JUDGMENT R.L. Khurana, J.—The industrial unit of Messrs Himachal Concast (Pvt.) Limited at Nalagarh and that of Messrs Pappi Oil Mills (Pvt.) Limited at Baddi were taken over by the defendant, Himachal Pradesh Financial Corporation, under Section 29, State Financial Corporations Act, 1951. In order to realise the outstanding amounts from the said two companies, the defendant-Corporation proceeded to sell and dispose of the two industrial units. Through a public notice, quotations were invited from the interested parties. 2. In pursuance to such public notice, a number of parties including the plaintiff submitted their respective quotations in respect of the industrial unit of Messrs. Himachal Concast (Pvt) Limited. Certain parties, including the plaintiff were called by the defendant for negotiations. In the final negotiations held on 23.5.1995, the plaintiff offered a bid for Rs. 46 lacs. Such bid of the plaintiff was accepted by the defendant-Corporation on 25.5.1995 and the plaintiff was called upon to pay a sum of Rs, 3.10 lacs representing the balance amount of the earnest money, since the plaintiff, at the time of submitting his quotation had deposited a sum of Rs. 1.50 lacs with the defendant in terms of the public notice inviting quotations. Such amount of Rs. 3.10 lacs was deposited by the plaintiff on 27.5.1995. 3. According to the plaintiff, the unit of Messrs Himachal Concast (Pvt) Limited taken over by the defendant, as per the inventory prepared, also included one "induction furnace" of the capacity of 3240 MT. After the offer of the plaintiff was accepted, Shri Rakesh Kumar Jain, a director of the plaintiff on 8.6.1995 went to carry out an inspection of the unit when it was found that there was no induction furnace. Only few loose wires and components of the furnace were found. The offer made by the plaintiff was in respect of the entire industrial unit including the induction furnace. The cost of such furnace was not less than Rs. 25 lacs in the market. Since there was misrepresentation of material facts with regard to the existence of induction furnace, the plaintiff on 19.6.1995, vide fax message (Ex. PW 8/J) sent through its counsel, rescinded the contract and demanded the refund of the amount of Rs. 4.60 lacs paid by it as earnest money alongwith interest at the rate of 19% per annum with quarterly rests, 4. PW 8/J) sent through its counsel, rescinded the contract and demanded the refund of the amount of Rs. 4.60 lacs paid by it as earnest money alongwith interest at the rate of 19% per annum with quarterly rests, 4. Further case of the plaintiff is that the defendant did not possess a valid title in respect of the industrial unit of Messrs HimachallConcast (Pvt) Limited in view of the order dated 22.9,1994 for winding up of the said company having been passed in Company Petition No. 1 of 1991 (Messrs Sandur Manganese and Iron Ores Limited v. Messrs Himachal Concast (Pvt) Limited) and directions having been issued to the Official Liquidator to take charge of the assets of the said company. On and with effect from the said date, that is, 22.9.1994 under Section 456 of the Companies Act the assets came to be vested in/the court. Due to defect in title the defendant could not have sdld the industrial unit of Messrs. Himachal Concast (Pvt) Limited and the contract between the parties stood frustrated. The defect in title was never disclosed by the defendant. The plaintiff has, thus, claimed the refund of the earnest money of Rs, 4,60,000/- alongwith interest amounting to Rs. 19,158/- calculated at the rate of 19% per annum. 5. The industrial unit-of Messrs Pappi Oil Mills (Pvt) Limited, taken over by the defendant, was also advertised for sale. The plaintiff initially gave an offer of Rs. 4.51 lacs and deposited a sum of Rs. 1,00,000/- as earnest money, However, such offer, after negotiations was raised to Rs. 17.71 lacs. The offer of Messrs Bhupinder Singh of Delhi being higher than that of the plaintiff was accepted. The offer of the plaintiff was made valid upto 31.3.1995. Since the offer of the plaintiff was not accepted and that of Messrs Bhupinder Singh was accepted, the plaintiff demanded the refund of earnest money of Rs. 1,00,000/- deposited by it. Since the defendant failed to refund the said amount the plaintiff has claimed the said amount of earnest money of Rs. 1,00,000/- alongwith interest amounting to Rs. 6,333/ - calculated at the rate of 19% per annum. 6. The total amount, thus, claimed by the plaintiff in the present suit comes to Rs. 4,79, 158/- plus Rs. 1,06,333/-, that is, Rs. 5,85, 491/-. 7. 1,00,000/- alongwith interest amounting to Rs. 6,333/ - calculated at the rate of 19% per annum. 6. The total amount, thus, claimed by the plaintiff in the present suit comes to Rs. 4,79, 158/- plus Rs. 1,06,333/-, that is, Rs. 5,85, 491/-. 7. The defendant, while resisting the suit has admitted that the industrial units of Messrs Himachal Concast (P) Limited and Messrs Pappi Oil Mills (Pvt) Limited, which were taken over by it under Section 29, State Financial Corporations Act, 1951, were offered for sale through public advertisements. The defendant also admitted that the plaintiff had offered to purchase the industrial unit of Messrs Himachal Concast (Pvt) Limited for Rs. 46 lacs, which offer was accepted. The receipt of earnest money of Rs. 4.60 lacs in respect of this unit from the plaintiff has also been admitted. The sale of the unit was “as is where is” basis. Since the plaintiff failed to pay the balance amount as per the terms and conditions and had resiled from the contract after his offer was accepted, the amount of earnest money of Rs. 4.60 lacs was forfeited by the defendant in accordance with the terms and conditions governing the sale. It was pleaded that the induction furnace was existing at the spot and that the offer was made by the plaintiff at the very initial stage after having carried out the inspection at the spot. The defendant after admitting the winding up proceedings qua Messrs Himachal Concast (Pvt) Limited, pleaded that it was not a party to such winding up proceedings and it came to know of the winding up order only on 2.1.1995. The unit of Messrs Himachal Concast (Pvt) Limited was taken over by the defendant under Section 29, State Financial Corporation Act, 1951, much before th6 passing of the winding up order in Company Petition No. 1 of 1991 and the entire assets of the said company became vested in the defendant on and with effect from the date of taking over. The defendant, therefore, had title to the same and was competent to deal with the same in any manner. The assets of Messrs Himachal Concast (Pvt) Limited, pursuant to the winding up order was never taken over by the Official Liquidator nor the same became vested in the Company Court. 8. The defendant, therefore, had title to the same and was competent to deal with the same in any manner. The assets of Messrs Himachal Concast (Pvt) Limited, pursuant to the winding up order was never taken over by the Official Liquidator nor the same became vested in the Company Court. 8. With regard to the unit of Messrs Pappi Oil Mills (Pvt) Limited, it was pleaded that three bidders, including the plaintiff was called for negotiations on 22.9.1995. The offer made by the plaintiff during such negotiations was to the extent of Rs. 17.71 lacs. One Shri Hemant Kumar son of Harbans Lai had made an offer of Rs. 18 lacs which was accepted being the highest offer. However, the said Shri Hemant Kumar had subsequently backed out from his offer. As a result, the offer of the plaintiff was accepted. Such acceptance was sent to the plaintiff on 24.3.1995 by telegram followed by letter dated 1.4.1995. The plaintiff vide letter dated 8.4.1995 was called upon to deposit a sum of Rs. 6.09 lacs by 23.4.1995 and to execute the requisite documents. The plaintiff failed to deposit the amount and to execute the requisite documents within the stipulated period. The amount of earnest money of Rs. 1,00,000/- deposited by the plaintiff was, therefore, forfeited by the defendant as per the agreed terms and conditions. Objections as to estoppel and suppression of material facts were also raised. 9. On the pleadings of the parties, following issues were framed on 27.9.1996: 1. Whether the plaintiff is estopped from filing the present suit on account of its acts, deeds, conduct and acquiescence? OPD. 2. Whether the plaintiff has not come with clean hands and has concealed the material facts, if so, its effect? OPD. 3. Whether at the time of negotiations between the parties no question arose of "as is where is basis” and thus whether it was a conditional offer subject to the approval by the plaintiff, as pleaded in para 5 of the plaint? OPP. 4. Whether the major components/parts of the induction furnace as prepared by the defendant in the inventory was still in existence as pleaded, if so, its effect? Onus on the parties. 5. Whether the defendant (sic) was competent to sell the unit of M/s Himachal Concast Pvt. Ltd? OPP. 6. OPP. 4. Whether the major components/parts of the induction furnace as prepared by the defendant in the inventory was still in existence as pleaded, if so, its effect? Onus on the parties. 5. Whether the defendant (sic) was competent to sell the unit of M/s Himachal Concast Pvt. Ltd? OPP. 6. Whether the aforesaid acceptance, if any, has been initiated because of active misrepresentation, concealment of defect in title on behalf defendant No. 1, if so, its effect? onus on the parties. 7. Whether the properties of M/s Himachal Concast have vested in the Official Liquidator prior to the negotiations with the plaintiff? OPP. 8. Whether the offer of highest bidder of Qua M/s. Pappi Oil Mills was accepted, if so, its effect? OPP. 9. Whether the officer of plaintiff Qua M/s. Pappi Oil Mills was only valid upto 31st of March, 1995, if so, its effect? OPP. 10. Whether the plaintiff is entitled to any amount or refund, if so, how much? OPP. 11. Whether the plaintiff is entitled to any interest? OPP. 12. Relief. 10. I have heard the learned Counsel for the parties and have also gone through the record of the case. My findings on the above issues are as follows: Issue No. 3. 11. Though the plaintiff in its plaint has averred that at the time of negotiations it was never agreed that the sale of the Industrial Unit of Messrs Himachal Concast (Pvt.) Limited would be on as is where is basis and that the offer made was subject to approval by the plaintiff, Shri Rakesh Kumar Jain, a director of the plaintiff while appearing as PW 8 has categorically admitted that as per the terms contained in the notice inviting offers the unit was to be sold on “as is where is” basis. He has also admitted that such notice inviting offers was read by him before submitting his offer, In view of the admission by the plaintiff itself that the sale of the unit was to be made on "as is where is”1 basis, the issue is decided against the plaintiff. Issues No. 1 and 2. 12. During the course of hearing, the present issue were not pressed before me. The same are as such decided against the defendant. Issue No. 4. 13. Issues No. 1 and 2. 12. During the course of hearing, the present issue were not pressed before me. The same are as such decided against the defendant. Issue No. 4. 13. The case of the plaintiff is that the Industrial unit of Messrs Himachal Concast (Pvt.) Limited, as notified and advertised for sale included one induction furnace. In fact no such furnace was existing at the spot and that only few loose wires and components of the furnace were found at the spot by PW 8, the director of the plaintiff, during inspection on 8.6.1995. The defendant is thus guilty of having suppressed material facts. 14. During the pendency of the suit on the application of the plaintiff, being OMP No. 236 of 1995, this court on 5.7.1995 under Order 26, Rule 9, Code of Civil Procedure, had appointed Shri Sushil Kukreja, Advocate, and Shri Chetan Sharma, Mechanical Engineer, Himachal Pradesh State Industrial Development Corporation, as Local Commissioners to visit the factory site of Messrs Himachal Concast (Pvt.) Limited on 23.7.1995 at 11 a.m. and after inspecting the aforesaid premises to report whether any induction furnace exists there and, if so, in what state it is, which aspect may be dealt with in detail. 15. The Local Commissioners after inspecting the site submitted their report Ext. PW 2/A dated 28.7.1995. It was reported that though the induction furnace was found existing at the spot, most of the equipments thereof were in a rusted/poorly maintained condition and there was dust, organic matter, cobwebs and insect/rodent/ birds droppings lying on and inside such equipments. 16. No objections to such report of the local commissioners were preferred by the plaintiff rather reliance is being placed by the plaintiff thereon. Such report has also been proved in evidence by the plaintiff by examining one of the two Local Commissioners as PW 2. 17. Though objections to the report, being OMP No. 383/95, were filed by the defendant, in the absence of evidence by the defendant to show that the report is wrong, such objections were not pressed during the course of hearing, OMP No. 383/95, therefore, is dismissed. 18. Notice inviting offers for the industrial unit of Himachal Concast (Pvt.) Limited being Ex, PW 8/D, was issued by the defendant on 11.11,1994. In response to such notice the plaintiff submitted its offer on 13.12.1994 (copy Ex, D.2) quoting a price of Rs. 18. Notice inviting offers for the industrial unit of Himachal Concast (Pvt.) Limited being Ex, PW 8/D, was issued by the defendant on 11.11,1994. In response to such notice the plaintiff submitted its offer on 13.12.1994 (copy Ex, D.2) quoting a price of Rs. 16,51 lacs for such unit. Admittedly, thereafter negotiations took place between the parties and as a result of such negotiations the original offer made by the plaintiff was increased to Rs. 46 lacs on 23.5.1995 vide minutes Ex. PW 8/H. The acceptance of such oiler of Rs. 46 lacs was accepted by the defendant vide letter 25,5.1995 (copy Ex. DM) and the plaintiff was called upon to deposit a sum of Rs. 3.10 lacs being the balance amount of earnest money, on or before 27.5.1995. Such amount of Rs, 3.10 lacs was paid by the plaintiff vide two demand drafts dated 26.5.1995 as is evident from letter dated 265.1995 (Ex. DJ) of the plaintiff. 19. Shri Rakesh Kumar Jain the Director of the plaintiff, while appearing as PW 8 in his examination in chief has admitted: "Before making the first offer, I had inspected the unit of Messrs Himachal Concast in December, 1994." 20. Again during the course of cross-examination, PW 8 has admitted that he had inspected the unit after having read notice inviting offers. He has further gone to state in the following terms; “No inventory was prepared by me in respect of the plant and machinery available at the spot at the time the unit was inspected by me before making the offer of 16.51 lacs. At that time I could not see the condition of the furnace since it was......The condition of the furnace was not seen by me or my representative before the final offer of Rs. 46 lacs was given/ v ; 21. The stand taken by the plaintiff in his plaint and in evidence with regard to existence/non-existence of the induction furnace is also self contradictory/The plaintiff in paragraphs 6 and 7 of its plaint has averred; V “6. 46 lacs was given/ v ; 21. The stand taken by the plaintiff in his plaint and in evidence with regard to existence/non-existence of the induction furnace is also self contradictory/The plaintiff in paragraphs 6 and 7 of its plaint has averred; V “6. That it may be stated that even if it was to be stated that the term as is where is basis was included, it only meant that the assets in existence whatsoever was there the plaintiff had offered to take over those assets including Induction Furnace of the capacity of 3240 M.T. The aforesaid induction Furnace was under lock and key and in a closed room and the key was with M/s. Himachal Concast Private Limited, Nalagarh and thus ^as not shown. However, the plaintiff was shown the invfn|&ry in which the defendant had taken over the aforesaid assets including the aforesaid Induction Furnace which was reflected not in their inventory but also in the advertisement The plaintiff maintains that even if the Condition of ‘as is where is basis was to be applied, it was an implied term that there did exist an Induction Furnace and that Induction Furnace may be inoperative due to minor fault and that does not mean that the induction furnace should not exist, at all. The words as it requires that the goods be of the kind and quality represented, even though they may be in damaged condition. It does not mean that such goods which are available should not exist or exist in manner that it could not state to be of the kind and quality or it was only in damaged condition. 7. That after the negotiations had been accepted the plaintiff wanted to inspect the premises of M/s. Himachal Concast Private Limited and the plaintiff required the defendant to show the plaintiff the plant and machinery. Accordingly one Shri B.M. Mehta, an official of defendant No. 1 posted at Parwanoo came to the spot on 8.6.1995. The aforesaid room where the induction furnace was stated to be located was found to be locked and the key of the room was stated to be with the proprietor of M/s Himachal Concast Private Limited. Thereafter the aforesaid Shri B.M. Mehta broke open the lock and opened the door. The aforesaid room where the induction furnace was stated to be located was found to be locked and the key of the room was stated to be with the proprietor of M/s Himachal Concast Private Limited. Thereafter the aforesaid Shri B.M. Mehta broke open the lock and opened the door. When the door was opened it was found that there was not induction furnace in the room but only a few loose wires and few components thereof were found. Such a material or machinery available on the spot could not be called as an Induction Furnace at all, in any form or manner. The aforesaid induction furnace is available in the market for not less than Rs. 25 lacs and thus there was no saleable commodity." However, while appearing as PW 8 Shri Rakesh Kumar Jain has deposed: "During the course of inspection alongwith Deputy General Manager of the defendant, the machinery articles and goods as per inventory Ex. PW I/A were not found in the factory premises. They were reported to have been stolen. A theft was committed in the factory premises during the period 3.1.1995 to 23.5.1995 regarding which a report was duly lodged at police station, Nalagarh and we were not informed about such theft by the defendants." 22. PW 8 has admitted that no copy of the F.I.R. pertaining to the theft in the factory premises was obtained by him, nor he had read such F.I.R. lodged with the police with regard to such theft. DW 1 Shri D.B. Arya, Deputy General Manager of the defendant has categorically deposed that no theft whatsoever was committed in the factory premises of Messrs Himachal Concast (Pvt.) Limited. This witness was not cross-examined by the plaintiff on this aspect of the case. Therefore, the deposition of DW 1 that no theft took place will be deemed to have been accepted by the plaintiff. 23. As stated above, the Local Commissioners appointed by the Court had found that the major components of the induction furnace were in existence at the spot on 23.7,1995. This belies the stand taken by the plaintiff that no such components were found existing in the factory premises on 8.6.1995, the date on which PW 8 is alleged to have gone to such premises for inspection. The issue is decided against the plaintiff and in favour of the defendant. Issues No. 5, 6 and 7. 24. This belies the stand taken by the plaintiff that no such components were found existing in the factory premises on 8.6.1995, the date on which PW 8 is alleged to have gone to such premises for inspection. The issue is decided against the plaintiff and in favour of the defendant. Issues No. 5, 6 and 7. 24. All these issues being co-related and interconnected are being taken up together. 25. The admitted/proved relevant facts for consideration of these issues may be enumerated as under: (a) On the failure of Messrs Himachal Concast (Pvt.) Limited to liquidate its loan, the defendant acting under Section 29, State Financial Corporation Act, 1951 took over the assets of the said company on 3.3.1992; (b) The unit so taken over by the defendant was sought to be sold by the defendant under Section 29, State Financial Corporation Act, 1951; (c) Messrs Himachal Concast (Pvt.) Limited preferred a writ petition before this court assailing the taking over and sale of its unit by the defendant. Such writ petition was dismissed by this court 13.4.1993; (d) The special leave petition preferred by Messrs Himachal Concast (Pvt.) Limited before the Hon’ble Supreme Court was dismissed on 21.10.1994 vide order copy of which is Ex. PW 6/A; (e) The industrial unit of Messrs Himachal Concast (Pvt) Limited was advertised for sale by the "defendant vide notice dated 11.11.1994 (Copy Ex. PW 8/D); (f) In response to the above notice, the plaintiff offered a bid to the extent of Rs. 16.51 lacs on 13.12.1994 vide Ex. DL; (g) The initial offer made by the plaintiff for Rs. 16.51 lacs after negotiations was increased to 46 lacs on 23.5.1995 as per minutes Ex. PW 8/H; (h) Ten percent of the bid amount, that is, Rs. 4.60 lacs was deposited by the plaintiff; (i) The offer of the plaintiff to the extent of Rs. 46 lacs was accepted by the defendant and such acceptance was duly communicated to the plaintiffs; (j) A Company Petition, being No. 1 of 1991 was filed by one Messrs Sandur Maganese and Iron Ores Limited before this court for the compulsory winding up of the company Messrs Himachal Concast (Pvt) Limited and for appointment of official liquidator to take charge of the affairs and assets of the said company; (k) The above said Company Petition was allowed by this court on 22.9.1994. The company Messrs Himachal Concast (Pvt) Limited was ordered to be wound up official liquidator was directed to take charge of the assets and affairs of the said company; (1) In pursuance to the winding up order dated 22.9.1994, the official liquidator did not/could not take the assets of Messrs Himachal Concast (Pvt.) Limited into his control or custody. Only a public notice dated 7.12.1994, Ex. PW 4/A, was affixed at the factory premises of the said company that consequent upon the winding up of the company, all concerned who are having any dealing with the company should contact the official liquidator; (m) The defendant was not a party in the proceedings for winding up vide Company Petition No. 1 of 1991; (n) After the passing of the winding up order dated 22,9.1994, and on coming to know about the same, the defendant approached this court for being kept out of winding up of Messrs Himachal Concast (Pvt) Limited. Such application, with the consent of the official liquidator, was allowed on 30.10.1996 (vide Ex. DW I/A and the defendant was kept out of the winding up of the said company; (o) While dismissing the Special Leave Petition of Messrs Himachal Concast (Pvt) Limited on 21.10.1994, the Supreme Court had allowed the defendant to sell the assets of the said company. 26. In the light of the above admitted/proved facts, the contentions of the parties are to be examined. 27. It has been contended on behalf of the plaintiff that the defendant did not have title to the assets of Messrs Himachal Concast (Pvt) Limited and as such was not competent to sell the same in view of the winding up order dated 22.9.1994 and the directions to the official liquidator to take charge of the assets and affairs of the said company, since under Section 456 (2), Companies Act, 1956, all the properties and effects of the company are deemed to be in the custody of the court as from the date of the order for the winding up of the company 28. The defendant, on the other hand, has contended that the assets of Messrs Himachal Concast (Pvt) Limited were taken over by the defendant under Section 29, State Financial Corporation Act, 1951, on 3.3.1992, much before the passing of the winding up order dated 22.9.1994 and that consequent upon such taking over, the defendant is deemed to have become the owner of the assets of the company Messrs Himachal Concast (Pvt.) Limited on and with effect from the date of such taking over. It has further been contended that no part of the assets of the said company was taken over by the official liquidator in pursuance of the winding up order in terms of Section 456 (1), Companies Act, 1956 and till such assets are taken over by the official liquidator, the same would not vest in the company court under sub-section (2) of Section 456 of the said Act. Section 456, Companies Act, 1956, provides:— "(1) Where a winding up order has been made or where a provisional liquidator has been appointed, the liquidator or the provisional liquidator, as the case may be, shall take into his custody or under his control, all the property, effects and actionable claims to which the company is or appears to be entitled. Section 456, Companies Act, 1956, provides:— "(1) Where a winding up order has been made or where a provisional liquidator has been appointed, the liquidator or the provisional liquidator, as the case may be, shall take into his custody or under his control, all the property, effects and actionable claims to which the company is or appears to be entitled. (1-A) For the purpose of enabling the liquidator or the provisional liquidator, as the case may be, to take into his custody or under his control, any property, effects or actionable claims to which the company is or appears to be entitled, the liquidator or the provisional liquidator, as the case may be, may by writing request the Chief Presidency Magistrate or the District Magistrate within whose jurisdiction such property effects or actionable claims or any books of account or other documents of the company may be found, to take possession thereof, and the Chief Presidency Magistrate or the District Magistrate may thereupon after such notice as he may think fit to give to any party, take possession of such property, effects, actionable claims, books of account or other documents and deliver possession thereof to the liquidator or the provisional liquidator, (1-B) For the purpose of securing compliance with the provisions of sub-section (1-A), the Chief Presidency Magistrate or the District Magistrate may take or cause to be taken such steps and use or cause to be used such force as may in his opinion be necessary, (2) All the property and effects of the company shall be deemed to be in the custody of the court as from the date of the order for the winding up of the company.” 29. As pointed out above, the assets of Messrs Himachal Concast (Pvt) Limited were never taken over by the official liquidator under the above provisions in pursuance of the winding up order dated 22.9.1994. PW 4 Shri Gulab Chand, an Assistant in the office of offcial liquidator, has categorically admitted as under:— "Save and except the affixation of the notice Ex. PW 4/A, the unit was never physically taken over by the official liquidator nor any inventory was prepared. It is correct that the possession of the unit was the HPFC." 30. PW 4 Shri Gulab Chand, an Assistant in the office of offcial liquidator, has categorically admitted as under:— "Save and except the affixation of the notice Ex. PW 4/A, the unit was never physically taken over by the official liquidator nor any inventory was prepared. It is correct that the possession of the unit was the HPFC." 30. The industrial unit of Messrs Himachal Concast (Pvt.) Limited, as pointed out above, admittedly, was taken over by the defendant on 3.3.1992, under Section 29(1) of the State Financial Corporations Act, 1951. The effect of such taking over of an industrial unit by a Financial Corporation came up for consideration before a Division Bench of this court in Himachal Pradesh Financial Corporation v. Tek Chand Deogar and others (Civil Suit No. 93 of 1985, decided on 21.11.1996) and it was held: "The moment the unit was taken over by the plaintiff-Corporation with the right to take over the management or possession or both with the right to transfer by way of lease or sale and realise the loan amount from the property pledged, mortgaged or hypothecated, the corporation under sub-section (5) of Section 29 of the Act would be deemed to be the owner of such concern." 31. In view of the above ratio, the defendant would be deemed to have become the owner of the industrial unit of Messrs Himachal Concast (Pvt) Limited on and with effect from 3.3.1992, the date such industrial unit was taken over by the defendant under Section 29(1), State Financial Corporation Act, 1951. The subsequent order of winding up passed on 22.9.1994 would have no effect on the rights of the defendant. The properties of Messrs Himachal Concast would not be deemed to have vested in the official liquidator as alleged by the plaintiff. Therefore, defendant had the title and was competent to sell such industrial unit. Besides, the Supreme Court also vide its order Ex. PW 6/A had accorded permission to the defendant to sell such industrial unit. All the three issues are accordingly decided against the plaintiff and in favour of the defendant. Issue No. 8, 32. It is the admitted case of the defendant that pursuant to negotiations qua the industrial unit of Messrs Pappi Oil Mills (Pvt) Limited, the offer of the plaintiff was to the tune of Rs. 17.71 lacs. All the three issues are accordingly decided against the plaintiff and in favour of the defendant. Issue No. 8, 32. It is the admitted case of the defendant that pursuant to negotiations qua the industrial unit of Messrs Pappi Oil Mills (Pvt) Limited, the offer of the plaintiff was to the tune of Rs. 17.71 lacs. The highest offer of Rs, 18 lacs was of one Hemant Kumar. DW 1 Shri D.B. Arya, Deputy General Manager of the defendant has admitted that the highest bid of the said Hemant Kumar was accepted. Though, there is nothing on the record to show as to when the offer of the abovesaid Hemant Kumar was accepted, the effect of such acceptance was that the offer of the plaintiff stood impliedly rejected. Therefore, once such offer stood impliedly rejected, the same could not remain in force and operative and as such the defendant could not have later on accepted the same, without the consent of the plaintiff, so as to make it is a concluded and enforceable contract. 33. Admittedly, before conveying the acceptance of the offer, which stood impliedly rejected, no consent of the plaintiff was obtained. Therefore, the acceptance of the offer by the defendant is not binding on the plaintiff. 34. Ex. PW 8/N is the letter dated 18.5.1995 written by the plaintiff to the defendant. Vide this letter, the plaintiff while conveying that its offer to purchase the industrial unit of Messrs Pappi Oil Mills (Pvt) Limited for Rs. 17.71 lacs was valid till 31.3.1995 has further stated as under:— "In case you have decided the sale of M/s. Pappy Oils P. Ltd. to any other party, then please refund our earnest money. In case it is still pending, please fix up a date for negotiations and confirm." 35. The above letter shows that the plaintiff had withdrawn its offer and demanded the refund of earnest money in the event of the industrial unit having been sold to any other party. Otherwise, a request was made to fix a date for negotiations. 36. Admittedly, the plaintiff was never called for any negotiations at any time after the letter Ex. PW 8/N and before its offer was accepted. 37. The demand for the refund of earnest money by the plaintiff vide Ex. PW 8/N also would amount to withdrawal of the offer. Otherwise, a request was made to fix a date for negotiations. 36. Admittedly, the plaintiff was never called for any negotiations at any time after the letter Ex. PW 8/N and before its offer was accepted. 37. The demand for the refund of earnest money by the plaintiff vide Ex. PW 8/N also would amount to withdrawal of the offer. Therefore, the acceptance by the defendant after the withdrawal of the offer would be ineffective and such acceptance would not tantamount to a concluded contract between the parties and the defendant is not entitled to forfeit the amount of earnest money deposited by the plaintiff for its failure to deposit the balance amount of sale consideration or on account of breach of any terms and conditions. The issue is decided in favour of the plaintiff. Issue No. 9. 38. It is admitted case of the parties that the offer made by the plaintiff for the purchase of the industrial unit of Messrs Pappi Oils Mills (Pvt) Limited was valid upto 31.3.1995. Such offer, as held under issue No. 8 above, did not subsist on the date it was accepted since the same stood impliedly rejected consequent upon the acceptance of the highest offer of Shri Hemant Kumar and/or on the withdrawal of the same vide Ex. PW 8/N. The effect is that the same could not have been accepted thereafter. The issue is decided in favour of the plaintiff. Issue No. 10. 39. In v,iew of my findings under issues No. 8 and 9 above, the plaintiff is entitled to the refund of earnest amount of Rs. one lac deposited by it in respect of the industrial unit of Messrs Pappi Oils Mills (Pvt) Limited. 40. Insofar as the earnest money of Rs. 4.60 lacs deposited by the plaintiff in respect of the industrial unit of Messrs Himachal Concast (Pvt) Limited is concerned, the plaintiff is not entitled to the refund to the same. 41. PW 8 Shri Rakesh Kumar Jain, the director of the plaintiff, has admitted, during the course of cross-examination that as per the terms of the agreement the earnest money was liable to be forfeited in the event of the plaintiff backing cut after its offer was accepted. 41. PW 8 Shri Rakesh Kumar Jain, the director of the plaintiff, has admitted, during the course of cross-examination that as per the terms of the agreement the earnest money was liable to be forfeited in the event of the plaintiff backing cut after its offer was accepted. He has also admitted that after the acceptance of its offer, the plaintiff was given due opportunity to deposit the sale consideration and that such amount of sale consideration was never deposited by the plaintiff. 42. In view of my findings on issues No. 5 to 7, above, coupled with failure of the plaintiff to carry out its part of the contract, the amount of earnest money deposited in respect of the industrial unit of Himachal Concast (Pvt) Limited stood rightly forfeited by the defendant. The issue is decided partly in favour and partly against the plaintiff. Issue No. 11. 43. The plaintiff has claimed interest at the rate of 19% per annum with quarterly rests in the plaint. There is nothing on the record to show as to on what basis the interest has been claimed by the plaintiff at the rate of 19% per annum. While appearing as PW 8, the interest has been claimed by the plaintiff at the rate of 24% per annum on the ground of its being the prevalent bank rate. No evidence is forthcoming as to the prevalent bank rate of interest. 44. The transaction between the parties with regard to sale of movable and immovable property cannot be termed as a commercial transaction. The terms and conditions of the notice inviting offers did not stipulate the refund of amount of earnest money with interest. The amount of earnest money was wrongly withheld by the defendant. The plaintiff therefore, would be entitled to interest by way of compensation for the wrongful withholding of the amount. The plaintiff is, therefore, entitled to interest at a reasonable rate. On the facts and in the circumstances of the case interest at the rate of 12% per annum appears to be just and reasonable. Calculated at the said rate, the plaintiff is entitled to interest of Rs. 1,315/- for the period 18.5.1995 (the date the refund of the amount of Rs. 1,00,000/- was demanded by the plaintiff) to 27,6.1995 (the date of the suit). The issue is decided in favour of the plaintiff. Relief. 45. Calculated at the said rate, the plaintiff is entitled to interest of Rs. 1,315/- for the period 18.5.1995 (the date the refund of the amount of Rs. 1,00,000/- was demanded by the plaintiff) to 27,6.1995 (the date of the suit). The issue is decided in favour of the plaintiff. Relief. 45. As a result of the above findings, the suit of the plaintiff partly succeeds and a decree for a sum of Rs. 1,01,315/- (Rs. 1,00,000/- being the principal amount of earnest money and Rs. 1,315/- being the amount of interest) is passed in favour of the plaintiff and against the defendant with proportionate costs. 46. Since the transaction between the parties is not a commercial one within the meaning of Section 34, Code of Civil Procedure, the plaintiff would be further entitled to pendente lite and future interest at the rate of six per cent per annum on the principal amount of Rs. 1,00,000/- from the date of suit, that is, 27.6.1995 till the date of payment/realisation of the amount. Appeal allowed.