IN THE HIGH COURT OF JUDICATURE AT PATNA COMP. APP. No.5 of 2010 M/S SYMBIOSIS ELECTRONICS PRIVATE LIMITED, A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 HAVING ITS OFFICE AT BINOSHIBA HOUSE, NEAR CHANDANI MARKET, P.O. G.P.O., P.S. KOTWALI, DISTRICT PATNA, THROUGH ITS MANAGING DIRECTOR, BINOD KUMAR, S/O LATE SHALIGRAM PRASAD, R/O SALIMPUR AHRA, LANE NO.1, P.S.- KADAM KUAN, DISTRICT.- PATNA. ...APPELLANT. Versus 1. M/S BAHUBALI CEMENTS LIMITED (COMPANY IN LIQUIDATION), THROUGH THE OFFICIAL LIQUIDATOR, PATNA HIGH COURT, 4TH FLOOR, BLOCK-A, MAURYALOK COMPLEX, DAK BUNGALOW ROAD, PATNA 2. BIHAR INDUSTRIAL AREA DEVELOPMENT AUTHORITY UDYOG BHAWAN, EAST GANDHI MAIDAN, PATNA, THROUGH ITS MANAGING DIRECTOR. .... RESPONDENTS. ----------- 03- 9.4.2010 Heard Mr. Y.V. Giri for the appellant, Mr. Arvind Shukla, the Official Liquidator, and Mr. Lalit Kishore for respondent no.2. This appeal under section 483 of the Companies Act 1956, is with respect to the order dated 29.1.2010, passed by the learned Company Judge, on I.A. No.6132 of 2009, in Company Petition No.13 of 2003, whereby the interlocutory application filed by respondent no.2 herein for re-tender of Schedule-I property of the Company in liquidation, namely, Bahubali Cements Limited, 2 has been allowed, and the bid allegedly finalised in favour of the appellant on the earlier occasion has been recalled. 2. A brief statement of facts essential for the disposal of this appeal may be indicated. Sale notice was issued on 4.5.2009, inviting offers for purchase of the assets of the Company in liquidation. Respondent no.2 herein offered an amount of Rs.10,00,000/- (ten lacs), which was subsequently raised to Rs.30,00,000/- (thirty lacs). However, the best offer of Rs.35,00,000/- (thirty-five lacs), was of somebody else, which was not accepted. By order dated 24.7.2009, fresh tender notice was published. The appellant offered a sum of Rs.50,00,000/- (fifty lacs), and another party offered Rs.48,00,000/- (forty-eight lacs). The appellant’s offer was accompanied with an advance amount of Rs.5,00,000/- (five lacs). The appellant’s bid amount was accepted, who has since then deposited the balance amount of Rs.45,00,000/- (forty-five lacs). In other words, the appellant has deposited the entire bid amount of rupees fifty lacs. 3. Respondent no.2 thereafter filed I.A. No.6132 of 2009, praying therein that the sale amount in favour of the appellant is grossly on the low side, and a fresh tender may fetch higher amount. The same has, on consideration, been allowed by the impugned order, passed by the learned 3 Company Judge, the order of sale in favour of the appellant has been recalled, and a fresh tender has been ordered for. 4. While assailing the validity of the order in question, learned counsel for the appellant submits that it was not open to the learned Company Judge to set aside the order for sale in favour of the appellant in a situation where the entire amount has been deposited. In his submission, settled affairs cannot be unsettled in the manner it has been done. He relies on the judgment of the Supreme Court in Valji Khimji and Company vs. Official Liquidator of Hindustan Nitro Product (Gujarat) Limited and others, (2008) 9 SCC 299 (paragraphs 28 to 30). 5. Learned counsel for the respondents has supported the order in question. It is submitted that the appellant had deposited a sum of Rs.45,00,000/- (forty-five lacs) after the present interlocutory application has been filed. It is further submitted that it is not a case of setting aside of the sale in favour of the appellant, rather the same has been withdrawn. Pendente Lite developments have also been brought to our notice. 6. We have perused the materials on record and considered the submissions of learned counsel for the parties. It appears to us that the appellant has deposited the entire bid 4 amount of rupees fifty lacs. However, nothing happened beyond that stage, and neither the sale has been confirmed on completion of formalities, nor possession of the property has been made over to the appellant, nor the document of title has been issued. Therefore, the judgment of the Supreme Court relied upon by the learned counsel for the appellant does not really help him. On the contrary, in view of the example given in the judgment of the Supreme Court, it appears to us that the learned Company Judge rightly recalled the sale order for which we must notice the Pendente Lite developments. 7. After the said order dated 29.1.2010 was passed, a fresh advertisement was published and the property in question has been directed to be sold for the amount of Rs.1,32,00,000/-, in favour of M/s. Mars Mountain Securities and Trade Pvt. Ltd. . The wide gap between Rs.50,00,000/-, and 1,32,00,000/-, is itself sufficient justification for the fresh tender in a situation where the right, title and interest of the property did not pass on to the appellant. Indeed the possession continues with respondent no.1, in view of the interim order passed by this Court on 17.3.2010. 8. We are indeed called upon to strike a fine balance between the interest of the appellant whose bid has been accepted and the entire amount has been accepted bereft of 5 transfer of right, title and interest on the one hand, and the wide difference in the two amounts on the other. We are without hesitation of the view that we are entirely agree with the steps taken by the learned Company Judge. 9. In the result, this appeal is dismissed. Let a sum of Rs.50,00,000/- (fifty lacs) along with the T.D.S. certificate, if any, be returned to the appellant, along with interest at the current bank rate from the date of deposit(s) till the date of refund. (S K Katriar, J.) (Kishore K. Mandal, J.) S.K.Pathak/