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TMI Blog2015 (3) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... crued interest, if any, to the petitioner within two weeks from date. - Decided in favour of appellant. - W.P.(C) 2005/2012 & CM No.16665/2013 - - - Dated:- 10-9-2014 - MR JUSTICE VIBHU BAKHRU, J. For the Petitioner : Mr Amit Sibal, Sr. Advocate with Mr Vikram Mehta, Mr Varun Tikmani and Mr Gaurang Panandiker For the Respondents : Mr P.S. Bindra. JUDGMENT VIBHU BAKHRU, J (ORAL) 1. The petitioner has filed the present petition inter alia praying that respondent no.1 be directed to refund a sum of ₹ 3,31,00,000/- deposited by the petitioner as a bid amount alongwith interest @18% per annum from the date of deposit till the date of payment. 2. The controversy to be addressed in the present petition is whether the petitioner is entitled to refund of the amount paid by the petitioner pursuant to its bid in an auction of movable assets, as the seller has failed to deliver the possession of the auctioned assets. 3. Briefly stated the facts are that respondent no.1 (IFCI) had taken over possession of certain properties of M/s Parekh Platinum Ltd. (PPL) under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parts of the said assets had been removed. 6. According to the petitioner, the said assets had been stripped of valuable components which had considerably reduced the value of the said assets. The petitioner declined to take possession of the said assets and by letter dated 06.02.2012 called upon IFCI to refund 50% of the purchase price on account of fall in the value of the said assets or in the alternate refund the entire consideration alongwith interest @18% per annum. IFCI carried out fresh inventory and according to the IFCI, the value of the said assets had only dropped by ₹ 2.92 lacs. IFCI, thereafter, called the petitioner to take possession of the said assets and further threatened that on failure to do so the secured lenders will take all appropriate steps including termination/breach of contract and in such event the amount so deposited shall stand forfeited . 7. It is contended on behalf of the petitioner that the petitioner cannot be compelled to take the possession of the said assets for the amount bid by the petitioner as there had been a significant change in the circumstances. It is contended that since IFCI was not in a position to handover the posses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re had not been followed nor any of the investigation made and, when it had been inquired about the police officers by the company, it had been replied by the police officer that you have mentioned name Parag Platinum in the complaint but, it is Parekh Platinum. At that point of time the complainant company had informed to have problem of Gujarati language and therefore, through over site, it had been written Parag instead of Parekh due to our pronunciation. But, address is common. And the written complaint has been submitted with regard to the company which is in the custody. Name of the property is not important but, vital is thief. Though, the police officer had informed that you application has been filed. And your application will be paid an attention only after, approaching of the court and obtaining court order. It had been informed. 7. Therefore, the Parekh Platinum Company having its address - Plot number- 66, Near Mother Dairy, G.I.D.C., Bhat, Gandhinagar property lying in the custody of the complainant company, and the complaint company had engaged Vishal Security Agency and Super Security Service , those guard either had hidden or anyhow, some thief had illegally ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nderstood from the Terms and conditions of sale for sale of plant and machinery of M/s Parekh Platinum Ltd. as was circulated by IFCI in October 2011. Although Clause 2.10 of the said terms and conditions provides that The contract shall be treated as having been entered into as soon as the Letter of Acceptance is issued by Authorised Officer, IFCI Ltd., to the successful bidder. , it was, plainly, not the intention of the parties that title of the said assets would be transferred on acceptance of the bid and prior to receipt of the entire consideration by IFCI. The terms and conditions also expressly provided that a Sale Certificate, in terms of the Security Interest (Enforcement) Rules, 2002 (in short 2002 Rules ), would be issued after IFCI had received full consideration. It is also one of the express terms that purchaser would take necessary steps to take over possession of the assets immediately. The relevant clause of the terms and conditions regarding delivery of possession is quoted below:- DELIVERY PERIOD/POSSESSION: After receipt of full and final payment in lieu of the total sale consideration of the assets, IFCI Ltd., will issue Certificate of Sale as prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olen assets is also not ascertained as yet. IFCI has also not canvassed the contention - in my view rightly so - that title to the said assets had passed to the petitioner. 18. It is the stand of IFCI that Clause 2.6 of the terms and conditions absolves IFCI of its responsibility as to the deficiency in the said goods. The said clause reads as under:- 2.6 All the assets offered for sale are on AS IS WHERE IS BASIS AND WHATEVER THERE IS BASIS . The quantity indicated, if any, are purely indicative without any guarantee and IFCI Ltd., shall not entertain any claim/complaint from the buyer for any deficiency in size/number etc., for recovery of whole or any part of the bid/purchase money, loss of profit/interest, damages etc. 19. In my view, the stand of IFCI is patently erroneous and Clause 2.6 has to be read in conjunction with Clause 2.4 of the said terms and conditions which provided for inspection of the assets to the interested parties. In another words, IFCI had made it clear that parties would physically inspect the assets at site and submit their bids. Clause 2.6 only absolved IFCI from any variance between description of the goods and those offered at site. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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