development and in the property market at large, the land value of the premises of Vivekanand Mills will be necessarily low. The value of developed land charged by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... comes to Rs. 3,60,44,063. However, it is stated that the Standing Committee of the AMC has passed a resolution dated 22-3-2003 wherein 50 per cent benefit has been given in property tax and education cess as per the old formula. After giving the said benefit, the outstanding tax of Vivekanand Mills stands currently at Rs. 2,08,71,591. 9.6 It was further stated that benefit of closure will be given from the date of closure. After giving this benefit, if the remaining amount of property tax and education cess is paid fully before 31-3-2004, then total amount of interest/warrant fee/notice fee of old formula will be given as rebate. Rates of education cess from the year 2001-02 are to be decided. As and when they are decided, education cess bills from the year 2001-02 will be given and the amount of such education cess will also have to be paid. 9.7 In view of this letter of the Municipality, the purchaser has offered Rs. 2 crores and also accepted the additional liability of property tax. On over all consideration of the price offered by the respondent No. 3 along with the existing liability of the property tax as well as education cess, and the valuation report, in my view, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndition of payment of property tax and education cess which this Court imposed upon him and, in fact, he has paid part of amount in this behalf. Thus, offer and acceptance corresponded to each other and resulted into a binding contract. The said contract has been accepted by this Court by passing the order. Here, the Liquidator has already accepted the offer and the same has been communicated to the respondent No. 3 and, thereafter, this Court has passed the order and further agreement is entered into between the Official Liquidator and the respondent No. 3 and, in fact, the respondent No. 3 has also entered into agreement with other third party in this behalf. 10.2 What is meant by tender An invitation for tenders for the supply of goods or for execution of works is not an offer. It is a mere attempt to ascertain whether an offer can be obtained within such a margin as the employer is willing to adopt: it is an offer to negotiate, an offer to receive offers. The actual tender is the offer, and if accepted, it becomes a binding contract. The mere fact that a person makes a highest tender cannot entitle the tenderer to claim acceptance. [Re: Mulla on Contract p. 50] 10.3 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lidate unfair agreements. A substantial part of the law of contract was attributed to the parties agreement, and the role of equity, with its discretionary remedies, and its ability to avoid common law rules, was less central." [Re: Sanctity of Contracts Anson s Law of Contract, 27th Edition, Pages 7-16] 11. RE: Case law 11.1 In the case of Wellworth Vanijya (P.) Ltd v. Chowdhury Udyog (P.) Ltd. [2003] 2 Comp. LJ 1 1 the Honourable Supreme Court has held in paragraphs 3 and 4, as under: "...The company in question was wound up as far back as on 28-2-1986 when its assets were valued at Rs. 7.50 crores (approx.). Since the property in question could not be sold, the property was revalued on 19-11-2001 at Rs. 4.16 crores (approx). When the property was put to sale for the last time, the first respondent in this appeal offered Rs. 3 crores which is far less than the value fixed by the official valuers. However, the sale was confirmed on 7-12-2001, but the Appellate Bench on 21-12-2001 set aside the said sale, among other things, coming to the conclusion that the amount offered by the first respondent being very much on the lower side, under clause 11 of the terms and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficial Liquidator, High Court of Calcutta [2000] 101 Comp. Cas. 317 1 , the Honourable Supreme Court held as under: "At the outset, we would state that in proceedings for winding up of the company under liquidation, the Court acts as a custodian for the interest of the company and the creditors. Therefore, before sanctioning the sale of its assets, the Court is required to exercise judicial discretion to see that properties are sold at a reasonable price. For deciding what would be reasonable price, the valuation report of an expert is a must. Not only that, it is the duty of the Court to disclose the said valuation report to the secured creditors and other interested persons including the offerors. Further, it is the duty of the Court to apply its mind to the valuation report for verifying whether the report indicates the reasonable market value of the property to be auctioned even if objections are not raised." [Emphasis supplied] (p. 323) 11.3 Before the Division Bench of the Andhra Pradesh High Court in the case of Bharat Scrap v. Haryana Steel Centre [2004] 49 SCL 603 the facts of the case are as under: "The Company Court ordered winding-up of the company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is no suggestion of irregularity or fraud and that confirmation of sale by the court at a grossly inadequate price, whether or not it is a consequence of any irregularity or fraud in the conduct of sale could be set aside on the ground that it was not just and proper exercise of judicial discretion. 16. It is no doubt true that when an order passed by a sitting learned Judge has to be reviewed, judicial discipline requires that the same learned Judge has to pass an order either by way of modification or by way of review, as the case may be. As can be seen from the facts of the case, C.A. No.1035/2002 is an independent application moved raising several grounds and, hence, the learned Company Judge at the relevant point of time thought if fit to dispose of the application with certain directions. Apart from this aspect of the matter, when the Company Court had exercised the discretion in a particular way, unless the exercise of such discretion is not exercised judicially, the Appellate Court should be slow in interfering with such orders of the Company Court made in exercise of such judicial discretion. Having satisfied with the reasons recorded by the Company Court while dispos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this behalf and, therefore, the judgment of the Supreme Court in the case of Nani Gopal Paul (P.) Ltd. ( supra ) is not applicable to the facts of the present case. 12.2 I have also gone through the judgment of the Supreme Court in the case of Divya Mfg. Co. (P.) Ltd . ( supra ). In that case, the Supreme Court held that unless the Court is satisfied about the adequacy of the price the act of confirmation of the sale would not be a proper exercise of judicial discretion. In this case, I am satisfied that the price offered by the opponent No. 3 is adequate price looking to the market conditions and, in that case, the possession of the property was not given to the purchaser whereas in this case the possession had already been given and the opponent No. 3 has already created third party rights in this behalf. In view of this, the aforesaid judgment is not applicable to the facts of the present case. 12.3 Similarly, the judgment of the Supreme Court in the case of Allahabad Bank ( supra ) is also not applicable to the facts of the present case. 12.4 As regards the judgment of the Division Bench of this court in the case of Abhisekh Shops Warehouses ( supra ), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken by the other. 12.9 In view of this, consideration is an important part in the realm of contract. Now, judging contract entered into by and between the Liquidator and the opponent No. 3, the Court has to consider as to whether the opponent No. 3 has paid adequate price or not. In the foregoing paragraphs, I have considered valuation of the property. I have also considered the letter of the Ahmedabad Municipal Corporation. I have also considered the offer given by the opponent No. 3 and his acceptance of payment of municipal tax and education cess which the Municipality may determine from time to time. I have also considered the provisions of Sales of Goods Act and the sanctity of contract in this behalf. I have also considered the affidavit-in-reply filed by the opponent No. 3. I have also considered previous history of litigation by which there are four or five attempts made and this also shows that the property is not a prime property which can be sold at any price. All these considerations are relevant for judging adequacy of consideration. 12.10 The court may have jurisdiction to consider acceptance of tender provided the consideration is not adequate. Say for exa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resaid circumstances, this Court is not able to accept the application of the applicant on the following grounds: 13.1 This Court has already narrated earlier facts in this behalf. The property in question is very large property having 55,948 sq. yards situated in the vicinity of other mills premises which are also available in this behalf. The Court has also considered valuation report and the price offered by the respondent No. 3 is in consonance with the valuation of the land in question. It may be noted that, earlier, the Court has made 4-5 efforts and it was difficult to sell the land. In this case, after great difficulty ( i.e. after 5th or 6th effort), the Court is able to obtain purchaser which has paid part of price and also paid municipal tax, has taken possession and also tried to develop the land in question. In view of the same, if the Court has power to review, but the same power is very limited and, in the facts and circumstances of the case, this Court does not desire to exercise the said power of review in this behalf. Even if the Court has power, the Court has to exercise judicial discretion looking to the facts of the case. The Court has to exercise power wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Official Liquidator had made efforts right from September 1997 to sell the property in question. In fact, every time the Official Liquidator had given wide publicity in the local newspapers in this behalf. Thereafter, about five to six attempts were made, but the property could not be sold. In view of the same, if I allow the application of the applicant for further auction of the property, that will unnecessarily delay the proceedings. 13.6 Secondly, last time when I confirmed the sale in December 2003 also, adequate opportunity was given to all and the Official Liquidator could obtain the maximum price of Rs. 2 crores and the contract has been confirmed after due verification. 14. I have considered the valuation report, existing liability of the municipal tax and also the judgments of the Supreme Court in Divya Mfg. Co. (P.) Ltd. v. Union of India [2000] 6 SCC 69 1 , Allahabad Bank v. Bengal Paper Mills Co. Ltd. [1999] 4 SCC 383 2 , Lica (P.) Ltd (No. 1) v. Official Liquidator [1996] 85 Comp. Cas. 788 and Lica (P.) Ltd. (No.2) v. Official Liquidator [1996] 85 Comp. Cas. 792 . It is no doubt true that the trend of the judgments is to see that the Court sho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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