Common Order:(Dr. Justice B. Siva Sankara Rao, J.)
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 (AIR 1965 SC 507), 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 (2005(8) SCC 190), 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 (2000) (5) SCC 274), 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 res-judicata 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 judgment 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 judgment 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 (2005)13 SCC 289)
2. M.M.Thomas Vs. State of Kerala (2000)1 SCC 666)
3. Board of Control for Cricket in India Vs. Netaji Cricket Club (2005)4 SCC 741)
4. Swarth Mahoto Vs. Dharmadeo Narayan Singh (1972)2 SCC 273)
5. G. Rajamallaiah Vs. State of A.P. (1998)5 SCC 123)
6. Allahabad Bank Vs. Bengal Paper Mills Company (2004)8 SCC 236)
7. F.C.S. Software Solutions Limited Vs. LAM Devices Limited (2008)10 SCC 440)
8. Vijay Kumar Karva Vs. Official Liquidator, Rohtas Inds Ltd. (2008)4 SCC 222)
9. Shankarlal Aggarwala Vs. Shankarlal Poddar (supra)
10. Manilal Mohanlal Shah Vs. Sardar SAS Mohammad (AIR 1 954 SC 349)
11. Shyam Trading Company, Sec’bad Vs. M.Krishna (2010)4 ALD 564 DB)
12. Mudragada Surynarayanamurthy Vs. Southern Agencies, Rajahmundry (1962 AP 271)
13. Balram S/o Basharam Vs. Ilam Singh (AIR 1996 SC 2781)
14. M/s. Shilpa Shares & Securities Vs. National Co-op.Bank Ltd. (AIR 2007 SC 1874)
15. Sudarshan Chits (I) Ltd. Vs. Sukumaran Pillai (1984)4 SCC 657).
I.F.C.(I) Ltd. Vs. Vishnu Kant Gupta (1984)4 SCC 657)
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 (2008)9 SCC 299)
2. Valji Khimji & Company Vs. Official Liquidator of HNP(g) Ltd. (2005)1 SCC 212) 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?
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:
(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 (clauses a to c are with almost same wording of Section 114 C.P.C.)
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 Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.
[Explanation- The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.]
6(C). This is not a case of discovery of new matter or evidence to receive and support as a ground for review, much less to reject for want of any proof in that regard; but for to consider whether there is any mistake or error apparent on the face of the record or any other sufficient reason to review the appeals judgment of this Court. No doubt, it is subject to the showing of the review applications filed are within the period of limitation of one month U/Art.124 of the Limitation Act from 02-07-2010, the date of the impugned common judgment, excluding time taken U/s. 12 of the Limitation Act from date of applying to the date of getting ready of certified copy of the impugned common judgment. For all the review applications there is nothing to show filing of any applications to condone the delay in filing the respective reviews; particularly for review application No.873/2010 (SR.6212/2010) of the unit holders, filed on 06-10-2010 With certified copy of the judgement dt.02-07-2010, copy application applied on 02-07-2010 and made ready and dispatched on 27-07-2010. Thus the review applications not shown filed within time to entertain.
6(D). It is subject to the above, necessary to dwell into what is meant by mistake or error apparent on the face of record and what is meant by any other sufficient cause (to mean similar to and not every sufficient cause) for review, as the basic principle from the above wording underlying to decide is to correct if there is any error or mistake or the like by review for rendering justice and to prevent injustice by such a rectification and not to substitute any opinion; for the scope of review is entirely different and very limited when compared to the scope of appeal. It is for the fact that for appellate Court, the powers are inherent, wide and coexistence with that of trial Court and entire matter is at large; whereas for review the powers are very limited only to correct any mistake or error etc., to interfere by referring to the judgment under review sought to find out in order to cure for sake of justice and not to substitute some other opinion by going through entire material on record in re-appreciation of evidence, for not an appeal in disguise.
6(E). In this regard, from the decisions cited by both sides and the decisions referred and relied therein respectively, the law is well laid down in the following:-
I). Rajender singh (supra) is a review in writ jurisdiction under Article 226 of the Constitution in relation to regularisation of service and on facts held several important issues left out and ignored totally the material on record by non-consideration of the relevant documents and that results innumerable loss and injustice to the appellant, which is held therefrom of nothing but an error apparent on the face of the record to review.
ii) . M.M.Thomas (supra) is a review invoking Article 215 of the Constitution in relation to exemption from vesting of private forest in the State sought when dismissed by tribunal and allowed an appeal by the High Court that was sought for review on the ground that the order went beyond the claim in the petition and was vitiated by error apparent on the face of the record. The Apex Court observed that in such event power of correcting denied to the High Court as Court of record even it notices the apparent errors; its consequence is that the superior status of the High Court dwindles down. The plenary powers of the High Court(as laid down by the Constitutional Bench in Naresh Sridhar Mirajkar Vs. State of Maharashtra (AIR 1967 SC 1 = 1966 3 SCR 744) thus would also include power (which in fact is a duty even) of review relating to errors apparent on the face of the record.
iii). In BCCI (supra) on the scope of review under Order 47 and Section 114 CPC, at paras-88 to 93- it was observed that Section 114 CPC empowers a Court to review its order if the conditions precedent laid down therein are satisfied. Order 47 Rule 1 CPC provides for filing an application for review not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason. An application for review is necessitated by way of invoking the doctrine ‘actus curiae neminem gravabit’. The word ‘mistake’ held covered mistake on the part of the Court. The words ‘Sufficient reason’ are wide enough to include a misconception of fact or law. What would constitute sufficient reason would depend on the facts and circumstances of the case. Referring to the expressions in Parsion Devi Vs. Sumitri Devi (1997(8)-SCC-715) and in particular Patel Narshi Thakershi Vs. Pradyuman Singhji Arjun Singhji (1971(3)SCC 844) that was quoted with approval in para-52 of Lily Thomas Vs. Union of India (2000)6 SCC 224) it was held that the power of review is not an inherent power and it is also not an appeal in disguise and it must be conferred by law to exercise within its limitations. The Court where finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for the erroneous assumption which in fact did not exist and its perpetration for its result in a miscarriage of justice nothing would preclude the Court from rectifying the error.
iv). In Parsion Devi (supra) relying upon Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma (AIR 1979 SC 1047)& Meera Bhanja Vs. Nirmala Kumari Choudhary (1995(1)SCC 170=AIR 1995 SC 455) besides the expression in Tungabhadra Industries Vs Govt., of AP (AIR-1964 SC-1372) - the Supreme Court observed at paras-9&10 that: Under Order 47 Rule 1 CPC, a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1. In exercise of the jurisdiction under Order 47 Rule 1, it is not permissible for an erroneous decision to be 'reheard and corrected'. A review petition, it must be remembered, has a limited purpose and cannot be allowed to be 'an appeal in disguise'. Considered in the light of this settled position we find that Sharma, J. clearly overstepped the jurisdiction vested in the Court under Order 47 Rule 1 CPC. The observations of Sharma, J. that 'accordingly, the order in question is reviewed and it is held that the decree in question was of composite nature wherein both mandatory and prohibitory injunctions were provided' and as such the case was covered by Article 182 and not Article 181 cannot be said to fall within the scope of Order 47 Rule 1 CPC. There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction.
v). In S.Bagirathi Ammal Vs. Palani Roman Catholic Mission (2009(10) SCC-464=2008(2)SCJ-597) the Supreme Court considered in detail as to what is an error apparent on the face of the record contemplated by Order 47 Rule 1 C.P.C. at para 12 that: An error contemplated under the Rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It should be something more than a mere error and it must be one which must be manifest on the face of the record. When does an error cease to be mere error and becomes an error apparent on the face of the record depends upon the materials placed before the court......Under the guise of review, the parties are not entitled to rehearing of the same issue but the issue can be decided just by a perusal of the records and if it is manifest can be set right by reviewing the order.
vi). In the recent past, the Supreme Court in Haryana State Industrial Development Corpn. Ltd. Vs. Mawasi (2012)7 SCC 200) reiterated the principle in paras 33 and 34 that- '33.In Lily Thomas (supra), R.P.Sethi, J. who concurred with S.Saghir Ahmad, J. summarised the scope of the power of review in the following words: 56.....The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practised. 34.In Haridas Das Vs. Usha Rani Banik, the Court observed:
13... The parameters are prescribed in Order 47 CPC and for the purposes of this lis, permit the defendant to press for a rehearing 'on account of some mistake or error apparent on the face of the records or for any other sufficient reason'. The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulates a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the court and thereby enjoyed a favourable verdict'. By relying upon Tungabhadra (supra) held there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by error apparent. A review is by no means an appeal in disguise whereby as erroneous decision is reheard and corrected, but lies only for patient error.
vii). In North India Caterers (India) Pvt. Ltd. Vs. Lt. Governor of Delhi (AIR 1980 SCC 674),the apex Court observed, it is well settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so as held in Sajjan Singh Vs. State of Rajastan (1965(1)SCR 933 at 948). For instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing, the Court will revise its judgment as held in G.L.Gupta Vs. D.N.Mehata 1971(3)SCR 748 at 760). The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice as held in O.N.Mohindro Vs. District Judge, Delhi (1971(2)SCR 11 at p 27). A review proceeding cannot be equated with the original hearing of the case. The concurring with majority view of Justice Krishna Iyer is that– A plea for review, unless the first judicial view is manifestly distorted, is like asking for the moon. The forensic defeat cannot be avenged by an invitation to have a second look, hopeful of discovery of flaws and reversal of result. By referring to Lilly Thomas (supra), it was observed: it cannot be denied that review is the creation of a statute. The power of review is not an inherent power. It must be conferred by law as held in Patel Narshi Thakershi (supra). The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules of procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in a miscarriage of justice, nothing would preclude the Court from rectifying the error.
viii). As held in S.Nagaraju Vs. State of Karnataka (1993 SUPP (4) SCC 595) the basic philosophy inherent in review is the universal acceptance of human fallibility. Yet in the realm of law, the Courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there is no statutory provision and no rules were framed by the highest Court indicating the circumstances in which it could rectify its order, the Courts culled out such power to avoid abuse of process or miscarriage of justice and for that conclusion referred Rajendar Narayan Roy Vs. Bijay Govind Singh (1836(1) Moors–P.C.117) and Raja Prutvichanlal Chowdary Vs. Sukhraj Raj (AIR 1941 FC 1) - wherein it was observed that it would be our opinion be intolerable and most prejudicial to the public interest if cases once decided by the Court could be reopened and reheard. "There is a statutory maxim which ought to be observed by all Courts of last resort – interest reipublicae ut sit finis litium - (it concerns the state that there be an end of law suits. It is in the interest of the state that there should be an end of law suits). Its strict observance may occasionally entail hardship upon individual litigants, but the mischief arising from that source must be small in comparison with the great mischief which necessarily results from doubt being thrown upon the finality of the decisions of such a tribunal as this".
ix). V.R.Krishna Iyer, J. observed in Col.Avtar Singh Sekhon v. Union of India (AIR-1980-SC-2041) in the following lines at para-12 that: A review is not a routine procedure. Here we resolved to hear Shri Kapil at length to remove any feeling that the party has been hurt without being heard. But we cannot review our earlier order unless satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. … … …' &
x). The latest expression in Kamalesh Verma Vs. Mayawathi (AIR 2013 SC 3301) also well laid down in same line by relying upon most of the above expressions on the scope of review, that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing for fresh decision of the case or to substitute a view-(alternative or different), as a review is by no means an appeal in disguise where by an erroneous decision is reheard and corrected; but for an error apparent on the face of record to mean, it must be an error of inadvertence or material error manifest without search and that undermines soundness of the order under review and/or results in miscarriage of justice so to correct and not for any minor mistakes or mistakes of inconsequential import.
xi). Thus, it is not every error apparent that is prone to review, unless shown injustice resulted therefrom. In this regard, the three Judges` Bench expression of the Apex Court way back in Rajender kumar Vs. Rambhai (AIR 2003 SC 2095) – observed at para-4 as follows:- On perusal of the order under challenge it is clear that the High Court without considering the question whether the judgment/order sought to be reviewed suffered from any error entered upon the exercise of reappreciating the evidence and on such re-appreciation of evidence re-determined the compensation by reducing the amount to the extent noted earlier. The limitations on exercise of the power of review are well settled. The first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and permitting the order to stand will lead to failure of justice. In the absence of any such error, finality attached to the judgment/order cannot be disturbed.'
7. From the above being conscious that this Court is not sitting in appeal against the impugned appeals common judgment but for deciding with reference to the factual background of the lis as to any grounds for review from any error apparent on the face of the record and therefrom itresulted injustice. 8. Coming to the lis:-
(a). The C.P.No.83 of 1997 was filed in the middle of the year, 1997 U/s.433(a) r/w.439(1)(a) of the Companies Act,1956(for short, ‘the Act’) by M/s. Commercial Agro Products Private Limited, incorporated on 21.07.1993 under the Act, vide certificate No.01-16043 of 1993-94, only for voluntary winding up, with the prayers-(a) to wind up the company by the Court under the provisions of the Companies Act, (b) to appoint Liquidator to take charge of the assets and other affairs of the company and also to (c) pass such other just orders for said purpose of winding up. Said application for voluntary winding up of the company filed was in fact based only on the special unanimous resolution (U/s.433(a) of the Act) passed in the extraordinary General Body Meeting held on 10.05.1997 preceded by notice to shareholders/directors dated 09.04.1997. The resolution authorised Sri M.Ramabhushnam, Managing Director of the company to file the petition (only) for winding up by engaging Advocate and to take all other necessary steps to implement the above special resolution and to file the above resolution with the Registrar of Companies, A.P., Hyderabad and comply the necessary requirements of the Act, as it was resolved that pursuant to Section 433(a) r/w. Section 439(1)(a) of the Companies Act, 1956, the Company be and is hereby wound up under the orders of the Hon’ble High Court.
(b). Said Company was undisputedly incorporated in the year, 1993 for carrying on business in rearing of Jodipi etc., breed sheep, with its development and for breeding under modern and scientific conditions, with about 42,000 units mobilized at Rs.3,000/-each of the unit holders for with the commission paid per unit of Rs.300/-to agent, Rs.60/-to branch distributor and Rs.60/-to field staff; and out of the amount mobilized of the unit holders supra, a sum of Rs.416.50Ps of each in their respective names invested in fixed deposits in the banks for a period of 20 years, which fetch a return of Rs.3,000/-on its maturity and Fixed Deposit receipts also were dispatched to all the unit holders, that the company has promised return of Rs.600/-each to the unit holders in the first year; that the company acquired about 1800 acres of land for establishment of the sheep breeding farms, grass growing and other farm cultivation purposes, and also acquired well grown fruit garden most suitable for sheep rearing including mango garden for about 170 acres, lemon garden for about 70 acres and orange garden for 10 acres and for about 35 acres of survi garden, constructed various buildings and also several farms for the purpose of agro business and in rearing sheep. The authorized share capital of the company is 1,00,000/-equity shares of Rs.10/-each (10 lakhs) and issued, subscribed and paid up capital as on 31.03.1996 of Rs.6,00,000/- (60,000 equity shares of 10/-each) fully paid up as per the memorandum and articles of association of the Company.
(c). It is, besides what is stated above, also averred that the company purchased tractors and other agricultural implements, dug bore wells after ground water survey, obtained electrical connections, installed motors, pump sets and sprinklers, established 7 sheep breeding farms within Nellore District at different places having spent substantial amounts and for all the developmental activities taking precautions of withstanding of the structures for any cyclone etc., and appointed trained staff for nurturing and growing varieties of gross with proper storage facilities besides veterinary doctors and assistants to them, technical and personal consultants for scientific rearing and supervision and also won agro Expo, 1995 prize in the national livestock exhibition, New Delhi.
(d). Further, to expand the business, the company inducted 4 more directors namely V.Basavaiah, one of the veterinary experts, N.V.Murthy, K.Venkat and K.Subhadra Reddy in the year,1994 by making them in charge of breeding and development of sheep farms etc., and they have drawn some amounts for the purpose of payment of commission to the agents and distributors. However, they have misappropriated funds viz., out of Rs.85,00,000/-drawn by Basavaiah he did not account for Rs.35,00,000/-, equally by N.V.Murthy out of Rs.1,82,68,215/-for Rs.45,00,000/-and it is not even properly accounted for the advance taken by them for payments made to T.Anjaneyulu of Rs.67,68,074/-, V.Subbaiah (Madras) of Rs.4,39,750/-and Y.Ramalinga Reddy of Rs.6,00,000/-
(e). Said 4 directors made a proposal to acquire lands at cost of Rs.95 lakhs at Bangalore in association with one Sk.Khazavali, saying real estate business returns will be in 100% within a period of six months so as to distribute to the unit holders by unheeding to the dissent of the Managing Director, mainly at the instance of Basavaraju, in particular by payment of Rs.20,00,000/-to one K.V.Reddy for purchase of land, Rs.10 lakhs to Subhadra Reddy for purchase of land at Bangalore, Rs.10 lakhs to K.V.Reddy and 5 lakhs to KV.Reddy, Rs.25 lakhs to Pisa Builders and Developers Private Limited, Rs.9 lakhs, Rs.9 lakhs and again Rs.7 lakhs to Pisa Builders to purchase lands at Bangalore by attaching said Pisa Builders as sister concern to the petitioner company by inducing the Managing Director to make believe. However, in April,1995 when the Managing Director visited Bangalore, to his shock it came to know that same were misused and misappropriated by those persons in collusion with Pisa Township Developers Private Limited, Pisa Estate Developers Private Limited and Pisa Greenland Developers Private Limited, Bangalore, to which V.Subbaiah was Managing Director who was no other than the brother of above said V.Basavaiah and one K.Sheela no other than the daughter of K.Subhadra Reddy (supra) and the Managing Director could only succeed to obtain pronotes for Rs.95,00,000/-in favour of the company from Pisa builders and Developers and out of the 4 Directors, V.Subhadra Reddy etc., even prevented the Managing Director Ramabhushnam in discharging the duties and by making the affairs and business of the company standstill and even kidnapped the chairman of the company illegally and taken his signatures for resignation on blank papers with threat to his life. They having diverted funds of the company for real estate business and driven the company impossible to run from the acute financial problems. If the company is being allowed to continue and run the business, it will incur further losses and therefore the Board of Directors in the meeting held on 09.04.1997, decided to wind up the company by special unanimous resolution (supra) dated 10.05.1997 under Court’s supervision by placing its affairs under control of a provisional liquidator.
(f). It is therefore crystal clear from the above pleadings and also from the statement of affairs submitted that despite about 42,000 units mobilized at Rs.3,000/-each of the unit holders and out of the amount mobilized, a sum of Rs.416.50 Ps of each in their respective names invested in fixed deposits in the banks for a period of 20 years, which fetch a return of Rs.3,000/-on its maturity to all the unit holders and the properties of the company there, it was prayed to wind up the Company to say that would not help for future revival.
(g). The Company Petition was accordingly admitted based on the petition prayers supported by the resolution, for voluntary winding up of the Company under the supervision of the Court and in the Application No.420 of 1997 filed by the applicant-Company for winding up, by order dated 24.07.1997, U/s.450 of the Act, Official Liquidator was appointed as the provisional liquidator (without any limit and restriction of powers other than as regular liquidator U/s.450(3 & 4) of the Act) to take charge of the assets, properties and affairs of the company and all necessary further steps for its winding up, in consonance with the prayer in the voluntary winding up application referred supra and after hearing undisputedly. It is needless to say from the above that the very purpose of appointing the liquidator without any limit and restriction of powers other than as regular liquidator U/s.450(3 & 4) of the Act is to take charge of the assets, properties and affairs of the company as a necessary step in aid for the voluntary winding up. Further, later on statement of affairs of the Company also filed U/s.439-A of the Act-(It appears pursuant to the Application No.643/1997).
(h). It is needless to say U/s.441(1) of the Act, commencement of winding up is from the date of the special resolution of the Company referred supra, subject to discretionary power of the Court U/s.440(2) of the Act, for not to continue the winding up in the interest of creditors and contributors of the Company. The resolution in fact says the company is wound up forthwith, subject to orders of the Court. It was also for the reason that within no lapse of time, in the Company Application No.151 of 1998, M/s. Commercial Agro Products Sheep Units Holders Welfare Association, Hyderabad, rep. by its president Smt. T.Prabhavathi (for brevity, ‘Unit holders’) U/s.457(1)(c) &(3) of the Act, r/w. Rules 272 to 274 and 9 of the Company(Court) Rules,1959 (for short, ‘C(C)Rules,1959’), by array of M/s. Commercial Agro Products Private Limited under liquidation representing by its Managing Director Sri M.Ramabhushnam as respondents, for a direction to the Provisional Liquidator to sell the movable and immovable properties of the Company by public auction and to deposit the sale proceeds into Court, pending disposal of the winding up of the company petition to protect the interest of the bona fide investors. There is thus, nothing even to say not to continue the winding up in the interest of creditors and contributors of the Company within the power of the Court U/s.440(2) of the Act. No doubt, same was ended in dismissal by order dated 17.03.1999 holding that the winding up orders are yet to be passed and thereby not inclined to direct the Official Liquidator to dispose of the properties of the company in liquidation, for the present. The intention of the Unit holders from the beginning to bring the properties to sale and realise the proceeds to meet the amounts due to them is crystal clear therefrom. Said Ramabhushnam, as one of the respondents, though conscious having been impleaded, did not state in writing even to have a say that from about 42,000 units mobilized at Rs.3,000/-each of the unit holders, a sum of Rs.416.50Ps of each in their respective names invested in fixed deposits in the banks for a period of 20 years, which fetch a return of Rs.3,000/-on its maturity to all the unit holders. It is to say even he is the main stakeholder, it is tantamount to consent, as the very prayer is for winding up by appointing a liquidator to take all steps. The order no way speaks that the Official Liquidator cannot take steps to dispose of the properties of the company pending disposal of main petition for winding p.
(i). In Sudarsan Chits(I)Ltd. (supra) relied upon by review petitioners, it was held in paras 7-17, referring to Section 446 of the Act, that Section 446(1) envisages two situations in which court will have jurisdiction to make the order thereunder contemplated viz., where winding up order has been made or where the official liquidator has been appointed as provisional liquidator which is a stage in the process of winding up. When winding up order has been made, or provisional liquidator has been appointed, no suit or other proceeding shall be commenced or pending matter be proceeded with against the Company, without leave of the Company Court. As the Company Court can stay any proceedings as enumerated in Section 446(2) pending (newly introduced by the Companies Amended Act,1960 with enlarged jurisdiction to decide expeditiously and inexpensively all claims by the Company Court, instead of filing proceedings elsewhere, also on behalf of the Company under liquidation) and assume jurisdiction to decide, that gives no apprehension as even later winding up proceedings fail for any reason, the proceedings where assumed jurisdiction can be transferred back to proceed further. But if the petition praying for winding up ends in a winding up order, the proceedings where assumed jurisdiction will be finally decided, as winding up order relates back to the date of presentation of the winding up petition. A winding up order can be revoked or recalled and otherwise it continues to subsist and any stay of it, in an appeal U/s.483, is in a suspended animation to say it continued to exist but was inoperative.
(i.a). On facts held, winding up order kept in abeyance by the Court in appeal till scheme envisaged to implement, default in implementation automatically revives the winding up order to proceed further.
(i.b). There is nothing from Sudarsan Chits (supra) in favour of the appellants or any of the review petitioners to say the provisional Liquidator appointed pending winding up proceedings, cannot be permitted by the company Court to bring the properties of the Company to sale. Thus, the argument raised in the company Court and appellate Court and also in this Court as grounds of review that when earlier the C.A.No.151 of 1998 filed for ordering sale of the assets of the Company pending the company petition was dismissed, there are no grounds or changed circumstances, for permitting Official Liquidator to effect sale of assets of the company under liquidation by the impugned order dated 13.04.2006 in C.P.No.1416 of 2004 filed by the Official Liquidator U/s.457(1)(c) & (e) of the Act r/w.Rules 270 to 274 of C(C)Rules,1959 is untenable. In fact a close reading of Section 457(1)(c) of the Act, it is crystal clear that the Official Liquidator shall have power to effect sale of the assets of the company under liquidation, with the sanction of the Court and the Court thus permitted the Official Liquidator to effect sale of the assets of the company by said order dated 13.04.2006 in C.P.No.1416 of 2004, that too, with necessary precautions to say as per the registered values from the Sub-registrars to be obtained and from the valuation reports of the market value evaluated by the registered Chartered valuers obtained by the Official Liquidator in the year,2004 pursuant to the order dated 07.08.2003 in C.A.No.487 of 2003. The Court by the impugned order in fact ordered the Official Liquidator to show the registered value as well as the market value as arrived and fix whichever is higher therein as upset price, and to issue publication of the sale notice in ‘Eanadu’ and ‘Vartha’ Telugu dailies and ‘Indian Express’ English daily in the local editions of Hyderabad as well as Nellore. In fact, the dismissal of C.A.No.151 of 1998 of the Unit holders in the year,1998 and ordering of sale in the year, 2006 in C.P.No.1416 of 2004 itself shows the 8 years gap with no improvement in the position of the company and further already on the application of the official liquidator valuation reports through approved valuers obtained in ascertaining market value of the properties in the year, 2004 and also later the Sub-registrars market basic values and thereafter only and pursuant to which and with directions referred supra the order was passed and the same was not interfered by the appellate Court. It was also for the reason that neither said Ramabhushnam nor unit holders could file any separate valuation proof, even for said Ramabhushnam to contend from his counter contest that the properties were worth Rs.6 crores and above. His attack on the impugned order for non-supply of valuation report and permitting sale from above material by fixing upset price even with wide publicity, for not obtaining fresh value in 2006 is untenable.
(i.c). No doubt, as held by the Apex Court in Shankarlal Aggarwala (supra) an order according sanction to sale is a judicial order and involves discretion of the company Court about its satisfaction for ordering sale in the course of the administration of the assets of the company and for realizing those assets. As discussed supra, the order was passed permitting publication of sale in the C.A.No.1416 of 2004 dated 13.04.2006 after said counter filed and after hearing. He did not question or oppose to the 10 lots proposed. Said Ramabhushnam, thus, cannot object to conduct auction of the properties of the Company under liquidation, that too, when the unit holders long ago filed C.A.No.151 of 1998, by arraying him and the Liquidator as respondents, to conduct auction of the properties of the Company and realise the proceeds to distribute to them. There is nothing obligatory for the Company Court to invite or accept any scheme. There is nothing even shown therefrom that in the interest of the unit holders, why the properties could not be ordered to be sold. The appellate Court also referring to Shankarlal (supra), gave reasons for not to interfere with said order of the Company Court.
(j). It is in fact, as per the then prevailing state of affairs of the company explained in the pleadings of the petition for winding up, asserting impossibility to run from the acute financial problems and that if the company is allowed to continue and run the business, it will incur further losses and therefore the Board of Directors in the meeting held on 09.04.1997, decided to wind up the company and sought for appointment of a Liquidator to take charge of the properties and also filed statement of affairs showing how it is not viable to continue and thereby to take further steps to wind up the company. It was stated that in such circumstances passed the special unanimous resolution(U/s.433(a)of the Act) of extraordinary General Body Meeting on 10.05.1997 authorising said Ramabhushnam on behalf of the company to file the petition for winding up by engaging Advocate and to take all other necessary steps to implement the special resolution only for winding up and further to the extent to file the above resolution with the Registrar of Companies, A.P., Hyderabad and comply the necessary requirements of the Act. There is thus nothing in the resolution even, much less in the petition pleadings, for any future contingency for keeping the company to survive, much less to work out a scheme in this regard for revival without winding up. There was no amendment to the petition pleadings for any change of circumstances to take note of. In fact, it is fairly the settled law that the subsequent events to be taken are for moulding the relief sought for only and not contra or inconsistent or beyond the relief prayed for, that too, having not taken any additional or alternative pleas, much less even by amendment of the pleadings, to elect one among those and having selected only one prayer for only winding up of the company in the petition relief, it cannot be contended, by virtue of estoppel or waiver or even otherwise as obiter, that an application was filed having proposed for a scheme to revive the company without winding up and that ought to have been considered. It is because right of party is different from power of the Court to exercise within its discretionary jurisdiction, not to wind up if it is proved results prejudice to the rights of creditors and beneficiaries of the Company and same timely and properly brought to its notice.
(j.a). From the above, when it is also not in dispute that said Ramabhushnam filed application No.1303 of 2005 for withdrawal of company Petition under Rule 100 of the C(C)Rules,1959 and the same ended in dismissal on 24.02.2006 with observations that in the absence of coming with specific scheme for settlement and that too the proceedings gone long way since filed for voluntary winding up by the company rep. by him, he cannot maintain the present application to withdraw the main petition in his individual capacity without there being such resolution. That was also suppressed herein, for reasons better known to him, which is nothing but suppression of material facts. His application No.1303 of 2005 supra was also when subsequent to his counter filed in the application No.1416 of 2004, without saying the 10 lots proposed for sale by the Official Liquidator of specific lots each of seperate villege-viz.,(1. Amancherla-Ac.122-78cts; 2. Cheepinapi-Ac.38-43cts; 3. Chintala-Atmakur-Ac.201-88cts; 4. Kakivaya-Ac.308-24 cts; 5. Parlakonda-Ac.216-57cts; 6. Ananthapuram-Ac.224-97cts; 7. Duttuluru-Ac.118-28cts; 8. Deveryapalli-Ac.238-05cts; 9. Vadlapudi-Ac.60-00cts & 10.Marpur-Ac.09-02cts) are how and why not feasible and practicable and how survey of the lands by localizing and fixing boundaries would improve, for existence and extents not in dispute, so also title, and how the upset price directed to be fixed by the Official Liquidator for sale of the lands is at a throw away price, with no right to ask for postponement of the proposed sale, by saying the unit holders are approaching to file application for scheme of arrangement between the company and unit holders so as to subserve its interest and no such petition even filed by them in the matter from his very say in the counter that he could not approach the Court for sanctioning scheme between the company and unit holders. There is thus when no any separate resolution (U/s.433(a) of the Act) by revoking or modifying the earlier resolution dated 10.05.1997 and by further authorising Sri Ramabhushnam or any other person to file any petition to work out a scheme in this regard for revival without winding up, much less even later to give life to the so called proposal of scheme of arrangement/compromise filed by said Ramabhushnam with his signatures without date and without even signatures of unit holders or other beneficiaries and without any special resolution despite above observation by the Court even, for revival of the company without winding up as per so called scheme of arrangement even in so seeking to permit. Same no way called as compromise. The contention therefore that when so called scheme of compromise is pending in Application No.1168 of 2006 before the Company Court, the Court without disposing the said application, could not have ordered for sale is untenable, for said application has no legs to stand from what is discussed supra, even same was not reflected in the order impugned. When such is the case, the Unit holders implead application in O.S.A.No.3 of 2007 to come on record pursuant to another attempt by Ramabhushnam in his Application No.1176 of 2008 in the O.S.A.No.3 of 2007 for sanction of scheme of arrangement with unit holders, the contention of not given credence for it by the appellate Court is an error apparent on the face of the record is also not tenable, for the reasons that, in the earlier so called scheme of arrangement/compromise filed in C.A.No.1168 of 2006 before the Company Court, it was stated as Rs.1crore due from PISA builders and the Ac.1538.22 cts stated to fetch Rs.7,69,11,000/-at Rs.50,000/-per acre, whereas in C.A.No.1176 of 2008 mentioned due from PISA builders of Rs.60 lakhs and from the Ac.1538.22 cts stated to bring Rs.10 crores, without even basis and without even locus standi as discussed supra.
(j.b). Even coming to the unit holders contest in their review in this regard of the scheme proposed in the application No.1176 of 2008 in O.S.A.No.3 of 2007 filed by Sri M.Ramabhushnam (Ex.Managing Director of the Company), even they are arrayed as respondent No.2, if sanctioned by the Court, they would be immensely benefited with the offer to them of Rs.15.85 crores is also untenable for the above reasons, for nothing to show the Court was bound to or should have accepted with no other alternative, without even any judicial discretion of the Court and in the absence of which it cannot be called error apparent on the face of the record, that too the orders of the Company Court or of the Appellate Court no way prejudiced their rights of what they are legitimately entitled to get. Thus, from name of their counsel not mentioned in the cause list of hearing date 07.04.2010 to say they have no knowledge about listing of the case depriving appearance and submission of arguments about their grievance in this regard, that makes no difference, much less by above submission to the certainty of tilting the result as discussed supra and even on the principle of ‘actus curia neminem gravabit’ there is nothing to show by that what injustice done to protect their legitimate rights to review on that score. The two decisions they placed reliance in this regard of Swarth Mahoto & G. Rajamallaiah (supra) are U/s.386(old 417)CrPC in relation to criminal appeal filed by respective accused or against them and decided in their absence in convicting them and without notice and printing the name of their Advocate on record of the date of hearing resulted to set aside the findings and remitted for fresh decision after hearing on merits. Here besides the matters are civil appeals and the unit holders being proforma party (2nd respondent) only in one of the appeal OSA No.3 of 2007 filed by said Ramabhushnam-against the final order passed by the Company Court 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 etc., that too the appeal was dismissed with no-interference, they cannot take advantage of the same with reference to the proposition saying a judicial discretion to exercise, for no prejudice to their legitimate rights caused from the result, that too, the prayer is for winding up based on resolution which says the company wound up forthwith subject to orders of Court and the authorisation is to file and pursue the petition for winding up and there is no further resolution not to wound up or to effect any settlement or compromise, to have locus to said Ramabhushnam. The apex Court referring to Section 291 of the Act in Dale & Carrington (supra) also categorically held at para Nos19 to 21 that an individual Director has no power to act individually unless there is some resolution of the Board of Directors of the company by specific power is given there for. It was held that a Company is a juristic person and it acts through its Directors who are collectively referred to as the Board of Directors. An individual Director has no power to act on behalf of a Company to which he is a Director unless by some resolution of the Board of Directors of the Company, specific power is given to him/her. Whatever decisions are taken regarding affairs of the Company, are taken by the Board of Directors. The Directors of the Company having been vicariously described as agents, trustees or representatives, but one thing is certain that the Directors act on behalf of the Company in a fiduciary capacity and their acts and deeds have to be exercised for the benefit of the Company. They are agents of the Company to the extent they have been authorised to perform certain acts on behalf of the Company. In a limited sense they are also trustees for the share holders of the Company. As agents of the Company they must act within the scope of their authority and they must disclose that they are acting on behalf of the Company. They have a duty to make full and honest disclosure to the share holders regarding all important matters relating to the Company.
(j.c). It is equally when the Court exercised discretion under Rule 9 of C(C) Rules,1959 in extending time beyond what was stipulated in the auction conditions to the auction purchasers to deposit balance amounts with interest, that too as discussed supra way back the unit holders filed CA 151 of 1997 to direct the liquidator to sell the properties of the Company under winding up to realise the proceeds to distribute and they did not even oppose the process taken up by the liquidator with permission of the Company Court, thus, they cannot find fault the dismissal result of the appeal and the petition therein sought by the appellant for according sanction to the scheme of arrangement proposed by him with unit holders. In fact, besides the unit holders whose rights are to large extent secured by investment in FDs in bank with receipts given to them for major part of their unit amounts, there are share holders also among others whose rights also the Court has to protect in bringing the properties to sale pursuant to the prayer for winding up voluntarily filed by the Company pursuant to their resolution saying company wound up forthwith subject to permission of court that was being sought by said Ramabhushnam so authorised, with no subsequent resolution even to revive, that too his earlier petition to withdraw the company petition for winding up ended in dismissal that was made final, and by its suppression he cannot make another attempt indirectly to achieve the same, much less for the unit holders to support the same even not legitimate as discussed supra.
(j.d). It is needless to repeat, even before the Court exercised its discretionary power to permit for compromise under Section 391 of the Act, Section 393 contemplates notice and meeting and effecting of compromise and further Section 394 speaks filing of application for sanctioning of a compromise or arrangement proposed therefrom(Section 393) and all the most the prayer requires to be amended in the application for winding up and even to say a compromise can go beyond the prayer and even beyond the subject matter also under Order 23 of the CPC, importantly, the company special resolution when itself was for winding up and there is no any further resolution withdrawing the winding up proceedings, which are the acts required to be done on the part of the company under liquidation rep. by its Ex-Managing Director authorised by resolution to represent only winding up of the company, without doing all such acts and performing such obligations, filing application individually by him without locus and finding fault with the Court as if the permission to wind up is so casual for mere asking, is nothing but a futile exercise and brow beating and there is no justification in asking assistance to perpetuate own faults and attempts for procrastination of the proceedings. Thus, when there is nothing to show pursuant to the said proposal sent is submitted to the Court much less with any special resolution by calling for any extraordinary general body meeting of the shareholders and Ex-Directors in the absence of which said Ramabhushnam individually and not even arrayed as on behalf of the company, cannot maintain much less to claim thereunder by mere filing in Court and for nothing thereunder of any copy served on the Official Liquidator at least. As such, same no way can be taken advantage by the unit holders in finding fault with the judicial proceedings of the Court.
(j.e). There is nothing even from him or from the unit holders by filing any record to show what is the prevailing market value of the respective properties, as on 13-04-2006, without which no credence can be attached for his oral, baseless, inconsistent and changing versions time to time on the value of the properties. In fact, pursuant to the orders of the Court dt.13-04-2006(as also discussed in detail supra) the Official Liquidator issued wide publicity in news papers and invited sealed tenders with sufficient time gap and conducted the auction on 15-06-2006 and submitted report dt.17-06-2006 to the Court with minimum upset price fixed of about Rs.4 crores, what the price fetched in the auction of Rs.6,29,70,000/-(against what Ramabhushnam mentioned of Rs.6 crores in his counter affidavit of 2005 in opposing the C.A.No.1416 of 2004) and pursuant to the direction of the Court, the highest bidders appeared before the Court on 01-08-2006 and after further negotiations, the amount was increased to Rs.6,69,00,000/-and at that stage what said Ramabhushnam offered to deposit was about Rs.7 crores, to say only difference in lakhs, despite what he contended later of its worth as Rs.10 crores, that was not much less nearer to it is his earlier mentioned amount and the Court thereby for not even with cash to deposit rightly refused his offer and the same was not chosen to interfere or allow his application again filed pending the appeal to sanction for a scheme by the appellate Court and as such there is nothing in this regard to sit in review.
(j.f). The appellate Court in fact held categorically that– the resolutions passed by the company in liquidation on 10.5.1997 are voluntary and remained un-assailed in any manner known to law. The appellant herein seeks to file the present proceedings in his individual capacity and as an Ex-Managing Director of the company in liquidation, which is not permissible on the face of it. Having regard to the decision taken at the company level and also the proceedings which are already taken place where under auction is almost complete, it is not open for the appellant herein to canvass against any such action nor can it be said that he has any locus to assail the entire proceedings. Further, the appellant is a party all along to the proceedings including from the stage of dissolution of the company and conducting of the auction through sealed tenders, which was done in his presence. Needless to say, in C.A.No.1416/2004 filed by the Liquidator seeking permission of the Court to sell the properties, Sri Ramabhushnam as Ex.Managing Director of the Company (main petition No.83/1997-petitioner) as respondent was served with summons in July, 2004 and appeared having already representing in the main petition for winding up order though Advocate and also filed a detailed counter a year later in 2005, that is enough to say he is participant and knowledge, even for any few adjournments he failed to appear in person. It is not even his case that he did not appear before the Court on 01-08-2006 & 04-08-2006, apart from cannot say, from his claim of his representation for a scheme made to the court was not considered and not his case of not heard and not his case of he represented the court on those days of the auction conducted by receiver was not to his knowledge. Thus, having opportunity to participate in the auction, not open to question the bid amounts arrived and later after negotiations finalised by the Company Court. The Company Court was right in its observations and negating his request for higher price than finalised and also the appellate Court observations in dismissing the appeals so saying. Since the very proceedings are at the instance of the company rep. by him having filed the petition for its winding up having regard to difficulties in the business and steps have been taken without demur, thus nothing can be attributed against any such action, especially by the appellant for there is no any allegation against the official liquidator of any fraud or collusion in the proceedings at different stages impugned in the appeals. Much water has flown under the bridge and apparently as observed by the Company Court in the earlier proceedings the attempt on the part of the appellant is only to stall and delay the proceedings. Said conclusions of the appellate Court are lending support by the apex Court expressions in Valji Khimji discussed hereunder and in Dale & Carrington discussed supra.
(j.g). No doubt, further observation by the Appellate Court of the bidders have already paid entire bid amount is not correct, for some of them not fully paid, but for of lot Nos.3,8&10 and within the extended time by lot No.4 and some others if any with interest by the time of the appeals disposal date in so observing or in allowing the application of the bidder of lot No.4 to receive his amount earlier refused by the liquidator even tendered within the extended time, with direction to receive and register sale deed. Thus, the appellate Court is right in further saying of it is too late at this stage to fall back on to any preceding stage, by referring to the Apex Court`s expression in VALJI KHIMJI (supra) , where also it was observed that the auction sale was done after adequate publicity in well-known newspapers. Hence, if any one wanted to make a bid in the auction he should have participated in the said auction and made his bid and they will be themselves be to blame if they do not come forward to bid at the time of the auction. They cannot ordinarily later on be allowed after the bidding (or confirmation) is over to offer a higher price. Of course, the situation may be different if an auction sale is finalized say for Rs.1 Crore, and subsequently somebody turns up offering Rs.10 Crores as in such a situation it is possible to infer that there was some fraud. Entertaining objections after the sale is confirmed should not ordinarily be allowed, except on very limited grounds like fraud, otherwise no auction sale will ever be complete, because always somebody can come after the auction or its confirmation offering a higher amount.
(j.h). As held by the Appellate Court, nothing has been stated by the appellant as to how and to what extent he has any right or locus. In view of the same, prima facie, of the view that the appellant has totally failed to make out any case warranting interference of the appellate Court at this juncture. Though, the main attack on the part of the appellant referring to SHANKARLAL (supra) is that there are no reasons, especially when such action is judicial one, will not stand to any reason or decision, more so, when the entire proceedings are at the behest of the company in liquidation itself and it is only in pursuance of the reasons as pointed out by the Official Liquidator in his application, the entire action has been taken. No attribution is also being made much less an allegation of any worth as 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. Therefore, it cannot be said that all the actions taken at the instance of the Official Liquidator is in any way affect the appellant, as on verification of entire proceedings it is quite apparent that application as has been filed by the Official Liquidator was supported by due valuation reports and after following the due procedure of calling for the tenders and receiving the bids from the parties, the process was given finality and has become final. Except making a bald and sweeping offer by the appellant offering to deposit more amount than what has been bided against, no material has been produced to show as to how the bids do not reflect the correct status. The further observation of the appellate Court that even though the appellant herein is coming forward with all such pleas at this late hour, however, in spite of the fact that appellant is coming out with certain offers stated to be higher than the amounts received through tenders, yet, there is absolutely no attempt on the part of the appellant to make any deposits or state any such higher figures or amounts, therefore, it cannot be said that there are any bonafides on the part of the appellant, therefore no indulgence need be shown. The other argument advanced on behalf of the appellant that the entire action taken is much before the ultimate order of winding up is not sustainable, also cannot stand to any reason, since these proceedings are not at the instance of any other parties as such, but the company on its own and in pursuance of the very decisions taken at its level, to which the appellant is a party, has initiated such proceedings, therefore, it cannot be said that there is any illegality or irregularity in entire proceedings. Having regard to the aforesaid reasons, finding no any merits in any of the contentions urged on behalf of the appellant in all these appeals to sit against the proceedings of the learned single Judge and even against the ultimate winding up order.
(k). In fact from said impugned common judgement to sit in review also there is no any error apparent on the face of the record for the above reasons, even 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 extension of time to tender the balance amounts with interest as a premium to delay in the payments and permitted even to execute sale deeds in favour of any nominee of any of the auction purchasers, within the discretionary and inherent powers of the Company Court/Appellate Court under Rules 9 r/w.7 of the C(C) Rules,1959, for time and other terms of not to alienate to execute sale deeds to nominees of bidders etc., fixed in the auction conditions are not the be all and end all, though it bind the parties and official Liquidator, that no way takes away the power of the Court from above specific enabling provisions, as CPC provisions in execution proceedings are not automatic in application, much less override the C(C) Rules,1959 including from the wording of Rule 6.
(i). The expression in Allahabad Bank (supra of 2004) referring to Section 457 of the Act and Rules 273 and 274 of C (C) Rules, 1959 and Order XXI Rule 93 C.P.C, no way speaks in a different manner from its observation that though said provisions of C.P.C may not ipso facto apply to a sale other than under C.P.C, within the discretionary power of the Company Court, the principle embodied therein can be applied to the sales by Company Court. It is also observed that payment of interest under the provision is also discretionary in ordering refund of purchase price on setting aside the sale. The apex Court further observed that it is by way of restitution guided by contract Act Sections 65, 70 and 72. The purchaser when in possession of the property in the interregnum interest refusal is justified as it meets adequacy of consideration by return of amount only. Thereby declined to interfere with the discretionary power exercised by the High Court, while sitting against that order of High Court.
(ii). No doubt in Manilal Mohanlal Shah (supra of 1954) a case under Order XXI Rules 84 to 86 C.P.C, held the provisions are mandatory for the stranger purchaser (not decree holder to claim set off) to deposit balance sale consideration within 15 days and any default in said payment sale completely wiped out as if do not exist in the eye of law, no doubt there is a discretion to forfeit the deposit or not, but no discretion for resale. It was also observed that by virtue of the specific provision, inherent powers under Section 151 C.P.C cannot be exercised by the executing Court to extend time to the defaulting auction purchaser. Same principle in Manilal (supra) was reiterated by the apex Court in Balram (supra of 1996) and in M/s.Shilpa Shares and Securities (supra of 2007- also with reference to similar specific Rule 107 of the Maharashtra Cooperative Societies Rules, 1961), also by our High Court in Mudragada (supra of 1962) and in Shyam Trading Co. (supra of 2010 also with reference to similar specific Rule 52 of the A.P. Cooperative Societies Rules, 1964).
(iii). However, the fact remains that, above expressions in Manilal and the other relying on it are governed by specific provisions in C.P.C and any similar specific provision under Cooperative Societies Act and Rules respectively. It is not the case that there are similar rules in the C(C) Rules, 1959. It is not even the case that Rule 6 of Rules 1959 interpreted and held in any of the decisions of C.P.C provisions prevail or even for a sale under Companies Act of the properties of the Company under winding up, the provisions of Order XXI C.P.C have invariably apply.
(iv). In FCS Software Solutions (supra) referring to Section 457 and 454 of the Act read with Rule 9, 272 and 273 of the Rules, 1959, it was observed on facts that after acceptance of highest bid and sale confirmation to the bidder, it was brought to the notice of the Company Judge of necessary facts relating to valuation of the properties, fixation of reserve (upset) price and inventory of the plant and machinery set out in the proclamation not disclosed in the sale notice from which fresh auction directed by Company Judge within his discretionary jurisdiction no way requires interference by the apex Court.
(v). On facts, in IFCI Limited (supra of 2008) referring to Section 457 and 454 of the Act and Section 20 of S.I.C (Special provisions) Act, 1985 held no doubt that in the Company winding up proceedings auction sale of the Company property conducted and the highest bid knocked for Rs.5 crores and the highest bidder however deposited only a paltry amount of Rs.10 lakhs without any further payment taking advantage of order of Stay even only for confirmation of sale in the appeal against order for sale and winding up, company Judge as well as the appellate Court allowed the highest bidder to pay the amount with interest after long lapse of time of about 6 years, on over all consideration the apex Court while confirming the same however, considered in directing the auction purchaser to pay additional amount of Rs.3 crores to what he already paid. This decision also no way helpful to the appellants for nothing to say the company Court cannot exercise the discretion powers conferred by the Rules, but for in those facts the apex Court exercised its special powers in directing payment of additional amounts. In fact it was observed at para 29 that the offer for payment of higher amount in 2007 against the amount of highest bid knocked down in 2001 cannot be considered, but for to say a very paltry amount out of the bid amount deposited and no payment later made for about six years to increase the amount.
(vi). From FCS Software Solutions (supra) also, it is clear that the discretionary jurisdiction of the Company Court conferred by the C(C) Rules, 1959 are special when compared to general provisions of C.P.C in execution and once the company Court exercised its discretion that cannot readily be interfered with by sitting in appeal against.
(vii). Thus, from the propositions supra also, the C.P.C provisions of mandatory timely deposit of balance consideration have no automatic application, muchless take away the discretionary power of the company Judge under Rules 9 and 272 to confirm the auction sale and extend time for payment and execution of sale deeds in favour of nominee of bidders beyond scope of auction conditions.
(l) In Vijay Kumar Karwa (supra of 2008) it was held under Section 483 of the Act that summary dismissal of the appeal against order of the Company Judge is not tenable in setting aside and remitting the matter for fresh decision. This decision also no way applicable in the facts on hand for the appellate Court common judgment supra is not a summary dismissal but for after hearing and scanning of the facts with reference to the law and supported by reasons. It is needless to say even any contention to raise said appeal judgment as erroneous, remedy is elsewhere for not by review which is not an appeal in disguise.
(m). Even coming to the other contention of 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 etc., concerned; in addition to what is discussed supra, it was the Unit holders themselves that sought way back in the year, 1998 to bring the properties to sale and when the prayer was for voluntary winding up of the company by the company supported by special resolution that was the basis for filing of the winding up petition, without separate resolution and without amendment of the petition prayers, when there is nothing to consider, the company Managing Director cannot so contend by relegating the position of the Unit holders even he is also having some units, by approbate and reprobate. It is not even the case that any application filed before the Company court U/s.446 to direct the official liquidator to realize any amounts covered by cheques or promotes or of movables or income from properties attributing any dereliction of duties much less by the said Ramabhushnam applicant for the petition for winding up as a representative of the company to be wound up, at least to say how the properties of the company were not properly administered.
(n). No doubt there is an order dated 21.12.1999 of the Court in C.A. No.912 of 1999, appointing the Advocate Commissioners, M/s. Sanjaykishore and Murlimanohar, at the instance of the unsuccessful applicant in C.A. No.151 of 1998 (‘Unit holders’ supra) against the Official Liquidator of the Company, to seize the records from the office of the Official Liquidator at Hyderabad and to submit a detailed report in respect of the affairs of the company and the steps taken by the Official Liquidator to safeguard the properties of the company. They filed report dated 22.02.2000 having visited the office of the Official Liquidator on 22.12.1999 and seized the files and records under cover of panchanama and also inspected the lands of the company at Nellore on 5th and 6th January,2000 and found 4 cheques issued in favour of the company in the records seized from the Official Liquidator which were issued by Pisa Builders and Developers, three cheques each for Rs.10,00,000/-and one cheque for Rs.3,97,315/-and a challan for deposit of the cheques even prepared cheques were not deposited in the bank though there was an entry for deposit of cheques even in the account and entry reversing the same on account of dishonour of cheques. The Commissioners’ submitted the four cheques and the challan as Annexures C.1 to 5 and found that M/s Pisa Builders and beneficiaries issued also 11 cheques for Rs.70,00,000/-that were dishonoured and those were not collected back from the bank that was also confirmed by the Official Liquidator in his letter/note given to the Commissioners covered by Annexure C.6. The Punjab National Bank, Hyderabad written a letter, dated 03.12.1998, to the Official Liquidator regarding deposit of the collection charges on account of the dishonoured cheques and there is no further correspondence available and the letters referred to in the letter of Punjab National Bank, dated 03.12.1998, were not available and submitted said letter dated 03.12.1998, as Annexure C7 and noted by the commissioners that there were no steps taken by the Official Liquidator for the dishonor of cheques to proceed under Section 138 of the N.I.Act. The Commissioners inspected all the 8 sites in different mandals of Nellore districts on different dates and submitted report in detail of the improper management by the provisional liquidator. Subsequently, the Official Liquidator started taking steps to ascertain condition and value of the properties and availability and collected all title deeds in relation to it from said Ramabhushnam-Ex.Managing Director of the Company and the report of the Liquidator is also clear in this regard, including from his petition No.1416 of 2006 seeking permission of the Court to bring the properties of the Company under liquidation for sale (discussed supra).
(o). There is in fact nothing more to show any further application filed either by the unit holders or by Ramabhushnam as the Ex.Managing Director of the Company for any directions to the liquidator or any observation by the Court of any dereliction of duties by the provisional liquidator, much less by changing him and appointing any other Liquidator pursuant to the commissioners’ report in the petition supra. The records once seized from the Liquidator and produced before the Court, there is nothing to say grave dereliction of duty on the part of the Liquidator for no record with him, but for to attribute any non-diligence, needless to say before so attributing, the due diligence must be on the part of the said Ramabhushnam pursuing the winding up proceedings for filing application and seeking directions from the Court for realization of the amounts covered by the cheques and fixed deposits etc., u/s.446 of the Act. Thus, suffice to say even any lapse on part of the Liquidator was condoned by one and all for nothing to give credence to the commissioners’ report, in continuing the Liquidator and by subsequent orders permitting him to cause estimate market value of the properties through expert valuers and to bring those to sale and realize amounts. As such, the appellate Court was right in its observation supra and there is nothing therefrom to say any ground for review of the impugned appeals common judgment. It is because, after said commissioners’ report, the Official Liquidator U/s.457(2)(V)of the Act, r/w. Rule(9)of the C(C)Rules,1959, filed C.A.No.487 of 2003, seeking permission of the Court to appoint a registered Chartered valuer either out of the panel of valuers maintained by him of APITCO-an A.P. Govt. organization or such other valuer, as may be directed by the Court, for evaluating the realizable value of the immovable properties of the company in liquidation and submit report to him and permit him to pay the remuneration of the valuers and other incidental expenses from out of the funds of the company in liquidation. The Court by order dated 07.08.2003(referred supra) allowed the same with the observations that as per the statements of affairs of the company in liquidation, there is an extent of Ac.1606.41cts of land at various villages in Nellore district that was established for sheep breeding farms, for growing gardens and cultivation and the estimated land is about Rs.6,00,00,000/-and the same cannot be relied upon fully unless it is valued by an approved valuer to bring the properties of the company to sale to avoid illegal encroachments and land grabbing. In compliance with the order supra, valuers were appointed and valuations were obtained by the Official Liquidator to proceed further.
(p). It is pursuant of which only, subsequently in C.P.No.1416 of 2004 filed by Official Liquidator U/s.457(1)(c) & (e) of the Act r/w. Rules 270 to 274 of the C(C) Rules,1959, from counter dated 16.06.2005 with contest by Ramabhushnam through his advocate Sri V.S.Raju, mainly that there is only Ac.1538.22 cts of the Company within Nellore district, originally a waste land and it is brought to cultivation with extra effort and other contentions already referred and discussed supra, by order of the Court dated 13.04.2006, the Official Liquidator was permitted to effect sale of the assets of the company under liquidation as per the registered values obtained by the Official Liquidator and by fixing the value, showing the registered value as well as the market value as arrived by whichever is higher, as upset price, and to issue publication of the sale notice in ‘Eanadu’ and ‘Vartha’ Telugu dailies and ‘Indian Express’ English daily in the local editions of Hyderabad as well as Nellore. The auction conducted by Official liquidator and report filed and therefrom the Court directed the bidders for appearance and negotiated for higher price and fixed and accepted the same on 04.08.2006 by rejecting the offer for higher price by Ramabhushnam as not bonafide.
(q). The orders dated 01/4.08.2006 in C.A.No.1416 of 2004 speak that- the Official Liquidator filed affidavit, dated 25.06.2004 and the same was perused and also heard arguments of the learned counsel for the Official Liquidator as well as the counsel for M.Ramabhushnam-Ex-Managing Director of the company in liquidation and passed orders. The Official Liquidator conducted public auction on 17.7.2006 and this Court in order to give further opportunity to all participants as well as new participants also passed orders on 18.07.2006 directing the Official Liquidator to issue notices to all the participants to appear before the Court on 01.08.2006 at 3 P.M., to participate in further negotiations of the auction of the properties. Accordingly, auction is conducted in open Court.
(q).i. With reference to lot-1, Utamchand Sethi and others of Secunderabad offered Rs.116 lakhs and gave the earnest money deposit of 6 lakhs and he is the highest bidder in the Court negotiations.
ii. For lot-2, M/s. Rajamahal Silks of Bangalore offered Rs.12 lakhs and the same is accepted as highest bid in the Court negotiations.
iii. For lot-3, A. Chandrasekhar Rao and others of Nellore even offered Rs.79,50,000/- which is the highest.
iv. For lot-4 Ch.A.Swamy of Nellore offered Rs.83 lakhs which is the highest as per the Court negotiations,
v. For lot-5, V. Suraj Kumar of Vijayawada stood as highest bidder for Rs.79 lakhs,
vi. For lot-6 offered of Rs.1,10,00,000/- from M.Chiranjeevi of Anantapuram village of Nellore district is the highest,
vii. For lot-7, M/s. Tasleem enterprises of Patancheru, Medak is the highest,
viii. For lot-8 Sri Venkateshwara Agro Farms, Nellore, offer of Rs.49,50,000/- stood as the highest bidder,
ix. For lot-9, one Subba Reddy of Indra Nagar, Bangalore, for Rs.30 lakhs is the highest bidder who deposited earnest money of Rs.3 lakhs and
x. For lot-10, initially one N.Parvathamma of Podalakur, Nellore District, offered Rs.70,000/-,but later went back by not participating in the open auction, thus nobody came forward to raise offer before the Court.
xi. The Official Liquidator is directed to file a report with reference to the above auction and he is further directed to return the earnest money to the unsuccessful bidders by retaining the earnest money of highest bidders, to collect a tender form money of those participated in the negotiations without application before the Official Liquidator or before the Court and the matter is posted to 04.08.2006 for filing of final report by the Official Liquidator as this Court passed the order permitting the Official Liquidator to conduct sale of the assets of the company under liquidation and on 01.08.2006, Official Liquidator was directed to refund Earnest Money Deposits to the unsuccessful bidders and it is represented of the same were returned.
xii. When the matter came up for consideration, it is represented on behalf of the Ex-Managing Director(Ramabhushnam) that he is ready and willing to deposit more than the amou
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nts offered by the various bidders for various lots. Though the matter was pending before this Court for the last more than 9 years, not even a rupee has been offered to deposit or deposited by the Ex-Managing Director. It is brought to the notice of this Court that the Ex.Managing Director was present throughout the auction conducted by the Official Liquidator and that he did not take any steps either before conducting the auction or during the auction, to deposit any amount, if he is interested to take over all the assets of the company in liquidation. In the circumstances, in my considered view, the said plea of the Ex.Managing Director is only with an intention to see that, the sale of the assets of the company under liquidation are not affected. Hence, the same is rejected and posted the matter to 18.08.2006 for reporting payment of the balance amount by the highest bidders.' (r). It is also not in dispute that 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 the Official Liquidator to give instructions to the bidders to file applications for extension of time. What Rule 272 of the C(C) Rules, 1959 speaks is that, the property belongs to the Company which is being wound up by the Court, to be sold by the Official Liquidator is subject to sanction by the Court (sanction given in C.A.1416/2006 on 13-04-2006) and every sale shall be subject to confirmation by the Court (confirmed in C.A.1416/2006 on 04-08-2006). In the application No.864/2006 for stay of all further proceedings pursuant to the order dt.13-04-2006, the subject matter of OSA No.30/2006, the order passed on 13-09-2006, was only for stay of confirmation of sale of the lots already sold and accepted by the Court by orders supra, dt.01/04-08-2006. (s). Thus, the contention that question of confirmation of the bid vide orders dated 04.08.2006 does not arise since bids were not confirmed and finalized is also untenable therefrom. There is nothing to say any other provision for confirmation after payment of entire bid amount or no equitable rights even passed to the bidders after acceptance of the bids by enhancing amounts by negotiations by the Court by orders dated 01&04-08-2006. The appellate Court is right in observing that ‘the sale ultimately was confirmed by the learned single Judge as per the orders dated 04.08.2006. It is to say otherwise, undisputedly, the bids were accepted by the Court after negotiations in favour of the bidders as per Rule 272 of the C(C) Rules, 1959. Another Division Bench of this court in the order dated 19.11.2006, in C.A.No.1363 of 2006 (filed by M/s.Releigh Agro Farms Private Limited rep. by its Managing Director A.Chandrasekhar Reddy and M/s.Venkateshwara Agro Farms rep. by V.Ramana Reddy, claiming as highest bidders for delivery of possession of the lot Nos.3 to them and to direct the Official Liquidator to register the sale deeds in respect of lot No.3 to the first applicant supra and lot No.8 and 9 to the others named saying they paid the entire sale consideration to the official liquidator being entitled for confirmation of the sale in their favour), observed that the impugned order dated 13.04.2006 passed by the learned company Judge will be decided in the final adjudication of the appeal and pending the same for no justification to deprive the applicants of the fruits of the highest bids given to them------- they have already deposited the entire sale consideration----- the Official Liquidator is directed to confirm the sale and deliver possession of the properties in lots-3 and 8 to the applicants, however, this will be subject to the condition that the applicants shall not alienate the properties in any manner or create any encumbrance. They shall also be not entitled to alter the present status of the properties till final adjudication of the OSA No.30 of 2006. Thus, said interim order of stay of confirmation of sale, passed on 13.09.2006 by the Division Bench pending OS No.30 of 2006, does not invalidate the order dated 04.08.2006, but for at best to say from any significance of it is suspension of confirmation of sale, which other proceedings to continue, which interim order is co-terminus with disposal of the appeal by common judgment, dt.02-07-2010. That what it understands from combined reading of Sudarsan Chits and Valji Khimji (supra). (t). The subject matter of OSA No.28 of 2007 filed by said Ramabhushnam-Ex-Managing Director of the company, is against the order in C.A.No.1575 of 2006, which is pursuant to the order dated 19.11.2006, in C.A.No.1363 of 2006 by the Division Bench of this court. For more clarity it is to say, subsequent to the auction sales and order of winding up referred supra and pursuant to the modified interim orders of the Division Bench of this court dated 19.11.2006, in C.A.No.1363 of 2006 in the pending O.S.A. No.30 of 2006; C.A.No.1575 of 2006 was filed U/s.151 of CPC and Rule 9 of the C(C) Rules,1959, by said Chandrasekhar Reddy and M/s.Venkateshwara Agro Farms Nellore, rep. by its Managing Partner-V.Ramana Reddy, against the Official Liquidator as respondent, to direct the Official Liquidator to deliver possession of the auctioned property to them of their respective lots 3 to 8 and to execute sale deeds in favour of M/s. Raleigh Agro Farms private limited Nellore, rep. by Chandrasekhar Reddy supra and in favour of 9 persons for lot-3 and in favour of 9 persons for respective extents including V.Ramana Reddy Managing partner of Venkateshwara Agro Farms for Ac.11-50 cents for the lot-8; and the Court passed the order that– 'This application is filed by the two applicants, who are purchasers of the properties in lots-3 and 8 respectively, seeking delivery of possession, of lot-3 to the 1st applicant, as the properties under lot-8 have already been delivered to the 2nd applicant; and also seeking execution of sale deeds in favour of the nominees of the applicants, whose names are specified in the petition. It is conceded by the Official Liquidator that the sale consideration has been paid for the applicants with reference to both the lots. Even the Division Bench of this Court passed an order on 09.11.2006 in C.A.No.1363 of 2006 in C.P. No.83 of 1997, directing the Official Liquidator to confirm the sale and deliver possession of the properties in lots-3 and 8. In circumstances, the Official Liquidator is directed to deliver possession of the properties and execute necessary conveyance deeds in favour of the applicants or their nominees subject to the condition that the sale deeds in whose favour they are registered are not entitled to alienate the properties in any manner or to create any encumbrance and the same will not be altered subject to the outcome of OSA No.30 of 2006 which is pending disposal. The company application is accordingly disposed off'. Even the impugned order not interfered by the appellate Court, that is not prone to review but for any further appeal or other remedy to impugn. (u). It is subsequent to the orders dated 04.08.2006 in C.A. No.1416 of 2004 of accepting the sales in favour of highest bidders by increase after negotiations by Court and with direction to recover balance amounts and subsequent orders extending time for payment balance amounts or the like, in the main C.P.No.83 of 1997, order of winding up of the company was passed on 01.11.2006, which is the subject matter of appeal in O.S.A.No.3 of 2007. The impugned order reads:- 'The company petition is filed by the Managing Director of M/s. Commercial Agro Products Private Limited seeking winding up of the company--- Though the Provisional Liquidator was appointed and took possession of the assets of the company, and in fact, even sale was conducted by the Official Liquidator as per the directions of the Court, there is no change in the position of the company till date, therefore, there is absolutely no need to keep the company petition pending. A perusal of the company petition filed before this Court shows that....... In view of the above squandering of the public money, collected by the company, the company passed a special resolution in its extraordinary general body meeting, held on 10.05.1997, where it has decided to wind up the company, and accordingly, passed a resolution, seeking winding up order from the Court, and further the Managing Director was authorised to present a petition before this Court, pursuant to which, the present company petition is filed. Though the present company petition is pending for the last 9 years, nothing has turned out, and in fact, though the Ex-Managing Director represented that he would come up with a scheme, in fact, might have filed even an application for that purpose, but he did not pursue the same nor was interested to pay the unit holders whose money was collected more than a decade ago. Under the above circumstances, there are absolutely no justifiable grounds to keep the company petition pending further, especially in view of the resolution passed by all the shareholders, including the Directors, seeking winding up order. Accordingly, company is ordered to be wound up and the Official Liquidator is directed to take possession of the assets of the company, if any, left over, after issuing notice to the persons in management of the company and file a report. The Official Liquidator is further directed to carry out publication of this order of winding up of the Company in ‘Andhra Jyothi’ Telugu daily and ‘Indian Express’ English daily of Hyderabad editions, apart from serving copy of this order on the Registrar of the Companies and file proof of publication. The Company Petition is accordingly ordered'. (v). It is in the background supra and after hearing the parties by the common judgment dated 02.07.2010(which is impugned in the present five reviews), the Division Bench of this Court, dismissed the O.S.A.No.30 and 45 of 2006 and 3 and 28 of 2007 and consequently allowed the application No.1529 of 2006 of one of the highest bidders-Ch.Anjaneyaswamy in respect of lot No.4 of Ac.302.29 cents of Kakivaya village, Nellore district to accept the balance amount and execute the sale deed in his favour. Thus, from the above there is nothing to interfere with the common judgment dated 02.07.2010 which is impugned in the present five reviews, for no error apparent on the face of the record as detailed supra. Accordingly, point-i is answered. Point-ii: 9. In the result, the five Review Applications are dismissed. There is no order as to costs. Consequently, miscellaneous petitions pending in these Review Applications, if any, stand closed.