TaxTMI 
TaxTMI 
2013 (1) TMI 1063
X X X X Extracts X X X X
X X X X Extracts X X X X
....propriate order directing the Official Liquidator to return/refund the amount of Rs. 79,16,809.21 based on the contention that the land is short-delivered. 2. The facts leading to the present appeal in a nutshell are as under; 2.1. Aryodaya Ginning and Manufacturing Mills Ltd. (in liquidation) was ordered to be wound up vide order dated 27/10/1989 passed in Company Petition No. 157/1989 . The lands of the Company in liquidation were valued by the Official Liquidator through the Government Approved Valuer who submitted the valuation report. The Official Liquidator convened the meeting of the sale committee on 09/06/2006, which decided to invite the offers to sell off the lands of the Company in lots; Lot no. I consisted of Industrial plot i.e. mill land situated at T.P. Scheme No. 8 Final Plot Nos. 130 and 131 admeasuring about 57,254.19 sq meter (including T.K. Office, compound wall, except records); Lot No. II consisted of residential plot situated at T.P. Scheme No. 8, Final Plot Nos. 112 and 117 admeasuring 9,430 sq meter and Lot No. III was for combined offer for Lot Nos. I and II . A newspaper advertisement was also published by the Official Liquidator inviting offers from i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d amount of Rs. 62,82,229.18 from 10/01/2007 till filing of the said application. By the impugned order, the learned Company Court relying upon the earlier decisions of the Company Court in Company Application No. 21/2004 and Company Application No. 404/2005, has dismissed the said application submitted by the appellant, which was submitted for refund of 2,506.50 sq meter of land short conveyed in respect of Final Plot No. 131 by observing that as the area, which is short conveyed, is less than the total area of 5%, the appellant is not entitled to any refund. Being aggrieved and dissatisfied with the impugned order passed by the learned Company Court dated 18/08/2009 in Company Application No. 43/2008 in Official Liquidator Report No. 101/2006 the appellant has preferred O.J. Appeal No. 102/2009. 3. Shri Ashok L. Shah, learned advocate appearing on behalf of the appellants has vehemently submitted that the learned Company Judge has materially erred in not allowing the judgment summons and not directing the Official Liquidator to return the amount of Rs. 79,16,809.21. 3.1. It is submitted by Shri Shah, learned advocate appearing on behalf of the appellants that the learned Compan....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pondents herein. It is submitted on behalf of the contesting respondents that as such the learned Company Judge has not committed error and/or illegality in dismissing Company Application No. 43/2008. It is submitted that as such the properties were sold on 'as is where is and whatever there is basis' and, therefore, while submitting the offer the appellants ought to have inquired into the measurement and relevant records and as such the appellants must have verified the records and/or inquired into the total area and/or measurement of the plots offered for sale. It is submitted that as such the offer made by the appellants was a composite offer to purchase Lot no. 1 for Rs. 13.45 Crores and not per sq meter. It is submitted that as such there was interse bidding before the learned Company Judge while considering the offer in OLR No. 101/2006 and the appellant-M/s Aarsh Infrastructure Ltd. in fact raised their offer to Rs. 14.35 Crores and, therefore, considering the decision of the Hon'ble Supreme Court in the case of United Bank of India Vs. Official Liquidator and Ors. reported in (1994) 1 SCC 575 as well as the unreported decision of this Court dated 02/03/2010 pass....
X X X X Extracts X X X X
X X X X Extracts X X X X
....wever, there is shortage of 2226 sq meter for Final Plot No. 131 and, therefore, the appellant is entitled to refund of the price of the said area admeasuring 2226 sq meter at the rate of Rs. 2506.50 sq meter (considering the total price of the land at Rs. 14.35 Crores with respect to 57,254 sq meter). However, relying upon the decisions of the Company Court in Company Application No. 21/2004 and Company Application No. 404/2005, the learned Company Court has held that as the area of the land short delivered is 2226 sq meter it would be less than 5% of the total area i.e. 57,254 sq meter, the same cannot be said to be substantial and, therefore, the appellant- original applicant would not be entitled to any refund. Being aggrieved and dissatisfied with the impugned order passed by the learned Company Court in rejecting the Company Application No. 43/2008 and rejecting the prayer of the appellant-original applicant, the appellant has preferred O.J. Appeal No. 102/2009. In the appeal, it is the case on behalf of the appellant-original applicant that while calculating the area of the lands sought to be conveyed to the appellant, the two plots, namely Final Plot No. 130 and 131 ought t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.....e. Final Plot Nos. 130 and 131 total area approximately 57,254.19 sq meter and the area short delivered/short conveyed is 2226 sq meter it would be less than 5% and, therefore, the learned Company Court as such has not committed any error in rejecting the prayer of the appellant- original applicant-auction purchaser to refund any amount with respect to the lands short delivery/short conveyed. 5.1. Even otherwise, considering the fact that in the advertisement given by the Official Liquidator inviting the offers with respect to Lot No. I the area of the lands/plot mentioned approximately 57,254 sq meter and as per the terms and conditions of tender, the sale was on 'as is where is and whatever there is basis' and as per condition no. 20 of the said tender document, it was for the purchaser to satisfy himself about the right and title of the property after ascertaining from the concerned Registration Officers and other authorities and the vendor will not entertain any claim as regards to the right/title of the property after the Hon'ble High Court confirms the sale. Even as per condition no. 21 the purchaser shall be deemed to have purchased the properties after complete examinatio....