Gujarat High Court
Shayona Land Corporation & vs Official Liquidator Of on 15 January, 2013
Author: M.R. Shah
Bench: M.R. Shah
SHAYONA LAND CORPORATIONV/SOFFICIAL LIQUIDATOR OF SHREE BANSIDHAR SPG & WVG MILLS LTD O/OJA/51/2009 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD O.J.APPEAL NO. 51 of 2009 In COMPANY APPLICATION NO. 427 of 2004 In OFFICIAL LIQUDATOR REPORT NO. 111 of 2003 In COMPANY PETITION NO. 79 of 1987 With O.J.APPEAL NO. 55 of 2009 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE S.H.VORA =============================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
YES 2 To be referred to the Reporter or not ?
YES 3 Whether their Lordships wish to see the fair copy of the judgment ?
NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
NO 5 Whether it is to be circulated to the civil judge ?
NO ================================================================ SHAYONA LAND CORPORATION &
1....Appellant(s) Versus OFFICIAL LIQUIDATOR OF SHREE BANSIDHAR SPG & WVG MILLS LTD & 4....Respondent(s) ================================================================ Appearance:
OJ Appeal No. 51/2009 MR ASHOK L SHAH for MR AB MUNSHI, ADVOCATE for the Applicant(s)No. 1 2 MS AMEE YAJNIK for the Respondent(s) No. 1 MR RD DAVE, ADVOCATE for the Respondent(s) No. 2 RULE SERVED for the Respondent(s) No. 3 MR DS VASAVADA, ADVOCATE for the Respondent(s) No. 4 RULE UNSERVED for the Respondent(s) No. 5 OJ Appeal No. 55/2009 MR UDAY R BHATT for the Applicant(s) No. 1 MS AMEE YAJNIK for the Respondent(s) No. 1 MR ASHOK L SHAH for MR AB MUNSHI for the Respondent(s) No. 2-3 MR DS VASAVADA, ADVOCATE for the Respondent(s) No. 4 MR RD DAVE, ADVOCATE for the Respondent(s) No. 5 RULE SERVED for the Respondent(s) No. 6 ================================================================ CORAM:
HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE S.H.VORA Date : 15/01/2013 CAV JUDGEMNT (PER : HONOURABLE MR.JUSTICE M.R. SHAH)
1. As common question of law and facts arise in both these appeals and as such they are cross appeals, they are disposed of by this common judgment and order.
2. O.J. Appeal No. 51/2009 has been preferred by the appellants-original applicants nos. 1 and 2 of Company Application No. 427/2004 in Official Liquidator Report No. 111/2003 (hereinafter referred to as original applicants ) challenging the impugned order passed by the learned Company Court dated 20/07/2009 in Company Application No. 427/2004 in Official Liquidator Report No. 111/2003, in so far as is against the original applicants and to the extent the reliefs prayed for by the original applicants are not granted fully.
3. O.J. Appeal No. 55/2009, which can be said to be cross appeal to O.J. Appeal No. 51/2009 has been preferred by the appellant-one of the secured creditor-State Bank of India challenging the aforesaid order passed by the learned Company Court dated 20/07/2009 in Company Application No. 427/2004 in Official Liquidator Report No. 111/2003 by which the learned Company Court has partly allowed the said application preferred by respondents nos. 2 and 3-original applicants (appellants of O.J. Appeal No. 51/2009) directing the Official Liquidator to refund the amount of Rs. 46,54,787.76 being the sale consideration for the land admeasuring 3603 sq meter at the rate of Rs. 1291.92 per sq meter.
4. The facts leading to the present appeals in a nutshell are as under;
4.1. One Shree Bansidhar Spinning & Weaving Mills Ltd. (in liquidation) has been ordered to be wound up by the learned Company Court by order dated 01/04/1987 passed in Company Petition No. 79/1987. Respondent no. 1 herein-Official Liquidator of the Company in liquidation advertised for the sale of the lands of the Company in liquidation.
According to the original applicants, the lands offered for sale were admeasuring 62,310 sq meter. There was a bid by original applicant for Rs. 8,05,00,000/- (Rs. Eight Crore Five Lac only), and it being the highest bidder in the auction, the learned Company Court vide judgment and order dated 05/03/2004 confirmed the sale of the lands of the Company in liquidation in favour of the original applicants. The original applicant no. 1-auction purchaser paid up the full sale consideration of Rs. 8,05,00,000/-. After the full sale consideration amount was paid, respondents nos. 1, 2 and 3 executed the deed of conveyance dated 25/10/2004 in favour of original applicant no. 2 (as the nominee of original applicant no. 1). According to the original applicants, the lands of the Company in liquidation offered for sale represented to be admeasuring 62,310 sq meter and the learned Company Court in the order confirmed the sale in favour of original applicant no. 1. The learned Company Court also described the lands of the Company in liquidation to be admeasuring 62,310 sq meter. However, they came to know that the area described to be the lands of the Company in liquidation admeasuring 62,310 sq meter, included an area of 6,718 sq meter of land also, which was of the ownership and in possession of one M/s Paras Textiles and Nepthochem Pvt. Ltd. Thus, according to the original applicants, the actual area of the lands of the Company in liquidation that could have been sold and conveyed was only 55,592 sq meter and not 62,310 sq meter and, therefore, the original applicants preferred Company Application No. 427/2004 before the learned Company Court for refund of proportionate amount of sale consideration in respect of 6,718 sq meter of the land short conveyed and short delivered to them. The original applicants thus prayed for refund of Rs. 86,79,168.70 (being the amount in respect of 6,718 sq meter of land at the rate of Rs.1,291.92 per sq meter worked out on the basis of Rs. 8,05,00,000/- for 62,310 sq meter and, therefore, for one sq meter Rs. 1,291.92) with interest at the rate of 18% per annum. The learned Company Court vide judgment and order dated 20/07/2009 in fact held that the lands admeasuring 6718 sq meter did not belong to the Company in liquidation but was of the ownership of respondent no. 5-M/s Paras Textiles Mills Pvt. Ltd. and, therefore, the lands of the Company that could have been actually conveyed to the original applicants being the purchaser was only 55,592 sq meter and, therefore, they are entitled to refund however only in respect of 3603 sq meter (after reducing the area of the land by 5% of the total area of 62310 sq meter) and rejected the prayer of the original applicants-auction purchasers for payment of interest on the refund amount. While passing the impugned order, the learned Company Court has relied upon one order dated 12/07/2004 in Company Application No. 21/2004 as well as another order dated 27/06/2006 in Company Application No. 404/2005 taking the view that if the area short conveyed is less by 5% of the total area, it would not be considered as substantial and no order of refund would be required, but if it exceeds 5%, the refund would be required minus the area of 5%. Being aggrieved and dissatisfied with the order dated 20/07/2009 passed in Company Application No. 427/2004 in Official Liquidator Report No. 111/2003 in so far as the same is against the original applicants not granting reliefs prayed for, the original applicant-auction purchasers have preferred O.J. Appeal No. 51/2009.
4.2. Being aggrieved and dissatisfied with the impugned judgment and order dated 20/07/2009 passed by the learned Company Court in Company Application No. 427/2004 in so far as partly allowing the said application and directing the Official Liquidator to refund the amount of Rs. 46,54,787.76 in respect of the land admeasuring 3603 sq meter at the rate of Rs. 1291.92 per sq meter, original respondent no. 3-State Bank of India-secured creditor has preferred O.J. Appeal No. 55/2009 by submitting that the appellants-auction purchaser are not entitled to any refund.
5. Shri Ashok L. Shah, learned advocate has appeared with Shri A.B. Munshi, learned advocate appearing on behalf of the appellants of O.J. Appeal Nos. 51, Shri Uday Bhatt, learned advocate has appeared on behalf of respondent no. 3 in O.J. Appeal No. 51/2009 and appellant in O.J. Appeal No. 55/2009-State Bank of India, Ms. Amee Yajnik has appeared on behalf of the Official Liquidator in the respective appeals and Shri D.S. Vasavada, learned advocate has appeared on behalf of Textile Labour Association Workers Union.
5.1. Shri Ashok L. Shah, learned advocate appearing on behalf of the appellants in O.J. Appeal No. 51/2009-auction purchasers has vehemently submitted that the impugned order passed by the learned Company Judge in so far as it is against the appellants and the reliefs not fully granted are bad in law and against the principles of justice and equity. It is further submitted by Shri Shah, learned advocate appearing on behalf of the appellants-auction purchasers that as the learned Company Judge has rightly found and held that the area of 6718 sq meter of land, which is of the ownership of respondent no. 5-M/s. Paras Textiles Mills Pvt. Ltd., has been wrongly included in the total area of 62310 sq meter of land and, therefore, the said area of 6718 sq meter could not have been sold to the appellants and, therefore, the appellants have got only 55,592 sq meter of land, the learned Judge ought to have further held that the appellants-auction purchasers are entitled to refund of the full amount in respect of the entire area of 6718 sq meter of land (short conveyed), which was of the ownership of respondent no. 5 and not of the Company in liquidation.
5.2. It is further submitted by Shri Shah, learned advocate appearing on behalf of the original applicants-auction purchasers that the learned Company Judge has materially erred in not allowing the refund in respect of full area of 6718 sq meter of land but allowed refund in respect of 3603 sq meter of land only and did not allow refund in respect of the balance 3115 sq meter of the land, out of the said 6718 sq meter of land. It is further submitted by Shri Shah, learned advocate appearing on behalf of the original applicants-auction purchasers that the learned Company Judge has materially erred in relying upon the judgment and order dated 27/06/2006 passed in Company Application No. 404/2005. It is submitted that the learned Company Judge ought to have appreciated that the facts of the case in Company Application No. 404/2005 are completely different than the facts in the present case, more particularly, in the said case, the question involved was not that the lands not belonging to the Company in liquidation was being sold and charged and in the present case the lands admittedly belonged to the third party and not the Company in liquidation, which was being sold and charged by the Official Liquidator. It is further submitted by Shri Ashok Shah, learned advocate appearing on behalf of the appellants that the learned Company Jude ought to have appreciated that when respondent no. 1 sold 62310 sq meter of land to the appellants, both the parties, the seller and the purchaser were under mistake of fact and both believed that entire 62310 sq meter of land belonged to the Company in liquidation. It is submitted that when both the parties acted under the mutual mistake of fact and one party has understood the mistake of fact the said party should report the same fact to the other party and consequently the Official Liquidator ought to have been directed to refund the amount to the appellants in respect of the entire land area of 6718 sq meter of land, which was sought to be sold and charged for under the said mutual mistake of fact.
5.3. It is further submitted by Shri Ashok L. Shah, learned advocate appearing on behalf of the original applicants-auction purchasers that the learned Company Judge has materially erred when he reduced the area of the land in respect of which the original applicants are entitled to refund (6718 sq meter) by 5% of the total area of the land (62310 sq meter) contracted for sale. It is further submitted that the learned Company Judge ought to have appreciated that there is no principle of law when admittedly parties are acting under mutual mistake of fact and selling and buying the land belonging to the third party and not to the selling party and yet the seller is allowed to retain the part of sale consideration in respect of the lands, which admittedly do not belong to the seller. It is further submitted that the learned Company Judge ought not to have reduced the area of the land in respect of which the original applicants are entitled to refund by 5% of the total area of the land (62310 sq meter) sought to be sold. It is submitted that the learned Company Judge ought not to have at all reduced the area of the lands from 6718 sq meter in respect of which the original applicants are entitled to get the refund. It is further submitted that the learned Company Judge ought to have appreciated that he having held and it being an admitted position by the Official Liquidator that the area of 6718 sq meter (wrongly included in the total area of 62310 sq meter) sold to the original applicants was of the ownership of respondent no. 5-M/s. Paras Textiles Mills Pvt. Ltd. and not of the Company in liquidation. He ought to have granted refund in respect of the entire area of 6718 sq meter. It is further submitted that the learned Company Judge has materially erred in rejecting the prayer of the original applicants-auction purchasers for interest on the amount of refund.
6. The present appeals are opposed by Ms. Amee Yajnik, learned advocate appearing on behalf of the Official Liquidator of the Company in liquidation, Shri Uday Bhatt, learned advocate appearing on behalf of State Bank of India-one of the secured creditor and appellant of O.J. Appeal No. 55/2009 as well as Shri D.S. Vasavada, learned advocate appearing on behalf of the workers Union-Textile Labour Association.
7. The learned advocates appearing on behalf of the contesting original respondents have vehemently submitted that as such the learned Company Court has materially erred in relying upon the decision of the learned Single Judge in Company Application No. 404/2005 and 21/2004 while passing an order to refund Rs. 46,54,787.76 in respect of 3606 sq meter at the rate of Rs. 1291.92 per sq meter. It is further submitted that as such nothing was represented/mentioned in the advertisement inviting the offers, with respect to measurement of the lands sought to be sold. It is submitted that so far as the properties of Shree Bansidhar Spinning and Weaving Mills Ltd. (in liquidation) is concerned, it was specifically mentioned in the advertisement that all the lands except the records are to be sold and therefore it was for the original applicants-auction purchaser-intending purchaser to verify the records and title, which the original applicants-auction purchasers must have done while submitting the offers. It is submitted that as such in the tender notice also it was specifically mentioned that the properties have been sold on as is where is whatever there is basis and, therefore, the original applicants-auction purchasers are not entitled to any refund on the ground that less area of land is conveyed to it. It is submitted that in fact the original applicants-auction purchasers submitted the composite offer of Rs. 8,05,00,000/- for the properties, which were offered for sale i.e. of the entire land except the record. It is further submitted that the offer made by the original applicants-auction purchasers was not at the rate of Rs. 1291.92 per sq meter. Therefore, it is not true and correct that while giving advertisement in the local newspaper inviting the offers, total area of 62,310 sq meter was put to sale as alleged. It is submitted that as such there was no representation to the original applicants-auction purchasers and/or intending purchasers to sell 62310 sq meter of land. It is submitted that therefore when the offers were invited and/or properties were put to sale on as is where is and whatever there is basis and even in the tender notice and the terms and conditions it was specifically mentioned that the purchasers shall satisfy himself about the right, title of the properties after ascertaining from the concerned Registration Officers and other authorities and the vendor will not entertain any claim as regards to the right/title of the properties after the Hon ble High Court has confirmed the sale, it was for the auction purchasers to purchase the property after complete inspection of it and, therefore, thereafter the appellants-auction purchasers are not entitled to claim any refund on the grounds stated in the application i.e. on the ground that they have been conveyed less area of 6718 sq meter of land so far as Company Application No. 427/2004 (in respect of properties of Shree Bansidhar Spinning & Weaving Mills Ltd.)
8. Shri Uday Bhatt, learned advocate appearing on behalf of State Bank of India-secured creditor-appellant of O.J. Appeal No. 55/2009 has submitted that in view of the aforesaid facts and circumstances, the learned Judge has materially erred in partly allowing Company Application No. 427/2004 and directing to refund 46,54,787.76 in respect of 3603 sq meter of land relying upon the order passed in Company Application No. 21/2004 and Company Application No. 404/2005.
9. The learned advocates appearing on behalf of the contesting respondents and the appellant of O.J. Appeal No. 55/2009-one of the secured creditor-State Bank of India have requested to dismiss O.J. Appeal 51/2009 as well as O.J. Appeal No. 102/2009 and allow O.J. Appeal No. 55/2009 by quashing and setting aside the impugned order passed by the learned Company Court dated 20/07/2009 in Company Application No. 427/2004 in so far as directing the Official Liquidator to refund the amount of Rs. 46,54,787.76.
10. The learned advocates appearing on behalf of the contesting respondents have heavily relied upon the decision of the Honorable Supreme Court in the case of United Bank of India Vs. Official Liquidator and Ors. reported in (1994) 1 SCC 575 as well as the unreported decision of this Court dated 02/03/2010 passed in Company Application No. 463/2009 in support of their above submissions and prayers.
11. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset it is required to be noted that the appellants of O.J. Appeal No. 51/2009-original applicants submitted Company Application No. 427/2004 before the learned Company Court claiming refund of Rs. 86,79,168.70 with interest at the rate of 18% per annum contending interalia that they have been sold less area of the land than what was offered. According to the appellants-original applicants they were sold total area of 62,310 sq meter of land, out of which, 6718 sq meter of land is found to be of the ownership of original respondent no. 5-M/s Paras Textiles Mills Pvt. Ltd. as owner and, therefore, they have been sold 6718 sq meter of land less and as the appellants have paid the total sale consideration of Rs. 8,05,00,000/- therefore they are entitled to refund for 6718 sq meter of land at the rate of 1291.92 sq meter. However, the learned Company Judge relying upon the decisions of this Court in Company Application No. 21/2004 dated 12/07/2004 and another decision in Company Application No. 404/2005 dated 27/06/2006 has held that if the area short conveyed is less by 5% of the total area, it would not be considered as substantial and no order of refund would be required. However, if it exceeds 5% the refund would be required minus the area of 5% and accordingly considering the total less area as 6718 sq meter against the total area of 62,310 sq meter, it is held by the learned Company Court that the appellants-original applicants would be entitled to the refund with respect to 3603 sq meter of land only and consequently has directed the Official Liquidator to refund Rs. 46,54,787.76. Being aggrieved and dissatisfied with the impugned order passed by the learned Company Court in so far as not awarding refund for the entire area, which was delivered less i.e. 6718 sq meter of land and awarding refund for 3603 sq meter of land only, the appellants-original applicants-auction purchasers have preferred the present O.J. Appeal No. 51/2009. However, on the other hand, it is the case on behalf of the secured creditors that as such the appellants-original applicants-auction purchasers would not be entitled to any refund for any short delivery. Being aggrieved and dissatisfied with the impugned order passed by the learned Company Court directing the Official Liquidator to refund the amount of Rs. 46,54,787.76 with respect to 3603 sq meter of land, State Bank of India, one of the secured creditors has preferred O.J. Appeal No. 55/2009. Thus, the question, which is posed for consideration of this Court is, Whether, as such in the facts and circumstances of the case, the appellants-original applicants-auction purchasers are entitled to any refund with respect to the short delivery of the lands, if any, i.e. with respect to 6718 sq meter of land?
12. At the outset, it is required to be noted that as such the Official Liquidator of the Company in liquidation invited the offers for selling the properties of the Company in liquidation by giving advertisement in the local newspaper Gujarat Samachar dated 07/11/2003 on as is where is and whatever there is basis . It is required to be noted that in the said advertisement nothing has been mentioned with respect to the measurement of the properties/lands. Even in the said public notice, it was specifically mentioned that the properties put to sale can be inspected on 13/11/2003 between 11:00 a.m. to 4:30 p.m. . Thus, as such, there was no representation by the Official Liquidator that 62,310 sq meter of land is put to sale. Even as per the terms and conditions of the tender notice, it has been specifically mentioned that the sale is on as is where is and whatever there is basis . Even in the terms and conditions of the tender notice, it was specifically mentioned that the purchasers shall accept the tenure of the land area as they actually exist on the date of the confirmation of the sale and the vendor shall not be bound to compensate him in respect to difference in the tenure or in the area or to incur the costs of ascertaining the correct area or tenure thereof or such other expenses in connection therewith. Even in condition no. 19 it was specifically mentioned that the vendor has no documents or titled deeds relating to the properties under sale with him. In Clause 20 of the tender notice it has been specifically mentioned that the purchaser shall satisfy himself about the right and title of the properties after ascertaining from the concerned Registration Officers and other authorities and the vendor will not entertain any claim as regards to the right/title to the property after the Hon ble High Court confirms the sale. Relevant important terms and conditions so far as the controversy in the present Appeals are at Clause 3, 14, 19, 20 and 27, which reads as under;
3. The sale is on AS IS WHERE IS AND WHATEVER THERE IS BASIS The purchaser shall accept the tenure of the land area as they actually exist on the date of confirmation of sale and the vendor shall not be bound to compensate him in respect of difference in the tenure or in the area or to incur the costs of ascertaining the correct area or tenure thereof or such other expenses in connection therewith.
19. The vendor has no documents or title deeds relating to the properties under sale with him. The purchaser is neither entitled to call for the production of or delivery of any of the documents not in his possession and shall not make any requisition or take any objection in respect of such non-delivery thereof.
20. The purchaser shall satisfy himself about the right and title of the properties after ascertaining from the concerned Registration Officers and other authorities and the vendor will not entertain any claim as regards to the right/title to the property after the Hon ble High Court confirms the sale.
27. The sale will be strictly on these terms & conditions and any conditional offer will not be entertained.
12.1. It appears that after having inspection, the appellants-original applicants-auction purchaser offered Rs. 8,05,00,000/- with respect to the entire land except the records, for which the offers were invited and, therefore, it was for the appellants-original applicants-auction purchasers to ascertain the area of the lands and as such they must have offered Rs. 8,05,00,000/- ascertaining the area of the lands after verification of the record. It is also required to be noted at this stage that as such the offer by the appellants-original applicants-auction purchasers was net Rs.8,05,00,000/- in all and it was not at Rs.1291.92 per sq meter. Thus, it was a composite offer for the entire land of the Company in liquidation except records for which the offers were invited. Thus, when there was no representation by the Official Liquidator at all that 62,310 sq meter of land of the Company in liquidation is put to sale. Therefore, thereafter, it is not open for the appellants-original applicants to claim refund with respect to 6718 sq meter of lands on the ground that they have been delivered the possession of only 55,592 sq meter and they have been short delivered 6718 sq meter of land and, therefore, they are entitled to refund for 6718 sq meter at the rate of 1291.92 sq meter.
12.2. Identical question came to be considered by the Hon ble Supreme Court in the case of United Bank of India Vs. Official Liquidator and Ors. reported in (1994) 1 SCC 575. In the said decision, the Hon ble Supreme Court has observed and held that when the Official Liquidator sells the property and the assets of the Company in liquidation under the orders of the Court he cannot and does not hold out any guarantee and/or warranty in respect thereof. It is further observed that this is because he must proceed upon the basis of the records of the Company in liquidation. It is further observed that it is for the intending purchaser to satisfy himself in all respects as to the title, encumbrances and so forth of the immovable property on such terms and then claim diminution in the price on the ground of defect in title or description of the property. It is further observed that the case of the Official Liquidator selling the property of a Company in liquidation under the orders of the Court is altogether different from the case of an individual selling immovable property belonging to himself.
12.3. Relying upon the above decision, even this Court in Company Application No. 463/2009 has refused to grant similar relief of refund which was claimed on the ground that there is shortfall in the area of the land sold. It is required to be noted at this stage that even in the deed of conveyance it has been so stated that the possession of the premises of the Company in liquidation has been handed over to the purchaser, which has been accepted by them and at that time the appellants-original applicants-auction purchasers did not raise any objection and/or dispute. Thus, as such, in the facts and circumstances of the case, when what was put to sale/offered to sale was the entire property of the Company in liquidation, except the records and there was no representation by the Official Liquidator that 62,310 sq meter of the total area of the land is put to sale and the sale was on as is where is and whatever there is basis , thereafter, it is not open for the appellants-original applicants-auction purchasers to pray for any refund on the ground of any short delivery. It is to be noted that as such there is no short delivery and/or less area sold to the appellants-original applicants-auction purchasers and, therefore, the learned Company Court has materially erred in passing the impugned order even with respect to 3603 sq meter of the land and that too at the rate of Rs. 1291.92 sq meter i.e Rs. 46,54,787.76 . Even the appellants-original applicants-auction purchasers were not entitled to refund at the rate of Rs. 1291.92 sq meter. As stated hereinabove, the offer made by the appellants-original applicants-auction purchasers was for net Rs. 8,05,00,000/- and not per sq meter. Thus, the learned Judge has committed an error in even passing the order of refund with respect to the aforesaid 3603 sq meter of land. Thus, in the facts and circumstances of the case, the decision of the Company Court in the case of Company Application No. 463/2009 would not be of any assistance to the appellants-original applicants and/or the same would not be applicable to the facts of the present case. Therefore, another question that if the area short delivered is less by 5% of the total area, it would be not be considered as substantial and no order of refund would be required and if it exceeds 5%, refund would be required minus the area of 5% is kept open, which can be considered in appropriate case. So far as the present case is concerned, as stated hereinabove, the applicants-original appellants-auction purchasers are not entitled to any refund on the ground of alleged short delivery of 6718 sq meter of land.
13. In view of the above and for the reasons stated hereinabove, O.J. Appeal No. 51/2009 preferred by the appellants-original applicants of Company Application No. 427/2004 deserves to be dismissed and O.J. Appeal No. 55/2009 preferred by the appellant-State Bank of India-secured creditor deserves to be allowed. Consequently, the impugned order passed by the learned Company Court dated 20/07/2009 in Company Application No. 427/2004 is hereby quashed and set aside and it is held that the original applicants-appellants of O.J. Appeal No. 51/2009-auction purchasers are not entitled to any refund on the ground of any alleged short delivery/short fall in delivery of possession and, therefore, the directions issued by the learned Company Court while passing the impugned order directing the Official Liquidator to refund Rs. 46,54,787.76 is hereby quashed and set aside and if the appellants-original applicants-auction purchasers have been paid the said amount they are directed to return the said amount to the Official Liquidator within a period of four weeks from today with interest at the rate of 9% from the date of such payment till actual repayment.
14. With this, O.J. Appeal No. 51/2009 is dismissed and O.J. Appeal No. 55/2009 is hereby allowed. No costs.
(M.R.SHAH, J.) (S.H.VORA, J.) siji Page 19 of 19