9911796707
TMI Blog2009 (8) TMI 706X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order. The appeal is, therefore, dismissed. Appellant is allowed to take back the cash amount of ₹ 8.75 crores (eight crore seventy five lakh) in accordance with the provisions of law as may be applicable in this regard. - COMPANY APPEAL NO. 3 OF 2008 - - - Dated:- 12-8-2009 - S.L. KOCHAR AND MRS. MANJUSHA P. NAMJOSHI, JJ. G.M. Chaphekar and Sanyal for the Appellant. P.K. Batta, Official Liquidator, Kishore Shrivastava and V.K. Jain for the Respondent. JUDGMENT S.L. Kochar, J. - Appellant has filed this appeal against the impugned order dated 5-8-2008 passed by the learned Company Court in Company Petition No. 19/02 whereby OLR No. 25/08 has been accepted and interim application No. 4938/08 (Annexure P/1 to this appeal) filed by the appellant for grant of permission to intervene to participate in further negotiations and proceedings for the purposes of purchasing the property of respondent No. 1 herein (a Company in liquidation) has been dismissed. 2. Short resume of the facts necessary for resolving the controversy arises as follows : A reference to this High Court was made vide letter dated 14-6-2000 by the Registrar of B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sit E.M.D. of Rs. 25,00,000 (Twenty five lakhs). The tenderer deposited the E.M.D. amount and took part in negotiation before the Sale Committee and in these negotiation proceedings Respondent No. 2 M/s. Dhan Laxmi Solvex raised final offer from Rs. 6.03 crores to that of Rs. 8.01 crores (Eight crore one lakh). Other tenderer also raised the price, but they all were less than Rs. 8.01 crores (Eight crore one lakh). 6. Learned Company Court called the representatives of Financial Institutions i.e., State Bank of India and IDBI in person to ascertain their views about the price. They appeared in person and submitted that the offer made by respondent No. 2 was reasonable and commensurate with the valuation of the assets. The Court also called the views of Government regarding sale/transfer of land, leased out to the Company in liquidation. The Official Liqudator submitted the details after receiving the same from the State Government. They were filed in O.L.R. No. 32/08, dated 12-6-2008. 7. When the matter was pending before the learned Company Court, whether the offer of Respondent No. 2 M/s. Dhan Laxmi Solvex (P.) Ltd. should be accepted or not, the appellant filed I.A. No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relation to the properties which were the subject-matter of sale in favour of successful bidder-Respondent No. 2. It is this order which is under challenge in this appeal. We have heard learned counsel for the parties and perused the entire record. 11. Learned counsel for the appellant has made his submissions as under: That on 2-9-2007, Stressed Assets Stabilization Fund (SASF) had sent a proposal of the appellant to Official Liqudator, regarding proposal of the appellant to purchase assets of the company worth Rs. 6.01 crores which was higher than the previous bids received at the time of last auction in the month of August, 2006, but the Official Liqudator has not considered this letter (filed along with application for intervention). On 9-5-2008, the appellant has also directly sent proposal to the Official Liqudator for purchasing the entire movable and immovable property of respondent No. 1 for Rs. 8.05 crores, but the Official Liqudator has not considered these letters and also did not apprise the learned Company Court for the reasons best known to him. Relying on the Supreme Court judgments passed in the cases of FCS Software Solution Ltd. v. Law Medical Devices L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2 to bring it into operation. According to the learned counsel in the case of F.C.S. Software Solution Ltd. ( supra ) even after execution of sale-deed, handing over of possession and incurring of expenses by the purchaser, the Court set aside the sale and accepted the highest offer granting solatium to the purchaser for his trouble and disappointment. In sum and substance, the argument of the learned counsel for the appellant is that paramount consideration for sale of assets of the company under liquidation must to fetch the highest price and the appellant has increased a handsome amount of Rs. 74,00,000 (Seventy Four lakh) against which Respondent No. 2 has declined to increase the offer, therefore, the impugned order may be set aside and offer of the appellant be accepted. 13. In reply, learned counsel for the Respondent No. 2 has urged as under: That after, acceptance of offer of Respondent No. 2, the Official Liqudator has given possession of the factory and normally in such case, possession is being given first in time and thereafter, the documents are to be executed, therefore, the Official Liqudator has not committed any breach of law especially when there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nxious consideration over the issue, we do not find any merit for interference in this appeal. 15. It is evident from the impugned order and the record of the learned Company Court that the matter was pending for sale of assets of the company under liquidation since 2005 and from time to time the Company Court has taken effective, adequate legal steps for fetching highest price for assets of the company. The Sale Committee was constituted of representatives of the secured creditors, valuation report of the company assets was called from authorized experts, publication was made for inviting tenders and as many as five companies (parties) made offers. The Company Court was not satisfied by offer in secret tenders, directed the Official Liqudator to negotiate with the parties with a sole intention to fetch maximum price to satisfy the creditors. 16. The proceeding of sale was going on since 2005, but the appellant did not participate before the Official Liqudator and filed intervention application before the Company Court with a contention that SASF sent letter dated 2-7-2007 to the Official Liqudator informing that the appellant is interested in purchasing the assets for Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide by the Company Court and the Appellate Court can also exercise his power, if no effective steps were taken or there was fraud and collusion between the parties. In the instant case, neither of both elements is present. Mere highest offer of Rs. 4,00,000 (four lakhs) before the Company Court and increase of offer before the Appellate Court after more than one month would not be a ground for interference in appeal in view of the Supreme Court judgment passed in the case of Valji Khimji Co. ( supra ) when there is no fraud or collusion can be inferred or alleged. 18. It is pertinent to mention here that the Official Liqudator has acted in hasty manner by giving possession of the assets of the company to Respondent No. 2 immediately on the next day of passing of impugned order by the learned Company Judge in favour of Respondent No. 2 and he had not apprised the Appellate Court when the appeal was heard at motion stage itself on 12-8-2008, in presence of both the respondents and learned counsel for the Respondent No. 2 could not undertake not to get the documents executed in favour of his client. Probably if this Court would have been apprised of handing over of possession, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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