Permod Kohli, J. - (1.) THROUGH the medium of this application, the applicant who has been the highest bidder in the auction held on 23.2.2005 seeks an order for: (i) quashing the letters Annexure A -12, Annexure A -1 and Annexure A -14, (ii) permission of the Court to deposit 25% of the bid amount; and (iii) confirmation of the sale of assets of Company in favour of the applicant and also sought restraint order restraining the Official Liquidator from selling/transferring the assets/properties of the company to any other person.
(2.) IT may be useful to briefly notice the factual background. This Court ordered winding up of the respondent -Company namely Haryana Concast Limited vide order dated 28.10.1999 passed in C.P. No. 198 of 1999 and the Official Liquidator attached to this Court was appointed as the Liquidator of the Company in Liquidation. The Liquidator was permitted to sell the assets and property of the Company vide order dated 28.5.2004 passed in C.P. No. 133 of 2003 in association with the representatives of the secured creditors. As a consequence of the aforesaid order, the Official Liquidator issued sale notice which was published in The Indian Express (all editions), The Tribune (English edition), Punjab Kesari (Hindi, Ambala, Delhi & Jalandhar edition) on 6.2.2004. The highest bid of Rs. 29.12 Crore was received from M/s. Radha Builders & Developers Pvt. Ltd. The Official Liquidator had constituted a committee comprising of the Official Liquidator and Shri V.D. Kumar, AGM, Bank of India, ARB, New Delhi. The said committee considered the highest bid and then decided to accept the same. At the time of auction M/s Radha Raman Builders & Developers Pvt. Ltd. deposited the earnest money of Rs. 1.08 Crore on 23.2.2005. The Applicant, highest bidder, wrote a letter dated 25.2.2004 to the Official Liquidator seeking permission to deploy its own security personnel and the Official Liquidator permitted it to do so without entry into premises of the Company. It is alleged that the applicant employed 16 guards outside the premises of HCL and all the guards informed the applicant that out of the 40 acres of land of the Company in liquidation put to safe, six acre of land was in possession of DHVPL where 132 KVA sub -station has been installed for supply of the electricity. It is further alleged applicant vide its letter dated 28.2.2005 informed the Official Liquidator that it would not deposit the amount unless the possession of land is vacated by DHVPL. It is, however, admitted case of the parties that the Official Liquidator vide his letter dated 20.5.2005 informed the applicant that its highest bid offer for Rs. 29.12 Crore for purchase of the assets and properties of the Company in liquidation might be accepted by the Court and the applicant was asked to deposit 25% of the amount of the purchase price immediately. The applicant, however, claims that vide his letter dated 29.6.2005; he informed the Official Liquidator that he is willing to deposit the amount subject to prior sanction by the Court. It is, however, in -disputed position that the applicant did not deposit 25% of the bid money as demanded by the Official Liquidator. On its failure to deposit the money, the Official Liquidator called a meeting of the Secured Creditors on 11.8.2005 wherein it was decided to forfeit the earnest money of the applicant amounting to Rs. 1.08 crore and to proceed with the further process. The Official Liquidator accordingly called M/s Ma Bhagwati & Co., Sharanpur who expressed willingness to purchase the entire unit of the Company for a sum of Rs. 21.21 Crore and also deposited Rs. 23 lacs as earnest money. The Official Liquidator found that the amount is reasonable and filed C.A. No. 459 of 2005 under Section 457(3) of the Companies Act for confirmation of the sale in favour of M/s Ma Bhagwati & Co., Sharanpur or in the alternative for re -advertisement of the sale of the assets.
(3.) THE present applicant filed C.A. Nos. 632 to 634 of 2005 for directions as noticed herein above. While explaining the circumstances for non -deposit of 25% of the bid money, the applicant had prayed for confirmation of the sale in its favour being highest bidder at Rs. 29.12 crore. The circumstances which are indicated for non -deposit of 25% of the bid amount are enumerated as under: (i) that in -terms of Clause 9 of the terms and conditions of sale, 25% of the bid amount becomes payable within two weeks from the date of sanction and the balance sale price within three months from the date of confirmation of sale by the Court. (ii) In condition No. 22(A) of the terms and conditions sale, the Official Liquidator had stated that the entire possession of the property of the Company was with him whereas six acres of land was in possession of DHVPL at the time of issuance of the sale notice. (iii) That applicant has not been provided any opportunity to show cause nor afforded any hearing for forfeiting the earnest money deposited.;