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TMI Blog1996 (2) TMI 536X X X X Extracts X X X X X X X X Extracts X X X X ..... to sell the above properties. By its order dated November 23, 1983 the High Court granted such power subject to the condition that it would be exercised only with the permission of the Court and the concurrence of 3/4th on the total number of trustees in office. Armed with the above order the trustees invited offers for purchase of the property and on receipt of some offers sought permission of the High Court to sell the same at the highest price offered which was granted on February 9, 1984. However, inspite of the permission so granted, the trustees did not sell the property at the highest price offered, which was ₹ 3,15,000/- till then, and instead thereof invited, and received, fresh offers including one from the respondent Nos. 10 to 15 (hereinafter referred to as the 'purchasers') who are brothers and members or a joint family, for ₹ 9,00,000/-. By a resolution dated December 7, 1989 the trustees accepted the offer of the purchasers and entered into a formal agreement for sale with them on December 15, 1989, after receiving a sum of ₹ 1,50,000/- an earnest money. Then on January 15, 1990, the trustees applied for the clearance certificate required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rchasers on April 12, 1990 and all the tenants of the property , including the appellants, were intimated of such sale. Thereafter on July 3, 1990 the appellants sent a notice, through their Advocate, to the Trust, the trustees and the purchasers alleging that they had played a fraud on the Court, the Registration Department and the income-tax Department when they declared that the property fetched a highest offer of ₹ 9,00,000/- as its price, in that, they suppressed the fact that they (the appellants) had offered to purchased the property for ₹ 14,20,000/-. It was further alleged that the purchasers were aware of their offer as they were informed of the same through one of them (respondent No. 11). The appellants gave out that in case the property was not said to them at the price offered by them on or before July 10, 1990 they would not only taken action to set aside the said but lodge complaints with the registration and income tax departments and also move the High Court for taking action against the Trust for filing false affidavit. In their separate replies thereto, the respondent denied the allegations made by the appellant; and the purchasers stated in their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd they had no knowledge whatsoever of the alleged offer made by the appellant. Besides, they reiterated the stand taken by them in their reply to the notice of the appellants dated July 3, 1990. While the application for setting aside the sale was awaiting disposal, the appellants filed a further affidavit on January 19, 1994 offering to pay a total sum of ₹ 19,40,000/- for purchasing the property. After hearing the parties and taking into consideration all facts, including the above offer, the learned Judge allowed the application principally on the ground that the trustees had played fraud on Court by not disclosing the highest offer of the applicants (the appellants herein) and colluding with the purchasers and passed the following order: That on receiving a sum of ₹ 19,40,000/- (Rupees Nineteen lakhs, and forty thousand only ) the Ist Respondent herein, do execute and register and sale deed in respect of the property more fully set out in the Schedule hereto in favour of the Applicants herein; That from and out of the said sale consideration the earlier Purchasers/Respondents 11 to 15 herein, shall be paid a sum of ₹ 9,00,000/- (Rupees Nine lakhs on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It appears that in arriving at the above conclusion, the Bench relied upon the following statements made in the counter affidavit filed by the trustees in opposing the application of the appellants for setting aside the sale as, according to the Bench, those statements were not controverted by filing a reply thereto: However, since an offer was made by the Applications, the Trustees discussed the matter. In the course of the discussion, it was made known to the Applicants that the sale of the property would be as is where is condition and the Applicants that the sale of the property would be as is where is condition and the Applicants were required to confirm that the offer would be for sale without vacant possession. The Applicants promised to come back, but never responded thereafter. The Applicants did not follow up the matter further and it was very evident from the conduct of the Applicant that they were only trying to protract the matter and put for in the agreed sale to Seshmal Jain and five others. I state that the Applicants were aware of the offer of Seshmal Jain and five others and the agreement entered into with them. The attempt of the Applicants was only to sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mised, the trustees filed within a fortnight or their above reply the application seeking permission to sell the property wherein they did not disclose the appellants' offer and on the contrary stated, inter alia, as follows: The applicant states that by the Order dated 9th February 1984, this Hon'ble Court had permitted the Trustees to sell the schedule property at the highest price offered. The Applicant is advised and believe the same to be true that in view of the order of this Hon'ble Court, it would in order for the Trust to sell the property at the aforesaid highest offer received. However, the Applicant by way of abundant caution has been advised to approach this Hon'ble court to pray for and obtain a specific permission for the sale of the schedule property at the aforesaid highest offer of ₹ 9,00,000/-. The Applicant states that apart from calling for offers, the Trustees have made enquiries and have been duly satisfied that taking into account the nature and condition of the building, the number of tenants occupying the building and the fact that the property is sought to be sold in as is where is condition along with the tenants without va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccording to the Bench they were not controverted through a rejoinder. Even it we proceed on the basis that those statements remained uncontroverted still they cannot be relied upon as they do not stand the test or probability and were clearly made as on after thought. According to the trustees' version made therein they discussed about the offer of the appellants and then made it known to them (the appellants) that the condition'; and therefore they asked the appellants to confirm that the offer would be for sale without vacant possession but the appellants did not respond though they had promised to come back. Certain other averments have also been made therein to contend that the appellants were not serious about the offer. No correspondence much less contemporaneous record, nor any other material was produced before the Court in support of the above claim made in the counter affidavit. At the risk of repetition, it may be recalled that they would discuss about their offer and asked them to wait for their decision. Instead of keeping to their promise of communicating their decision they moved the Court a few days later where they took a diametrically opposite stand. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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