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4. I have heard learned Counsel for the parties at great length. I may state at the outset that identical issue was considered by me in the case entitled in the matter of M/s. Ajanta Textile Mills Ltd. and order dated 19th August, 2004 was passed in that case following the two judgments of the Supreme Court in the case of Divya Manufacturing Co. (P) Ltd. and Anr. v. Union Bank of India and Ors. and LICA (P) Ltd. v. The Official Liquidator and Anr. reported in 1995 4 CCJ 494 (SC). I cancelled the earlier bid and allowed re-bidding. The operative portion of the aforesaid order is as under:

7. He submitted that the reserve price was fixed, in the instant case, at Rs. 4.6 crores on the basis of valuation report and, therefore, his bid of Rs. 7 crores was reasonable at the relevant time and represented fair value of the property. He also submitted that on confirmation of the sale in his favor, sale became absolute and rights of the ownership in the property so sold became vested in him by relying upon the pronouncement of the Apex Court in (1970) 2 SCC 40.

8. On the basis of these submissions he, at the same time, attempted to distinguish the judgment of Divya Manufacturing (supra), and submitted that the said judgment was not applicable in the given fact situation. His submission was that in Divya Manufacturing (supra) the Supreme Court held that the High Court had power to set aside the sale in favor of the auction purchaser even when the sale is confirmed only because of Clause 11 of bid conditions in that case which specifically gave such a right. Whereas in the present case "terms and conditions of sale" laid down by the Official Liquidator, on the basis of which sale was conducted, there is no such clause analogous to Clause 11 and, consequently, no such power reserved.

10. I am not convinced with the argument of the learned Counsel when he submitted that the principles enunciated in the case of Divya Manufacturing (supra), would be non-applicable to the present case. No doubt, in Divya Manufacturing Clause 11 of the terms and conditions of sale specifically empowered the High Court "to set aside the sale in favor of purchaser/ purchasers even after the sale is confirmed and/or purchase consideration is paid on such terms and conditions as the Court may deem fit and proper for the interest and benefit of creditors, con tributaries and all concerned and/or public interest" while formulating the aforesaid principle. However, the Court did not take refuge of Clause 11. Clause 11 was merely an additional factor which weighed in the mind of the Supreme Court. Guiding principle deduced from the earlier judgments, including that of LICA (P) Ltd. (supra), was that in every such case it is the duty of the Court to realise best price for the asset. This is the principle laid down in paras 11 to 15 of the judgment. We may quote para 13 specifically in this regard, which reads as under:

12. After stating this principle the Court took note of condition No. 11 in para 16 which was an additional factor and as would be apparent from the opening words of para 16 reading "Further, there is a specific condition No. 11 xxxx".

13. No doubt, in the present case sale was confirmed in favor of the auction purchaser in May, 2003, i.e. 11/2 years ago. Would it mean that even the sale is concluded in all respects? Answer is: No. It will still be open for the Court to set aside such sale when better bids are received thereafter when application is moved at distant time, caution is to be exercised and the rights accrued, if any, in favor of the auction purchaser cannot be overlooked. No doubt, such a process cannot go on endlessly and for indefinite period. Where to draw the line is the poser. Answer to this is provided in LICA (P) Ltd. (supra), which is affirmed in Divya Manufacturing (supra), i.e. so long the possession is not handed over to the purchaser or the sale deed is not executed, the Court could re-open the sale in the interest of justice. This is so stated in paras 7 and 11 of the judgment in Divya Manufacturing (supra). In the present case possession has still not bean given to the auction purchaser. In fact, as pointed out by Mr. Luthra, learned Counsel for the Official Liquidator, delay in finalising the sale is attributable to the auction purchaser himself who filed CA No. 721/2003 and thereafter CA No. 799/2003 and raised the bogey of property having been acquired. Accordingly, I set aside the sale in favor of the auction purchaser as confirmed on 29th May, 2003 and proceed with fresh holding process.