Balleshwar Greens Pvt. Limited (S) v. Vedica Procon Pvt. Ltd. & 8 Opponent(S)

ORAL JUDGMENT

(HONOURABLE MR. JUSTICE K.J THAKER)

1. By consent of the parties, leave to appeal is granted. Civil Application No. 242 of 2014 is allowed accordingly.

2. In this appeal, the present appellant has challenged the order dated 31.3.2014 passed by the learned Company Judge in Misc. Civil Application No. 53 of 2014.

3. We have heard Mr. Kamal Trivedi learned Senior Advocate with Ms. Sangita Vishen learned advocate for the appellant, Mr. SN Soparkar learned Senior Advocate with Mr. S.P Majmudar learned advocate for respondent no. 1 and Ms. Amee Yajnik learned advocate for Official Liquidator.

4. We have perused the judgment in the case of Shradhha Aromatics Pvt. Ltd. v. O.L of Global Arya Industries Limited, reported 2011 (6) SCALE 330. Para-10 of the above decision reads as under:

“10. We have considered the respective submissions and carefully perused the record. Ordinarily, the Court is loathe to accept the offer made by any bidder or a third party after acceptance of the highest bid/offer given pursuant to an advertisement issued or an auction held by a public authority. However, in the peculiar facts of this case, we are inclined to make a departure from this rule. Admittedly, total area of the land advertised by the committee is 12,500 square meters and the same is situated in an important district of Gujarat. It is also not in dispute that the area has been substantially developed in last four years. The initial offer made by M/s. Patel Agro Diesel Ltd. Was of Rs. 83 lakhs and the highest revised offer given before the learned Company Judge was of Rs. 127 lakhs. After acceptance of the revised offer by the learned Company Judge, the appellant stepped in and made an offer to pay Rs. 141 lakhs. The first application filed by it was dismissed but the second application was allowed and the increased offer of Rs. 151 lakhs was accepted by the learned Company Judge vide order dated 27.11.2007 That order did not find favour with the Division Bench, which restored the first order passed by the learned Company Judge. If the order of the Division Bench is sustained, the creditors of the Company are bound to suffer because the amount available for repayment of the dues of the creditors would be a paltry sum of Rs. 127 lakhs. As against this, if the offer made by the intervenor-cum-promoter is accepted, the Official Liquidator will get an additional amount of more than Rs. 4.25 crores. The availability of such huge amount will certainly be in the interest of the creditors including GSIIC. Therefore, it is not possible to approve the order passed by the Division Bench of the High Court. In a somewhat similar case - FCS Software Solutions Ltd. v. La Medical Devices Limited (supra), this Court approved the acceptance of revised bid of Rs. 3.5 crores given by the appellant with a direction to compensate the earlier highest bidder by payment of the specified amount.”

5. It is stated by Mr. S.N Soparkar learned Senior Advocate appearing with Mr. S.P Majmudar that the possession is given to them at 11.30 a.m However, we had directed at 12.00 noon to the parties to maintain status-quo which we propose to continue till the application is made before the learned Single Judge because we had directed to maintain status-quo on the oral statement made by the Deputy Official Liquidator that the possession was not given and the same was confirmed by Mr. S.P Majmudar by consulting his client. Be that as it may. The appellant may file an application before the learned Single Judge within a period of one week from today and the status-quo shall remain in operation till the appellant files the application. Mr. Soparkar submits that no such application is maintainable before the learned Single Judge, we do not enter into this controversy as it is for the learned Single Judge to decide this issue on the pleadings before him. As and when an application is filed by the appellant before the learned Company Judge, an advance copy shall be given to the Official Liquidator and the contesting respondent no. 1 herein.

6. We are proposing to dispose of this appeal on the following consensus that:

1) The appellant before us will move before the learned Company Judge within a period of one week with an appropriate application showing his desire to apply afresh for the bid, as according to Mr. Trivedi, the order dated 17.12.2013 is not finalised and it still requires confirmation of the learned Single Judge. Be that as it may. If the application is not made within one week, the benefit of this order will not enure for the benefit of present appellant. The parties are directed to maintain status-quo till the appellant files an application before the learned Single Judge and the learned Company Judge shall decide the question of interim relief on merits.

2) The appellant shall handover the Demand Draft of Rs. 160 crores to Mr. R.C Mishra, Deputy Official Liquidator, who is present in the Court, today itself. The Deputy Official Liquidator has accepted it and shall pass the receipt of the same to the present appellant. The Official Liquidator shall see that the amount is kept in Fixed Deposit at least for one month so that there is no loss of interest.

3) It goes without saying that we have not entered into the merits of the matter and the deposit of Rs. 160 crores with Official Liquidator is without prejudice to the rights and contentions of the parties and we have adopted this only because of the view expressed by the Apex Court in the case of Shradhha Aromatics Private Limited (supra).

4) It goes without saying that once the application is made, it will be open for the learned Single Judge to decide the same on merits. The status-quo thereafter will be subject to the order which may be passed by the learned Single Judge after hearing the parties.

5) The order dated 31.3.2014 passed in Misc. Civil Application No. 53 of 2014 by the learned Company Judge is interfered with to the above extent only.

7. With this consensus, this appeal is disposed of.

8. As the main appeal is disposed of, Civil Application No. 241/2014 is also disposed of.