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TMI Blog2009 (11) TMI 503X X X X Extracts X X X X X X X X Extracts X X X X ..... a year with the Official Liquidator. Even by straight calculation this amount of ₹ 6 crores lying deposited with the Official Liquidator, if had not been deposited, would have been used by the respondent No. 3 and it could have at least fetched interest of ₹ 6 lakhs per month in the ordinary course of business. On the contrary the appellant did neither deposit any Earnest Money nor 18 per cent of his offer in violation to the court order which does not portray the picture of a bona fide and higher offerer. In these circumstances we are unable to hold that the appellant has made out any case calling for our interference in the matter. We are also unable to hold that the impugned orders dated 6-5-2009, 19-8-2009 and 8-10-2009 suffer from any illegality and we uphold the same. The appeal fails and is hereby dismissed with cost of ₹ 25,000. Thus company appeal No. 8/09 dismissed with costs of ₹ 25,000 payable by the appellant to the respondent No. 3. - COMPANY APPEAL NOS. 7 & 8 OF 2009 - - - Dated:- 12-11-2009 - SMT. S.R. WAGHMARE AND R.S. GARG, JJ. S.C. Bagadiya for the Appellant. Ashok Chitley and B.K. Satija for the Respondent. JUDGMENT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r lot No. 2, in effect only Rs. 50 lakhs more for each lot than what was offered by the respondent No 3. 2. On 6-5-2009 the Company Court while considering the applications made by the respondent No. 3 as also M/s. Rohan Meta Chem directed them to deposit earnest money of Rs. 6 crores + 18 per cent of their offer value to show their bona fides inasmuch as they did not respond to the public notice issued on 25-2-2008. 3. The Company Judge, in our opinion, rightly directed the two interveners to deposit the 18 per cent money of their respective offers along with earnest money. 4. From the records it transpires that on 19-8-2009 when the matter came up before the Learned Company Judge, neither on behalf of the appellant of Co. Appeal No. 8/09, nor on behalf of M/s. Rohan Meta Chem anyone appeared leaving the Learned Company Judge with no option but to dismiss their applications because it was reported that the order dated 6-5-2009 directing them to deposit EMD and 18 per cent amount of their offer value was not deposited. While dismissing the intervention applications the Learned Company Judge confirmed the sale and directed the respondent No. 3, the successful auction p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Learned Senior Counsel contended that unless the High Court possesses original jurisdiction and unless a substantive parallel provision is found which vests the Division Bench with the power of appeal against any decision rendered by the Learned Single Judge in original jurisdiction, the mandate of section 483 providing for an appeal to the same court, in the same manner, and subject to same conditions, under which an appeal lies from any order or decision within its ordinary original jurisdiction. In support of the said submission it was further contended that the High Court Rules and Orders, 2008. Chapter 2 Classification of Cases rule 1(3) only provides that a company appeal shall be registered as COMA. Further it was contended that under Chapter 4A Civil Matters, rule 2(2) provides that a company appeal shall be heard and disposed of by a Division Bench. It was further contended that there is no substantive parallel statutory provision enacted or rule prescribed in M.P. under which an appeal can lie against the impugned orders passed by the Learned Company Judge. 10. The Learned Senior Counsel further submitted that an appeal is maintainable only if a Forum as well as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a statutory right of appeal. In a situation where statutory provision conferring right of appeal is unhappily worded or is ambiguous, with regard to the forum, the manner and conditions subject to which an appeal would lie, efforts should always be made to adopt the principle of purposive construction to enable the Court to resolve the conflict so as to give full and complete effect to the legislative intent in creating statutory right of appeal. In such situation where the statute is short of appropriate prescription to make it operational, it is the duty of the Courts while interpreting provisions to supply casus omisus to resolve the conflict and for this purpose even the Court would be permitted to look outside such enactment creating right of appeal to make a sincere effort to find out with the help of other statutes the forum, the manner and the conditions subject to which the right of appeal so created could be saved and full effect is given to it. We wish to make it clear that no litigant can be left remediless and the intention of Legislature to create a right of appeal has to be respected and given full effect to. We would like to take support of the judicial pronouncem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e matter of Sarabjit Rick Singh v. Union of India [2008] 2 SCC 417. The Apex Court in the matter of New India Assurance Co. Ltd. v. Nusli Neville Wadia [2008] 3 SCC 279 had opined that purposive construction should be preferred to literal construction leading to anomaly or absurdity. In the matter of Sarabjit Rick Singh s case ( supra ), the Apex Court had opined that such interpretation which makes the statute unworkable should be avoided. In the matter of Bihar State of Council of Ayurvedic Unani Medicine v. State of Bihar AIR 2008 SC 595 in para 51 their Lordships have laid down that interpretation consistent with smooth working of the system which the statute purposefully regulates should be preferred to that which would introduce uncertainty, friction or confusion into the working of the system. Similarly in the matter of Swaran Singh v. State [2008] 8 SCC 435 it was held that construction which frustrates the object of the Act should be avoided and creative interpretation should be adopted to give full effect to the statutory provision. Again in the matter of R B Falcon (A) Pty. Ltd. v. CIT [2008] 169 Taxman 515 (SC) their Lordships have reiterat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Limitation Act, govern appeals under the Letters Patent in which not only the forum of appeal, but also the right of appeal is given by the Letters Patent; and is the appellant in such a case entitled to exclude under section 12 the "time requisite" for obtaining a copy, whether such copy is filed or not ? 14. Section 202, which fell for consideration in that case is also quoted hereinbelow for ready reference: ". . . appeals from any order or decision made, or given, in the matter of the winding up of a company by the Court may be had in the same manner, and subject to the same conditions, in and subject to which, appeals may be had from any order or decision of the same Court in cases within its ordinary jurisdiction." 15. On consideration of the questions referred and the substantive provision, it was noticed by the Larger Bench that under the said section, which is pari materia to section 483 while the aggrieved party had a right of appeal against orders passed in winding up, it contains no specific provision regarding the Forum in which the appeal is to be preferred, nor does it prescribe any particular period of limitation for such appeals. It was further notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er and conditions subject to which an appeal is provided under section 483 ibid . [Emphasis supplied] After considering the forum, the manner and conditions subject to which, an appeal is provided against orders of a learned Single Judge passed in exercise of original jurisdiction under Article 226 of the Constitution to the Division Bench, we lean in favour of adopting the approach of purposive construction in preference to the literal construction and we also feel that in order to give full effect to the legislative intent the extraordinary test with regard to the forum, the manner and conditions subject to which an appeal would lie, can be taken from statutes such as Adhiniyam, 2005, which clearly defines such parameters with regard to the right of appeal against an order passed in original jurisdiction. Keeping in view the various principles laid down as discussed herein above, we are unable to hold that section 483 ibid should be construed literally and in isolation to hold that no appeal would lie rather we would prefer to adopt such construction which leans towards the workability of section 483 ibid. Thus, we hold that an appeal against an order of learned Company Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tified copy is excludible, we have no option but to hold that appeal is within limitation. Accordingly, we reject the objection of the respondent No. 3 and hold that the appeal is within limitation. 20. Coming to the merits of the appeal it would be necessary to take note of certain facts and the law which has been laid down by the Apex Court. In this regard we may refer to the judgment in the matter of FCS Software Solutions Ltd. v. LA Medical Devices Ltd. [2008] 10 SCC 440. In this judgment particularly all issues regarding acceptance of higher bid have been considered. The ratio decidendi in FCS Software Solutions Ltd. s case ( supra ) clearly lays down that no hard and fast rule in a straitjacket formula can be laid down rather the circumstances of each case have to be appreciated before exercising power either in the course of winding up proceedings or in the course of an appeal before a confirmed sale could be set aside either resulting in order for re-sale or acceptance of a higher offer at appellate stage. We would not like to burden our judgment with the number of decisions of the Apex Court which have already been considered in the matter of FCS Software So ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merican Chambers of Commerce and Industries, Association- Cum -New Delhi and M.P. Chamber and Commerce Industries, Gwalior. 23. We are at a loss to record that even after such wide publicity having been given, the appellant did not submit its offer pursuant to the public notice. From the records it would clearly appear that on 23-6-2008 when one M/s. SPA Infrastructure (P.) Ltd. could seek intervention, why the present the appellant waited until the negotiation proceedings were held inter se between. M/s. SPA Infrastructure (P.) Ltd. and respondent No. 3. 24. As is apparent on the face of record the appellant was permitted by the Learned Company Judge to participate in the further negotiation proceedings by depositing earnest money of Rs. 6 crores + 18 per cent of his original offer of Rs. 31 crores. If the appellant was so serious about its offer of Rs. 31 crores, in terms of the order dated 6-5-2009 the appellant could have deposited the earnest money of Rs. 6 crores and Rs. 5.58 crores (18 per cent of Rs. 31 crores) as directed by the Learned Company Judge. We would hasten to add that if the appellant was not satisfied with the said order passed by the Learned Company ..... X X X X Extracts X X X X X X X X Extracts X X X X
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