hvn IN THE HIGH COURT OF JUDICUATURE AT MUMBAI ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 152 OF 2010 Enpee Enterprises Pvt. Ltd. ... Appellant Versus The National Small Industries Corporation and Ors. ... Respondents Ms. R.M. Sidhwa with Mr. Bimal Bhabhda for the Appellant. Mr. R.J. Singh i/by M/s. R.J.Singh & Co. for R. No. 1. CORAM : F.I. REBELLO & R.V. MORE, JJ. DATED : JUNE 09, 2010 P. C.: This is an appeal by the auction purchaser against the order dated 12.11.2009 whereby the amount of Rs. 5 lacs has been forfeited which was given as earnest money. The facts are that the appellant was one of the participants in the auction and was declared as highest bidder. The auction took place on 31st March, 2009. The Petitioner on the very same day produced pay order for the said amount. However, the Pay Order was submitted after 4.00 p.m. In view of that, the Petitioner’s Pay order was not accepted and consequently the bid offer was rejected. The flat thereafter has been sold to subsequent purchaser. The grievance of the Appellant is that though they had substantially complied with the requirements, the amount of Rs. 5 lacs. was still forfeited. They had applied for setting aside the order of forfeiture. The learned Judge for the reasons recorded, rejected their request and consequently this appeal. We have considered the terms and conditions. Clause 5 sets out that the bid would be subject matter of the order to be passed by this court. In other words. It will be open to this court to exercise discretion in suitable cases if it finds that the order of forfeiture as contemplated by clause 5 is harsh. We find over here that the bid took place on 31st March, 2009. In so far as Banks are concerned, that would be the last day of financial year. The appellants managed to get Pay Order for the said amount. However, it was deposited late by one hour. In our opinion, in these circumstances, to forfeit the amount wold be oppressive. Considering Clause 5 of the terms and conditions this will not be a fit case to forfeit the amount. In the light of that impugned order is set aside. The Sheriff is directed to return the amount within four weeks from today. If the said amount is returned within four weeks from today, there will be no interest. If the said amount is not returned within stipulated period, it will carry interest at the rate of 8% p.a. from the date of forfeiture. Appeal allowed accordingly. The appellant to serve copy of the order on the Sheriff forthwith. (R.V. MORE,J.) (F.I. REBELLO,J.)