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Judgment
Rakesh Kumar Jain: (Oral)
The Appellant has challenged the validity of the order dated 04.10.2023, passed by the Adjudicating Authority (National Company Law Tribunal, New Delhi) in I.A. No. 5450 of 2022 filed in CP (IB) No. 706/PB/2018 by the Appellant under Section 60(5) of the Insolvency and Bankruptcy Code, 2016 (In short ‘Code’) r/w Rule 11 of the National Company Law Tribunal Rules, 2016 (in short ‘Rules’) for seeking appropriate directions to the Liquidator (Respondent herein) to refund the amounts paid by the Appellant as Earnest Money Deposit (in short ‘EMD’) and part consideration towards its bid for sale of Corporate Debtor as a going concern, has been dismissed.
The brief facts of this case are that ICICI Bank Limited (Financial Creditor) filed an application under Section 7 of the Code against the Apex Buildsys Limited (Corporate Debtor) (now in liquidation) for the resolution of its debts which was admitted on 20.09.2018.
Since, the resolution plan remained unsuccessful, therefore, the order for liquidation of the Corporate Debtor was passed by the Adjudicating Authority on 09.01.2020.
The Liquidator (Respondent herein) put up the Corporate Debtor as a going concern for sale through e-auction on 22.01.2021 at a reserve price of Rs. 119.36 Cr. This e-auction failed. However, on 19.02.2021 only one unit of the Corporate Debtor was put up for sale through e-auction at a reserve price of Rs. 50 Cr. The said e-auction also failed. The third e-auction took place on 12.03.2021 of the Corporate Debtor as a going concern at a reserve price of Rs. 90 Cr. Unfortunately, this e-auction did not take place as there were no bidder. Thereafter, the liquidator put up the Corporate Debtor as a going concern for sale through e-auction on 31.03.2021 at a reserve price of Rs. 81 Cr. This e-action also failed. The Liquidator fixed e-auction of the corporate Debtor for sale as a going concern and in blocks on 17.05.2021 for a sum of Rs. 73 Cr. In this e-auction, the appellant was the sole bidder who gave the highest bid of Rs. 73.01 Cr. The Appellant was considered as Highest Bidder (H1).
It is submitted that e-auction process information document was already given to the Appellant at the time when he submitted EMD amounting to Rs. 7.30 Cr. (10%) of the reserve price.
As per the terms and conditions, set out in the e-auction process information document, the Appellant was to deposit rest of the amount within 30 days without interest and within 90 days with interest @ 12%. The Appellant deposited a sum of Rs. 10,95,25,000/- on 10.06.2021 and 11.06.2021 towards the part payment of the bid amount. Thereafter, the Appellant did not deposit any money.
The Appellant, however, made a declaration on 29.05.2021 to the liquidator in which the following averments were made which read as under:-
“3. We further understand and agree that if any of the statement/information revealed by us is found to be incorrect and / or untrue, the bid submitted by us is liable to be cancelled and in such case, the EMD and / or any monies paid by us is liable to be forfeited by the seller (liquidator) and the seller will be at liberty to annual the offer made to us at any point of time.
We also agree that after our offer given in our bid for purchase of company as a going concern in totality is accepted by the seller and if we fail to accept or act upon the terms and conditions of the sale or am/are not able to complete the transaction within the time limit specified for any reason whatsoever and/or fail to fulfil any/all the terms and conditions of the auction and offer letter, the EMD and other monies paid by us along with the online form and thereafter, are liable to be forfeited. In case final sale consideration amount is not paid within timeline, the liquidator shall forfeit EMD and any other amount deposited by us by that date”
The Appellant was declared the successful bidder and was sent an email in this regard on 03.06.2021 making it clear to him that “please note that all the terms and conditions applicable to successful bidder as mentioned in the e-auction process information document dated 17.05.2021 shall be applicable and binding on you, being the successful bidder.”
Pursuant thereto, term sheet was executed between the Appellant and the liquidator on 15.06.2021 in which the following terms and conditions was agreed to “7.2 that the auction of CD is governed by the provisions of the Code r/w Liquidation Process Regulations. 7.3 That in the event of default by the auction purchaser to make the full payment of sale consideration amount by 01.09.2021 being the 90th day alongwith applicable interest @ 12% if the payment is made after 03.07.2021, if the payment is not made by 01.09.2021 the liquidator shall cancel the auction as per the liquidation process regulations and all the amounts deposited till that date shall be forfeited.”
As per the aforesaid stipulation in the terms and conditions to which both the parties had agreed to, the amount was to be paid with interest within 90 days which expired on 01.09.2021.
It is pertinent to mention that before the failure took place, the Appellant filed an application i.e. I.A No. 3153 of 2021 on 21.07.2021 in which various prayers were made in the form of concessions sought from the Respondent. While this application was pending, another application was filed i.e I.A. No. 4317 of 2021 by the Appellant on 31.08.2021 in which one of the prayers was to decide I.A. No. 3135 of 2021 filed by the Appellant seeking appropriate directions relating to sale of corporate debtor as a going concern and also to extend the time period of 25 days for payment of the balance consideration of Rs. 54,75,7500/- (75% of the total consideration) alongwith interest of Rs. 1,09,51,500/- for the period 03.07.2021 to 01.09.2021 and further interest @ 12% p.a. till the date of actual payment for purchase of CD in liquidation as going concern in totality alongwith its employees/workers and direct the Respondent to maintain status quo and not take any coercive steps against the Appellant till disposal of the I.A No. 3153 of 2021 and I.A. No. 4317 of 2021.
Both the aforesaid applications came up for hearing on 23.09.2021 and on that date the following order was passed by the Adjudicating Authority:-
“List the matter on 28.09.2021 on the top of the list, in the meanwhile, as undertaken by the counsel for the liquidator, there shall not be any coercive steps against the Appellant. List on 28.09.2021”
The Liquidator also filed an application bearing I.A. No. 5255 of 2021 on 15.09.2021 in which prayer was made to allow the liquidator to cancel the sale of the Corporate Debtor as a going concern in view of its failure to make the payment in terms of 2nd proviso to clause 1(12) under Schedule 1 of the liquidation process regulations, 2016 and also to grant further time to the Liquidator to conduct a fresh e-auction in the matter of the Corporate Debtor as a going concern in the interest of the stakeholders and for maximization of value of the assets of the CD under Regulation 32A of the Liquidation Process Regulations, 2016.
The Adjudicating Authority took up all the three applications together and disposed of two applications bearing I.A. No. 3153 of 2021 and I.A. No.4317 of 2021, both filed by the Appellant and allowed I.A. No. 5255 of 2021 filed by the liquidator vide its order dated 25.04.2022.
Since, the permission was granted to the liquidator by the Adjudicating Authority on 25.04.2022 to cancel the sale and to proceed in accordance with law, therefore, through an email dated 25.04.2022, on the same date, the Respondent informed the Appellant about its decision to forfeit not only the EMD but also the part consideration amount.
The order dated 25.04.2022, by which the applications were disposed of bearing I.A. No. 3153 and 4317 of 2021 filed by the Appellant and allowed I.A. No. 5255 of 2021 filed by the Liquidator, was challenged in appeal by the Appellant bearing CA (AT) (Ins) No. 532 of 2022 which was dismissed on 12.05.2022 upholding the order of the Adjudicating Authority. The order dated 12.05.2022 passed by this Tribunal was challenged before the Hon’ble Supreme Court by way of Civil Appeal No. 4116 of 2022 in which the Hon’ble Supreme Court passed the order on 20.05.2022 which read as under:-
“The appeal is admitted subject to the condition that the Appellant shall deposit Rs. 5,50,00,000/- within 23.05.2022 and another balance sum of Rs. 50,00,00,000/- within 01.06.2022.
The auction may go on in the meanwhile, but no final decision shall be taken till 02.06.2022.
If the petitioner pays the above-mentioned balance sum within 01.06.2022, no final decision on the auction shall be taken till further orders of this Court”
It is submitted that in compliance with the order dated 20.05.2022, the Appellant deposited Rs. 5.5 Cr. before the Liquidator. Thereafter, while the aforesaid appeal was pending, the Appellant filed I.A. No. 82662 of 2022 before the Hon’ble Supreme Court for extension of time for depositing the rest of the amount because earlier the time was granted till 01.06.2022 by its order dated 20.05.2022 by the Hon’ble Supreme Court. The said application was dismissed on 02.06.2022 with the following order:-
“IA No.82662/2022 This application seeks extension of time period for three weeks to deposit the balance amount of Rs.50 Crores as directed by this Court vide order dated 20.05.2022.
By the said order, the appeal was admitted, subject to the appellant depositing an amount of Rs.5,50,00,000/- (Rupees Five Crores and Fifty Lakhs only) upto 23.05.2022 and the balance of Rs.50,00,00,000/- (Rupees Fifty Crores only) prior to 01.06.2022.
The order further directed that the auction may go on in the meanwhile but no final decision shall be taken till 02.06.2022.
Mr. Mukul Rohatgi, learned Senior Counsel appearing for the appellant, states that on account of financial difficulties, the appellant could not make the arrangements and is willing to pay the entire amount along with interest within two weeks.
Mr. Gopal Jain, learned Senior Counsel appearing for the respondent submits that the auction is already concluded and the said property has been sold in the fresh auction at a higher bid offer of Rs.91,00,00,000/- (Rupees Ninety One Crores) as against Rs.73,00,00,000/- (Rupees Seventy Three Crores), as was offered by the appellant.
In the last paragraph of the order dated 20.05.2022, this Court had observed as under: “If the petitioner pays the above-mentioned balance sum within 01.06.2022, no final decision on the auction shall be taken till further orders of this Court.”
It would thus be clearly seen that the order is self-operative and on the failure to pay the balance amount prior to 01.06.2022, the parties were at liberty to take a final decision of the auction.
In that view of the matter, we are not inclined to entertain the application and it is thereby rejected.”
The Appellant then filed I.A. No. 116013 of 2022 before the Hon’ble Supreme Court for seeking directions for refund of the amount of Rs. 5.5 Cr. which was deposited by the Appellant with the Liquidator in terms of the order passed by the Hon’ble Supreme Court. The said application was allowed with the following order:-
“Heard ld. Counsel for the parties.
The application for directions/ clarifications being IA No. 116013 of 2022 is allowed.
The Respondent No. 1 is directed to refund the amount of Rs. 5,50,00,000/- deposited in its account of 23.05.2022 in accordance with the directions passed by this court vide order dated 20.05.2022.
The appeal is accordingly disposed of.
Pending applications, if any, shall stand disposed of.”
It is pertinent to mention that the main appeal i.e. Civil Appeal No. 4116 of 2022 filed before the Hon’ble Supreme Court was disposed of.
The Appellant thereafter filed an application bearing I.A No. 5450 of 2022 before the Adjudicating Authority in which the following prayer was made:-
“Pass an order directing the liquidator to refund the amount of Rs. 18,25,25,000/- paid by the Applicant as EMD and part consideration towards its bid for sale of CD as a going concern.”
The aforesaid application has now been dismissed by the impugned order and hence this appeal has been filed.
Counsel for the Appellant has argued that though the application bearing I.A. No. 5450 of 2022 was filed for the refund of the entire amount deposited by the Appellant i.e. EMD + Part payment and the prayer has been declined but at present the Appellant is confining its grievance only in regard to the non-refund of amount of part amount paid by him. As a matter of fact, the Appellant has conceded that the amount of EMD of Rs. 7.3 Cr. forfeited by the Liquidator is in accordance with law, therefore, there is no dispute about it.
The challenge to the competence of the liquidator to retain the amount of Rs. 10,95,25,000/-, deposited by the Appellant towards consideration amount is on the ground that as per Section 74 of the Indian Contract Act, 1872 (in short ‘Act’) the said amount could not have been forfeited / retained by the Liquidator. It is submitted that in case there was any failure on the part of the Appellant in not completing his part of the contract, the Respondent could have, at the most claim damages by resorting to the remedy available to it but for forfeiting the amount. In support of his submissions, he has relied upon two decisions of the Hon’ble Supreme Court, namely, Kailash Nath Associates Vs. Delhi Development Authority & Anr. (2015) 4 SCC 136 and the Authorised Officer, Central Bank of India Vs. Shanmugavelu, Civil Appeal No. 235-236 of 2023 decided on 02.02.2024.
On the other hand, Counsel for Respondent has submitted that Section 74 of the Act is of no avail to the Appellant in view of the fact that e-auction has been conducted in terms of Schedule 1 of the IBBI (Liquidation Process) Regulations, 2016 (In short ‘Regulations’). It is further submitted that it was brought to the notice of the Appellant through e-auction process information document on the basis of which the Appellant deposited the EMD and in which it was stipulated that any other amount deposited by the Appellant shall also be forfeited in case of failure on the part of the Appellant. In this regard, the Respondent has also referred to clause (c) and (d) which read as under:-
“(c) If the bidder is identified as the Successful bidder and it fails to pay balance sale consideration amount within the stipulated time as per the clauses/terms of this e-auction process information document (terms and conditions of e-auction) after being intimated as a successful bidder by the liquidator.
(d) In any of the above event, all the amounts deposited till that date shall be forfeited and the assets of the related lot, for which bid was submitted and declared as successful bidder, will be offered to the next highest bidder.”
He has also submitted that the Appellant has given a declaration in writing on 29.05.2021, already referred to hereinabove, as per which the Appellant conceded that in case it fails to complete his part of the contract then the EMD and other money paid by him may be forfeited. He has also submitted that on 03.06.2021, the Appellant was categorically informed that all the terms and conditions applicable to the successful bidder, mentioned in the e-auction process information document, shall be applicable and be binding being successful bidder and in that eventuality, there shall be forfeiture not only of the EMD but also the sale consideration amount paid
in part. He has also submitted that in the terms sheet which was executed between the Appellant and the Respondent, the same thing was reiterated and accepted by the Appellant to which it is bound and cannot be denied. He has also submitted that the Appellant seems to be short of funds, therefore, the Appellant filed an application bearing I.A. No. 3153 of 2021 before the Adjudicating Authority seeking certain concessions from the Liquidator which was in the garb of extension of time when I.A. No. 4317 of 2021 came to be filed at the instance of the Appellant when he actually requested for extension of 25 days’ time for completing his part of the contract. It is thus submitted that prayers made in both the applications were not found favour with the Adjudicating Authority rather the application filed by the Liquidator was accepted by the Adjudicating Authority vide its order dated 25.04.2022 by which permission was granted to the Respondent to cancel the sale and proceed in accordance with law.
Apropos, the Respondent (Liquidator) sent an email on the same date after getting the order i.e. 25.04.2022 to the Appellant bringing to his notice that the entire amount deposited by the Appellant has been forfeited. This order has not been challenged by the Appellant and attained finality.
It is further submitted that the judgments rendered in the case of Kailash Nath Associates (Supra) and the Authorities Officer, Central Bank of India (Supra) relied upon by the Appellant are not on the facts of the present case and are distinguishable.
On the other hand, the Respondent has relied upon a decision of this Court rendered in the case of West Coast Infraprojects Pvt. Ltd. Vs. Mr. Ram Chandra Dallaram Choudhary, CA (AT) (Ins) No. 1258 of 2022 in which the issue involved similar to the present case has been clearly decided, Section 74 of the Act has been discussed vis a vis auction conducted under the Code and it has been held that that the parties shall be governed by the terms and conditions of sale and the amount of EMD and part payment made by the highest bidder was held to have been rightly forfeited.
We have heard Counsel for the parties and perused the record with their able assistance.
The question in this case travels in a narrow compass in regard to the refund of the amount of the part payment made by the Appellant after the failure of the bid at his instance on the anvil of Section 74 of the Act?
To appreciate the argument raised by the Appellant, it is relevant to refer to Section 74 of the Act which read as under:-
“Section 74. Compensation for breach of contract where penalty stipulated for.
1[When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or, as the case may be, the penalty stipulated for.
Explanation.-- A stipulation for increased interest from the date of default may be a stipulation by way of penalty.]
Exception.-- When any person enters into any bail-bond, recognizance or other instrument of the same nature, or, under the provisions of any law, or under the orders of the 2 [Central Government] or of any 3[State Government], gives any bond for the performance of any public duty or act in which the public are interested, he shall be liable, upon breach of the condition of any such instrument, to pay the whole sum mentioned therein.
Explanation.-- A person who enters into a contract with Government does not necessarily thereby undertake any public duty, or promise to do an act in which the public are interested.
Illustrations
(a) A contracts with B to pay B Rs. 1,000, if he fails to pay B Rs. 500 on a given day. A fails to pay B Rs. 500 on that day. B is entitled to recover from A such compensation, not exceeding Rs. 1,000, as the Court considers reasonable.
(b) A contracts with B that, if A practises as a surgeon within Calcutta, he will pay B Rs. 5,000. A practises as a surgeon in Calcutta. B is entitled to such compensation; not exceeding Rs. 5,000, as the Court considers reasonable.
(c) A gives a recognizance binding him in a penalty of Rs. 500 to appear in Court on a certain day. He forfeits his recognizance. He is liable to pay the whole penalty.
4 [(d) A gives B a bond for the repayment of Rs. 1,000 with interest at 12 per cent. at the end of six months, with a stipulation that, in case of default, interest shall be payable at the rate of 75 per cent. from the date of default. This is a stipulation by way of penalty, and B is only entitled to recover from A such compensation as the Court considers reasonable.
(e) A, who owes money to B a money-lender, undertakes to repay him by delivering to him 10 maunds of grain on a certain date, and stipulates that, in the event of his not delivering the stipulated amount by the stipulated date, he shall be liable to deliver 20 maunds. This is a stipulation by way of penalty, and B is only entitled to reasonable compensation in case of breach.
(f) A undertakes to repay B a loan of Rs. 1,000 by five equal monthly instalments, with a stipulation that in default of payment of any instalment, the whole shall become due. This stipulation is not by way of penalty, and the contract may be enforced according to its terms.
(g) A borrows Rs. 100 from B and gives him a bond for Rs. 200 payable by five yearly instalments of Rs. 40, with a stipulation that, in default of payment of any instalment, the whole shall become due. This is a stipulation by way of penalty.”
Counsel for the Appellant has not denied the fact that after becoming HI and depositing EMD it was duly informed by the Liquidator about the terms and conditions through the e-auction process information document in which it had been categorically mentioned that the liquidator would have competence not only to forfeit the amount of EMD but also any amount having been paid towards part payment of the sale consideration in case there is a failure of the contract on the part of the Appellant. It is also not in dispute that the Appellant was knowing fully well about the terms and conditions which were set out in the e-auction process information document in terms of Schedule 1 of the Regulations that in case of failure of the e-auction, the liquidator shall be competent not only to forfeit the EMD but also the part payment made by the Appellant. The Respondent then again informed the Appellant through its email dated 03.06.2021 in this regard as well. Thereafter, a term sheet was executed between the parties in which the same terms and conditions were also there which was duly signed by the Appellant. The sum and substance of the narration of the aforesaid facts and circumstances is that every step the appellant was made aware by the liquidator of its liability in case the Appellant fails to honour his commitment in so far as the contract is concerned regarding the payment of bid amount. It is needless to mention that no time was extended by the Tribunal when the application was filed by the Appellant as it was dismissed and in appeal the said order was upheld by this Tribunal. It is also pertinent to mention that when the Appellant filed the Civil Appeal before the Hon’ble Supreme Court against the order passed by this Tribunal in order to gain time, the Appellant offered an amount of Rs. 5.50 Cr. to prove his bonafide that he would make the payment if some more time is given, the Hon’ble Supreme court granted time to the Appellant to pay till 01.06.2022. The Appellant did not deposit the amount within that period also and the application was dismissed by the Hon’ble Supreme Court. Meaning thereby, the time was not granted. However, the amount which was deposited by the Appellant before the Hon’ble Supreme Court, in terms of the order passed by it earlier, a sum of Rs. 5.50 Cr. deposited before the Liquidator was ordered to be refunded but the order passed by the Tribunal was upheld by this Tribunal and further upheld by the Hon’ble Supreme Court.
In so far as, the judgment in the case of Kailash Nath Associates (Supra) is concerned, it is not applicable to the facts of this case because in that case it was only in regard to the EMD. In this regard, the Appellant has drawn our attention to Para 2 of the said judgment in which it is observed that “2. The present appeal arises out of a public auction conducted by the Delhi Development Authority ("DDA") wherein the appellant made the highest bid for Plot No.2-A, Bhikaji Cama Place, District Centre, New Delhi for 3.12 Crores (Rupees Three Crores Twelve Lakhs). As per the terms and conditions of the auction, the appellant, being the highest bidder, deposited a sum of Rs.78,00,000/- (Rupees Seventy Eight Lakhs), being 25% of the bid amount, with the DDA, this being earnest money under the terms of the conditions of auction.”
It is the contention of the Appellant that the 25% of the bid amount was part payment whereas we have found that the Hon’ble Supreme Court has categorically mentioned that it was an EMD. Since, there is no dispute about the EMD in this case, therefore, this judgment is not applicable.
In the case of the Authorised Officer, Central Bank of India (Supra) the Hon’ble Supreme Court framed the following three questions which read as under: -
“I. Whether, the underlying principle of Section(s) 73 & 74 respectively of the 1872 Act is applicable to forfeiture of earnest-money deposit under Rule 9(5) of the SARFAESI Rules? In other words, whether the forfeiture of the earnest-money deposit under Rule 9(5) of the SARFAESI Rules can be only to the extent of loss or damages incurred by the Bank?
II. Whether, the forfeiture of the entire amount towards the earnest-money deposit under Rule 9(5) of the Rules amounts to unjust enrichment? In other words, whether the quantum of forfeiture under the SARFAESI Rule is limited to the extent of debt owed?
III. Whether a case of exceptionable circumstances could be said to have been made out by the respondent to set aside the order of forfeiture of the earnest money deposit?”
These three questions were decided accordingly but the Counsel for the Appellant has referred to Para 87 of the said judgment in which there is a reference of “Ex Parte Barrell: (L.R.) in Re. Parnell 10 Ch. App. 512” wherein it has been held that “a specific forfeiture clause might operate to defeat the buyer’s right of recovery of even an advance payment. But equity might step in to relieve the buyer from forfeiture”.
In this regard, Counsel for the Respondent has relied upon a decision of the Hon’ble Supreme Court in the case of Pratap Technocrats Pvt. Ltd. & Ors. Vs. Monitoring Committee of Reliance Infratel Limited & Anr., (2021) 10 SCC 623 in which the Hon’ble Supreme court while dealing with the jurisdiction to approve a resolution plan has held that “there is no equity- based jurisdiction with NCLT, under the provisions of IBC”
Be that as it may, Counsel for the Respondent has relied upon a decision of this Court rendered in the case of Westcoast Infraprojects Pvt. Ltd. (Supra) in which, the facts were, that the highest bidder not only deposited EMD but also a part payment was made which was forfeited. Counsel for the Appellant therein raised a legal issue while referring to Section 74 of the Act submitting that the liquidator ought to have filed a suit for recovery of the penalty by way of compensation and the liquidator had no jurisdiction to forfeit the EMD and that the amount of Rs. 1,75,00,000/-deposited by the Appellant be refunded.
This question has been answered by this Court while referring to Section 74 of the Act and held that “20. For purpose of this case, law as laid down in Paragraph 43.7 is relevant where Hon’ble Supreme Court has clearly held that when forfeiture takes place under the terms and conditions of a public auction before agreement is reached, Section 74 would have no application. The statement of law in paragraph 43.7 is fully applicable in the case of the present case. The present is a case where Appellant participated in the eAuction conducted by the Liquidator under the Liquidation Process Regulations, 2016. Section 74 of the Indian Contract Act has no application in the case of Auction conducted by the Liquidator under the Liquidation Process Regulations, 2016. The terms and conditions of the sale as finalized by the Liquidator under which the e-Auction was held is binding on all including the bidders. Bidders give an unqualified undertaking for participation in the e-Auction after knowing fully well of clauses of the e-Auction Process Document and undertook to abide by the clauses. The submission of the Appellant cannot be accepted that Appellant’s EMD cannot be forfeited even though he has committed default in making the payment of balance amount and the Liquidator should file a suit for forfeiting amount deposited by the Appellant. Such preposterous argument cannot be accepted in view of the fact that Liquidation Process is conducted under the statutory Liquidation Process Regulations, 2016. The terms and conditions of the Process Document has been framed as per statutory empowerment given to the Liquidator by Schedule I of the Liquidation Process Regulations, 2016 as noticed above. When the clauses of the Process Document as noted above, clearly empowers the Liquidator to forfeit the EMD and any payment made in event default is committed by the Highest Bidder, no exception can be taken to the action of the Liquidator in cancelling the sale and forfeiting the amount deposited by the Appellant.”
It is pertinent to mention that the aforesaid judgment passed by this court was further challenged by the aggrieved party before the Hon’ble Supreme court by way of Civil Appeal No. 4087 of 2023 which was dismissed on 05.07.2023.
Therefore, in such circumstances, the judgments which has directly answered the question involved in the present appeal are not the judgments relied upon by the Appellant in the case of Kailash Nath Associate (Supra) and the Authorised Officer, Central Bank of India (Supra) but it is the case of Westcoast Infraproject Pvt. Ltd. (Supra) which we would respectfully follow as the correct statement of law.
Thus, in view thereof, we do not find any merit in the present appeal and the same is hereby dismissed though without any order as to costs.