Holding

The High Court was correctly empowered to set aside the confirmed sale and order a fresh sale at a higher price, as the sale price was inadequate and the specific clause allowed such intervention in the interest of creditors and the public.

Summary

The Calcutta High Court ordered the winding up of Tirupati Woollen Mills Ltd and directed the official liquidator to sell its assets as a going concern. The initial reserve price was Rs.37 lakh, which was later raised to Rs.85 lakh and then to Rs.1.30 crore, with Divya Manufacturing Co. (P) Ltd being declared the highest bidder. Subsequent applicants Sharma Chemical Works and Jay Prestressed Products offered Rs.2 crore each and sought to set aside the confirmed sale, invoking a clause in the sale terms that allowed the court to reopen the sale in the interest of creditors and the public. The Division Bench held that the clause gave it authority to set aside the sale, that the price of Rs.1.30 crore was grossly inadequate compared to the later offers, and that the court was not functus officio until possession and execution of the sale deed. Accordingly, the sale in favour of Divya was set aside, the respondents were ordered to pay nominal compensation, and a fresh sale at the higher reserve price of Rs.2 crore was directed. The Supreme Court dismissed the appeals, upholding the High Court’s discretion.

Issues considered

The court's power to set aside a confirmed sale of a company's assets under a specific clause in the terms and conditions for the benefit of creditors and public interest.
Whether a higher subsequent offer after a sale has been confirmed justifies reopening and setting aside the sale.
Whether the court becomes functus officio after confirming a sale and thus loses jurisdiction to revisit the decision.
The adequacy of the sale price in light of the Companies Act, 1956 and Companies (Court) Rules, 1959.

Legislation cited

Companies Act, 1956
Companies (Court) Rules, 1959s. Rule 273

Subjects

winding upsale of assetscompany liquidationcourt discretionsetting aside salecreditors' interestpublic interestCompanies Act 1956Companies (Court) Rules 1959auctionvaluation

Judgment

A DIVY A MANUFACTURING CO. (P) LTD.
TIRUPATI WOOLLEN MILLS
SHRAMIK SHANGHA7lSH SAMITY AND ANR.
v.
UNION BANK OF lNDIA AND ORS.
OFFICIAL LIQUIDATOR AND ORS.
B
JULY 11, 2000

[M.B. SHAH AND R.P. SETHI, JJ.]

c Companies (Court) Rules, 1959: Rule 273.

Winding up of company-Confirmed sale-Setting aside of-
Permissibi/ity--High Court accepted highest offer and confirmed sale-
Subsequent/y, some parties offered much higher prices-High Court directed
D the parties to deposit 20% of their offer and to pay a certain amount of
compensation to the original bidder and set aside the confirmation of sale-
A clause in the terms and conditions of sale empowered the High Court to
set aside the confirmation of sale in the interest of creditors and/or public
interest-Correctness of-Held: High Court rightly set aside the sale in the
exercise of its discretion although there is no suggestion of fraud or
E irregularity-More so when the High Court exercised its jurisdiction within
the shortest time-However, fresh sale ordered with a reserved price fixed at
the new higher price-Companies Act 1956.

The appellant company (f) was ordered to be wound up by the High Court
F and an official liquidator was directed to take charge of the said company.
The properties of T were valued at Rs. 37 lakhs on the basis of the valuation
report. The appellant-company (D) was agreeable to purchase the company T
at that price as a going concern. Subsequently, the company judge directed
the official liquidator to publish an advertisement inviting fresh offers for
the purchase of the company T.D. enhanced its offer to Rs. 85 lakhs from
G Rs. 37 lakhs and it was declared as the highest bidder. However, the High
Court did not confirm the sale in favour of 0 as the respondent-Bank, a
secured creditor, requested for further opportunity to bring a higher offer.
However, since no one turned up to make any higher offer, the Company Judge
conditionally accepted D's offer with liberty to the secured creditors to find
higher offer within 30 days. However, the Division Bench of the High Court
I-I 474
DIVYA MFG CO. (P) LTD TIRUPATI WOOLLEN MILLS SHRAMIK SHANGHARSH SAMITY' U.O I 475

stayed the aforesaid order. A
The Division Bench directed the official liquidator to conduct a fresh
sale with a reserved price of Rs. 85 lakhs. D's offer of Rs. 1.30 crores was
accepted and the sale was confirmed in its favour. Subsequently, respondents
(T and S) filed an application for setting aside the sale in favour of Das they
were prepared to offer Rs. 1.40 crores and Rs. 2 crores respectively. To show B
their bona fides they were prepared to deposit 20% of these amounts. D
opposed this application.

The Division Bench referred to a clause of the terms and conditions of
sale which empowered the High Court to set aside the sale even though it is
confirmed for the interests of creditors contributors and all concerned and/ C
or public interest. The Division Bench noted that the amounts offered had
increased from Rs. 37 lakhs to Rs. 2 crores. The Division Bench, therefore
set aside the sale in favour of D and directed T and S to compensate D by
paying Rs. 70,000 each for the loss suffered by D and directed re-sale of the
assets ofT. Hence this appeal. D
Dismissing the appeal, this Court

HELD: I. The Division Bench of the High Court has considered all the
relevant facts including the fact that at the initial stage, appellant D offered
only Rs. 37 lakhs to purchase the properties. That means, the appellant wanted E
to purchase at a throwaway price. Thereafter, at the intervention of the Court,
the price was increased to Rs. l.3 crores by the appellant. This indicates that
the appellant was keen to purchase the property, however, by paying only the
bare minimum amount and to take advantage of sale by the liquidator in the
hope that if there are no other purchasers, it would purchase the company at
a price which is abnormally below the market price. It is also true that the F
offer made by the appellant was accepted and it was ordered that sale in its
favour be confirmed but at the same time, before possession of the property
could be handed over, or before the sale deed could be executed in its favour,
respondents S and J pointed out that the assets and properties could be sold
at Rs.2 crores. For showing their bonafides they were directed to deposit G
Rs. 40 lakhs each and also to pay Rs. 70,000 each as damages to the appellant
Further, the application for setting aside the sale was filed within a few days
of the order accepting the bid of the appellant. In these set of circumstances,
when the correct market value of the assets was not properly known to the
Court and the sale was confirmed at grossly inadequate price, it was oper. to
the Court to set it at naught in the interest of the company, its secured and H
476 SUPREME COURT REPORTS (2000] SUPP. I S.C.R.

A unsecured creditors and the employees. The appellant is also duly
compensated by payment of Rs. 70,000 each by respondents S and J. It is the
duty of the Court to see that tl?\price fetched at the auction is an adequate
price even though there is no suggestion of irregularity or fraud.

Navalkha & Sons v. Sri Ramanya Das, 11969) 3 SCC 537, relied on.
B
Gordhan Das Chuni Lal v. T. Sriman Kanthimathinatha Pillai, AIR
(1921) Mad 286; Rathnaswami Pillai v. Sadapathy Pillai, AIR (1925) Mad
318; S. Soundarajan v. Roshan & Co., AIR (1940) Mad 42 and A. Subbaraya
Muda/iar v. K. Sundararajan, AIR (1951) Mad 986, cited.

C 2. When the appellant offered Rs. 1.30 crores S was not permitted to
bid because it had not complied with the requirements of the advertisement
Moreover, the Division Bench ordered that offers of F and J would be
considered and confirmation of sale would be made on the basis of the offers
made by these two parties. Further, despite the fact that the appellant D had
D withdrawn its earlier offer, the Court permitted it to take part in making
further offer. In these set of circumstances, there was no need to confine the
bid between three offerors only.

LICA (P) Ltd. (1) v. Official Liquidator, (1996) 85 Comp. Cases 788
(SC) and LICA (P) Ltd (2) v. Official Liquidator, (1996) 85 Comp. Cases 792
E (SC), relied on.

3.1. Further, there is a specific condition in the terms and conditions of
saie, which empowers the Court to set aside the sale even though it is confirmed
for the interests of creditors, contributors and all concerned, and/or public
interest. Therefore, it cannot be said that the Court becamefunctus officio
F after the sale was confirmed. The offer of Rs. 1.30 crores is totally inadequate
in comparison to the offer of Rs. 2 crores and in case where such higher
price is offered it would be in the interest of the Company and its creditors to
set aside the sale. This may cause some inconvenience or loss to the highest
bidder but that cannot be helped. In the present case, the Court has reviewed
G its exercise of judicial discretion within a shortest time.

3.2. The Liquidator is directed to take appropriate steps at the earliest,
by obtaining an order from the Court for sale of the property by calling tenders
or by auction in accordance with law after giving due publicity in the
newspapers, particularly, the newspapers having circulation in Delhi and in
H the State of Haryana with a reserved price fixed at Rs. 2 crores (as offered).
DIVY A MFG. CO. (P) LTD. TIRUPATI WOOLLEN MILLS SHRAMIK SHANGHARSH SAMITY v. U.0.1. [SHAH J.] 477
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4706 and A
4707of1998.

From the Judgment and Order dated 11.8.98 of the Calcutta High Court
in G.A. No. 344/98 in A.C.O. No. 16of1998.

Harish N. Salve, Ms. Indra Jaising, P.S. Mishra, Rana Mukherjee, Ms. B
Sumita Mukherjee, Rajiv Talwar, D.P. Mukherjee, Ms. Nandini Mukherjee,
Janendra Lal, Ms. Yasmin Tarapore, L. Nageshwara Rao, Sanjoy Kumar Ghosh,
Avijit Bhattacherjee, S. Bhowmick, P. Ghosh, Ghansham Joshi and Aruneshwar
Gupta for the appearing parties.
c
The Judgment of the Court was delivered by

SHAH, J. These appeals are filed against the judgment and order dated
l l.8.1998 passed by the Division Bench of the High Court of Calcutta in GA
No. 344 of 1988 in Appeal (ACO) No. 16 of 1998 whereby the sale of the
assets and properties of the Tirupati Woollen'Mills Limited ("Tirupati Mills" D
for short) (under liquidation) confirmed on July 2, 1998 in favour of the
appellant-Divya Manufacturing Co. ("Divya" for short) had been recalled and
set aside the application of respondent No. 7, Sharma Chemical Works (For
short "Sharma") and respondent No. 8, Jay Prestressed Products Ltd. ("Jay"
for short) herein. E
In 1972, 'Tirupati Mills' was incorporated to manufacture carpet yam at
Sonepat (Haryana). On 30.5.88, a financial institution filed a reference to the
BIFR and it was declared as sick industrial company. On 27.1.1994, BIFR
proposed winding up of the Company. On 21.4.95, the High Court of Calcutta
ordered winding up of the company and directed official liquidator to take F
charge of the company. On 5.7.1997, Tirupati Woollen Mills Shramik Sangharsha
Samity ("Samity" for short) respondent No. 3 entered into an agreement with
appellant-Divya whereby 'Divya' agreed to run 'Tirupati Mills' and to provide
re-employment to the workmen of the said company upon purchase of the
assets and properties of the said company under liquidation. On 17.12.1997, G
the 'Samity' made an application No. 741 of 1997 before the High Court of
Calcutta inter alia praying that (i) the assets and properties of the company
be sold to 'Divya' at the price valued by the Official Liquidator and/or valuer
appointed by him or ~t such price as the Court may deem fit and proper; (ii)
'Divya' be directed to re-employ all the workers as agreed by agreement dated
5.7.1997 and (iii) the Official Liquidator be restrained from taking further steps H
478 SUPREME COURT REPORTS [2000] SUPP. I S.C.R.

A with regard to the sale of their assets and properties. The learned Company
Judge by order dated 22.12.1997 directed the Official Liquidator to indicate the
valuation of the properties to all concerned. On 24.12.1997, the learned Company
Judge directed the Official Liquidator to publish the notice for sale specifying
that the factory of the company (in liquidation) would be sold as a going
concern with a reserved price fixed at Rs.3 7 lakhs on the basis of valuation
B report. However, respondent No. I (Union Bank of India) pleaded that the
approximate value of the company in liquidation was about one crore and if
the same is to be sold after advertisement, they will have no grievance. The
Official Liquidator was directed to publish sale notice specifying the company
to be sold as a going concern in the Hindustan Times, Statesman and Hindi
C newspape~s in circulation in the State of Haryana. The learned Judge also
noticed that appellant 'Divya' was agreeable to purchase the factory of the
company (in liquidation) as a going concern and to provide employment to
the existing workers who were out of employment since the last 12 years.
Being aggrieved by the order dated 24.12.1997, respondent No. 1, Bank filed
an appeal, being CA No. 22 of 1998 before the Division Bench for setting
D aside that order. The same was dismissed on 12.1.1998 with liberty to the bank
to agitate the same before the learned Single Judge at the time of hearing of
the matter.

In the meantime, notice for sale was issued and the Official Liquidator
E published an advertisement inviting offers for the sale of the assets and
properties of the company (in liquidation) in newspapers. On 31.12.1997, the
Union Bank of India valued the immovable properties of 'Tirupati Mills' at
Rs. 1,21,00,000. Inspection of the assets of the company was allowed and 12
intending purchasers took inspection of its assets on 2.1.1998. On 16.1.J 998,
about 14 parties made their offers to purchase the company. 'Divya' enhanced
F its offer to Rs. 85 lakhs from 37 lakhs and it was declared as the highest
bidder. In addition to its offer of Rs. 85 lakhs, 'Divya' also agreed to re-employ
the workmen of 'Tirupati Mills'. Inspite of being the highest offeror the sale
was not confirmed in favour of the 'Divya' as the bank pleaded that they
should be given further opportunity to bring a higher offer. The High Court
G agreed to give a further opportunity to the offerors to match the offer of the
appellant. On 17.1.1998, the bank made application before the company Court
being CA 41 of 1998 for re-advertisement of the sale. On 6.2.1998 when the
matter was heard, as no one turned up to make any higher offer, the offer of
the 'Divya' was conditionally accepted by the learned Single Judge with
liberty to the secured creditors to find higher offer within 30 days. The
H appellant was directed to deposit the balance sum of Rs. 77 lakhs as per the
DIVY A MFG. CO (P) LTD TIRUPATI WOOLLEN MILLS SHRAM!K SHANGHARSH SAM!TY '· U.O.l. [SHAH, J.] 479
notice for sale. A
Being aggrieved by the order dated 6.2.1998, respondent No. I, Bank and
respondent No.3, the 'Samity' preferred appeals being GA Nos. 141and107
of 1998 respectively before the Division Bench. By order dated 9th March,
1998, the part of the order dated 6.2.1998 confirming the sale in favour of
'Divya' was stayed. B

On 6th May, 1998, it was ordered that the Official Liquidator should take
steps to conduct fresh sale in the manner indicated in the said order and the
Company be sold as a going concern with a reserved price of Rs.85 lakhs.
The Court also noted that the auction purchaser has not withdrawn the C
amount deposited by it and that auction purchaser reserved its rights and
contentions with regard to the sale already clinched in its favour by the
learned Single Judge. The matter was kept for further proceedings on 17th
June, 1998. Sale notices as directed mentioning terms and conditions were
issued. On 14th May 1998, on behalfofauction purchaser (Divya) an application
was filed contending therein that it wanted to back out from the offer to D
purchase the Company for an amount of Rs.85 lakhs. Court noted that the
matter required consideration and therefore, directed the parties to file necessary
affidavits on or before 17th June 1998 when appeal was to come up for
consideration. Finally, at the request of learned counsel for 'Divya', Court
permitted it to withdraw 80 per cent of the amount out of 85 lakhs and to keep E
20 per cent of the amount i.e. Rs. 17 lakhs as deposit liable to forfeiture if
ultimately there is no buyer who makes any bid for an amount of Rs.85 lakhs.
On 26th June 1998, the Court directed the Official Liquidator to open sealed
covers containing the offers by six bidders. On that day, the Court directed
the matters to be placed for hearing on 2nd July, 1998, for finalisation of sale
either in favour of Mis Eastern Silk Industries Ltd. or Mis Jay Prestressed F
Products Ltd. Again on 2nd July, 1998, additional offers of three bidders were
received i.e. Mis Eastern Silk Industries Ltd. offered Rs. 1.0 I crores, Mis Jay
Prestressed Products Ltd. offered Rs. 1.25 crores and Mis Divya offered Rs.
1.30 crores. Hence, the offer of 'Divya' was accepted and sale was confirmed
in its favour on the conditions mentioned therein. On the sa.me day, the Court G
also disposed of the appeals and applications accordingly.

On I 0th July 1998, Jay, respondent No.8 filed an application before the
Division Bench p;·aying that order dated July 2, 1998 accepting and confmning
the sale in favour of 'Divya' be recalled and set aside and it be given an
opportunity to submit its offer of Rs. 1.40 crores for the assets of the H
480 SUPREME COURT REPORTS [2000] SUPP. I S.C.R.

A company in liquidation. On 23rd July, 1998, respondent No. 7, 'Sharma' served
upon the appellant an application inter a/ia praying that order dated 2nd July,
I998 be recalled as it was prepared to pay Rs.2 crores for the purchase of the
assets of the Company. At the time of hearing of these applications on 23rd
July, 1998, on behalf of respondent Nos. 7 and 8 it was submitted that they
were ready and willing to purchase the Company as a going concern and to
B establish their bona fides, they were prepared to deposit 20 per cent of Rs.
2 crores. On the basis of the said applications, the Court directed the applicants
to deposit Rs. 40 lakhs each with the Official Liquidator. Thereafter, the matter
was kept for hearing on I I th August, I 998 on which day the Court considered
the facts stated above and also the applications filed by respondent Nos. 7
C and 8 to re-open the confirmed sale. Those applications were opposed by the
auction purchaser (Divya) and also by respondent No.3 'Samity'. After
considering the submissions made by the learned counsel, the Court referred
to the following clause I I of the terms and conditions of Sale and held that
in view of the specific term, the Court was vested with authority to set aside
the sale for the benefit of the creditors etc. and/or in public interest:
D
"Clause I I: The Hon'ble High Court may set aside the sale in favour
of purchaser/purchasers even after the sale is confirmed and/or
purchaser consideration is paid on such terms and conditions as the
Court may deem fit and proper for the interest and benefit of creditors,
E contributories an·d all concerned and/or public interests."

The Court noted that it cannot shut eyes to the fact that initially the
property was proposed to be sold at the price of Rs.3 7 lakhs. Thereafter the
sale was confirmed at Rs.85 lakhs which was set aside and at the intervention
of the Division Bench, the amount was enhanced to Rs. I .3 crores. The Court
F observed that as two applicants have come forward with a proposal to
purchase the said property at Rs.2 crores, the principle laid down in LICA (P)
Ltd (/) v. Official Liquidator, (1996) 85 Comp. Cases 788 and L/CA (P) Ltd,
(2) v. Official Liquidator, (I 996) 85 Comp. Cases 792] applies squarely to the
facts of the present case. The Court also observed that it was conscious of
G the fact that there should be a finality even in a company sale, but so long
as possession is not handed over to the purchaser and the sale deed is not
executed, the Court by virtue of clause I I of the terms and conditions for sale
can re-open the sale in the interests of justice. The Court also referred to the
decision in Naval/cha and Sons v. Sri Ramanya Das and Ors., [I 969] 3 SCC
537]. Considering all the submissions made by the learned counsel for the
H parties, the sale confirmed in favour of appellant for an amount of Rs.1.3
D!VYA MFG CO. (P) LTD. TIRUPATI WOOLLEN MILLS SllRAMIK SHANGHARSH SAMITY '· U.0.1. [SHAH, J.J 48 J
crores was set aside with a direction that respondent Nos. 7 and 8 should A
compensate 'Divya' by paying Rs. 70 thousand each for the loss suffered by
it and directed for re-sale of the assets of the Company. That order is under
challenge before this Court.

At the time of hearing of these appeals, on behalf of respondent Nos. 7
and 8, it was reiterated that they were still prepared to purchase the property B
in question at the price they had offered before the High Court of Calcutta
and they were eager to purchase the same for a sum of Rs. 2 crores. On behalf
of 'Divya ', it was stated that it was not prepared to make any offer or
statement at present.

The learned counsel for the appellant submitted that the order passed
c
by the High Court setting aside the confirmed sale is on the face of it illegal
and erroneous. He submitted that before confirmation of sale in favour of
'Divya' all endeavours were made by the judges and finally the offer of
appellant to purchase at Rs.1.30 crores was accepted and sale was confirmed.
At that time, Jay-respondent No.8 had not increased its offer of Rs. l .25 D
crores. Respondent No.7 was not permitted to bid as he did not comply with
the requirements mentioned in the advertisement for sale and, therefore, on
2nd July, 1998 before commencement of auction sale, he was not permitted
to participate in auction. It is, therefore, submitted that after the sale is
confirmed, subsequent higher offer cannot constitute a valid ground for E
setting aside such confirmation. He referred to various decisions in support
of his contention and submitted that once the sale was confirmed by the
Court after applying its mind to all relevant considerations, it is not permissible
to probe in retrospect and to accept subsequent offers by 'Jay' or 'Sharma'.
He pointed out that as such initial valuation report fixed the value of the
property at Rs.37 lakhs only. Thereafter the appellant raised its offer to Rs.85 F
lakhs and agreed to re-employ the workmen, so the learned Single Judge
confirmed the sale in its favour. As the said order was challenged before the
Division Bench, the Division Bench directed the Official Liquidator to conduct
fresh sale and finally the highest offer of appellant of Rs.1.30 crores was
accepted by the Court. In such a situation, the Division Bench wrongly relied G
upon the judgment of this Court in LICA (P) Ltd. v. Official Liquidator and
Anr., ( 1996) 85 Company Cases 788. It is also submitted that after disposal of
the appeal, the Division Bench became functus officio and therefore also it
could not review its earlier order.

As against this, learned counsel for the respondents submitted that as H
482 SUPREME COURT REPORTS [2000] SUPP. I S.C.R.

A the price offered by the appellant is grossly inadequate in comparison to the
subsequent offers by respondent Nos.7 and 8, the Court was justified in
setting aside the sale.

In our view, on facts it is apparent that the Division Bench of the High
B Court has considered all the relevant facts including the fact that at the initial
stage, the appellant 'Divya' offered only Rs.37 lakhs to purchase the properties.
That means, the appellant wanted to purchase at a throw away price. Thereafter,
at the intervention of the Court, the price was increased to Rs.1.3 crores by
the appellant. This indicates that appellant was keen to purchase the property,
however by paying only the bare minimal amount and to take advantage of
C sale by the liquidator in the hope that if there are no other purchasers, it
would purchase the Company at a price which is abnormally below the market
price. It is also true that on 2nd July I 998, the offer made by the appellant
was accepted and it was ordered that sale in its favour be confirmed, but at
the same time, before possession of the property could be handed over, or
before the sale deed could be executed in its favour, respondent Nos. 7 and
D 8 pointed out that the assets and properties could be sold at Rs.2 crores. For
showing their bona tides, they were directed to deposit Rs.40 lakhs each and
also to pay Rs.70 thousands each as damages to the appellant. Further, the
application for setting aside the sale was filed within a few days of the order
accepting the bid of the appellant. In these set of circumstances, when correct
E market value of the assets was not properly known to the Court and the sale
was confirmed at grossly inadequate price, it was open to the Court to set
it at naught in the interest of the company, its secured and unsecured creditors
and the employees. Appellant is also duly compensated by payment of Rs.70
thousands each by respondent Nos. 7 and 8.

F The law on this subject is well-settled. In the case of Navalkha and
Sons (supra}, after appellant's offer was accepted, a fresh offer from one
Gopaldas Darak for higher amount was received by stating that he could not
offer in time because he came to know of the sale only 2 days prior to the
date of the application and there was possibility of higher bids. Instead of
G directing a fresh auction or calling for fresh offers, the learned Judge thought
it proper to arrange an open bid in the Court itself on that very day as
between Mis Navalkha and higher offeror Gopaldas Darak. Mis Navalkha
thereafter offered higher bid at Rs. 8,82,000 and its bid was accepted and the
learned Judge concluded the sale in its favour with a direction to pay the
balance amount. Thereafter an application was filed offering Rs. I 0 lakhs. A
H contention was raised that due publicity of the sale of the property was not
D!VY A MFG CO. (P) LTD. TIRUPA Tl WOOLLEN MILLS SHRAMIK SHANGHARSH SAMITY '· U.0.1. [SHAH, J.] 483

' made, but that application was rejected by the Court. Hence, an appeal was A
filed by the applicant who made an offer of Rs. I 0 lakhs and another by one
contributory against the order of confirmation. Both appeals were allowed by
the Division Bench and the order passed by the learned Judge was· set aside
with a direction to take fresh steps for sale of the property either by calling
sealed tenders or by auction in accordance with law. That order was challenged
before this Court by M/s Navalkha. It was contended that there was no
B
justification for the Division Bench to interfere with the order of th~ learned
Single Judge. In that context, after quoting Rule 273 of the Companies (Court)
Rules, 1959, the Court observed:

"The principles which should govern confirmation of sales are
well established. Where the acceptance of the offer by the
c
Commissioners is subject to confirmation of the Court the offeror does
not by mere acceptance get any vested right in the property so that
he may demand automatic confirmation of his offer. The condition of
confirmation by the Court operates as a safeguard against the
property being sold at inadequate price whether or not it is a D
consequence of any irregularity or fraud in the conduct of the sale.
In every case it is the duty of the Court to satisfY itself that having
regard to the market value of the property the price offered is
reasonable. Unless the Court is satisfied about the adequacy of the
price the act of confirmation of the sale would not be a proper exercise
E
of judicial discretion. In Gordhan Das Chuni Lal v. T. Sriman
Kanthimathinatha Pillai AIR (192 I) Mad. 286, it was observed that
where the property is authorised to be sold by private contract or
otherwise it is the duty of the court to satisfy itself that the priceJixed
is the best that could be expected to be offered. That is because the
Court is the custodian of the interests of the company and its creditors F
and the sanction of the Court required under the Companies Act has
to be exercised with judicial discretion regard being had to the interests
of the Company and its r.reditors as well. This principle was followed
in Rathnaswami Pillai v. Sadapathy Pillai, AIR (1925) Mad. 318 and
S. Soundarajan v. Mis Roshan & Co., AIR (1940) Mad. 42. In A.
G
Subbaraya Mudaliar v. K. Sundararajan, AIR (1951) Mad. 986 it was
pointed out that the condition of confirmation by the Court being a
safeguard against the property being sold at an inadequate price, it
will be not only proper but necessary that the Court in exercising
the discretion which it undoubtedly has of accepting or refusing the
~ highest bid at the auction held in pursuance of its orders, should see H
484 SUPREME COURT REPORTS (2000] SUPP. I S.C.R.

A that the price fetched at the auction is an adequate price even '
though there is no suggestion of irregularity or fraud. "

From the aforesaid observation, it is abundantly clear that the Court is
the custodian of the interests of the Company and its creditors. Hence, it is
the duty of the Court to see that the price fetched at the auction is an
B adequate price even though there is no suggestion of irregularity or fraud.
As stated above, in the present case, the sale proceedings have a chequered
history. The appellant started its offer after having an agreement with the
Employees Samity for Rs.37 lakhs. This was on the face of it under bidding
for taking undue advantage of Court sale. At the intervention of the learned
C Single Judge, the bid was increased to Rs.85 lakhs. Subsequently, before the
Division Bench, the appellant increased it to Rs.1.30 crores. At that stage,
respondent No.7, 'Sharma' was not permitted to bid because it had not
complied with the requirements of the advertisement. It is to be stated that
on 26th June, 1998, the Division Bench has ordered that offers of Eastern Silk
Industries Ltd. and Jay Prestressed Products Ltd. would only be considered
D on 2nd July, 1998 and confirmation of sale would be made on the basis of the
offers made by the two parties. Further, despite the fact that the appellant
'Divya' had withdrawn its earlier offer, the Court permitted it to take part in
making further offer as noted in the order dated 2nd July, 1998. In these set
of circumstances, there was no need to confine the bid between three offerors
E only.
In LICA (P) ltd. (/) v. Official liquidator and Anr., (1996) 85 Comp.
Cases 788, this Court dealing with a similar question observed thus:

"The purpose of an open auction is to get the most remunerative
F price and it is the duty of the court to keep openness of the auction
so that the intending bidders would be free to participate and offer
higher value. If that path is cut down or closed the possibility of fraud
or to secure inadequate price or underbidding would loom large. The
Court would, therefore, have to exercise its discretion wisely and with
circumspection and keeping in view the facts and circumstances in
G each case."

The matter was again brought before this Court and in LICA (P) ltd.
(2) v. Official liquidator & Anr., (1996) 85 Comp. Cases 792 and the Court
held:

H "Proper control of the proceedings and meaningful intervention
DIVYA MFG. CO. (P) LTD. TIRU>ATI WOOLLEN MILLS SHRAMIK SHANGHARSH SAMITY v. U.OJ [SHAH, 1] 485
by the court would prevent the formation of a syndicate, underbidding A
and the resultant sale of property for an inadequate price. The order
passed by this Court yielded the result that the property which would
have been finalised at Rs.45 lakhs, fetched Rs.1.10 crores and in this
Court a further offer of Rs.1.25 crores is made. In other words, the
property under sale is capable of fetching a higher market price. Under B
these circumstances, though there is some force in the contention of
Sri Ramaswamy that the Court auction may not normally be repeatedly
disturbed, since this Court, on the earlier occasion, had limited the
auction between the two bidders, the impediment will not stand in the
way to. direct sale afresh. Even today the parties are prepared to
participate in the bid." C
Further, there is a specific condition No.I I in terms and conditions of
sale as quoted above which empowers the Court to set aside the sale even
though it is confirmed for the interests of creditors, contributories and all
concerned and/or public interest. In this view of the matter, it cannot be said
that the Court became fanctus officio after the sale was confirmed. As stated D
above, neither the possession of the property nor the sale deed was executed
in favour of the appellant. The offer of Rs.1.30 crore is totally inadequate in
comparison to the offer of Rs.2 crores and in case where such higher price
is offered, it would be in the interest of the Company and its creditors to set
aside the sale. This may cause some inconvenience or loss to the highest E
bidder but that cannot be helped in view of the fact that such sales are
conducted in Court precincts and not by a business house well versed with
the market forces and price. Confirmation of the sale by a Court at grossly
inadequate price, whether or not it is a consequence of any irregularity or
fraud in the conduct of sale, could be set aside on the ground that it was not
just and proper exercise of judicial discretion. In such cases, a meaningful F
intervention by the Court may prevent, to some extent, underbidding at the
time of auction through Court. In the present case, the Court has reviewed
its exercise of judicial discretion within a shortest time.

In the result, Civil Appeal No. 4706 of 1998 filed by 'Divya' and Civil G
Appeal No. 4707of1998 filed by the 'Samity' stand dismissed. Interim order
stands vacated. Pending hearing and disposal of this appeal as the order
passed by the Division Bench of the High Court was stayed, fresh directions
are required to be obtained from the Court for fixing the time- table for
conduct of the auction sale. Hence, the Liquidator is directed to take appropriate
steps at the earliest, by obtaining an order from the Court for sale of the H
486 SUPREME COURT REPORTS (2000) SUPP. I S.C.R.

A property by calling sealed tenders or by auction in accordance with law after
giving due publicity in the newspapers, particularly, the newspapers having
circulation in Delhi and in the State of Haryana with a reserved price fixed at
Rs.2 crores (as offered). The parties are directed to bear their respective costs.

v.s.s. Appeals dismissed.

' .