IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.8.2008 CORAM: THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR.JUSTICE V.DHANAPALAN O.S.A.Nos.381 to 383 of 2007 and M.P.Nos.1 of 2007 in O.S.A.No.381 of 2007, 3 of 2007 in O.S.A.No.383 of 2007, 1 of 2008 in O.S.A.No.383 of 2007, 2 of 2008 in O.S.A.No.381 of 2007 and 2 of 2008 in O.S.A.No.382 of 2007 and C.M.P.SR.Nos.29712, 29713 and 29715 of 2008 in O.S.A.No.383 of 2007 Jalal Nasar .. Appellant in O.S.A.Nos.381 and 382 of 2007 Fairdeal Supplies Pvt. Ltd., 4, BBD Bag (East), 5 Stephen House, 1st Floor, Kolkatta-700 001, Rep. herein by its Director Mahesh B.Gor (Cause Title accepted vide Order of Court, dated 5.12.2007 made in M.P.No.2 of 2007 in O.S.A.SR.No.94768 of 2007) .. Appellant in O.S.A.No.383 of 2007 vs. 1. The Official Liquidator, High Court, Madras, as the Liquidator of M/s.SIV Industries Limited (In Liquidation), Kuralagam, 1st Floor, Esplanade, Chennai-600 108. .. 1st respondent in O.S.A.Nos.382 and 383 of 2007 and sole respondent in O.S.A.No.381 of 2007 https://hcservices.ecourts.gov.in/hcservices/ 2. Asset Recovery Company (India) Limited, 17th Floor, Express Towers, Nariman Point, Mumbai-400 021. (Second respondent impleaded as party respondent-vide Order of Court dated 20.2.2008 made in M.P.No.1 of 2008 in O.S.A.No.382 of 2007) .. Second respondent in O.S.A.Nos.382 and 383 of 2007 3. Jalal Nasar 4. Maharashtra Steel Rolling Mills Pvt. Ltd., Mumbai. .. Third and fourth respondents in O.S.A.No.383 of 2007 Original Side Appeal No.381 of 2007 against the order of the single Judge of this Court dated 23.11.2007 in Company Application No.2941 of 2007 in Company Application No.370 of 2006 in Company Petition No.17 of 2004 and Company Petition No.107 of 2001. Original Side Appeal No.382 of 2007 against the order of the single Judge of this Court dated 23.11.2007 in Company Application No.2942 of 2007 in Company Application No.370 of 2006 in Company Petition No.17 of 2004 and Company Petition No.107 of 2001. Original Side Appeal No.383 of 2007 against the order of the single Judge of this Court dated 23.11.2007 in Company Application Nos.2941 and 2942 of 2007 in Company Application No.370 of 2006 in Company Petition No.17 of 2004 and Company Petition No.107 of 2001. For appellant in O.S.A.Nos.381 and 382 of 2007 and for third respondent in O.S.A.No.383 of 2007: Mr.Ganesh For appellant in O.S.A.No.383 of 2007: Mr.Prakash Goklaney For intervenor in C.M.P.SR.No.29712, 29713 & 29715 of 2008 in O.S.A.No.383 of 2007 :Mr.M.S.Krishnan, Senior Counsel for Mr.Sethuraman For respondent No.1 in O.S.A.No.382 and 383 of 2007 and sole respondent in O.S.A.No.381 of 2007: Mr.R.Gangadhara Rao, official Liquidator https://hcservices.ecourts.gov.in/hcservices/ For respondent No.2 in O.S.A.Nos.382 and 383 of 2007: Mr.Rangarajan For respondent No.4 in O.S.A.No.383 of 2007 : Mr.G.Ethirajulu JUDGMENT S.J.MUKHOPADHAYA,J All these Original Side Appeals arise out of the common order dated 23.11.2007 passed in Company Petition Nos.107 of 2001 and 17 of 2004 pursuant to the different Company Applications filed by respective parties. 2. Winding-up proceedings have been initiated against M/s.SIV Industries Limited (hereinafter referred to as 'the Company') on the reference by Board for Industrial and Financial Reconstruction (i.e. BIFR) and the Official Liquidator took over the Company; the learned single Judge (Company Judge), directed to hold "open-auction" in the Court relating to the property(ies) in question of the Company under liquidation at Sirumugai, Coimbatore; the auction was subsequently held on 2.11.2007. 3. The highest offer was given by one Jalal Nasar (the appellant in O.S.A.Nos.381 and 382 of 2007) for Rs.236 crores, which was accepted by the learned single Judge and the auction-sale was confirmed in his favour. The said Jala Nasar already deposited a sum of Rs.10 crores as "Earnest Money Deposit (i.e. EMD)" along with his offer, and was directed to pay the balance EMD of Rs.13.60 crores, which was not deposited within the stipulated time, i.e. on or before 16.11.2007. Certain adverse orders having been passed by the learned Company Judge, by the impugned order dated 23.11.2007, the appellant of O.S.A.Nos.381 and 382 of 2007, namely Jalal Nasar challenged the same; during the pendency of these O.S.As., prayer was also made to refund the security amount and not to forfeit the same. 4. Another unsuccessful bidder, namely M/s.Fairdeal Supplies Private Limited, who was the second highest bidder, preferred O.S.A.No.383 of 2007 against the very same impugned order passed by the learned Company Judge, dated 23.11.2007. 5. During the course of hearing of all these O.S.As., learned counsel appearing on behalf of the first highest bidder--Jalal Nasar (the appellant of O.S.A.No.381 and 382 of 2007), offered to deposit the entire amount of Rs.236 crores. 6. On 6.12.2007, learned counsel appearing on behalf of the appellant in O.S.A.No.383 of 2007 appearing for the second highest bidder, namely M/s.Fairdeal Supplies Private Limited, submitted that the said M/s.Fairdeal Supplies Private Limited agreed to pay a sum of https://hcservices.ecourts.gov.in/hcservices/ Rs.238 crores, when the learned counsel appearing on behalf of the appellant-M/s.Fairdeal Supplies Pvt. Ltd., was asked as to inform whether the appellant-M/s.Fairdeal Supplies Pvt. Ltd., was ready to deposit a sum of Rs.25 crores by the next date of hearing, with an idea that the said amount of RS.25 crores be treated as depositing 10% of the bid amount of Rs.250 crores, as an inclination was made to deposit such amount. 7. On 12.12.2007, learned counsel appearing on behalf of the appellant-M/s.Fairdeal Supplies Private Limited (in O.S.A.No.383 of 2007) submitted that the appellant in O.S.A.No.383 of 2007 feels that even depositing Rs.238 crores is not a valid offer in respect of the property (ties) in question. 8. When all these O.S.As. were taken up on 1.2.2008, after hearing the parties and the offer given by them, the following order was passed: "O.S.A.Nos.381 and 382 of 2007: Perused the offer submitted by Jalal Nasar, the appellant in these appeals, enclosed in the Memo dated 31.1.2008 filed before this Court, which offer was placed before the Assistant Consulur Officer, Embassy of India, Doha (Qatar). As the said offer was conditional, we are not inclined to accept the same. If the appellant is agreeable to take the property i.e. 260.89 acres of land and building thereon, and machineries mentioned in F.1 to F.4, as mentioned in Lot 'F' are available, excluding the movable property if any missing due to theft, the appellant will have to pay the total amount of Rs.236 crores (Rupees two hundred and thirty six crores only) as was originally offered, minus the security amount deposited already and forfeited, i.e. Rs.226 crores (Rupees two hundred and twenty six crores only). In such a case, the appellant will have to deposit another sum of Rs.13.60 crores (Rupees thirteen crores and sixty lakhs only) with the Official Liquidator, by 15.2.2008 and the rest of the sum of Rs.212.40 crores (Rupees two hundred twelve crores and forty lakhs only) with the Official Liquidator by 15.4.2008, failing which, O.S.A.Nos.381 and 382 of 2007 may be dismissed. We may also make it clear that if the respondent- Official Liquidator fail to hand over the immovable property to any extent out of 260.89 acres of land and building thereon, in that case, the appellant can ask for proportionate reduction of the amount on the basis of the valuation of https://hcservices.ecourts.gov.in/hcservices/ the land and building, as on record. If the aforesaid offer, as agreed upon by the respondent-Official Liquidator is accepted by the appellant, he will deposit the amount in terms of the aforesaid order. O.S.A.No.383 of 2007: So far as the appellant-Company in O.S.A.No.383 of 2007 is concerned, no specific order is being passed today. If the appellant in O.S.A.Nos.381 and 382 of 2007 fails to deposit the amounts in terms of the order passed today in those appeals, then, if the appellant-Company in O.S.A.No.383 of 2007 agrees, it is allowed 15 days' time to deposit a sum of Rs.23.60 crores (Rupees twenty three crores and sixty lakhs only) from the date of failure of the appellant in O.S.A.Nos.381 and 382 of 2007 and further sum of Rs.212.40 crores (Rupees two hundred twelve crores and forty lakhs only) within further period of sixty days, with similar conditions as mentioned in those appeals. Post O.S.A.Nos.381 to 383 of 2007 "For Orders" on 20.2.2008. Let a copy of this order be handed over to the counsel for the parties and the Official Liquidator." 9. The first highest bidder, namely the appellant-Jalal Nasar (in O.S.A.Nos.381 and 382 of 2007), even thereafter, having failed to deposit any amount, on the request of the second highest bidder, namely appellant-Fairdel Supplies Private Limited (in O.S.A.No.383 of 2007), the following order was passed on 20.2.2008: "O.S.A.Nos.381 and 382 of 2007: Pursuant to the Court's order dated 1st February 2008, the appellant of O.S.A.Nos.381 and 382 of 2007 had not deposited any amount and thereby the appeals are liable to be dismissed. 2. O.S.A.No.383 of 2007: Learned counsel on behalf of the appellant in this appeal referred to the above said order dated 1st February 2008 and submitted that the appellant agrees to comply with the same. 3. We accordingly, allow the appellant in O.S.No.383 of 2007 to deposit a sum of Rs.23.60 crores (Rupees twenty three crores and sixty lakhs only) with the Official Liquidator, by 7th March 2008 and the rest of the amount of Rs.212.40 https://hcservices.ecourts.gov.in/hcservices/ crores (Rupees two hundred and twelve crores and forty lakhs only) with the Official Liquidator by 7th May 2008, failing which O.S.A.No.383 of 2007 may be dismissed. 4. We make it clear that if the respondent- Official Liquidator fail to hand over the immovable property to any extent out of 260.89 acres of land and building thereon, in that case, the appellant in O.S.A.No.383 of 2007 can ask for proportionate reduction of the amount on the basis of the valuation of the land and building, as on record. If the aforesaid offer, as agreed upon by the respondent-Official Liquidator is accepted by the appellant, he will deposit the amount in terms of the aforesaid observation. Post O.S.A.Nos.381 to 383 of 2007 "For Orders" on 11th March 2008. Let a copy of this order be handed over to the counsel for the parties and the Official Liquidator." 10. On 28.3.2008, learned counsel appearing on behalf of the appellant in O.S.A.No.383 of 2007, informed that a sum of Rs.23.6 crores towards earnest money, has been deposited with the Official Liquidator on 18.3.2008 by way of Demand Drafts, dated 17.3.2008. In this background, time was allowed in favour of the appellant in O.S.A.No.383 of 2007 and the following order was passed on 28.3.2008: "O.S.A.No.383 of 2007: Learned counsel appearing for the appellant submitted that a sum of Rs.23.6 crores towards earnest money, has been deposited with the Official Liquidator on 18.3.2008 by way of Demand Drafts, dated 17.3.2008. This is accepted by the Official Liquidator. 2. So far as the rest of the amount of Rs.212.4 crores is concerned, learned counsel appearing for the appellant submitted that the aforesaid rest of the amount, shall be deposited by 15.4.2008 with the Official Liquidator. 3. In the circumstances, we allow the appellant in O.S.A.No.383 of 2007 to deposit such amount of Rs.212.4 crores (Rupees two hundred and twelve crores and forty lakhs only) with the Official Liquidator by 15.4.2008. https://hcservices.ecourts.gov.in/hcservices/ 4. The appellant has pleaded that after what has spread about the possibility of the early sale, there has been surge of miscreants into the premises for the purpose of theft, who may enter through various entry points where there is no wall or fencing or such wall has broken. In some cases, the miscreants may even sail by way of round bamboo boats (parisals) who may carry local firearms for their protection and for offence. Learned counsel appearing for the appellant prayed for protection of the movable properties. It is stated that the appellant is agreeable to pay the amount for security and will make available generator set for the purpose of electricity etc. 5. On behalf of the Official Liquidator, it was informed that pursuant to the order passed by the learned Company Judge, some security arrangement has already been made. 6. Having heard the learned counsel for the parties, we are of the opinion that the Official Liquidator may take advantage of the offer as being given by the appellant in O.S.A.No.383 of 2007, namely, Fairdeal Supplies Private Limited. The appellant or its agent may discuss the matter with the Official Liquidator and may offer for further security, subject to payment of costs if incurred by the appellant. The appellant may also make available the generator set(s) and fuel for the purpose of generating electricity in the premises in question, which may be done through any person on payment to be made by the appellant. In such a case, the total control will be of the Official Liquidator and the appellant or any of its agent or person shall not be allowed to enter into the premises. 7. Let a copy of this order be handed over to the parties and the Official Liquidator. 8. O.S.A.Nos.381 and 382 of 2007: In view of the above said order passed in O.S.A.No.383 of 2007, no order is passed for the present in O.S.A.Nos.381 and 382 of 2007. https://hcservices.ecourts.gov.in/hcservices/ 9. So far as the dispute relating to vakalat of two lawyers is concerned, they will resolve it in accordance with law. 10. Post O.S.A.Nos.381 to 383 of 2007 "for orders" on 17.4.2008 at 2.30 p.m." 11. Subsequently, in M.P.No.1 of 2008 in O.S.A.No.381 of 2007, by order dated 17.4.2008, filed for revocation of the vakalat, this Court observed that the vakalat of the petitioner-Jalal Nasar (i.e.appellant in O.S.A.Nos.381 and 382 of 2007) earlier granted in favour of the counsel Mr.S.R.Rajagopal and others, be revoked and the name of the counsel M/s.K.V.Dhananjay, G.K.Muthukumar and Premchandar of Anand and Anand, Advocates on record, be reflected in the cause list of the O.S.As., but with clear stipulation that the appellant (in O.S.A.No.381 and 382 of 2007) will not be allowed to re- agitate/re-argue such matter(s) which have already been argued/order (s) passed. Subsequently, as of today, one Mr.Ganesh, learned counsel (i.e. as on 4.8.2008, being the date of conclusion of the hearing of the appeals), appeared for the appellant in O.S.A.Nos.381 and 382 of 2007. 12. It is to be seen that an intervening application with consequential reliefs, were filed in C.M.P.SR.Nos.29712, 29713 and 29715 of 2008 in O.S.A.No.383 of 2007, by one M/s.AL Rostamani International Exchange, represented by its Head International Operations, Mr.V.V.Subramanian, P.O.Box No.10072, Dubai, United Arab Emirates, alleging fraud on the appellant-M/s.Fairdeal Supplies Private Limited in O.S.A.No.383 of 2007, in obtaining the Demand Drafts in question, for Rs.23.6 crores. The following allegations were levelled against the appellant-M/s.Fairdeal Supplies Private Limited, by the said intervenor-M/s.AL Rostamani International Exchange: Claiming himself to be the authorised representative of M/s.AL Rostamani International Exchange, the affidavit was sworn to by one Mr.V.V.Subramanian, contending that on 17.3.2008, the Demand Drafts in question, drawn on Canara Bank, Foreign Exchange Department, Anna Salai, Chennai, for Rs.1,18,00,000 (108256/AED) was issued by the intervenor-Company, in favour of the Official Liquidator, High Court, Madras (who is party-respondent in O.S.As) and the said Demand Drafts for Rs.23.60 crores, were stated to have been obtained by one Mr.Kochupillai Thulasi Das, have been obtained by playing fraud without paying any consideration, i.e. the cheque(s) issued by M/s.Power Engineering International Company, for obtainig the Demand Drafts returned for "insufficient balance" by the bankers. It is further averred by the intervenor-Company that on further verification, the Demand Drafts stated to have been https://hcservices.ecourts.gov.in/hcservices/ obtained/purchased on 17.3.2008, were handed over to the Official Liquidator on 18.3.2008 and the Demand Drafts were also encashed on 19.3.2008 by the Official Liquidator. It is further alleged that the Demand Drafts have been utilised by M/s.Fairdeal Supplies Private Limited, represented by Mr.Mahesh, B.Gor (the appellant-Company in O.S.A.No.383 of 2007). By order dated 1.2.2008 in O.S.A.No.383 of 2007, the Court allowed 15 days' time to the appellant of O.S.A.No.383 of 2007 to deposit a sum of Rs.23.60 crores. Pursuant to the said order dated 1.2.2008, it is stated by the intervenor-Company that the appellant-M/s.Fairdeal Supplies Private Limited deposited Rs.23.60 crores by way of Demand Drafts bearing No.074186 to 074205, dated 17.3.2008, each for Rs.1.18 crores as initial deposit for purchaing the property of the Company in question under liquidation, namely M/s.SIV Industries Limited. It is further stated by the intervenor-Company that a police complaint was also lodged against the aforesaid Mr.Kochupillai Thulasi Das and others, in Abu Dhabi, on 31.3.2008; the Police are investigating into the matter. In the meanwhile, the internvenor-Company wrote to the Official Liquidator by letter dated 1.4.2008, informing the fraud perpetrated to have been committed against it and requested not to part with the said sum of Rs.23.60 crores, deposited by the appellant-M/s.Fairdeal Supplies Private Limited. It is the further allegation of the intervenor-Company that the transaction had not taken place through any account transaction(s) with M/s.Fairdeal Supplies Private Limited and the Demand Drafts have been stated to have been brought- in-person from Abu Dhabi, which were handed over to the Official Liquidator. The intervenor-Company has correspondent-Banking-relationship with various Banks in India, including Canara Bank, wherein, the Demand Drafts were stated to have been encashed and on presentation of the said Demand Drafts, the amount(s) have been debited from the account of the intervenor-Company to the tune of Rs.23.60 corres, which is now stated to be lying in the Account of the Official Liquidator in Punjab National Bank, NSC Bose Road, Chennai. The intervenor-Company ultimately prays in C.M.P.SR.Nos.29712, 29713 and 29715 of 2008 in O.S.A.No.383 of 2007 that unless the Official Liquidator is restrained by an order of injunction from disbursing the amount either to the creditors of M/s.SIV Industries Limited (being the Company under liquidation) or any other person, pending disposal of the impleading/intervening petition, as its https://hcservices.ecourts.gov.in/hcservices/ interest will not be protected and no prejudice would be caused to the respondents in the impleading/intervening petition and also prays that the intervenor-Company is legally entitled to get the amount refunded and prays for a direction to the Official Liquidator to refund the said amount of Rs.23.60 crores. Being aggrieved, the intervenor-Company is not a party to the proceedings in O.S.A.No.383 of 2007, it is now seeking leave of the Court to implead itself as a party to O.S.A.No.383 of 2007, and to grant an order of interim injunction/refund of amount, as stated above. 13. On 17.4.2008, though the appellant of O.S.A.Nos.381 and 382 of 2007 (Jalal Nasar) shown interest to pay the amount in question, if some more time is granted, learned counsel appearing on behalf of the appellant in O.S.A.No.383 of 2007 submitted that the appellant- M/s.Fairdeal Supplies Private Limited has taken steps to resolve whatever dispute as was raised by the intervenor-Company, i.e. M/s.AL Rostamani International Exchange and the appellant of O.S.A.No.383 of 2007 undertook to deposit the amount of Rs.212.4 crores within time- frame as ordered by the Court earlier. 14. Finally, as both the parties failed to deposit the amount on 17.7.2008, the appellants in O.S.A.Nos.381 and 382 of 2007--the highest bidder and the appellant in O.S.A.No.383 of 2007--the second highest bidder, were asked to reply as to why their respective appeals be not dismissed, heavy costs be not imposed and the amount (s) deposited, be not forfeited and the concerned person(s) be not punished for "Contempt of Court" for giving false statement/undertaking before the Court. 15. Subsequently, as no specific explanation was given by any of the parties, one or other party simply requested to extend the time for further period to deposit the amount in question and if not, then, to refund atleast the security amount(s) deposited by them. 16. On behalf of the intervenor--M/s.AL Rostamani International Exchange, prayer was made to decide C.M.P.SR.Nos.29712, 29713 and 29715 of 2008 in O.S.A.No.383 of 2007, on merits, while the O.S.As. were being heard for final disposal. 17. From various orders recorded by this Court, as quoted above, it would be evident that since for more than eight months, the O.S.As. remained pending to resolve the dispute and to ensure that the auction-sale of the property in question, is completed, at least, at the cost offered by the respective highest bidders (Jalal Nasar and Fairdeal Supplies Private Limited), in spite of undertaking given by one or other party and various specific orders having been passed by this Court against one or other party, for no rhyme or reason, they failed to deposit the amount(s) as stipulated in the tender- https://hcservices.ecourts.gov.in/hcservices/ advertisement and ultimately, they tried to mislead the Court by seeking extension of time to deposit the amount(s) in terms of the various orders quoted above. 18. Having heard the learned counsel appearing for the respective parties and the counsel for the intervenor-Company, taking into consideration the relevant facts, as we find that the appellants in these O.S.As., namely the highest bidder-Jalal Nasar (in O.S.A.Nos.381 and 382 of 2007) and the second highest bidder- M/s.Fairdeal Supplies Pvt. Ltd., (in O.S.A.No.383 of 2007) have deposited certain amount(s), we decided not to initiate any "Contempt" proceedings against them. 19. Further, both the higheset bidders having failed to comply with the statement/undertaking given by them in spite of repeated adjournments granted by this Court, we are not inclined to allow the O.S.As. preferred by them. 20. The only question that arises for consideration in all these O.S.As. is as to whether the "Earnest Money" in terms of the auction- notice, deposited by one or other appellant(s), should be refunded or not? 21. The question relating to refund of "Earnest Money" fell for consideration before the Supreme Court in the decision reported in AIR 1970 SC 1986 ("H.C.Mills vs. Tata Air Craft"), wherein, the Supreme Court, while dealing with the provisions of Section 74 of the Contract Act, 1872, relating to the deposit of the "Earnest Money", having noticed the fact that the purchaser, by the terms of the Contract, was liable to deposit 25% of the purchase-price, held that, upon default/failure of the purchaser in paying the purchase-price, the "Earnest Money" deposited, shall be forfeited. 22. Similar view was taken by the Apex Court in the decision reported in 1996 (4) SCC 249 ("H.U.D.A. vs. Kewal Krishan Goel"), wherein, the Court held that the "Earnest Money" deposited shall bind the contract between parties and the forfeiture would be justified, when the contract falls through, on default/failure on the part of the allottee/purchaser. 23. In the decision reported in 2007 (1) SCC 228 ("Saurabh Prakash vs. DLF Universal Limited"), the Supreme Court noticed the distinction between "Security" and "Earnest Money" and held that the appellant-developer of the said case, rightly exercised its right to forfeit the "Earnest Money" as per the terms of the Contract. 24. In the present O.S.As., as it is not in dispute that in the tender-advertisement, the bidder(s) were asked to deposit 10% of the "Earnest Money" on acceptance of their bid, and in pursuance of the https://hcservices.ecourts.gov.in/hcservices/ bid, the highest bidder (appellant-Jalal Nazar, in O.S.A.Nos.381 and 382 of 2007) deposited only Rs.10 crores and not the total amount, subsequently, as the offer accepted by this Court on request of the appellant of O.S.A.No.383 of 2007, was in confirmity with the terms and conditions of the tender-advertisement, the appellant- M/s.Fairdeal Supplies Private Limited, being the second highest bidder (in O.S.A.No.383 of 2007) is also bound by the terms and conditions of the tender-advertisement, and he is liable to deposit 10% of the offer amount and the offer of Rs.236 crores, having been given by the appellant-M/s.Fairdeal Supplies Private Limited, he duly deposited 10% of the offer amount, i.e. Rs.23.60 crores. Having failed to deposit the rest of the amount in respect of the bid in question, in terms of the tender-advertisement and the orders passed by this Court as quoted supra, we are of the view that the amount deposited by the appellant-Jalal Nasar (in O.S.A.Nos.381 and 382 of 2007) and the appellant-M/s.Fairdeal Supplies Private Limited (in O.S.A.No.383 of 2007), be fofeited. It is accordingly ordered to forfeit Rs.23.60 crores (Rupees twenty three crores and sixty lakhs only)