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5. Mr. Anand Chhibbar, learned counsel for M/s. S. R. Buildcon has argued that the Supreme Court in the case of Divya Manufacturing Co. (P.) Ltd. v. Union Bank of India has reviewed the whole case law to conclude that even after confirmation, the sale can be set aside provided there is a substantial increase. According to learned counsel, the basic object of all the sales by the court is to obtain the maximum price as it would be for the benefit of the workmen of the company as well as unsecured/secured creditors. Learned counsel has also made a detailed reference to various judgments like Union Bank of India v. Official Liquidator, High Court of Calcutta , LICA (P.) Ltd. (No. 1) v. Official Liquidator [1996] 85 Comp Cas 788 (SC) and LICA (P.) Ltd. (No. 2) v. Official Liquidator [1996] 85 Comp Cas 792 (SC) and argued that the purpose of the court auction is the only one, i.e., to fetch most remunerated price. He has further submitted that the court is under an obligation to keep openness of the court auction so that the intending bidders are free to participate and offer higher bid. Another submission made by learned counsel is that no equitable right which might have arisen in favour of the auction purchaser would weigh with the court to offset the workmen, secured and unsecured creditors and has placed reliance on a judgment of the Supreme Court in the case of Allahabad Bank v. Bengal Paper Mills Co. Ltd. . Learned counsel has also pointed out that there is no necessity for involvement of the element of fraud and misrepresentation and the substantial higher bid itself would be sufficient to set aside the earlier lower bid. While concluding his argument learned counsel has placed reliance on a judgment of this court in the case of Oswal Agro Furnace Ltd., In re (In Liquidation) [2004] 2 PLR 1 and argued that by law no restriction has deliberately been imposed on the company court from setting aside any confirmed sale or even reversing a sale which has been partially executed because the basic rationale of all the judgments is that the court must ensure fetching of maximum price.

6. Mr. Kamal Sehgal, learned counsel for Surinder Kumar--respondent No. 2 has argued that M/s. S. R. Buildcon represented through Mr. Niranjan Gupta has no locus standi to come forward with a toppling bid as he had participated in the inter se bidding held by this court on December 10, 2004. After inter se bidding Surinder Kumar had emerged as the highest bidder for Rs. 1.05 crores. Mr. Sehgal has further pointed out that Surinder Kumar was further pushed to the walls when Mittal and Garg Enterprises came forward with a higher bid and Surinder Kumar still survived at Rs. 1.05 crores. It has been emphasised that if the auction sales undertaken by the courts are not finalised by the courts expeditiously and promptly in the hope to obtain a better buyer, then prospective bidders are likely to lose faith in the court auction and no one would come forward to participate in the court auctions. According to learned counsel, inadequacy of price alone should not be considered a basis for setting aside a confirmed sale and a line should be drawn that after confirmation, no confirmed sale is to be set aside. In support of his submission, learned counsel has made reference to various judgments of the Supreme Court, viz., Kayjay Industries (P.) Ltd. v. Asnew Drums (P.) Ltd. , Food Corporation of India v. Kamdhenu Cattle Feed Industries , Navalkha and Sons v. Ramanuja Das and State of Punjab v. Yoginder Sharma Onkar Rai and Co. . Learned counsel has also emphasised that Surinder Kumar had already deposited the whole amount of Rs. 1.31 crores and was awaiting the possession to be delivered on January 7, 2005, when an application came up for consideration offering the higher bid of Rs. 1.50 crores. He has also placed reliance on the observations made by the Supreme Court in Divya Manufacturing Co. . Learned counsel has also referred to two judgments of the Allahabad High Court in the case of Triveni Metal Tubes Ltd. (In Liquidation) v. Official Liquidator [1999] 97 Comp Cas 943 ; Burakia Brothers v. Saraya Steel Ltd. [1998] 92 Comp Cas 192 and a judgment of the Calcutta High Court in the case of Kanchanjanga Commotrade Pvt. Ltd. v. Shivarpan Engineering Pvt. Ltd. [2004] 119 Comp Cas 712 to argue that in all these cases, after confirmation of sale, the company judge had rejected the application filed by third parties for reopening the sale merely because a higher price was offered.

9. The court has then gone on to observe that the view taken in Divya Manufacturing Co.'s case has further clarified any doubt about setting aside a sale even after confirmation holding that a subsequent higher offer can constitute a valid ground and concluded as under (page 572 of 126 Comp Cas) :

"The aforementioned survey of case law clearly lays down that this court is clothed with the powers to set aside even a confirmed sale provided it comes to the conclusion that the price offered by the auction purchaser in fact was inadequate. Such powers is not dependent on any finding that there was material irregularity or commission of fraud in the process of sale, adopted by the official liquidator. It is also significant to notice that Dr. Singhvi appearing for the auction purchaser has also conceded such a power of the court. The question which arises is whether in the facts and circumstances of the case, the sale confirmed in favour of the auction purchaser should be set aside or the plea raised by the interveners should be rejected."