TaxTMI 
TaxTMI 
2004 (9) TMI 396
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....ns of the Companies Act. The same mill was closed on 31-3-1987. This Court has passed a winding up order dated 22-11-1991 in Company Petition No. 37 of 1987. The Official Liquidator took the possession of the property in question in 1992. 2.2 Situation and description of the property of the company in liquidation are as under: There is a property known as Vivekanand Mills property situated in T.P. Scheme No. 11 of Final Plot No. 39 which abuts on the main Rakhial Road which is a major route both for intercity and intracity public transport. This final plot is in the general industrial zone of the development plan of the Ahmedabad Municipal Corporation and is located at about a kilometer away on the east of the walled city of Ahmedabad. The land is also situated near Raipur Mills and Ramkrishna Mills (all these textile mills are closed down and their buildings and machineries are sold and are cleared off the site). This property is known as property in question. 2.3. The details of the vacant land of the company (in liquidation) are as under: SurveySq. YardsTotalRemarks no.Sq. Yards 428193Leasehold 21210040293Leasehold 79780Ownership 5A3993Ownership 5B/1629Ownership 7(P)6....
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....n question on 17-4-2000 in Sandesh. Thereafter, this Court passed an order and fifth attempt was made to sell the land. The Sale Committee fixed upset price of the land in question at Rs. 3.60 crores. At that time, one offer was received for Rs. 2.60 crores from one Monali Textiles which was rejected because of conditional offer and it was not as per the terms and conditions stipulated by the Court. 2.9 It may be noted that, thereafter, the Official Liquidator again published advertisements on 4-8-2000 in Gujarat Samachar Ahmedabad Edition and Indian Express Ahmedabad Edition. Thereafter, this Court passed further orders and 4th attempt was made by the Sale Committee in August 2000 fixing upset price at Rs. 2.80 crores. The Official Liquidator spent Rs. 13,107 for the cost of advertisement. At that time, one offer was received from one Mahalaxmi Textiles which was rejected because of conditional offer and it was not as per the terms and conditions stipulated by the Court. 2.10 From the record, it appears that this Court passed an order in September 2000 in Civil Application No. 360 of 2000 regarding sale of the land in question. The Sale Committee received an offer from Shiva Cor....
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....e Developers Pvt. Ltd. has made a net offer of Rs. 1.81 crores exclusive of all taxes and dues payable to Ahmedabad Municipal Corporation and other authorities. If any party had deposited the EMD earlier by demand draft and the EMD is still lying with the Official Liquidator, the party shall produce the proof for the same before the Official Liquidator at 11.00 a.m. on 5-12-2003 and if any amount less than Rs. 28 lakhs was given by demand draft by way of EMD, the party shall bring the EMD for the balance amount by a demand draft." 2.14 In view of the aforesaid circumstances, one Narnarayan Estate Developers Private Limited send an offer for Rs. 1.81 crores excluding all tax liability of the Ahmedabad Municipal Corporation, which shall be borne by the purchaser. The Sale Committee decided to recommend the offer on the said terms and conditions. 2.15 Thereafter, M/s. Narnarayan Estate Developers Pvt. Ltd. filed Company Application No. 277 of 2003 in Company Application No. 37 of 1983 with prayer that this Court may be pleased to accept the offer made by the applicant for the purchase of land in question for Rs. 1,71,00,000 and the Official Liquidator may be directed to execute the ....
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....is submitted that this being the highest offer, the same may be accepted and the orders dated 26-12-2003 and 5-12-2003 may be recalled and reviewed accordingly. 3.2 One Devanand Khemaji Vachheta has filed affidavit in reply on behalf of the opponent No. 3, M/s. Khemaji Jodhaji & Brothers on 19-2-2004 and opposed the said application. 4. Contentions raised by learned counsel Mr. S.N. Soparkar as regards maintainability of the application 4.1 Before the learned counsel, Mr. Mihir Thakore, could argue the matter, on behalf of the applicant, the learned counsel, Mr. S.N. Soparkar, appearing for opponent No. 3, has raised the following contentions against the maintainability of the application: 4.2 Preliminary contentions raised by learned counsel Mr. S.N. Soparkar 4.3 The present application is for review of the order passed by this Court on 26-12-2003. The Court has passed order in the review proceedings as the Court has reviewed its earlier order dated 5-12-2003. Learned counsel has submitted that, in view of the provisions of Order 47, Rule 9 of the Code of Civil Procedure, review of the order passed in the review proceedings is not maintainable as the same is not entertainable....
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....d, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order." [Emphasis supplied] 5.3 Rule 9 of Code of Order 47 of the Code of Civil Procedure reads as follows: "Bar of certain applications.-No application to review an order made on at application for a review or a decree or order passed or made on a review shall be entertained." 5.4 Relying upon the aforesaid provisions, the learned counsel for the applicant has made the following submissions : 5.5 In the present case, the applicant is not an aggrieved party, nor was the opponent No. 3 an aggrieved party when he moved Civil Application No. 209 of 2003 and made offer of Rs. 20 lakhs more than the earlier successful bidder, and, in such a case, when a party is not an aggrieved party, then its application for modification/recall of an order cannot be termed as a 'review application' in terms of Order 47, Rule 1 of the Code. 5.6 The review application is maintainable only when the party aggrieved by an order has- (i)discovered new and important matter or evidence which he could not prod....
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.... Code is different from the very restricted power which exists in England appears plain from the decision of Charles Bright & Co. v. Sellar (1), where the Court of Appeal discussed the history of the procedure in England and explained its limits." [Emphasis supplied] (p. 150) 5.8 The learned counsel has also referred to and relied upon the judgment of the Court of Appeal, in the case of Bisheshwar Pratap Sahi v. Parath Nath AIR 1934 PC 213, wherein, the Court (Privy Council) observed as under: "It is obvious that the above mentioned ground is not one of the grounds specified in Order XLVII, Rule (i) and the application for review can only be supported, if at all, by reference to the words 'or for any other sufficient reason'. These words are of a general character, and apart from authority would seem to leave the sufficiency of the reason to the unfettered discretion of the Court. But there is authority to the contrary, and it has been held that a limited meaning must be put upon the above mentioned words." [Emphasis supplied] (p. 216) 5.9 The learned counsel also referred to and relied upon the judgment of the Supreme Court in the case of Lily Thomas v. Union of India [2000] 6 ....
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.... Rule 1 of the Civil Procedure Code and, therefore, it cannot be contended by the opponent No. 3 that the present application seeks to review an order passed on a review application. Learned Counsel has further submitted that the order which the present applicant seeks to be modified/recalled is not an order that has been passed in an adversorial proceeding. It is, further, submitted that the Court did not pass an order in an adversorial proceeding where the Court has to decide as to right between the parties and, therefore also, in strict sense, this is not a review application. 5.13 While deciding upon the present application or also at the time of passing the order dated 26-12-2003 upon the application of the opponent No. 3, this Court was exercising jurisdiction under Rule 9 read with Rule 6 of the Companies (Court) Rules, 1959. Both the applications were filed before this Court under Rule 9 of the Companies (Court) Rules, 1959 and this Court exercises inherent powers in deciding these applications. Since the Court exercises inherent powers given to it under the Companies (Court) Rules, 1959, to decide the present application, the provisions of Order 47 of the Code of Civil Pr....
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....erty of a company by public auction the whole thereof to any person or body corporate or to sell the same in parcels with the sanction of the Court. "457. Powers of Liquidator.-(1) The liquidator in a winding up by the Court shall have power, with the sanction of the Court,- (a)to institute or defend any suit, prosecution, or other legal proceeding, civil or criminal, in the name and on behalf of the company; (b)to carry on the business of the company so far as may be necessary for the beneficial winding up of the company; (c)to sell the immovable and movable property and actionable claims of the company by public auction or private contract, with power to transfer the whole thereof to any person or body corporate, or to sell the same in parcels; (d)to raise on the security of the assets of the company any money requisite; (e)to do all such other things as may be necessary for winding up the affairs of the company and distributing its assets. (2) The liquidator in a winding up by the Court shall have power- (i)to do all acts to execute, in the name and on behalf of the company, all deeds, receipts, and other documents, and for that purpose to use, when necessary, the compan....
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....f the Court the offer does not by mere acceptance get any vested right in the property so that he may demand automatic confirmation of his offer. The condition of confirmation by the Court operates as a safeguard against the property being sold at inadequate price whether or not it is a consequence of any irregularity or fraud in the conduct of the sale. In every case it is the duty of the Court to satisfy itself that having regard to the market value of the property the price offered is reasonable. Unless the Court is satisfied about the adequacy of the price the act of confirmation of the sale would not be a proper exercise of judicial discretion. In Gordhan Das Chuni Lal Daduwala v. T. Sirman Kanthimanthinatha Pillai AIR 1921 Mad. 286, it was observed that where the property is authorised to be sold by private contract or otherwise it is the duty of the court to satisfy itself that the price fixed is the best that could be expected to be offered. That is because the Court is the custodian of the interests of the company and its creditors and the sanction of the Court required under the Companies Act has to be exercised with judicial discretion regard being had to the interests o....
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.... offered by the appellant. In every case it is not necessary that there should be fraud in conducting the sale, though on its proof the sale gets vitiated and it is one of the grounds to set aside the auction sale. Therefore, the discretion exercised by the learned Single Judge cannot be said to be unwarranted. Under the circumstances, we are satisfied that the Division Bench of the Calcutta High Court committed manifest illegality in interfering with the order of the learned Single Judge. The appeal is allowed. The order of the Division Bench is set aside...." (p. 791) 5.22 In Lica (P.) Ltd (No. 2) v. Official Liquidator [1996] 85 Comp. Cas. 792 , the Supreme Court dealing with a similar question observed thus : "The purpose of an open auction is to get the most remunerative price and it is the duty of the Court to keep openness of the auction so that the intending bidders would be free to participate and offer higher value. If that path is cut down or closed the possibility of fraud or to secure inadequate price or underbidding would loom large. The Court would, therefore, have to exercise its discretion wisely and with circumspection and keeping in view the facts and circumsta....
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....in the minds of people is preserved. 6. Submission of learned senior advocate, Mr. S.N. Soparkar on behalf of the respondent No. 3 6.1 Learned Senior Counsel, Mr. S.N. Soparkar, has submitted and elaborated his submission which I have noted earlier that the application filed by the opponent No. 3 is a review application under Order 47, Rule 1 of the CPC, because the order passed becomes final and the party has acted upon the said order by depositing the amount, taken possession and incurred expenses. He further submitted that the present applicant is not a party to any proceedings and, therefore, the order cannot be recalled and/or modified at the instance of the present applicant. The word 'Recall' and 'Review' has the same meaning. The expression 'recall a judgment' is to be understood either to revoke, cancel, vacate or reverse a judgment when there is an error in the order or judgment which is sought to be reversed. 6.2 The provisions of the Companies Act read with the Company (Court) Rules and also read with the provisions of the Civil Procedure Code, do not confer any power upon the Company Court either to recall or revoke the order pronounced in the open court unless and ....
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....ows that it amounts to recall/review of the order passed by the Court. When there is no mistake apparent on the face of record nor any new grounds have been mentioned in the application, the present application is not maintainable at law and deserves to be dismissed with costs. 6.7 It is further submitted that the applicant has relied upon a judgment of the Privy Council, AIR 1922 p. 122, i.e. Chhajju Ram's case (supra) which is not applicable in the present case, and, on the contrary, it is helpful to the opponent No. 3 as the opponent No. 3 had satisfied all the three grounds before filing the review application. It is submitted that the sufficient grounds for review of an order means the grounds should be analogous to the grounds mention therein. Neither new evidence is brought on record nor any mistake apparent on the face of the record has been pointed out by the applicant so as to review or recall the order in question. 6.8 It is submitted that considering this view of the Privy Council and the Supreme Court cases and comparing with the facts of the present case, which has no application in the facts of the present case because the applicant was never a party to the proceed....
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....g or modification of the order, it is a review application as per the say of the applicant. It is submitted that once the Court reviewed its order, the Court cannot review or recall the same order under Order 47, Rule 1(9) of the Code and, therefore, the present application must fail and meet with the fate of dismissal only. 6.12 The decisions mentioned by the applicant pertain to review and the applicant has not mentioned under which provision the present application came to be filed before this Court. 6.13 It is the case of the respondent No. 3 that the contention of the applicant is that the Code of Civil Procedure is not applicable directly to the provisions of Companies Act. The learned advocate for the respondent No. 3 submitted that the said contention of the applicant is not right and in support of the same he has relied upon the following decisions in this behalf and made following submissions. 6.14 In the case of Saurashtra Cement & Chemicals Industries Ltd. v. Esma Industries (P.) Ltd. [1990] 69 Comp. Cas. 372 , the Gujarat High Court held as under: "In my view, therefore, before applying any provisions of the Code to the proceedings under the Act, it would be necess....
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.... of things under the Act and the Rules. It is submitted that the inherent powers of the Court under section 151 of the CPC cannot be resorted to when the aggrieved party has got exclusive remedy available under law. Thus, where the relief sought required modification or correction of earlier order, such relief could be granted under the specific provisions of Order 47, Rule 1 of the Code and not under section 151 of the Code or under analogous Rules 6 and 9 of the Company (Court) Rules, 1959. 6.17 This view has also been taken by the Andhra Pradesh High Court in the case of O.P. Jalan v. Deccan Enterprises (P.) Ltd. [2000] 100 Comp. Cas. 193. It is submitted that the inherent powers of the Court is not a substantive power but merely a procedural power and it cannot be exercised if it conflicts with what is expressly provided by the Code. 6.18 The learned counsel submitted that for the disposal of the property, the Company Court has power under section 457 of the Act read with the provisions of Rules 272 and 273 of the Companies (Court) Rules. It is submitted that Rule 272 of the Companies (Court) Rules permits the Official Liquidator to sell the property of the Company in liquida....
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....rt has categorically mentioned that the possession of the property has not been handed over and no development on the land in question took place and, therefore, in that circumstances, the court was pleased to accept the higher offer because the earlier offer was at much below price. 6.22 While, in the present case, the sale was confirmed and before the amount came to be deposited, it was reopened on the application being made by the opponent No. 3 on the very next day. Therefore, the possession given was only paper possession and no further expenses have been incurred by the earlier purchaser. It is submitted that, in the present case, the sale came to be confirmed in favour of the present opponent No. 3 on 5-12-2003 and the physical possession was given. Thereafter, the opponent No. 3 has raised funds by executing deeds in favour of various persons and it is the normal practice available in the market as any development would not have 100 per cent finance and the investment has been made by raising funds from the market, and for that agreements have been executed. The Official Liquidator has produced on record a letter dated 8-3-2004 in which the opponent No. 3 stated that they ....
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....ed the Ahmedabad Municipal Corporation for payment of Municipal Taxes of Rs. 2,00,48,000 and the opponent No.3 had also submitted a blank cheque in favour of the Ahmedabad Municipal Corporation towards the dues of the Municipal Taxes/Education Cess. (v) The opponent No. 3 would make the remaining amount of Rs.1 crore on or before the due date specified in the order by this Court. (vi) The opponent No. 3 has also paid land revenue to the City Mamlatdar to the tune of Rs. 4,42,147. (vii) The opponent No. 3 has also appointed a contractor for repairing of the compound wall. The opponent No. 3 executed a contract on 27-1-2004 for an amount of Rs. 7,21,000 and the work is in progress. (viii) The opponent No. 3 has also appointed one M/s. A.K. Corporation for levelling the land as the land of M/s. Vivekanand Mills Limited has been remained idle and, therefore, the local people dig the land and taken away the soil. It is, therefore, necessary for the opponent No. 3 to level the land for making development of the land. The work is in progress. The entire work has been awarded to M/s. A.K. Corporation for an amount of Rs. 9.61 lakhs and an amount of Rs. 50,000 has already been paid as a....
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....f the facts that there was heavy rain in 2000, earth-quake in 2001 and communal riots in 2002 in Gujarat generally and particularly in Ahmedabad, the price of the land has not increased but to some extent it has decreased because of financial crisis in the market. He has submitted that, if this Court permits the applicant to rebid, there will be further inordinate delay. The workers are interested in more money if the Company fetches but the Court must consider that the workers should get money during their life-time. Some of the workers are very old people, and they will not be able to see the colour of money during their life-time if further bidding is again permitted. He has also stated that some of the workers have expired. In view of the same, he has stated that the Court may not entertain further bidding in this bahalf as per the offer of the applicant. 8. Conclusion 8.1 Review 8.2 I have considered the rival submissions made by the learned advocates for the parties. I have also considered the merits of the case. It is no doubt true that this Court has reviewed its order dated 5-12-2003 and confirmed the sale in favour of the opponent No. 3 by its order dated 26-12-2003. I....
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....t views on the same subject are possible, is no ground to review the earlier judgment passed by a bench of the same strength. [Re: Power to Review: Its scope. Mulla on CPC -16th Edition-Vol. 4-Page 4105] 8.6 In view of this, the application made by the present applicant does not fall strictly within Order 47 of the Code of Civil Procedure, i.e. review of the order. In view of the same, the contention of the opponent No. 3 that, in view of the Rule 9 of Order 47 of the CPC, the present application is not maintainable, cannot be accepted by this court. However, still the application made by the applicant is maintainable in view of the inherent provisions contained in Rule 9 of the Companies (Court) Rules. Rule 9 is analogous to section 151 of the CPC, which also provides for inherent powers. What is meant by 'inherent'? According to the dictionary meaning, "inherent" means 'natural', 'existing and inseparable from something', 'a permanent attribute or quality', 'an essential element, something intrinsic, essential, vested in or attached to a person or office as a right or privilege'. Inherent powers are thus powers which may be exercised by a court to do full and complete justice be....
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....cularly, observed as under: "It must be stated at the outset that rule 6 of the Companies (Court) Rules, 1959, provides that save as provided by the Act or by these rules, the practice and procedure of the Court and the provisions of the Code so far as applicable, shall apply to all proceedings under the Act and the Rules. Rule 9 provides that nothing in these rules shall be deemed to limit or otherwise affect the inherent powers of the Court to give such directions or pass such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. It is, therefore, obvious that sitting as a Company Court, I have ample jurisdiction both under the inherent powers of this Court as well as under the relevant provisions of the CPC as applicable to the company proceedings to pass appropriate orders for setting aside an ex parte order, if interest of justice requires me to do so. . . ." (p. 497) 8.10 I have already held that the present application is not maintainable under Order 47 of the Code under guise of either review or recall of the order. However, in view of Rule 9 of the Companies (Court) Rules, and, as the Court has always inherent power to review....
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....t of the walled city of Ahmedabad. The land is also situated near Raipur Mills and Ramkrishna Mills (all these textile mills are closed down and their buildings and machineries are sold and are cleared off the site). In view of the availability of large plots of industrial land in such large supply as compared to comparatively lessor demand for industrial land on account of recession in the industrial development and in the property market at large, the land value of the premises of Vivekanand Mills will be necessarily low. The value of developed land charged by the GIDC Industrial Estate at Odhav is at present Rs. 900 per sq. mtr. Actual rate at which lands are sold in this estate varies from Rs. 1,000 to Rs. 2,000 per sq. mtr. These are values obtainable for plots of comparatively small sizes. However, the area of Vivekanand Mills premises being very large i.e. 46,415 sp. mtrs. i.e. 55,698 square yards and in light of the large supply of the industrial land in relation to the demand in the area around Vivekanand Mills and general recession in the industrial development and in real estate market, the valuer valued the land of Vivekanand Mills at Rs. 450 per square yard. The total ....
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....ess from the year 2001-02 are to be decided. As and when they are decided, education cess bills from the year 2001-02 will be given and the amount of such education cess will also have to be paid. 9.7 In view of this letter of the Municipality, the purchaser has offered Rs. 2 crores and also accepted the additional liability of property tax. On over all consideration of the price offered by the respondent No. 3 along with the existing liability of the property tax as well as education cess, and the valuation report, in my view, the respondent No. 3 has offered a very fair, remunerative, adequate, and reasonable price before this Court. 9.8 This Court, while considering the facts and circumstances of the case, has to take a pragmatic view and dispose of the property by seeing that maximum price is fetched. However, merely because once the contract is completed, part of sale consideration is paid, possession has been handed over, the purchaser has also entered into third party contract and, thereafter, if a slight higher price is offered, this Court cannot set aside the sale confirmed in favour of the respondent No. 3 who had paid almost full consideration, incurred huge expenditur....
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.... What is meant by tender An invitation for tenders for the supply of goods or for execution of works is not an offer. It is a mere attempt to ascertain whether an offer can be obtained within such a margin as the employer is willing to adopt: it is an offer to negotiate, an offer to receive offers. The actual tender is the offer, and if accepted, it becomes a binding contract. The mere fact that a person makes a highest tender cannot entitle the tenderer to claim acceptance. [Re: Mulla on Contract p. 50] 10.3 As per the provisions of the Contract Act, an agreement can be reached by process of offer and acceptance. It is settled position of law that every transaction to be recognized as contract must in its ultimate analysis resolve into a proposal and its absolute and unqualified acceptance. Contractual obligation to consider the Tender 10.4 The jurisprudence in some other common law jurisdictions takes the approach that, depending upon the intentions of the parties, an invitation to tender can give rise to contractual obligations upon the submission of a bid. In this case, the Liquidator is perfectly entitled to enter into a contract with a private party and, for this purpose,....
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.... on 19-11-2001 at Rs. 4.16 crores (approx). When the property was put to sale for the last time, the first respondent in this appeal offered Rs. 3 crores which is far less than the value fixed by the official valuers. However, the sale was confirmed on 7-12-2001, but the Appellate Bench on 21-12-2001 set aside the said sale, among other things, coming to the conclusion that the amount offered by the first respondent being very much on the lower side, under clause 11 of the terms and conditions of sale, it had the jurisdiction to set aside the confirmation of the sale made earlier. While doing so, the Court did not take into consideration the offer made by the appellant herein which was for a sum of Rs. 4.25 crores. The contention on behalf of the appellant in this case is that the value of the property is diminishing day-by-day and by directing a fresh sale all over again, it would not benefit the creditors of the company in any manner, therefore, the offer made by it ought to have been accepted by the High Court. We have also considered the arguments addressed in opposition by the first respondent herein. It is necessary to not herein that when the matter had come up for further o....
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....t is the duty of the Court to apply its mind to the valuation report for verifying whether the report indicates the reasonable market value of the property to be auctioned even if objections are not raised." [Emphasis supplied] (p. 323) 11.3 Before the Division Bench of the Andhra Pradesh High Court in the case of Bharat Scrap v. Haryana & Steel Centre [2004] 49 SCL 603 the facts of the case are as under: "The Company Court ordered winding-up of the company 'K'. The Official Liquidator was directed to sell the properties of the said company by inviting sealed tenders. Different companies had participated in the open auction and quoted their respective bids. The appellant-company initially quoted a price and increased its bids. Next to the appellant was the respondent, thus, the sale was confirmed in favour of the appellant. A cheque was issued towards 20 per cent of the offer. Since the balance of sale consideration could not be paid by the appellant within the time fixed, an application was filed seeking extension of time. A report was filed by the Official Liquidator in the Company Court that the cheque issued by the appellant was dishonoured. The respondent offered its bid of ....
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....ht if fit to dispose of the application with certain directions. Apart from this aspect of the matter, when the Company Court had exercised the discretion in a particular way, unless the exercise of such discretion is not exercised judicially, the Appellate Court should be slow in interfering with such orders of the Company Court made in exercise of such judicial discretion. Having satisfied with the reasons recorded by the Company Court while disposing of the application with certain directions, we do not see any compelling reasons to interfere with such directions or to disturb the findings recorded by the learned Company Judge in this regard." [Emphasis supplied] (p. 611) 12. I have considered the judgments of the Supreme Court in the Cases of Lica (P.) Ltd.(No.1) v. Official Liquidator [1996] 85 Comp. Cas. 788 and Lica (P.) Ltd. (No. 2) v. Official Liquidator [1996] 85 Comp. Cas. 792 . In the first case, the Supreme Court observed that the purpose of an open auction is to get the most remunerative price and it the duty of the court to keep openness of the auction so that the intending bidders would be free to participate and offer higher value. If that path is cut down or clos....
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....s already created third party rights in this behalf. In view of this, the aforesaid judgment is not applicable to the facts of the present case. 12.3 Similarly, the judgment of the Supreme Court in the case of Allahabad Bank (supra ) is also not applicable to the facts of the present case. 12.4 As regards the judgment of the Division Bench of this court in the case of Abhisekh Shops & Warehouses (supra), there also, the person had given very high price and, therefore, the learned single Judge had decided to have reauction of the property. There also, the observation of the learned single Judge was that the price fetched was inadequate. Now, this is not the case here and, therefore also, all these judgments are distinguishable on the facts of the case, though the same are binding on me. 12.5 It may be noted that, in view of catena of decisions of the Supreme Court, more particularly in the cases of Lica (P.) Ltd. (supra), Divya Mfg. Co. (P.) Ltd. (supra) and Allahabad Bank ( supra), which I have referred to earlier, it is no doubt true that in a given situation the court has power and jurisdiction to reopen the bid which has been given in auction. However, from the aforesaid deci....
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....previous history of litigation by which there are four or five attempts made and this also shows that the property is not a prime property which can be sold at any price. All these considerations are relevant for judging adequacy of consideration. 12.10 The court may have jurisdiction to consider acceptance of tender provided the consideration is not adequate. Say for example, the price of the land is Rs.1 lakh and the same is sold at Rs. 50,000 i.e. at half the value. In that situation, the Court has jurisdiction to recall or review the order on this behalf. It is established by evidence on record by showing valuation of the land, and the offer made by the opponent No. 3 in the auction for which earlier there was adequate publicity and so many people had come and ultimately the offer was previously accepted at Rs. 1 crore 80 lakhs. However, before this Court accepted that offer, the opponent No. 3 gave offer of Rs. 2 crores and at that time at the instance of the secured creditors and the workers, the Court had recalled the previous order because the contract between the Official Liquidator and the then purchaser was not finalised. 12.11 However, in this situation, not only the ....
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....view of the same, if the Court has power to review, but the same power is very limited and, in the facts and circumstances of the case, this Court does not desire to exercise the said power of review in this behalf. Even if the Court has power, the Court has to exercise judicial discretion looking to the facts of the case. The Court has to exercise power with commercial sagacity and wisdom. Over and above, even if the power of review is available, the applicant has come after a great delay and, therefore, on the ground of delay also, power of review is not to be exercised. 13.2 As regards the price of the land in question and the auction, it is no doubt true that the applicant has cited several decisions. The respondent No. 3 has also cited certain decisions. I have also considered various decisions of the Supreme Court and the High Court in this behalf. This Court is of the view that, earlier when the sale was confirmed in favour of the respondent No. 3, the applicant has not been able to show any illegality or irregularity in the said sale which has been confirmed by this Court after great deliberations. The applicant has only offered Rs. 20 lakhs more and that is not a circumst....