Mukul Mudgal, CJ (Oral)
This appeal challenges the order of the learned Single Judge dated May 27, 2010. In brief the facts of the case are that M/S Haryana Concast Ltd. Was set up in public sector by the Haryana State Industrial and Infrastructure Development (HSIIDC) and State of Haryana. Such company was ordered to be wound up on 28.10.1999 by this Court. Subsequent to the order of winding up, the possession of the assets of the company was taken over by the Official Liquidator. Bank of India was secured creditor. That secured creditor has transferred all its rights in favour of M/S Pegasus Assets Reconstruction Limited (for short “Reconstruction Company”) and the reconstruction company moved an application before the Company Court to remain outside the winding up proceedings being a secured creditor and to continue with the recovery proceedings against the secured assets of the company in liquidation secured with its predecessor in interest under the securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002” (for short the SARAESI ACT).
The Reconstruction Company put assets i.e land, building, plant and machinery of the company to sale. In sale of land and building constructed, M/S Venus Realcon Private Ltd. was the highest bidder who had given a bid of Rs. 26.50 crores in respect of about 36 acres of the land and building thereon of the company in liquidation. One M/S S.R Buildcon Private Ltd. disputed the sale process before this Court in C.A No. 229 of 2010. In pursuance of said offer, there was inter se bidding between the intending purchaser i.e Venus Realcon and M/s S.R Buildcon. M/s Venus Realcon Private Limited offered a bid in the sum of Rs. 32 crores for the land and building of the company in liquidation. The court found that such offer of Rs. 32 crores in a restricted bid held inside the Court was indicative of the fact that the property may fetch more than Rs. 32 crores if wide publicity is given to the sale and that an opportunity should be given to intending purchasers to participate in the process of sale. Thereafter. The learned Single Judge ordered the fresh sale after advertisement. Even after the advertisement, no one came forward with a higher bid and in these circumstances, the learned Single Judge accepted the sale to be fair and reasonable. It is this order dated 9.7.2010 which has been challenged in this appeal.
The submissions made by learned counsel for the appellant are three fold. The first submission is that public notice was not published in any Haryana edition of the Newspapers and the intending purchaser who represents the Company from Delhi traces his roots from Hisar and was thus unable to read the advertisement and could not participate in the auction proceedings. He is now ready to enhance the bid amount to Rs. 37 crores. A perusal of the earlier order passed by the learned Company Judge dated May 27, 2010 shows that a similar plea taken by the learned counsel for the appellant was recorded in the order dated July 9, 2010, which reads as under:-
“Also, with view to remove the apprehensions expressed by the intervenor, it appears desirable that a ‘notice’ giving wide publicity to the sale of the ‘subject property’ be issued in three daily Newspapers, namely, “Hindustan Times’, ‘Economic Times’ (English) and ‘Dainik Bhaskar’ (Hindi) (Delhi Editions) on or before 9.6.2010 The copies of the Sale Notice be also sent to FICCI and CIL and other prominent Industrial Association (s) through speed-post. The fresh ‘Public Notice’ as directed above also takes care of the concern shown by the HSIIDC”.
The appellant was not only heard on the point of wide publicity in the named newspapers, but this fact was dictated in the order itself. Even the appellant was present when such an order was passed by the learned Single Judge. He, therefore, cannot be heard on the issue that wide publicity of the sale notice was should have been in Haryana Edition. It was for the appellant to have suggested at that stage in the Court when the publication of the sale notice was ordered.
The order of the learned Single Judge directing issuance of fresh notice in the Newspapers was challenged and the appeal filed against the said order was dismissed by a Division Bench of this Court vide order dated July 09, 2010. The order passed by the Division Bench of this Court has attained finality. Thus, the appellant, according to us, is debarred from raising this plea and is not sustainable. The next contention of counsel for the appellant is that no reserve price was fixed before the sale was initiated. As far as this argument is concerned, we put it to the learned counsel for the appellant to show us that such a plea was raised but not dealt with by the learned Judge. However, the learned counsel for the appellant was unable to show us any such plea raised by him.
The next contention of learned counsel for the appellant is that he is ready to offer a bid of Rs. 37 crores now. At this stage he cannot be permitted to raise such a plea because it is too late. The learned counsel for the appellant submits that he has brought a draft of Rs. One Crore to show his bona fide. Not only is the offer too late, it is also not accompanied by any substantial amount of money which may indicate real seriousness.
Accordingly, in our view there is no merits in the submissions made by learned counsel for the appellants, and the appeal being devoid of any merits, is hereby dismissed.
(Mukul Mudgal)
Chief Justice
(Ajay Tewari)
September 23, 2010. Judge Malik