JUDGMENT
The Court
1. There shall be an order in terms prayer (a) of the application.
2. Keeping in view the facts and circumstances of the case we are of the opinion that the appeal upon waiving all formalities be treated on the day’s list and be disposed of,
3. This appeal is directed against an order dated 7th October, 1995 passed by a learned Judge of this Court whereby and whereunder an application filed by the appellant was dismissed. The fact of the matter lies in a very narrow compass.
4. In an Admiralty Suit, an advertisement was issued by the Joint Receivers appointed therein. The Sale Notice issued therefor reads thus :
SALE NOTICE
CRUDE DEGUMMED SOYABEAN OIL
Offers are invited for sale of 400 m.t. (approx.) Crude Degummed Soyabean Oil lying in the shore Tank of M/s. J.R. Enterprises at Tank No. J.R.E.6 Budge Budge on ‘as is where is basis.’
The offers in sealed covers shall have to be submitted to the undermentioned on or before 7th September 1999 by 4 p.m. at the office of Mr. Amit Basu. C/O. M/s. Victore Mosses & Co., Solicitors & Advocates of No. 6, Old Post Office Street (Ground Floor) Calcutta-700 001, accompanied by earnest money of 10% of the offer price either by Pay Order or by Bank Draft in the joint name of the Joint Receivers.
The sale would be subject to confirmation of the Hon’ble High Court, Calcutta.
The terms and conditions of sale will be available to the intending offerers from the office of Mr. Amit Basu. C/o. M/s. Victor Mosses & Co., Solleitors & Advocates of No. 6, Old Post Office Street (Ground Floor), Calcutta-700 001 during office hours.”
5. An offer in writing was made by the appellant petitioner In a sealed cover wherein it quoted a price of Rs. 22,500/- per M.T. inclusive of customs duty, shore tank charges etc. but exclusive of local sales tax. It further sent a sum of Rs. 9,50,000/- drawn on Andhra Bank Brabourn Road Branch in the name of Joint Receivers.
6. However, before the learned trial Judge, it appears, another bid had taken place wherein all the bidders took part and raised their offers, as would appear from the order dated 9lh September, 1999, the relevant portion whereof reads thus :
“Accordingly Upkar Vinimay Pvt. Ltd. raised their offer upto Rs. 22000/- per M.T., Pansari Vegetable & Oils Pvt. Ltd. Rs. 25000/-; Shrey Oil Products raised their offer upto Rs. 19500/- and whereas the offer given by Vlnayak Oils & Fats Pvt. Ltd. is Rs. 25,200/-.
As it appears that in open Court both Pansari Vegetable & Oils Pvt. Ltd. and Vinayak Oil Fats Pvt. Ltd. raised their offers at Rs. 25000/- per M.T. and Rs. 25,200/- per M.T. respectively. Such being the position at this
stage, the sale is confirmed in favour of Mr. Jishnu Saha’s client, Vinayak Oil & Fats Pvt. Ltd. being the highest bidder for the same. The Advocate-on-record of Vinayak is directed to file his Vakalatnama In course of today.
Pansari Vegetable & Oils Pvt. Ltd. is the second highest bidder in respect of the sale before this Court.
Accordingly, the offer of Vinayak Oil & Fats Pvt. Ltd. is being accepted at the said amount. Vinayak Oil & Fats Pvt. Ltd. is directed to pay the balance earnest money within 48 hours with the Joint Receivers. Upon payment of the full amount by the said Vinayak Oil & Fats Pvt. Ltd. the Joint Receivers are directed to hand over the delivery of the said 400 M.T. of Soyabean Oil to the said Vinayak Oil & Fats Pvt. Ltd. Such delivery to be completed by the Joint Receivers and should be received by the purchaser within the time mentioned in the terms and conditions for sale i.e. seven days from date. In default of payment of full amount as indicated above by the said Vinayak Oil & Fats Pvt. Ltd. the second highest bidder, Mr. Chowdhury’s client being Pansari Vegetable & Oils Pvt. Ltd. will get an opportunity to take the said 400 M.T. Soyabin Oils at the rate mentioned hereinabove. If, Mr. Chowdhury’s client intends to take the same, in that case, his client is also directed to deposit the balance of the earnest money as directed in terms of the said sale with the Joint Receivers. All other intending offerers, who have already deposited their cheques/bank drafts/pay order with the Joint Receivers are directed to take the refund of the same from the Joint Receivers in course of this week. The Joint Receivers are directed to hand over the same to all the said intending offerers.”
7. The case of the appellant is that such an offer was made subject to the original condition. In support of the said contention strong reliance has been placed on the letter dated 13.9.1999 issued by the appellant’s Advocate to the Joint Receivers wherein it was allegedly slated as hereunder :
“You will appreciate that the offer made by my client was at the rate of Rs. 22,525/- per M.T. inclusive of customs duties, shore charges and others, if any, except local sales tax, if applicable.
I understand that a bidding was held in the Court when my client enhanced his offer to Rs. 25,200/- per M.T. which was again Inclusive of customs duties, shore charges and others, If any except local sales tax, if applicable.”
8. Thereafter the appellant petitioner also Issued a Pay order amounting to Rs. 58,000/- with Its forwarding letter dated 15th September 1999 and Rs. 90,72,000/- by two Pay orders along with the forwarding letter dated 16.9.1999.
9. The Joint Receivers, however, by a letter dated 17th September 1999 clarified the position to the effect that the offer made by the petitioner-appellant was not Inclusive of customs duties etc. It was stated in the said letter as follows :–
“In the meeting of the parties hold on 16th September, 1999 It was decided that the matter will be mentioned by you regarding clarification
of the payment of customs charges etc. in view of the inconsistencies with the terms and conditions of the sale of the goods with the terms and conditions which have been Imposed by the highest offerer in its offer.
Please note that if you do not mention the matter on Monday the 20th instant as agreed by you, in that event, the matter Will be brought to the notice of the Hon’ble Court on the said date at the first sitting of his Court of necessary directions.”
10. According to the respondent, however, while transcribing the order dated 9th September 1999 passed by the learned trial Judge a mistake had crept in which mistake having been pointed out on 22.9.1999, the following clarification was made.
“I only make it clear that the sale was confirmed in favour of Vinayak Oil & Fat Pvt. Ltd. on the basis of the terms and conditions which were settled by the Joint Receivers.
Let this order be Incorporated in the order dated 9.9.99.
11. Thereafter an appeal was preferred before this Court. This Bench having regard to the disputes thought it fit that the matter should be considered again by the learned trial Judge.
“Having heard the learned counsel for the parties, we are of the opinion that keeping in view the controversies raised in the matter as noticed hereinbefore, the proper course for the parties would be to approach the learned trial Judge again as, in our opinion. It is for the learned trial Judge to consider the matter in the proper perspective and pass an appropriate order.
Mr. Saha submits that in case the conditions imposed by his client in terms of the aforementioned order dated 7-9-1999 are not accepted by the learned trial Judge, his client is willing to withdraw its offer. Such a prayer may also be made before the learned trial Judge whereupon an appropriate order may be passed.”
12. Pursuant to the aforementioned observations made by this Bench an application was filed by the appellant herein. The learned trial Judge upon taking Into consideration all facts and circumstances of the case, inter alia, held as follows :-
“Assuming that the petitioner was labouring under a mistake either of law or fact as alleged as regards the sale not being according to the terms and conditions of sale published by the Joint receivers but on the basis of its letter dated September 7, 1999, I am inclined to be of the view that nothing prevented the petitioner from withdrawing its offer at the time when the order dated September 9, 1999 had been made. The Hon’ble Judge clearly set out in his order that the sale was being held under the terms and conditions which had been informed to all the parties by way of publication in the local newspapers. The offer which had been made to the Joint Receivers in sealed covers, were opened in Court for the first time in the presence of the parties. The petitioner was represented and made fresh offer which, in my view, was made not in terms of Its earlier offer but on the basis of there terms and conditions
of sale and that was recorded by the Hon,ble Judge in his order confirming the sale. If there was a mistake of law in understanding the procedure by the petitioner, there was a further opportunity of rectifying such alleged mistake when the Hon’ble Judge clarified his order by an order dated September 22. 1999. The petitioner did not over on any occasion bring it to the notice of the Court that it was labouring under any mistake. Further, nothing prevented the petitioner from making an application before the Court that there had been a mistake. No such application appears to have been made.
In those circumstances, it would appear to me that the sale had been confirmed by Court in the presence of the parties including the petitioner. The petitioner was represented by advocate. A further clarification had been made by the Court that the sale was “on the basis of the terms and conditions which were settled by the Joint Receivers.” The petitioner had also paid a sum of Rs. 1,00,80,000/- (one crore eighty thousands) to the Joint Receivers by way of part payment. The petitioner, I am inclined to hold, therefore could not be allowed to withdrawn from the sale without bearing the consequences as provided in the terms and the conditions of sale.”
13. Mr. N.K. Poddar learned counsel appearing on behalf of the appellant, inter alia, submitted that it had all along been the contention of the appellant herein that its Initial offer having been subjected to conditions laid down therein, raising thereof before the learned trial Judge was also subjected to be the said conditions. The learned counsel contends that the appellant had made a bonafide mistake, if at all, and the same would be evident from the fact that it had issued a letter immediately on 13.9.1999, despite the fact that a copy of the said order dated 9th September 1999 had not been received by it. On the other hand, the contention of the respondent is that the learned trial Judge himself directed on 9.9.1999 Itself that such offer would be without any conditions and in terms of the sale notice and only because the same has not been subscribed, it was brought to the notice of the learned Judge and a clarification was made on 22.9.1999. The scope of appeal in such matter is very limited. How and in what manner and/ or in what conditions a sale was conducted cannot be found out from records. The contention of the parties must be considered in the light of the records and the facts and circumstances attending thereto. The conditions of sale would appear from the sale Notice which has already been quoted above.
14. Admittedly, the Initial offer of the appellant was not in terms of the said sale notice. When the appellant together with others took part in the bid, from the records it does not appear that they raised any contention to the effect that such bid would be in terms of the earlier offer made before the Joint Receivers in terms of the sale notice which were contrary to the conditions laid down in the said notice. Admittedly the oil in question is lying with the Customs authorities and a huge amount by way of demurrage to the extent of Rs. 1,00,000/- per month is being paid by the respondent besides supervision fees shore tank charges are also being paid. Learned trial Judge upon hearing the counsel for the parties, as noticed hereinbefore, has assigned sufficient and cogent reasons in rejecting the appellant’s application and we do not find any infirmity therein.
15. If, despite an offer having been made the appellant now Intends to back out therefrom, the consequences laid down in the sate notice shall prevail and it would be open to the learned trial Judge to pass an appropriate order wherefor the respondent may approach.
The Joint Receivers may refund any amount lying in excess of the amount which is liable to be forfeited, to the appellants herein as expeditiously as possible.
Both the appeal and the application stand disposed of with the aforementioned observations.
16. Appeals disposed of