Whether Reporters of Local Papers may be allowed to see the judgment ?No 2 To be referred to the Reporter or not ?No 3 Whether their Lordships wish to see the fair copy of the judgment ?No 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?No 5 Whether it is to be circulated to the civil judge?No ========================================= MANUBHAI MAGANBHAI PATEL Versus JAYESHBHAI KIRITBHAI PATEL & ORS ========================================= Appearance in O.J. Appeal No. 17 of 2009 :
MR DEVAN PARIKH with MR MUKESH N VAIDYA for Appellant RULE NOT RECD BACK for Opponent(s) : 1, 4, MR RM DESAI for Respondent No. 2 MR JS YADAV for Respondent No. 2 None for Respondents No. 3, 5 -
17. MR TARAK DAMANI for Respondent No.19 Appearance in O.J. Appeal No. 14 of 2009 :
MR S.N. SOPARKAR assisted by MR. DILIP KANOIJA for Appellant DR SONIA HURRA for Respondent No. 1 MR RM DESAI for Respondent No. 2 MR JS YADAV for Respondent No. 2 None for Respondents No. 3, 5 - 17.
MR.
S.I. NANAVATI assisted by Mrs. V.D. Nanavati for Res.No.18 MR TARAK DAMANI for Respondent No.19 Appearance in O.J. Appeal No. 16 of 2009 :
MR S.I. NANAVATI assisted by MRS. V.D. NANAVATI for Appellant MR RM DESAI for Respondent No. 2 MR BH BHAGAT for Respondent No. 11 Respondents No. 1, 3-9, 12-14, 16-18 served.
MR TARAK DAMANI for Respondent No.19 ========================================= CORAM :
HONOURABLE MR.JUSTICE V. M. SAHAI and HONOURABLE MR.JUSTICE A.J. DESAI Date : 10/04/2012 CAV COMMON JUDGMENT (Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1 By Order dated 14.3.2012, after hearing the learned Advocates appearing for the parties, the judgment is reserved for pronouncement. In the said order along with the above referred Appeals, O.J. Appeal No. 44 of 2011 was also tagged. Mr. Devan Parikh, learned Senior Counsel assisted by Mr. Mukesh N. Vaidya appearing for the appellant in O.J. Appeal No.44 of 2011, subsequently requested that the subject matter of the said O.J. Appeal No. 44 of 2011 is different and, therefore, the same shall be segregated from the group of Appeals and, accordingly, the same is segregated and the Registry shall list the said appeal for hearing separately.
2 The main contesting party i.e. Jayeshbhai Kiritbhai Patel, respondent No.1 in all the aforesaid three appeals, has engaged Dr. Sonia Hurra, as his Advocate in O.J. Appeal No. 14 of 2009. As observed in paragraph-3 of the Order dated 14.3.2012, all the appeals are taken up for hearing in the revised Board. Dr. Sonia Hurra, learned Advocate, appearing for respondent No. 1 did not remain present and, therefore, the appeals were heard in absence of the Advocate for the respondent No.1.
3 The present appeals are filed by three different appellants under Section 483 of the Companies Act, 1956 (hereinafter referred to as the "Act" for short), amongst whom, the dispute with regard to the sale of property which was settled, pursuant to several orders of this Court in different proceedings under the Act, but, subsequently, the same came to be modified by the learned Single Judge in Company Application No.429 of 2008 by a Common CAV Judgment and Order dated 9.3.2009 submitted by the present respondent No.1.
3.1 By the said judgment dated 9.3.32009, the following directions were issued:
(A) The sale confirmed in favour of the respondent No.3 - appellant herein and/ or respondent No. 4 stands cancelled and the sale of freehold land effected in favour of the respondent No. 19 shall be treated as effected by the Official Liquidator directly in favour of the respondent No.19 and the sale of the leasehold land shall be undertaken by the Official Liquidator only after the disputes raised by the lessors are finally resolved by the Hon'ble Supreme Court, if so required. The appellant is directed to refund an amount of Rs. 6.47 crores to the Official Liquidator.
(B) The respondent No.4 is directed to refund an amount of Rs. 8.24 crores to the Official Liquidator.
(C) The respondent No.18 is directed to refund an amount of Rs. 20 crores to the Official Liquidator.
(D) The Official Liquidator is directed not to executed and/or part with the possession of the leasehold land to the appellant and the order dated 24.12.2003 is treated as recalled so far as the leasehold land is concerned. It is further directed that if the possession of the leasehold land is with the appellant or with any one else, the same should be handed over to the Official Liquidator within one month from the date of the Order."
4 The appellants being aggrieved and dissatisfied with the directions, have challenged the said decision in the present appeals.
5 Brief facts of the present case are as under:
5.1 The disputes involved in this litigation is the land bearing Revenue Survey Nos. 482, 483, 488 and 489 of City Survey No. 1297 and 1298, admeasuring 25772.77 sq. meters of freehold land and admeasuring 13238.26 sq. meters of leasehold land. The said freehold land and the leasehold rights belonged to one Ambica Mills Limited (in liquidation). By order dated 17.01.1997, the said Ambica Mills Limited was ordered to be wound up. By an order dated 16.02.2000 as well as Order dated 24.03.2000 this Court appointed the Sale Committee for the purpose of sale of the movable and immovable assets of the said company. On 29.5.2003, the appellant of O.J. Appeal No. 14 of 2009 (Bheruji Estate) offered to purchase the lands by filing Company Application No. 414 of 2003 before the learned Company Judge. On 01.08.2003, the learned Company Judge directed that the offer of said Bheruji Estate be placed before the Sale Committee. Initially, on 14.8.2003, the said offer was rejected. Said Bheruji Estate revised its offer and the revised offer was found acceptable by the Sale Committee. Accordingly, on 30.9.2003, report was filed by the Official Liquidator, being OLR No.81 of 2003, seeking necessary orders in this regard. On 23.12.2003, one Akash Associates appeared in the above proceedings taken out by the Official Liquidator and declared its intention to participate in the auction sale. The matter was adjourned to 24.12.2003. On 24.12.2003, Akash Associates and three others along with the appellant participated in the open bidding. The bid of the appellant of O.J. Appeal No.14 of 2009-Bheruji Estate at Rs.8.60 crores was found to be the highest. By Order dated 24.12.2003, the said offer of Bheruji Estate was accepted. While accepting the same, the learned Company Judge noted that advertisement for sale of land was issued in the year 2002 and in pursuance whereof, the offers were received and thereafter the Official Liquidator had filed its report, being OLR No. 60 of 2002 seeking appropriate orders for sale of the property but the said O.L. Report came to be disposed of by Order dated 26.12.2002. The learned Company Judge has further recorded that the offer of the appellant- Bheruji Estate was found to be the highest and considering the fact that the appellant would also be required to pay the dues of GEB and Vadodara Municipal Corporation of approximately Rs.5.25 crores and Rs.45 lacs respectively, effectively, the offer of the appellant-Bheruji Estate comes to Rs. 14.30 crores. Having considered the valuation on record and having considered that better offer is not available, the learned Company Judge finalized the sale in favour of the appellant - Bheruji Estate. The O.L. Report No.60 of 2002 was disposed of by Order dated 26.12.2002 which clearly reveals that at the relevant point of time, the intending purchasers were not willing to offer effective consideration of 10 crores for the subject lands. The offer of the appellant-Bheruji Estate which was eventually accepted by this Court was just and proper and at par with the prevailing market value. The said order dated 24.12.2003 was not challenged in any proceedings and the same has become final.
5.2 Pursuant to the above, part consideration was paid by the appellant-Bheruji Estate. Thereafter, the said appellant- Bheruji Estate had entered into an understanding with one Shri Manubhai Maganbhai Patel-appellant of Appeal No.17 of 2009 which became a subject matter of dispute between the appellant of Appeal No.14 of 2009 and appellant of Appeal No. 17 of 2009. The appellant of Appeal No.17 of 2009-Manubhai Maganbhai Patel had filed a Company Application No.449 of 2004 seeking a direction to the Official Liquidator to hand over vacant possession of the freehold land admeasuring 25772.77 sq. meters to him. Similarly the appellant of Appeal No. 14 of 2009-Bheruji Estate had also filed a Company Application No. 37 of 2005 seeking modification of the earlier order passed by the learned Company Judge on 29.07.2004 in Company Application No. 205 of 2004 and also sought direction to the Official Liquidator to execute the sale deed of the freehold land admeasuring 25772.77 sq. meters in his favour. By order dated 29.07.2004, the learned Company Judge had permitted the Official Liquidator the execution of sale deed in favour of the appellant of O.J. Appeal No.17 of 2009-Manubhai Maganbhai Patel, who is respondent No. 4 in O.J. Appeal No. 14 of 2009.
5.3 In the meantime, on 8.9.2004, possession of freehold land as well as leasehold land was handed over to the appellant of Appeal No.14 of 2009 - Bheruji Estate. As regards the freehold land, sale deed, however, was not executed either in favour of the appellant of Appeal No. 14 of 2009
- Bheruji Estate or appellant of Appeal No.17 of 2009
-Manubhai Maganbhai Patel because of ongoing disputes which were subject matter of the Company Application No.449 of 2004 and Company Application No. 37 of 2005.
5.4 Both the aforesaid Company Applications came to be disposed of by Order dated 5.4.2005. By the said order, the learned Company Judge directed the Official Liquidator to execute the sale deed in favour of the appellant of Appeal No.17 of 2009 - Manubhai Maganbhai Patel and also to hand over possession of freehold land to him. It is also directed that if the possession is already handed over to the appellant of Appeal No.14 of 2009 - Bheruji Estate, the same should be taken back from him and should be handed over to the appellant of Appeal No.17 of 2009 - Manubhai Maganbhai Patel. The above proceedings and the order of the learned Company Judge was concerned only the freehold land admeasuring 25772.77 sq. meters and there was no dispute with regard to the leasehold land admeasuring 13238.26 sq. meters.
5.5 Being aggrieved by the said order passed in Company Application No.449 of 2004 and Company Application No.37 of 2005, applicant of Company Application No. 37 of 2005- Bheruji Estate filed two appeals, being O.J. Appeal No. 13 of 2005 and O.J. Appeal No. 14 of 2005 respectively.
5.6 In the meantime, Company Application No. 187 of 2004 in Company Petition No. 66 of 1988 was filed by Pravinbhai Patel and others claiming to be the owners of the leasehold land and sought return of the same in view of the liquidation of the company. By order dated 6.5.2005, the said company application came to be rejected.
5.7 Being aggrieved by and dissatisfied by the said Order dated 6.5.2005, the owners of the leasehold land have filed OJ Appeal No.34 of 2005. The said OJ Appeal is admitted and interim relief as prayed for has been granted. In view of the said order which is in operation, even as on today, necessary documents of assignment of leasehold rights has not been executed in favour of the appellant, however, the appellant has been put in possession of the leasehold land and is in continued possession thereof.
5.8 During the pendency of O.J. Appeals No.13 and 14 of 2005, the Division Bench of this Court directed the appellant of Appeal No.14 of 2009- Bheruji Estate, to hand over the possession of the freehold land to the Official Liquidator and accordingly, during the pendency of the said appeals, possession of freehold land was handed over to the Official Liquidator.
5.9 During the pendency of the appeals, by an interim order passed by the Division Bench on 26.8.2005, sale deed was ordered to be executed in favour of the appellant of O.J. Appeal No.17 of 2009 - Manubhai Maganbhai Patel, subject to the final outcome of the appeals. By another order passed subsequently, the sale deed to be executed in favour of the appellant of O.J. Appeal No. 17 of 2009-Manubhai Maganbhai Patel was approved by this Court. Accordingly, sale deed was executed in favour of the appellant of O.J. Appeal No.17 of 2009-Manubhai Maganbhai Patel on 29.12.2007. The said said deed was, however, made subject to the final outcome of the appeals.
5.10 Pending the above appeals, it seems that the appellant of O.J. Appeal No. 16 of 2009-M/s Dexterity Developers had entered into an agreement with one Dexterity Software Technology Pvt Limited for identifying the properties in Gujarat. On 19.10.2007, a memorandum of understanding was executed between the appellant of O.J. Appeal No.17 of 2009-Manubhai Maganbhai Patel and M/s Dexterity Software Technology Private Limited, whereby the the appellant of O.J. Appeal No.17 of 2009 - Manubhai Maganbhai Patel had agreed to sell the property in favour of said Dexterity Software Technology Private Limited. Thus, pending the appeals, the appellant of O.J. Appeal No.16 of 2009-M/s Dexterity Developers and Dexterity Software Technology Private Limited acquired interest in the property which were subject matter of the appeals. The appellant of O.J. Appeal No. 14 of 2009 was also approached by the appellant of O.J. Appeal No. 17 of 2009 - Manubhai Maganbhai Patel for settlement and it was eventually agreed and understood that M/s Dexterity Software Technology Private Limited would pay an amount of Rs. 8 crores to the appellant of Appeal No.14 of 2009-Bheruji Estate. Thereafter, public notice was given by Dexterity Software Technology Private Limited inviting objections from all concerned against the proposed sale by appellant of O.J. Appeal No.17 of 2009 - Manubhai Maganbhai Patel in favour of Dexterity Software Technology Private Limited. The appellant of O.J. Appeal No. 14 of 2009 objected to the said sale in view of the pendency of the appeals. The settlement involving the appellant of O.J. Appeal No. 14 of 2009- Bheruji Estate, appellant of Appeal No.17 of 2009 - Manubhai Maganbhai Patel and M/s Dexterity Software Technology Private Limited and the appellant of O.J. Appeal No. 16 of 2009 - M/s Dexterity Developers was made subject matter of consent terms. The said consent terms clearly indicated the intention of the parties to dispose of the property and the involvement of the appellant of O.J. Appeal No. 17 of 2009 - Manubhai Maganbhai Patel. The consent terms also clearly indicate that an amount of Rs.8 crores is being paid to the appellant of O.J. Appeal No. 14 of 2009 by the said purchaser i.e. appellant of O.J. Appeal No. 16 of 2009- M/s Dexterity Developers and in view of the said payment, the appellant of O.J. Appeal No. 14 of 2009 - Bheruji Estate has agreed to withdraw the appeals. It was agreed between the parties to present the consent terms before this court and invite orders in terms of consent terms. Accordingly, consent terms were presented before this Court in the pending O.J. Appeals on 17.01.2008. As per the agreement between the parties, Demand Draft of Rs.8 crores favouring the Registrar, High Court of Gujarat was also tendered on 17.01.2008. By order dated 18.1.2008, consent terms as well as the Demand Draft were taken on record and the Registrar of this Court was directed to encash the Demand Draft of Rs. 8 crores.
5.11 Accordingly, the Demand Draft of Rs.8 crores was encashed by the Registrar of this Court. By another order passed on 23.01.2008,this Court recorded encashment of the Demand Draft of Rs. 8 crores and disposed of the appeals in terms of the consent terms. The Registry was directed to pay an amount of Rs. 8 crores to the appellant of O.J. Appeal No.14 of 2009 - Bheruji Estate and the appeals were disposed of in terms of the consent terms. Consequently, an amount of Rs.8 crores was paid to the appellant of O.J. Appeal No.14 of 2009 by the Registrar of this Court and the proceedings between the parties were concluded. The orders dated 18.1.2000 and 23.1.2008 were passed by Division Bench of this Court in O.J. Appeal No. 13 of 2005 and O.J. Appeal No.14 of 2005. This Court was, thus, aware about all developments, post confirmation of sale in favour of the appellant - O.J. Appeal No. 14 of 2009 - Bheruji Estate, including the intention of the parties to dispose of the properties.
5.12 It seems that Dexterity Software Technology Pvt Limited entered into an agreement to sell with the respondent No.19 - Sentia Infrastructure Limited, on 23.01.2008. Eventually, on 11.02.2008 the appellant of O.J. Appeal No.17 of 2009 - Manubhai Maganbhai Patel sold the land to the said respondent No.19. The appellant of O.J. Appeal No. 14 of 2009 - Bheruji Estate was, however, not party to all those agreements and was not concerned with and was not even party to any agreement between the respondent No. 19 and the appellant of O.J. Appeal No. 17 of 2009 or for that the matter between the appellant of O.J. Appeal No. 16 of 2009 - Dexterity Developers and respondent No. 19 - Senita Infrastructure Limited. It is the case of the appellant of O.J. Appeal No. 14 of 2009 that the appellant was only concerned with the O.J. Appeal Nos. 13 & 14 of 2005 and the payment of Rs. 8 crores to be made to him in full and final settlement.
5.13 It is the case of appellant in O.J. Appeal No. 14 of 2009 that all the orders of the learned Company Judge eventually merged into the interim and final orders passed in O.J. Appeal Nos. 13 and 14 of 2005. By interim directions issued in O.J. Appeals, sale deed was executed in favour of the appellant of O.J. Appeal No. 17 of 2009 - Manubhai Maganbhai Patel which sale was eventually concluded by the final orders in terms of the consent terms filed in the appeals.
5.14 It is the further case of the appellant in O.J. Appeal No. 14 of 2009 that much after the sale was concluded and the matter was eventually settled between the parties and rested with the orders passed by the Division Bench in the O.J. Appeals, in or around July,2008, Company Application No. 429 of 2008 was filed by the respondent No. 1 - Jayeshbhai Kiritbhai Patel for the following main reliefs:
"(A) That the Hon'ble Court be pleased to recall the Order dated 23.12.2003 passed in O.L.R. No. 81 of 2003 and order dated 05.04.2005 passed in Company Application No. 449 of 2004 and be pleased to recall the orders dated 16.4.2008, 12.05.2008 and 16.5.2008 passed in Company Application No. 329 of 2008;
(B) That the Hon'ble Court be pleased to accept the offer of the applicant for purchase of entire land of Ambica Mills at Baroda admeasuring 13238.26 sq. meters (leasehold land) and 25772.77 sq. meters (freehold land) thus total being 39,011.03 sq. meters at Revenue Survey Nos. 482, 488 & 489 and City Survey Nos. being 1297 and 1298, Sheet No. 30 & 36, Ward No.1, Mouje Sayaji Ganj Kasba (Vibhag I), Vadodara - amounting to Rs. 12.21 crores ( Rupees twelve crores twenty one lacs only) and onwards and confirm the same in favour of the applicant, be further pleased to quash and set aside earlier confirmation of sale and execution thereof, if any, for breach of order/s, and be further pleased to direct the Official Liquidator to execute the sale deed in favour of applicant in respect of entire assets of Ambica Mills."
5.15 The order dated 23.12.2003 in O.L. Report No. 81 of 2003 is the order whereby the sale was confirmed in favour of the appellant of O.J. Appeal No. 14 of 2009 - Bheruji Estate. Thus, effectively, application for recalling was filed after more than five years. The Order dated 5.4.2005 in Company Application No. 449 of 2004 is the order whereby the learned Company Judge directed the Official Liquidator to execute sale deed in favour of the appellant of O.J. Appeal No. 17 of 2009 - Manubhai Maganbhai Patel. The application to recall the said order was thus filed after almost four years of the said order. The orders dated 16.4.2008, 12.5.2008 and 16.5.2008 did not concern the respondent No.1 - Jayeshbhai Kiritbhai Patel but were passed in Company Application No. 329 of 2008 wherein the applicant of the said Company Application had offered to purchase the property but defaulted in depositing the amount as was directed to be deposited. There was no application for condonation of delay in fling Company Application No. 429 of 2008 seeking recall of the Orders dated 23.12.2003 and 05.04.2005.
5.16 in the said Company Application No. 429 of 2008, the appellant of O.J. Appeal No. 17 of 2009 - Manubhai Maganbhai Patel filed an affidavit on 4.9.2008, inter alia, disclosing amongst other things that the property has been sold by him in favour of one M/s Sanita Infrastructure Limited - respondent No. 19 in the Appeals. An affidavit-in-rejoinder was filed by the original applicant i.e. respondent No.1 - Jayeshbhai Kiritbhai Patel to the said affidavit-in-reply filed by the appellant of O.J. Appeal No. 17 of 2009 - Manubhai Maganbhai Patel. Affidavit-in-sur-rejoinder was also filed by the said appellant of O.J. Appeal No. 17 of 2009 - Manubhai Maganbhai Patel dealing with the affidavit-in-reply of the respondent No.1- original applicant.
5.17 After hearing the parties, the learned Company Judge by judgment and order dated 9.3.2009 disposed of the said Company Application No.429 of 2008 submitted by respondent No.1 by issuing directions which are mentioned in paragraph 3.1 of the judgment.
6 Being aggrieved and dissatisfied with the directions the appellants who were affected by the directions have preferred the aforesaid Appeals. The main grounds raised in these appeals are as under:
i) That the learned Company Judge has failed to appreciate the fact that the respondent No.1-applicant of Company Application No. 429 of 2008 had principally prayed in the application to accept his offer for the purchase of the land of the mill company (in liquidation), the said relief having not been granted, ought to have dismissed the said application without any further orders especially when the final directions which have been issued were never prayed by respondent No.1. Not only that, the appellant and other parties to the proceedings had no notice of the final directions in contemplation and therefore the parties have no opportunity to defend the suo motu exercise of powers and/o show cause against the issuance of the directions in contemplation. Therefore the order under challenge is in violation of the principles of natural justice.
ii) That the learned Company Judge failed to consider the important aspect that the sale was confirmed and finalized in favour of the appellants vide order dated 24.12.2003. However, the impugned order was passed after a period of almost 7 years from the date of confirmation of sale.
iii) That the learned Company Judge has failed to consider the fact that the Division Bench of this Court has disposed of O.J. Appeals on the basis of consent terms filed between the parties and pursuant thereto the sale deeds were executed in favour of Manubhai Patel, the matter remained pending for almost five years. Under the circumstances, the learned Company Judge ought not to have entertained the application and/or issued the impugned directions as the learned Company Judge lacks jurisdiction to entertain the said application.
iv) That the learned Company Judge ought not to have drawn an inference of fraud especially when the sale was confirmed in favour of the appellants in the year 2003 and the matter was pending for almost five years and transaction were took place in the year 2007-08, during which period, the prices of the properties were escalated which could not have led to an inference of fraud. The learned Company Judge, instead of dealing with the aforesaid contention, has travelled beyond its jurisdiction to issue such directions terming the further transactions as fraud on the Division Bench.
v) That the learned Company Judge has seriously erred in inferring that the original price of the land of the company (in liquidation) was meager. The chronology of dates and events would show that the sale committee was appointed, offers were invited by the sale committee; public notices were issued, intending purchasers were called for negotiations; application was made to the learned Company Judge for confirmation of the offer of the appellant . At that time also, bids were received and the offer of the appellant was on the higher side, the same was confirmed. There is no allegation of any irregularity in the sale procedure. In absence of any allegation of irregularity, the learned Company Judge ought not to have passed the impugned directions.
v) That the learned Company Judge has erred in issuing the directions contrary to the settled legal position that concluded sale cannot be disturbed, that too, after a lapse of considerable period. In the present case, the sale has been disturbed after a period of more than five years. Therefore, the exercise of powers by the learned Single Judge is thus contrary to the settled legal position.
7 Though the respondent No.1 who had filed a Company Application No. 429 of 2008, has not filed any reply to the appeal. His Advocate had not remained present before the court at the time of hearing of these appeals.
8 We have gone through the judgment and order passed by the learned Company Judge in Company Application No. 429 of 2008 which was filed by the respondent No.1 along with the documents produced by the appellants. We are in agreement with the submissions that, though, the Company Application No. 429 of 2008, which was filed by the respondent No.1, was with regard to his offer for higher price of the property, the learned Company Judge has erred in issuing directions which were never prayed by the original application- respondent No. 1.
9 We are of the opinion that the learned Company Judge has exercised his suo moto powers which is not provided under the Act and particularly when the parties had entered into settlement before the Division Bench of this Court in Appeal proceedings i.e. O.J. Appeal No.13 of 2005. When the Division Bench of this Court in O.J. Appeal No. 13 of 2005 by order dated 23.1.2008 after taking the consent terms on record and disposing the Appeals in terms of the consent terms arrived at between the parties, there was no need to review it's own order, that too, issuing directions which were not in contemplation in the Company Application filed by the original applicant- respondent No.1. As contended by the learned Advocate for the appellants, the learned Company Judge has erred in exercising the powers as far as reviewing the same is concerned since the same has been considered after delay of more than five years.
10 Though, all the documents were placed before the learned Company Judge at the time of hearing of the Company Application No. 429 of 2008, the learned Company Judge ought not to have interfered with the sale which was finalized before the Division Bench in pending O.J. Appeal No. 13 of 2005.
11 We are in agreement with the submissions made by the learned Advocate for the appellants that the orders passed by the learned Company Judge would merge in the order passed by the Division Bench in the appeal arising from the same proceedings. The sale deed was executed in pursuance of the directions issued by the Division Bench in O.J. Appeal No. 13of 2005 and, therefore, there was no reason for the learned Company Judge to set aside the same after almost seven years from the date of its confirmation.
12 It is pertinent to note that when the disputes about the property was going on before the learned Company Judge as well as before the Division Bench which was dealing with the O.J. Appeals, the present respondent No.1 never participated in the proceedings. As stated here-in-above, the higher bidder was permitted to enter into an agreement to sale the property in the company proceedings wherein the present respondent No.1 was never one of the bidders who remained present before either of the courts.
13 In view of the above reasons, the O.J. Appeals are accepted and the same are allowed. The judgment and order dated 9.3.2009 passed by the learned Company Judge in Company Application No. 429 of 2008 is hereby set aside. No order as to costs.
(V.M. SAHAI, J.) (A.J. DESAI, J.) pnnair Top