KAYJAY INDUSTRIES (P) LTD. versus ASNEW DRUMS (P) LTD. & ORS.

KAYJAY INDUSTRIES (P) LTD. l'. ASNEW DRUMS (P) LTD. & ORS. March 20, 1974

[D. G, PALEKAR, P. N. BHAGWATI AND V; R. KRISHNA IYER, JJ,]

Code o/Civil Procedure (Act 5 of 1908), 0.21, r.90 and State Financial Corpo· ration Act, 1951, Sec. 31-Material irregularity in comluct of $a/e and s~bstfllltlaf .injury to judgment-debtor, what are.

The State Finance Corporation lent sum of Rs. 10 lacs to the first respondent on the security of mortgage of its land etc. The first respondent having failed to repay, the Corporation applied to the District Court under the State Financial <Corporation Act, 1951, for recovering the amount by attachment and sale of the mortgaged properties. The sale proclamation was settled after notice to the parties, and after several adjournments, caused by the first respondent's dilatory tactics, the sale was held. The court felt that it was better to have some valuation report to serve as basis and to gujde it in deciding whether the offer of Rs. 11,10,000 was grossly unjust. The first respondent did not have the properties val uc-d but the Coq>oration had the properties valued and the mortgaged prop~rties Wfr~ valued at about Rs. 17 lacs. Thereafter an auction was again held and the appellant was the highest bidder. His offer was, less by about Rs. 40,000/- than the amount on the ·previous occasion. He however agreed to raise the offer to Rs. 11,50,000/- and the court concluded the sale at that amount. The first respondent applied under 0. 21, r. 90, C.P.C. for setting aside the sale but the application was dismissed. His appeal •was allowed by the High Court.

Allowing the appeal to this Court.

HELD : Under s. 32(8) of the Act, the Civil Procedure Code is attracted to pro• ceedings for the realisation of the dues of the Corporation. Therefore, 0. 21, r. 90 was applicable and if there was any material irregularity in the conduct of the sale and if it caused substantial injury to the judsment-debtor, the sale could be set "aside. Where court mechanically conducts the sale not bothering to see if the offer ·is too low and better price could have been obtained and if in fact the price is subs-1antially inadequate, there is both irregularity and injury. But at the same time the court should not go on adjourning the sale till good prtce is got as otherwise, decree-·holders can never get the property of judgment debtors sold. There is always con-siderable difference between the court sale price and market price. court sale is forced sale, and notwithstandi~ the competitive clement of public auction, the best price is not always forthcommg. valuer's repor.l though good as basis, is not as good as an actual offer and there are bound to be variations within limit~ between such an estimate, however careful, and the real bids by seasoned business-man. Mere inadequacy of price cannot demolish court sale. Further, if court 'Sales are too frequently adjourned with view to obtaining still higher price pros-pective bidders will Jose fa1th in the actual sale taking place and may not attend at 1he auction. Nor is it right to judge the unfairness of the price in the light of the 'Subsequent events which were not within the knowledae of the executing court at ·the time of the sale. What is expected of the court is to make realisitic appraisal . or the factors in pragmatic way and if satisfied that in the given circumstances the bid is acceptable it should conclude the sale. The court may consider the fair value of the property, the general economic trends, the larse sum required to be produced !by the bidder, the formation of syndicate, the futility of postponements and the possibility of litigation and several other factors depending on the facts of each case. If the court has fairly applied its mind to the relevant considerations while accepting ·the final bid it is not necessary to give speaking order nor can its order be exa· •mined meticulously. [682 A-E; 683C; 684 A-F)J n the present case, the executing court had admittedly declined to affirm the highest bids on the previous occasions in its anxiety to secure better price. Well known industrialists in the public and private sectors knew about it and bid at the auction. All interested parties were present at the a.uction and. no on4: raised any objection regarding the conduct of the sale. The Corporation could not be put off indefir1itely in recoverjn~ its dues on baseless expectations and distant prospects. The sa!e proceedings had been' p:ndins too long and the first respondent would not, even when given the opportunity, produce buyers by private negotiation. He .did not even produce- valuer's report. He by his litigious attitude has contributed

. K.~Y1AY INDUSTRIES V. A.SNEW DRUMS (Krishna lyer, J.) 679 10 [po!<Siblc ][buyers being afraid ][of ][hurdles thereafter ]Th . that the executing court had committed no materi;l ir ere o~e, t.t must be h.Id of the sale in accepting the highest offer of the appellant ~~~u!arny m t~e conduct at Rs. 11,50,000/- though the market value may be over Rs · •r7co1 acs. nclud[6mg the sa84G..U85 B] le Naya/klta a11d Sons v. Rama11ya Das • [1970] 3 S R 1 · · · , re.er rr~ to. \ . m The appeal is not against the approval of the sale . but against the High Court's order in appeal against an ord/r thf e_,ecutmg court to reth~ sale, view under the dis0. cretion 2I. r. 90. exercised Therefore. by the the trial question court of does ncit the t~r~~ 11usmg c[Jto~~ k~;rowaside er . Ward v. Jam~s. [1966] I Q.B. 273 at 293, referred to. [It is odd tbat financial organisation in the public sector should ha,·e read·! lent huge amount of Rs J 0 lacs and Struggled for several years to recoup the an I r This as_P_ect c-f the matter _should receive the amtious att.c:ntion of the conc::;~~d· authon~t~_so that J?Ubhc m~ncy may be hand!~ by public servants 1\ith p bh rcsponstbthty and tor pubhc bcnefiLJ [6850-E] u vrLAPPELLATE J u RISDICTION: Civil Appeal No.2 I 50 ofl972. From the j J!dgment and decree dated the 7th/8th February, 1972 of· the Uombay H1gh Court in Appeal No. 152 of 1970. Som Natlr Chatterjee, S. N. Sara/, Pramod Soroffand H. K. Puri, 0 for the appellant. . Hardayal Hardy, Suresli Parekh and B. Dutra, for respondents 1 and 2, J\f. N. Plradke, Rameshll'ar Nath and Rajinder Norian for respondents 4 & 5. · The Judgment of the Court was delivered by £ ~R.ISH:-.A In~. J. The appellant in this appeal, by ce~ificate is t~e auction purchaser whose sale has been set as1de by t~e H~gh _court 1n reversal of the decision of the Executing Court whtch dJsnussed the application ofthej udJment debtor( first respondent herein) under~rder XXI_ rule 90, c. P. c. Although many point~ were urge~ a_nd consJder.a-i ble lime was taken in the arguments, attenuon _was pnnc1pal~y focu~s­.i ed on one issue v.•hich we will mainly deal w1th. Of_cour;e, bnt:f but sufficient reference wilt also be made to the other potnts. . !he Mahar:~shtra State Finance Corpof~tion (for :hort "t~e ~o~~od rauon") plays the role of decree-holder tn the pr~en~ ~a~~·u ~r:~n lent sum of Rs 10 takhs to the first respondent, \\hi~h t~ -manuf;u:turing p;iV<111: limited company, in May 1961, ondtheasehc.u;~rtyy by . · 11a Yo r mortgage of its lanu, actory _, building plnnt -; 113 [had ]an [guaranteed ]m ~: • ~ltuate at Kalwa, District Th;~na. ~cspond~nts- a~ the facts that in or atrepaym~:nt of the said loan. lt IS al~o stf~ ~(l!'-nstitution but not PanYto these ut 1964 the Dena proc~cding~ B•1nk, had also advanced now nauona t>e 1 [0 ]\he ·ty of first respondent its plant and ~ 5~m of R~. 20 laJ.;hs presumably on the sec:~~ as ect is not quite cl achmery and raw material stod<s, although ~ [1],ant ~or the di&posal It Of;:~_ from the CC~Ocd and is not perhaps vry-[e·(~~r that the rightS and re , 1S_ap~al. We wouiJ only hke to ma [1 ]~ ainst the appdlant or th n.edtes of the said Bank whate\'eC theY. are •. ag 1 Other respondents, an: 'not dealt with tn this appca ·

. ····--~ "

The first respondent which had. taken the loan for an industrial purpose defaulted in making repayment and so notice was issued to it by the fourth resporment, the Corporation, under· s. 30 of the State Financial Corporation Act, 1951 (hereinafter referred to as the Act) demanding prompt discharge of the liability under . the mortgage and indicating that in default of payment legal proceedings under s. 31 of the Act to realise·the dues would be undertaken. No fruitful res-ponse was · forthcoming and the Corporation, therefore, made ·. an application, Miscellaneous Application No. 75 of 1965, in the District Court against respondents 1, 2 and 3, under s. 31 of the Act, seeking to levy by attachment and sale of the propertif!S covered by the mortgage, the amounts due to it. . The total amount recoverable was stated to be little over Rs. 16lakhs, but we are not concerned with the figure as it is not in dispute before us.

In June 1966 the <."orporation moved the Court for the appointment of receiver to take charge of the properties which had been by then attached and to sell them by court auction. receiver was duly appointed, who entered o.n his duties and took steps for conducting the sale. proclamation of sale was settled after notice to the parties, on December 5, 1967, and the sale was fixed to take place on. January 8, 1968. However, the sale did not take place that day and the happenings thereafter culminating in the sale on September 3, 1969, wherein the present appellant was the highest bidder, and oonsequent purchase, are the subject ma~ter of the present appeal. We will take close-up of certain pivotal events on which the fate pf the appeal depends. With the consent of both parties, the Court decided to sell in two lots, presumably because that would fetch better price, one Jot being made up of the land aJ1d what was permanently fixed thereon, and the other the plant and machinery. There is no doubt that the items sold are of considerable value, land in that in~ dustrial area escalating in price as time passed, the machinery being imported and costly and the industry for which they were needed be.ing of growing importance for the country. Even so, let us look at the p~norama of.forensic·evento as they unfolded from stage to suige. On January 11, 1966 the order for sale was made. Later, the judgment debtor applied for time to 11egotiate private sale but failed to find suitable buyer. On January .12, 1967, the Corporation applied for the sale of the entire unit. The sale was fixed to take place on January 8, 1968 when, at the instance of the Dena Bank, it was postponed on the plea that the machin(ry not fixed to the earth had not b!:en shown separately. In August, 1968, the judgment debtor. · again prayed for postponement to enable him to raise funds to discharge the debt privately and the District Judge acceded to the request conditionally. The prayer was made on August 7; 1968 and the Court directed the judgment debtor to deposit Rs. I! la~s by October, 15, 1968 and postponed the sale till the last week of October. The judgment debtor could not deposit the preli-minary sum -by the time fixed. Even so,. the sale did not take place on October 28, 1968 since·the'Corporation and the Bank wanted the description of the machinery to be inserted in the proclamation of sale.

bYJAY INOO~

Early iJJ. J)eqemblr the judgtnent debtor applied that the sale should be of the whole property in one l9t, which,was turned down by the Court on Decembet,l2; 1968 since the sale in two lots was course already ooneento4 to by him and the move was purely dilatory. However, the judgment-debtor ~oved the Jligh Court and· obtained stay of ~~&lc, and the appeal was withdrawn by him on February 26, 1969 ;whereupon he 1iled suit for declaration that the order for sale was without jllriedict.ion. When be found that an interim injunction .apinst holding the sale was refused, he withdrew the suit on April16, 1969. Nt,turaUy, the sale fixed for May 1,1.969 could not take place for ··want ofbi(l~ although neighbouring industrial concern, Mukund lron, pvc an' offer of Rs; 2·20 lakhs for the land and bul.ldings only, Tke next attempt was tQ hold the sale on May 16, 1969 and the' highes1 bids then oft'erod were R.s. 2lakbs for land and building and Rs. 80,000/· for the machinery. The Court considered the bids too low and pre-ferred to adjourn the sale. This circumstance certainly discloses that the Court was alert to see that fair price was obtained, and the fact that it was court auction .Was' not allowed to operate to the detriment , of the judgment debtor. sale wa:s agai..n attempted on June 5, 1969 when the highest orrcrs· for land and bUilding went up to Rs. 2 · 60 lakhs and for machinery Rs. 2 ·1 0 lakhs. The judge endeavoured to secure ~tter price since the Corporation pleaded that the offers were inade* q_uate. In the circumstances, the judge postpo~ed the sale.

We now come clos~r to the final. On August"28., 1969 sale was held and the highest bids for land and buildings went up to Rs. 5 · 70 lakhs and for machinery 5 · 40 lakbs. It must be noted that at this time the Judge, who was then holding the sale, was not the presiding officer but another judge, since the former was on leave. It was felt by the latter that it woul~ be better to have some valuation report to serve as basis and to guide the court in concluding whether grossly unjust offer was being fobbed off on it. The Receiver who was in charge requested both the judgment debtor and the Corporation to get valua-tion reports from competent valuel'l! and the sale it~\f stood adjourned. The judgment debtor did not bother to have the properties valued but the Corporation secured the services of competent. valuer, Mfs. Corona Electricals of Bombay, who estimated tb.e la~d and buildings to be worth Rs. 10,46,096/· and the machinerY Rs;·7,02,000f*. The total value thus arrived at was Rs. 17,48,096/-. In the'\igbt' of various facts, including the absenCC< oftln alternative evaluation report from the judgment debtor's side, these Corona figures were tightly ti eated by both courts. as tentatively sound. The auction held on September '3, 1969, however, fetched the highest offer for the two lots of only Rs. 5;65,000/-a~d Rs. 5,00,000/p respectively, in the latter case Rs. 40,00:l'J~ less than on the previous occasion. After considerable persuasion by the"Judge, the appellant agreed to raise the ~ffer for both lots together to gross · &~m of Rs. 11,50,000/- and making an intelligent guess on the given c1rc~~tances the Court apprpved the-sale, which is now being_challen-ged tn these proceedings as an insensible and injurious sanctioning of th~ sale, ignoring the hopeful prospects of'higher prices had the auction been adjourned and better and fuller publicity given. l5-M45SupCI/7S

SUPlUlMB COURT REPORTS

Certain salient facts may be highlighted in· this context. court sale is forced sale and, notwithstanding the competitive element of public auction, the best price is not often forthcoming. The judge· must 111ake certain margin for this factor. valuer's teport, good as basis, is not as good as an actual offer and variations withinlimits between such an estimate, however careful, and real bids by seasoned businessmen before the auctioneer are quite on the cards. MQre so, when the subject-matter is specialised industrial plant, which has been out of commission for few years, as in this case, and buyers for cash are bound to be limited. The bropding fear of something out of the, imported machinery going out of gear, the vague apprehensions of possible claims by the Dena Bank which had huge claim and was not party, and the litigious sequel at the judgment-debtor's instance, have 'scare' value in inhibiting intending buyers from coming forward with the best offers. Businessmen mak~ uncanny calculations before striking bargain and that circumstance must enter the judicial verdict before deciding whether better price could be had by postponement of the sale. Indeed, in the present case, the executing court had ad-mittedly declined to affirm the ·highest bids made on May 16, 1969 June 5, 1969 and August 28, 1969, its anxiety to secure better price being the main reason. · If court sales are too frequently adjourned with view to obtaining still higher price it may prove self-defeating exercise for industrialists will lose faith in the actual sale taking place and may not care to travel up to the place of auction being uncertain that the sale would at all go through. The judgment debtor's plea for postponement in the expectation of higher price in the future may strain the credibility of the court sale itself and may yield diminishing returns as was proved in this very case.

material circumstan~ which weakens the first respondent's case is that on both the dates-August 28 and September 3 Shri B. Paul director of the judgment debtor company was present at the auction and never voiced any grievance about the conduct of the sale or asked for its postponement on the ground that better price may be obtained on later date. Equally significant is the fact sworn to by the authori-sed officer of the Corporation that 'the valuation ofthe total assets' was around Rs. 15 Jakhs 'when the application was made by the petitioner Corporation for sale of the assets under sec. 31 of the State Financial Corporation Act' and 'that the said estimate was given on the basis of the information supplied by the applicants at the time of the dis-bursal of the loan'. The Dena Bank the second charge holder with considerable stakes in the sale was present on the August and Septem-ber auctions through senior representative and did not think it necessary to raise any objection regarding the conduct of the sale or the price tendered. Nor do the proceedings disclose an unfair under-value on account of the absence of effective bidders or inertness of the Judge. On both occasions there were about 30 or 40 bidders. The judgment debtor the second charge holder the Indian Oil Corpora·-tion and other leading industrial cOncerns interested in the drum industry were represented. All the bidders on the 28th August were told of the next auction date and most of them participated passively

or actively in the September sale.· On both the sale-dates the judges (they were different on the two days) were keen on maximising the price. total of Rs. 11,1 O,CX1J/- was the hig~est bid in late August and in early September the best offer for lot No. 2 sagged from Rs. 5,40,000/- to Rs. 5,00,000/- • This downward trend could have persisted if further postponements of sale had taken place and the judge did his best to boost the total pri~ to Rs. 11 · Slakhs and finalised it taking no chances ·by adjourning the auction. The trend of to-day may be the silhouette of tomorrow and the reduced_ offer for lot No. 2 this time may well infect Jot No. 1 next time. The Court did .a good job taking cons-pectus' of the circumstances and avoiding the ominous maybes of future a·uctions. Such are the broad facts to which the law must be applied. Section 32(8) of the Act attracts the Code of Civil Procedure as far as practicable in the realisation of the dues of the Corporation. and so it m·ay be right to apply the provisions of Order XXI r. 90. In short was there any matuial irragularity in the conduct of the sale and did it cause substantial injury to the debtQr ? ·

The first respondent's counsel Shri Parekh drew our attention to condition No. 3 in the present proclamation of sale which is as foll<>ws: "The highest bidders for the two lots shall be declared to be the purchasers of the respective Jots. provided always that he or they are Ie.aally qualified to bid and provid'ed that it shall be in the di~~ ortbe undersigned Receiver ho1ding the sale to decline acceptance of the highest bid for any lot when the price offered for any ofthe two lots appears so manifestly inadequate as to make its acceptance inadvisable. The highest bid offered by any bidders for any of the two lots shall be subject to the sanction and approval of the District Judge Thana."

Form 29 prescribed in Appendix to the Code contains condition No. 3 which is in like term&. The court's activist obligation to exercise a· discretion to make fair sale out of court auction and avert distress sale is underscored by this provision. In all public sales the authority must protect the in~rests of the parties and the rule is stated bv tbi~ Court in Nayalkha and Sons vs. Raman yo Das (1) thus : .

"The principles which should govern confirmation of sales .are well established. Where the acceptance of the offer· by the Commissioners is subject to confirmation of the Court the offerer does not by mere acceptance get any vested right in the property S() that he may demand automatic confirmation of his offer. The condition of confirmation by the Court operates as safeguard against the property being sold at inadequate price whether or not it is consequence of any irregularity or fraud in the conduct ofthe sale. In every case it is the duty of the Court to satisfy itself that having regard to the market value of the property the price offered is unreasonable. Unless the Court is satisfied about the adequacy of the price the act of confirmation of the sale would not be proper exer~ise of judicial discretion."

(J ) [1970] 3 S.C.R. 1 •.

Be it by receiver, commissioner, liquidator or court this principle must govern. This proposition has been propounded in many rulings cited before us and summed up by the High Courts. The expres~ions 'material irrugularity in the conduct of the sale' must be benignantly construed to cover the climax act of the court accepting the highest bid. Indeed under the Civil Procedure Code it is the court which conducts the sale and its duty to apply its mind to the material factors bearing on the reasonableness of the price offered is part of the process of obtaining proper price in the course of the sale. There~ fore failure to apply its mind to this aspect of the· conduct of the sale may amount to material irregularity. Here substantial injury without material irregularity is not enough even as material. irregularity not linked directly to inadequacy of the price is insufficiellt. And where court mechanically conducts the sale or routinely signs assent to the sale papers not bothering to see if the offer is too low and better price could have been obtained and in fact the price is substantially inadequate there is the presence of both the elements of irregularity and injury. But it is not as if the court should go on adjourning the sale till good price is got it being notorious fact that court sales and market prices are distant neighbours. Otherwise decree hOlders can never get the property of the debtor sold. Nor is it right to judge the unfairness of the price by hindsight wisdom. May be subsequent events not within the ken'bfthe executing court when holding the sale may prove that had the sale been adjourned better price could have been had. What is expected of the judge is not to be prophet but pragmatist an<! merely to make realistic appraisal of the factors and if satisfied that in the given circumstances the bid is acceptable conclude the sale. The ~ourt may consider the fair value of the proper~ ty, the general economic trends the large sum required to be produced by the bidder, the formation of syndicate, the futility of postpone~ ments and the possibility oflitigation, and several other factors depen-. dent on the facts of each case. Once that is done, the matter ends there. No speaking order is called for and no meticulous post mortem is proper. Jfthe court has fairly, even if ~iJently applied its mind to the relevant considerations before him while accepting the final bid no probe in retrospect is permissible. Otherwise, new threat to certainty of court sales will be introduced.

So viewed, we are satisfied that the district court had exercised conscientious and lively discretion in concluding the sale at Rs. 11·5 lakhs. If the market value was over 17 lakhs, it is unfortunate that Jesser price was fetched. Mere inadequacy of price cannot demolish every court sale. Here, the court tried its best, time after time, to raise the price, well-known industrialists in the public and private sectors knew about it and turned up. Offers reached stationary l'evel. Nor could the Corporation be put off indefinitely in recovering its dues on baseless expectations and distant prospects. The judgment debtor himself, by his litigious exercises, would have contributed to the possible buyers being afraid of hurdles ahead. After all, producing around Rs. 11 · 5 lakhs openly to buy an industry is not easy even for an

apparently affluent businessmen. . The sate proceedings had been pend~ ing too long and the first respondent could not, even when given the opportunity, produce buyers by private negotiation. Not even valuer's report was produced by him, we are satisfied that the Disw trict Judge had committed no material irregularity in the conduct of the sale in accepting the highest offer of the appellant on September 3, 1969. .

Shri Parekh has levetled number of criticisms of the court sale which we regret are more captious than substantial, more fictitious than genuine. Complaining about the rains in Bombay that day, i.e. September 3, dissecting the Corona Electricals' valuation for minor omissions and errors, holding up the exaggerated figure of about Rs. 36 lakhs as the market value of the property and other like cir~ cumstances can hardly convince anyone that the hoped-for happy day would arrive when handsome price would be forthcoming if the auction were adjourned ad libitum at the instance of the judgment deb-tor. Prima facie it may look little odd that financial orgnisation in the public sector, with special responsibility to the people not to play with public funds or advance for shady enterprises or persons should have readily lent huge amount of Rs. 10 Iakhs on valua-tion obviously bloated as is established by the sequel, and struggled for long years to recoup the money.. This aspect of the matter, we hope, will receive the anxious attention of the concerned authorities so that public money may be handled by public servants with public responsibility and concern for public benefit. However, we do not wish to express any opinion because we have no material before us as to what were the circumstances in which Dena Bank advanced the loan, what were the other securities given by the Company; arid what was the then worth of the guarantors.

Several other unsuccessful grounds were urged before the High Court by the judgment debtor and we need not go over those grounds again as they possess little merit. Nor need we consider the ambit of appellate power to review discretion exercised by the trial court (vide Ward v~ James (l).since here we are concernedwith no appeal against the approval of the sale by the executing court but with an order re~ fusing to set aside the sale under Order XXI r. 90, and an appeal therefrom.

We see no merit in the application to set aside the sale and are consw trained to allow the appeal. Mr. Somnath Chatterjee, who argued the appeal with thoroughness and f~irness, in his opening submissions, told the court that, regardless of the outcome, he had persuaded his <:tient to raise the price to sum equal to the amount at which the pro-perties, lots 1 and 2, were estimated by M/s Corona Electricals, namely, Rs. 17, 48,096/- . He stuck to it to the end good gesture. Cons-·sequently, we shall accept that as the price offered by the auction-purchaser-appellant and direct that the appellant do deposit the balance of this amount of Rs. 17,48,096/- over what he has already paid into

(1) .J1966J 1 Q.B. 273 at 293.