B.P. Banerjee, J. - (1.) This is an appeal against the order of the learned trial Judge dated July 25, 1990, passed in C.P. No. 179 of 1983, C.A. No. 201 of 1984. By the said order the learned trial Judge recorded that the learned Advocate appearing on behalf of the Applicant, Haradhan Mukherjee, submitted that he was in a position to proceed in the matter. In that view of the matter the application taken out by judgment dated March. 20, 1990, was dismissed and an interim order was vacated. Prior to that order the learned trial Judge has also passed two other orders which are, inter alia, as follows: In that view of the matter, the purchaser is directed to pay the balance purchase price by 2 p.m. on 23rd March, 1990. Such payment be made in terms of the earlier order dated 4th August 1989. In the event there is any default of payment of the money, the Official Liquidator is directed to forfeit the money so far paid and shall forthwith made an inventory of the assets and issue publication for sale of the assets in local newspapers, viz., once in Statesman, once in Telegraph, once in Bartaman and once in Sanmarg. Such publication if required to be published by reason of the failure to pay the purchase price within the time stipulated above, be published within a period of three weeks from the date hereof. It is, however, recorded that no further extension of time shall be given to the purchaser on any count whatsoever and the Official Liquidator shall forthwith take steps in the event of there being any default. The Official Liquidator would be at liberty to the cost of this application assessed at 60 G. Ms, to come out of the funds lying in his hands.
(2.) The order dated March 23, 1990, passed by the learned Judge is as follows: As regards the existing charge in favour of two other secured creditors, Mr. Dhandhania, appearing for the said two secured creditors, has left the matter to the discretion of the Court. Considering the facts and circumstances of the matter in issue, it is ordered that the charge of the other two secured -creditors shall shift on to the sale proceeds and the sale is confirmed in favour of the purchaser free from all encumbrances. It is recorded that the payment in terms of the earlier order passed by this Court yesterday has been made in Court to the Official Liquidator and Mr. Shome, appearing for the Bank, has made over a pay order of the Bank for Rs. 20 lakhs in favour of the Official Liquidator. Mr. Kar, appearing for the Official Liquidator, states on instruction that considering the order passed yesterday, apart from the payment of Rs. 20 lakhs a further sum of Rs. 3,10,000 is due and payable by the purchaser. The purchaser is directed to pay the said sum of Rs. 3,10,000 to the Official Liquidator within a period of 8 weeks from the date thereof. By reason of the arrangement between the purchaser and the United Bank of India the Official Liquidator is directed to make over the title deeds to the Bank upon intimation to the purchaser. Upon payment of the balance sum of Rs. 3,10,000 the Official Liquidator shall convey the property to the purchaser or its nominee or nominees in terms of this order. Possession of the property may; however, be delivered to the purchaser by 26 -03 -90. The security guards of the Official Liquidator shall stand discharged upon making over possession excepting that one security guard will be there who shall be discharged upon payment of the balance of Rs. 3,10,000. Mr. Shome appearing for the United Bank of India, however, submitted that the Bank has advanced a sum of Rs. 20 lakhs to the purchaser on the basis of the sanction letter dated 28th December, 1989. All parties including the Official Liquidator to act on signed copy of the minutes of the order upon usual undertaking.
(3.) The fact of this case in short is that the liquidated company in question was a family concern of two brothers, viz. Smarajit Sen and Monojit Sen. Because of the in -fighting between the two brothers, the company became commercially insolvent, and on the petition of the concerned creditor under Sec. 434 of the Companies Act, 1956, the company was directed to be wound up and went into liquidation by the order dated November 4, 1981, passed by the Hon'ble T. K. Basu J. (as His lordship then was). Between November 1981 to November 1985 Smarajit Sen, elder brother of the Respondent Monojit, tried his best to purchase the liquidated company as a going concern. On December 20, 1985, the said Smarajit Sen recorded in open Court his failure in purchasing the said company when the learned trial Judge fixed an open Court auction sale of the said company to be held on January 1986. The said open Court bid and auction was held on January 10, 1986, and in the said auction the Appellant Haradhan was declared highest bidder and, as such, the auction purchaser. The said auction sale held on January 10, 1986, made in favour of the Appellant herein, Haradhan, was confirmed with the knowledge of the Respondents, Monojit and his wife Dipali Sen. It is stated that an application was filed by Oriental Sales Agency before the learned trial Judge on November 24, 1986, which was allegedly put up by Smarajit and Monojit for cancellation of the said auction sale on the ground that the said Oriental Sales Agency had better and higher offer to purchase the said company in liquidation. The said application filed by Oriental Sales Agency was heard in presence of Monojit Sen and Dipali Sen, the Respondents herein on November 24, 1986, when the learned Counsel appeared on their behalf submitted that the said auction sale was confirmed in favour of the present Appellant, Haradhan, should be cancelled and fresh advertisement inviting fresh offer for re -sale should be ordered for cancellation of the present auction sale which was already made and was duly confirmed by the learned trial Judge. The said stand was supported by the Oriental Sales' Agency. After a long, contested hearing the said application filed by Oriental Sales Agency was dismissed by order dated November 24, 1986, and the prayer made by and on behalf of the Respondents Monojit and Dipali for re -advertisement for re -sale upon cancellation of the said auction sale was rejected. Against the said order dated November 24, 1986, Oriental Sales Agency preferred an appeal, but the Respondents Monojit and Dipali Sen did not prefer any appeal against the said order dated November 24, 1986, nor did they apply to be added as parties to the appeal preferred by the Oriental Sales Agency. On May 13,1986, the said appeal preferred by Oriental Sales Agency was dismissed for non -prosecution and the said Oriental Sales Agency had it recorded in the said Court of Appeal that they were no longer interested in purchasing the said company. It is stated that in view of all the proceedings in the liquidation sale being blocked in the Court of Appeal from November 27, 1986, to May 13, 1987, leave was granted by the Division Bench before whom the appeal was pending to the Appellant herein to apply before the learned trial Judge for all appropriate orders including extension of time for payment of the purchase price in terms of the said auction sale. It is stated that the Division Bench before whom the said appeal was pending could not make any order to that effect in view of the dismissal of the said appeal. On May 20, 1987, the matter was mentioned for appropriate order in terms of leave granted by the Division Bench with notice to Oriental Sales Agency whereupon Mrs. Monjula Bose J. (as Her lordship then was) passed the following orders: Time to make final payment of the balance amount, as directed by the 6rder dated July 4, 1986, is extended, namely, a sum of Rs. 12,50,000 will be paid by the purchaser by 28 -5 -87. Mr. Dutt's client, the purchaser, will also pay the rupees incurred for the security guards, viz., Rs. 77,350 as also the sum of Rs. 29,000 by way of interest by 28 -5 -87. Thereafter the balance purchase price of Rs. 17,50,000 in respect of the sale to be paid by 19 -9 -87. Of the payments are made, as aforesaid, no interest will be charged. In default of payment as aforesaid, the balance amount will carry interest at the rate of 18 % per annum and if the balance amount with interest at the rate of 18 % is not paid within 30 -11 -87 the sale will be set aside. Rest of the order dated 4th July, 1986 will stand. If the purchaser makes the payment of the costs incurred on the Official Liquidator for the security guards by 28 -5 -87, the Official Liquidator will, keep only two guards at the cost of the Official Liquidator until the balance amount is paid. The purchaser will also have liberty to engage their security guards till the balance amount is paid. It is made clear that the Official Liquidator will be in possession of the articles till the balance amount is paid by the purchaser. It is submitted that notice was served upon M/s. Sandersons & Morgans by Mr. Sujit Basu, Advocate on Record for the purchaser, and in spite thereof they have not come forward to make any submission. Liberty to mention after the balance purchase price is paid.;