{"id":49733,"date":"2008-07-09T00:00:00","date_gmt":"2008-07-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/fcs-software-solutions-ltd-vs-la-medical-devices-ltd-ors-on-9-july-2008"},"modified":"2017-04-03T10:50:25","modified_gmt":"2017-04-03T05:20:25","slug":"fcs-software-solutions-ltd-vs-la-medical-devices-ltd-ors-on-9-july-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/fcs-software-solutions-ltd-vs-la-medical-devices-ltd-ors-on-9-july-2008","title":{"rendered":"Fcs Software Solutions Ltd vs La Medical Devices Ltd. & Ors on 9 July, 2008"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Fcs Software Solutions Ltd vs La Medical Devices Ltd. & Ors on 9 July, 2008<\/div>\n
Author: C Thakker<\/div>\n
Bench: C.K. Thakker, D.K. Jain<\/div>\n
                                                          REPORTABLE\n\n\n            IN THE SUPREME COURT OF INDIA\n            CIVIL APPELLATE JURISDICTION\n\n     CIVIL APPEAL NO. 4271         OF 2008\n                ARISING OUT OF\n SPECIAL LEAVE PETITION (CIVIL) NO. 21123\/2007\n\n\nFCS SOFTWARE SOLUTIONS LTD.                 ... APPELLANT\n\nVERSUS\n\nLA MEDICAL DEVICES LTD. & ORS.              ...RESPONDENTS\n\n\n\n                J U D G M E N T\n<\/pre>\n
C.K. THAKKER, J.\n<\/p>\n
1.       Leave granted.\n<\/p>\n<\/p>\n
2.       The    present    appeal      is   filed   by   the<\/p>\n
appellant     against     an   order    passed      by   the<\/p>\n
Division Bench of the High Court of Punjab &<\/p>\n
Haryana on October 15, 2007 in Company Appeal<\/p>\n
No. 10 of 2006. By the said order, the Division<\/p>\n
Bench of the High Court dismissed the appeal<\/p>\n
filed by the appellant-herein and confirmed the<\/p>\n
order passed by the Company Judge on February
\n                                                                     2<\/span><\/p>\n
16, 2006 in Company Application No. 178 of 2005<\/p>\n
in Company Petition No. 42 of 1999.<\/p>\n
3.         Few    facts     of    the   case    are     that   La<\/p>\n
Medical Devices Ltd.-respondent NO. 1 went into<\/p>\n
liquidation. Official Liquidator was appointed<\/p>\n
by the Court who is joined as Respondent No. 1<\/span><\/p>\n
in   the   present      proceedings.       In   view     of    the<\/p>\n
liquidation of the Company and dues to be paid<\/p>\n
by it, proceedings were initiated for sale of<\/p>\n
property of the Company. Sale notice was issued<\/p>\n
by the Company Court on October 19, 2004 which<\/p>\n
was published in various newspapers inviting<\/p>\n
sealed tenders for the sale of property of the<\/p>\n
Company situated at NOIDA (U.P.).                 Twelve bids<\/p>\n
were received which were opened on November 16,<\/p>\n
2004.    The     bid   of   the   appellant       for   Rs.1.47<\/p>\n
crores     for     immovable       as   well      as    movable<\/p>\n
property was the highest. One of the creditors,<\/p>\n
namely,    Pradeshiya         Industrial    and    Investment<\/p>\n
Corporation of U.P. Ltd. (PICUP) granted `no<\/p>\n
objection’        to    the      sale-price.       Since       the<\/p>\n
appellant was the highest bidder, it wrote a
\n                                                                            3<\/span><\/p>\n
letter to the Official Liquidator on December<\/p>\n
19, 2004 followed by a reminder dated January<\/p>\n
20, 2005 requesting him to expedite the process<\/p>\n
and issue letter of acceptance of the offer of<\/p>\n
the appellant so that possession of the Unit<\/p>\n
can be given to the appellant and the property<\/p>\n
could     be       made       ready         for    commencement        of<\/p>\n
production. It is the case of the appellant<\/p>\n
that     there          was     no     reply      by    the     Official<\/p>\n
Liquidator         to     the        appellant.        The    appellant,<\/p>\n
therefore, wrote a letter to the Company Judge<\/p>\n
on January 27, 2005, complaining that though it<\/p>\n
was    the     duty      of     the     Official        Liquidator    to<\/p>\n
accept       the     highest          offer       submitted     by    the<\/p>\n
appellant,         no     action       had     been     taken    by   the<\/p>\n
Official Liquidator and there was delay in the<\/p>\n
process of finalization of acceptance of bid.<\/p>\n
The appellant also complained about the threat<\/p>\n
administered             by      the        Official         Liquidator.<\/p>\n
According          to     the        appellant,        thereafter     on<\/p>\n
February       15,       2005,        the     Official        Liquidator<\/p>\n
accepted the bid of the appellant for Rs. 1.47
\n                                                                       4<\/span><\/p>\n
crores for immovable property. The appellant on<\/p>\n
its    own     had    forgone     its     claim       of   leased<\/p>\n
machinery.            The    Official         Liquidator        also<\/p>\n
instructed the appellant to deposit 25% of the<\/p>\n
bid    amount        for    immovable         property     within<\/p>\n
fifteen days. The appellant, however, deposited<\/p>\n
the said amount on the same day, i.e. February<\/p>\n
15,   2005.       According      to     the    appellant,        the<\/p>\n
Company       Judge    having     found       the     auction     in<\/p>\n
accordance with law and for adequate price and<\/p>\n
there being no other objection, confirmed the<\/p>\n
auction sale in favour of the appellant-Company<\/p>\n
on    March    24,    2005.     The   Company         Judge     also<\/p>\n
directed the Official Liquidator to hand over<\/p>\n
possession of the Unit by executing sale deed<\/p>\n
in favour of the appellant after receiving full<\/p>\n
and    final     payment        within    one       month.       The<\/p>\n
Official       Liquidator       conveyed        the     appellant<\/p>\n
vide his letter dated April 4, 2005 that an<\/p>\n
order was passed by the Company Judge in favour<\/p>\n
of the appellant. The appellant was also asked<\/p>\n
to deposit the rest of the amount immediately.
\n                                                                      5<\/span><\/p>\n
On receiving the letter dated April 4, 2005<\/p>\n
from    the     Official       Liquidator,       the    appellant<\/p>\n
deposited       the     remaining    amount      on    April    12,<\/p>\n
2005.     The appellant thereby became entitled to<\/p>\n
receive possession and execution of sale deed<\/p>\n
in     respect        of    immovable      property      of     the<\/p>\n
Company.      By    a      communication    dated      April    21,<\/p>\n
2005,     the      Official      Liquidator      informed       the<\/p>\n
appellant that possession of the property would<\/p>\n
be handed over to the appellant on May 6, 2005<\/p>\n
at 11.30 a.m.<\/p>\n
4.         According to the appellant, thereafter<\/p>\n
the Official Liquidator did not act legally and<\/p>\n
in accordance with law.             On May 6, 2005, though<\/p>\n
the officers of the appellant waited at the<\/p>\n
site for getting possession of the property,<\/p>\n
neither       the       Official    Liquidator          nor    his<\/p>\n
representative             turned   up      to        hand     over<\/p>\n
possession of the property to the appellant.<\/p>\n
The      appellant-Company,              hence,         sent      a<\/p>\n
telegraphic notice to the Official Liquidator<\/p>\n
and requested him to immediately comply with
\n                                                                          6<\/span><\/p>\n
the order of the Company Judge confirming sale<\/p>\n
and handing over possession to the appellant.<\/p>\n
Instead       of    complying     with       the     order    of    the<\/p>\n
Court        and    handing      over    possession          of     the<\/p>\n
property, the Official Liquidator sent a letter<\/p>\n
purported to have been written on May 5, 2005,<\/p>\n
stating therein that possession would not be<\/p>\n
given    to        the   appellant      on    May    06,     2005    as<\/p>\n
higher bid of Rs.1.55 crores had been received<\/p>\n
and order for handing over possession to the<\/p>\n
appellant had been stayed by the Hon’ble Court.<\/p>\n
The appellant made enquiries and it was found<\/p>\n
that it was at the instance of the Official<\/p>\n
Liquidator himself that Company Application No.<\/p>\n
178 of 2005 before the Company Judge was moved<\/p>\n
and     he    created      obstruction          in    delivery       of<\/p>\n
possession of property to the appellant on the<\/p>\n
alleged       ground      that    he    had     received       higher<\/p>\n
offer.       The     appellant     stated       that    other       two<\/p>\n
persons        also       offered        more        amount.        The<\/p>\n
appellant, in the circumstances, filed Company<\/p>\n
Application NO. 407 of 2005 under Rule 9 of the
\n                                                                      7<\/span><\/p>\n
Company Court Rules, 1959 read with Section 151<\/p>\n
of the Code of Civil Procedure, 1908 stating<\/p>\n
therein that it had paid full amount, sale was<\/p>\n
confirmed and in spite of the order by the<\/p>\n
Company Judge, possession had not been handed<\/p>\n
over to the appellant. A prayer was made to<\/p>\n
direct     Official       Liquidator           to     hand     over<\/p>\n
possession        of    property        to     the    appellant.<\/p>\n
Meanwhile other offers were also received by<\/p>\n
Official     Liquidator.          One        Satish    Choudhary<\/p>\n
offered an amount of Rs.2.10 crores. Keeping in<\/p>\n
view all the facts, the learned Company Judge,<\/p>\n
vide his order dated February 16, 2006 directed<\/p>\n
re-sale      of        property      by        issuing        fresh<\/p>\n
advertisement in the newspapers mentioned in<\/p>\n
the   order.      It    was   also      observed       that     the<\/p>\n
reserve price would be fixed at Rs.2.10 crores.<\/p>\n
Tenders should reach in the office of Official<\/p>\n
Liquidator latest on March 22, 2006, and would<\/p>\n
be opened in Court at 1.45 p.m. on March 23,<\/p>\n
2006 and inter-se bidding would be permitted at<\/p>\n
that time.\n<\/p>\n
                                                                        8<\/span><\/p>\n
5.           In pursuance of the above direction,<\/p>\n
advertisement was issued. Official Liquidator<\/p>\n
received offers. The highest offer was by Nice<\/p>\n
Society-respondent              No.    3   herein    for    Rs.3.5<\/p>\n
crores       and     in     the       circumstances,       bid     of<\/p>\n
respondent No. 3 was accepted. The appellant in<\/p>\n
the   meanwhile           challenged       the    order    of     the<\/p>\n
Company      Judge    and,       as    observed     earlier,      the<\/p>\n
appeal was dismissed by the Division Bench.                        It<\/p>\n
is    this    order        which      is   challenged      in     the<\/p>\n
present appeal.\n<\/p>\n
6.           Notice       was     issued   by    this     Court    on<\/p>\n
February      23,     2007.           Affidavits    and    further<\/p>\n
affidavits were filed thereafter.                    Considering<\/p>\n
the    nature       of     litigation,       the     Office       was<\/p>\n
directed to place the matter for final hearing<\/p>\n
on a non-miscellaneous day and that is how the<\/p>\n
matter has been placed before us.<\/p>\n
7.           We have heard the learned counsel for<\/p>\n
the parties.\n<\/p>\n
8.           The learned counsel for the appellant<\/p>\n
contended that the Company Judge as well as the
\n                                                                 9<\/span><\/p>\n
Division Bench of the High Court were wholly<\/p>\n
wrong    in   setting      aside   the    auction    sale   in<\/p>\n
favour of the appellant.            It was submitted that<\/p>\n
pursuant to sale notice, tenders were invited,<\/p>\n
twelve persons offered their bids. The bid of<\/p>\n
the appellant was highest.            In consonance with<\/p>\n
law, therefore, the said bid was accepted and<\/p>\n
the     appellant     deposited      amount     of   25%    as<\/p>\n
required by law.           It also paid the remaining<\/p>\n
amount of 75%.       Sale was confirmed in favour of<\/p>\n
the appellant and direction was issued by the<\/p>\n
Company     Judge    to   the   Official    Liquidator      to<\/p>\n
hand over possession of the property to the<\/p>\n
appellant.        The Official Liquidator, however,<\/p>\n
with mala fide intention and oblique motive,<\/p>\n
refused to do so.\n<\/p>\n
9.          According to the counsel, once the bid<\/p>\n
was accepted and sale was confirmed, it could<\/p>\n
not    be   set   aside    except    on   the   grounds     of<\/p>\n
fraud, material irregularity, etc.               It is not<\/p>\n
even    the   case    of    the     Official    Liquidator,<\/p>\n
submitted the counsel, that there was fraud or
\n                                                                    1<\/span><\/p>\n
material irregularity in sale and hence, sale<\/p>\n
could not have been set aside. It was urged<\/p>\n
that     the   only     ground      put     forward     by    the<\/p>\n
Official Liquidator was that he had received a<\/p>\n
higher    offer    of   Rs.1.55         crores   from    another<\/p>\n
person. The said offer was received after about<\/p>\n
seven    months.        The      difference      in   price   was<\/p>\n
5.44%.\n<\/p>\n
10.        According        to    the     counsel,      judicial<\/p>\n
notice can be taken that price of real estate<\/p>\n
increases day by day and increase of 5% after<\/p>\n
seven months could not justify the Court in<\/p>\n
setting aside auction sale which was conducted<\/p>\n
in consonance with law.             On that ground alone,<\/p>\n
therefore, both the orders are liable to be set<\/p>\n
aside by ordering handing over possession of<\/p>\n
property to the appellant.\n<\/p>\n
11.        It was also submitted that mala fide<\/p>\n
action on the part of the Official Liquidator<\/p>\n
was     apparent      and        from     the    records      and<\/p>\n
proceedings, it was clearly established. On May<\/p>\n
6, 2005, the officers of the appellant remained
\n                                                                   1<\/span><\/p>\n
present at the site to accept possession, but<\/p>\n
the Official Liquidator did not come. A letter,<\/p>\n
said to have been written on May 5, 2005 was<\/p>\n
received by the appellant belatedly wherein the<\/p>\n
only ground given by the Official Liquidator<\/p>\n
was that he had received a higher bid of Rs.<\/p>\n
1.55 crores and the Company Judge had issued<\/p>\n
stay order.        The so-called order passed by the<\/p>\n
Company Judge was also not sent along with the<\/p>\n
letter.\n<\/p>\n
12.         It     was    alleged        that   the     Official<\/p>\n
Liquidator did not hand over possession since<\/p>\n
the appellant did not oblige him by succumbing<\/p>\n
to his demands.           It was asserted that against<\/p>\n
the    said      Official    Liquidator,         the    Central<\/p>\n
Bureau of Investigation (CBI) had instituted<\/p>\n
proceedings alleging corruption and he was also<\/p>\n
arrested in that connection.\n<\/p>\n
13.         Regarding       bid     of     respondent      No.3-<\/p>\n
Society     for    Rs.3.5    crores,       it   was    submitted<\/p>\n
that   it     is   well   settled        that   auction   sales<\/p>\n
cannot be set aside on the ground that higher
\n                                                                   1<\/span><\/p>\n
offers are received from other bidders after<\/p>\n
confirmation of sale. If this is allowed and<\/p>\n
sales are set aside, there is no end to it.                   In<\/p>\n
absence       of        illegalities         or       material<\/p>\n
irregularities,         credibility    of         court    sales<\/p>\n
cannot be doubted nor such sales be set aside.<\/p>\n
If price is the only consideration, today the<\/p>\n
property is worth Rs.5.5 crores. In that case,<\/p>\n
sale in favour of respondent No.3 should also<\/p>\n
be set aside and fresh auction must be ordered.<\/p>\n
14.       It was stated that the appellant was a<\/p>\n
bona   fide   purchaser.        It    was    not     even    the<\/p>\n
allegation of the Official Liquidator or any<\/p>\n
other bidder that highest bid of the appellant<\/p>\n
for Rs.1.47 crores was in any way improper,<\/p>\n
insufficient       or    inadequate.        The     appellant,<\/p>\n
hence,    cannot    be    deprived    of    the     fruits    to<\/p>\n
which it was otherwise entitled to.                       On all<\/p>\n
these grounds it was submitted that the order<\/p>\n
passed by the courts below deserve to be set<\/p>\n
aside.\n<\/p>\n
                                                                   1<\/span><\/p>\n
15.        On behalf of the Official Liquidator,<\/p>\n
an affidavit is filed.              It may, however, be<\/p>\n
stated that the present incumbent is different<\/p>\n
than the one who was in of the office at the<\/p>\n
relevant     time.       The     deponent         denied     the<\/p>\n
allegations       levelled     by    the    appellant        but<\/p>\n
stated     that    in   view    of    the    higher        offer<\/p>\n
received by the then Official Liquidator and<\/p>\n
stay granted by the Company Judge, possession<\/p>\n
was not handed over to the appellant and the<\/p>\n
said action could not be said to be illegal or<\/p>\n
contrary to law. It was stated that as per the<\/p>\n
order of the Company Judge, fresh tenders were<\/p>\n
invited and in the said process, respondent No.<\/p>\n
3-Society     offered     Rs.3.5      cores       which      was<\/p>\n
accepted and no interference is called for.<\/p>\n
16.        A counter affidavit is also filed by<\/p>\n
respondent No. 3 stating that the appellant had<\/p>\n
not approached the Court with true and full<\/p>\n
facts.     Sale notice which was issued on October<\/p>\n
19, 2004 was incomplete and invalid. It did not<\/p>\n
state    valuation      of     movable      and     immovable
\n                                                                        1<\/span><\/p>\n
properties. Reserve price was also not fixed.<\/p>\n
No inventory of plant and machinery was made.<\/p>\n
There   was        no    full    description      of       movable<\/p>\n
properties.        Necessary      material      was    not      made<\/p>\n
available at the site nor in the office of the<\/p>\n
Official      Liquidator.          In     view        of        those<\/p>\n
irregularities, the property could not fetch<\/p>\n
fair price.         When all the above defects were<\/p>\n
brought to the notice of the Company Judge, the<\/p>\n
Company Judge was satisfied that the process<\/p>\n
undertaken was not proper and hence fresh bids<\/p>\n
were invited.\n<\/p>\n
17.        It was also submitted that no formal<\/p>\n
order   of     confirmation          in    favour          of     the<\/p>\n
appellant was at any time made by the Court.<\/p>\n
But   even    if    it    is    assumed   for    the       sake   of<\/p>\n
argument that the order of the Company Judge<\/p>\n
issuing direction to the Official Liquidator to<\/p>\n
hand over possession to the appellant can be<\/p>\n
said to be an order of confirmation, it would<\/p>\n
not take away the power of the Company Judge to<\/p>\n
invite fresh tenders if sale was not held in
\n                                                                   1<\/span><\/p>\n
accordance with law. Moreover, if auction sale<\/p>\n
was confirmed by the Court on March 24, 2005,<\/p>\n
the appellant was bound to pay the remaining<\/p>\n
amount of 75% before 15th day of confirmation.<\/p>\n
Admittedly,        the    appellant    failed   to     pay   the<\/p>\n
remaining amount within the stipulated period.<\/p>\n
It, therefore, cannot claim any benefit on the<\/p>\n
basis of such auction sale.\n<\/p>\n
18.         The counsel urged that even otherwise<\/p>\n
this Court has held in several cases that the<\/p>\n
Court has power to set aside even confirmed<\/p>\n
sale if it is satisfied that the property would<\/p>\n
have fetched higher price.             The approach of the<\/p>\n
Court in such matters is to ensure that the<\/p>\n
property must fetch maximum price which would<\/p>\n
benefit the Company in clearing its dues and<\/p>\n
liabilities towards its creditors, contributors<\/p>\n
and workers. In the final analysis, the auction<\/p>\n
sale   in    favour       of   respondent    No.   3   for    an<\/p>\n
amount of Rs.3.5 crores which was substantially<\/p>\n
higher      than    the    bid    of   the   appellant       for<\/p>\n
Rs.1.47 crores may not be interfered with.
\n                                                                  1<\/span><\/p>\n
19.      It     was    further      stated        that    when<\/p>\n
respondent No. 3 made an offer of Rs.3.5 cores,<\/p>\n
the Court, in fairness, extended opportunity to<\/p>\n
the appellant if it wanted to participate in<\/p>\n
the   proceedings     and   willing    to    offer       higher<\/p>\n
price.   The appellant, however, refused to take<\/p>\n
part as also refused to pay anything more than<\/p>\n
what was offered earlier. It is, therefore, not<\/p>\n
open to the appellant to complain and insist to<\/p>\n
get ownership rights and possession of property<\/p>\n
for Rs.1.47 cores.\n<\/p>\n
20.      It was stated that respondent No. 3<\/span><\/p>\n
has paid full amount, got sale deed executed in<\/p>\n
its   favour   and    had   spent   substantial          amount<\/p>\n
thereafter and on that ground also, the Court<\/p>\n
may not exercise discretionary and equitable<\/p>\n
jurisdiction     under       Article        136     of      the<\/p>\n
Constitution.\n<\/p>\n
21.      Having heard the learned counsel for<\/p>\n
the parties, in our opinion, no case has been<\/p>\n
made out by the appellant against the order<\/p>\n
passed by the High Court. From the facts stated
\n                                                                         1<\/span><\/p>\n
above, it is clear that in November, 2004, the<\/p>\n
bid    of   the    appellant        was        highest     and    was<\/p>\n
accepted by the Official Liquidator.                      But it is<\/p>\n
also    clear      that     certain        facts       which      were<\/p>\n
necessary     to       be   brought       to     the     notice    of<\/p>\n
intending purchasers were not set out in the<\/p>\n
proclamation of sale nor were disclosed at the<\/p>\n
time of sale notice.           They related to valuation<\/p>\n
of movable and immovable properties, fixation<\/p>\n
of reserve price, non-inventory of plant and<\/p>\n
machinery, etc. The attention of the Company<\/p>\n
Judge was invited by other bidders by filing<\/p>\n
Company     Applications.              The       Company         Judge<\/p>\n
considered       the    objections         and     having      prima<\/p>\n
facie satisfied, ordered fresh auction. We find<\/p>\n
no illegality in the said approach. When fresh<\/p>\n
bids   were      received,     it     was       found     that    the<\/p>\n
highest offer was of respondent No. 3-Society<\/p>\n
which was of Rs.3.5 crores.                 The Company Judge<\/p>\n
extended    an     opportunity        to    the    appellant        to<\/p>\n
raise its bid. It, however, appears that the
\n                                                                     1<\/span><\/p>\n
appellant was adamant to get the property for<\/p>\n
Rs.1.47      crores   on    the   ground    that       the    said<\/p>\n
offer was highest and all the proceedings taken<\/p>\n
by the Official Liquidator and Company Judge<\/p>\n
thereafter were totally illegal and unlawful.<\/p>\n
In our opinion, the respondents are right that<\/p>\n
in    such   cases,      the   approach    of    the     Company<\/p>\n
Judge should be to get highest price so as to<\/p>\n
satisfy maximum claims against the Company in<\/p>\n
liquidation.       The     procedure      followed       by    the<\/p>\n
Company Judge, therefore, cannot be said to be<\/p>\n
illegal.\n<\/p>\n
22.          It may be observed at this stage that<\/p>\n
even      before      the      Division         Bench,        such<\/p>\n
opportunity was afforded to the appellant to<\/p>\n
raise its bid but it was not availed of by the<\/p>\n
appellant.\n<\/p>\n
23.          The   Division     Bench,    in    the    impugned<\/p>\n
order, noted;\n<\/p>\n
       “Even during the course of proceedings
\n       in this appeal, we had specifically
\n       asked the learned counsel for the
\n       appellant as to whether the appellant
\n                                                                             1<\/span><\/p>\n
       was willing to go for inter-se bidding
\n       to which he flatly declined”.\n<\/p><\/blockquote>\n
24.        In this connection, we may refer to<\/p>\n
some of the decisions of this Court to which<\/p>\n
our attention has been invited.\n<\/p>\n
25.        In M\/s Navalkha & Sons v. Sri Ramanya<\/p>\n
Das & Ors.,<\/a> 1969 (3) SCC 337, it was held by<\/p>\n
this    Court    that     the   principles       which        should<\/p>\n
govern confirmation of sale are well-settled.<\/p>\n
Where     the    acceptance       of     the    offer        by        the<\/p>\n
Commission is subject to confirmation of the<\/p>\n
Court,     mere       acceptance        of     offer     by            the<\/p>\n
Commission would not confer vested right to the<\/p>\n
property in favour of the bidder.                 Condition of<\/p>\n
confirmation by Court operates as a safeguard<\/p>\n
against        the     property        being     sold        at         an<\/p>\n
inadequate       price,    whether       or    not      it        is     a<\/p>\n
consequence of any irregularity or fraud in the<\/p>\n
conduct of the sale.              It is the duty of the<\/p>\n
Court     to    satisfy     itself       about     the        proper<\/p>\n
valuation.           But once the Court comes to the<\/p>\n
conclusion that the price offered is adequate,
\n                                                                  2<\/span><\/p>\n
no    subsequent   higher      offer    can    constitute     a<\/p>\n
valid ground for refusing confirmation of the<\/p>\n
sale or offer already received.\n<\/p>\n
26.       In Kayjay Industries (P) Ltd. v. M\/s<\/p>\n
Asnew Drums (P) Ltd. & Ors.,<\/a> (1974) 2 SCC 213,<\/p>\n
this Court held that it is the duty of the<\/p>\n
Court to accept the highest bid and the Court<\/p>\n
is not bound to go on adjourning the sale on<\/p>\n
the basis of valuation report. Referring to and<\/p>\n
relying on Navalkha, the Court stated that in<\/p>\n
public    sales,      the   authority          must    protect<\/p>\n
interest of the parties keeping in view the<\/p>\n
fact that a Court sale is a forced sale and,<\/p>\n
notwithstanding       the   competitive          element     of<\/p>\n
public auction, the best price is not often<\/p>\n
forthcoming.\n<\/p>\n
27.       In   Union    Bank    of     India    v.    Official<\/p>\n
Liquidator,    High    Court     of    Calcutta       &   Ors.,<\/a><\/p>\n
(2000) 5 SCC 274, this Court observed that in<\/p>\n
auction sale of the property of the Company<\/p>\n
which is ordered to be wound up, the Company<\/p>\n
Court acts as a custodian for the interest of
\n                                                                 2<\/span><\/p>\n
the Company and its creditors. It is the duty<\/p>\n
of the Company Court to satisfy itself as to<\/p>\n
reasonableness of price by disclosing valuation<\/p>\n
report to secured creditors of the Company and<\/p>\n
other interested persons. It was further held<\/p>\n
that    the     Court     should      exercise       judicial<\/p>\n
discretion     to    ensure    that    sale     of   property<\/p>\n
should fetch adequate price.            For deciding what<\/p>\n
would be reasonable price, valuation report of<\/p>\n
an    expert   is   essential.        The    Company     Judge<\/p>\n
himself must apply his mind to the valuation<\/p>\n
report. The Court observed that the High Court<\/p>\n
did not interfere with the auction sale on the<\/p>\n
ground of sympathy for the workers which was<\/p>\n
not proper. The auction sale was, therefore,<\/p>\n
set aside by this Court and Official Liquidator<\/p>\n
was    directed     to   re-sell     the    property     after<\/p>\n
obtaining      fresh     valuation     report    and     after<\/p>\n
furnishing      copy     of   such    report    to     secured<\/p>\n
creditors.\n<\/p>\n
28.       In    Divya     Manufacturing        Company    (P)<\/p>\n
Ltd. v. Union Bank of India & Ors., (2000) 6
\n                                                                       2<\/span><\/p>\n
SCC 69, this Court held that even confirmed<\/p>\n
sale can be set aside.                In that case, highest<\/p>\n
bid by a party was accepted by the Court and<\/p>\n
the sale was confirmed, but before possession<\/p>\n
was    delivered       to    the     auction      purchaser      and<\/p>\n
execution of sale deed, other parties offered<\/p>\n
much higher price.               The High Court required the<\/p>\n
subsequent bidders to deposit an amount of 25%<\/p>\n
which was done.            Considering the facts in their<\/p>\n
entirety,       the       High      Court     set       aside    the<\/p>\n
confirmation         of     past    highest      bid.    The    said<\/p>\n
action was challenged in this Court.<\/p>\n
29.        This Court held that in an appropriate<\/p>\n
case, even confirmed sale can be set aside.<\/p>\n
The     Court    in       this     connection,      relied      upon<\/p>\n
earlier two decisions in LICA (P) Ltd. (1) v.<\/p>\n
Official       Liquidator,         (1996)   85    Comp    Cas   788<\/p>\n
(SC)     and    LICA        (P)     Ltd.    (2)     v.    Official<\/p>\n
Liquidator, (1996) 85 Comp Cas 792 (SC).<\/p>\n
30.        The learned counsel for the appellant<\/p>\n
is no doubt right in submitting that in Divya,<\/p>\n
there    was     a    specific       condition      (Clause      11)
\n                                                           2<\/span><\/p>\n
which     empowered    the     Court   to    set   aside<\/p>\n
confirmed sale “in the interest of creditors,<\/p>\n
contributors and all concerned and\/or public<\/p>\n
interests”.\n<\/p>\n
31.        But   the   Court    put    the   matter   on<\/p>\n
principle and stated;\n<\/p>\n
        “It is the duty of the Court to see
\n        that the price fetched at the auction
\n        is an adequate price even though
\n        there     is   no    suggestion    of
\n        irregularity or fraud”.\n<\/p><\/blockquote>\n
                                    (emphasis
\n        supplied)<\/p>\n<\/blockquote>\n
32.        It proceeded to observe;\n<\/p>\n
        “Confirmation of the sale by a Court
\n        at grossly inadequate price, whether
\n        or not it is a consequence of any
\n        irregularity or fraud in the conduct
\n        of sale, could be set aside on the
\n        ground that it was not just and
\n        proper     exercise     of     judicial
\n        discretion.    In    such    cases,   a
\n        meaningful intervention by the Court
\n        may    prevent,   to    some    extent,
\n        underbidding at the time of auction
\n        through Court”.    (emphasis supplied)<\/p>\n<\/blockquote>\n
33.        In Gajraj Jain v. State of Bihar &<\/p>\n
Ors.,<\/a> (2004) 7 SCC 151, this Court reiterated<\/p>\n
that in absence of valuation report and reserve
\n                                                              2<\/span><\/p>\n
price,     the     auction      sale    becomes   only    a<\/p>\n
pretence.    If there is no proper mechanism and<\/p>\n
if the intending purchasers are not able to<\/p>\n
know     details     of   the     assets    or    itomised<\/p>\n
valuation, auction sale cannot be said to be in<\/p>\n
accordance with law.         If publicity and maximum<\/p>\n
participation is to be attained, all bidders<\/p>\n
must know the details of the assets and the<\/p>\n
valuation thereof.\n<\/p>\n
34.        In the present case, it was alleged<\/p>\n
that there were several irregularities in the<\/p>\n
first auction. The tender notice did not state<\/p>\n
valuation of movable and immovable property;<\/p>\n
reserve price was not fixed, inventory of plant<\/p>\n
and machinery was not made available, etc. If<\/p>\n
on consideration of these facts, the Company<\/p>\n
Judge ordered fresh auction, in our considered<\/p>\n
opinion, no complaint can be made against such<\/p>\n
action.\n<\/p>\n
35.        In our opinion, the submission of the<\/p>\n
learned counsel for respondent NO. 3 is also<\/p>\n
well-founded       that   when    its   highest   bid    of
\n                                                                         2<\/span><\/p>\n
Rs.3.5    crores       was     accepted,       opportunity        was<\/p>\n
afforded to the appellant. It, however, did not<\/p>\n
avail such opportunity.                 The counsel is also<\/p>\n
right in referring to subsequent events that<\/p>\n
after     the     fresh        auction,        sale       deed     was<\/p>\n
executed,       possession          was       handed      over     to<\/p>\n
respondent No.3, it had incurred expenses. If<\/p>\n
at this stage, the sale is set aside, serious<\/p>\n
prejudice will be caused to respondent No. 3-<\/p>\n
Society.\n<\/p>\n
36.        At the same time, however, from the<\/p>\n
facts it is clear that the appellant’s bid was<\/p>\n
accepted in November, 2004. Immediately, it had<\/p>\n
deposited       25%     amount.         The        appellant     also<\/p>\n
deposited       remaining         amount      of    75%   on     April<\/p>\n
12\/13,     2005.             It     would,         therefore,       be<\/p>\n
appropriate if we direct respondent No. 3 to<\/p>\n
pay an amount of Rs.30 lacs to the appellant<\/p>\n
which     in    our    opinion      would      serve      the    ends<\/p>\n
of justice.           Payment of Rs.30 lacs will serve<\/p>\n
as    a   “solatium       to      the      purchaser       for    his<\/p>\n
trouble and disappointment for the loss of that
\n                                                                     2<\/span><\/p>\n
which is perhaps a good bargain”. [Vide Chundi<\/p>\n
Charan v. Bankey Behary, (1899) ILR 26 Cal 449<\/p>\n
(FB)].\n<\/p>\n
37.         Before    parting,      we    may   clarify       that<\/p>\n
serious allegations have been levelled by the<\/p>\n
appellant against the then Official Liquidator.<\/p>\n
It    was   also     stated   that       Central    Bureau     of<\/p>\n
Investigation        (CBI)    has    instituted         criminal<\/p>\n
proceedings        alleging    corruption         against      the<\/p>\n
Official Liquidator and he was arrested. We are<\/p>\n
disposing     of     the   present       appeal    as    in   our<\/p>\n
opinion, the order passed by the Company Jude<\/p>\n
and confirmed by the Division Bench of the High<\/p>\n
Court are in consonance with law. But we may<\/p>\n
not be understood to have expressed any opinion<\/p>\n
on the allegations levelled by the appellant<\/p>\n
against the Official Liquidator. As and when<\/p>\n
the matter comes up for consideration before an<\/p>\n
appropriate Court\/Authority, it will be decided<\/p>\n
on its own merits irrespective of the disposal<\/p>\n
of this appeal by us.\n<\/p>\n
                                                                                      2<\/span><\/p>\n
38.       For the foregoing reason, the appeal<\/p>\n
is    partly   allowed   to   the   extent                indicated<\/p>\n
above.\n<\/p>\n
                                    ………………………………………J.
\n                                    (C.K. THAKKER)<\/p>\n
New Delhi,                          ………………………………………J.
\nJuly 9, 2008.                       (D.K. JAIN)<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Fcs Software Solutions Ltd vs La Medical Devices Ltd. & Ors on 9 July, 2008 Author: C Thakker Bench: C.K. Thakker, D.K. Jain REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4271 OF 2008 ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 21123\/2007 FCS SOFTWARE SOLUTIONS […]<\/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-49733","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nFcs Software Solutions Ltd vs La Medical Devices Ltd. & Ors on 9 July, 2008 - 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\/fcs-software-solutions-ltd-vs-la-medical-devices-ltd-ors-on-9-july-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Fcs Software Solutions Ltd vs La Medical Devices Ltd. & Ors on 9 July, 2008 - 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