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Judgment
R. Banumathi, J.—Being aggrieved by the Order passed by the learned single Judge in C.A. No. 2729 of 2007 in C.P. No. 174 of 2001
dated 25.1.2008, the Appellant/ 3rd party has preferred this appeal.
The brief facts, which led to the filing of this appeal are as follows:
M/S. Union Motors Services Limited was ordered to be wound up by the order of this Court dated 21.9.2004 made in C.P. No. 174 of 2001.
The Official Liquidator was appointed as a liquidator of the said Company with a direction to take charge of all assets and effects of the company
in liquidation. Pursuant to the aforesaid directions, Official Liquidator has taken possession of the assets of the Company situated at (i) No. 32 and
46 Thiru.Vi.ka Industrial Estate, Ekattuthangal, Chennai - 32 and (ii) 3 branch offices situated at No. 4, Pattulos Road, Chennai - 2 and (iii)
another Branch Office situated at 118 Manapet, Bathoore Commune Panchayat, Union Territory of Pondicherry and at No. 104, bridge Station
Road, Sellur, Madurai-2.
The Official liquidator has also valued the aforesaid assets and filed sale application. By order dated 5.12.2007 made in C.A. No. 2729 of
2007, this Court has directed the Official Liquidator to sell the immovable properties situated at Madurai and Pondicherry and in this appeal, we
are concerned with the property situated at Pondicherry. For the said property in Manapet, Court has fixed the upset price at Rs. 115 lakhs. On
25.1.2008, Court has considered the offer made by 9th Respondent -S.Dorai for a sum of Rs. 1,85,00,000/- as the highest offer and confirmed
the same in favour of the 9th Respondent. In the said property at Manapet, the Appellant Trust is running a Teacher Training institute under the
name of Krishnaswamy College of Teacher Training Institute under agreement of lease and the Appellant institute also participated in the auction
conducted on 25.1.2008. Recording the submission made by the Official Liquidator that the Appellant Trust is in occupation of the immovable
property situated at Pondicherry under a lease agreement, by the order dated 25.1.2008, Court has directed the Trust to hand over vacant
possession of the property to the Official Liquidator within first week of July 2008 and directed the Official Liquidator to communicate the order to
the Appellant Trust. Accordingly, the Official Liquidator sent the letter dated 11.2.2008 addressed to the Managing Trustee of the Appellant with
a request to make necessary arrangements to hand over the said premises to the official Liquidator.
Being aggrieved by the direction of the Court to hand over vacant possession, the Appellant Trust has preferred this appeal.
Learned Counsel for Appellant has submitted that the Appellant became tenant in the property by virtue of a lease agreement dated 22.1.2000
and subsequently renewed by another lease agreement dated 22.12.2000 on a monthly rent of Rs. 5,000/- with 20 percent increase for every five
years. Case of Appellant is that as a tenant, the Appellant is in lawful possession of the property and that the Appellant cannot be evicted except
under process of law and any direction to hand over vacant possession is not legal and without jurisdiction. On behalf of the Appellant it was
contended that it has obtained appropriate recognition from NCTE for running the teacher training institution in the said premises and if the
Appellant is directed to vacate the premises it will have the effect of closing the institution itself and therefore prays for setting aside the said order
dated 25.1.2008. Further contention of Appellant is that the Appellant, being a lawful tenant, is entitled to protect his possession and cannot be
evicted under the guise of auction sale in favour of the 9th Respondent or in any manner except under due process of law.
The learned Senior Counsel for Official Liquidator Mr. AR.L.Sundaresan would further contend that the Appellant Trust is aware of the sale
proceedings and the Appellant Trust itself
participated in the auction and being the second highest bidder and also lessee in the property of the Company in liquidation, cannot stall the sale of
the assets of the Company in liquidation. Drawing our attention to terms of lease deed, learned Senior Counsel further contended that the lease rent
fixed is a very low amount and the terms are heavily tilted in favour of the lessee which raises serious doubts about the deed.
Mr. AR.L.Sundaresan, learned Senior Counsel appearing for the Official liquidator has submitted that the successful bidder-S.Dorai, 9th
Respondent remitted EMD of Rs. 18,50,000/- only on various dates and the balance sale consideration of Rs. 1,66,50,000/- has not been
remitted by the purchaser. Pointing out that the 9th Respondent - auction purchaser has not paid the balance sale consideration, the learned Senior
Counsel for Official Liquidator Mr. AR.L.Sundaresan would further contend that a fresh auction could be conducted by fixing the present market
value of the property. It was further submitted that the 9th Respondent, being a defaulter, in view of Clause 20 of the terms and conditions of
public auction, EMD of Rs. 18,50,000/- paid by the 9th Respondent is to be forfeited.
Onbehalf of the auction purchaser, learned Senior Counsel Mr. S.Parthasarathi has contended that since the matter was pending before the
appellate Court and stay was also granted on 14.3.2008, the 9th Respondent did not pay the balance sale consideration and the 9th Respondent is
ready to pay the balance sale consideration. The learned Senior Counsel would submit that in any event, if the sale is set aside, the Appellant is
entitled to refund of EMD.
The Appellant is said to have entered into lease agreement with Company in liquidation on 22.1.2000 for demised building of 8400 sq.ft along
with adjacent vacant land (about 5.33 acres) for a lease rent of Rs. 5,000/- per month for a period of 11 months, which expired on 21.12.2000.
Again, the Company in liquidation is said to have entered into a fresh lease agreement for a period of 30 years in respect of the said building of
8400 sq.ft and the adjacent vacant land at Rs. 5,000/- per month with 20 percent increase in rent on every five years, commencing from
22.12.2005 and so on. Even the recitals in the lease deeds stated that the demised property is described in the Schedule. The lease agreement filed
in the typed set of papers does not contain any Schedule. As per the recitals in the lease deed, the building with carpet area of 8400 sq.ft and the
adjacent vacant land in new Survey No. 115/3 Manapet village is said to have been leased out. As seen from the tender notice, the extent of the
adjacent vacant land is 5.33 acres and 8400 sq.ft of built up area. The terms of lease deed are heavily loaded in favour of the lessee. We fail to
understand as to how such large extent of property with a spacious building has been rented out for a meagre sum of Rs. 5,000/- per month with
marginal increase once in 5 years.
Even though the lease deed is stated to be for thirty years, the lease agreement was not registered. The winding up petition was filed on
29.6.2001. The lease granted under the 1st lease deed (dated 22.1.2000) expired on 21.12.2000. The next lease deed is dated 22.12.2000. As
per Section 531-A of the Companies Act, any transfer of property, movable or immovable, or any delivery of goods, made by a Company, not
being a transfer or delivery made in the ordinary course of its business or in favour of a purchaser or encumbrancer in good faith and for valuable
consideration ""if made within a period of one year"" before the presentation of a petition for winding up, or the passing of a resolution for voluntary
winding-up of the Company shall be void against the liquidator. The said lease deed dated 22.12.2000 is within a period of one year prior to filing
of a winding up petition. Even though the Official Liquidator has not filed any petition to set aside the lease deed dated 22.12.2000, the lease deed
being for long period of 30 years, it falls within the prohibition of Section 531-A.
By perusal of the records, it is seen that the Appellant has entered into a lease agreement (22.12.2000) with the company in liquidation -
M/.Union Motor Services Limited. The Official Liquidator was appointed and the Official Liquidator has taken possession of the assets in 2004.
Now the Official Liquidator is the custodian of the property. The purpose of winding up is to facilitate the protection and optimum realisation of the
assets with a view to ensure equitable distribution among the creditors. Now the Appellant is said to be paying the lease rent to the official
liquidator. Learned Counsel for the Appellant contended that since the Appellant is paying the rent to the official liquidator, the Appellant must be
deemed to be in possession as a lawful tenant.
Onbehalf of the Official Liquidator, learned Senior Counsel Mr. AR.L.Sundaresan has contended that the Appellant has entered into a lease
agreement with the Company on 22.12.2000, which is well within a period of one year prior to the filing of winding up petition and hit under the
provision of Section 531-A of the Companies Act. The learned Senior Counsel would further contend that it is unbelievable that a spacious
building of 8400 sq.ft with the surrounding land of 5.30 acres was leased for a meagre sum of Rs. 5,000/- per month with a 20 percent increase in
rent for every five years. The learned Senior Counsel would contend that the lease deed has been brought into existence only to deprive the claims
of the secured creditors and the employees. Placing reliance upon judgment of single Judge of the Calcutta High Court in Company Petition No.
217 of 2011 - In Re: Prudential Capital Markets Ltd. (In Liquidation), , the learned Senior Counsel would contend that the Appellant had unjustly
stayed in the Company property and therefore the Appellant has to be directed to pay a reasonable amount as damages for use and occupation
beyond July 2008.
Even though the Official Liquidator is collecting rent from the Appellant, it would not amount to attornment of tenancy nor the acceptance of
the leasehold right of the Appellant. Any amount collected by the Official Liquidator from the Appellant could only be towards damages for use
and occupation of the property. Mere fact that the Appellant is paying the amount to the Official Liquidator would not in any manner confer any
right upon the Appellant Trust. The lease agreement between the Appellant and the erstwhile company in liquidation would not have any bearing
upon the liquidation proceedings, more so in view of Section 531-A.
It is pertinent to bear in mind that the lease deeds (22.1.2000 and 22.12.2000) have been executed for a meagre lease rent of Rs. 5,000/- per
month. The second lease deed dated 22.12.2010 is for a long period of 30 years and large extent of property i.e., 8400 sq.ft of building along with
land of about 5.33 acres in between Cuddalore and Pondicherry was leased out at a meagre rent of Rs. 5,000/- per month with increase at 20
percent for every five years. The lease is not free from doubt. We need to consider the bonafides of the transaction in the light of the following:
(i) The lease was within a period of one year prior to filing of winding up petition;
(ii) Lease deed (dated 22.12.2000), even though stated to be for thirty years, was not registered; and
(iii) The lease was for a meagre sum of Rs. 5,000/- per month with increase at 20% after a long period of 5 years.
Considering the terms of lease in favour of Appellant, we are of the view that the intention of the Company appears to be to deny the assets to
the secured creditors/creditors by bringing in a tenant. Taking note of facts and circumstances of the case, by the impugned order, the learned
single Judge rightly directed the Appellant to hand over the property during the first week of July 2008 to the official Liquidator i.e., not later than
7.7.2008.
Considering a case of identical facts and the scope of Section 531-A of the Companies Act, the learned single Judge of the Calcutta High
Court in Company Petition No. 217 of 2011 - In Re: Prudential Capital Markets Ltd. (In Liquidation), , has held as under:
38... In Biswabani Pvt. Ltd. Vs. Santosh Kumar Dutta and Others, , the creation of tenancy or the original lease was free from doubt, which is not
the case here when the first agreement was entered into in derogation of the express undertaking given by the company to the Reserve Bank.
Again in the Biswabani case, the transferee was entitled to protection as a tenant under the rent laws as on the date of the relevant agreement being
found void for want of registration. u/s 446(2) of the Act, the Company Court has the jurisdiction to go into the question as to the transactions
raised by the official liquidator. The scandalous transactions that the Respondent seeks to defend are indefensible on facts and in law.
39....
Section 531 A of the Act provides that any transfer of property or goods made by a company within one year before the presentation of a
widning up petition against it will be void unless such transaction was in the ordinary course of business. In principle, the same tests as to intent as
in Section 531 apply to a transaction challenged u/s 531A of the Act and the onus is on the official liquidator seeking to avoid the transaction to
establish that the transfer was not made in the ordinary course of the company''s business or that it was not made in good faith or for valuable
consideration. As to whether the transaction is made in good faith or for valuable consideration is woefully inadequate, there may arise a
presumption of want of good faith. Again, even if there is adequate consideration, the official liquidator may attempt to establish that a valuable
asset of the company was sought to be shielded against the claims of the company''s creditors. The official liquidator''s challenge would not pass
muster if he cannot establish lack of bona fides on the part of the transferee.
In either case, whether u/s 531 or u/s 531 A of the Act, for the rigours thereunder to apply and the transfer to be declared void, it must be
evident that the company or the controlling mind thereof was aware of the imminent winding up of the company, took out a valuable asset of the
company from the general pool to be ultimately available to creditors and dealt with such asset by the impugned transition. The test that has to be
applied in either case has to be one that would hold good for the earliest date of the period covered by either section.
We agree with the views taken by the learned single Judge of the Calcutta High Court.
In the case on hand, the facts are writ large that after filing of the winding up petition, the second lease deed was executed for thirty years
period on a meagre rent of Rs. 5,000/- per month with minimal increase of 20 percent for every five years. But for the stay order granted by the
Bench (14.3.2008), the Appellant could not have remained in possession after July 2008. But for the stay order granted by the Division Bench, the
Official Liquidator would have taken possession of the property and put the assets of the Company for the maximum advantage of the secured
creditors of the Company in liquidation. The large extent of built up area of 8400 sq.ft and the land surrounding was leased out to the Appellant.
We find much force in the contention of the learned Senior Counsel for Official Liqudiator. Keeping in view the interest of the Company in
liquidation, secured creditors and the claims of the employees, it would be appropriate to direct the Appellant to pay damages for use and
occupation of the building and the surrounding land.
Having regard to the fact that the Appellant had been in possession of a large extent of property, we felt that the Appellant could be directed to
pay rent of Rs. 75,000/- Rs. 1,00,000/- per month after July 2008. At this juncture, it is necessary to refer to the happenings in this Court on
various dates of hearing.
On 5.8.2011, the Appellant was represented by Mr. D.Ravichander, learned Counsel. After hearing the contentions, we expressed the view
that it is appropriate for the Appellant to pay atleast Rs. 75,000/- per month as damages for use and occupation from July 2008. Thereafter, we
have posted the matter ""for pronouncing orders"" on 8.8.2011. On 8.8.2011, we have heard Mr. AR.L.Sundaresan, learned Senior Counsel
appearing for the Official Liquidator. The Official Liquidator has submitted that the property in occupation of the Appellant would fetch atleast Rs.
50,000/- per month and the same can be fixed as the reasonable amount towards damages for use and occupation of the property. Per contra,
learned Counsel for the Appellant has submitted that the Appellant is a Trust and running a Teachers Training Institute, where there is poor intake
of students. However, he stated that Senior Counsel Mr. T.R.Rajagopalan is leading the Appellant in this matter and requested time for further
submissions.
Again, we listed the matter on 9.8.2011 ""for pronouncing orders"". The learned Counsel for Appellant Mr. D.Ravichander submitted that the
property in occupation of the Appellant might fetch between Rs. 25,000/- Rs. 50,000/- and that he would persuade the Appellant to pay
reasonable rent and learned Counsel has only submitted that since the Appellant is running an educational institution, the Appellant wants
reasonable time to vacate and hand over vacant possession. Learned Counsel for the Appellant then submitted that he would file an affidavit of
undertaking of the Appellant to deliver vacant possession of the property and also undertaking to pay reasonable amount for use and occupation.
Having regard to the submission, we have again posted the matter on 11.8.2011 under the caption ""for pronouncing orders"".
On 11.8.2011, when the matter was listed, Appellant was represented by Senior Counsel Mr. T.R.Rajagopalan along with Mr.
D.Ravichander. On 11.8.2011, the affidavit of the Appellant was filed stating that the Appellant may be permitted to withdraw the appeal. In the
said affidavit, the Appellant has stated as under:
... 4. I state that the trust is running a teacher training institute in the property, and there is a poor intake of students and the trust feel very hard to
run the institute and the further running of the institute will not be in the interest of the trust. Hence, the trust had decided to vacate the property
which is the subject matter of appeal within a period of two months, and I undertake to maintain the property in a good manner.
Hence, I humbly pray that this Hon''ble Court may be pleased to permit the Appellant to withdraw the appeal as otherwise the Appellant will be
put to serious loss and untold hardships.
In our considered view, the Appellant is not justified in filing the memo seeking permission to withdraw the appeal. As we pointed out earlier,
but for the stay granted by the Division Bench (14.3.2008), the Official Liquidator would have taken possession of the property and would have
put the assets for the maximum advantage of the secured creditors and the employees. It is fairly well settled that in case if any interim order has
been passed and the party takes advantage thereof and ultimately if the petition/appeal is found to be without any merit, interest of justice requires
that any unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralised.
Observing that the party, who succeeds ultimately, is to be placed in the same position in which it would have been if the Court would not have
passed the interim order, in Amarjeet Singh and Others Vs. Devi Ratan and Others, the Supreme Court has held as under:
No. litigant can derive any benefit from mere pendency of case in a court of law, as the interim order always merges in the final order to be
passed in the case and if the writ petition is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take
any benefit of its own wrongs by getting an interim order and thereafter blame the court. The fact that the writ is found, ultimately, devoid of any
merit, shows that a frivolous writ petition had been filed. The maxim actus curiae neminem gravabit, which means that the act of the court shall
prejudice No. one, becomes applicable in such a case. In such a fact situation the court is under an obligation to undo the wrong done to a party
by the act of the court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralised, as the
institution of litigation cannot be permitted to confer any advantage on a suitor from delayed action by the act of the court. (Vide Shiv Shankar and
Others Vs. Board of Directors, U.P.S.R.T.C. and Another, , M/S. GTC Industries Limited Vs. Union of India and Others, and Jaipur Municipal
Corporation Vs. C.L. Mishra, ....
In South Eastern Coalfields Ltd. Vs. State of M.P. and Others, , this Court examined this issue in detail and held that No. one shall suffer by
an act of the court. The factor attracting applicability of restitution is not the act of the court being wrongful or a mistake or error committed by the
court; the test is whether on account of an act of the party persuading the court to pass an order held at the end as not sustainable, has resulted in
one party gaining an advantage it would not have otherwise earned, or the other party has suffered an impoverishment which it would not have
suffered but for the order of the court and the act of such party. There is nothing wrong in the parties demanding being placed in the same position
in which they would have been had the court not intervened by its interim order when at the end of the proceedings the court pronounces its
judicial verdict which does not match with and countenance its own interim verdict. The injury, if any, caused by the act of the court shall be
undone and the gain which the party would have earned unless it was interdicted by the order of the court would be restored to or conferred on
the party by suitably commanding the party liable to do so. Any opinion to the contrary would lead to unjust if not disastrous consequences.
The Court further held: South Eastern Coalfields Ltd. Vs. State of M.P. and Others,
28... Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous
litigants may feel encouraged to approach the courts, persuading the court to pass interlocutory orders favourable to them by making out a prima
facie case when the issues are yet to be heard and determined on merits and if the concept of restitution is excluded from application to interim
orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the
end. This cannot be countenanced. We are, therefore, of the opinion that the successful party finally held entitled to a relief assessable in terms of
money at the end of the litigation, is entitled to be compensated....
In Amarjeet Singh and Others Vs. Devi Ratan and Others, , For the same proposition, the Supreme Court also referred to the decisions of
Karnataka Rare Earth and Another Vs. The Senior Geologist, Department of Mines and Geology and Another, ; Mahadeo Savlaram Shelke and
Others Vs. Puna Municipal Corporation and Another, and Grindlays Bank Limited Vs. Income Tax Officer, Calcutta and Others, .
Applying the ratio of the above decisions, we are of the view that the Appellant having taken shelter under the order of stay from July 2008
and continued to be in occupation of the property for more than three years, and having taken advantage of the stay order granted by the Court,
now cannot seek to withdraw the appeal. The Company in liquidation and the secured creditors, who ultimately succeed, are to be placed in the
same position. We are constrained to disapprove the conduct of the Appellant. Having taken number of adjournments for filing necessary affidavit
of undertaking, the Appellant is not justified in filing the affidavit seeking permission to withdraw the appeal. Notwithstanding the affidavit seeking
for permission to withdraw the appeal, in the interest of the secured creditors and the claims of the employees of the Company in liquidation, we
direct the Appellant to payRs. 25,000/- per month from July 2008 to September 2011. The Appellant is granted time for vacating and handing
over vacant possession of the building and vacant land till 30.9.2011 as per the affidavit of undertaking filed by the Appellant.
Coming to the sale of the assets for auction of the properties consisting of land to an extent of 5.33 acres in R.S. No. 115/3 along with building
thereon by fixing the price on 25.1.2008, the 9th Respondent -S.Dorai was the highest bidder for a sum of Rs. 1,85,00,000/- and the same was
confirmed in his favour. The 9th Respondent has remitted only EMD of Rs. 18,50,000/-. As per the terms and conditions of the tender-cum-
auction, 50 percent of the sale consideration has to be paid within 45 days of date of auction i.e., on or before 11.3.2008 and the balance 50
percent will have to be paid within 45 days thereafter. Admittedly, the 9th Respondent has deposited only EMD and thereafter the sale
consideration has not been deposited. Admittedly, the 9th Respondent has not remitted the balance sale consideration within the stipulated time. In
the event of non-payment of balance sale consideration, as per Clause (20) of the terms and conditions, the EMD is liable to be forfeited.
The learned Senior Counsel for 9th Respondent has submitted that because of the stay granted by this Court, the 9th Respondent was under
the bonafide impression that the time is extended for deposit of balance sale consideration. The learned Senior Counsel would further submit that
the 9th Respondent is now ready to deposit the sale consideration and if so directed with necessary interest.
The above contention does not merit acceptance. Remittance of 1st instalment of sale consideration was on or before 11.3.2008 and stay was
granted by this Court only on 14.3.2008 and therefore the 9th Respondent cannot take shelter under the order of stay granted by this Court. On
14.12.2009, the Division Bench has clarified that the interim stay is restricted only to dispossession alone. Even after the said clarification
(14.12.2009), the 9th Respondent has not come forward to deposit the sale consideration. Since the 9th Respondent has committed default in
payment of the sale consideration, in our considered view, the Official Liquidator should have already taken necessary steps to bring the properties
for fresh auction.
The Official Liquidator has to safeguard the properties of the Company in liquidation and the Court has got inherent powers to safeguard the
interest of the properties vested with the Official Liquidator. The Court is the custodian of the properties vested with the Official Liquidator. Even
though this is an appeal preferred by the lessee, in the interest of the Company in liquidation and to safeguard the interest of the secured creditors
and employees, it is necessary to set aside the sale and order fresh sale by fixing the present market value.
In an identical case reported in (Nuziveedu Seeds Limited v. Official Liquidator, High Court as the Liquidator of Standard Motor Products of
India Limited (in Liquidation) and others) (2006) 134 Comp Cas 396 (Mad), a Division Bench of this Court has set aside the very sale confirmed
in favour of the highest bidder at the instance of a third party, who preferred the appeal. In that case, though No. appeal was filed by either of the
contesting parties, when it was brought to the notice of this Court by a third party regarding the procedural irregularities in conducting sale, this
Court set aside the auction sale. The Division Bench set aside the sale on two grounds namely (i) opportunity was not given to third parties and (ii)
the successful bidder in the auction, in whose name the sale was confirmed, has not paid even the first instalment due as per the directions of the
Company Court. It is an identical situation as the case in hand, in that case, the successful bidder was directed to deposit 10% of the balance
amount namely Rs. 13.37 crores on or before 08.12.2004, but he has not paid the same. The successful bidder took a stand that the Original Side
Appeal filed by the third party was pending and stay was also granted and therefore he could not proceed further. Subsequently, a clarification
petition was also filed and the Division Bench, by order dated 28.04.2005, though granted extension of time to pay Rs. 60 crores within 30 days,
the successful bidder has not remitted the same and inspite of the argument of the counsel that the said amount was not paid only due to the order
of interim stay granted by this Court, the Division Bench held that the subsequent order has not been complied with and consequently, the very sale
itself was set aside.
In the present case on hand, interim order was granted staying all further proceedings. Subsequently, even in the year 2009, a clarification was
sought and this Court clarified that the stay was only in respect of dispossession alone therefore the auction purchaser ought to have deposited the
amount but it was not done. The fact remains that when the amount has not been paid by the successful bidder before this Court, this Court, as
custodian of the company in liquidation, has every right to cancel the sale even in an appeal filed by a third party.
In the case on hand, the earlier auction was in the year 2008. Since three years have passed and keeping in view the steep increase in land
prices, in order to ensure the assets secure best price and in the interest of the Company and also secured creditors, sale held on 25.1.2008, in
which the 9th Respondent was declared the highest bidder, is set aside. The Earnest Money Deposit paid by the 9th
Respondent shall not be refunded till the completion of fresh auction. On completion of the fresh auction proceedings, the auction purchaser -9th
Respondent is at liberty to file petition before single judge seeking return of the EMD. The learned single Judge shall consider the same and pass
appropriate orders after defraying the expenses incurred towards advertisement and other charges.
For the fore-going reasons, rejecting the request for withdrawal of the appeal, this appeal is disposed of with the following directions:
(a) the Appellant shall pay the amount of Rs. 25,000/- per month as damages for use and occupation from July 2008 till the Appellant delivers
vacant possession of the property i.e., 30.9.2011. Since the Appellant is stated to be running a Teachers Training Institute, the Appellant is granted
time till 30.9.2011 to vacate and hand over vacant possession of the property, as the Appellant Trust itself has filed an affidavit of undertaking to
vacate the property on or before 30.09.2011 recording the undertaking. As the time is granted as per the undertaking of the Appellant, if the
Appellant fails to deliver vacant possession of the property on or before 30.09.2011, it is open to the Official Liquidator to take immediate
possession of the property in accordance with law. That apart, the Official Liquidator is also at liberty to initiate appropriate proceedings for non-
delivery of the possession of the property.
(b) The auction dated 25.1.2008 is set aside and the fresh auction is ordered to be conducted within a period of three months. Upset price shall be
fixed at the present market value. After fixing the market value, learned Judge shall issue necessary directions for conduct of fresh auction. Keeping
in view the interest of secured creditors, we request the learned single judge to complete the exercise within a period of three months from the date
of receipt of copy of this order.
However, there is No. order as to costs. Consequently, the connected miscellaneous petition is closed.