Sushil Harkauli, J. - (1.) THE facts relevant for deciding this appeal are that the company known as Champaran Sugar Company Limited went into liquidation on the recommendation of the B.I.F.R. In the winding up proceedings, the High Court invited separate tenders for sale of two units (factories) of the Company in liquidation. These two units are known as the Barachakia Unit and Chanpatia Unit. After opening of tenders, the Court negotiated the price with the prospective buyers, and by order dated 31 -01 -2001 the bid of the present appellant V.K. Gupta, being the highest offer of Rs. 5 Crore, was accepted by the Company Judge for the Barachakia unit.
(2.) By another order dated 23.5.2001, the Company Judge accepted the highest offer of the present appellant V.K. Gupta (hereinafter referred to as 'the appellant' for short) for Rs. 2.01 Crore for the Chanpatia Unit. But that sale is the subject matter of another appeal. This appeal is not concerned with the Chanpatia Unit. It is concerned only with the Barachakia Unit.
(3.) THE order dated 31st January 2001, accepting the highest bid of the appellant, reads as follows: When this matter was taken up today, a letter of offer was given on behalf of Hanuman Industries (India) Pvt. Ltd. through their counsel Ms. Geeta Luthra, which was supported by three bank -drafts totaling Rs. 10 lacs. Sri Sanjeev Sahai had already placed photocopies of these bank drafts on record, on the last date. In the letter of offer the sale consideration offered was Rs. 3,51,00,000/ - and it was proposed that 25% of the amount would be paid within three months and the balance would be paid within such further extended time which the Court may grant. Although in the first paragraph of the said letter it has been stated that purchase was on "as is where is basis" but in the subsequent paragraph of the letter of offer certain conditions have been put. Having regard to the conduct of M/s. Hanuman Industries during the history of this litigation more particularly the decision of this Court In re: Champaran Sugar Company. Reported in, 1998 (91) Comp Cases 182 , it was thought that the acceptance of such conditions might lead to further litigation and perhaps an attempt to avoid the contract on one excuse or the other. Therefore, it was suggested that offer of M/s Hanuman Industries (India) Pvt. Ltd. would not be considered unless all conditions were waived and the property was purchased on purely "as is where is basis". Learned Counsel representing M/s Hanuman Industries (India) Pvt. Ltd. agreed to the suggestion and, therefore, they were allowed to make a clear offer. The clear oral offer made initially was for Rs. 3,51,00,000/ - payable in seven months time. One installment was proposed to be paid in three months and the second installment within further period of four months. As against this Sri Vishnu Kant Gupta had made a written revised offer of Rs. 3,51,00,000/ - payable in four equal quarterly installments on the condition that possession of the factory may be given by the Official Liquidator to Sri Gupta upon payment of the first installment and upon furnishing of Bank guarantee for the remaining amount. The matter was negotiated with both the parties and leaving out details of step by step increase of offers, as against the last offer of M/s Hanuman Industries of Rs. 3 crore 91 lacs payable in eight months time, the last offer made by Sri Vishnu Kant Gupta was of rupees five Crores payable in two quarterly installments i.e. in six months. The first installment to be paid after adjusting the amount of rupees ten lacs of which bank -draft has already been submitted by Sri Gupta, within three months from today. The balance payment to be made within a further period of three months. M/s Hanuman Industries (India) Pvt. Ltd. were unable to improve upon this offer of Sri Vishnu Kant Gupta either in terms of increasing the amount or in terms of reducing the period of six months, fixed for payment. Learned Counsel for M/s Hanuman Industries asked for further period of one day for considering whether her client would be in a position to improve upon this offer. The order dated 10 -1 -2001 states that time is being granted to M/s Hanuman Industries as a last resort upto 17 -1 -2001 to come up with a substantially better offer. Thereafter the order dated 17 -1 -2001 states as follows "It has been made clear to both the parties (i.e. Vishnu Kant Gupta & Hanuman Industries) that if offers are received from both the parties, negotiation may take place on 31 -01 -2001 for finalising the auction/tender sale in favour of one of the parties. Both the parties are, therefore, advised to be present in person along with their counsel so that the counsel may be instructed regarding raising of offer, if negotiation takes place, as stated above. Having regard to the above, and other over all circumstances and the period which has expired and the margin which was granted to M/s Hanuman Industries I am unable to accept this suggestion of granting further time, that too without any assurance that the amount would actually be increased. In the circumstances, the offer of Sri Vishnu Kant Gupta is accepted as stated above. Sri Gupta will be entitled to possession of the factory upon payment of first installment coupled with the furnishing of the bank guarantee for the remaining amount to the satisfaction of the Official Liquidator. The bank guarantee will be made out in favour of the Official Liquidator. The bank guarantee will state that if the payment of the amount guaranteed by the bank is not made upto 1.8.2001, upon demand by the Official Liquidator, after that date the bank will make payment of the amount guaranteed to the Official Liquidator. It may be mentioned here that Sri O.P. Mishra representing IFCI has also been heard before passing this order in support of his objection in which IFCI had stated that the valuation given by Sri Vishnu Kant Gupta was slightly lower and correct valuation according to IFCI, on the facts and circumstances stated by Sri Vishnu Kant Gupta, should be Rs. 4,16,00,000/ -. Since the final offer made by Sri Vishnu Kant Gupta is much above that valuation and after examining the Official Liquidator's report with regard to valuation, I am of the opinion that the offer made by Sri Gupta is reasonable and in absence of better offer it should be accepted. The offer of Sri Vishnu Kant Gupta is therefore hereby accepted as above and subject to the conditions as stated above in his last offer of Rupees Five Crores.;