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2(b). The said demand drafts were stated to have been passed on by the second respondent in auction sale conducted by this Court in respect of the properties of M/s.SIV Industries Limited under liquidation. The second respondent was stated to have participated in the auction and he was the second highest bidder. When the highest bidder failed to pay the amount, there was an order for fresh auction and that was challenged by the second respondent in O.S.A.No.383 of 2007. The Division Bench of this Court directed the second respondent to deposit a sum of Rs.23.60 crores within a period of 15 days and the balance sale consideration of Rs.212.24 crores within 60 days from the date of deposit of the above said amount of Rs.23.60 crores, which is the E.M.D. amount calculated at the rate of 10% of the sale consideration. It is stated that the second respondent deposited the said demand drafts issued by the applicant company to the extent of Rs.23.60 crores for purchasing the properties of M/s.SIV Industries Limited. Since the balance amount was not paid by the second respondent, there was a direction by the Division Bench, forfeiting the said sum of Rs.23.60 crores and the same has gone to the account of the Official Liquidator.

10. It is seen that the highest bidder Jalal Nazaar, who has given an offer of Rs.236 crores to purchase the properties of the company in liquidation and paid Rs.10 crores as E.M.D. and he has not paid the balance amount. It was in those circumstances, the petitions in Application Nos.2941 and 2942 of 2007 were disposed of by order dated 23.11.2007 cancelling the sale confirmed in favour of the said Jalal Nazaar, who has filed appeals in O.S.A.Nos.381 and 382 of 2007. The second respondent who was the second highest bidder has also filed an appeal in O.S.A.No.383 of 2007 on the ground that when the sale in favour of the highest bidder was cancelled, as the second highest bidder, his bid should have been accepted. When all the appeals were pending, the present applicant has filed M.P.No.2 of 2008 in O.S.A.No.383 of 2007 to grant leave to file the petition to implead itself as a party. By order dated 4.4.2008, while granting leave, the Division Bench of this Court has observed as follows:

24. In the present O.S.As. as it is not in dispute that in the tender-advertisement, the bidder(s) were asked to deposit 10% of the "Earnest Money" on acceptance of their bid, and in pursuance of the bid, the highest bidder (appellant-JalalNazar, in O.S.A.Nos.381 and 382 of 2007) deposited only Rs.10 crores and not the total amount, subsequently, as the offer accepted by the Court on request of the appellant of O.S.A.No.383 of 2007, was in confirmity with the terms and conditions of the tender-advertisement, he appellant-M/s.Fairdeal Supplies Private Limited, being the second highest bidder (in O.S.A.No.383 of 2007) is also bound by the terms and conditions of the tender-advertisement, and he is liable to deposit 10% of the offer amount and the offer of Rs.236 crorres, having been given by the appellant-M/s.Fairdeal Supplies Private Limited, he duly deposited 10% of the offer amount, i.e. Rs.23.60 crores. Having failed to deposit the rest of the amount in respect of the bid in question, in terms of the tender-advertisement and the order passed by this Curt as quoted supra, we are of the view that the amount deposited by the appellant-Jalal Nazar (in O.S.A.Nos.381 and 383 of 2007) and the appellant-M/s.Fairdeal Supplies Private Limited (in O.S.A.No.383 of 2007), be forfeited.

17. Admittedly, the said demand drafts were presented by the second respondent before the Division Bench for the payment of E.M.D. amount for the purchase of properties of the company in liquidation. It is relevant to point out that the appeals have been periodically taken by the Division Bench. In the year 2007, the Company Judge has passed an order cancelling the offer given by the highest bidder and the second respondent and the highest bidder Jalal Nazaar have been given time to deposit the E.M.D. amount of Rs.23.60 crores. In fact, in O.S.As., the Division Bench has passed the order on 1.2.2008 which is as follows: