9911796707
TMI Blog2012 (12) TMI 771X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.2006. It will not be inappropriate to remind oneself that extension sought for was only up to 31.08.2006, whereas the Court granted extension up to 15.09.2006 and therefore, on that short ground, the appellant-appellant must fail in getting any relief from this Court. The submission made by applicant that he could not act within the period extended because there was OJ Appeal No.43 of 2005 pending and it was decided that Company Application No.327 of 2006 (praying for extension) will be considered after OJ Appeal No.43 of 2005 is decided, which came to be decided only on 01.08.2008, this makes the case of the appellant-applicant no better, because if the bonafides of the appellant-applicant are to be tested, it has not been placed on record that between 11.06.2006, which was the last date for payment as per the sale confirmation order and 15.09.2006, till which date the extension was granted, any substantial payment was made by the applicant, except making an application to permit him to make payment. No right is created in favour of the appellant-applicant after 20.06.2011. Whatever rights the applicant is having, are flowing from order dated 22.02.2006. The question which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Balkrishna Thakkar) also filed OJ Civil Application No.217 of 2005 in OJ Appeal No.43 of 2005 and prayed for stay of auction proceedings for the sale of the said property which was to take place before the Company Court. The Division Bench of this Court passed an order in OJ Civil Application No.217 of 2005 in OJ Appeal No.43 of 2005 and granted ad interim stay against auction proceedings of the Kalol property pending before the Hon'ble Company Court. The relief granted by the Division Bench was in terms of para-10-A, which reads as under:- "10 vA. pending the admission hearing and final disposal of the present appeal your Lordship be pleased to stay and suspend further proceedings of auction of the properties of Mahnedar Mill Ltd. (in liquidation) pending before the learned Company Judge in Company Petition No.152 of 2000." 2.3 As a subsequent development, the Hon'ble Company Court confirmed the sale of the said Kalol property in favour of the present appellant-applicant for a consideration of Rs. 10.20 crores on the terms and conditions approved earlier and the terms recorded in order dated 22.02.2006 passed in Company Application No. 240 of 2005. The learned Company Judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - "(a) That the delay in making payment of the balance purchase consideration amount be condoned and the period for making payment of the balance purchase consideration amount be extended up to and inclusive of 31st of August, 2006." (emphasis supplied) 2.7 This Judges' Summons is dated 22.06.2006. In the affidavit in support of Judges' Summons also, it is mentioned that:- "(1) .......... Of the total purchase consideration of Rs.10.20 crores the Applicant was required to pay 25% thereof by 10th March, 2006. 25% of the total purchase consideration of Rs. 10.20 crores comes to Rs. 2.55 crore which the Applicant has duly paid before the 10th March, 2006. As required by the said order dated 22-2-2006. The balance amount of Rs. 7.25 crore (Rs. 7.65 crore less 41 lac being EMD already lying with the Official Liquidator) was required to be paid within three months of 10-3-2006 that is to say by 11-6-2006." 2.8 It is thereafter mentioned in para-(3) as under:- "(3) It is humbly submitted that the Applicant could not pay the balance amount of the purchase consideration within the prescribed time on account of serious sickness in the family of one of its active partners and als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore dated 17.8.2006 drawn in favour of the Official Liquidator for Mahendra Mills Limited, which is ordered to be kept with the Official Liquidator. He has also requested that time limit for making remaining payment may be extended upto 15th September 2006 in view of the flood-situation prevailing in the State. Time to make the remaining outstanding dues is extended upto 15.9.2006. S.O. To 30.8.2006." 2.11 On perusal of the aforesaid two orders, it is clear that the Court granted extension up to 15.09.2006 and no other order is brought to the notice of this Court to show that any further extension was granted for payment of balance purchase consideration. 2.12 It is the case of learned Advocate Mr. A.L. Shah appearing with learned Advocate Mr. A.B. Munshi for the appellant-applicant that it was on account of pendency of OJ Appeal No.43 of 2005 that the payment was not made and the whole thing remained pending. Learned Advocate for the appellant-applicant submitted that an order was also passed on 30.08.2006 in Company Application No. 327 of 2006, whereby the appellant-applicant was permitted to pay a sum of Rs.2 crores by Demand Draft. The relevant part of the order reads under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the case relates to the auction of certain properties in a winding up proceeding through the Official Liquidator. The petitioner's bid which was initially accepted by the learned Company Judge, was subsequently rejected on account of the fact that the petitioner was unable to put in the balance sale price, as directed by the Court. It is against the said order that the appeal" was preferred by the petitioner herein before the Division Bench and the same is pending. By virtue of an interim order passed in the appeal, the entire proceedings before the Company Judge was stayed. In effect, the auction has been stayed. The applicant in I.A. Nos.2-3 has come forward before this Court with a bid of much higher amount than was quoted by the petitioner herein and also by Anjana Constructions, the respondent No.1 herein. Having considered the submissions made on behalf of the respective parties, we are of the view that the appeal before the Division Bench of the High Court should be heard and disposed of early so that the auction proceedings may either be confirmed in favour of the petitioner or the matter can be reconsidered by the learned Company Judge. Accordingly, we dispose of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner to withdraw this petition. The Special Leave Petition is, accordingly, dismissed as withdrawn. (emphasis supplied) 2.17 After disposal of the Special Leave to Appeal by way of withdrawal, the appellant-applicant approached this Court and filed review application being Misc. Civil Application No.35 of 2012. Learned Advocate for the appellant-applicant submitted that as there was delay, Civil Application for condonation of delay was also filed, which was allowed and the Misc. Civil Application (for review) was taken up for consideration. The said Misc. Civil Application came up for consideration of the Division Bench of this Court, which disposed of the same by judgment and order dated 23.08.2012. After setting out all the facts in detail, the Division Bench disposed of the Misc. Civil Application in following terms:- "17. It is true that if any party to the proceedings has not raised any type of such objection, then such may not be heard to raise the objections at the later stage after having partly lost in the matter, but such question has simultaneously been falling on the spear of judicial discipline. We find that if the order is recalled and the appeal is re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Learned Advocate for the appellant-applicant submitted that meaning thereby the right of the applicant to have the property on such terms and conditions as may be prescribed by this Court at the time of hearing and deciding of OJ Appeal No.146 of 2006 is available to the applicant under this order. Learned Advocate for the appellant-applicant-submitted that, that is why the Court further stated that:- "17. (a) It will be open to the parties to the proceedings as well as to the third party, if any, to contend that the right is so created, be maintained and the action taken after the order dated 20.6.2011 by the OL and the further incidental action thereto by all concerned may also be saved and may not be upset or nullified..... " 3.2 Learned Advocate for the appellant-applicant submitted that the Division Bench while reviewing and recalling its order dated 20.06.2011 specifically reserved 'right to contend' in favour of the parties and the present applicant is very much a party to the proceedings and therefore, its right to contend is also reserved by the Court. Learned Advocate for the appellant-applicant submitted that the Court was pleased to observe that:- "17. (a)...... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2011 was filed on 05.07.2011 and on that Official Liquidator's Report, the learned Company Judge passed order on 04.10.2011, giving certain directions, which are as under:- "14.1 It is clarified that the below mentioned directions and present order are passed with a view to ensuring that the process of getting fresh valuation and subsequent process for disposed of property may not be delayed, more particularly, because on earlier occasion, the Apex Court has desired that the proceedings pertaining to the property in question may conclude on an early date. The relevant observations by the Apex Court read thus; "This request is being made particularly on account of the fact that the company is in liquidation and the dues of the workmen and various creditors are required to be paid. In the appeal, the respondent No.1 has already been given leave to intervene. Likewise, the applicant in I. A. Nos. 2-3 of 2011, will also be entitled to intervene and make submissions in the appeal for which a formal application is to be made and the same is to be allowed by the Appellate Court. If the appeal is heard and decided against the petitioner herein, the matter should then be remanded to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conditions as may be deemed fit by this Court. The indication was that on payment of interest on such rates as deemed proper by this Court. II. Alternatively it was suggested that in the event the Court finds it not acceptable the aforesaid course of action then in that case, the applicant should be allowed to retain the portion /part of the property to the extent he was able to pay price and the remaining property may go back to the Official Liquidator, who may then deal with the property in accordance with law, meaning thereby selling the same by auction. 6. The matter is heavily contested by learned Advocate for the secured creditors, learned Advocate for the workers and necessary assistance is provided by learned Advocate for the Official Liquidator. 7. Learned Advocate for the workers submitted that according to the information available to him, today, the property in question is worth not less than Rs. 100 crores by any standard. Learned Advocate for the Official Liquidator submitted that a valuation report dated NIL December 2011 is to the effect that the property is worth Rs.123.56 crores (approximately) as the land is valued at Rs. 7800 per sq. mtr. Learned Advocat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for was only up to 31.08.2006, whereas the Court granted extension up to 15.09.2006 and therefore, on that short ground, the appellant-appellant must fail in getting any relief from this Court. 8.4 The submission made by learned Advocate for the appellant-applicant that he could not act within the period extended because there was OJ Appeal No.43 of 2005 pending and it was decided that Company Application No.327 of 2006 (praying for extension) will be considered after OJ Appeal No.43 of 2005 is decided, which came to be decided only on 01.08.2008, this makes the case of the appellant-applicant no better, because if the bonafides of the appellant-applicant are to be tested, it has not been placed on record that between 11.06.2006, which was the last date for payment as per the sale confirmation order and 15.09.2006, till which date the extension was granted, any substantial payment was made by the applicant, except making an application to permit him to make payment. 8.5 Coming to the niceties of law, by order of recall (dated 23.08.2012), the Division Bench made it very clear in Clause-(a) of para-17 that:- "(a) The Order dated 20.6.2011 passed in O. J. Appeal No.146 of 2008 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crores. C. Anajana Construction filed OJCA No.205 of 2009, offering price of Rs. 45-50 crores. D. Kamla Amrut Infrastructure filed OJCA No.282 of 2011, offering price of Rs. 48 crores. 9.1 Learned Advocate for the secured creditors vehemently submitted that it is a settled position of law that 'Company Court is a custodian of the property for the benefit of the workers and secured creditors'. He submitted that it is the prime duty of the Company Court to see that the property, of the company going into liquidation fetches maximum amount so that its debts can be satisfied to the maximum extent. In the present case, the total dues of the company in liquidation are around Rs. 100 crores, to be precise as stated hereinabove, the dues of the workers are Rs. 17.8 crores, as on the date of winding up and of other secured creditors are to the tune of Rs. 116 crores, as on the date of winding up. In light of that, to accept the prayer of the appellant-applicant to allow him to take this property for Rs.10.20 crores, for which he of his own missed the bus in the year 2006, will not be possible under any circumstances. Learned Advocate for the secured creditors invited attention of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate for the secured creditors invited attention of the Court to paras-2, 3 and 4 of the said judgment. Incidentally, the judgment in the case of Divya Manufacturing Company (P) Ltd. (supra) is relied upon by the Hon'ble the Apex Court, quoting para-13 of the said judgment, wherein the Hon'ble the Apex Court did say that:- "4. ** ** ** "13............. The real criteria is that the property of the Company in liquidation should fetch maximum price............." The Hon'ble the Apex Court also observed that:- "4. ** ** ** "13. ..... Irrespective of the fact that whether any such condition is there or not, the Court is well within its power to reconsider its decision especially when a higher amount is offered and ultimately, it is in the advantage and benefit of the secured creditors and workers." 10. It will not be out of place to mention here that line of judgments are to the effect that even in the matters of confirmed sale, if the Court is told that there is another party, who is offering a substantial higher amount, the Court can always look into that. In the present case, the appellant-applicant is a defaulte ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
