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TMI Blog2010 (5) TMI 395X X X X Extracts X X X X X X X X Extracts X X X X ..... unt (supra) was refunded vide pay order dated 12-2-2007 duly received on 16-2-2007. 2. Prayer made in this Misc. Application is basically for clarification sought for in Judgment dated 23-1-2007 rendered by this Court to the effect that the applicant is entitled for interest having accrued on having deposited the amount (supra) with the Financial Institution (IDBI) from the date of its deposit till actual refund whereof. 3. Facts relevant for adjudication of the interest being claimed by applicant herein are that M/s. Kesari Vanaspati Products Limited was ordered to be wound up by Company Court vide order dated 23-1-2004 in Co. Petition No. 28/2003 and accordingly, the Official Liquidator attached to the court was appointed as provisional Liquidator with the direction to take charge over all the property and effects of the company-in-liquidation. The charge of assets and the record of company-in-liquidation was taken over by the Official Liquidator on 3-4-2004. The Industrial Development Bank of India Ltd., Jaipur (IDBI), Vijaya Bank, Jaipur, State Bank of Bikaner & Jaipur (SBBJ) and Rajasthan State Industrial Development & Investment Corporation Ltd., (RIICO) were the secured cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by Recovery officer was deposited in FDRs with IDBI, initially for 46 days but since it was never encashed, must have been renewed from time to time; and that apart, possession of auctioned property pursuant to auction sale was never handed over to auction purchaser (applicant); hence it remains undisputed that auction purchaser having deposited complete sale price as per terms and conditions of the auction notice had not utilised either the auctioned property or the interest having yielded on the amount deposited with IDBI under FDRs, which basically belonged to present applicant on account of auction sale made in its favour on being set aside by the Court vide judgment dated 23-1-2007. 7. Application has been opposed by respondent-IDBI basically on the premise that instant application is not maintainable as what the applicant has sought for is not a clarification of judgment but denial of the relief having not been granted by the court in Co. Appl. 79/2005, which in fact has been denied or be deemed to have been denied, being barred under order 2, rule 2, CPC. 8. Counsel for respondent-IDBI submits that relief prayed for in instant application was not granted by this Court wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the applicant was also entitled for the interest accrued thereon; that being so, judgment of this court requires clarification in regard to the interest; and since no review of judgment was necessary, the relief can be granted to the applicant on the instant application. 12. Counsel for applicant further submits that auction purchaser (applicant herein) was party to proceedings in Co. Appl. 79/2005 but at that stage, being a respondent was to substantiate its justification submitted by Recovery officer and there was no occasion to claim, make or submit to this court while Co. Appl. 79/2005 was being disposed of. 13. This Court has considered rival contentions of counsel for the parties and with their assistance, examined the material on record, objection raised by respondent-IDBI that instant application is not maintainable being barred by provisions contained in order 2, rule 2(2), CPC, is of no substance for the reason that order 2, rule 2(2), CPC provides that the suit includes whole of the claim which the plaintiff is entitled to make and if having not been claimed by plaintiff, it may be deemed to have relinquished portion of the claim. 14. But, in the instant case, Co. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st is directed to be refunded to the appellant. In case the amount was not kept in any deposit and was used to discharge outstanding debt due by respondent Nos. 2 and 3, the appellant is entitled to get interest at 18 per cent per annum on the amount deposited by the appellant and the sale should be so conducted keeping in view the interest liability. From the amount secured by sale, apart from discharging the liabilities fastened on the lands, the interest also should be repaid to the appellant from the date of the deposit till date of repayment to the appellant." 16. While examining scope of order 21, rule 93, CPC, in regard to auction sale of property, in Hindi Pracharak Prakashan v. G.K. Bros. AIR 1990 SC 2221, Apex Court took note of the fact that auction amount was lying deposited in court without being invested; however, the sale was set aside on satisfaction of the decree while depositing dues under the decree in the Registry of the Court; and obviously when the purchase price was deposited, it was to be refunded to the auction purchaser. The Apex Court observed that even if amount has not been invested, auction purchaser is entitled to the amount deposited in the Court wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 34, CPC, it is a matter of procedure and ought to be granted in all cases when there is a decree for money unless there are strong reasons to decline the same. 21. In the instant case, money deposited by applicant, as is evident from order sheets dated 30-11-2005 and dated 7-12-2005 drawn by Recovery Officer, DRT, was deposited in fixed deposits with Financial Institution (IDBI) initially for 46 days; however, it is not the case of IDBI that amount deposited by auction purchaser in fixed deposits with the Bank was not renewed at a later stage, indisputably, the IDBI has earned interest over the amount lying in fixed deposits with it on being deposited by auction purchaser and in the considered opinion of this court the applicant is certainly entitled for a reasonable compensation in the form of interest over the amount of refund by IDBI on the auction sale being set aside vide order dated 23-1-2007 in Co. Appl. 79/2005, till receipt of the refund to him. 22. Question arises as to what should be the rate of interest or the compensation which the applicant is entitled for. Certain print-outs taken from websites have been produced for perusal including news at http://w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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