SCA/16346/2006 1/36 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 16346 of 2006 With SPECIAL CIVIL APPLICATION No. 20381 of 2006 With SPECIAL CIVIL APPLICATION No. 10162 of 2007 For Approval and Signature : HONOURABLE MR.JUSTICE C.K.BUCH ========================================================= 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 ? ========================================================= NAYAN SHAH THRO'P.A.O. PARESH MANSUKHLAL SHAH - Petitioner(s) Versus THE STATE OF GUJARAT SERVED THRO' THE SECRETARY & 2 - Respondent(s) ========================================================= Appearance : SPECIAL CIVIL APPLICATION NO.16346 OF 2006 MR NM KAPADIA for Petitioner(s) : 1, MR VINAY S. PANDYA, LD.ASST.GOVERNMENT PLEADER for Respondent(s) : 1, MR RD DAVE for Respondent(s) : 2 – 3. SPECIAL CIVIL APPLICATION NO.20381 OF 2006 MR NM KAPADIA for Petitioner(s) : 1, MR VINAY S. PANDYA, LD.ASST.GOVERNMENT PLEADER for Respondent(s) : 1, MR RD DAVE for Respondent(s) : 2 – 3. SPECIAL CIVIL APPLICATION NO.10162 OF 2007 MR SN THAKKAR for Petitioner(s) : 1, MR RD DAVE for Respondent. ========================================================= SCA/16346/2006 2/36 JUDGMENT CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date : 04/03/2008 CAV COMMON ORAL JUDGMENT 1. Invoking jurisdiction of this Court under Article 226 read with Articles 14, 16 and 19(1)(g) of the Constitution of India, the petitioners of all these three petitions have inter alia prayed that this Court may issue appropriate writ, order or direction, if need be, a writ of mandamus directing the respondents to refund the amount of Earnest Money Deposit (hereinafter referred to as 'the EMD') deposited by the petitioners to the tune of Rs.5 lakhs in each case. In two petitions filed in the year 2006, the State of Gujarat is shown as party respondent no.1, and the respondent-State is served through the Ministry of Industrial Affairs of State of Gujarat, Sachivalaya, Gandhinagar. In the third petition filed in the year 2007 i.e. Special Civil Application No.10162 of 2007, the respondent-Gujarat Industrial Investment Corporation Ltd. (hereinafter referred to as SCA/16346/2006 3/36 JUDGMENT 'the respondent-Corporation') is the only party respondent. The parties are served. 2. I have heard Shri Vinay Pandya, learned Assistant Government Pleader, appearing on behalf of the respondent-State in two petitions and Shri R.D. Dave, learned counsel appearing for the respondent-GIIC. 3. It is the say of each of the petitioners that the respondent-Corporation decided to forfeit the amount of Rs.5 lakhs being EMD which was deposited by each petitioner with the respondent-Corporation in pursuance of the auction advertisement issued by the respondent-Corporation for the sale of assets of its borrower unit M/s. Hello Industries Ltd.. The grievance of each petitioner is that the order of forfeiture of EMD by the respondent-Corporation is arbitrary, illegal and unreasonable, and the same is not otherwise sustainable in the eye of law being unfair, and therefore, the action of forfeiting the amount of EMD may be held bad and unconstitutional. It is also the say of SCA/16346/2006 4/36 JUDGMENT each petitioner that the decision of forfeiture of amount of EMD was taken without offering the opportunity of being heard to the petitioners, especially when none of the petitioners was the highest or the first bidder of the auction held. The petitioners have given various reasons to buttress their say. The first say is that the forfeiture has been affected despite the respondent- Corporation itself had accepted the offer of the highest bidder i.e. one M/s. Choksi Associates. The day on which the bid of M/s. Choksi Associates was accepted and the said bidder was given an opportunity to pay up the agreed amount in the stipulated period, the petitioners had become entitled for refund of the amount of EMD. Most of the facts placed by all the petitioners are similar in all the three petitions, but because of some difference looking to the facts, it would be beneficial to state the say of each petitioner firstly in brief as under : 3.1 According to the petitioner of Special Civil Application No.16346 of 2006, he has submitted SCA/16346/2006 5/36 JUDGMENT the tender document offering the price in a sealed envelope in pursuance of the advertisement issued by the respondent- Corporation for purchase of the assets of M/s. Hello Industries Ltd. The said M/s. Hello Industries Ltd. moved this Court by way of preferring Special Civil Application No.125 of 2006 challenging the action of putting the assets under auction sale by the respondent- Corporation on various grounds including the ground of mala fide intention. This Court granted interim order in favour of the said industrial unit and restrained the respondent- Corporation from parting with the possession of the disputed properties and to finalize the sale document of any of the purchasers. The Court had directed the respondent-Corporation to intimate the proposed purchaser about the pendency of the petition and the interim order passed. These details were to be highlighted at the time of auction. As there was no prohibition against the auction sale arranged by the respondent-Corporation, it was held at Gandhinagar, and the petitioner was intimated about pendency of the litigation in writing on SCA/16346/2006 6/36 JUDGMENT 02nd February 2006 i.e. on the date of auction. Thereafter, the petitioner participated in the auction and the bid of this petitioner was at Sr.No.6 amongst the other highest bidders. According to this petitioner, apprehending the protraction of litigation and the fact that the respondent-Corporation had accepted the offer of the third party, this petitioner had withdrawn his bid. It is the backbone of the contentions raised by this petitioner that acceptance of offer of third party and the act of issuing sale letter asking the said bidder to make initial payment, was the conclusion of the contract with the present petitioner. The petitioner requested the Deputy General Manager of the respondent-Corporation at Surat and Gandhinagar respectively, to refund the amount of EMD deposited by him to the tune of Rs.5 lakhs. When the petitioner did not receive the amount of EMD back, he tried to pursue the matter and at that time, the petitioner came to know that the respondent- Corporation has started issuing the sale letters one after the another to the immediate highest bidder and on refusal by such bidder, SCA/16346/2006 7/36 JUDGMENT the respondent-Corporation had started passing the orders of forfeiting the amount of EMD. The petitioner also came to know that the amount of EMD of the bidder who was at Sr.No.5 was forfeited. By way of collection of amount of EMD, the respondent-Corporation has attempted to collect the amount of about Rs.30 lakhs to Rs.35 lakhs. This conduct of respondent-Corporation again can be said to be contrary to the spirit and object of the auction sale and that too a corporation, manned and managed by the Government, which ought not to have indulged into such practice. The act of issuing sale letter one by one is not a fair practice to grab or forfeit the amount of EMD and, therefore, this Court invoking jurisdiction may be pleased to hold the said act of the respondent-Corporation as absolutely illegal, unjust, improper and contrary to the provisions of law; and necessary directions may be issued to the respondent-Corporation to refund the amount of EMD to this petitioner. SCA/16346/2006 8/36 JUDGMENT 3.2 The say of the petitioner of Special Civil Application No.20381 of 2006 is that he was also one of the bidders for purchasing the assets of M/s.Hello Industries Ltd. and he had sent his offer in a sealed envelope along with the demand draft for Rs.5 lakhs as the amount of EMD. He had also participated in the bid on 02nd February 2006 at Gandhinagar. Though his initial offer was of Rs.3.51 crores, ultimately during the auction, he raised his offer upto Rs.5,36,75,000/-. However, because of the prohibitory order, the respondent- Corporation was not able to finalise the bid. It is submitted that this petitioner was at Sr.No.5 amongst the highest bidders. On 24th April 2006, the petitioner along with one of the bidders namely Shri Khushalbhai Choksi requested the Deputy General Manager of the respondent-Corporation to refund the amount of EMD to the tune of Rs.5 lakhs deposited by each of them towards the EMD, and it is pleaded by the petitioner that on acceptance of offer from the third party, he became entitled to get the amount of EMD back. Merely because certain persons were shorlisted SCA/16346/2006 9/36 JUDGMENT by the respondent-Corporation, it cannot retain and forfeit the amount of EMD one by one and the act of forfeiting the amount of EMD of the petitioner may be held as illegal, unjust, improper and appropriate directions may be issued to refund the amount of EMD to the petitioner. 3.3 The say of petitioner of Special Civil Application No.10162 of 2007 is materially similar to the say of the petitioners of aforesaid two petitions. It is the say of the present petitioner that the Court while dealing with Special Civil Application No.125 of 2006 had considered one crucial aspect placed by the original borrower company that it wants to repay the amount; raising several questions against conduction of auction sale and in the said petition, over and above the respondents, one M/s. Choksi Associates was also joined as party respondent. The borrower company had expressed its readiness and willingness to pay the dues of its creditor namely respondent-Corporation as per the One Time Settlement Scheme under the guidelines of SCA/16346/2006 10/36 JUDGMENT the Reserve Bank of India. Therefore, though he had paid the amount of EMD while offering the price as value of the assets of M/s. Hello Industries Ltd. and had participated in the auction sale, his amount of EMD ought not to have been forfeited. According to this petitioner, total about seven highest offerers were shortlisted in the bidding and M/s.Choksi Associates was the highest bidder which had offered the amount of Rs.6.84 crores. Thereafter, M/s. Patel Corporation had offered the amount of Rs.6.83 crores. The present petitioner had offered an amount of Rs.6.62 crores. So this petitioner was the third highest bidder. It is alleged that on 26th April 2006, the sale letter was issued by the respondent-Corporation in favour of the highest bidder i.e. M/s.Choksi Associates, on dismissal of the petition preferred by M/s.Hello Industries Ltd. and on vacation of the prohibitory order. On 12th May 2006, the respondent-Corporation realised that M/s. Choksi Associates has failed in depositing the sale consideration in terms of sale letter dated 26th April 2006, and the offer was, SCA/16346/2006 11/36 JUDGMENT therefore, made to M/s. Patel Corporation i.e. the second highest bidder. Thus, the bid of the second highest bidder was accepted and the sale letter was issued by the respondent- Corporation. The said action of the respondent-Corporation was challenged by M/s. Choksi Associates by filing a writ petition being Special Civil Application No.11255 of 2006 before this Court. It is alleged that appreciating the considerable delay in view of the petition filed by the borrower company and on account of fluctuation in the real estate market during the interregnum period and as the offers of other bidders were pending for finalisation, on 16th May 2006 the petitioner requested the respondent-Corporation to refund the amount of EMD to the tune of Rs.5 lakhs deposited by him. Thereafter, on 20th May 2006 the petitioner was issued a sale letter by the respondent-Corporation, but it is claimed by this petitioner that the said letter was not received by the petitioner. So on 26th May 2006, the petitioner again requested the respondent-Corporation to refund the amount of EMD. But on 29th May 2006, the respondent- SCA/16346/2006 12/36 JUDGMENT Corporation informed the petitioner about cancellation of the offer of the petitioner placing reliance on Clause 12 of the sale letter dated 20th May 2006 purportedly issued in favour of the petitioner. The say of the petitioner is that in view of the assurance an undertaking given by M/s. Choksi Associates in Special Civil Application No.11255 of 2006 filed by M/s. Choksi Associates, which was at the top in the list of shortlisted bidders, to make the payment of sale consideration i.e. 50% of amount on or before 30th June 2006 and the balanced amount on 07th July 2006 together with the interest at the rate of 18% per annum and when the respondent-Corporation had consented to this offer, the petitioner ought to have been refunded the amount of EMD and this Court may peruse the order passed by this Court (Coram : M.R. Shah, J) while disposing of the said Special Civil Application No.11255 of 2006. It is the say of the petitioner that vide letter dated 06th July 2006, he had informed the respondent-Corporation that no sale letter dated 20th May 2006 has been received by him and since the respondent- SCA/16346/2006 13/36 JUDGMENT Corporation has already accepted the offer of the highest bidder, the amount of EMD may be refunded to him. But on 26th July 2006, the petitioner was informed that after disposal of Special Civil Application No.125 of 2006 filed by the original borrower and even the second highest bidder had also failed in the process of paying the sale price offered, the sale letter was addressed to him on 20th May 2006. The amount of EMD was not refunded to him, but the grievance of the petitioner is that the letter of 20th May 2006 does not disclose the factum of filing of Special Civil Application No.11255 of 2006 and the order dated 06th June 2006 passed in the said petition. The said letter is also silent to the effect that M/s. Choksi Associates has been given further time to pay the amount upto 07th July 2006. The act of the respondent-Corporation of falling back in respect of letter dated 20th May 2006 is illegal, unjust, improper and unfair, when the respondent-Corporation was under process of finalising the sale offer made by M/s. Choksi Associates in a litigation pending in the High Court; and in that situation, the respondent- SCA/16346/2006 14/36 JUDGMENT Corporation could not have forfeited the amount of EMD without following the principles of natural justice. 4. In response to all the aforesaid three petitions, the respondent-Corporation has adopted the identical stand and a detailed joint reply affidavit has been filed in all the three petitions. The documents relied upon by the respondent-Corporation have been produced along with the reply affidavit. The say of the respondent-Corporation is that while exercising powers under Section 29 of the State Financial Corporation Act, the respondent-Corporation had taken over the assets of M/s. Hello Industries Ltd. and to realise the outstanding amount the properties of the said company were put under auction after completing the other legal formalities. It is not a matter of dispute that the original borrower had moved a writ petition being Special Civil Application No.125 of 2006, but the Tender Committee of respondent- Corporation, before conducting the auction on 02nd February 2006 and shortlisting the seven SCA/16346/2006 15/36 JUDGMENT highest bidders, including the petitioners of these three petitions, had informed them about pendency of the litigation and the interim order passed by the Court and certain embargoes imposed by the Court. The said petition ultimately was rejected vide order dated 25th April 2006. When all the three petitioners have actively participated in the bid and had raised their offer price in the process of auction conducted by the Tender Committee on 02nd February 2006, the respondent-Corporation was entitled to send a letter of offer one by one to them as per the chronology of all these shortlisted bidders. In this situation, the highest bidder M/s.Choksi Associates was given letter of offer on 26th April 2006, and it was asked to pay 30% of the offer price within a period of seven days. This bidder failed to pay the same and, therefore, the offer was cancelled vide letter dated 12th May 2006. Likewise, the second bidder who had offered Rs.6.83 crores, was given offer letter on 12th May 2006. However, he also committed default and did not make the down-payment; and hence, his offer SCA/16346/2006 16/36 JUDGMENT was also cancelled by letter dated 20th May 2006. So on 20th May 2006, the petitioner of Special Civil Application No.10162 of 2007 being the third highest bidder was given letter of offer and the petitioner of the said petition thereafter failed in making payment within a period of seven days. So cancelling the letter of offer, the respondent- Corporation decided to forfeit the amount of EMD. It is the say of the respondent- Corporation that the letter dated 20th May 2006 was served personally to a person present in the office of the petitioner of Special Civil Application No.10162 of 2007, and a xerox copy is produced at Annexure-R-1 in the said petition. So according to Shri R.D. Dave, learned counsel appearing for the respondent- Corporation, the action of forfeiting the amount of EMD is legitimate and there is no element of either illegality, impropriety or unfairness. 5. So far as the other two petitions i.e. Special Civil Application Nos.16346 of 2006 and 20381 of 2006 are concerned, it is submitted by Shri SCA/16346/2006 17/36 JUDGMENT R.D. Dave that both these petitioners were indisputably shortlisted bidders. They had decided to remain in queue. They were eager to purchase the property and, therefore, they had offered the amount during auction on the day on which the auction was conducted at Gandinagar. But it appears that because of the recession in the real estate market or for other financial or commercial reasons, both these petitioners had withdrawn their offer much prior to the termination of proceedings of Special Civil Application No.125 of 2006. The petitioner-Nayan M. Shah had withdrawn his offer on 27th February 2006 and that letter was delivered to the officer of the respondent- Corporation at Surat. The contents of the said letter speak that as he is not the highest bidder and he is not now hopeful to get the property in the price offered by him, he may be refunded the amount of EMD and had raised the query as to when he would get the amount of EMD back and whether he would get any interest on the amount of EMD offered or not. So they had lost right to claim the refund of amount of EMD being a shortlisted bidders, SCA/16346/2006 18/36 JUDGMENT otherwise they would have claimed the amount of EMD on the date of auction itself. The question of accepting the offer of M/s.Choksi Associates had cropped up for the first time in the month of April, 2006, when the Court dismissed the petition filed by the original borrower i.e. Special Civil Application No.125 of 2006. So withdrawal of the petitioner from the process of auction sale in the month of February, 2006 makes him disentitled to claim the amount of EMD. 6. It is further the say of Shri R.D. Dave, learned counsel appearing for the respondent- Corporation, that so far as the petitioner of Special Civil Application No.20381 of 2006 is concerned, he had requested to refund the amount of EMD on 21st April 2006. The said letter was handed over in person in the office of the respondent-Corporation. Two different drafts each for Rs.2.5 lakhs, were deposited by Shri Khushal V. Choksi and Hitesh Champaklal Shah. Only Hitesh Champaklal Shah has moved this petition though Shri Khushal Choksi had participated in the said auction. SCA/16346/2006 19/36 JUDGMENT 7. It appears from the document that both of them had decided to participate in the auction either as partners or in contemplation to start a joint venture. Whether Shri Khushal Choksi is a necessary party in such petition, is altogether a different question. But the fact remains that one of them has not approached the Court for refund of the amount of EMD. When the constitutional jurisdiction of this Court has been invoked by one of the persons who had deposited the amount of EMD for participating in the auction, this Court may not enter into this technical aspect but the dates of expressing intention to withdraw from the auction proceedings became relevant. Indisputably, on 26th April 2006 for the first time the sale letter was issued by the respondent-Corporation to the highest bidder M/s.Choksi Associates after disposal of the petition being Special Civil Application No.125 of 2006 on 25th April 2006. So on 21st April 2006, the decision to withdraw from the auction sale procedure obviously puts the petitioner in the same category of the SCA/16346/2006 20/36 JUDGMENT petitioner who had withdrawn from auction sale procedure in the month of February, 2006. Therefore, these two petitioners cannot allege anything against the respondent-Corporation. Indisputably, they are shortlisted and they had actively participated in the auction sale. The respondent-Corporation had never suppressed any fact as to pendency of the litigation, i.e. Special Civil Application No.125 of 2006 and the orders passed therein. There is sufficient documentary evidence on record to show that all the participants were informed about pendency of the petition and the interim order passed by the Court and, therefore, all the offerers were aware that they may be subjected to at least some protraction of litigation and when they were informed on 02nd February 2006, the act of their withdrawal from the auction sale procedure within 90 days cannot be said to be either proper or legal. 8. Shri R.D. Dave has placed heavy reliance on Condition No.12 of the Minutes of the Meeting of the Board of Directors held on 98th February SCA/16346/2006 21/36 JUDGMENT 2006 to consider the sale assets of M/s. Hello Industries Ltd. and also on general terms and conditions for sale of assets under Section 29 of the State Financial Corporation Act, 1951. He has drawn the attention of the Court to the following four main conditions which are relevant so far as present petitions are concerned : “3. GIIC Limited reserves its right to change/ alter the terms and conditions of sale of assets without any notice. 4. GIIC Limited reserves its right to accept any offer or to reject all or any of them, without assigning any reason. GIIC Limited may call for open bid among the offers on the day of the opening of the offers of thereafter. 5. On acceptance of the offer, the purchaser shall have to pay minimum 30% of the offer amount within 7(seven) days from the date of sale letter. The SCA/16346/2006 22/36 JUDGMENT balance amount shall have to be paid within a period of 60 (sixty) days i.e. 2 (two) months Interest @ 18% p.a. shall be charged after 30 (thirty) days from the date of Sanction letter. 6. If requisite payment is not received by GIIC Limited as per the terms of acceptance of the offer, the Earnest Money Deposit and further payment made by the purchaser will be forfeited by GIIC Limited.” 9. The plain reading of aforesaid four conditions makes the respondent-Corporation entitled to forfeit the amount of EMD of all the three petitioners. It is argued by Shri R.D. Dave that they are not entitled to raise any plea in reference to the pendency of Special Civil Application No.125 of 2006 as they were informed by the Tender Committee before drawing of the Minutes of the auction procedure conducted. It is the say of the respondent-Corporation that as per the decision of the Tender Committee as well as the Board of Directors, total seven bidders SCA/16346/2006 23/36 JUDGMENT were shortlisted and the petitioners were amongst them. However, all the three petitioners have refused to purchase the assets and, therefore, the amount of EMD of all the seven bidders has been forfeited. In the case of the offerers who have withdrawn their proposal immediately after opening of the tender, without