{"id":232895,"date":"2010-07-09T00:00:00","date_gmt":"2010-07-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-acme-papers-ltd-vs-m-p-financial-corp-anr-on-9-july-2010"},"modified":"2016-12-11T19:55:34","modified_gmt":"2016-12-11T14:25:34","slug":"ms-acme-papers-ltd-vs-m-p-financial-corp-anr-on-9-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-acme-papers-ltd-vs-m-p-financial-corp-anr-on-9-july-2010","title":{"rendered":"M\/S Acme Papers Ltd. vs M.P.Financial Corp. & Anr on 9 July, 2010"},"content":{"rendered":"
Madhya Pradesh High Court<\/div>\n
M\/S Acme Papers Ltd. vs M.P.Financial Corp. & Anr on 9 July, 2010<\/div>\n
                                                                   M.A.\u00a0No.\u00a02398\/2003\n                                            -1-\n\n\n HIGH COURT OF MADHYA PRADESH JABALPUR\n\n                 SB: Hon'ble Mr. Justice R.K. Gupta\n\n\n                               M.A. No. 2398\/2003\n\nM\/s ACME Papers Limited                                 :               APPELLANT\n\n                                         -Versus-\nM.P. Financial Corporation                              :           RESPONDENTS\nand another\n\n---------------------------------------------------------------------------------------------\nFor the Appellant                     : Mr. Rajesh Pancholi, Advocate\nFor the Respondent No.1 : None present\nFor the Respondent No.2 : Mr. Ravish Agrawal, Sr. Advocate\n                                         with Mr. K.S. Jha, Advocate\n---------------------------------------------------------------------------------------------\n\n                                  O R D E R\n<\/pre>\n
                                   (09\/07\/2010)<\/p>\n
        In this appeal preferred under Order 43 Rule (1)(j) of the
\nCode of Civil Procedure, 1908 the appellant has challenged the
\norder dated 29.10.2003 passed by the learned District Judge,
\nSehore in MJC No. 16\/1985 whereby the application of the
\nappellant under Order 21 Rule 90 read with Section 151 of the
\nCPC has been dismissed.\n<\/p>\n
2.      The facts leading to the present appeal are that the first
\nrespondent, namely, M.P. Financial Corporation filed a Misc.
\nJudicial Case No. 26\/1982 under Section 31 of the State Financial
\nCorporation Act, 1951 against the appellant for sale of the
\nmortgaged property. The said application was opposed by the
\nappellant by filing reply as contained in Annexure A-2, however, a
\ndirection      was      issued      on    12.11.1984         for    disposal       of   the
\nhypothecated property under Section 32(7) of the said Act.
\nThereafter, the respondent No.1 also sought for publication of
\nnotices of auction for disposal of the property under Section 32(8)
\nof the Act. Yet another application was moved on behalf of the
\nrespondent No.1 for sale proclamation under Order 21 Rule 66 of
\n                                                  M.A.\u00a0No.\u00a02398\/2003
\n                                   -2-<\/span><\/p>\n
the CPC for land ad-measuring 62.2 Acres situated at Karbala in
\nDist. Sehore including pants & machinery and building. The
\nauction proceedings held on 19.9.1988, 20.9.1988 and 21.9.1988
\ndid not materialize the sale of the aforesaid property, therefore,
\nthe court below was of the view that further auction would be
\nimproper. However, vide order dated 22.9.1988 contained in
\nAnnexure A-5 the respondent No.1 was directed to file separate
\napplication for private sale and participation in the auction to offer
\nbid. Thereafter, a Commissioner was appointed to furnish report
\nas regards the property in dispute after spot-inspection. The
\nCommissioner submitted its report on 16.8.1993. Thereafter, it is
\nstated that a bid for a sum of Rs.80,25,000\/- was received from
\none Shri Ramgopal on 18.8.1993. Thereupon, a report was called
\nfrom the District Registrar, Sehore with regard to the market
\nvalue of the aforesaid 62.2 acres of land wherein the market value
\nof the property was assessed at Rs.2. Lac per acres. The Court
\nbelow vide its order dated 26.8.1993 adjourned the auction
\nproceedings on the found that the highest bidder of the property,
\nnamely, Shri Ramgopal did not appear to be bona fide purchaser
\nand accordingly fresh advertisement was directed to be published
\nin the daily newspapers of Indore and Bhopal.\n<\/p>\n
3.    The respondent No.1, M.P.F.C., has not denied the objection
\nraised   by   the   appellant   before   the Court below    that the
\nconfirmation of the sale was stayed by the Delhi High Court vide
\norder dated 5.7.1993. Submission of the appellant is that despite
\nthere being orders of stay on the confirmation of sale, the auction
\nproceedings were allowed to be continued by the Court below on
\n18.11.1997 to 22.11.1997 and bid was closed in favour of one Shri
\nShankarlal Laddha for a sum of Rs.48,52,001\/-. An objection as
\ncontained in Annexure A-11 was raised on behalf of the appellant
\nthat despite there being stay on the confirmation of sale and that
\neven before confirmation of the sale the auction purchaser had
\nstarted demolishing the building, plant & machinery and scrap
\nwas being transported out of Sehore. Against the said wrongful
\nremoval of the building materials and machinery by the auction
\npurchaser an FIR, Annexure A-12 was also lodged. However, the
\n                                                 M.A.\u00a0No.\u00a02398\/2003
\n                                -3-<\/span><\/p>\n
the auction purchaser in connivance with the respondent No.1 did
\nnot deposit requisite 25% of the bid amount in the Court and the
\nCourt below, therefore, set aside the auction bid vide order dated
\n9.2.1998, Annexure A-16. As per the orders of the Court below the
\nappellant submitted the list of stolen properties on 27.4.1998,
\nAnnexure A-17.\n<\/p>\n
4.   It is submitted that vide order dated 20.1.1999 contained in
\nAnnexure A-21, the Court below directed to call for auction of the
\ndisputed properties and thereafter by order dated 3.4.1999,
\nAnnexure A-22, the sale warrant was directed to be issued. The
\nappellant moved an application for recall of the order dated
\n3.4.199 and prayed for a direction to the police authorities to
\nregister the criminal case about the stolen properties. On the basis
\nof the report of the Nazarat, the Court below vide order dated
\n13.8.1999, Annexure A-24, held that the last bid of Rs.16,69,000\/-
\nso made by respondent No.2 Ajay Kumar and Brothers is to be
\nconcluded in their name as there is no possibility of other bid of
\nhigher amount.\n<\/p>\n
5.   Being aggrieved by order dated 13.8.1999 the appellant
\napproached this Court by filing a Civil Revision which was
\nregistered at Civil Revision No. 2177\/1999. The said revision was
\ndismissed on 22.4.2003 against which the appellant filed a MCC
\nNo.700\/2003. The said MCC was also dismissed by this Court by
\nAnnexure A-27 dated 1.9.2003 holding that order impugned in the
\ncivil revision related to the acceptance of the bid and the same
\nbeing an interlocutory order, the revision preferred by the
\nappellant was not maintainable as the remedy was available under
\nOrder 21 Rule 89, 90 of the CPC. Pursuant thereof, the appellant
\nfiled application under Order 21 Rule 90 of the CPC which is filed
\nas Annexure A-28 to the present appeal. It is contended that on
\n28.10.2003 the respondent No.1 filed reply to the said application
\nand the Court below without granting sufficient opportunity to the
\nappellant to go through the reply, heard the matter next day on
\n29.10.2003 and dismissed the application of the appellant under
\nOrder 21 Rule 90 of the CPC and directed for issuance of sale-\n<\/p>\n
                                                 M.A.\u00a0No.\u00a02398\/2003
\n                                  -4-<\/span><\/p>\n
certificate in favour of the auction purchaser. Being aggrieved by
\nthe order dated 29.10.2003 the appellant is before this Court.\n<\/p>\n
6.    Learned counsel for the appellant submitted that in the
\npresent case the order impugned passed by the Court below is
\nillegal. According to him, there had been no adequate price
\nreceived and yet the auction has been confirmed by the Court
\nbelow. The Court below while conducting the auction has
\ncommitted serious illegalities.\n<\/p>\n
7.    On behalf of the respondent No.2 it is contended that
\napplication preferred by the appellant under Order 21 Rule 90 of
\nthe CPC itself was barred by limitation. It is contended that once
\nthe application is barred by limitation, the order impugned is
\nproper.\n<\/p>\n
8.    The rival submissions made on behalf of the parties are
\nconsidered. It is to be seen that the application under Order 21
\nRule 90 was moved before the court below against the auction on
\n24.9.2003 whereas the auction took place on 13.8.1999. The final
\nbid was accepted and 25% of the amount was deposited and
\nremaining 75% was also deposited on 17.8.1999. It is to be seen
\nthat for the purposes of moving application under Order 21 Rule
\n90 of the CPC the provisions as contained under Article 127 of the
\nLimitation Act would be applicable and commencement of the
\nperiod of limitation for the said purpose is the date of sale. Thus,
\nthe application filed beyond the period of limitation cannot be
\nentertained.\n<\/p>\n
9.    Shri Rajesh Pancholi, learned counsel for the appellant
\nsubmitted that in the present case the respondent has not taken a
\nplea before the Court below that the application under Order 21
\nRule 90 of the CPC was barred by limitation, therefore, now at this
\nstage the respondents cannot be permitted to raise the objection
\nabout the limitation. The counsel has invited my attention to the
\ndecision rendered by the Apex Court in Nani Gopal Paul v. T.
\nPrasad Singh and others<\/a>, AIR 1995 SC 1971 wherein it is laid
\n                                                       M.A.\u00a0No.\u00a02398\/2003
\n                                       -5-<\/span><\/p>\n
down a view that the Court or the appellate Court would not
\nremain a mute or helpless spectator to obvious and manifest
\nillegality committed in conducting Court sales. On the strength of
\nthe ratio laid down in the said case it is contended by him that if
\nthere are illegalities while conducting the auction sale then it may
\nnot be necessary to move application under Order 21 Rule 89 or
\n90 or under Section 48 of the CPC but the Court can suo motu
\ntake an action. Further submission of the counsel for the appellant
\nis that since the appellant was prosecuting the remedy before this
\nCourt by filing revision, therefore, that period has to be excluded
\nin view of Section 14 of the Limitation Act.\n<\/p>\n
10.     Per contra, Shri Ravish Agrawal, learned senior counsel for
\nthe respondent No.2 submitted that by virtue of Section 3 of the
\nLimitation Act even though the defence with regard to limitation is
\nnot set up still the application can be dismissed on the ground of
\nlimitation, if any, filed after the prescribed period of limitation.\n<\/p>\n
11.     By virtue of Article 127 of the Limitation Act the limitation
\nprescribed for filing application for setting aside sale is 60 days
\nfrom the date of sale. Admittedly, in the present case the sale has
\ntaken place on 13.8.1999 and the application for setting aside the
\nsale was filed on 24.9.2003. I have carefully perused the decision
\nrendered in Nani Gopal Paul (supra). In the said case, an appeal
\nwas preferred to the Division bench of the High Court against the
\norder    of   the   learned   single     Judge   exercising   the   original
\njurisdiction and while deciding the said appeal the Division Bench
\ncame to the conclusion that the sale was vitiated due to the matter
\nin which the single Judge dealing with the Company Law matters
\npassed the orders in his Chamber. The Division Bench came to the
\nconclusion that though the property was sold for a sum of Rs.60
\nlakhs but there had been certain other higher offers but same
\nwere not paid any heed and yet the auction was conducted. On
\nthat basis, the Apex Court held that once there are manifest
\nillegalities in conducting the Court sale then the Court may
\ninterfere. In Nani Gopal Paul’s case (supra) the Apex Court
\nfurther held that as against the auction price of Rs.60.00 Lac only
\n                                                     M.A.\u00a0No.\u00a02398\/2003
\n                                 -6-<\/span><\/p>\n
Rs.5.00 Lac were deposited and balance amount was assured to be
\ndeposited only after delivery of possession. That was found to be
\nillegal. In the present case, the auction was held on 13.8.1999 and
\n25% of the auction price was deposited by the second respondent
\nand rest of the 75% was also deposited on 17.8.1999. Thus, in the
\npresent case whole of the amount was deposited and there was no
\nillegality as such.\n<\/p>\n
12.   Apart from the aforesaid, whereas also in the present case
\nagainst the auction held on 13.8.1999 a revision was preferred
\nbefore   this   Court   which   was    registered   as   Civil   Revision
\nNo.2177\/1999. The said revision was admitted and further
\nproceedings were stayed by order dated 24.9.1999. The revision
\nwas dismissed on 22.4.2003 holding that the civil revision is not
\nthe remedy but the remedy is available to the appellant under
\nOrder 21 Rule 90 by moving an application for setting aside the
\nsale. Thereafter, the appellant filed application for recall of the
\norder dated 22.4.2003 which was registered as MCC No.700\/2003.
\nThe order under revision dated 22.4.2003 was upheld and the
\nMCC was also dismissed. The record of the MCC was called by this
\nCourt for verification which revealed that it as filed on 13.8.2003.
\nIn the present case, the provisions as contained under Order 21
\nRule 90 of the CPC do not empower to set aside the sale by
\nproceeding suo motu. It provides for moving an application within
\na period of 60 days in view of Article 127 of the Act and as the
\nlimitation commences from the date of auction.\n<\/p>\n
13.   The Apex Court in Ram Chandra Arya v. Man Singh and<\/a>
\nanother, AIR 1968 SC 954 considered the limitation for filing
\napplication to set aside the sale. The aforesaid question was
\nconsidered in the light of the fact whether a stranger to the suit
\nbeing the auction purchaser of the judgment-debtor’s immovable
\nproperty in execution of an ex-parte money decree would be
\nentitled to a confirmation of sale under Order 21 Rule 92 of the
\nCPC. The Court while dealing with the said issue also held that the
\nlaw makes ample provision for protection of the interest of the
\njudgment-debtor, when his property is sold in execution. He can
\n                                                      M.A.\u00a0No.\u00a02398\/2003
\n                                    -7-<\/span><\/p>\n
file application for setting aside sale under the provision of Order
\n21 Rule 90 of the CPC. If no application is made and when such
\napplication was made and disallowed, the Court has no choice but
\nto confirm the sale.\n<\/p>\n
14.   In Challamane Huchha Gowda v. M.R. Tirumala and
\nAnother, (2004) 1 SCC 453, their Lordships of the Apex Court
\nhave explained the purpose behind Order 21 of the CPC and in
\npara-9 their Lordships have held as under:-\n<\/p>\n
      “9. Execution is the enforcement, by the process of the
\n      Court of its orders and decrees. This is in furtherance of
\n      the inherent power of the Court to carry out its orders or
\n      decrees. Order 21 of CPC deals with the elaborate
\n      procedure pertaining to the execution of orders and
\n      decrees. Sale is one of the methods employed for
\n      execution. Rule 89 of Order 21 is the only means by
\n      which a Judgment Debtor can escape from a sale, that
\n      has been validly carried out. Object of the rule is to
\n      provide a last opportunity to put an end to the dispute at
\n      the instance of Judgment Debtor before the sale is
\n      confirmed by the Court and also to save his property
\n      from dispossession. Rule 89 postulates two conditions:
\n      they are depositing – 1). of sum equal to five percent of
\n      the purchase money to be paid to the purchaser, 2). of
\n      the amount specified in the proclamation of sales lass
\n      any amount received by the decree holder since the date
\n      of such proclamation, in the Court. If these two
\n      conditions are satisfied, the Court shall make an order
\n      for setting aside the sale under Rule 92(2). of Order 21
\n      of CPC on an application made to it. In other words then
\n      there will be compliance of Court’s order or decree that
\n      is sought to be executed. Because the purpose of the
\n      Rule 21 is to ensure the carrying out of the orders and
\n      decrees of the Court. Once the Judgment Debtor carried
\n      out the order or decree of the Court, the execution
\n      proceedings will correspondingly come to an end. It is to
\n      be noted that the Rule does not provide that the
\n      application in a particular form shall be filed to set aside
\n      the sale. Even a memo with prayer for setting aside sale
\n      is sufficient compliance with the said Rule. Therefore,
\n      upon the satisfaction of the compliance of conditions as
\n      provided under Rule 89, it is mandatory upon Court to
\n      set aside the sale under Rule 92. And the Court shall set
\n      aside the sale after giving notice under Rule 92(2) to all
\n      affected persons.”\n<\/p><\/blockquote>\n
15.   As we have seen, in the present case the judgment-debtor
\nhas not deposited the amount under the decree, therefore, the
\nCourt proceeded to auction the property. On the basis of the facts
\nas enumerated above, it is clear that the application was not filed
\n                                                M.A.\u00a0No.\u00a02398\/2003
\n                                  -8-<\/span><\/p>\n
within 60 days from the date the auction was held and thus, it is
\nbarred by limitation.\n<\/p>\n
16.   In this reference, the judgment passed in the case of
\nChandra     Pal   v.    Bharat   Singh   and another,   AIR 2005
\nALLAHABAD 75 is also relevant wherein the question of limitation
\nof filing application under Order 21 Rule 90 of the CPC was taken
\ninto account and when the said application was held beyond the
\nperiod of limitation, said application was dismissed on the ground
\nof limitation.\n<\/p>\n
17.   The next question arises in the present case whether the
\nappellant shall be entitled to the benefit of Section 14 of the
\nLimitation Act. The auction in the present case has taken place on
\n13.8.1999 and the civil revision was filed before this Court and
\nthis Court on 24.9.1999 directed that further proceedings shall
\nremain stayed. Ultimately, the said revision was dismissed on
\n22.4.2003 by holding that the revision is not maintainable and
\nremedy is under Order 21 Rule 90 yet the appellant has not
\nchosen to prefer any application immediately thereafter and within
\na reasonable period. On the contrary a review application was
\nfiled on 13.8.2003 which was also rejected on 1.9.2003 and then
\nthe application is preferred on 24.9.2003. In this background, if a
\nparty is claiming benefit of Section 14 as a wrong forum was
\nchosen to file the civil proceedings which was not maintainable
\nagainst the impugned order then as per Section 14 further
\nrequirement of said Section is that the said proceedings were
\nchosen and were taken up with due diligence. No such thing is
\nfound in the present case. Mere prosecution of remedy by itself
\nwould be sufficient to ignore the period of limitation spent in
\nprosecuting the remedy before a wrong forum.\n<\/p>\n
18.   Section 5 of the Limitation Act shall have no application
\nbecause Section 5 itself provides that if any appeal or any
\napplication, other than an application under any of the provisions
\nof Order XXI of the CPC, 1908, may be admitted after the
\nprescribed period, if the appellant or the applicant satisfies the
\n                                                  M.A.\u00a0No.\u00a02398\/2003
\n                                 -9-<\/span><\/p>\n
court that he had sufficient cause for not preferring the appeal or
\nmaking the application within such period. Thus, Section 5 itself
\nexcludes the extension of prescribed period in relation to
\napplication under Order 21 of the CPC.\n<\/p>\n
19.   The question as such has to be considered in the light of
\nSection 14 of the Act. It is to be seen that if the commencement of
\nproceedings is before the period of limitation expires then there
\nmay be a question of applying Section 14 of the Limitation Act.
\nThough initially the revision was preferred against the order dated
\n13.8.1999 within a period of limitation but ultimately     when the
\nsaid revision was dismissed on 22.4.2003 then review application
\nwas filed on 13.8.2003 which was rejected on 1.9.2003. the filing
\nof the review application was not within a period of limitation and
\nwas beyond the period of 60 days because the revision was
\ndismissed on 22.4.2003 and the review was filed on 13.8.2003.
\nThe review application for recall of the order passed in revision
\nitself was after the period of limitation has expired. Thus, there is
\nno question that the proceedings were commenced before the
\nlimitation expired. Therefore, the benefit of Section 14 of the Act
\nshall not be available. That apart, when this Court while
\ndismissing the revision ultimately held that the civil revision is not
\nmaintainable as the remedy was available under Order 21 Rule 90
\nof the CPC then there was no justification and the reason to file
\nthe review application and that too after the period of limitation of
\n60 days. If the application would have been preferred immediately
\nwithin 60 days from 22.4.2003 then the position would have been
\ndifferent. No application within 60 days was filed from 22.4.2003.
\nOn the contrary, review application was filed on 13.8.2003 when
\nthe period of 60 days limitation has already expired much before
\nfiling of review application for recall of the order dated 22.4.2003.
\nIt is to be seen that the appellant filed successive applications
\nbefore the Court; revision and then the review application when
\nthe revision itself was held to be not maintainable.\n<\/p>\n
                                                      M.A.\u00a0No.\u00a02398\/2003
\n                                   -10-<\/span><\/p>\n
20.   On behalf of the respondent No.2 it is contended that this
\nCourt while admitting the revision passed the order on 24.9.1999
\nwherein further proceedings were stayed. While staying the
\nfurther proceedings no stay order was passed by this Court that
\nthe appellant shall not file any application under Order 21 Rule 90
\nbut despite that no effort was made by the appellant to prefer any
\napplication. Therefore, the entertaining the revision by this Court
\nwill not give any benefit to the appellant to extend the period of
\nlimitation of 60 days to file application under Order 21 Rule 90 of
\nthe CPC against the sale which has taken place on 13.8.1999.\n<\/p>\n
21.   This Court in Brijkishore v. Kishore Singh and another,
\n1972 M.P.L.J. 719 has dealt with the issue relating to good cause
\nwhen a competent Advocate\/counsel carefully gave an advice to a
\nparty to choose a forum and if the party acts on the said legal
\nadvice then even though a wrong forum is chosen under wrong
\nadvice of a counsel then it will constitute a good cause. The
\nparagraph 5 from the said decision reads, thus:\n<\/p>\n
      “At the very outset, the learned counsel for the decree-
\n      holders raised a preliminary objection that the appeal in
\n      the lower Court was barred by time and that there was
\n      no good cause for extension of time under section 5 read
\n      with Section 14 of the Limitation Act because, although
\n      the appellant may have acted under the advice of legal
\n      practitioners in filing a review, it could not be said that
\n      he did so after obtaining such advice from competent
\n      legal practitioners who had taken reasonable care to
\n      ascertain the true legal position. In support of this
\n      contention, reliance is laced upon Mariambai v.
\n      Hanifabai. That the<\/a> appellant acted under the advice of
\n      legal practitioners is clear from the two affidavits filed in
\n      the case, one of them being from an Advocate, Shri
\n      Khakad. The question was not whether an appeal lay
\n      against an order passed by the Court of first instance.
\n      The real question was whether the appellant could claim
\n      to be the legal representative of the judgment-debtor to
\n      file an appeal against that order for the purpose of
\n      raising the question he did. In that sense, the question
\n      was not so straight or clear that only one answer could
\n      be given without any possible doubt or hesitation.
\n      Therefore, I am of the view that the advice given to the
\n      appellant, on which he acted in filing a revision, is not
\n      one which could not have been given by any other
\n      competent and careful legal practitioner. That being so,
\n      the lower appeal Court was right in extending the time
\n      for filing the appeal to the extent necessary.”\n<\/p><\/blockquote>\n
                                                  M.A.\u00a0No.\u00a02398\/2003
\n                                 -11-<\/span><\/p>\n<\/blockquote>\n
22.   In this context, it would be relevant to see whether for the
\npurposes of attracting the benefit of Section 14 of the Limitation
\nAct is there any material produced before this Court that the
\nappellant has acted upon a wrong advice given by his counsel after
\ncarefully going through the provision to prefer the revision. A
\nclose scrutiny of the record reveals that no material is placed on
\nrecord in this regard. The appellant has neither filed his affidavit
\nnor has filed the affidavit of the counsel to show that the civil
\nrevision against the order of sale dated 13.8.1999 was preferred in
\nthe High Court under a wrong legal advice. Therefore, in view of
\nthe law laid down by this Court in Brijkishore (supra) it cannot
\nbe presumed that the revision was preferred before this Court
\nunder a wrong advice. However, as this Court while dismissing the
\nrevision by its order dated 22.4.2003 has held that the civil
\nrevision is not maintainable then thereafter there is nothing on
\nrecord to show that the counsel for the appellant again advised
\nhim to file review as according to him the application under Order
\n21 Rule 90 was not maintainable. In the absence of any material as
\nsuch it is very difficult to conceive that a wrong forum was chosen
\nby the appellant due to any wrong advice of the counsel which was
\ngiven after due care and caution.\n<\/p><\/blockquote>\n
23.   In the case of Ramlal and others v. Rewa Coalfields Ltd.,
\nAIR<\/a> 1962 SC 361, the Apex Court has not only considered the
\nscope of Section 5 and 14 of the Limitation Act but has
\nemphasized that even after sufficient cause has been shown a
\nparty is not entitled to the condonation of the delay as a matter of
\nright. The proof of a sufficient cause is a condition precedent for
\nthe exercise of the discretionary jurisdiction vested in the court. If
\nthe sufficiency of cause is shown then this Court has to inquire
\nwhether in his discretion it should condone the delay. This aspect
\nof the matter naturally introduces the consideration of all relevant
\nfacts and it is at this stage that diligence of the party or its bona
\nfides may fall for consideration but the scope of the enquiry while
\nexercising the discretionary power after sufficient cause is shown
\nwould naturally be limited only to such facts as the Court may
\n                                                      M.A.\u00a0No.\u00a02398\/2003
\n                                   -12-<\/span><\/p>\n
regard as relevant. Reliance is placed upon para 12 of said
\ndecision, which is reproduced as below:\n<\/p>\n
      “It is, however, necessary to emphasise that even after
\n      sufficient cause has been shown a party is not entitled to
\n      the condonation of delay in question as a matter of right.
\n      The proof of a sufficient cause is a condition precedent
\n      for the exercise of the discretionary jurisdiction vested in
\n      the Court by s. 5. If sufficient cause is not proved nothing
\n      further has to be done; the application for condoning
\n      delay has to be dismissed on that ground alone. If
\n      sufficient cause is shown then the Court has to enquire
\n      whether in its discretion it should condone the delay.
\n      This aspect of the matter naturally introduces the
\n      consideration of all relevant facts and it is at this stage
\n      that diligence of the party or its bona fides may fall for
\n      consideration; but the scope of the enquiry while
\n      exercising the discretionary power after sufficient cause
\n      is shown would naturally be limited only to such facts as
\n      the Court may regard as relevant. It cannot justify an
\n      enquiry as to why the party was sitting idle during all the
\n      time available to it. In this connection we may point out
\n      that considerations of bona fides or due diligence are
\n      always material and relevant when the Court is dealing
\n      with applications made under s. 14 of the Limitation Act.
\n      In dealing with such applications the Court is called upon
\n      to consider the effect of the combined provisions of ss. 5
\n      and 14. Therefore, in our opinion, considerations which
\n      have been expressly made material and relevant by the
\n      provisions of s. 14 cannot to the same extent and in the
\n      same manner be invoked in dealing with applications
\n      which fall to be decided only under s. 5 without
\n      reference to s. 14. In the present case there is no
\n      difficulty in holding that the discretion should be
\n      exercised in favour of the appellant be cause apart from
\n      the general criticism made against the appellant’s lack or
\n      diligence during the period of limitation no. other fact
\n      had been adduced against it. Indeed, as we have already
\n      pointed out, the learned Judicial Commissioner rejected
\n      the appellant’s application for condonation of delay only
\n      on the ground that it was appellant’s duty to file the
\n      appeal as soon as possible within the period prescribed,
\n      and, that in our opinion, is not a valid ground.”\n<\/p><\/blockquote>\n
24.   The said aspect of the matter has been further considered by
\nthe Apex Court in Ram Bhawan Singh and others v. Jagdish
\nand others<\/a>, (1990) 4 SCC 309. The view which has been laid by
\ntheir Lordships in para-7 of the decision is reproduced as under:\n<\/p>\n
      “The first question that we have to decide is that of
\n      limitation. The delay of 1198 days according to the
\n      appellants had occurred unwillingly and the appellants
\n      had been prosecuting with due diligence the earlier
\n      proceedings before the appellate and the revisional
\n                                                    M.A.\u00a0No.\u00a02398\/2003
\n                                  -13-<\/span><\/p>\n
      authorities and on the basis of the advice given by their
\n      counsel. There is no proper affidavit of either the
\n      appellants or the counsel in support of the application
\n      for condonation of delay. There is also no other material
\n      to indicate that the appellants<\/p>\n
      had exercised due diligence in working out their
\n      remedies and sought proper advice in the matter. When
\n      the party had no right of appeal, the proceedings
\n      instituted before the High Court challenging the
\n      judgment in the writ petition cannot be considered to be
\n      one in good faith. The subsequent proceedings are also
\n      not legal or valid. When the decision of the High Court in
\n      the writ petition was one quashing the orders of the
\n      appellate and the revisional authorities, the party could
\n      not proceed on the basis that the matter was restored to
\n      the lower authorities for fresh decision. We are therefore
\n      not satisfied that there is any merit in the ground urged
\n      by the appellants for getting over the bar of limitation.
\n      The appeals are liable to be dismissed as time barred.”\n<\/p><\/blockquote>\n
25.   The ratio laid down by the Apex Court in Ram Bhawan
\nSingh’s case (supra) is absolutely applicable in the present case
\nas I have already indicated in the earlier paragraph that there is
\nno affidavit either of the appellant or his counsel to the effect that
\nthe civil revision against the order of sale dated 13.8.1999 was
\npreferred in the High Court under a wrong legal advice. There is
\nnothing on record by way of any explanation from the appellant
\nthat the appellant has acted under the legal advice to prefer the
\nrevision. In the present case even no application under Section 14
\nof the Limitation Act was filed by the appellant along with the
\napplication under Order 21 Rule 90 before the executing Court. In
\nfact, there is no explanation which may be required to be
\nconsidered by this Court with regard to sufficiency of cause being
\na good cause under due diligence which is the ingredient under
\nSection 14 of the Limitation Act.\n<\/p>\n
26.   In view of the foregoing analysis of the factual scenario and
\nthe obtaining legal position, it is to be concluded that the
\nappellant is not entitled to the protection and benefit of Section 14
\nof the Limitation Act for extending the period of limitation.\n<\/p>\n
27.   Apart from the aforesaid, the submission of the learned
\ncounsel for the appellant is that the Court below has committed
\n                                                     M.A.\u00a0No.\u00a02398\/2003
\n                                  -14-<\/span><\/p>\n
serious illegalities while conducting the auction. Indisputably, the
\nconfirmation of sale was stayed in the present case by order dated
\n5.7.1993 but there was no stay on the sale. It is also not in dispute
\nthat earlier the highest bid of one bidder, namely, Ramgopal was
\naccepted for a sum of 80.25 Lac in the year 1993 but as the bidder
\nwas not found to be bona fide, the bid was cancelled. Thereafter,
\non 21.11.1997 one Shankar Lal offered the highest bid for a sum
\nof Rs.48.52 Lac. The Court closed the bid in favour of Shankar Lal
\non 28.1.1998, however, this time also the bidder failed to deposit
\nthe complete bid amount. There was also an objection on behalf of
\nthe appellant, therefore, the said bid was also cancelled. In this
\nregard the Court below has come to a conclusion that looking to
\nthe acts of the earlier bidders in not turning up to fulfill the sale
\nby tendering the complete bid amount a suspicion had arose as to
\ntheir genuineness and bona fide. Such highest offers did not
\nappear like fulfilling the sale and the bid appeared to be planted
\nas they were never materialized. Thereafter, again valid and wide
\npublication for auction of the property in dispute was made.
\nUltimately, on 13.8.1999 the present auction purchaser came with
\na   bid   of   Rs.16,69,000\/-   and   the   Court   below   under   the
\ncircumstances and finding no possibility of other bid of higher
\namount coming forward, the bid was closed in favour of the
\nauction purchaser, the second respondent herein. It was always
\nopen to the appellant to bring some higher bidder for the property
\nin question. The appellant was never stopped from selling the
\nproperty on his own and then to get the sale proceeds adjusted
\nafter repayment of the same. It is not in dispute that the property
\nin question as on 13.8.1999 was the same as it was in the earlier
\nauction conducted in the year 1993. Admittedly, there was lack of
\nappropriate safety measures on the land in question because of
\nwhich the condition of the property had deteriorated. By efflux of
\ntime even the property was done away with the plant & machinery
\nand the valuable assets. Therefore, by no stretch of imagination it
\ncan be said that the said property would have fetched the same
\nprice as it could have at the time when the property was intact. It
\nhas already been found that the earlier bids were planted.
\nTherefore, it is difficult to say that the price fetched by the
\n                                                  M.A.\u00a0No.\u00a02398\/2003
\n                                 -15-<\/span><\/p>\n
property at the time of sale on 13.8.1999 was not the adequate
\nprice.\n<\/p>\n
28.      In my opinion, the objection with regard to the valid
\npublication of auction notices in the newspapers has no merit of its
\nown. The publication of auction notices was made in the State
\nlevel newspapers and this was done as per the Court’s order dated
\n26.8.1993 when it was found that no outsider bidder had turned
\nup on earlier occasions in the auctions. There is nothing on record
\nthat any objection was made on behalf of the appellant to the
\norder dated 26.8.1993 that the publication of auction notices in
\nthe State level newspapers was unjustified as it would reduce the
\nchance of there being bidders with higher amount in the
\nproceedings. The expenses incurred by the decree-holder to the
\ntune of Rs.1,28,000\/- do not indicate that publication with regard
\nto sale of the property was made with misery. It is seen that even
\nafter 7.8.1999 when the highest bid of Rs.16,69,000\/- from the
\nrespondent No.2 had been there, again the call was made on 9th
\nand 10th August, 1999 in the wake of higher amount than
\nRs.16,69,000\/- and      ultimately when no higher bid was coming
\nforward the bid was closed in favour of the auction purchaser on
\n13.8.1999. It is not the case of the appellant here that there was
\nanybody to offer higher bid than Rs.16,69,000\/- and he was
\ndenied. The auction purchaser has deposited the entire bid
\namount. For about four years from 13.8.1999 the amount was
\ndeposited with the Court and the Court has given a finding that
\neven during that period also no effort or submission was made on
\nbehalf of the appellant that still there was someone to offer higher
\namount than Rs.16,69,000\/-. In these circumstances, no illegality
\nin the auction is made out and the submission of the counsel in
\nthis regard has no force.\n<\/p>\n
29.      Submission of the learned counsel for the appellant is that
\nno adequate price was received. In this context, after close
\nscrutiny of the factual matrix of the case and the legal aspects
\nrelated thereto as I have already held that there was no illegality
\ncommitted in holding the auction sale, therefore, mere inadequacy
\n                                                      M.A.\u00a0No.\u00a02398\/2003
\n                                     -16-<\/span><\/p>\n
     of the price received in the auction sale is no ground to set aside
\n     the same. The view as such finds support from the decision
\n     rendered by the Apex Court in Rajender Singh v. Ramdhar
\n     Singh and others<\/a>, AIR 2001 SC 2220.\n<\/p>\n
     30.   In view of the aforesaid analysis of facts and the reasons
\n     stated herein-above, I do not find any substance in the appeal. The
\n     appeal being bereft of merits, it is dismissed accordingly. No order
\n     as to costs.\n<\/p>\n
                                               (R.K. GUPTA)
\n                                                  JUDGE
\nS\/\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Madhya Pradesh High Court M\/S Acme Papers Ltd. vs M.P.Financial Corp. & Anr on 9 July, 2010 M.A.\u00a0No.\u00a02398\/2003 -1- HIGH COURT OF MADHYA PRADESH JABALPUR SB: Hon’ble Mr. Justice R.K. Gupta M.A. No. 2398\/2003 M\/s ACME Papers Limited : APPELLANT -Versus- M.P. Financial Corporation : RESPONDENTS and another ——————————————————————————————— For the Appellant : Mr. Rajesh […]<\/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":[8,24],"tags":[],"class_list":["post-232895","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madhya-pradesh-high-court"],"yoast_head":"\nM\/S Acme Papers Ltd. vs M.P.Financial Corp. & Anr on 9 July, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ms-acme-papers-ltd-vs-m-p-financial-corp-anr-on-9-july-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M\/S Acme Papers Ltd. vs M.P.Financial Corp. & Anr on 9 July, 2010 - 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