SCA/16650/2007 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 16650 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 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 ? ========================================================= ASHOKKUMAR NATHURMAL AVATANI - Petitioner(s) Versus LALVANI CONSTRUCTION & 2 - Respondent(s) ========================================================= Appearance : MR NIRAV C THAKKAR for Petitioner(s) : 1, MR KV SHELAT for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 18/03/2008 ORAL JUDGMENT Rule. Learned advocate Shri KV Shelat waives service of rule on behalf of respondent No.1. In view of the controversies between the parties, it is not SCA/16650/2007 2/4 JUDGMENT necessary to await service of rule on respondent Nos.2 and 3. In response to the notice issued by this Court earlier, though served they had not remained present. 2. Petitioner has challenged an order dated 22nd June 2007 passed by learned Principal Senior Civil Judge, Nadiad below application Ex.215 in Insolvency Petition No.3/99. By the said order, learned Judge was pleased to accept the bid of respondent No.1 herein of Rs.28 lacs for a shop of the insolvency-applicant debtor. The learned Judge further provided that the amount of Rs.28 lacs shall be deposited before the Court within two months whereupon sale deed would be executed in favour of the party. It is not in dispute that the petitioner had also offered an amount of Rs.27 lacs which according to the petitioner was accepted by the Receiver. However, later on respondent No.1 offered the higher bid which the learned Judge directed to be accepted. 3. Learned advocate Shri Nirav Thakker for the petitioner submitted that the petitioner was a successful bidder. He had offered the highest price for the shop in question. Only after opening of his bid, respondent No.1 offered his bid which was marginally higher than the bid of the petitioner which could not have been accepted by the court below. SCA/16650/2007 3/4 JUDGMENT 4. Without going into the validity of the rival contentions, I am of the opinion that the proceedings are required to be remanded to the learned Judge only on the ground that the case of the petitioner is that on the date when the impugned order was passed, the advocate of the petitioner was not present since the advocates were away from work and the petitioner was not able to assist the court though his presence might have been noted by the learned Judge. In any case, notice to the petitioner was extremely short. 5. Only on this ground, the impugned order is quashed. Proceedings are remanded to the learned Judge for fresh consideration. Until such time fresh order is passed, the amounts deposited by the respective parties may be retained by the court or at the discretion of the court the same may be invested in fixed deposit in any nationalized bank. 6. While hearing the petition, some unusual aspects of the matter came to light, namely, admittedly, the bids were invited not by public auction, but by private intimation/negotiations by the Receiver. Ordinarily, wide publicity preferably through public advertisement would best serve the interest of the debtor as well as the creditors and it is not known as to how the Receiver selected a few persons for postal intimation to the exclusion of other interested parties. For want of further necessary particulars in this regard, I refrain from SCA/16650/2007 4/4 JUDGMENT making any further observations. However, this is one aspect of the matter which the learned Judge shall have to take into account while taking a fresh decision as provided herein-above. 7. The petition is disposed of in above terms. Rule is made absolute accordingly. (Akil Kureshi, J.) (vjn)