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Tuesday, August 18, 2015

Sale set aside = Official Liquidator - Prima facie, it appears that the objections raised by the appellant were not properly considered inasmuch as the objections were not heard on merit and the auction sale was confirmed. Shri Sharad Sharma, Advocate, had made the aforesaid statement before the Company Court on 28.5.2004, however, he had never been engaged either by Mr. Rajiv Gosain or by any person authorized by him. Therefore, making statement by the Advocate that he has no instruction or waiving the disposal of objection on merit, was without any basis which ought to have been considered by the High Court.Be that as it may, the conduct of the Official Liquidator in selling the property at a price of Rs. 45.45 lakhs without proper publicity through advertisement or fixing any reserve price for the assets cannot be sustained in law, particularly, when the predecessor Official Liquidator reported that the property put in auction is of much higher valuation. Having considered the illegality and irregularity committed in the auction sale of the property, the entire process is vitiated. Further we are of the view that the Company Judge also failed to exercise its judicial discretion to see that the properties are sold at a reasonable price.Apart from that, when the valuation report was submitted before the Company Judge, it ought to have been disclosed the secured creditors and other interested persons in order to ascertain the market value of the property before property was auction sold. Since the same has not been done, the auction sale and the order confirming the sale are liable to be set aside.We, therefore, allow these appeals and set aside the judgment and order passed by the Company Judge and also the order passed by the High Court in appeal. Consequently the Official Liquidator is directed to forthwith recover the possession of the properties and proceed with a fresh auction after obtaining the fresh valuation report and fixing the reserve bid. Needless to say that all further actions shall be taken in accordance with the procedure established by law.

                                                                  REPORTABLE

                          IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL Nos. 6055-6056 OF 2015
            (Arising out of SLP (Civil) Nos. 27113-27114 of 2013)

M/s. Tech Invest India (Pvt.) Ltd.
Thr. Major Shareholder Rajiv Gosain                 …..Appellant

                                   versus

M/s. Assam Power & Electricals Ltd.
and others                                                ..Respondents


                                  JUDGMENT

M. Y. EQBAL, J.



      Leave granted.




   These appeals by special leave are directed against the  judgments  dated
25.09.2012 and 16.07.2012 of the High  Court  of  Uttarakhand  at  Nainital,
which dismissed the appeal and review application  filed  by  the  appellant
company challenging the order confirming  the  sale  and  handing  over  the
assets of the appellant-company to the respondent.





The facts of the case lie in a narrow compass.  The  respondent  no.  1  had
sent a statutory notice under Section 434 of the  Companies  Act,  1956  and
filed a winding up petition against the appellant-company alleging that  the
appellant-company had taken a loan of Rs. 6 lakhs from respondent no.  1  on
23rd March, 1999 and promised to repay it within 30 days with 18%  interest.
The appellant-company was alleged to have, however,  initiated  measures  to
shut down its operations and sell its assets and issued closure  notices  in
May, 1999 without repaying the dues to the respondent.




The Company Judge appointed an Official Liquidator  on  14.10.1999  and  the
possession of the assets of the appellant-company  was  taken  over  by  the
Official Liquidator who was also granted permission to assess the  valuation
in terms of  order  dated  23.02.2000.  The  Official  Liquidator  filed  an
application for selling  the  assets  of  the  appellant-company  through  a
public auction and it was allowed on 11.08.2003. The public auction  was  to
be held on 29.09.2003.




The appellant-company filed an  application  to  stay  the  auction  on  the
ground that its assets worth  Rs.  7  crores  were  going  to  be  auctioned
without fixing the minimum reserve price and after issuing the auction  sale
notice only once. The appellant  accordingly  expressed  apprehension  about
the  highest  price  being  secured.  The  Company  Judge  disposed  of  the
application vide order dated  26.09.2003  refusing  to  interfere  with  the
auction  and  directed  the  appellant-company  to   raise   the   aforesaid
objections at the time of confirmation of sale.





In the auction, respondent no. 3 purchased  the  assets  of  the  appellant-
company for Rs. 45.55 lakhs and deposited 10%  of  the  consideration.  Vide
order dated 28.05.2004,  respondent  no.  3  was  directed  to  deposit  the
remaining amount  after  it  was  noted  that  the  counsel  for  the  major
shareholders  in  the  appellant-company  had  no  objection.   Noting  that
respondent no. 3 had deposited the said amount  as  directed,  the  sale  in
favour of respondent no. 3 was confirmed and possession  of  the  assets  of
the company was directed to be given vide order dated 30.06.2004.




Rajiv Gosain, a shareholder in the appellant-company, filed  an  application
for rejecting the auction sale and  for  re-auction.  It  was  alleged  that
respondent no. 1 and the Official Liquidator had appointed  S.  K.  Ahuja  &
Associates who had inspected the assets of the appellant-company and  valued
the assets to be worth Rs. 6.25 crores. The  same  was  said  to  have  been
communicated to the petitioner vide letter dated 15.05.2000 and  it  was  in
turn said  to  have  been  communicated  by  the  appellant-company  to  the
Official Liquidator vide letter dated 26.06.2003.  The  Official  Liquidator
was, however, alleged to have not informed the High Court of  the  valuation
by S. K. Ahuja  and  Associates  and  consequently  secured  permission  for
valuation on 23.02.2000  pursuant  to  which  the  Official  Liquidator  was
alleged to  have  illegally  and  with  mala  fide  intention  appointed  an
ineligible valuer, Mr. S. B. Bhargava, to value the assets of the appellant-
company. Mr. S. B. Bhargava was alleged to have  drastically  and  illegally
reduced the value of the assets of the appellant-company to Rs. 76.80  lakhs
and his report was submitted to the High Court by the  Official  Liquidator.
The same was alleged to have led to the issuance  of  an  erroneous  auction
notice which did not mention minimum reserve  price  and  many  other  vital
details and which notice only came  to  the  knowledge  of  a  very  limited
number of individuals. The auction was further challenged on the  ground  of
procedural irregularity.





One Advocate Mr. Sharad Sharma appeared before the High Court on  13.04.2004
claiming to represent the shareholders  of  the  appellant-company  and  the
matter was listed for filing of objections by  him  and  on  30.04.2004  one
last opportunity was given to him for filing of objections.





On 28.05.2004, the High Court, after noting that  the  counsel  representing
the shareholders  of  the  appellant-company  had  no  objections,  directed
respondent no. 3 to deposit the remaining amount. On  30.06.2004,  the  High
Court confirmed the sale in favour of respondent no. 3  and  the  assets  of
the appellant-company were directed to be given to respondent no. 3.




The appellant-company filed an appeal to the  Division  Bench  of  the  High
Court contending that its assets were worth much  more  than  the  price  at
which it was sold and that its objections were not considered  at  the  time
of confirmation of sale.  The  Division  Bench  dismissed  the  appeal  vide
judgment dated 16.07.2012 on the ground that the counsel for the  appellant-
company had not made any objections at the time the sale was confirmed.




The appellant-company filed a review application alleging that  the  counsel
who claimed to be representing  the  appellant-company  before  the  Company
Judge on 28th May, 2004 was not engaged by  them  and  hence  there  was  an
error on the face of judgment dated 16.07.2012 which had made  recorded  the
same. The High Court, however, held that such a statement  in  the  judgment
dated 16.07.2012 was a mere repetition of  what  was  stated  in  the  order
dated 28.05.2004 of the Company Judge and hence an error,  if  any,  was  in
the order dated 28.05.2004 which was  appealed  against  by  the  appellant-
company. The High Court held that the appeal filed by the  appellant-company
was dismissed mainly because the sale was confirmed in favour of  respondent
no. 3, possession handed over and encumbrances  created,  before  any  steps
were taken by the appellant-company. The High  Court  accordingly  dismissed
the review application vide judgment dated 25.09.2012.




Hence, the present appeals.




We have heard learned counsel for the parties.  We  have  also  perused  the
entire facts of the case and the order passed by the High Court.




Prima facie, it appears that the objections raised  by  the  appellant  were
not properly considered inasmuch as the objections were not heard  on  merit
and the auction sale was confirmed.  Shri Sharad Sharma, Advocate, had  made
the aforesaid statement before the Company Court on 28.5.2004,  however,  he
had never been  engaged  either  by  Mr.  Rajiv  Gosain  or  by  any  person
authorized by him.  Therefore, making statement by the Advocate that he  has
no instruction or waiving the disposal of objection on  merit,  was  without
any basis which ought to have been considered by the High Court.




Be that as it may, the conduct of the Official  Liquidator  in  selling  the
property at a price of Rs. 45.45  lakhs  without  proper  publicity  through
advertisement  or  fixing  any  reserve  price  for  the  assets  cannot  be
sustained in law, particularly, when  the  predecessor  Official  Liquidator
reported that the property put in auction is of much higher valuation.




Having considered the illegality and irregularity committed in  the  auction
sale of the property, the entire process is vitiated. Further we are of  the
view that the Company Judge also failed to exercise its judicial  discretion
to see that the properties are sold at a reasonable price.




Apart from that, when the valuation report was submitted before the  Company
Judge, it ought to have been  disclosed  the  secured  creditors  and  other
interested persons in order to ascertain the market value  of  the  property
before property was auction sold.   Since the same has not  been  done,  the
auction sale and the order confirming the sale are liable to be set aside.





We, therefore, allow these appeals and set  aside  the  judgment  and  order
passed by the Company Judge and also the order passed by the High  Court  in
appeal. Consequently  the  Official  Liquidator  is  directed  to  forthwith
recover the possession of the properties and proceed with  a  fresh  auction
after obtaining the fresh valuation  report  and  fixing  the  reserve  bid.
Needless to say that all further actions shall be taken in  accordance  with
the procedure established by law.


                               …………………………….J.
    (M.Y. Eqbal)



                                 …………………………….J.
    (Arun Mishra)
New Delhi
August 11, 2015
ITEM NO.1A               COURT NO.10               SECTION X
(For Judgment)
               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS
Civil Appeal Nos. 6055-6056 of 2015 @ Petition(s) for Special Leave to
Appeal (C)  No(s).  27113-27114/2013

M/S TECH INVEST INDIA PVT. LTD. THROUGH MAJOR
SHAREHOLDER RAJIV GOSAIN                             Petitioner(s)
                                VERSUS

ASSAM POWER AND ELECTRICALS LTD & ORS.         Respondent(s)

Date : 11/08/2015 These petitions were called on for pronouncement of
judgment today.

For Petitioner(s)
                     Mrs. Priya Puri,Adv.
                        Mr. Ranjay Kr. Dubey, Adv.
For Respondent(s)
                     Mr. M. T. George,Adv.

                     Mr. Ravindra Kumar,Adv.

                     Mr. Subhash Chandra Jain,Adv.

                     Mr. M. C. Dhingra,Adv.

                     Mr. Rajinder Mathur,Adv.

                     Mr. Subhash Chandra Jain,Adv.

            Hon'ble Mr. Justice M.Y. Eqbal pronounced the  judgment  of  the
Bench comprising His Lordship and Hon'ble Mr. Justice Arun Mishra.
            Leave granted.
            The appeals are  allowed  in  terms  of  the  signed  reportable
judgment.

 [INDU POKHRIYAL]                       [SUKHBIR PAUL KAUR]
  COURT MASTER                       A.R.-CUM-P.S.
      (Signed reportable judgment is placed on the file)

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