I. T. C. LTD. v. SIKKIM INDUSTRIAL DEV. AND INVESTMENT CORPORATION LTD.
2000-05-29
ANUP DEB, RIPUSUDAN DAYAL
body2000
DigiLaw.ai
RIPUSUDAN DAYAL, C. J. ( 1 ) THIS appeal is directed against the order dated 30th March, 2000 in Civil Execution Case No. 3/99/sw of 1995 by the District Judge, Special Division at Gangtok, whereby the Sale Certificates issued by that Court on 18th March, 2000 in favour of the auction purchasers M/s. Tripti steel Traders and also Sri Palden Thendup shenga were recalled and cancelled. The operative part of that order runs as under :-"in order to meet the requirement of the situations as revealed in the foregoing paras it is ordered that sale proceeds received by ITC be returned to the respective purchaser. The sale certificates issued by this Court on 18/3/2000 to m/s. Tripti Steel Traders, Sevoke Road, siliguri in respect of Plants and machineries of Sikkim Vanaspati Ltd. at manpur, South Sikkim and to Shri palden Thendup Shenga for land and building of Sikkim Vanaspati Ltd. at manpur, South Sikkim are hereby recalled and cancelled. It is further ordered that M/s. Tripti steels, Sevoke Road, Siliguri shall surrender the Sale Certificate and shall not act on it any more and if any plants and machineries have been removed the same shall be returned. Shri Palden thendup Senga the purchaser of land and building of the Sikkim Vanaspati ltd. shall surrender the Sale Certificate issued by this Court in respect of the said land and shall not act in terms of the said sale certificate. The SIDICO (Sikkim Industrial Development and Investment Corporation Ltd.)shall pay the decretal amount to ITC as being 51% share holder of the Sikkim vanaspati Ltd. , the Judgment-debtor, the liability of SIDICO cannot be avoided. The property of Sikkim vanaspati Ltd. at Manpur shall not be interfered by any of the contending parties un till further orders.
The SIDICO (Sikkim Industrial Development and Investment Corporation Ltd.)shall pay the decretal amount to ITC as being 51% share holder of the Sikkim vanaspati Ltd. , the Judgment-debtor, the liability of SIDICO cannot be avoided. The property of Sikkim vanaspati Ltd. at Manpur shall not be interfered by any of the contending parties un till further orders. " ( 2 ) ONE point urged on behalf of the auction purchasers is that there was no proclamation as contemplated under Order 21 Rule 66 c. P. C. before the properties wererput to auction and this caused serious prejudice to the auction purchasers, since the properties purchased by them had already been mortgaged in favour of SIDICO, IDBI and State Bank of india, and, as such, the sale is liable to be set aside and for this reason the auction purchasers have received back the whole sale consideration from I. T. C. , the decree-holder, which was paid by them in pursuance of the auction purchase. Shri A. K. Upadhyaya, learned Counsel for the appellant l. T. C. Limited, submits that warrant of sale addressed to the bailiff amounts to sufficient compliance of order 21 Rule 66 C. P. C. because the warrant of sale was put on the notice board of the court concerned and also of the District collector, Namchi and also on the conspicuous part of the properties sold, and on the basis of this warrant of sale, as many as 15 bidders came to the spot to participate in the auction sale. ( 3 ) SHRI S. P. Wangdi, learned Senior Advocate, submits that warrant of sale was not affixed on the Board of the District Collector, south at Namchi. Further-more, Sri Wangdi submits that warrant of sale is something totally different from the proclamation of sale contemplated in Order 21 Rule 66 C. RC. Order 21 Rule 66 C. P. C. in sub-rule (1) provides that where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court. Sub-rule (2) provides that such proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor and shall state the time and place of sale, and specify amongst others as fairly and accurately as possible- (c) any incumbrance to which the property is liable.
Sub-rule (2) provides that such proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor and shall state the time and place of sale, and specify amongst others as fairly and accurately as possible- (c) any incumbrance to which the property is liable. ( 4 ) THE requirement to give notice to the decree-holder and the judgment-debtor is intended to give notice to the intending bidders of all the material facts which they ought to know before making any bids. There is no dispute that even in the warrant of sale there is nothing to intimate to the intending bidders that the properties which were purchased by the auction purchasers were subject to mortgage. Therefore, we are of the firm opinion that there was absolutely no compliance of order 21 Rule 66 C. P. C. and this has caused serious prejudice to the interest of the auction purchasers. In this view of the matter, it is not necessary for us to enter into the various points which have been considered by the learned trial Court in support of the order whereby the sale certificates dated 18th March, 2000 issued in favour of the auction purchasers were recalled and cancelled. ( 5 ) MR. Ashoke Bannerjee submits with respect to the direction of the learned trial court about the return of the plants and machineries that some of the plants and machineries have been removed after dismantling the same by the auction purchaser, M/s. Tripti Steel Traders before the sale certificates were cancelled by the learned trial Court. He submits that since some plants and machineries have already been sold by the auction purchasers, it would not be possible for them to comply with this direction. The question as to whether the plants and machineries have been removed and if so what order needs be passed in the circumstances of the case is left open to be considered by the learned trial Court on a proper application being made by the concerned party.
The question as to whether the plants and machineries have been removed and if so what order needs be passed in the circumstances of the case is left open to be considered by the learned trial Court on a proper application being made by the concerned party. ( 6 ) WITH reference to that part of the impugned order which directs the S1d1co to pay the decretal amount to ITC Ltd. , the decree-holder, SIDICO being 51% share-holder of the judgment-debtor Sikkim Vanaspati Ltd. , on the ground that the liability of S1dico cannot be avoided, Sri S. P. Wangdi submits that a share holder cannot be held liable to satisfy the decree against the judgment-debtor which is a company with limited liability. We see merit in this submission. Therefore, we set-aside this part of the order. With these modifications, the Appeal is dismissed. Appeal dismissed accordingly. --- *** --- .