{"id":209460,"date":"2004-10-07T00:00:00","date_gmt":"2004-10-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/allahabad-bank-etc-etc-vs-bengal-paper-mills-co-ltd-and-on-7-october-2004"},"modified":"2018-08-31T08:43:06","modified_gmt":"2018-08-31T03:13:06","slug":"allahabad-bank-etc-etc-vs-bengal-paper-mills-co-ltd-and-on-7-october-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/allahabad-bank-etc-etc-vs-bengal-paper-mills-co-ltd-and-on-7-october-2004","title":{"rendered":"Allahabad Bank Etc. Etc vs Bengal Paper Mills Co. Ltd. And … on 7 October, 2004"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Allahabad Bank Etc. Etc vs Bengal Paper Mills Co. Ltd. And … on 7 October, 2004<\/div>\n
Author: P Balasubramanyan<\/div>\n
Bench: C.J.I. R.C. Lahoti, G.P. Mathur, P.K. Balasubramanyan<\/div>\n
           CASE NO.:\nAppeal (civil)  4191-4193 of 1991\n\nPETITIONER:\nALLAHABAD BANK ETC. ETC.\n\nRESPONDENT:\nBENGAL PAPER MILLS CO. LTD. AND ORS. ETC.\n\nDATE OF JUDGMENT: 07\/10\/2004\n\nBENCH:\nC.J.I. R.C. LAHOTI, G.P. MATHUR & P.K. BALASUBRAMANYAN\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T <\/p>\n
IA Nos. 9-11
\nIN
\nCIVIL APPEAL NOS.4191-4193 OF 1991
\nWITH
\nI.A. NOs.13, 14 AND 15
\nIN
\nCIVIL APPEAL NO.4191 OF 1991<\/p>\n
P.K. BALASUBRAMANYAN, J.\n<\/p>\n
I.A. NOs.9-11 in CIVIL APPEAL NOs.4191-4193 OF 1991<\/p>\n
\t\tThese are applications by Respondent No.2 in the above
\nmentioned appeals, C.A. Nos.4191-4193 of 1991.   The prayer therein
\nis for a clarification of the Judgment in the appeals rendered by this
\nCourt on 20.4.1999 by providing that the applicant was also entitled to
\nthe amount of Rs.1,56,21,839.25 being the interest that has accrued on
\nthe purchase price of Rs.2 crores paid by it for the assets of the Bengal
\nPaper Mills Co. Ltd., a company in liquidation.    The applications are
\nopposed by the creditors, some of whom were the appellants in the
\nappeals.\n<\/p>\n
\t\tThe Bengal Paper Mills Co. Ltd. was ordered to be wound
\nup in a winding up petition filed by its creditors.   The order was passed
\non 24.4.1987.   Even before the order for winding up, the assets were
\nput in possession of two joint receivers appointed in a suit by one of the
\ncreditors.   On the Official Liquidator being appointed in liquidation,
\nthe joint receivers were directed to put the Official Liquidator in
\npossession of the assets of the debtor company.   They put him in
\npossession.  The possession was thus obtained by the Official
\nLiquidator.   After getting the assets valued, the Company Court on
\n29.6.1989 granted leave to the Official Liquidator to sell the assets and
\nproperties of the company in liquidation.    Pursuant thereto, the
\nOfficial Liquidator issued a sale notice on 14.9.1989.    Respondent
\nNo.2 in the appeal, the applicant, made an offer on 14.9.1989.    The
\noffer was accepted and the sale was ordered on 15.9.1989.   It is seen
\nthat the sale was confirmed the same day and possession was given to
\nthe purchaser, the applicant on 16.9.1989.  But, it may be noticed that
\nthe purchase price of Rs.2 crores was not collected at once and the
\npurchaser was permitted to pay the price in four quarterly instalments.
\nThe sale was confirmed on the terms quoted in the Judgment of this
\nCourt.   The sale and its confirmation by the Company Judge was
\nchallenged in appeals before the Division Bench of the Calcutta High
\nCourt.   The Division Bench of the High Court in spite of noticing
\nvarious irregularities and infirmities in the sale and the inadequacy of
\nthe price in the light of the valuation of the assets, proceeded to dismiss
\nthe appeals. The creditors challenged that decision in the above appeals
\nbefore this Court.   This Court by its Judgment dated 20.04.1999,
\nallowed the appeals and set aside the sale on the grounds set out
\ntherein.    It is seen that the applicant herein prayed before this Court
\nthat the amount of Rs.2 crores paid by it in instalments by way of
\npurchase price, may be refunded to it and that it may also be repaid the
\nsums which it had allegedly expended for the revival of the company.
\nThis Court, in the Judgment, dealt with the claim of the applicant as
\nfollows:\n<\/p>\n
\t“Learned counsel for the second respondent submitted that
\nthe second respondent would be entitled to recover the sale price
\nas also all expenditure that it had incurred consequent upon the
\norder of sale.   We are in no doubt that the Official Liquidator
\nmust refund to the second respondent the sum of Rs.2 crores.
\nAs to any other expenditure, the second respondent must apply to
\nthe High Court and satisfy it, first, that it was incurred and,
\nsecondly, that in law, the second respondent is entitled to recover
\nit.\n<\/p>\n
\tThe appeals are allowed.    The judgment and order under
\nappeal is set aside as also the order of sale dated 15th September,
\n1989 in favour of the second respondent.   The Official
\nLiquidator shall forthwith recover possession, from whoever is in
\npossession, of the assets and properties covered by the said order
\nof sale.   The same shall be resold after a fresh valuation report
\nthereof has been obtained, a reserve bid fixed and due
\nadvertisements published.   The second respondent shall be
\nrepaid the purchase price of Rs.2 crores by the Official
\nLiquidator subsequent to recovery of possession as aforesaid.”\n<\/p>\n
\t\tOn 4.6.1999, the applicant requested the Official
\nLiquidator to refund the amount of Rs.2 crores deposited by it towards
\nthe purchase price as directed in the Judgment.    The Official
\nLiquidator promptly refunded a sum of Rs.2 crores to the applicant on
\n6.7.1999.   It is the case of the applicant that it had claimed that it was
\nalso entitled to the interest earned by the Official Liquidator on
\ninvestment of the sum of Rs.2 crores, but that the Official Liquidator
\nrefused to pay any interest.   It is in that context that the present
\napplications have been filed by the applicant seeking what it calls a
\nclarification of the Judgment rendered by this Court.
\n\t\tAccording to the applicant, its claim for interest was for
\nthe period from15.9.1989 to 20.4.1999 on the sum of Rs.2 crores.   This
\nCourt had passed an order on 20.1.2000 calling upon the Official
\nLiquidator to furnish information on the investment of the sum of Rs.2
\ncrores and the interest that had been earned and the Official Liquidator
\nhad filed a statement which indicated that the interest that was earned
\nfor the period in question was Rs.1,56,21,839.25.
\n\t\tIt is also seen that pursuant to the liberty given by this
\nCourt the applicant has filed an application before the Company Court
\nclaiming payment out of a sum of Rs.21 crores as the amount expended
\nby it for the revival of the company.   It is said that the said application
\nwas allowed in spite of being opposed but that an appeal has been filed
\nagainst it and the recovery thereunder stood stayed and the appeal was
\nstill pending.\n<\/p>\n
\t\tThe application does not disclose under what provision the
\nsame was being filed.   Nor does it set out any legal basis for claiming
\ninterest on the purchase price deposited by the applicant.    The two
\naspects put forward are that during the 10 years the applicant was in
\npossession of the assets pursuant to the sale, the company had made
\nlosses except for two years and that the Official Liquidator had invested
\nthe purchase price and had earned interest and the interest earned was
\nan accretion to the purchase price which would belong the applicant
\nsince the sale in its favour had been set aside.\n<\/p>\n
\t\tThe applications are opposed.   It is submitted that the
\napplications were not maintainable as what the applications really
\nsought was not a clarification of the Judgment but an additional relief
\nor a relief which was not granted by this Court and which, in fact, has
\nbeen denied or which should be deemed to have been denied.   It is
\npointed out that the shockingly low purchase price was not even paid in
\na lump on 15.9.1989 from which date the interest was being claimed,
\nbut the same was paid only in four quarterly instalments and the claim
\nfor interest was untenable.  It was further submitted that the applicant
\nhad the enjoyment of the assets valued at more than Rs.16 crores for a
\nperiod of 10 years and the applicant had not accounted for the profits
\nfor that period.   It was pointed out that the claim that the company had
\nmade losses during the said 10 years other than for two years, was
\nbeing seriously disputed.   As a matter of fact, the applicant was liable
\nto account for the profits earned from the properties during the period
\nof 10 years it had been in possession.   The applications were
\nmisconceived and were liable to be dismissed.\n<\/p>\n
\t\tLearned senior counsel appearing for the applicant
\nsubmitted that the amount of Rs.2 crores paid into the hands of the
\nOfficial Liquidator by the company had earned interest amounting to
\nRs.1,56,21,839.25 and that the said interest was really an accretion to
\nthe purchase price paid by the applicant and once the purchase price
\nwas directed to be refunded to the applicant by setting aside the sale,
\nthe applicant was also entitled to the interest accrued, as an accretion to
\nthe asset.   He, therefore, submitted that the Judgment of this Court
\nrequired a clarification in that regard and really no review of the
\nJudgment was necessary and relief could be granted to the applicant on
\nthese applications.   Counsel appearing for the creditors, on the other
\nhand, submitted that the relief now being claimed must be deemed to
\nhave been refused by this Court while it ordered the refund of the
\npurchase price of Rs.2 crores and also allowed the applicant to make an
\napplication before the Company Court claiming payment out of the
\namounts allegedly expended by it for the revival of the company.
\nThe prayer made was beyond the scope of a petition for clarification of
\nthe Judgment and it was really a claim for further relief and such a
\nrelief cannot be granted on these applications.   The applicant had
\nenjoyment of the properties and its profits for a period of 10 years and
\nreally it was a case where the applicant had to account for those profits
\nand, there could be no unilateral direction for making over the interest
\nto the applicant without imposing a corresponding obligation on the
\napplicant to account for the profits of the properties.  The ordering of
\nsuch a mutual accounting was beyond the scope of the present
\napplications.\n<\/p>\n
\t\tCertain salient facts may be noticed.    This Court has
\nfound that the purchase price paid by the applicant was a shockingly
\nlow considering the value of the assets that were sold by the Official
\nLiquidator.   Even this low price of Rs.2 crores, as can be seen from the
\naffidavit of the official liquidator dated 29.3.2000, was paid not in a
\nlump by the applicant-the purchaser and the amount was allowed to be
\npaid in four quarterly installments but even before payment of the
\nentire purchase price, the properties were put in the possession of the
\napplicant on 16.9.1989, the day next to the sale.   The possession was
\nreturned only on 5.5.1999 about ten years after the applicant was put in
\npossession.  Until then, the applicant had the enjoyment of the
\nproperties.\n<\/p>\n
\t\tThe Official Liquidator, in winding up proceedings by
\ncourt, has the power to sell the immovable properties of the company
\nwound up, under Section 457(1)[c] of the Companies Act, 1956.   Rule
\n272 of the Companies (Court) Rules, 1959 provides that an Official
\nLiquidator can sell the property belonging to the company only with the
\nprevious sanction of the court and that every sale shall be subject to
\nconfirmation by the court.   Rule 273 lays down the procedure for sale
\nand Rule 274 deals with the meeting of the expenses of the sale.
\nOrder XXI Rule 93 of the Code of Civil Procedure (for short ‘the
\nCode’) provides that where a sale of immovable property is set aside
\nunder Rule 92 of Order XXI, the purchaser shall be entitled to an order
\nfor repayment of his purchase money with or without interest as the
\ncourt may direct, against any person to whom it has been paid.  It has
\nbeen held that even though Order XXI Rule 93 of the Code may not
\nipso facto apply to a sale otherwise other than under the Code, the
\nprinciple embodied therein can be applied to other sales to order refund
\nof the purchase price with interest while setting aside a sale.   But it has
\nto be seen that Rule 93 of Order XXI of the Code gives a discretion to
\nthe court setting aside a sale, either to award interest or not to award
\ninterest.  Considered in the context of that discretion, it is clear from the
\nJudgment rendered by this Court that this Court refused to direct the
\npayment of interest to the applicant even while directing the refund of
\nthe purchase price paid by the applicant to the Official Liquidator.   In
\nsuch a situation it is not possible to accede to the prayer of the applicant
\nto order the payment of interest on the purchase price paid by it, based
\non the principle embodied in Order XXI Rule 93 of the Code on this
\napplication for a clarification of the Judgment.  In the circumstances of
\nthe present applications, we have to proceed on the basis that this Court
\nhas exercised its discretion not to award interest on the purchase price
\nin the light of the directions issued by it in that behalf.
\n\t\tLearned counsel for the applicant relied on the decision in
\nMotors & Investment Ltd. vs. New Bank of India and others<\/a>  (1997
\n(11) SCC 271 ) and submitted that in that case the Court ordered
\npayment of interest to the purchaser on the sale being set aside.   On an
\nexamination of paragraph 6 of the said decision, it is seen that the
\nquestion was not discussed as such.   But the Court did order the
\ninterest earned by the purchase price to be refunded to the purchaser or
\nin the alternative to pay interest on the amount at 18 per cent per
\nannum.    In the case of  Central Bank of India vs. Ravindra and others<\/a>
\n(2002 (1) SCC 367 ) this Court discussed the concept of interest to
\npoint out that it was the payment fixed by agreement or allowed by law
\nfor use or detention of money.    In other words, what was indicated
\nwas that interest was really compensation for the use of the money
\nwhich the purchaser was deprived of.   Going by the principle of
\ncompensation indicated in the said Judgment, the question would arise
\nwhether the applicant, in the circumstances of this case, when it had
\nenjoyed the assets for about ten years on deposit of the purchase price,
\nwould be entitled to any compensation at all, or to compensation with
\nan obligation to account for the profits, an issue, that has to be
\nadjudicated in an appropriate manner and not certainly while
\nconsidering an application for clarification.    We find that the obtaining
\nof possession  by the purchaser on deposit of the purchase price has
\nconsiderable relevance, in deciding whether the purchaser would be
\nentitled to interest on the purchase price as indicated by the decision of
\nthis Court in Union of India vs. Official Liquidator H.C. of Calcutta
\nand others<\/a>  (2000 (5) SCC 274 ).   Therein, after referring to the
\ndecision in Motors & Investment Ltd. vs. New Bank of India and others<\/a>
\n( supra) relied on by counsel for the applicant and the direction for
\npayment of interest made therein, this Court declined the award of
\ninterest on the distinction that, in that case, possession had passed to the
\npurchaser.   The Court stated that the Judgment in Motors & Investment
\nLtd. vs. New Bank of India and others<\/a> (supra) had no bearing mainly
\nbecause as soon as the amount was deposited by the purchaser,
\npossession of the property was handed over to him.   No doubt the
\nlearned Judges thereafter, also referred to the decision in the present
\ncase and the non award of interest therein.    But, in our view, that
\nmakes no difference, since the distinguishing feature relied on by the
\nsaid decision, was the non-passing of possession to the purchaser.    In
\nthis case, as we have noticed, the applicant, the purchaser, obtained
\npossession even before he had paid the entire purchase price and had
\npaid only 25 per cent or so of the purchase price and kept that
\npossession for 10 years.\n<\/p>\n
\t\t\tEven on the principle of restitution, the claim of the
\napplicant may not succeed.   This  is not a case where the applicant was
\ndeprived of both his money and the property purchased by him.   There
\nwas, therefore, no failure of consideration.   By the subsequent order of
\nCourt, the sale was set aside; but during the interregnum, the applicant
\nhad the benefit of the assets he had purchased.   The other contracting
\nparty, the company in liquidation was deprived of the use of its assets.
\nThe creditors who held the properties as security were deprived of their
\nright to deal with the security or to enjoy the benefits of the security
\nduring the interregnum.   In fact, the securities available to the creditors
\nwere utilized by the auction purchaser-the applicant.   In that situation,
\nthe applicant might have the obligation to account for the profits.
\nCertainly, while rendering the main Judgment, this Court was
\nconscious of all these aspects while ordering refund only of the
\npurchase price deposited without providing for payment of interest to
\nthe purchaser but at the same time leaving it open to the purchaser to
\nwork out its claim for the expenses incurred by it before the Company
\nCourt.\n<\/p>\n
\t\tAs stated in Goff and Jones The Law of Restitution (sixth
\nedition)  the law of restitution is the law relating to all claims quasi
\ncontractual or otherwise, which are founded upon the principle of
\nunjust enrichment.   It will, therefore, be necessary to investigate that
\naspect even if we invoke Sections 70 and 72 of the Indian  Contract
\nAct.    Even if we invoke Section 65 of the Contract Act, the
\nadvantages derived by each of the parties will have to be determined
\nand quantified in terms of money and any order in favour of the
\napplicant can be made only after undertaking that exercise.  This result
\ncannot be achieved by seeking a clarification of the Judgment as now
\ndone.\n<\/p>\n
\t\tIt also appears to us that there was a change of position of
\nthe parties including the creditors, pursuant to the sale and the applicant
\nbeing put in possession.   In that context, the adequacy of consideration
\npaid by the applicant will be a relevant consideration.   As observed in
\nGoff and Jones in paragraph 42-004, “neither common law nor equity
\nnormally inquires into the adequacy of the consideration which the
\npurchaser provides.   But such an enquiry would be central to any
\ndefence solely based on a defence of change of possession, for, it is a
\ndefence which operates to discharge, wholly or in part, a defendant’s
\nduty to make restitution”.  \tBe it noted that the sale in favour of the
\napplicant was set aside by this Court mainly on the ground that the
\nconsideration paid was grossly inadequate.\n<\/p>\n
\t\tThe upshot of the above discussion is that the prayer for
\nclarification as made cannot be granted.   The applications are liable to
\nbe dismissed.   Hence, they are dismissed.\n<\/p>\n
I.A. Nos.13, 14 and 15 in C.A. No.4191 of 1991
\n\tI.A. No.13\/2004   is an application filed by the Bengal Paper
\nMill Mazdoor Union, the Labour  Union of the wound up industry, for
\na clarification of the Judgment dated 20.4.1999 by directing that the
\ncompany in liquidation may be sold as a going concern.    I.A. No.14 of
\n2004 is by the same Union seeking permission to file a supplementary
\naffidavit in support of its above prayer.   I.A. No.15 of 2004  is by the
\ncompany which had made an offer for purchase of the assets of the
\ncompany in liquidation “as is where is” praying for permission to
\nintervene in I.A. No.13 of 2004 filed by the said Union.    According to
\nthe Union, before the company court an offer had been made by M\/s
\nMadhuri Traders Ltd. for purchase of the assets of the company in
\nliquidation as a going concern for a price of Rs.10 crores.   But a
\ncounter offer was received from M\/s Zoom Traders and Reality Ltd.,
\nthe applicant in I.A. No.15 of 2004, for Rs.17.75 crores for the entire
\nassets of the company in liquidation on “as is where is” basis.   In this
\nsituation, the company court has directed the parties to get a
\nclarification from this Court as to the mode in which the assets should
\nbe sold, whether as a going concern or as property “as is where is”,
\nmeaning thereby that the purchaser will be  free to dispose of the land,
\nmachinery and other equipments as he pleased.   It is the submission of
\nthe Union that the workers of the Union will be benefited  if the
\nproperty is sold as a unit and a going concern and it is in that context
\nthat they have filed I.A. No.13 of 2004 for clarification.   It is in that
\napplication that M\/s Zoom Traders & Realty Ltd. wants to intervene, to
\npress its claim for purchase of the assets “as is where is” but not with a
\nview to run the industry or revive the industry.\n<\/p>\n
\t\tWe find that these applications are misconceived.   The
\nlearned company judge was also in error in directing the parties to seek
\na clarification from this Court.   In liquidation, the assets had been sold
\nby the liquidator and the sale was confirmed by the company court.
\nBut the same was set aside by this Court.   This Court while setting
\naside the sale and issuing certain other directions, has very clearly
\ndirected that “the same shall be resold after a fresh valuation report
\nthereof has been obtained, the reserved bid fixed and due advertisement
\npublished”.    Obviously, this Court intended that a proper price should
\nbe fetched for the assets of the company in liquidation.   It has  left the
\nquestion to the company court.   It is for the  company court to take a
\ndecision on the fresh sale to be conducted by it.   There is no question
\nof any clarification of the directions of this Court.   No need for such a
\nclarification arises.   The decision, at least in the first instance, has
\nnecessarily to be that of the company court as to the mode and manner
\nof sale and the price at which it is to be sold.   In this situation, we are
\nsatisfied that these applications filed in this Court are misconceived and
\nthey are liable to be dismissed.\n<\/p>\n
\t\tWe, therefore, dismiss these applications leaving it to the
\ncompany court to take a proper decision on the matters forming subject
\nmatter of these applications.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Allahabad Bank Etc. Etc vs Bengal Paper Mills Co. Ltd. And … on 7 October, 2004 Author: P Balasubramanyan Bench: C.J.I. R.C. Lahoti, G.P. Mathur, P.K. Balasubramanyan CASE NO.: Appeal (civil) 4191-4193 of 1991 PETITIONER: ALLAHABAD BANK ETC. ETC. RESPONDENT: BENGAL PAPER MILLS CO. LTD. AND ORS. ETC. DATE OF JUDGMENT: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-209460","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nAllahabad Bank Etc. Etc vs Bengal Paper Mills Co. Ltd. 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