Gujarat High Court
Bhupendrasinh Joravarsinh Rathod vs Official Liquidator Of M/S Mandvi ... on 13 March, 2014
Author: K.J.Thaker
Bench: Vijay Manohar Sahai, K.J.Thaker
O/OJA/65/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
O.J.APPEAL NO. 65 of 2010
With
CIVIL APPLICATION NO. 452 of 2010
In
O.J.APPEAL NO. 65 of 2010
With
CIVIL APPLICATION NO. 453 of 2010
In
O.J.APPEAL NO. 65 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE K.J.THAKER
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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 ?
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BHUPENDRASINH JORAVARSINH RATHOD....Appellant(s)
Versus
OFFICIAL LIQUIDATOR OF M/S MANDVI SPINNING MILLS LIMITED &
2....Opponent(s)
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Appearance:
Page 1 of 7
O/OJA/65/2010 JUDGMENT
MR PERCY KAVINA SENIOR ADVOCATE with MR AMAR D MITHANI,
ADVOCATE for the Appellant(s) No. 1
MR HS MUNSHAW, ADVOCATE for the Opponent(s) No. 2
MR JS YADAV, ADVOCATE for the Opponent(s) No. 1
RULE SERVED for the Opponent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE VIJAY MANOHAR
SAHAI
and
HONOURABLE MR.JUSTICE K.J.THAKER
Date : 13/03/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE K.J.THAKER)
1. This Court, on 1.10.2010, has passed the following order:
"1. Heard Senior Advocate, Mr. N.D> Nanavati with Mr. Amar D. Mithani, for the applicant and learned advocate, Mr. Mrugesh Jani, for the Official Liquidator.
2. By way of ad-interim relief, the auction proceedings ordered by learned Company Judge shall not proceed beyond reopening of tenders and no tender shall be accepted, till further orders. The sale pursuant to the auction will not be confirmed in favour of any party.Page 2 of 7
O/OJA/65/2010 JUDGMENT
3. Notice as to interim relief,
returnable on 23.11.2010."
2. The facts of the present appeal are that the GSFC by way of public advertisement dated 21.12.2006 published in "Gujarat Samachar" Daily Newspaper called for the offers for sale of properties of M/s. Mandvi Spinning Mills Limited being land bearing Survey no. 368 paiki of Muska.
3. As such, 15 bidders submitted their tenders and wherein, at the end of the tender/bidding process on 10.1.2007, finally the amount was accepted from the appellant herein.
4. Subsequent to the acceptance of appellant's tender, various communications had followed with the GSFC and the GSFC all throughout adopted the stand that it would issue the sale letter as soon as, the issue of premium is determined by the Collector, Kutch at Bhuj. As such, at no point of time, subsequent to the acceptance of offer, the GSFC has not denied, having not contracted with the appellant herein.
5. In the circumstances, the appellant herein has preferred a suit being Special Civil Suit No. 30 of 2010 before the Civil Court, Bhuj, wherein, the GSFC is party - respondent and in the suit it is mainly prayed for the Specific Performance of the Contract. The said suit is pending even Page 3 of 7 O/OJA/65/2010 JUDGMENT today.
6. The appellant was the highest bider and was all throughout ready and was willing to pay the remaining consideration of Rs. 3,20,70,000/-.The GSFC retained the amount of the appellant for years together.
7. In addition thereto, the GSFC approached this Hon'ble Court by way of filing Company Application No. 185 of 2010 in Company Petition No. 72 of 1984, inter alia, mainly praying that in the interest of justice the Official Liquidator, as the convener of Sale Committee be appointed and directed to sale the freehold plot of land bearing Revenue Survey No. 368 and its superstructure.
8. In Company Application No. 185 of 2010, which appears to have been presented in the Registry of this Court on 16.6.2010, the GSFC did not disclose the fact about the prior pendency of a Civil Suit with regard to the same property in question.
9. On one hand, the GSFC tried to show that the subject matter land is a new tenure land(land with restrictive tenure, for which premium is payable), while before the ld. Company Court GSFC contended that it is a freehold land.
10. In Company Application No. 265/2010 vide Page 4 of 7 O/OJA/65/2010 JUDGMENT order dated 17.9.2010, the Company Court has issued notice, which was made returnable on 22.9.2010. However, as by the said order dated 17.9.2010, the further proceedings of sale of the subject matter property was not stayed, as such, the appellant herein has preferred the OJ Appeal No. 60 of 2010, which came to be decided by an order dated 22.9.2010, inter alia, mainly holding that the order dated 17.9.2010 passed by the Company Court is not conclusive. On enquiry, the appellant has come to know that the sale of the subject matter property has not taken place on 24.9.2010 and was to take place on 1.10.2010 in pursuance to Official Liquidator's Report No. 102/2010 in OLR No. 82/2010. The appellant is not in possession of or aware of the contents of such OL Reports. As such, till date, the sale of the subject matter property being survey no. 368 paiki of Maska, has not approved by the Company Court and thereafter, further hearing took place in the said Company Application No. 265/2010, and pursuant thereto, the Company Court has passed the order dated 23.9.2010 rejecting the said application, against which, the present appeal is preferred by the appellant.
11. It goes without saying that the facts revealed that may be under good faith or bad faith, we are not going into it but the authorities concerned wanted that the land for which the suit was already pending, be sold as Page 5 of 7 O/OJA/65/2010 JUDGMENT free hold land and an advertisement was also given to that effect and having come to know that such an act was being undertaken before the Company Court, Mr.Bhupendra Joravarsinh Rathod prayed that the order which has been passed without hearing him, be recalled and he may heard in the matter, which was rejected.
12. On going through the facts, it appears that the Civil Suit being Special Civil Suit No. 30 of 2010 is pending and is live before the Civil Court, Bhuj against the GSFC and Collector, for specific performance of the contract.
13. Therefore, it would be in the fitness of things to quash and set aside the order dated 23.9.2010 passed by the Company Court in Company Application No. 265/2010, with a direction to the Company Judge to re-hear the parties at length so that the lis can be decided in presence of all the pleadings which may be brought on record, as it is submitted by Mr. Kavina learned Senior Advocate that certain genuine facts have been not disclosed before the Company Court when the order dated 14.7.2010 was passed.
14. In the result, this appeal is allowed. The present appellant is ordered to be joined as party respondent in Company Application No. 185/2010. The impugned order dated 23.9.2010 passed in Company Application No. 265/2010 and Page 6 of 7 O/OJA/65/2010 JUDGMENT the order dated 14.7.2010 passed in Company Application No. 185 of 2010 are quashed and set aside. The learned Company Judge is requested to re-hear the Company Application No. 185/2010 as it relates to the land in question preferably within a period of 12 weeks from the date of receipt of the order of this Court.
15. Civil Application No. 452/2010 is disposed of as we have continued the interim relief. Civil Application No. 453 of 2010 which relates to permitting the amendment will be moved before the learned Company Judge for additional evidence, is also disposed of without delving into the merits of the said application.
(V.M.SAHAI, J.) (K.J.THAKER, J) mandora Page 7 of 7