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Judgment
K.A. Puj, J.—The applicant has taken out this Judge''s Summons praying for post-facto extension of time of depositing the balance sale consideration upto 17-3-2010.
An affidavit is filed by the applicant in support of the Judge''s Summons.
Heard Mr. N.K. Pahwa, learned advocate appearing for the applicant and Mr. J.S. Yadav, learned advocate appearing for the Official Liquidator.
Mr. Pahwa has submitted that this Court has passed an order on 3-2-2010 in Official Liquidator Report No. 131 of 2009 confirming the sale of Lot No. I-B i.e., plant, machineries and all other movable except records situated at Plot No. 1002/2, Lane No. 48, Phase - IV, GIDC Estate, Vapi, Distt. Valsad for a consideration of Rs. 20,71,000. As per paragraph 5 (b-ii) of the said order, this Court has confirmed the sale on condition that the applicant shall deposit the entire amount of sale consideration after adjusting the EMD within a period of one month commencing from 5-2-2010. Accordingly, the applicant was required to deposit the entire amount of sale consideration by 5-3-2010. The applicant, however, could not deposit the balance amount of consideration by the said date. The applicant, therefore, addressed a letter dated 3-3-2010 to the Official Liquidator stating that due to some unavoidable circumstances, the applicant could not deposit the balance amount of Rs. 18,61,000 in time. He has, therefore, requested to grant time upto 31-3-2010. He has also conveyed his willingness to pay interest on the balance amount.
Mr. Pahwa has further submitted that the applicant thereafter addressed a letter dated 17-3-2010 to the Official Liquidator along with which the applicant deposited pay orders aggregating to an amount of Rs. 18,61,000 + interest amount of Rs. 14,000 aggregating to Rs. 18,75,000. The interest was calculated @ 18% p.a. The Official Liquidator has accepted the said amount from the applicant.
Thereafter, the applicant filed Company Application No. 72 of 2010 before this Court seeking appropriate order for extension of time to deposit the balance sale consideration upto 17-3-2010 on such terms and conditions as may be deemed fit and proper by this Court. This Court vide its order dated 1-4-2010 disposed of the said application and recorded that as the amount has already been accepted by the Official Liquidator, the Official Liquidator should seek necessary ratification of the said action.
Thereafter, the Official Liquidator filed Official Liquidator Report No. 45 of 2010 before this Court seeking ratification of his action of accepting Rs. 18,61,000 being the remaining sale consideration and the interest of Rs. 14,000 for delay of 15 days from the purchaser and also seeking permission of this Court to hand over the possession to the purchaser. This Court vide its order dated 23-4-2010 has, however, rejected the said report of the Official Liquidator for the reasons stated in the said order keeping an option open for the applicant to move an application before this Court seeking post-facto extension of time for deposit of the amount.
Instead of moving such application, the applicant has challenged the said order in OJ Appeal before the Division Bench of this Court. The said appeal is still pending. It has come up before the Court on 18-5-2010. This Court was of the view that instead of entertaining the said appeal, the applicant should file Company Application for post-facto extension and accordingly the present application is filed.
Mr. Pahwa has further submitted that this Court has wide powers to make any order to meet with the ends of justice as per Rule 9 of the Companies (Court) Rules. This Court is also empowered to grant extension of time at the pre-deposit or post-deposit stage. The applicant has already deposited the balance sale consideration with the Official Liquidator under the belief that the Official Liquidator is competent to grant extension of time as per the order of confirmation. The Official Liquidator has also accepted the sale consideration along with interest @ 1896 way back on 17-3-2010. He has, therefore, submitted that considering the entire facts and circumstances of the case, this Court should grant ex-post facto extension of time upto 17-3-2010. Mr. Pahwa has further submitted that the applicant has to move this application during vacation only because the applicant has not been able to remove the movables despite the fact that the applicant has already paid the amount along with interest on 17-3-2010. The monsoon is approaching and hence, if the goods are not lifted, the goods would be deteriorated. He has, therefore, submitted that appropriate order may be passed.
Mr. J.S. Yadav, learned advocate appearing for the Official Liquidator, on the other hand, has submitted that the present application is not maintainable as earlier the applicant had already moved the application and the Court has observed that the Official Liquidator should file report seeking ratification of his action.
This objection is not sustainable in view of the fact that pursuant to the said direction, the Official Liquidator has filed Official Liquidator Report. However, the same was rejected leaving an option open for the applicant to move an application seeking post-facto extension.
Mr. Yadav has further raised the objection that the applicant has filed an appeal challenging the order passed by the Court in the report filed by the Official Liquidator.
Mr. Pahwa has fairly submitted before the Court that he is not pressing the said appeal and he is withdrawing the same. Hence, this objection is also not sustainable.
Lastly, Mr. Yadav has invited the Court''s attention to certain observations made by the learned Company Judge of this Court while rejecting the Official Liquidator Report.
There is no dispute about this proposition. Admittedly, the Official Liquidator has no power to extend the time limit. The applicant should have moved this Court seeking extension of time. Be that as it may, the amount is deposited which has already been accepted and despite the observations of this Court, liberty was granted to the applicant to move an application seeking post-facto extension.
In the above view of the matter, all the three objections raised by Mr. Yadav are not tenable. The interest of justice requires that once the amount has already been paid, though late with interest, the technical objection should not come in the way of the applicant and hence, the property be enjoyed by the applicant once the amount has been paid.
In the above view of the matter, more particularly, when the applicant has already expressed his intention to withdraw the OJ Appeal, the prayer made in this application is granted. The post-facto extension to deposit the amount with the Official Liquidator is hereby granted and the Official Liquidator is directed to hand over the possession of the properties sold to the applicant forthwith.
With this direction and observation, this application is accordingly disposed of.
D.S. permitted.