IN THE HIGH COURT OF KARNATAKA AT BENGALURU BEFORE THE HON BLE MR. JUSTICE A S BOPANNA

Transcription

1 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20 TH DAY OF AUGUST 2015 BEFORE THE HON BLE MR. JUSTICE A S BOPANNA C.A.No.1129/2013 C/W C.A.No.584/2013, C.A.No.375/2012 AND C.A.No.1229/2014 IN CO.P. NO. 185/2002 C.A.No.1129/2013 BETWEEN: OFFICIAL LIQUIDATOR OF; M/S B.S. REFRIGERATORS LTD., (IN LIQN) ATTACHED TO HIGH COURT OF KARNATAKA, MINISTRY OF CORPORATE AFFAIRS, CORPORATE BHAVAN, 12 TH FLOOR, RAHEJA TOWERS, M.G. ROAD, BENGALURU APPLICANT (BY SRI.K.S.MAHADEVAN & SRI.V. JAYARAM, ADVs. FOR OL.) AND: 1. M/S ASSET RECONSTRUCTION COMPANY (INDIA) LTD. THE RUBY, 10 TH FLOOR, 29, SENAPATI MARG, DADAR (WEST), MUMBAI M/S AAMBY VALLEY LIMITED, C/O HOTEL SAHARA STAR, OPPOSITE DOMESTIC AIRPORT. VILE PARLE, EAST, MUMBAI

2 3. M/S AVL HOTELS AND RESORTS LIMITED, C/O HOTEL SAHARA STAR, OPPOSITE DOMESTIC AIRPORT. VILE PARLE, EAST, MUMBAI M/S. KARNATAKA INDUSTRIAL AREAS DEVELOPMENT BOARD, NO.14/3, 2 ND FLOOR, R.P. BUILDING, NRUPATHUNGA ROAD, BANGALORE (BY SRI. UDAYA HOLLA, Sr. COUNSEL FOR SRI.SHREYAS JAYASIMHA FOR M/S AARNA LAW FOR R1 SRI.K.G.RAGAVAN, Sr.COUNSEL FOR SRI. SURAJ GOVINDA RAJ, ADV. FOR M/S. ANUP.S.SHAH LAW FIRM FOR R2 & 3, SRI. ASHOK.N.NAYAK, ADV. FOR R4) 2... RESPONDENTS THIS APPLICATION IS FILED UNDER RULE 6 & 9 OF THE COMPANIES [COURT] RULES, 1959, PRAYING TO SET-ASIDE THE SALE CONDUCTED BY ARCIL MUMBAI; AND ETC., C.A.No.584/2013 BETWEEN: ASSET RECONSTRUCTION CO., (INDIA) LTD. A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANY ACT, 1956 HAVING ITS REGISTERED OFFICE AT: THE RUBY, 10 TH FLOOR, 29, SENAPATI BAPAT MARG DADAR (WEST), MUMBAI (BY SRI.UDAYA HOLLA, Sr. COUNSEL FOR SRI.SHREYAS JAYASIMHA) APPLICANT AND: 1. M/S. PRIME INDUSTRIES, A PARTNERSHIP FIRM HAVING ITS

3 3 REGISTERED OFFICE AT: NO.4925, 11 TH FLOOR, HIGH POINT, PALACE ROAD, BENGALURU, REP. BY ITS PARTNER MR. MANISH AGARWAL 2. OFFICIAL LIQUIDATOR OF M/S. B.S.REFRIGERATORS LIMITED, ATTACHED TO HIGH COURT OF KARNATAKA 4 TH FLOOR. D & F WING, KENDRIYASADAN, KORAMANGALA, BENGALURU RESPONDENTS (BY SRI.K.S. MAHADEVAN & SRI.V.JAYARAM, ADVs. FOR OL FOR R-2. SRI.SRIRANGA ACCEPTS NOTICE FOR R-1) THIS APPLICATION IS FILED UNDER RULE 6 & 9 OF THE COMPANY [COURT] RULES, 1959, R/W SECTION 449 OF THE COMPANIES ACT, 1956, PRAYING TO TAKE INTO CONSIDERATION THE COMPLETION OF SALE IN A TRANSPARENT MANNER BY PUBLIC AUCTION AND THE APPLICANT MAY BE PERMITTED TO APPROPRIATE THE SALE PROCEEDS TOWARDS THE AMOUNTS DUE FROM THE COMPANY IN LIQUIDATION. C.A.No.375/2012 BETWEEN: M/S. PRIME INDUSTRIES, A PARTNERSHIP FIRM HAVING ITS REGISTERED OFFICE AT: NO.4925, 11 TH FLOOR, HIGH POINT, PALACE ROAD, BENGALURU, REP. BY ITS PARTNER MR. MANISH AGARWAL (BY SRI.S. SRIRANGA, ADV. FOR M/S JUST LAW) APPLICANT

4 4 AND : 1. OFFICIAL LIQUIDATOR OF M/S. B.S.REFRIGERATORS LIMITED, ATTACHED TO HIGH COURT OF KARNATAKA 4 TH FLOOR. D & F WING, KENDRIYASADAN, KORAMANGALA, BENGALURU ASSET RECONSTRUCTION CO., (INDIA) LTD. A COMPANY INCORPORATED UNDER THE PROVISION OF THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT: SHREEPATI ARCADE, AUGUST KRANTI MARG NANA CHOWK, MUMBAI SAWAN STEEL TRADERS A COMPANY REGISTERED UNDER THE COMPANIES ACT, 1956 HAVING ITS REGISTRED OFFICE AT SHOP.NO. 12, NOORANI MARKET, TADAPATRI ONI, HUBLI RESPONDENTS (BY SRI.K.S. MAHADEVAN & SRI.V.JAYARAM, ADVs. FOR OL FOR R1 SRI. UDAYA HOLLA, Sr. COUNSEL FOR SRI. SHREYAS JAYASIMHA FOR R-2) THIS APPLICATION IS FILED UNDER RULE 6 & 9 OF THE COMPANY [COURT] RULES, 1959, R/W SECTION 446 OF THE COMPANIES ACT, 1956, PRAYING THAT FOR THE REASONS STATED THERIN PLEASED TO SET ASIDE THE SALE CERTIFICATE DATED [ANNE C] ISSUED BY THE R2 TO THE R3 AND ETC., C.A.No.1229/2014 BETWEEN: STATE OF KARNATAKA BY ITS PRINCIPAL SECRETARY TO GOVERNMENT FOREST, ENVIRONMENT AND ECOLOGY DEPARTMENT

5 5 M.S. BUILDING, BENGALURU (BY SRI. D.S.RAMACHANDRA REDDY, ADV.) APPLICANT AND: 1. OFFICIAL LIQUIDATOR OF: M/S. B.S.REFRIGERATORS LIMITED, ATTACHED TO HIGH COURT OF KARNATAKA, MINISTRY OF CORPORATE AFFAIRS, CORPORATE BHAVAN, 12 TH FLOOR, RAHEJA TOWERS, M.G. ROAD, BENGALURU M/S. ASSET RECONSTRUCTION COMPANY (INDIA) LTD. THE RUBY, 10 TH FLOOR, 29, SENAPATI MARG, DADAR(WEST), MUMBAI M/S AAMBY VALLEY LTD., C/O HOTEL SAHARA STAR, OPPOSITE DOMESTIC AIRPORT, VILE PARLE, EAST, MUMBAI M/S AVL HOTELS AND RESORTS LTD., C/O HOTEL SAHARA STAR, OPPOSITE DOMESTIC AIRPORT, VILE PARLE, EAST, MUMBAI M/S KARNATAKA INDUSTRIAL AREAS DEVELOPMENT BOARD, NO. 14/3, 2 ND FLOOR, R.P. BUILDING, NRUPATHUNGA ROAD, BENGALURU RESPONDENTS (BY SRI K S MAHADEVAN & SRI.V.JAYARAM, ADVs. FOR OL. SRI.UDAYA HOLLA, Sr.COUNSEL FOR SRI.SHREYAS JAYASIMHA FOR R2. SRI.K.G.RAGAVAN, Sr.COUNSEL FOR SRI.SURAJ GOVINDARAJ FOR R3 & R4. SRI.ASHOK.N.NAYAK FOR R5)

6 6 THIS APPLICATION IS FILED UNDER RULE 6 & 9 OF THE CO., [COURT] RULES, 1959, PRAYING TO ISSUE APPROPRIATE DIRECTIONS TO ALL THE RESPONDENTS HEREIN TO PRESERVE, PROTECT AND NOT TO ALIENATE ANY PORTION OF THE GOVERNMENT FOREST LAND IN SY NO.1 OF KADUGODI PLANTATION TILL THE DISPOSAL OF W.A. 4283/2012, W.A.NO. 4205/2012 AND UNTILL THE ABOVE SAID LITIGATION REACHES IT FINALITY. THESE APPLICATIONS HAVING BEEN RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: O R D E R This Court by the order dated passed in C.A.No.914/2010 arising out of Co.P.No.185/2002 had permitted Asset Reconstruction Company (India) Limited ('ARCIL' for short) the applicant in C.A.No.584/2013 herein, a secured creditor to sell the secured assets of the company in liquidation subject to the directions issued in the said order. One of the directions being to place details before this Court before making appropriation, the instant application is filed. The Official Liquidator and the State of Karnataka, through the Forest Department has filed the objections.

7 7 2. The Official Liquidator has also filed an application in C.A.No.1129/2013, seeking that the sale conducted by ARCIL be set aside and the confirmation thereof in favour of M/s. AVL Hotels and Resorts Ltd., as also the demand made by Karnataka Industrial Area Development Board ('KIADB' for short) be set aside. ARCIL and AVL Hotels and Resorts Ltd have objected to the same, while the State of Karnataka, through the Forest Department has filed the application in C.A.No.208/2014 seeking to implead themselves therein. 3. The State of Karnataka, Forest Department has also filed an independent application in C.A.No.1229/2014 seeking appropriate directions to all the above noticed parties who are arrayed as respondents to the application, to preserve, protect and not to alienate any portion of the Government forest land in Sy.No.1 of Kadugodi Plantation till the disposal of

8 8 W.A.No.4283/2012, W.A.No.4205/2012 and until the same reaches its finality. Such application is made by contending that the land belonging to the company in liquidation is a notified forest. The application is opposed by the respondents No.2 to 5 in the said application. 4. Heard the learned senior counsel representing the respective parties, the learned counsel for the Official Liquidator, the learned Special Government Advocate, the learned counsel for KIADB extensively and perused the application papers. 5. The parties would be referred to by their respective names for the purpose of clarity since the order of their array is different in each of the above noted applications. 6. In the circumstance arising herein, it would be appropriate to consider the contentions raised in the

9 9 application filed by the State of Karnataka, since the other applications would arise for consideration depending on the conclusion therein. If the contention therein is accepted, the entire process relating to the sale of the property would come to a nought and no further consideration either with regard to the faulty procedure alleged by the Official Liquidator or the issue relating to appropriation claimed by ARCIL will arise. Re: Issues raised by the State of Karnataka, Forest Department. 7. The case on behalf of the State of Karnataka is that the then Government of Mysore by notification dated in exercise of the powers under the Forest Rules, 1878 notified the entire Sy.No.1 of Kadugodi Plantation measuring 711 acres as Government Plantation, which was thereafter notified as State Forest under the notification dated Though in

10 10 relation to one portion of the land there was lease in favour of British Military Grass Farms Department and the Kadugodi Joint Farming Co-Operative Society, admittedly the area measuring an extent of 305 acres 23 guntas were acquired under the Karnataka Industrial Areas Development Act, 1966, by issue of notification in the year 1985 and The plot allotted to the Company in liquidation, on lease, is in the layout formed by the KIADB. The State of Karnataka, presently contends that the formation of the industrial layout is in contravention of the Forest (Conservation) Act, To support the contention that a notified Forest land cannot be diverted for any other purpose, the learned Special Government Advocate has relied on the following decisions; (i) The case of T.N.Godavarman Thirumulkpad -Vs- Union Of India (AIR 1997 SC 1228) wherein the

11 11 guidelines have been laid by the Hon'ble Supreme Court to check deforestation and ecological imbalance in the light of the Forest (Conservation) Act. The onus has been cast on the State Governments to protect the forests. (ii) The case of T.N.Godavarman Thirumulkpad -Vs- Union of India (AIR 1997 SC 1233) wherein further general directions have been issued in respect of conservation of forests. (iii)the case of K.M.Chinnappa -Vs- Union of India ( 2003 AIR SCW 23) wherein it is held that the State is a trustee of all natural resources which are by nature meant for public use and enjoyment and the State as trustee is under a legal duty to protect the natural resources against the same being converted into private ownership. In that regard the compliance of the provisions of the Forest (Conservation) Act is held obligatory.

12 12 (iv) The case of State of Karnataka & Ors. -Vs- I.S.Nirvane Gowda & Ors. (2007 (15) SCC 744) wherein it is held, when the lands are included in reserve forest, the entries in the revenue records were of no consequence and the Revenue authorities were not competent to deal with the property which was part of the reserved forest. (v) The case of Nature Lovers Movement -Vs- State of Kerala & Ors. (2009 AIR SCW 3656) wherein the scope of the Forest (Conservation) Act was adverted to and it was held the provision therein is to be interpreted to further the object of the legislation. It was held that the State Governments were denuded of the powers to deal with reserved forests and the use could be permitted only with prior approval of the Central Government.

13 13 (vi) The case of H.K.Subramanya & Ors. -Vs- M.Shekar Shetty (2014 (4) AKR 601) wherein a Hon'ble Division Bench of this Court has reiterated that the issuance of a notification under Section 4 of the Act is sufficient to constitute the land comprised in it as "forest", in which any non forest activity would require prior approval under Section 2 of the Forest (Conservation) Act. 9. In that light the learned Special Government advocate has also relied on the decisions in the case of State of Karnataka & Anr. -Vs- All India Manufacturers Organization & Ors.(AIR 2006 SC 1846) and in the case of Phatu Rochiram Mulchandani -Vs- KIADB (2014 AIR SCW 4035) to contend that the KIADB cannot adopt a different stand from the one urged by the State and that in any event the

14 14 KIADB ought to have taken steps to recover possession of the plot from the lessee though the company was in liquidation. The learned Counsel has further relied on the decision in the case of M/s. Aliji Monoji & Co., -Vs- Lalji Mavji & Ors. (AIR 1997 SC 64) to contend that the State of Karnataka is necessary to be impleaded in the instant proceedings, since it has been held therein that, necessary party is one, without whose presence no effective and complete adjudication of the dispute could be made. 10. The learned senior counsel for ARCIL by placing reliance on the decisions of this Court in the case of Smt. Kalavathi Rathnakar Sate -Vs- Smt.Ambujamma (2001(2) Kar.L.J 262); in the case of Bakthavatsalam -Vs- Anjapuli & Ors. (2001(1)MLJ 101) and in the case of Sri Vardhaman Stanakvisi Jain

15 15 Sravak Sangh -Vs- Chandrakumar & Anr. ( ILR 1984 Karn.889) has contended that a party against whom no relief is sought, even if incidental question arises is not a necessary party and cannot seek impleadment. 11. The learned senior counsel also relied on the following decisions; (i) in re: Construction of Park at Noida Near Okhla Bird Sanctuary (2011(1) SCC 744) wherein it was observed that the order in Godavarman relating to deemed forest cannot be applied mechanically and with no regard to the other factors. (ii) The decision in the case of Godrej and Boyce Manufacturing Company Limited & Anr. -Vs- State of Maharashtra & Ors. (2014(3) SCC 430) is relied, wherein it is held that assuming the land was a private

16 16 forest, the State had remained completely inactive when construction was going on over vast tracts of land and when construction was permitted by approving plans and providing infrastructure it is natural to assume that such action is in accordance with law. Hence it was further held that the appellant therein and individual citizens cannot be faulted or punished for that. It was also held that even if the State were to succeed on the legal issues, there is no way the clock could be put back. (iii) The case of M/s. Hindustan Sugar Mills -Vs- State of Rajasthan & Ors. (1980(1) SCC 599) wherein it is held that it must be remembered that we are living in a democratic society governed by the rule of law and every government which claims to be inspired by ethical and moral values must do what is fair and just to the citizen, regardless of legal technicalities.

17 17 (iv) The case of Union of India & Anr. -Vs- Raja Mohammed Amir Mohammad Khan (2005 (8) SCC 696) wherein it is observed that unfortunately a dangerous attitude resulting in doing institution damage is developing, that justice is required to be done only by courts. It is held that such attitude is betrayal of the Constitution as well as the laws. Every and any authority working under the statute has to discharge its duties in a just manner. 12. In the above backdrop, in so far the rival contention relating to the impleadment of the State of Karnataka, the same would not be of much importance since, in any event, an independent application in C.A.No.1229/2014 raising issues with regard to the nature of the land has been filed and the contention urged therein is what is to be noticed to the extent the same

18 18 would arise for consideration in the nature of the present proceedings. 13. In that regard, the relevant documents would disclose that in one of the first instances, in respect of the land allotted to the South Western Railway pursuant the acquisition made for KIADB under the preliminary notification dated , the Forest Department of the State of Karnataka initiated Forest Offence Case by contending that the area is reserved forest. The same resulted in a petition before this Court in W.P.No.14649/2007(GM-FOR). A learned Judge of this Court by the order dated allowed the petition holding that the respondents therein, namely the State of Karnataka, Forest Department has no jurisdiction over the land which has been legitimately acquired under law and handed over to the Railways. The appeal filed in W.A.No.3805/2009 against that order was held as being

19 19 devoid of merit and disposed by the order dated The review petition in R.P.No.272/2010 was dismissed by the order dated The Special leave petition was also dismissed by the Hon'ble Supreme Court, but the question of law was left open. 14. Subsequently, when certain other persons were before this Court seeking intervention against the action initiated by the Forest Department, this Court in W.P.No.12322/2008(KLR) by order dated directed the KIADB to handover the land to the Forest Department. However, on an appeal by the KIADB in W.A.Nos /2010(KLR), the Hon'ble Division Bench by the order dated allowed the appeal and set aside the direction issued to the KIADB. Liberty was however reserved to initiate appropriate proceedings. The Special Leave Petition filed against the said order to the Hon'ble Supreme Court was dismissed.

20 In yet another petition in W.P.No.7200/2008 c/w W.P.No /2009(GM-FOR), against the Forest offence proceedings initiated, the petitioners therein assailed the same in the petition, to which the Company in liquidation was arrayed as respondent No.10. This Court after detailed consideration has quashed the orders made to the detriment of the petitioners. Against the said order, the State of Karnataka is stated to have filed the appeals in W.A.Nos.4283 and 4205/2012. It is in that view the instant application in C.A.No.1229/2014 is filed seeking that the result in the same be awaited before the sale is permitted. 16. The very sequence of the earlier proceedings would disclose that the State of Karnataka through its Forest Department by relying on the notifications dated and had initiated the forest offence cases alleging that the Forest land had been occupied.

21 21 But, except for the consolation that there is an observation that the question of law is left open, as of now, the position is that the order passed by the Forest Department has been quashed. Further, though liberty is reserved for initiating action, the direction issued to the KIADB to recover and transfer the land to the Forest Department has also been set aside. 17. If that be the position, even in the background of the decisions of the Hon'ble Supreme Court relied on supra and the notifications relied on by the learned Special Government advocate, the State of Karnataka is yet to meet with success in the properly constituted proceedings in establishing that the land in issue is forest land. When that is the position, this Court exercising the limited jurisdiction in a winding up proceedings cannot adjudicate or accept the contention that the plot leased to the company in liquidation is a part of the forest land.

22 22 That too, such consideration is outside the scope when the sale itself is not conducted in this proceedings, but the sale having already taken place under the SARFAESI Act and Security Interest (Enforcement) Rules, 2002 and the procedure adopted and the appropriation of the amount are the only aspects to be considered herein at this stage. 18. The fact that the plot in question was allotted to the company in liquidation on lease by the KIADB is not in dispute. The KIADB has not objected to the sale of the lease hold rights. The successful bidder is purchasing the same, being aware of all these aspects. Hence, the question of this Court awaiting the proceedings in the pending writ appeal without concluding the present proceedings does not arise. If in any appropriate proceedings, the land is held to be forest land, the legal consequences would follow and would bind the purchaser herein. Hence, I am of the considered

23 23 view that the sale proceedings cannot be brought to a nought at the instance of the State of Karnataka since as of now there is no declaration in an appropriate proceedings by a competent Court that it is a forest land as claimed by them. Re: Issues raised by the Official Liquidator. 19. Having arrived at the above conclusion, the main aspect which requires consideration is the objection raised by the Official Liquidator. The application in C.A.Nos.584/2013 and 1129/2013 are interdependent. Hence the common consideration will answer both the applications. 20. The learned counsel for the Official Liquidator contends that the directions issued by this Court through the order dated has not been adhered to by ARCIL. In that regard the contentions are, the Official Liquidator has not been intimated and has not been

24 24 involved in the sale committee; the nominee of the bidder could not have been given the property; the valuation is not proper and has not been done through an appropriate local evaluator and the possession of the property should not have been given. The learned senior counsel appearing on behalf of ARCIL and the purchaser have put forth their contention on each of the issue raised to contend that there is no violation. 21. Before adverting to the contentions, it would be appropriate to notice the order dated in C.A.No.914/2010. The petitioning unsecured creditor at whose instance the winding up order was made, was the applicant therein. The operative portion of the order reads as hereunder; ORDER i) The second respondent/secured creditor/ ARCIL is entitled to sell the secured assets belonging to the Company in liquidation by

25 25 exercising the right under Section 13 of SARFAESI Act and as per procedure in Rules 8 and 9 of Enforcement Rules subject to the following: a) They shall however adopt a transparent procedure after notifying the Official Liquidator. b) The proposal for sale and the details of the valuation obtained for determining the modalities of sale shall be made available to the Official Liquidator. c) On completion of the sale, the secured Creditor shall place before the company Court, the details of its claim before making appropriation to itself. 22. The learned counsel for the Official Liquidator by placing reliance on the decision in the case of Mahesh Chandra -Vs- Regional Manager, U.P. Financial Corporation & Ors. (1993(2) SCC 279) with specific reference para-21 would contend that a fair procedure as declared therein has not been followed. The decision in the case of Bank of Maharashtra -Vs- Pandurang Keshav Gorwardkar & Ors. (2013(7)SCC 754) to

26 26 contend that the sale is to be made in association with the Official Liquidator is also relied. 23. Having perused the above decisions, I am of the opinion that the same does not require detailed discussion since it is after considering all those aspects, the earlier order dated was passed. In that direction, having extracted the operative portion hereinabove, it indicates the extent to which the consideration will be required. What is also to be kept in view is that the application in C.A.No.914/2010 was not at the instance of the Official Liquidator, but by an unsecured petitioning creditor. After determining the right of ARCIL, the same has been regulated only to the extent indicated therein so as to protect preferential payment as contemplated under Section 529-A of the Companies Act. Hence, in my opinion, the examination should be by keeping this aspect in perspective.

27 In that regard, a perusal of the papers in the background of the submission of the learned counsel for ARCIL and the purchaser will disclose the procedure that was followed. The task of valuation was entrusted to M/s. Parekh Shah & Lodha. Though they are based in Mumbai, their profile produced at Annexure-R11 will indicate that they are certainly not novice in the field of valuation. They are undertaking valuation work for several Banks and financial institutions all over the country. 25. The valuation report relating to the company in liquidation is at Annexure-R12. The contents at para-3 onwards indicates that all aspects relating to the immovable property is taken into consideration exhaustively and the valuation is made. No specific issues relating to the procedure adopted for arriving at the value or violation of the standard procedure has been brought

28 28 to the fore by the Official Liquidator. Therefore, such report cannot be rejected merely because the evaluator from Mumbai was chartered for the purpose on the ground it would have been desirable to have entrusted to an evaluator from Bengaluru as contended by the learned counsel for the Official Liquidator. 26. The letter dated of KIADB along with Annexure-R13 addressed to Official Liquidator indicates the amount of Rs crores being their claim. The documents at Annexures-R17 and 18 indicates that public notice for sale has been issued indicating all details including dues to KIADB stated separately. The sale notice has again been issued as at Annexure-R24. The repeated publication of the sale notice will show that the procedure adopted was transparent and all efforts were made to secure the best price.

29 The communication dated at Annexure-R13 addressed by ARCIL to the Official Liquidator indicates that it is being sent in pursuance to the order of this Court. The valuation report was enclosed with that letter. The Official Liquidator did not reply and raise objection either with regard to the evaluator or the method of valuation. Thereafter the letter dated is addressed as per Annexure-R18 wherein the public notice being issued was informed. Again a letter dated at Annexure-R19 is addressed. The Official Liquidator addressed a letter dated seeking clarifications as at Annexure- R20, which has been replied on as at Annexure-R22. The bids not being received pursuant to the sale notice was informed by the letter dated at Annexure-R23. The subsequent public

30 30 notice issued was also intimated through the letter dated at Annexure-R At no point of time has the Official Liquidator raised even a little finger. ARCIL have thereafter opened the bid in the meeting held on as at Annexure- R26. In the background of the process held and the sale completed, even to raise an objection at this stage the Official Liquidator has not brought on record that there was any other bidder who was ready to offer higher price, but has been excluded nor has any such willing purchaser come before this Court. On the other hand, the sale is being objected by the Official Liquidator on hypertechnical contention without even showing that the value of the property was more than the valuation made. 29. In that regard, it would be relevant to refer to the decisions cited by the learned senior counsel for ARCIL.

31 31 (i) The case of State of Punjab -Vs- Yoginder Sharma Onkar Rai & Co. & Ors. ( 1996 (6) SCC 173) wherein it is held that the finality of auctions must also be recognised to be in the interest of the exchequer. If auctions are set aside and re auctions are ordered on less than satisfactory material, the loss would be more. (ii) The case of M/s. Kayjay Industries (P) Ltd. - Vs- M/s.Asnew Drums (P) Ltd., and others ( 1974 (2) SCC 213) wherein it is held that Court sale is a forced sale and notwithstanding the competitive element of a public auction, the best price is not forthcoming. The judge must make a margin for this factor. A valuer's report, good as a basis, is not as good as an actual offer and variations within limits between such an estimate, however careful, and real bids by seasoned businessmen before the auctioneer are quite on the cards. The circumstances when the buyers are going to be limited is

32 32 also stated. It is held that if Court sales are too frequently adjourned with a view to obtaining a still higher price it may prove a self defeating exercise, for industrialists will loose faith in actual sale taking place. 30. The next aspect that would arise for consideration is the objection raised on behalf of the Official Liquidator that the entity to which the sale has been made is not the same as the one which took part in the process of auction. 31. The learned senior counsel appearing on behalf of M/s. Aamby Valley Ltd and M/s. AVL Hotels and Resorts Ltd who are arrayed as respondents No.2 and 3 to CA No.1129/2013 would contend that M/s AVL Hotels and Resorts Ltd is a wholly owned subsidiary of M/s. Aamby Valley Ltd. It is pointed out that in that regard shares are held and the address of both is

33 33 one and the same. Therefore, M/s AVL Hotels and Resorts Ltd apart from being the nominee of M/s. Aamby Valley Ltd, the successful bidder also being a group company, there is no violation of the procedure in the sale conducted and the sale certificate being issued in the name of M/s AVL Hotels and Resorts Ltd., and it is in accordance with law. 32. To drive home the point, the learned senior counsel has relied on the following decisions : i) i) The case of B Himantharaju Setty vs- Corporation of the City of Bangalore (AIR 1954 Mys. 145)(DB) wherein the right of a purchaser to seek execution of the proper conveyance to the purchaser or his nominee is considered as a valid transaction. ii) The case of DHN Food Distributors Ltd., and Others vs- London Borough of Tower Hamlets (1976(3) All Eng. Law Reports 462) wherein on taking

34 34 note of the transaction interse and the shares held by the group companies has indicated that corporate veil could be lifted and if they are found to be part of the same group, the right cannot be denied. iii) The case of New Horizons Limited And Another vs- Union of India and Others [(1995)1 SCC 478] wherein the principle of lifting the corporate veil was referred to and on referring to the DHN Food Distributors Ltd case referred supra, it has been held that when the companies are of the same group, the right claimed is to be taken into consideration. 33. In the light of the above, the share pattern in the case on hand as noticed above and the manner in which the two companies are being managed would indicate that they are the group companies. That apart, the communication dated addressed by M/s Aamby Valley Ltd., to ARCIL and the terms and

35 35 conditions for invitation of sale enclosed thereto would disclose that the offer is from M/s Aamby Valley Ltd., or its Nominee for purchase. It is in that view, M/s Aamby Valley Ltd., being the successful bidder through their letter dated at Annexure-R34 had requested ARCIL that they will be taking the sale in the name of their subsidiary M/s AVL Hotels and Resorts Limited. This position has been intimated by ARCIL to the Official Liquidator through the communication dated at Annexure-R35. Pursuant thereto, the sale certificate has been executed in favour of M/s AVL Hotels and Resorts Ltd., since the money payable in respect of the transaction had been deposited. 34. Though the learned counsel for the Official Liquidator has sought to make much about the difference in the details mentioned with regard to the payment as indicated in the sale draft certificate and the registered

36 36 document, it is an obvious error and the correct amount has been indicated in the sale certificate that was registered. Further with regard to there being certain alterations with regard to the mode of payment made being contrary to the terms and conditions of sale, the same would not vitiate the sale. The sale in any event was not under the provisions of the Companies Act and Rules on supervision by this Court. The order made by this Court would indicate that the sale was permitted to be made as per the Security Interest Rules and even if there are minor variations, the same does not call for interference in a proceedings of the present nature. 35. The contention that there is violation in view of the sale being confirmed and possession being handed over without leave of this Court also cannot be accepted since no such condition had been imposed by this Court. All that this Court had indicated in the earlier order was

37 37 to seek leave of this Court before appropriation is made and the reason for such direction is only to protect the interest of the amount payable as preferential payments under Section 529A of the Companies Act. In that regard, what is also to be noticed is that ARCIL has filed an affidavit dated wherein they have indicated that they undertake to return the appropriated sums if it is so directed by this Court in future. Hence, the concern in that regard would also stand addressed. 36. Further the reply statement filed on behalf of the KIADB would indicate that they have no objection to transfer the leasehold rights to the purchaser subject to the payment of Rs.49,37,06,280/- due to them. In any event, the said amount is in addition to the sale proceeds realised by ARCIL. As on today, though there is no factual quantification of the amount due to the workman, it is calculated roughly at Rs.5,50,00,000/-. Hence, if the

38 38 said amount is presently protected and ARCIL is bound over to deposit any additional preferential payments that may be adjudicated in future, the further process of liquidation would stand protected and the sale made and the appropriation if permitted would not prejudice the secured creditors of the company in liquidation. 37. In the result, the following: ORDER i) C.A.No.375/2012 with regard to sale of movables is disposed of without specific orders as it has become redundant. ii) C.A.No.1129/2013 filed by the Official Liquidator and CA No.1229/2014 filed by the State of Karnataka are dismissed.

39 39 iii) C.A.No.584/2013 filed by ARCIL seeking appropriation is allowed subject to the following: a) A sum of Rs.5,50,00,000/- (Rupees Five Crores and Fifty Lakhs only) shall be deposited with the Official Liquidator from the amount realised by sale, towards the provisional preferential payments. b) ARCIL shall remain liable to deposit any further amount, if directed by this Court in future, if further preferential amount is found to be due on adjudication by the Official Liquidator. iv) All parties to bear their own costs. Sd/- JUDGE Akc/bms