*HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR & *HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO +Rev.A.Nos.892, 893,894, 895 and 873 of 2010 in OSA Nos.3 of 2007, 30 of 2006,28 of 2007 and 45 of 2006 % Dated 17.07.2015 Rev.A.No.892 of 2010 in O.S.A.No.3 of 2007, Rev.A.No.893 of 2010 in O.S.A.No.30 of 2006 Rev.A.No.894 of 2010 in O.S.A.No.28 of 2007 and Rev.A.No.895 of 2010 in O.S.A.No.45 of 2006 Between: # M.Rambhushanam, Ex-Managing Director, M/s Commercial Agro Products Private Limited, … Applicant/appellant and $ M/s. Commercial Agro Products Private Limited(In Prov.Liqn.)Rep.by the Official Liquidator, High Court, Hyderabad And another …. Respondents/Respondents ! Counsel for the petitioner(Applicant) : M.S.Prasad, Senior Advocate, B.S.Raju, ^ Counsel for respondents : D.Krishnamurthy, P.Pratap Reddy K.Rathangapani Reddy. Rev.A.No.873 of 2010 in O.S.A.No.3 of 2007, Between: M/s. Commercial Agro Products Sheep Unit holders Welfare Association, Hyderabad, Rep. by its Secretary Sri N.V.Murthy …. Applicant/2nd Respondent and M.Rambhushanam, Ex-Managing Director, M/s Commercial Agro Products Private Limited, … Respondent/appellant M/s. Commercial Agro Products Private Limited(In Prov.Liqn.)Rep.by the Official Liquidator, High Court, Hyderabad …. Respondent ^ Counsel for applicant : A.Narasimha Rao, ^ Counsel for respondent No.1 : M.S.Prasad, Senior Advocate, B.S.Raju, Counsel for respondent No.2 : D.Krishnamurthy, P.Pratap Reddy K.Rathangapani Reddy < GIST : --- >HEAD NOTE : --- ? Cases referred: : 1. AIR 1965 SC 507 2. 2005(8) SCC 190 3. 2000) (5) SCC 274 4. (2005)13 SCC 289 5. (2000)1 SCC 666 6. (2005)4 SCC 741 7. (1972)2 SCC 273 8. (1998)5 SCC 123 9. (2004)8 SCC 236 10. (2008)10 SCC 440 11. (2008)4 SCC 222 12. AIR 1 954 SC 349 13 (2010)4 ALD 564 DB 14. AIR 1962 AP 271 15. AIR 1996 SC 2781 16. AIR 2007 SC 1874 17. (1984)4 SCC 657 18. (2008)12 SCC 777 19 (2008)9 SCC 299 20. (2005)1 SCC 212 21. clauses a to c are with almost same wording of Section 114 C.P.C. 22. AIR 1967 SC 1 = 1966 3 SCR 744 23. 1997(8)-SCC-715 24. 1971(3)SCC 844 25. (2000)6 SCC 224 26. AIR 1979 SC 1047 27. 1995(1)SCC 170=AIR 1995 SC 455 28. AIR-1964 SC-1372 29. 2009(10) SCC-464=2008(2)SCJ-597 30. (2012)7 SCC 200 31. AIR 1980 SCC 674 32. 1965(1)SCR 933 at 948 33. 1971(3)SCR 748 at 760 34. 1971(2)SCR 11 at p 27 35. 1993 SUPP (4) SCC 595 36. 1836(1) Moors–P.C.117 37. AIR 1941 FC 1 38. AIR-1980-SC-2041 39. AIR 2013 SC 3301 40. AIR 2003 SC 2095 HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR & HONOURABLE Dr.JUSTICE B.SIVA SANKARA RAO Rev.A.Nos.892, 893,894, 895 and 873 of 2010 in OSA Nos.3 of 2007, 30 of 2006,28 of 2007 and 45 of 2006 COMMON ORDER: (Per Hon’ble Dr.Justice B.Siva Sankara Rao) Four of the five Memoranda of Review Applications are filed by Sri M.Ramabhushnam (Ex. Managing Director cum authorised representative of M/s. Commercial Agro Products Private Limited, who had sought voluntary winding up U/s.433 &439 of the Companies Act) seeking review of the dismissal decrees dated 02.07.2010 covered by the common judgement of this Court in OSA Nos.30 of 2006, 45 of 2006, 3 of 2007 and 28 of 2007 & the fifth Review Application No.873 of 2010 filed by the unit holders is also against same common judgment in so far as OSA No.3 of 2007. (1).(A). Factual matrix: (i). Application No.893 of 2010-(in so far as OSA No.30 of 2006-against the order dt.13-04-2006 in C.P.No.1416 of 2004 allowing the petition of the official liquidator to effect sale of assets of the Company under winding up, by the Single Judge(Company Court) in the pending C.P.No.83 of 1997 for winding up; (ii). Application No.895 of 2010-(in so far as OSA No.45 of 2006-against the order dt.04-08-2006 in C.P.No.1416 of 2004, pursuant to the sales effected by the Official Liquidator on 15-07-2006 and finalised by the Court after negotiations with increase on 01-08-2006 by its acceptance, by rejection of the offer of higher price by said Ramabhushnam-(Ex.Managing Director of the Company under winding up) in the pending C.P.No.83 of 1997 for winding up and posted to 18-08-2006 for payment of balance by the highest bidders; (iii). Application No.892 of 2010-(in so far as OSA No.3 of 2007-against final order dt.01-11-2006 in C.P.No.83 of 1997, by winding up of the Company with directions to the Official Liquidator, to cause publish and to serve the order on the Registrar of Companies); (iv). Application No.894 of 2010-(in so far as OSA No.28 of 2007-against the order dt.17-11-2006 in C.P.No.1575 of 2006 allowing the delivery of lot No.3, for lot No.8 already stated delivered to the two applicants-purchasers and to execute sale deeds in favour of their nominees, which are part of the 10 lots (sold by auction and negotiations) of the Company under winding up); (v). Application No.873 of 2010-filed by the unit holders is also by impugning said common judgment dt.02-10-2010 in so far as OSA No.3 of 2007 as 2nd respondent to it). (vi). So far as the C.A.No.1529 of 2006 filed in October,2006 by Sri Chinnam Anjaneya swamy, highest bidder for Rs.83 lakhs and confirmed by Court on negotiations on dt.04-08-2006, in respect of lot No.4 of the sale notification i.e.,Ac.302.28 cents situate at Kakivaya village, Nellore district, having tendered the balance fully of Rs. 39,86,800/-within the extended time with 9% p.a. interest, granted by Court before dt.07-10- 2006, that was refused to accept by the Official Liquidator saying there is stay of confirmation of sales in OSA No.30 of 2006 filed in September by Sri Ramabhushnam, thereby seeking a direction to the Official Liquidator to accept the balance amount and execute sale deed in his favour (who was also impleaded as R4 on his Application No.21 of 2007 on 02-07- 2010 in OSA No.30 of 2006) and by order dt.29-11-2006(pursuant to the note from order of the Company Court dt.16-11-2006, tagged to decide with the OSA No.30 of 2006), that was allowed by the common judgment dt.02-10-2010 and the Official Liquidator accepted the balance amount and executed sale deed on 30-07-2010 concerned, there is no any separate review against it filed by any one. Thus, but for within the limited scope of review against OSA No.30 of 2006 as parties to it, if not also of OSA No.3 of 2007, no independent orders like sitting in appeal against the C.A.No.1529 of 2006 are required to be passed herein. 2. The contentions in the grounds of the five review memoranda impugning said common judgment (supra) in nutshell are that: A). In Rev.A.No.893 of 2010 against O.S.A.No.30 of 2006: When earlier C.A.No.151 of 1998 filed for ordering sale of the assets of the Company pending the winding up petition was dismissed, for ordering sale by the impugned order with no change in circumstances or reasons, even reasons are required for a judicial order as held in paras 11 to 13 by the Apex Court in Shankarlal Aggarwal vs Shankarlal Poddar[1], that there is no proper valuation, to base on valuation report dated 25.04.2004 of the assets sought to be sold in the application filed in 2004 for the same pending for two years to the date of sale ordered on 13.04.2006, for no fresh valuation of the assets have been done and said contention in the judgment was not even adverted to-vide decision of the Supreme Court in Rajasthan Financial Corporation Vs The Official Liquidator[2], apart from the failure to furnish valuation report vitiates the order as held by the Supreme Court in Union Bank of India Vs. Official Liquidator[3], that the judgments cited during the hearing not even adverted to in the impugned order, that it is urged during hearing a specific ground was taken in the memo of grounds that the appellant valued the land at Rs.6.00 crores in the statement of affairs filed in the year,2002 and the lands of an extent of Ac.1507.00 were divided into 10 lots of Ac.122.78, 38.43, 201.88, 302.28, 211.63, 215.43, 118.28, 227.66, 60.00 and 9.02, thus, making of lots un-yieldy and not into marketable lots to obtain higher price which is the object of auction and the same is not even adverted to in the order, that it is even specifically urged during the hearing that scheme of arrangement is pending in C.A.No.1168 of 2006 before the Company Court without disposing said application, Court could not have ordered for sale (in opposition to the contention that after confirmation of the sale same cannot be set aside -by relying upon the judgment of the Supreme Court in Valji Khimji-supra), even urged that when ordering of the sale itself is illegal, the sale can be set aside even after registration of sale deeds and same is neither adverted to nor even noted in the impugned order. (AA). The O.S.A.No.30 of 2006 was filed against the Company under winding up rep. by its official liquidator against order in C.P.No.1416 of 2004, that was filed by the Liquidator against the appellant-Sri M.Ramabhushnam (Ex.Managing Director cum authorised representative of the Company). Later in the appeal Sri V.Suraj kumar, Sri M.Chiranjeevi, Sri Chinnam Anjaneya swamy(highest bidders of lot Nos.5,6&4)-were impleaded as R2-4, on their Application Nos.1011/2006, 1226/2007 & 21 of 2007 respectively by orders of the Division Bench on 09-11-2006 & on 02-07-2010. Pending the review against those R1-4, to implead also the other highest bidders or their nominees, particularly R5 highest bidder of lot No.3 and his nominee is R6, R7 highest bidder of lot No.8 and R8-R12 are his nominees, R13-R16 are highest bidders of lot Nos.1, 2, 7 & 10 respectively and they moved application Nos. 893, 747, 753 of 2010 & 83 of 2007 and obtained sale deeds from the official liquidator, out of the 10 lots as R5-16, Application Nos.1100/2012 filed is pending with counters of some of the proposed parties. For no orders separately sought for herein, it depends on the result of the orders in the review application, since heard with. B). In Rev.A.No.895 of 2010 against O.S.A.No.45 of 2006: That the Court did not examine whether the price obtained for each lot is correct or not, the Court proceeded solely on the basis of the price realized in the auction rather than market value of the lands, that the appellant’s offer to deposit more than the sum realized by sale was rejected without considering the same on wholly irrelevant reasons, that the question of deposit earlier by the Managing Director does not arise as he is not a debtor by himself and no opportunity was given to deposit the amount, that the Court erred in observing that “the auction was over, bidders have already paid the entire bid amount and it is too late at this stage to fall back to any preceding stage’, which is a factual error for none of the bidders deposited the auction money except in respect of lots 3 and 8 and same is evident from the order of Division Bench passed in C.A.No.1363 of 2006 dated 09.11.2006 only in confirming the bids for lot Nos.3 and 8 subject to result of the appeal in O.S.A.No.30 of 2006, that on 04.08.2006 the Company Court while accepting highest bids adjourned the matter to 18.08.2006 for reporting payment of balance amount by the highest bidders and vide orders dated 07.09.2006, the Court observed that except for Lot Nos.3,8 and 10, the other highest bidders have not paid bid amounts and directed Official Liquidator to give instructions to the bidders to file applications for extension of time, hence, the question of confirmation of the bid vide orders dated 04.08.2006 does not arise since bids were not confirmed and finalized, that the judgment relied on by Valji Khimji (supra) does not apply to the present case, that it is also erred in observing that ‘the sale ultimately was confirmed by the learned single Judge as per the orders dated 04.08.2006 and thereafter there has been stay of sale confirmation granted on 13.09.2006’, which is also factually incorrect for the Company Court did not confirm the auction sale on 04.08.2006 and same had resulted in recording the wrong conclusion. C). In Rev.A.No.892 of 2010 against O.S.A.No.3 of 2007: That even evidence on record shows, due to the change of circumstances, the company has become viable and in a position to clear the dues of unit holders, that the Official Liquidator has not properly administered assets of the company and a creditor has given a cheque for Rs.1.3 crores towards discharge of his liability, but the Official Liquidator has not taken steps to prosecute that person when the cheque was bounced, that Official Liquidator, detrimental to interest of the company, filed an application and got released from attachment of 900 plots by allowed the Judgment Debtor to dispose of his remaining plots, except 158 plots which remained under attachment do not belong to the Judgment Debtor, that in the auction conducted by the Official Liquidator for an extent of Ac.1538.00 cts., he was able to fetch only Rs.6.29 crores whereas the appellant made an offer for Rs.10.00 crores, that the Unit holders filed an implead application in O.S.A.No.3 of 2007 in favour of scheme of arrangement proposed by the appellant and by opposing the winding up and without hearing the same impugned orders were passed, that C.A.No.1176 of 2008 in O.S.A.No.3 of 2007 filed by the appellant for sanction of scheme of arrangement with unit holders was not even considered, that except the unit holders there are no other creditors to the company, that once the scheme is sanctioned and dues of unit holders are settled, there is no justification for passing orders of winding up, that the observation of the Hon’ble High Court that “no attribution is also being made, much less an allegation of any worth against the Official Liquidator or the actions taken against him either in any of the affidavits or petitions filed by the appellant at any stage” is contrary to the material on record for Advocate Commissioners appointed by the Court clearly stated how the properties of the company were not properly administered, that the Court ought to have seen that the present value of the assets of the company is more than its liabilities and ought to have given opportunity to the appellant to revive the company considering the claim of the potential investor who came forward to invest in the company for about Rs.10 crores to utilize said amount to discharge its liabilities, that the Court ought to have seen that interest of the creditors and members are paramount in considering the company petition for winding up, however, when entire creditors of the company are opposing for winding up, it ought to have dismissed the winding up petition, that the assumption that appellant had no locus standi to file the appeal is incorrect as the appellant is the major shareholder in the company and his interests are vitally effected if winding up order is passed in the changed scenario. D). In Rev.A.No.894 of 2010 against O.S.A.No.28 of 2007: That the C.A.No.1575 of 2006 filed by respondents 2 and 3 is not maintainable as hit by principles of resjudicata and a blatant attempt to overreach the order of the Division Bench dated 09.11.2006 passed in C.A.No.1363 of 2006, that M/s.Raleigh Agro Forms Private Limited, rep. by its Managing Director-Sri A.Chandra Sekhara Reddy and M/s. Venkateswara Agro Farms, Nellore rep. by its Managing Partner-Sri V.Ramana Reddy, claiming to be highest bidders filed C.A.No.1363 of 2006 seeking directions to the Official Liquidator to deliver possession of the Lot Nos.3 and 8 and to execute sale deeds in the name of their nominees and said application was directed to post along with O.S.A.No.30 of 2006 filed by the appellant herein, that in C.A.No.1363 of 2006 though it was specifically prayed for possession and execution of sale deeds in favour of the auction purchasers and/or their nominees, the Division Bench disposed of said Application (C.A.No.1363 of 2006) by directing the Official Liquidator to handover possession of Lot Nos. 3 and 8 only to the auction purchasers subject to the conditions that they shall not alienate the properties in any manner or create any encumbrance and they shall not alter present status of the properties till final adjudication of O.S.A.No.30 of 2006, that the impugned orders directing 1st respondent to execute the necessary conveyance deeds in favour of the auction purchasers or their nominees is in contravention of the directions of Division Bench passed in C.A.No.1363 of 2006 and the impugned order bypassed earlier decision of the Division Bench is impermissible under law, that clause 28 of the tender conditions clearly stipulates that no one will be allowed to purchase in favour of nominees or would be entitled to assign his rights in favour of any person after sale, but the impugned order permits in contravention of the sale terms, that failure to record the contentions urged and failure to deal with the same resulted in substantial prejudice to the appellant. E). In Rev.A.No.873 of 2010 against the O.S.A.No.3 of 2007 common judgement in addition to the submission for reviews covered supra, further by the Unit Holders are that: The Unit Holders welfare Association is even respondent No.2 to the O.S.A.No.3 of 2007, however, have no knowledge about listing of the case for name of their counsel not mentioned in the cause list of hearing date 07.04.2010 depriving appearance and submission of arguments about their grievance and thereby their interest is adversely effected from disposal of the appeal in their absence for the reasons that except for lot nos.3,8&10 all other bidders not deposited amounts as per the terms of auction and without forfeiting their EMDs they were given undue advantage in confirming their bids favourable to them as a premium to their fault and at the cost of unit holders, besides the lots put to auction were in an unmarketable manner and had the scheme proposed in the application No.1176 of 2008 filed by Sri M.Ramabhushnam (Ex.Managing Director of the Company) sanctioned by the Court, the unit holders would be immensely benefited with the offer to them of Rs.15.85 crores and the common judgement observations of highest bidders all deposited amounts and the sales confirmed are not correct and hence to allow the review application. 3.(i).The review petitioner(appellant) of the four Review Applications supra of him, in the course of hearing reiterated the above contentions in the grounds of appeals as well as reviews and by drawing attention of this Court to the appeals common judgment sought for review in saying how they are justified in contending the impugned judgment is by misreading and also misapplication of the facts and law and it is nothing but just to review from error apparent on the face of record to their prejudice. The 5th review petitioner-Unit holder(s) almost sailed with the above petitioner of other reviews and in mainly saying the counsel name is not printed in the cause list of the appeal herein resulted could not participate that caused injustice and thereby it requires reopen and review. 3.(ii).The learned counsel for review petitioners having quoted, not relied on the two decisions (i).Rajasthan Financial Corporation 2005(8) SCC 190 and (ii).Union Bank of India 2000) (5) SCC 274, but for placed reliance and submitted the following 16 expressions:- 1. Rajendra Singh Vs. I.T.Governor, Andaman & Nicobar Islands [4] 2. M.M.Thomas Vs. State of Kerala [5] 3. Board of Control for Cricket in India Vs. Netaji Cricket Club [6] 4. Swarth Mahoto Vs. Dharmadeo Narayan Singh [7] 5. G. Rajamallaiah Vs. State of A.P. [8] 6. Allahabad Bank Vs. Bengal Paper Mills Company [9] 7. F.C.S. Software Solutions Limited Vs. LAM Devices Limited [10] 8. Vijay Kumar Karva Vs. Official Liquidator, Rohtas Inds Ltd. [11] 9. Shankarlal Aggarwala Vs. Shankarlal Poddar (supra) 10. Manilal Mohanlal Shah Vs. Sardar SAS Mohammad [12] 11. Shyam Trading Company, Sec’bad Vs. M.Krishna [13] 12. Mudragada Surynarayanamurthy Vs. Southern Agencies, Rajahmundry [14] 13. Balram S/o Basharam Vs. Ilam Singh [15] 14. M/s. Shilpa Shares & Securities Vs. National Co-op.Bank Ltd. [16] 15. Sudarshan Chits (I) Ltd. Vs. Sukumaran Pillai [17] 16. I.F.C.(I) Ltd. Vs. Vishnu Kant Gupta [18] 4.(i). Whereas it is the contention of the respondents on record that there is no error apparent on the face of record to their prejudice much less resulted any miscarriage of justice and even the grounds of review sought are not prone to review but for the remedy if at all is otherwise to file an appeal (with special leave) for any attack on merits and not to seek review as there is a distinction between error apparent on the face of record and erroneous conclusion if any, as such when the observations of the appellate Court are very clear with reasons and application of law to the facts and any mistake in mention of one or two facts after arriving a conclusion as additional facts and even by ignoring it, when that stand to reason, same is not prone for review. It is also brought to the notice of the Court that said Ramabhushnam, the review petitioner in R.A.No.892 to 895 of 2010 filed application No.1303 of 2005 for withdrawal of Company Petition under Rule 100 of the Rules,1959 and the same was ended in dismissal on 24.02.2006 that was also suppressed herein. Thereby it is sought for dismissal of the memoranda of the reviews with costs. 4.(ii).The learned counsel for review respondents placed reliance on the following expressions:- 1. Dale & Carrington Invst. (p) Ltd. Vs. P.K. Prathapan [19] 2. Valji Khimji & Company Vs. Official Liquidator of HNP(g) Ltd. [20] among other decisions. 5. From the respective contentions, the points now arise for consideration in deciding the memorandums of review (are the following; i) Whether there is any mistake or error apparent on the face of the record or any other sufficient reason to review the common judgment of this Court to correct and if not the common judgment undermines its soundness or results in miscarriage of justice? ii) To what result? Point No.i: 6. Before coming to the facts, from the rival contentions with reference to law, to answer the above point No.1 formulated, it is just to refer the principles laid down in the expressions referred by both sides and the scope of Order 47 Rule 1 C.P.C. for this Court to sit in review of the earlier appeals common judgment of this Court. 6(A).Order 47 Rule 4: (1).Application where rejected— Where it appear to the Court that there is no sufficient ground for a review, it shall reject the application. (2).Application where granted—Where the Court is of opinion that the application for review should be granted, it shall grant the same: Provided that— (a) no such application shall be granted without previous notice to the opposite party, to enable him to appear and be heard in support of the decree or order, a review of which is applied for; and (b) no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was passed or made, without strict proof of such allegation. 6(B).Oder 47 Rule 1: Application for review of judgment — (1).Any person considering himself aggrieved— (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes[21] and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, o r on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the