Gujarat High Court
Aarsh Infrastructure Limited vs O L Of Aryodaya Ginning And on 15 January, 2013
Author: M.R. Shah
Bench: M.R. Shah
AARSH INFRASTRUCTURE LIMITED....Appellant(s)V/SO L OF ARYODAYA GINNING AND MANUFACTURING MILLS LTD O/OJA/102/2009 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD O.J.APPEAL NO. 102 of 2009 In COMPANY APPLICATION NO. 43 of 2008 In OFFICIAL LIQUDATOR REPORT NO. 101 of 2006 In COMPANY PETITION NO. 157 of 1989 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 ?2
To be referred to the Reporter or not ?3
Whether their Lordships wish to see the fair copy of the judgment ?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 ?5
Whether it is to be circulated to the civil judge ?
================================================================ AARSH INFRASTRUCTURE LIMITED....Appellant(s) Versus O L OF ARYODAYA GINNING AND MANUFACTURING MILLS LTD & 6....Respondent(s) ================================================================ Appearance:
MR ASHOK L SHAH for AB MUNSHI, ADVOCATE for the Appellant(s) No. 1-2 MS AMEE YAJNIK for the Respondent(s) No. 1 RULE SERVED for the Respondent(s) No. 2-3 MR UDAY R BHATT for the Respondent(s) No. 4 MR BH BHAGAT for the Respondent(s) No. 5-6 MR DS VASAVADA for the Respondent(s) No. 7 ================================================================ 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. The present appeal been preferred by the appellant-original applicant of Company Application No. 43/2008 challenging the impugned order passed by the learned Company Court dated 18/08/2009 passed in Company Application No. 43/2008 by which the learned Company Court has dismissed the said application submitted by the appellant-original applicant, which was submitted for an appropriate order directing the Official Liquidator to return/refund the amount of Rs. 79,16,809.21 based on the contention that the land is short-delivered.
2. The facts leading to the present appeal in a nutshell are as under;
2.1. Aryodaya Ginning and Manufacturing Mills Ltd. (in liquidation) was ordered to be wound up vide order dated 27/10/1989 passed in Company Petition No. 157/1989 . The lands of the Company in liquidation were valued by the Official Liquidator through the Government Approved Valuer who submitted the valuation report. The Official Liquidator convened the meeting of the sale committee on 09/06/2006, which decided to invite the offers to sell off the lands of the Company in lots; Lot no. I consisted of Industrial plot i.e. mill land situated at T.P. Scheme No. 8 Final Plot Nos. 130 and 131 admeasuring about 57,254.19 sq meter (including T.K. Office, compound wall, except records); Lot No. II consisted of residential plot situated at T.P. Scheme No. 8, Final Plot Nos. 112 and 117 admeasuring 9,430 sq meter and Lot No. III was for combined offer for Lot Nos. I and II . A newspaper advertisement was also published by the Official Liquidator inviting offers from intending purchasers of the lands of the Company on 30/06/2006. The Official Liquidator filed Official Liquidator Report No. 101/2006 and placed before the learned Company Court the offers received by the sale committee. The learned Company Court conducted an open auction in the Court on 11/09/2006 where the appellants also participated. The appellants participated in the auction for Lot No. 1 consisting of Industrial Plot i.e. mill land situated at T.P. Scheme NO. 8, Final Plot No. 130 admeasuring 45,178 sq meter and 131 admeasuring about 12,076 sq meter totaling to 57,254 sq meter. The offer of the appellant for Rs. 14.35 Crore, being the highest was accepted by the learned Company Court, which confirmed the sale of the land for Lot No. 1 in favour of the appellant for a total sale consideration of Rs. 14.35 Crores. On the full sale consideration being paid by the appellant, the Official Liquidator executed the deed of conveyance dated 10/01/2007 and put the appellant to be in possession of the said lands of Final Plot Nos. 130 and 131 in T.P. Scheme No. 8. According to the appellant, on being put into actual possession of the said land, after execution of the deed of conveyance, the appellant got the measurement taken of the said lands and obtained hissa form no. 4 and plan from the DILR, Ahmedabad and Final Plot No. 131 was found to be less by 2226 sq meter in measurement than what was stated in the deed of conveyance. According to the appellant, Final Plot No. 131 was found to be admeasuring 9569.50 sq meter i.e. less by 2506.50 sq meter. According to the appellant the area of the land, being Final Plot No. 131 of T.P. Scheme No. 8 conveyed to the appellant by the Official Liquidator was stated to be 12,076 sq meter in the deed of conveyance whereas in reality and as measured by the City Survey Officer the said Final Plot No. 131 admeasures 9,569.50 sq meter. Thus, the land of Final Plot No. 131 conveyed to the appellant was less by 2,506.50 sq meter than the area of the said Final Plot No. 131 as stated in the deed of conveyance and, therefore, the appellant approached the Official Liquidator for refund of the price of 2,506.50 sq meter of the land short conveyed in respect of Final Plot No. 131 i.e. Rs. 62,82,229.18 towards the price of 2,506.50 sq meter of lands short delivered and short conveyed with interest at the rate of 18% per annum on the said amount of Rs. 62,82,229.18 from 10/01/2007 till filing of the said application. By the impugned order, the learned Company Court relying upon the earlier decisions of the Company Court in Company Application No. 21/2004 and Company Application No. 404/2005, has dismissed the said application submitted by the appellant, which was submitted for refund of 2,506.50 sq meter of land short conveyed in respect of Final Plot No. 131 by observing that as the area, which is short conveyed, is less than the total area of 5%, the appellant is not entitled to any refund. Being aggrieved and dissatisfied with the impugned order passed by the learned Company Court dated 18/08/2009 in Company Application No. 43/2008 in Official Liquidator Report No. 101/2006 the appellant has preferred O.J. Appeal No. 102/2009.
3. Shri Ashok L. Shah, learned advocate appearing on behalf of the appellants has vehemently submitted that the learned Company Judge has materially erred in not allowing the judgment summons and not directing the Official Liquidator to return the amount of Rs.79,16,809.21.
3.1. It is submitted by Shri Shah, learned advocate appearing on behalf of the appellants that the learned Company Judge has materially erred in holding that the total area of land short conveyed and short delivered to the appellants was 2226 sq meter, which would be less than 5% of the total area of the land comprising of 57,254 sq meter and, therefore, the same can be ignored and no refund can be allowed in respect of the short delivered and short conveyed area of the lands.
3.2. It is further submitted by Shri Shah, learned advocate appearing on behalf of the appellants that the learned Company Judge ought to have appreciated that the area of the land sought to be conveyed to the appellants consisted of two plots of lands, namely, Final Plot Nos. 130 and 131, which ought to have been separately considered and so considered the area of the land of Final Plot No. 131, which was stated in the deed of conveyance to be admeasuring 12076 sq meter, which was less by atleast 2226 sq meter, which works out to be about 19% of the area of Final Plot No. 131 and refund in respect of the said area ought to have been directed to be paid to the appellants. It is submitted that the learned Judge has materially erred when he combined the area and both the plots of land of Final Plot Nos. 130 and 131 and while arriving at the conclusion that the area of the land short delivered and short conveyed was less than 5%. It is submitted that the learned Company Judge ought to have considered both the plots separately.
3.3. It is further submitted by Shri Shah, learned advocate appearing on behalf of the appellants that the learned Judge has materially erred in relying upon the decision in Company Application No. 427/2004 since the same is in respect of different facts. It is further submitted that even at the relevant time the decision in Company Application No. 427/2004 was pending before the learned Appellate Court by way of O.J. Appeal No. 51/2009. It is further submitted that the learned Company Judge ought to have appreciated that if the said judgment in Company Application No. 427/2004 is relied upon and if two plots of lands are separately considered, the area of the lands short delivered and short conveyed to the appellants would be more than 5% (about 19% of the area of the lands of Final Plot No.
131) and, therefore, the appellants would be entitled to refund. Making the above submissions, it is requested to allow the present appeal.
4. The present Appeal is opposed by the respondents herein. It is submitted on behalf of the contesting respondents that as such the learned Company Judge has not committed error and/or illegality in dismissing Company Application No. 43/2008. It is submitted that as such the properties were sold on 'as is where is and whatever there is basis' and, therefore, while submitting the offer the appellants ought to have inquired into the measurement and relevant records and as such the appellants must have verified the records and/or inquired into the total area and/or measurement of the plots offered for sale. It is submitted that as such the offer made by the appellants was a composite offer to purchase Lot no. 1 for Rs. 13.45 Crores and not per sq meter. It is submitted that as such there was interse bidding before the learned Company Judge while considering the offer in OLR No. 101/2006 and the appellant-M/s Aarsh Infrastructure Ltd. in fact raised their offer to Rs. 14.35 Crores and, therefore, considering the decision of the Hon'ble 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 it is requested to dismiss the present appeal.
4.1. Now so far as the contention on behalf of the appellants that the learned Company Judge ought to have separately considered two plots of lands, namely, Final Plot No. 130 and Final Plot No. 131 while calculating the areas of the lands sought to be conveyed to the appellants and so considered the area of the lands of Final Plot No. 131, which was stated in the deed of conveyance admeasuring 12076 sq meter, which was less by atleast 2226 sq meter, which would be in respect of Final Plot No. 131 worked out to be about 19% of the area of Final Plot No. 131 and, therefore, the appellant would be entitled to refund the amount as claimed is concerned, it is submitted by the learned advocates appearing on behalf of the contesting respondents that tenders have been invited by giving the advertisement with respect of Lot No. I considering both plots of Final Plot No. 130 and Final Plot No. 131 and the respective offerers, inclusive of the appellants submitted their composite offer with respect to Lot No. I i.e. Final Plot Nos. 130 and 131 i.e. did not submit the offer with respect to both the plots separately and, therefore, the learned Company Judge has not committed any error and/or illegality in rejecting the prayer of the appellants to refund any amount with respect to the land short delivered/short conveyed on the ground that the same is less by 5% of the total area of both Final Plot Nos. 130 and 131. Making the above submission, it is requested to dismiss the present appeal.
5. Heard the learned advocates appearing on behalf of the respective parties at length. The present appeal is arising out of the order passed by the learned Company Court in Company Application No. 43/2008 by which the learned Company Court has dismissed the said the application preferred by the appellant claiming refund Rs. 79,16,809.21 consisting of Rs. 62,82,229.18 being the price of the land short delivered and the interest at the rate of 18% per annum amounting to Rs. 10,36,739.25. It is required to noted that the appellants-original applicants claims the aforesaid amount on the ground that the Official Liquidator of the Company in liquidation offered to sell Final Plot No. 130 admeasuring 45,178 sq meter and Final Plot No. 131 admeasuring about 12,076 sq meter totaling to 57,254 sq meter. However, there is shortage of 2226 sq meter for Final Plot No. 131 and, therefore, the appellant is entitled to refund of the price of the said area admeasuring 2226 sq meter at the rate of Rs. 2506.50 sq meter (considering the total price of the land at Rs. 14.35 Crores with respect to 57,254 sq meter). However, relying upon the decisions of the Company Court in Company Application No. 21/2004 and Company Application No. 404/2005, the learned Company Court has held that as the area of the land short delivered is 2226 sq meter it would be less than 5% of the total area i.e. 57,254 sq meter, the same cannot be said to be substantial and, therefore, the appellant-original applicant would not be entitled to any refund. Being aggrieved and dissatisfied with the impugned order passed by the learned Company Court in rejecting the Company Application No. 43/2008 and rejecting the prayer of the appellant-original applicant, the appellant has preferred O.J. Appeal No. 102/2009. In the appeal, it is the case on behalf of the appellant-original applicant that while calculating the area of the lands sought to be conveyed to the appellant, the two plots, namely Final Plot No. 130 and 131 ought to have been considered separately and considering the area of the land of Final Plot No. 131, which was stated in the deed of conveyance was admeasuring 12076 sq meter, which was less by 2226 sq meter, which would in respect to the said Final Plot No. 131 worked out to be 19% of the area of Final Plot No. 131 and refund in respect of the said area ought to have been directed to be paid to the appellant and, therefore, it is the case on behalf of the appellant-original applicant that the learned Company Judge has erred by combining the area of both the plots of the lands, namely, Final Plot No. 130 and Final Plot No. 131 while arriving at the conclusion that the area of the lands short delivered and short conveyed was less than 5%. Therefore, as such the short question, which is posed for consideration of this Court is, Whether while considering 5% of the land short delivered, the learned Company Court has materially erred in combing the area of both the plots of lands, namely Final Plot Nos. 130 and 131? So far as the aforesaid question is concerned, from the public notice/advertisement published in the Gujarat Samachar inviting the offers, the Official Liquidator invited the offers of Lot No. I consisting of Industrial plot i.e. mill land situated at T.P. Scheme No. 8 Final Plot No. 130 and Final Plot No. 131 approximately admeasuring 57,254 sq meter. As per the decision of the learned Company Court in Company Application Nos. 21/2004 and 404/2005 if the area of the land is short delivered /short conveyed is less then 5% of the total area, the same cannot be said to be substantial and, therefore, the purchaser is not entitled to any relief. However, the grievance, which is voiced in the present appeal, is that while considering 5% of the area of the land short delivered, the learned Company Court ought to have considered both the plots differently and if Final Plot No. 131 would have been considered separately, in that case, considering total area of Final Plot No. 131 as 12076 sq meter there is short delivery of 2226 sq meter of land from the land bearing Survey No. Final Plot No. 131, it would work out to 19% of the area of Final Plot No. 131, which would be more than 5% and, therefore, the appellant-original applicant-auction purchaser, would be entitled to refund. However, considering the fact that it was composite offer with respect to both the plots i.e. Final Plot Nos. 130 and 131 total area approximately 57,254.19 sq meter and the area short delivered/short conveyed is 2226 sq meter it would be less than 5% and, therefore, the learned Company Court as such has not committed any error in rejecting the prayer of the appellant-original applicant-auction purchaser to refund any amount with respect to the lands short delivery/short conveyed.
5.1. Even otherwise, considering the fact that in the advertisement given by the Official Liquidator inviting the offers with respect to Lot No. I the area of the lands/plot mentioned approximately 57,254 sq meter and as per the terms and conditions of tender, the sale was on as is where is and whatever there is basis and as per condition no. 20 of the said tender document, it was for the purchaser to satisfy himself about the right and title of the property 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 property after the Hon ble High Court confirms the sale. Even as per condition no. 21 the purchaser shall be deemed to have purchased the properties after complete examination and inspection of it and shall not be entitled to make any requisition and/or raise any objection as to the title and/or consideration of the property and/or any part thereof and, therefore, as such, it was not open for the purchaser to make any grievance with respect to the short delivery after the sale is confirmed and the conveyance deed has been executed.
5.2. As observed by the Hon ble Supreme Court in the case of 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/assets of a 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 by the Hon ble Supreme Court in the said decision 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 by the Hon ble Supreme Court in the said decision 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. Considering the aforesaid as such the appellant-original applicant-auction purchaser could not have claimed any refund on the ground of the alleged short delivered of 2226 sq meter of land. Therefore, as such, the learned Company Court has not committed any error and/or illegality in dismissing the Company Application No. 43/2008 and refusing to pass any order to refund any amount on the ground of the alleged short delivery of 2226 sq meter of land.
6. Now so far as the submission made by Shri Shah, learned advocate appearing on behalf of the appellants that the learned Company Judge has materially erred in relying upon the earlier decision in Company Application No. 427/2004 as against the said decision, O.J. Appeal No. 51/2009 was pending before the learned appellate Court is concerned, it is required to be noted that subsequently O.J. Appeal No. 51/2009 is also dismissed by the Division Bench. Under the circumstances, on the aforesaid ground, the impugned order is not required to be quashed and set aside.
7. Under the circumstances and in view of the above and for the reasons stated hereinabove, the present appeal fails and the same deserves to be dismissed and is accordingly dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.
(M.R.SHAH, J.) (S.H.VORA, J.) siji Page 13 of 13