Gujarat High Court
Kotak Mahindra Bank Ltd vs Official Liquidator Of M/S Kanoria ... on 25 March, 2022
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/COMA/26/2017 ORDER DATED: 25/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/COMPANY APPLICATION NO. 26 of 2017
In R/COMPANY PETITION NO. 156 of 2002
With
R/OFFICIAL LIQUDATOR REPORT NO. 103 of 2021
In
OFFICIAL LIQUDATOR REPORT NO. 72 of 2020
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2021
In R/OFFICIAL LIQUDATOR REPORT NO. 103 of 2021
In
OFFICIAL LIQUDATOR REPORT NO. 72 of 2020
With
R/COMPANY APPLICATION NO. 22 of 2021
In
COMPANY PETITION NO. 156 of 2002
With
R/COMPANY APPLICATION NO. 35 of 2021
In
OFFICIAL LIQUDATOR REPORT NO. 103 of 2021
===============================================================
KOTAK MAHINDRA BANK LTD.
Versus
OFFICIAL LIQUIDATOR OF M/S KANORIA DYECHEM LTD. (IN
LIQUIDATION)
===============================================================
Appearance:
MS SANGEETA PAHWA FOR THAKKAR AND PAHWA ADVOCATES(1357)
for the Applicant(s) No. 1
MR CHINMAY M GANDHI(3979) for the Respondent(s) No. 2
MR MB GANDHI(326) for the Respondent(s) No. 2
MR SAURABH M PATEL(5019) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1
OFFICIAL LIQUIDATOR for the Respondent(s) No. 1
================================================================
CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 25/03/2022
ORAL ORDER
Heard learned advocate Ms.Sangeeta Pahwa with learned advocate Ms.Shruti Dhruve for Thakkar and Pahwa Advocates, learned advocate Mr.Chinmay Gandhi, learned advocate Mr.Saurabh M. Patel, Page 1 of 20 Downloaded on : Sat Dec 24 13:35:04 IST 2022 C/COMA/26/2017 ORDER DATED: 25/03/2022 learned advocate Mr.A.S.Asthavadi, learned advocate Mr.Prabhakar Upadhyay, learned advocate Mr.Hemang Shah and learned advocate Mr.Jaimin A. Gandhi for the respective parties.
1.1. The Official Liquidator Report No.103 of 2021 is filed in Official Liquidator Report No.72 of 2020 in Company Petition No.156 of 2002 by the Official Liquidator with a prayer to confirm the sale conducted pursuant to the order dated 25th February, 2021 passed in Official Liquidator Report No.72 of 2020 of the assets of M/s.Kanoria Dye Chem Limited-Company (in liquidation) in view of the highest bid of Rs.6,95,00,000/- received from M/s.Khandwala Finestock Private Limited.
1.2. This Court vide order dated 25th February, 2021 passed in Official Liquidator Report No.72 of 2020 directed the Official Liquidator to fix up set price and earnest money deposit on the basis of "estimated fair market value" and approved the schedule for the sale of the assets proposed in the said report permitting the Official Liquidator to invite offers for sale of the assets and properties of the Company (in liquidation) to carry out e-auction through M/s.Railtel Corporation of India Limited for sale of land admeasuring 11,703 (approximately) along with civil construction lying at plot Nos.6101/1, 6101/A and 6101/2 at Ankleshwar GIDC situated at Page 2 of 20 Downloaded on : Sat Dec 24 13:35:04 IST 2022 C/COMA/26/2017 ORDER DATED: 25/03/2022 Revenue Survey Nos.168/P, 134/P, 137/P, 167/P and 140/P at village:Sarangpore, Ankleshwar, District:Bharuch.
1.3. It appears that in compliance of the aforesaid order, the Official Liquidator by letter dated 26th February, 2021, requested M/s.Navnitlal and Company Advertising Agency to publish the sale proclamation in "Gujarat Samachar" Gujarat daily in all Gujarat edition and "Times of India" in English daily in Ahmedabad on 2nd March, 2021. Accordingly, the advertisement was published in the aforesaid newspapers for sale of the aforesaid assets.
1.4. The Official Liquidator also requested the Registrar (Infrastructure & I.T.) of this Court to webcast the sale proclamation on the website of the High Court of Gujarat as well as requested the Deputy Director of Ministry of Corporate Affairs to webcast the sale proclamation on the website of Ministry of Corporate Affairs for wider publication of sale proclamation.
1.5. The Official Liquidator by office order dated 16th March, 2021 deputed official to provide public inspection to intending purchaser on 18th March, 2021 and during the inspection, 15 intending purchasers had taken the inspection of the assets and properties of the Company (in liquidation).
Page 3 of 20 Downloaded on : Sat Dec 24 13:35:04 IST 2022C/COMA/26/2017 ORDER DATED: 25/03/2022 1.6. The Official Liquidator received five offers from intending purchasers for purchase of the assets of the Company (in liquidation) in sealed covers up to 04:00 PM on 30th March, 2021 as a cut-off date of submission of tender was fixed by this Court as 30th March, 2021.
1.7. The Official Liquidator received an Email from M/s.Survival Technologies Private Limited informing that an EMD of Rs.60,20,000/- was deposited on 30th March, 2021, however, as the said amount was received by the Official Liquidator at 07:00 PM after cut-off time of 04:00 PM, on 30th March, 2021, the Official Liquidator rejected the request of the said bidder to participate in the auction. M/s.Survival Technologies Private Limited preferred Company Application No.12 of 2021 in Official Liquidator Report No.103 of 2021 for permission to participate in e-auction. This Court by order dated 05.04.2021, directed the Official Liquidator to allow M/s.Survival Technologies to participate in e-auction along with other bidders and revised the date of e- auction from 05.04.2021 to 08.04.2021.
1.8. Accordingly, the e-auction was conducted by M/s.Railtel Corporation of India Limited on 08.04.2022 at 03:30 PM onwards as per revised schedule up to 04:30 PM amongst 6 intending purchasers. After completion of e-auction on Page 4 of 20 Downloaded on : Sat Dec 24 13:35:04 IST 2022 C/COMA/26/2017 ORDER DATED: 25/03/2022 08.04.2021, M/s.Railtel Corporation of India Limited forwarded completed auction sheet by Email to the Official Liquidator. As per the completed auction sheet M/s.Khandwala Finestock Private Limited emerged as the highest bidder by making bid or Rs.6,95,00,000/-.
1.9. The Official Liquidator at about 08:32 PM on 08.04.2021 received an Email from M/s.Survival Technologies Private Limited informing that due to technical snag, online bidding site was interrupted before 10 minutes of close of bid and due to such snag, it could not punch the bid in time and requested for another opportunity and fair chance to appear in auction. The Official Liquidator forwarded the said Email to M/s. Railtel Corporation of India Limited to seek comments and in response thereof, by Email dated 09.04.2021, the Official Liquidator was informed by M/s.Railtel Corporation of India Limited that during bidding process, no technical issues happened and also informed that M/s. Survival Technologies Private Limited made various bids during auction process and no such type of complaint from other bidders was received by it.
1.10. The Official Liquidator filed a further report dated 5th July, 2021 in Official Liquidator Report No.103 of 2021 placing on record further details about the e-auction proceedings conducted on 08.04.2021 by M/s.Railtel Corporation of Page 5 of 20 Downloaded on : Sat Dec 24 13:35:04 IST 2022 C/COMA/26/2017 ORDER DATED: 25/03/2022 India Limited. The Official Liquidator during the e-auction proceedings, requested M/s.Railtel Corporation of India Limited, E-auction Agency, to extend the time to raise/revise offer by intending purchaser so as to fetch maximum price of assets of the Company (in liquidation) for two times and accordingly, the said agency extended the time, however, up to cut-off time, no one raised / revised bid over Rs.6,95,00,000/- which is offered by Ms.Khandwala Finestock Private Limited and accordingly, the e-auction process was concluded by the said agency.
1.11. It was submitted by the Official Liquidator that during the pendency of Official Liquidator Report No.103 of 2021, M/s.Chokhawala Distributors by Email dated 15.04.2021 and M/s.Nakoda Traders by Email dated 03.05.2021 requested the Official Liquidator to refund the EMD along with other unsuccessful bidders. The Official Liquidator has also received the Emails dated 17.06.2021, 30.06.2021 and 01.07.2021 from M/s.Prudence Lifecare Private Limited, M/s.Shree Ganesh Remedies Limited and M/s.Survival Technologies Private Limited respectively to raise/increase their bids. The Official Liquidator therefore in further report prayed for permission to refund the EMD of the two intending purchasers as requested by them and further permission to carry out e-auction amongst intending purchasers afresh.
Page 6 of 20 Downloaded on : Sat Dec 24 13:35:04 IST 2022C/COMA/26/2017 ORDER DATED: 25/03/2022 1.12. The Official Liquidator by further report dated 5th January, 2022 submitted that during pendency of the Official Liquidator Report No.103 of 2021, M/s.Chokhawala Distributors filed Company Application No.30 of 2021 inter-alia praying to direct the Official Liquidator to refund the EMD since it was no more interested to further participate in auction and during the hearing, the Official Liquidator was orally directed by this Court to refund the EMD. In compliance of the said oral order, the Official Liquidator has refunded the EMD to M/s. Chokhawala Distributors. The Official Liquidator has also refunded the EMD to M/s.Nakoda Traders and M/s.Prudence Lifecare Private Limited as they were no more interested to further participate in auction proceedings as per the oral direction of this Court.
1.13. M/s.Survival Technologies Private Limited has filed Company Application No.35 of 2021 with a prayer to hold auction in physical form and thereby, permit it to submit higher offer so as to purchase Lot No.1 of the Company (in liquidation). It has also filed the further affidavits on 16th December, 2021 and 5th February, 2022 to submit that M/s.Survival Technologies Private Limited is intending to raise the offer by more than 10% to 15% and it was further submitted that on 08.04.2021, when e-auction was held, there was a technical snag during the e- auction proceedings.
Page 7 of 20 Downloaded on : Sat Dec 24 13:35:04 IST 2022C/COMA/26/2017 ORDER DATED: 25/03/2022 1.14. M/s.Khandwala Finestock Private Limited who was the highest bidder offering Rs.6,95,00,0000/- during the e-auction has preferred OJ Civil Application No.1 of 2021 in Official Liquidator Report No.103 of 2021 with a prayer to permit to join as necessary party in the pending proceedings. Considering the fact that M/s.Khandwala Finestock Private Limited has offered the highest bid during the e-auction, they are necessary and proper party and accordingly, the OJCA No.1 of 2021 in Official Liquidator Report No.103 of 2021 is allowed by permitting the M/s.Khandwala Finestock Private Limited to be a party respondent in Official Liquidator Report No.103 of 2021.
1.15. The Company Application No.22 of 2021 is filed by Shri Ganesh Remedies Private Limited with a prayer to permit it to raise the offer up to Rs.6,97,00,000/- in connection with the auction of the properties of the Company (in liquidation) and to confirm the sale in its favour as it is ready and willing to offer more price than that of the M/s.Khandwala Finestock Private Limited who offered Rs.6,95,00,000/- during e-auction proceedings.
1.16. Company Application No.26 of 2017 is filed by Kotak Mahindra Bank Limited, secured creditor of the Company (in liquidation), to direct the Official Liquidator to consider and Page 8 of 20 Downloaded on : Sat Dec 24 13:35:04 IST 2022 C/COMA/26/2017 ORDER DATED: 25/03/2022 verify its claim under Section 529-A of the Companies Act, 1956 and to make appropriate disbursement to it to satisfy such claim.
1.17. By order dated 12.09.2018, Gujarat Industrial Development Corporation was permitted to be added as party respondent No.2 as per the request of the learned advocate of the Kotak Mahindra Bank Limited. This Court passed the following order on 06.12.2021 in Company Application No.26 of 2017 :
"Heard learned advocate Ms. Sangeeta Pahwa for Thakkar and Pahwa Advocates for the applicant, learned advocate Mr. Saurabh Patel for the Official Liquidator of M/s. Kanoria Dyechem Ltd. [In Liquidation] and learned advocate Mr. Chinmay Gandhi for respondent No.2.
Learned advocate Mr. Chinmay Gnadhi prays for time to place on record the claim made by the GIDC before the Official Liquidator which, according to Mr. Gandhi, comes to around Rs. 3,90,29,150/- on the date of filing of the affidavit in the year 2020.
According to learned advocate Mr. Gandhi, GIDC has a prior charge over the property of the Company [In Liquidation] over and above the workers as well as the secured creditors being under the head "Crown's Debt".
Stand over to 14th December, 2021. To be heard with Company Application No. 35 of 2021 and Official Liquidator Report No. 103 of 2021 and Company Application No. 22 of 2021."
1.18. Accordingly, this application was also heard along with Official Liquidator Report No.103 of 2021 along with Company Applications preferred therein.
2.1. Learned advocate Mr.Jaimin Gandhi appearing for M/s.Khandwala Finestock Private Limited, Page 9 of 20 Downloaded on : Sat Dec 24 13:35:04 IST 2022 C/COMA/26/2017 ORDER DATED: 25/03/2022 newly joined respondent in Official Liquidator Report No.103 of 2021, submitted that once there is highest bidder in the auction sale conducted by the Official Liquidator, the prayer made by the other bidders for re-auction is not permissible under the provisions of the Companies Act, 1956.
2.2. It was pointed out that one of the bidder namely, M/s.Shree Ganesh Remedies Limited is only ready to offer Rs.2,00,000/- more whereas, M/s.Survival Technologies Private Limited is ready to offer only 10% to 15% more than what is offered by the highest bidder.
2.3. It was further pointed out that there is no material irregularities in the auction proceedings in asmuch as objection raised by M/s.Survival Technologies Private Limited with regard to technical snag during the auction proceedings is also not correct in view of the further Official Liquidator Report.
2.4. In support of his submissions, learned advocate Mr.Gandhi relied upon the decision of Hon'ble the Supreme Court in case of IFCI Limited Versus Vishnu Kant Gupta1 to submit that Hon'ble the Supreme Court relied upon the decision in case of FCS Software Solutions Limited versus La Medical Devices Limited2 and in 1 (2008) 145 COMP CASE 1 (SC) 2 (2008) 144 COMP CASE 391 (SC) Page 10 of 20 Downloaded on : Sat Dec 24 13:35:04 IST 2022 C/COMA/26/2017 ORDER DATED: 25/03/2022 the facts of the said case, the sale was confirmed in favour of the highest bidder with a condition of payment of additional Rs.3 Crores in view of the delayed payment.
2.5. Reliance was placed on the decision of the Kerala High Court in case of Santhosh Kumar Versus Official Liquidator3 wherein, Hon'ble the Supreme Court confirmed the judgment of the Company Judge to the effect that belated offer made by any party cannot be accepted because such practice would make other persons, who participated in tender, prejudiced and would give room for other persons to approach Company Court for having further offers which would lead to an endless process and the person who had actually participated in tender proceedings cannot be permitted to make any higher offer after completion of all formalities of tender proceedings and after sealed tenders were opened, more particularly, when the offer made by such person when compared with the highest offer received, is only a marginal increase.
2.6. Learned advocate Mr.Gandhi referred to the decision of the Kerala High Court in the case of Sithara Associates versus Oshon Treads Limited (in liquidation)4 wherein the Kerala High Court held that in absence of allegation of fraud and other vitiating circumstances, Court should not 3 (2011) 162 COMP CASE 143 (Kerala) 4 (2015) 55 taxmann.com 239 (Kerala) Page 11 of 20 Downloaded on : Sat Dec 24 13:35:04 IST 2022 C/COMA/26/2017 ORDER DATED: 25/03/2022 have ordered sale of property for forth time and should not have taken notice of offer made after third sale by person who did not take part in earlier auctions and who appeared to be a fortune seeker. It was further held that every attempt should be made by the Court to ensure sale of property for an adequate price but it shall not be at the expense of the credibility of auction sale and the price offered by the highest bidder being adequate sale was confirmed and fresh auction of assets was set aside.
2.7. It was submitted that sale by Official Liquidator which is subject to confirmation of Court, is only a safeguard against irregularities or fraud in connection with the sale as held by the High Court of Kerala in case of Dr.K.S.Thangal versus State of Kerala5. It was therefore submitted that in the facts of the case when there is no allegation with regard to any fraud or irregularities and when the highest bidder offered Rs.6,95,00,000/- for the assets of the Company (in liquidation), the Official Liquidator should be directed to execute the sale deed in favour of the applicant by confirming the sale.
2.8. Learned advocate Mr.Gandhi also relied upon the decision of the Apex Court in case Shradhha Aeromatics Private Limited Versus Official Liquidator for Global Arya Industries Limited and 5 (1968) 38 COMP CASE 5 (Kerala) Page 12 of 20 Downloaded on : Sat Dec 24 13:35:04 IST 2022 C/COMA/26/2017 ORDER DATED: 25/03/2022 Others6 to submit that the Hon'ble Supreme Court in the peculiar facts of the said case only made a departure from the rule at the offer made by any bidder or after acceptance of the highest bid/offer given pursuant to an advertisement issued or an auction held by a public authority should not be accepted in view of the fact that the Official Liquidator would get additional amount which would be in interest of the creditor. It was submitted that however, in the facts of the case, there is no substantial additional amount which is offered by any of the bidders. Reliance was also placed on the decision of the Supreme Court in case of Vedica Procon Private Limited (S) versus Balleshwar Greens Private Limited and others7 and it was submitted that the Hon'ble Supreme Court has held that in absence of fraud or irregularities in the auction, highest bid is required to be accepted and where ever higher offer is received in respect of the sale of the property of a Company (in liquidation), the Court would not be justified in re-opening the concluded proceedings.
3. Per contra, learned advocate Mr.Hemang Shah appearing for M/s.Survival Technologies Private Limited who has preferred Company Application No.35 of 2021 as well as learned advocate Mr.Prabhakar Upadhyay appearing for M/s.Shree 6 (2011) 6 Supreme Court Cases 207 7 (2015) 0 AIJEL - SC 56918 Page 13 of 20 Downloaded on : Sat Dec 24 13:35:04 IST 2022 C/COMA/26/2017 ORDER DATED: 25/03/2022 Ganesh Remedies Limited who has preferred Company Application No.22 of 2021 submitted that both the applicants are ready and willing to offer more price, more particularly, in view of the objection raised by M/s.Survival Technologies Private Limited on 08.04.2021 with regard to technical snag during the auction proceedings which did not permit it to offer higher price. It was therefore submitted that the applicants are ready and willing to raise their offer and in alternative there should be re-auction of the property by holding auction in physical mode as during the auction proceedings held on 08.04.2021, the second wave of the pandemic Covid-19 was at the peak. It was further submitted that the Official Liquidator may therefore obtain the fresh valuation report and re-auction the properties of the Company (in liquidation) so as to get the best price for the benefit of the secured creditors.
4.1. Learned advocate Mr.Saurabh Patel for the Official Liquidator submitted that as per the Official Liquidator Report, there was no technical snag and twice the time was also extended by the auction agency to submit higher offer than the offer given by M/s.Khandwala Finestock Private Limited and therefore it being highest offer of Rs.6,95,00,000/-, the same may be confirmed. It was further submitted that it is true that there was pandemic Covid-19 situation Page 14 of 20 Downloaded on : Sat Dec 24 13:35:04 IST 2022 C/COMA/26/2017 ORDER DATED: 25/03/2022 in the month of April, 2021 and the auction was conducted by e-mode. It was submitted that as more than six months have passed since the valuation report was obtained by the Official Liquidator wherein the registered valuer has valued the property at Rs.6,10,00,000/- as realisable value and asset sale committee of the Company (in liquidation) fixed up set price of Rs.6,02,00,000/- and in such circumstances, the auction sale was held as directed by this Court vide order dated 25th February, 2021.
4.2. It was pointed out by learned advocate Mr.Saurabh Patel that the Official Liquidator has returned the EMD to M/s.Chokhawala Distributors, M/s.Nakoda Traders, M/s. M/s.Prudence Lifecare Private Limited. It was therefore submitted that now M/s. Shree Ganesh Remedies Limited and M/s.Survival Technologies Private Limited are only insisting for re-auction of the properties for which M/s.Khandwala Finestock Private Limited has given the offer of Rs.6,95,00,000/- during the auction proceeding.
4.3. Learned advocate Mr.Saurabh Patel relied upon the averments made in the Official Liquidator Report dated 24th April, 2019 in Company Application No.26 of 2017 to submit that there are approximately 3.50 Crores lying in account of the Company (in liquidation) which was realized out of the sale of the other properties Page 15 of 20 Downloaded on : Sat Dec 24 13:35:04 IST 2022 C/COMA/26/2017 ORDER DATED: 25/03/2022 of the Company (in liquidation). It was further submitted that letter dated 27th March, 2019 was received from M/s. C.P.Jain and Company, Chartered Accountants along with verification report was sent to all secured creditors. However, till date, no objection is received from any of the secured creditors except the GIDC who has made a claim of Rs.3.90 Crores by filing an affidavit in this proceedings.
5. Learned advocate Ms.Sangeeta Pahwa for M/s.Kotak Mahindra Bank Limited which has preferred Company Application No.26 of 2017 submitted that the Official Liquidator may be directed to consider and verify the claim of the applicant under Section 529A of the Companies Act, 1956 considering the relevant date and to make disbursement out of the funds available with the Official Liquidator.
6. Learned advocate Mr.Chinmay Gandhi who appears for GIDC in Company Application No.26 of 2017 submitted that GIDC is a secured creditor having first charge over the property to the tune of Rs.3.90 Crores which is required to be satisfied in priority than any other dues as narrated in the affidavit-in-reply on behalf of the opponent No.2-GIDC.
7. After hearing the learned advocates for the respective parties, it appears that e-auction sale conducted on 8th April, 2021 has resulted Page 16 of 20 Downloaded on : Sat Dec 24 13:35:04 IST 2022 C/COMA/26/2017 ORDER DATED: 25/03/2022 into receipt of the highest offer from M/s.Khandwala Finestock Private Limited, however, M/s.Survival Technologies Private Limited on the same day raised objection before the Official Liquidator with regard to the technical snag during the auction proceedings which prevented it to give higher offer.
8. It appears that auction proceedings conducted by the auction agency M/s.Railtel Corporation of India Limited was not without any objection.
9. The Official Liquidator has tried to justify in its Official Liquidator Reports that there was no technical snag and time was extended twice at the request of the Official Liquidator by the auction agency to submit the offer. However, there are no details available on record as to why the time was required to be extended by the auction agency on 08.04.2021. It is also not in dispute that in April, 2021, the second wave of Covid-19 was peaking up and e-auction proceedings was conduced during such time.
10. In view of the above facts, when the dispute is raised by one of the bidders who was also permitted by this Court to participate in auction proceedings, it cannot be said that the auction held in favour of M/s.Khandwala Finestock Private Limited is culminated into an auction proceedings free from any allegation or objection.
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11. With regard to the case law relied upon by learned advocate Mr.Gandhi in support of his submissions that once the highest auction proceedings has resulted in favour of M/s.Khandwala Finestock Private Limited being highest bidder should not be disturbed, in such circumstances, it would be necessary to refer to the observation of Hon'ble the Supreme Court in case of Shradhha Aeromatics Private Limited (Supra) which reads as under :
"15. We have considered the respective submissions and carefully perused the record. Ordinarily, the Court is loathe to accept the offer made by any bidder or a third party after acceptance of the highest bid/offer given pursuant to an advertisement issued or an auction held by a public authority. However, in the peculiar facts of this case, we are inclined to make a departure from this rule. Admittedly, total area of the land advertised by the committee is 12,500 square meters and the same is situated in an important district of Gujarat. It is also not in dispute that the area has been substantially developed in last four years. The initial offer made by M/s. Patel Agro Diesel Ltd. was of Rs.83 lakhs and the highest revised offer given before the learned Company Judge was of Rs.127 lakhs. After acceptance of the revised offer by the learned Company Judge, the appellant stepped in and made an offer to pay Rs.141 lakhs. The first application filed by it was dismissed but the second application was allowed and the increased offer of Rs.151 lakhs was accepted by the learned Company Judge vide order dated 27.11.2007. That order did not find favour with the Division Bench, which restored the first order passed by the learned Company Judge. If the order of the Division Bench is sustained, the creditors of the Company are bound to suffer because the amount available for repayment of the dues of the creditors would be a paltry sum of Rs.127 lakhs. As against this, if the offer made by the intervenor-cum- promoter is accepted, the Official Liquidator will Page 18 of 20 Downloaded on : Sat Dec 24 13:35:04 IST 2022 C/COMA/26/2017 ORDER DATED: 25/03/2022 get an additional amount of more than Rs.4.25 crores. The availability of such huge amount will certainly be in the interest of the creditors including GSIIC. Therefore, it is not possible to approve the order passed by the Division Bench of the High Court. In a somewhat similar case - FCS Software Solutions Ltd. v. La Medical Devices Limited and others(supra), this Court approved the acceptance of revised bid of Rs.3.5 Crores given by the appellant with a direction to compensate the earlier highest bidder by payment of the specified amount."
12. Therefore, in the peculiar facts of this case, I am not inclined to confirm the sale in favour of the M/s.Khandwala Finestock Private Limited and the Official Liquidator is therefore directed to auction the properties of the Company (in liquidation) by obtaining a fresh valuation report and thereafter, apply again before this Court to fix the schedule of auction in physical mode or as may be directed by this Court. The Official Liquidator is also permitted to make the payment of the advertising agency M/s.Navnitlal and Company as per the bill raised by it.
13. With regard to the Company Application No.26 of 2017 is concerned, the Official Liquidator is directed to consider and verify the claim made by M/s.Kotak Mahindra Bank by forwarding it to a Chartered Accountant from the penal maintained by the office of the Official Liquidator along with the objections raised by GIDC so as to get a verification report from the Chartered Accountant within a period of four weeks from the date of receipt of this order.
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14. The Chartered Accountant to be appointed by the Official Liquidator may also be requested to call for the details from the Kotak Mahindra Bank Limited and GIDC who are also directed to give co-operation to the Chartered Accountant for verification of the respective claims. The Official Liquidator after obtaining the verification report from the Chartered Accountant is permitted to file fresh Official Liquidator Report for disbursement of the amount with appropriate ratio of disbursement from the funds available in the account of the Company (in liquidation) amongst secured creditors.
15. With the aforesaid observation and direction, all these Company Applications and Official Liquidator Reports are disposed of.
(BHARGAV D. KARIA, J) PALAK Page 20 of 20 Downloaded on : Sat Dec 24 13:35:04 IST 2022