JUDGMENT 1. The challenge in the main petition i.e. Special Civil Application No.20962 of 2006 is to the order dated 31.12.2005 passed by the Arbitral Tribunal in Arbitration Case No.20 of 2005, rejecting the application of the petitioner No.1, raising preliminary issues about the jurisdiction of the Arbitrator under Section 84 of the Multi- State Co-operative Societies Act, 2002 (‘the Act of 2002’ for short). Three Financial Institutes i.e. the Gujarat Industrial Investment Corporation Limited (Petitioner No.1), Gujarat State Financial Corporation (Petitioner No.2) and the Stressed Assets Stabilization Fund – a Trust created by the Central Government for the purpose of acquiring non-performing assets from the Industrial Development Bank of India Limited (Petitioner No.3) have jointly filed this petition. 2.1 M/s.Jaiswal Pharma Chem Limited – Respondent No.2 Company herein, had borrowed money from the petitioners Financial Institutes. The said Company had mortgaged land and building to the petitioners Financial Institutes and the plant and machinery was hypothecated to them. The said Company failed to repay the loan and therefore all the petitioners Financial Institutes agreed that the loan amount shall be recovered from the sale of the land, building, plant and machinery of the Company in exercise of powers conferred under Section 29 of the State Financial Corporations Act, 1951 (‘the Act of 1951’ for short). Pursuant to the said agreement, petitioner No.1 advertised the sale of the assets of the Company vide advertisement dated 07.04.2003. 2.2 The above action of the present petitioners of taking action for disposing of the properties of the Company, was challenged by the Gujarat Industrial Co-operative Bank Limited (present Respondent No.1) by preferring a petition before this Court being Special Civil Application No.5550 of 2003. The said petition came to be dismissed in limine inter alia observing that, there is no material on record to even prima facie show that the Bank (present Respondent No.1) has a charge over any of the machineries of the Company at Ankleshwar. It was further observed that till that date, the Bank had not made any effort to recover its dues from the Company inasmuch as no action whatever was taken by the Bank against the Company. This Court had further observed in the said order that the said petition was frivolous and filed with an oblique motive. There is reference to this order in the impugned order of the Arbitrator dated 31.12.2005. This Court had further observed in the said order that the said petition was frivolous and filed with an oblique motive. There is reference to this order in the impugned order of the Arbitrator dated 31.12.2005. 2.3 After the above order was passed by this Court on 02.05.2003, within few days-on 21.05.2003, Respondent No.1 moved the Board of Nominee-Arbitral Tribunal, as recorded in the very opening part of the impugned order. The said proceeding, initially was registered as Arbitration Case No.841 of 2003, which subsequently came to be registered as Arbitration Case No.20 of 2005. The Arbitrator initially granted ad interim injunction restraining the defendants (present petitioners) from dealing with the properties in question. The said order was challenged by the present petitioner No.1 before this Court by preferring a petition being Special Civil Application No.8063 of 2003. The said petition came to be dismissed on 26.09.2003, inter alia observing therein that, the matter was at ex parte ad-interim stage and the Arbitrator was yet to decide the question of jurisdiction. In Appeal, being Letters Patent Appeal No.1071 of 2003, the said order of the learned single judge came to be confirmed on 18.11.2003, inter alia observing therein that, the application challenging the jurisdiction of the Arbitrator to proceed against the appellant (the present petitioner No.1) under Section 84 of the Act of 2002 was pending and what was challenged at the relevant time was only an ad interim injunction. It was further observed that the Arbitrator was yet to decide whether he has jurisdiction to hear the matter or not. Reference to this order is also made in the impugned order dated 31.12.2005. 2.4 Thereafter, by the impugned order dated 31.12.2005, the Arbitrator rejected the above referred application of the petitioner No.1, raising preliminary issues about the jurisdiction of the Arbitrator under Section 84 of the Multi- State Co-operative Societies Act, 2002. It is the legality and validity of this order of the Arbitrator dated 31.12.2005, which is the subject matter of this petition. Thus, the only question which falls for consideration before this Court is as to whether in the present case, the Arbitral Tribunal has got jurisdiction to adjudicate the dispute between the parties under Section 84 of the Act of 2002. Thus, the only question which falls for consideration before this Court is as to whether in the present case, the Arbitral Tribunal has got jurisdiction to adjudicate the dispute between the parties under Section 84 of the Act of 2002. 2.5 At this stage itself it is recorded that, during pendency of the petition, on the proposals having been jointly submitted to this Court by the original petitioners and contesting Respondent No.1, regarding dealing with the property of the defaulter Company – Respondent No.2, some proceedings have also taken place, which has led to filing of various Civil Applications, some of which are still pending, which are referred to and discussed hereinafter, but, it is recorded that, the point at issue in the main petition is as referred above. 3.1 Heard Mr. S.N. Shelat, learned Senior Advocate with Mr. R.D. Dave for the petitioners and Mr. Bharat B. Naik, learned Senior Advocate with Mr. Abhilash Clerk for the Gujarat Industrial Co-operative Bank Limited -Respondent No.1, in Special Civil Application No.20962 of 2006. 3.2 Learned advocate for the petitioners, after narrating the factual aspects, some of which are narrated in paragraphs 2.1 to 2.4 above, submitted that the impugned order is illegal and arbitrary. Two fold contentions are raised by learned advocate for the petitioners. Firstly it is contended that, the issue of dealing with the properties of the defaulter Company in the present case would be governed by the provisions of the State Financial Corporations Act, 1951, which is a Special Act, and therefore the provisions of the Multi-State Co-operative Societies Act, 2002, which is not a Special Act, could not have been invoked at all. Learned advocate for the petitioners alternatively submitted that, even if it is assumed that the Act of 1951 is not given preference over the Act of 2002, then also the Arbitrator had no jurisdiction to issue any such orders or proceed with the matter against the petitioners under the provisions of Section 84 of the said Act of 2002. Learned advocate for the petitioners alternatively submitted that, even if it is assumed that the Act of 1951 is not given preference over the Act of 2002, then also the Arbitrator had no jurisdiction to issue any such orders or proceed with the matter against the petitioners under the provisions of Section 84 of the said Act of 2002. It is pointed out that, in Section 84(1) of the said Act of 2002, it has been provided that, notwithstanding anything contained in any other law for the time being in force, if any dispute (other than a dispute regarding disciplinary action taken by a Multi State Co-operative Society against its paid employee or an industrial dispute as defined in Clause (k) of Section 2 of the Industrial Disputes Act, 1947) touching the constitution, management or business of a Multi-State Co-operative Society arises, among members, past members and persons claiming through members, past members and deceased members, and other categories which are enumerated in clauses (a) to (d) of Section 84(1), such dispute shall be referred to arbitration. It is contended that, since the petitioners claim a statutory charge over the property, there is no question of the petitioners claiming through any member of the society. It is submitted that the petitioners thus do not fall in any of the categories enumerated in the said sub-clauses, which may confer jurisdiction on the Arbitrator. It is therefore submitted that the petition be allowed and impugned order be set aside. 3.3 Learned advocate for the petitioners, in support of his arguments, has relied on the following decisions : (i) AIR 1972 Supreme Court 2161I.R.Hingorani versus Pravinchandra Kantilal Shah (ii) 2003 (4) GLR 3547Citizens Co Operative Bank Limited Versus Harshadkumar M. Mashru (iii) AIR 1991 Supreme Court 626 Marine Times Publications Pvt. Ltd. versus Shriram Transport and Finance Co. Ltd. (iv) AIR 1969 Supreme Court 1320 Decan Merchants Cooperative Bank Ltd, v. M/s. Dalichand Jugraj Jain (v) AIR 1967 Supreme Court 389Bhita Cooperative Development and Cane Marketing Ltd. v. Bank of Bihar. (vi) JT 1993 (1) S.C. 310 Maharashtra Tubes Ltd. v. State Industrial & Investment Corporation of Maharashtra Ltd. 4. On the other hand, learned senior advocate Mr. B.B. Naik for Respondent No.1 has firstly contented that what is rejected by the Arbitrator is the application of the petitioners to frame and adjudicate the preliminary issues first. (vi) JT 1993 (1) S.C. 310 Maharashtra Tubes Ltd. v. State Industrial & Investment Corporation of Maharashtra Ltd. 4. On the other hand, learned senior advocate Mr. B.B. Naik for Respondent No.1 has firstly contented that what is rejected by the Arbitrator is the application of the petitioners to frame and adjudicate the preliminary issues first. Since in the operative part of the impugned order it is recorded that the request of the petitioners is rejected, it would mean that the Arbitrator is required to be directed to frame those issues first and answer it. It is further contended that, on merits also the petitioners have no case, since according to him, the Act of 2002 will prevail over the Act of 1951. Specific reference is made to the language of the opening part of Section 84 of the 2002 Act, to contend that the Act of 2002 will prevail over the Act of 1951. Leaned advocate has also referred to the decision of Hon'ble Supreme Court of India in the case of Deccan Merchants Co-operative Bank Limited versus M/s. Dalichand Jugraj Jain and others reported in AIR 1969 SC 1320 . It is submitted that the petition be dismissed. 5.1 Having heard both the learned advocates and having gone through the record, particularly the impugned order this Court finds that, the Arbitrator has, by the impugned order dated 31.12.2005, rejected the request of the petitioners to hold that he does not have the jurisdiction. The reasoning recorded by the Arbitrator, in last two paragraphs before the operative part suggests that the Arbitrator was overwhelmed by the fact that, ad-interim injunction granted by him was challenged by the petitioners before this Court, which was not interfered with. If the tenor of the orders passed by this Court in Special Civil Application No.8063 of 2003 and Letters Patent Appeal No.1071 of 2003 are taken into consideration, reference to which is made in the impugned order, I find that the issue, whether the Arbitrator has jurisdiction or not, was not gone into by this Court and the same was large open before him and he had to decide it. Further, what was challenged before this Court in the earlier round of litigation was the interim injunction granted by the Arbitrator and under those circumstances, this Court had refused to interfere. Further, what was challenged before this Court in the earlier round of litigation was the interim injunction granted by the Arbitrator and under those circumstances, this Court had refused to interfere. This by itself, can not be termed as conferring the jurisdiction upon the Arbitrator, if otherwise he does not have it. In substance, except referring to the observations of the Division Bench, and of learned Single Judge in the matter of still an earlier round of litigation being Special Civil Application No.5550 of 2003, filed by Respondent No.1, the Arbitrator has not elaborately recorded reasons as to how he has the jurisdiction. Thus, the impugned order suffers from the vice of, though being a long order, not a properly reasoned order. Though not being a well reasoned order, by the impugned order, the Arbitrator has, in terms held that he does have the jurisdiction. Under these circumstances, it would not be proper for this Court to remand the matter to the Arbitrator, only for the purpose of suppling further reasons in that regard, that too, after these many years. Further, both the learned advocates have addressed this Court at length on the point of jurisdiction, and under these circumstances, the point as to whether the Arbitrator has the jurisdiction or not, can be and needs to be decided by this Court. As a matter of fact, that is the only point which falls for consideration in the present petition. 5.2 In my view, the contentions of learned advocate for the petitioners Mr. Shelat is well founded on both the counts. Firstly, in view of the judgments relied on by the advocate for the petitioners which are referred hereinabove, it is clear that the Act of 1951 is the Special Act and the Act of 2002 is not the Special Act, and there can not be any dispute on the proposition of law that, when there is conflict between the provisions of a Special Act and that of a Non- Special Act, the one which flows from the Special Act would prevail. In view of this, the Act of 2002 could not have been invoked in the facts of this case, and thus the Arbitrator would not assume the jurisdiction. Additionally, I also find that none of the sections of the Act of 2002 would govern the transactions between the petitioners Financial Institutions and M/s. Jaiswal Pharma Chem Limited. In view of this, the Act of 2002 could not have been invoked in the facts of this case, and thus the Arbitrator would not assume the jurisdiction. Additionally, I also find that none of the sections of the Act of 2002 would govern the transactions between the petitioners Financial Institutions and M/s. Jaiswal Pharma Chem Limited. Learned advocate for the petitioners has rightly pointed out that, in Section 84(1) of the Act of 2002, it has been provided that, notwithstanding anything contained in any other law for the time being in force, if any dispute (other than a dispute regarding disciplinary action taken by a Multi State Co- operative Society against its paid employee or an industrial dispute as defined in Clause (k) of Section 2 of the Industrial Disputes Act, 1947) touching the constitution, management or business of a Multi-State Cooperative Society arises, among members, past members and persons claiming through members, past members and deceased members, and other categories which are enumerated in clauses (a) to (d) of Section 84(1), such dispute shall be referred to arbitration, but since the petitioners claim a statutory charge over the property, there is no question of the petitioners claiming through any member of the society. Under these circumstances, I hold that the Arbitrator did not have jurisdiction to entertain the suit instituted by respondent no.1 before it. The judgment relied on by learned advocate for Respondent No.1 which is referred above, will not take the case of the Respondent No.1 any further in the facts of this case. The impugned order, therefore, needs to be quashed and set aside. 6.1 After having held that the Arbitrator does not have the jurisdiction and that the impugned order needs to be quashed and set aside, the question is what will happen next. Learned Senior Advocate Mr. Shelat has already submitted that the possession of the property in question was taken from M/s.Jaiswal Pharma Chem Limited. The proceedings under Section 29(1) under the Act of 1951 can proceed further from that stage, in accordance with law. But during pendency of this petition, other developments, beyond the scope of the petition, have also taken place and that has led to filing of number of interim applications by various parties, some of which are still pending, which need to be decided at this stage. But during pendency of this petition, other developments, beyond the scope of the petition, have also taken place and that has led to filing of number of interim applications by various parties, some of which are still pending, which need to be decided at this stage. Further orders passed on such applications had led to filing of appeals as well, and orders passed thereon may have some relevance even at this stage, reference to some of which is made by learned advocates appearing for respective parties, which is referred hereinafter. 6.2.1 To appreciate as to under what circumstances, actions beyond the scope of the petitions were permitted to be taken by this Court, reference can be made to the order passed by this Court dated 01.11.2007 recorded on Civil Application (for joining party) No.12798 of 2007 in Special Civil Application No.20962 of 2006 by Respondent No.4 of main petition – Industrial Engineering Company Limited, which reads as under: “(1) Heard learned advocates for the respective parties. (2) Mr. P.K. Jani, learned advocate for the applicant, states that the applicant has obtained a judgment and order dated 18.07.2005, followed by a decree drawn on the same day against opponent No.5 M/s. Jaiswal Pharma Chem Limited from the competent Court at Ankleshwar. That subsequently execution proceedings have also been initiated vide Execution Darkhast No.22 of 2005 moved on 05.08.2005. Therefore, according to learned advocate for the applicant, the applicant is a necessary party in the main petition being Special Civil Application No.20962 of 2006. (3) When the attention of the learned advocate for the applicant was drawn to the fact that the controversy in the main petition relates only to the claim of the petitioner Gujarat Industrial Investment Corporation Limited that the arbitrator appointed under the Multi State Cooperative Societies Act, 2002 does not have jurisdiction in light of Section 29 of the State Financial Corporation Act, the learned advocate for the applicant referred to order dated 30.07.2007 made by this Court in the main petition whereunder a sale committee was Page 16 of 53 constituted by way of consensus arrived at between the parties and hence, according to the learned advocate for the applicant, the subject matter of the petition had undergone change and the petitioner was directly affected by the said order. It was, therefore, contended that the Civil Application may be granted. It was, therefore, contended that the Civil Application may be granted. (4) There is no dispute as to the main controversy between the parties in the main petition : namely, whether the respondents who have sought arbitration under the Multistate Cooperative Societies Act, 2002 are entitled to resolution of the dispute at the hands of the arbitrator, or whether the petitioner-Corporation is entitled to exercise powers under Section 29 of the State Financial Corporation Act. During pendency of the petition, so as not to waste away the assets of respondent No.2Limited Company, the parties have worked out an interim arrangement amongst themselves and placed the same before the Court. However, that fact per se, namely, recording of terms of consensus in order dated 30.07.2007 cannot expand or change the scope of controversy between the parties in the main petition. It is only a case of change of assets : instead of assets in form of immovable properties and plant & machineries, etc. the said assets now stand converted into a sum in an account. As to who, amongst the creditors, secured or unsecured, is entitled to what amount out of the said sum and in what proportion is not an issue which is required to be decided in the main petition. In these circumstances, the applicant would have no role to play in determination of the controversy in the main petition. (5) Hence, the application does not merit acceptance and is accordingly rejected. RULE discharged. There shall be no order as to costs.” 6.2.2 The above order was challenged by preferring an appeal being Letters Patent Appeal No.295 of 2008, which came to be allowed vide order dated 20.10.2008, which reads as under : “Heard learned counsel for the parties. 2. Appellant is a decree holder wanting to be joined as party respondent in Special Civil Application No. 20962 of 2006, for which permission was sought for by filing Civil Application No. 12798 of 2007. 3. We noticed from the prayer sought for in the main petition that the only question posed before the learned Single Judge is, as to whether the Arbitral Tribunal has got jurisdiction to adjudicate the dispute between the parties under Section 84 of the Multi State Cooperative Societies Act, 2002. 3. We noticed from the prayer sought for in the main petition that the only question posed before the learned Single Judge is, as to whether the Arbitral Tribunal has got jurisdiction to adjudicate the dispute between the parties under Section 84 of the Multi State Cooperative Societies Act, 2002. Further, there is also a prayer in the main petition seeking permission to exercise powers under Section 29 of the SFC Act to recover dues of the petitioners by selling assets of respondent No.2. 4. Learned Single Judge has not finally decided as to whether the Arbitral Tribunal under Section 84 of Page 18 of 53 the Act has got jurisdiction to decide the dispute between the petitioner and respondent No.1 Bank. Learned Single Judge has also not decided the issue as to whether petitioner No.1 can exercise power under Section 29 of the SFC Act to recover dues of the petitioners. Learned Single Judge has also not given any direction permitting petitioner to exercise powers under Section 29 of the SFC Act. According to the appellant, arrangement was made between petitioners and respondent No.1 to sell away some of the assets of the 5th respondent company and therefore, application was preferred for impleading him as party and stating that he is armed with a decree against 5th respondent company. Learned Single Judge however, stated in the order as to who, amongst the creditors secured or unsecured, is entitled to what amount out of the said sum and in what proportion is not an issue which is required to be decided in the main petition. However, on a direction given by the learned Single Judge, a Sale Committee was constituted, property was then put to auction under advertisement dated 14th September, 2007. Highest offer of Rs.17,05,00,000- was made by applicant of Civil Application No. 9630 of 2008 and the amount was also paid. He has now filed an application for withdrawal of that amount and the application is pending consideration before the learned Single Judge. 5. Counsel appearing for the appellant submitted that they are armed with Civil Court decree and learned Single Judge was not justified in rejecting the application. 6. He has now filed an application for withdrawal of that amount and the application is pending consideration before the learned Single Judge. 5. Counsel appearing for the appellant submitted that they are armed with Civil Court decree and learned Single Judge was not justified in rejecting the application. 6. Considering the nature of dispute between the parties and the fact that highest bidder has sought permission for withdrawal of the amount by filing application, we feel it would be appropriate the main application itself be heard on merits. Under the circumstances, we are inclined to allow the appeal and set aside the orders passed by the learned Single Judge and direct that the main application itself be heard. Since we are setting aside the orders, there is no necessity for impleading the appellant as a party.” 6.2.3 The clerical error in the said order was corrected by the order dated 03.12.2008 recorded on a note filed for speaking to minutes, which does not change the complexion of the order, except that the applicant was permitted to be joined as party respondent in the main petition. 6.3.1 In the above referred orders dated 01.11.2007 and 20.10.2008, there is also reference of the sale of the properties of the defaulter Company for the consideration of Rs.17,05,00,000/-. In this regard, following two orders, passed on this petition i.e. Special Civil Application No.20962 of 2006 needs to be recorded, which are dated 30.07.2007 and 01.11.2007, which read as under : 6.3.2 Order dated 30.07.2007 reads as under : “1. This petition has been preferred by the petitioners who are Financial Institutions seeking to recover amount from respondent No.2Limited Company. It is an accepted fact that respondent No.1, a Multi State Cooperative Bank, initiated arbitral proceedings against respondent No.2Company and others wherein the petitioners have been impleaded as party opponents. The petitioners have challenged jurisdiction of aribtral Tribunal qua the petitioners. 2. During pendency of this petition, the representatives of the petitioners and respondent No.1 held a joint meeting on 12.04.2007 for the purpose of disposal of assets of respondent No.2Company situated at Ankleshwar. All the parties present at the meeting arrived at a consensus as recorded in the Minutes of Meeting placed on record. 2. During pendency of this petition, the representatives of the petitioners and respondent No.1 held a joint meeting on 12.04.2007 for the purpose of disposal of assets of respondent No.2Company situated at Ankleshwar. All the parties present at the meeting arrived at a consensus as recorded in the Minutes of Meeting placed on record. Under the said Minutes it is agreed by the parties that a Sale Committee consisting of one representative each of the petitioners as well as respondent No.1 shall be appointed and representative of GIIC shall be the Chairman of such Sale Committee. The Sale Committee shall invite offers for sale of assets of the respondent No.2 Company situated at Ankleshwar, negotiate and finalise the offer to be accepted, and thereafter, place the final offer before this Court for confirmation of the sale. In this context, the learned advocates representing the petitioners on one hand and respondent No.1 on the other have requested this Court to pass appropriate order in this regard. 3. Accordingly, it is ordered : (1) The Sale Committee consisting of one representative each of the petitioners and respondent No.1 shall be constituted and such Sale Committee shall be headed by the representative of GIIC as Chairman. The Sale Committee is appointed for the purpose of sale of assets of respondent No.2company situated at Ankleshwar; (2) The Sale Committee shall invite Tenders for sale of assets of respondent No.2 by giving public advertisements in English language in the News papers namely Times of India, Economics Times (both in Ahmedabad and Mumbai Editions), Gujarat Samachar and Sandesh (All editions in Gujarat); (3) Initial expenses for advertisement shall be borne by the members of Sale Committee equally; (4) The Sale Committee is directed to act in accordance with minutes of the meeting held on 12.04.2007 including terms and conditions attached with the said minutes for sale of aforesaid assets of respondent No.2; (5) The Chairman of the Sale Committee is directed to place before this Court final offer along with report for confirmation of sale. 3. The aforesaid directions are based on consensus arrived at between the petitioners and respondent No.1 and the same is for the limited purpose of disposal of the assets of respondent No.2Company situated at Ankleshwar, and is thus without prejudice to the respective rights and contentions of the parties. 3. The aforesaid directions are based on consensus arrived at between the petitioners and respondent No.1 and the same is for the limited purpose of disposal of the assets of respondent No.2Company situated at Ankleshwar, and is thus without prejudice to the respective rights and contentions of the parties. To be listed on 18th September, 2007.” 6.3.3 Order dated 01.11.2007 reads as under: “(1) In compliance with the order dated 30.07.2007 the Sale Committee, through its Chairman, has placed on record report dated 23.10.2007, the sale procedure evolved by the Sale Committee and the auction sale conducted pursuant thereto has been placed on record and it is stated that the highest offer received by the Sale Committee was of M/s. Unimark Remedies Limited at a sum of Rs.17,00,00,000/(Rupees Seventeen crores). Accordingly, the chairman of the Sale Committee has prayed for confirmation of the sale in favour of the highest bidder. (2) Mr. Tushar Mehta, learned advocate appearing on behalf of the highest bidder, states, under instructions, that to the suggestion made by the Court the highest bidder has responded and raised the offer amount to a sum of Rs.17,05,00,000/(Rupees Seventeen crores Five lacs). (3) In the circumstances, the Sale Committee is permitted to confirm the sale at a figure of Rs.17,05,00,000/- (Rupees Seventeen crores Five lacs) and complete remaining formalities for completing the sale in accordance with law, within the schedule provided in terms and conditions of sale. The amount of sale proceeds shall be deposited in escrow account to be maintained with IDBI Bank, Ahmedabad as per minutes of the Sale Committee meeting held on 24.08.2007, more particularly Paragraph No.15 thereof. The Sale Committee shall ensure that the account which is opened with IDBI Bank is an interest bearing account and the interest which accrues on the amount deposited in the account shall also be deposited in the same account, till the parties are in a position to ensure disbursement of the amount.” 6.4.1 Then came the stage of completing the remaining formalities including execution of the sale deed, in accordance with law, as observed in the above referred orders. Since it was the consensus projected by the petitioners and contesting respondent no.1, the said procedure, though beyond the scope of the petition, was permitted by this Court. Since it was the consensus projected by the petitioners and contesting respondent no.1, the said procedure, though beyond the scope of the petition, was permitted by this Court. The parties, the petitioners and respondent no.1, should have jointly executed the sale deed in favour of the purchaser – M/s. Unimark Remedies Limited. But the consensus between the parties was very short lived and therefore, on behalf of the original petitioner no:1, an application being Civil Application No.7370 of 2008 came to be filed with the following prayers : “4A. THE HONOURABLE COURT MAY BE PLEASED TO allow the present civil application and further be pleased to pass appropriate order and/or directions to authorize the Chairman of the Sale Committee of M/s Jaiswal Pharma Chem Ltd. appointed by this Honourable Court to execute Deed of Assignment-cum-Sale for a value of Rs.4,68,02,000/for immovable property as well as Memo of Possession Receipt in respect of sale of movable plant and machinery at a value of Rs.12,36,98,000/with or without modifications as may be directed by the Honourable Court at Annexure “D” collectively so as to execute documents in favour of purchaser M/s Unimark Remedies Ltd. as per terms and conditions of sale and the entire cost and expenses for execution of documents will be borne by said purchaser M/s. Unimark Remedies Ltd. and be further pleased to declare that upon execution of said documents and deeds in favour of purchaser M/s. Unimark Remedies Ltd. charge of the applicants and GICB, if any, shall stand discharged in respect of assets, plant and machinery, and all the secured creditors may be directed to release papers/securities, titles related to property which may be handed over to the purchaser. B. This Hon’ble court may be pleased to pass appropriate order and/or direction permitting sale committee to incur expenses for advertisement, maintaining current assets in godown, electricity expenses, security expenses, godown rent, transportation expenses, insurance charges etc. and various allied expenses relating to above incurred from the sale proceeds received by sale of land, building, plant and machinery initially and such expenses be reimbursed/adjusted from sale proceed which may be received by sale of such raw material, goods, movable etc. C. Pending hearing and final disposal of the present civil application, prayer in terms of aforesaid (A) may kindly be granted. C. Pending hearing and final disposal of the present civil application, prayer in terms of aforesaid (A) may kindly be granted. D. The Hon’ble Court may be pleased to grant any such other and further reliefs deemed fit and expedient in the interest of justice.” 6.4.2 The said application was contested by the original Respondent No.1, who was also one of the consenting party to the orders dated 30.07.2007 and 01.11.2007 passed by this Court, as referred above. The contest on his behalf by filing affidavit-in-reply dated 16.07.2008, inter alia was in the following terms : “I, Suresh K. Patel, Senior Officer, Gujarat Industrial Cooperative Bank Limited (GICB), the first opponent herein having my office at United Industrial Building, Income-tax Chaar Rasta, Ashram Road, Ahmedabad, solemnly affirm and state as follows: 1. I am Senior Officer at Ahmedabad Office of the GICB, conversant with the facts of the case and competent to file affidavit-in-reply [for short ‘the Reply’] on its behalf in this matter. I have read the copy served on GICB in the matter of the captioned Civil Application [for short ‘the C.A.’] and in reply thereto on behalf of GICBI state and submit as follows: 2. I submit that the prayers contained in the C.A. are not competent and the C.A. is required to be summarily rejected. The captioned Special Civil Application [for short ‘the Petition’] has been filed by the applicants against the decision dated 31.12.2005 rejecting the application of GIIC and holding that the arbitrator has jurisdiction to decide the case entrusted for arbitration. The scope of the Petition is limited to the question whether the decision dated 31.12.2005 of the arbitral tribunal is valid or not. 2.1 I submit that the prayer for authorizing the Chairman of the Sale Committee to execute the Deed of Assignment-cum-Sale or Memorandum of Possession Receipt in respect of the sale of movable plant and machinery is not competent. The properties to be sold are the properties of the second opponent [for short ‘JPCL’ or ‘the Company’] and the Chairman of the Sale Committee execute the Deed of Assignment-cum-Sale or Memorandum of Possession Receipt. Under law the Company’s properties can be sold only by the Company and the said power or authority of the Company has not been taken away or vested in accordance with law in the said Committee or any member thereof. Under law the Company’s properties can be sold only by the Company and the said power or authority of the Company has not been taken away or vested in accordance with law in the said Committee or any member thereof. The Company or its representative was not present at the meeting of 12.04.2007. The company has not acquiesced in the order dated 30.7.2007 or 01.11.2007 in the petition. Even under the order dated 01.11.2007 of this Hon’ble Court the Sale Committee can complete remaining formalities for completing the sale only by execution of the sale by the Company in accordance with its Articles of Association. 2.2 During the pendency of the petition a joint meeting of the representatives of GIIC, GSFC, SASF and GICB was held on 12.04.2007. JPCL or its representative was not invited to be present or present at the said meeting. The consensus arrived at the said meeting was of the parties present at the meeting, which do not include JPCL and was that the Sale Committee consisting of one representative each of the petitioners and GICB shall be appointed and representative of GIIC shall be the Chairman of the said Committee, that the Sale Committee shall invite offers for sale of assets of the Company situate at Ankleshwar, negotiate and finalise the offer to be accepted and thereafter place the final offer before this Hon’ble Court for confirmation of sale. There the consensus ended. The directions of this Hon’ble Court covered nothing beyond the stage of confirmation of sale. The said consensus does not cover any question as to who shall execute the sale deed or possession receipt or about the contents of the documents to be executed in favour of the purchaser or terms or contents thereof. The order dated 30.07.2007 of this Hon’ble Court in the Petition directed the Sale Committee to place before the Hon’ble Court final offer along with report for confirmation of sale. Moreover, the Hon’ble Court made it clear that the directions contained in its order dated 30.07.2007 are based on consensus arrived at between the petitioners and GICB and were for the limited purpose of disposal of the Company’s assets at Ankleshwar and without prejudice to the respective rights and contentions of the parties. Moreover, the Hon’ble Court made it clear that the directions contained in its order dated 30.07.2007 are based on consensus arrived at between the petitioners and GICB and were for the limited purpose of disposal of the Company’s assets at Ankleshwar and without prejudice to the respective rights and contentions of the parties. Thereafter, this Hon’ble Court by its order dated 01.11.2007 permitted the Sale Committee to confirm the sale at the price of Rs.17.05 crores and to complete remaining formalities for completing the sale in accordance with law. I submit that the question of this Hon’ble Court authorizing the Chairman of the Sale Committee to execute the Deed of Assignment-cum-Sale or Memorandum of Possession Receipt no longer survives. The order dated 01.11.2007 goes beyond the consensus between the parties and is not within the scope of the petition. The order dated 01.11.2007 permits the Sale Committee meaning the representatives of the three petitioners and GICB to complete the remaining formalities. Authorizing the chairman of the Sale Committee to execute the Deed of Assignment-cum-Sale or Memorandum of Possession Receipt runs counter to the said directions and in substance seeks a review thereof. I submit that the application for review in whole or part of the order dated 01.11.2007 is time barred. C.A. does not even disclose any ground for review of the Order dated 01.11.2007. Moreover, the order dated 01.11.2007 permits the Sale Committee to complete post conformation formalities for completing the sale in accordance with law. 3. I submit that the Draft Deed of Assignment-cum-Sale and the Draft Memorandum of Possession Receipt annexed to C.A. are malafide and the Deed of Assignment-cum-Sale or Memorandum of Possession Receipt cannot be executed in terms thereof. 3.1 The drafts of Deed of Assignment-cum-Sale and Memorandum of Possession Receipt refer to the Sale Committee as vendor and further provides that the expression vendor shall unless it be repugnant to the context or contrary to the meaning thereof be deemed to mean and include its members representing GIIC, GSFC and SASF, whose appointment has been confirmed/made/ordered by the Hon’ble High Court. The expression vendor does not include either GICB or JPCL. The petitioners appear to suffer from an illusion that they are the owners of the Company’s properties and are competent to sell the same. The expression vendor does not include either GICB or JPCL. The petitioners appear to suffer from an illusion that they are the owners of the Company’s properties and are competent to sell the same. 3.2 Paragraph no.7 of the Drafts state that GIIC authorized by GSFC and SASF has power of sale under Section 29 of the State Financial Corporations Act, 1951 (the SFC Act) and became entitled to take over possession of the hypothecated and mortgaged properties of the Company and to transfer the same for realization of their outstanding dues. The said recitals have no relevance GIIC for itself and on behalf of GSFC and IDBI, which is not an SFC, had purported to resort to Section 29 of the SFC Act for recovering the dues of the three petitioners and the said action has been challenged as without authority by GICB. I submit that the reference in the operative paragraph no.1 of the Drafts to the rights by virtue of the provisions of Section 29 of the SFC Act is incorrect. 3.3 I submit that the averments in operative paragraph no.3 of the Drafts that the vendor has well right, title and interest and full power and authority to dispose of the property by auction is incorrect. 3.4 I submit that the averment in operative paragraph no.6 of the Drafts referring to “statutory charges under Section 48 of the Gujarat Cooperative Societies Act”,........ standing satisfied and discharged and the said properties sold by the vendor to the purchaser is without any charge or lien and free from any encumbrance and/or the charge/s of GICB is not correct. 3.5 The purchaser has not confirmed that at its request the vendor has agreed to execute the Deed of Assignment-cum-Sale or Memorandum of Possession Receipt. 3.6 GICB does not admit that the petitioners are entitled to the dues claimed by them or have any first charge ranking pari pasu among themselves recited in the Drafts. JPCL is the new name of Shri NICOSET Limited, which was incorporated on 22.05.1992. GICB, Ankleshwar Branch advanced to NICOSET Rs.3.53 cr. approximately before 10.03.2000. the advances to NICOSET by GICB were secured under Section 48 of the Gujarat Cooperative Societies Act, 1963. NICOSET had given to GICB security inter alia of machinery, plant, equipment and stock then existing and future in its factory sheds nos.6002 and 6003. GICB, Ankleshwar Branch advanced to NICOSET Rs.3.53 cr. approximately before 10.03.2000. the advances to NICOSET by GICB were secured under Section 48 of the Gujarat Cooperative Societies Act, 1963. NICOSET had given to GICB security inter alia of machinery, plant, equipment and stock then existing and future in its factory sheds nos.6002 and 6003. Hereto annexed and marked as ANNEXURE 1 is a copy of the Undertaking dated 20.08.1999 executed by the Managing Director of Shri NICOSET Limited. NICOSET was to start a plant in the village Dantali, Kheda district and had kept machineries there. However, the Government did not issue pollution certificate for the factory and therefore NICOSET decided to transfer the machinery to its factory sheds nos.6002 and 6003 in GIDC, Ankleshwar. As the said machinery was also given in security to GICB, NICOSET sought GICB’s permission for the same. Hereto annexed and marked as ANNEXURE 2 is a copy of NICOSET’s letter dated 05.01.2000 to GICB. Chartered Accountants Sunil Gandhi and Associates, statutory auditors of NICOSET have in their Certificate (copy hereto annexed and marked as ANNEXURE 3) stated that as on 24.07.2000, GICB’s outstanding from NICOSET was Rs.246 lakhs and there was a first charge on the fixed assets of the Ankleshwar unit of the company. The name of Shri NICOSET Limited was changed to Jaiswarl Pharma Chem Limited with effect from 04.09.2000. Hereto annexed and marked as ANNEXURE 4 is a copy of fresh certificate of incorporation dated 04.09.2000 of JPCL issued by the Registrar of Companies, Gujarat, Dadra and Nagar Haveli. The Company had requested for overdraft facility from GICB as per the statement. Hereto annexed and marked as ANNEXURE 5 is a copy of the statement. The claim of the GIIC, GSFC and SASF of the first and exclusive charge of plant and machinery is not correct. I submit that the recitals in the Drafts are malafide and cannot from part of any document or deed to be executed in favour of the purchaser. I submit that no recitals of the nature and extent of the dues of the petitioners or GICB are required to be included in the Deed of Assignment-cum-Sale or Memorandum of Possession Receipt. 3.7 I submit that several recitals in the Drafts are incorrect and inconsistent with what I have hereinbefore stated. 4. I submit that no recitals of the nature and extent of the dues of the petitioners or GICB are required to be included in the Deed of Assignment-cum-Sale or Memorandum of Possession Receipt. 3.7 I submit that several recitals in the Drafts are incorrect and inconsistent with what I have hereinbefore stated. 4. GICB craves leave to refer to and rely upon at the hearing of the C.A. various proceedings between the parties for their true contents, meaning and effect. I submit that the action of the Chairman of the Sale Committee to handover possession to the Purchaser of the Company’s assets at plots nos.60026003 at GIDC Ankleshwar on 03.02.2003 is contrary to law. I submit that the auction is not tantamount to sale. 5. I submit that the prayer for declaration that on execution of the documents namely Deed of Assignment-cum-Sale and Memorandum of Possession Receipt in favour of the purchaser by the vendor charge of GICB shall stand discharged in respect of assets, plant and machinery is incorrect and the prayer itself is incompetent. 6. I submit that the prayer for directions to all the secured creditors to release papers/securities, titles related to property be handed over to the purchaser is incompetent in the present proceedings. 7. I submit that no order/direction permitting Sale Committee to incur expenses as sought is required to be given. In fact, this Hon’ble Court in its order dated 30.07.2007 ordered that initial expenses for advertisement shall be borne by the members of the Sale Committee equally. I submit that the question as to how the members of the Sale Committee should finally share the expenses will be required to be decided separately by considering all the facts including the rights of the applicants and the first opponent in the sale proceeds of the property as and when decided. 8. I submit that the prayer that pending hearing and final disposal of the C.A. prayer in terms of final prayer (A) should be granted deserves only to be stated to be rejected. Solemnly affirmed at Ahmedabad on this 16 day of July, 2008.” 6.4.3 Be it noted that the purchaser was not party in the main petition, nor he is party in the main petition even today. Solemnly affirmed at Ahmedabad on this 16 day of July, 2008.” 6.4.3 Be it noted that the purchaser was not party in the main petition, nor he is party in the main petition even today. For the first time, he was joined in Civil Application No.7370 of 2008, in which, he was welcomed with the above referred affidavit of one of the consenting parties dated 16.07.2008. In this situation, like any prudent person, immediately on 05.08.2008, the auction purchaser – M/s. Unimark Remedies Limited, requested this Court to walk out of this arrangement and requested for refund of its money. Reference in this regard can be made to Civil Application No.9630 of 2008 filed by M/s. Unimark Remedies Limited. The said application i.e. Civil Application No. 9630 of 2008, came to be amended by filing Civil Application No.10829 of 2008, which was allowed by the order of this Court dated 15.09.2008. Thereafter, by the order dated 02.03.2009, this application i.e. Civil Application No.9630 of 2008, was directed to be heard with the main matter, that is how the said application is still pending and the same is being decided now. 6.5.1 Since the above referred application i.e. Civil Application No.9630 of 2008, was ordered to be heard with the main matter, the said applicant preferred another application being Civil Application No.13513 of 2010 for reviewing the order dated 01.11.2007 recorded on the main matter, which was rejected vide order dated 25.11.2010, which reads as under : “(1) This application has been preferred with the following prayers: “A. This Honourable Court be pleased to admit and allow this Civil Application by reviewing the order dated 1/11/2007 passed in Special Civil Application No.20962 of 2006 accepting the recommendation of the Sale Committee of accepting the offer of Rs.17,05,00,000/made by the applicant who was the highest bidder for purchase of the assets of M/s. Jaiswal Pharmachem Limited and further directing the aforesaid amount to be deposited in a Escrow account in IDBI Bank at Ahmedabad and in turn be pleased to set aside the recommendation of the Sale Committee made vide report dated 23/10/2007 and further direct the IDBI Bank, Ahmedabad, to release the amount of Rs.17,05,00,000/- lying in an Escrow account with its Ahmedabad Branch along with the interest accrued on the same, in the interest of justice.” (2) Heard learned senior advocate appearing for the applicant. It was submitted that the only reason this application has been filed is for the purposes of taking care of the apprehension which the applicant is having in relation to the outcome of the Civil Application No.9630 of 2008, which is pending as of today. (3) As can be seen from the order dated 01.11.2007 made by the Court in Special Civil Application No.20962 of 2006 the said order has been made during pendency of the petition and admittedly as of today the main petition is pending. In the circumstances, considering that both the main petition preferred by one of the lenders and the Civil Application preferred by the present applicant are pending, it is not necessary for the court to pass any order. (4) One of the opponents appearing on advance copy has raised a preliminary objection as to the application being barred by limitation. It is not necessary to go into the said aspect of the matter. (5) Even otherwise in absence of any of the parameters for review being satisfied the application is misconceived and is accordingly rejected.” 6.5.2 The above order was challenged by preferring appeal being Letters Patent Appeal No.57 of 2011, which came to be disposed of vide order dated 11.04.2012, which reads as under :- “1. After some preliminary arguments regarding broad contours of the case, there was a limited controversy to the extent that an application, being Civil Application No.9630/2008, was already filed by the appellant, practically for the relief which is now really sought by challenging other orders in this appeal; and that application is, by order dated 2/3/2009 of learned Single Judge, ordered to be heard with the main matter. Admittedly, the main petition as well as the aforesaid application of the appellant are pending before learned Single Judge and ripe for hearing, the original petition being of the year 2006. Learned Counsel also conceded the urgency of the matter insofar as huge amounts were standing withheld to the detriment of either the appellant or the respondents or both. Therefore, it was jointly submitted that the original proceedings pending before learned Single Judge were required to be expedited and disposed on merits after giving to the parties an opportunity of fair hearing. 2. Therefore, it was jointly submitted that the original proceedings pending before learned Single Judge were required to be expedited and disposed on merits after giving to the parties an opportunity of fair hearing. 2. Therefore, it was suggested at the bar that the present appeal may be disposed, without entering into merits of the rival contentions or preliminary objection regarding maintainability of the appeal, with a request to learned Single Judge to hear and dispose of the original proceedings as expeditiously as practicable and preferably on day today basis within a time limit. Learned Counsel appearing on both sides categorically stated that all the parties will cooperate in hearing of the original proceedings as aforesaid without seeking any unnecessary or unjustified adjournment and seek final disposal of the matters at the earliest. It was, however, also pointed out that the original petition, being Special Civil Application no. 20962/2006, was presently not even listed for final hearing. 3. Therefore, upon joint request of learned Counsel, it is directed that Special Civil Application no. 20962 of 2006 with all the Civil applications made therein and pending shall be listed for final hearing before the appropriate Court on 2/5/2012. Thereafter, it will be open for the parties therein to request learned Single Judge, in light of the understanding recorded hereinabove, to fix an early date for commencement of hearing of the main petition as well as the applications made therein at the earliest. We are sure that, with the cooperation of learned Counsel, the consensus recorded hereinabove and the urgency and maturity of the matter, learned Single Judge will accord appropriate priority in hearing and dispose of the matters as early as practicable. Subject to the above observations, the appeal is disposed without entering into merits as aforesaid.” 6.6 In the above chronology of events, after holding that the impugned order of the Arbitrator needs to be quashed and set aside, it also needs to be decided by this Court as to whether the applicant of Civil Application No.9630 of 2008 should be granted any relief, prayed for by him, or not. 7.1 Heard Mr. Percy Kavina, learned Senior Advocate with Mr. Zubin Bharda for the applicant of Civil Application No.9630 of 2008-the auction purchaser M/s. Unimark Remedies Limited, Mr. S.N. Shelat, learned Senior Advocate with Mr. R.D. Dave for the original petitioners - Financial Institutions and Mr. 7.1 Heard Mr. Percy Kavina, learned Senior Advocate with Mr. Zubin Bharda for the applicant of Civil Application No.9630 of 2008-the auction purchaser M/s. Unimark Remedies Limited, Mr. S.N. Shelat, learned Senior Advocate with Mr. R.D. Dave for the original petitioners - Financial Institutions and Mr. B.B. Naik, learned Senior Advocate with Mr. A.K. Clerk for original respondent no. 1, the Gujarat Industrial Development Bank Ltd. 7.2 Mr. Kavina has submitted that what is prayed for by the applicant in his application is, what any bona fide purchaser would expect, further, to some extent the applicant has also the feeling of having been cheated by the petitioners and the original respondent no.1 jointly, that too under the name of this Court, and the conduct of the applicant is quite bona fide and natural. It is submitted that as soon as the applicant came to know about the scope of the petition, the inter-se dispute between the consenting parties who had presented consensus before the Court, and then the language of the above referred affidavit-in-reply dated 16.07.2008 filed by the original Respondent No.1 in Civil Application No: 7370 of 2008, on whose consent and consensus the orders of this Court dated 30.07.2007 and 01.11.2007 were based, immediately, on 05.08.2008, this applicant has requested this Court to refund the amount which is received from him. It is also contended that in the year 2003 itself, Gujarat Industrial Investment Corporation Limited had already given an advertisement for sale of property and again, an advertisement dated 14.09.2007 was issued which is on record, which is titled as-In the High Court of Gujarat at Ahmedabad (Writ Jurisdiction) in Special Civil Application No.20962 of 2006, etc.-It is contended that Senior Advocate with Mr. A.K. Clerk for original respondent no.1 the Gujarat Industrial Development Bank Ltd. looking at this, the applicant had responded and has paid the consideration, which was even increased by Rs.5 lacs with due respect to the suggestion of this Court, as recorded in the order dated 01.11.2007. A.K. Clerk for original respondent no.1 the Gujarat Industrial Development Bank Ltd. looking at this, the applicant had responded and has paid the consideration, which was even increased by Rs.5 lacs with due respect to the suggestion of this Court, as recorded in the order dated 01.11.2007. But when one of the consenting parties, by filing affidavit before this Court, has inter alia contended that, the very exercise is beyond the scope of the petition, there is lack of bona fide on the part of the original petitioners and what not, the applicant-M/s. Unimark Remedies Limited has immediately requested this Court to give his money back, which was given by them only by looking at the Institute like this Court. It is further contended that the first application of M/s. Unimark Remedies Limited is pending before this Court and all other orders, including orders of the Division Bench which are shown to operate against this applicant, only says that this application as well as main petition itself is pending and therefore, the case of this applicant can be gone into in that. According to learned advocate for this applicant, none of the orders, relied on by the other side, would come in the way of this applicant to claim relief in this application. 7.3 Mr. S.N. Shelat, learned Senior Advocate for the original petitioners – the Financial Institutions and Mr. Naik, learned Senior Advocate for Respondent No.1 Bank have jointly submitted that so far the sale of property in question to this applicant is concerned, it has attained finality, it is a concluded contract and nothing needs to be, or can be done, in that regard. Various provisions of the Indian Contract Act, 1872 are also pressed into service. It is also pointed out that, after having failed to get the order dated 01.11.2007 reviewed, and even the Division Bench has not granted any relief in Letters Patent Appeal No.57 of 2011, no relief can be granted to this applicant and the application be dismissed. Learned advocate Mr. Naik in support of his contention has also relied on the decision of the Allahabad High Court in the case of Gulzari Lal versus Sheo Charan Lal and others reported in AIR 1935 Allahabad 889. Learned advocate Mr. Naik in support of his contention has also relied on the decision of the Allahabad High Court in the case of Gulzari Lal versus Sheo Charan Lal and others reported in AIR 1935 Allahabad 889. 7.4 Having heard learned advocates for the respective parties and having gone through the record and after having taken into consideration the number of orders passed on the main petition, so also on different Civil Applications filed in the said main petition, as well as the orders passed by the Division Bench in the various appeals arising out of those interim orders, I find that, though consensus was projected between all the petitioners and the contesting respondent No.1 (of the main petition) at the relevant time, with regard to selling of the property in question to the purchaser i.e. the applicant of Civil Application No.9630 of 2008, when it came to the execution of the sale deed in favour of the said applicant, not only that consensus was missing, but the draft sale deed was condemned by one of the consenting party by filing affidavit-in-reply dated 16.07.2008 in Civil Application No.7370 of 2008 as referred above, inter alia stating therein that: “I, Suresh K. Patel, Senior Officer, Gujarat Industrial Cooperative Bank Limited (GICB), the first opponent …...state that.....the scope of the Petition is limited to the question whether the decision dated 31.12.2005 of the arbitral tribunal is valid or not..... under law the Company’s properties can be sold only by the Company and the said power or authority of the Company has not been taken away or vested in accordance with law in the said Committee or any member thereof. ..the order dated 01.11.2007 goes beyond the consensus between the parties and is not within the scope of the petition.......I submit that the application for review in whole or part of the order dated 01.11.2007 is time barred. C.A. does not even disclose any ground for review of the Order dated 01.11.2007. Moreover, the order dated 01.11.2007 permits the Sale Committee to complete post conformation formalities for completing the sale in accordance with law.. …...I submit that the Draft Deed of Assignment-cum-Sale and the Draft Memorandum of Page 43 of 53 Possession Receipt annexed to C.A. are malafide and the Deed of Assignment-cum-Sale or Memorandum of Possession Receipt cannot be executed in terms thereof...... …...I submit that the Draft Deed of Assignment-cum-Sale and the Draft Memorandum of Page 43 of 53 Possession Receipt annexed to C.A. are malafide and the Deed of Assignment-cum-Sale or Memorandum of Possession Receipt cannot be executed in terms thereof...... the petitioners appear to suffer from an illusion that they are the owners of the Company’s properties and are competent to sell the same....I submit that the action of the Chairman of the Sale Committee to handover possession to the Purchaser of the Company’s assets at plots nos.60026003 at GIDC Ankleshwar on 03.02.2003 is contrary to law. I submit that the auction is not tantamount to sale.... I submit that the prayer that pending hearing and final disposal of the C.A. prayer in terms of final prayer (A) should be granted deserves only to be stated to be rejected. ….Solemnly affirmed at Ahmedabad on this 16 day of July, 2008.” 7.5 The above referred Prayer Clause (A), of Civil Application No.7370 of 2008, which is filed by the original Petitioner No.1 and which is still pending, and which is contended to be rejected by the original Respondent No.1, with whose consent the sale proceedings had taken place, reads as under : “4A. THE HONOURABLE COURT MAY BE PLEASED TO allow the present civil application and further be pleased to pass appropriate order and/or directions to authorize the Chairman of the Sale Committee of M/s Jaiswal Pharma Chem Ltd. appointed by this Honourable Court to execute Deed of Assignment-cum-Sale for a value of Rs.4,68,02,000/for immovable property as well as Memo of Possession Receipt in respect of sale of movable plant and machinery at a value of Rs.12,36,98,000/with or without modifications as may be directed by the Honourable Court at Annexure “D” collectively so as to execute documents in favour of purchaser M/s Unimark Remedies Ltd. as per terms and conditions of sale and the entire cost and expenses for execution of documents will be borne by said purchaser M/s. Unimark Remedies Ltd. and be further pleased to declare that upon execution of said documents and deeds in favour of purchaser M/s. Unimark Remedies Ltd. charge of the applicants and GICB, if any, shall stand discharged in respect of assets, plant and machinery, and all the secured creditors may be directed to release papers/securities, titles related to property which may be handed over to the purchaser.” 7.6 The above Civil Application is still pending. On the face of the above facts, the contention that the sale to the applicant of Civil Application No.9630 of 2008 is a concluded issue and the same has attained finality, is rejected. The issue of executing sale-deed has not attained finality, even going by the case of the original petitioners read with their prayers in the pending Civil Application, and the arguments of original Respondent No.1, in that regard, who all are now jointly contending that the said sale has attained finality. This convenient stand of original petitioners and Respondent No.1 of main petition is not only contradictory but self-destructive. 8.1 It further needs to be recorded that independent of the original petitioner No.1 not getting any relief in his Civil Application No.7370 of 2008, as referred above, original petitioner No.3 – Stressed Assets Stabilisation Fund had also filed one application being Civil Application No.6583 of 2008, which is also pending, with the following prayers. 8.1 It further needs to be recorded that independent of the original petitioner No.1 not getting any relief in his Civil Application No.7370 of 2008, as referred above, original petitioner No.3 – Stressed Assets Stabilisation Fund had also filed one application being Civil Application No.6583 of 2008, which is also pending, with the following prayers. “6(A) Be pleased to admit this application; (B) Be pleased to issue appropriate directions to the applicant to initiate/undertake exercise for the sale of unsold current assets by inviting offers for sale of current assets of respondent no.2company situated at Ankleshwar and place final offer proposed to be accepted before this Hon'ble Court for confirmation thereof; (C) Be pleased to issue appropriate directions for handing over of the original title deeds to the auction purchaser by the respective Lenders pertaining to the assets sold to the auction purchaser.” 8.2 Thus, once the permission of this Court was prayed for by one of the original petitioners to execute the sale deed, which was objected by one of the consenting parties, and independently by another petitioner, direction was prayed for, from this Court to himself that he may be directed by this Court to execute sale deed. Even said prayer is pending. 8.3 In above factual background, the stand of the original petitioners and original Respondent No.1, in Civil Application No.9630 of 2008 filed by the auction purchaser to walk out, needs not only be rejected but deprecated and I do so. 8.4 There is one more reason which tilts the balance in favour of the auction purchaser -the applicant of Civil Application No.9630 of 2008. Firstly, the very exercise, dealing with the property in question by the original petitioners and Respondent No.1 in the proceedings before this Court, was beyond the scope of petition. May be for good reasons, it was permitted to be done by this Court since consensus was projected before this Court as reflected in the orders of this Court dated 30.07.2007 and 01.11.2007 in Special Civil Application No.20962 of 2006 and further order dated 01.11.2007 in Civil Application No.12798 of 2007. Specific reference can be made to para 3 of the order dated 01.11.2007 in Civil Application No.12798 of 2007. Specific reference can be made to para 3 of the order dated 01.11.2007 in Civil Application No.12798 of 2007. On the face of this, now if the advertisement dated 14.09.2007, which is on record is looked, not only it gives an impression but it reads in terms that, the said exercise is carried out in the writ jurisdiction of this Court in Special Civil Application No.20962 of 2006. Looking at the said advertisement, the applicant of Civil Application No.9630 of 2008 participated in the proceedings. Not only that, on the suggestion of the Court, he raised his bid by Rs.5 lacs as reflected in order dated 01.11.2007. Thereafter when the question of executing sale deed came, the consenting parties started being heard not only in different voices but the tenor of affidavit-in-reply of original Respondent No.1, reference to which is made hereinabove, appeared as if the parties were at war. This was on 16.07.2008. Like any prudent man, this applicant, immediately on 05.08.2008 filed this application which is still pending. I have gone through the record. I also had the advantage of the submissions of all the learned advocates, including on the point, as to what should be heard first. At one time it was indicated that, only this applicant has the urgency, but since it is ordered to be heard with main matter, without taking up the main matter for final hearing, this application can not be heard. Subsequently, a suggestion came that with the consent of the petitioners and original respondent no.1, that Civil Application can be de-tagged and heard and decided separately, but taking into consideration the order dated 11.04.2012 of the Division Bench of this Court in Letters Patent Appeal No.57 of 2011, reference to which is made in hereinabove, I have deemed it proper to hear main matter itself along with all applications together. Though this fact by itself may not add merits to the case of the auction purchaser, it certainly shows that the contest to grant any relief, or to delay it, to this applicant has been exhibited in many folds. Though this fact by itself may not add merits to the case of the auction purchaser, it certainly shows that the contest to grant any relief, or to delay it, to this applicant has been exhibited in many folds. Since this complication has arisen because of the proceedings which were technically beyond the scope of this petition, but in the interest of justice which was permitted to be undertaken by this Court, this Court is under obligation to set things right, when the auction purchaser has made out his case as referred above. I find that in the case of Civil Application No.9630 of 2008, the applicant – auction purchaser has acted bona fide and can not be condemned by this Court, and further, on the other hand, the original petitioners and Respondent No.1 have jointly, trailed behind, in showing bona fide. Their inter se dispute either was genuine or was created for their own convenience – in any of these two circumstances, the auction purchaser can not be treated unfairly and needs to be protected against the harm caused to him under the name of proceedings of this Court. 8.5 At this juncture, reference can also be made to the order passed by this Court dated 16.10.2012, as corrected vide order dated 30.10.2012, on the main petition. Order dated 16.10.2012 “It appears that this is a gross case where the litigant is not allowed to get the refund of the amount of Rs.2 crores nor he is allowed to develop the property. Mr. Dave, learned advocate for the petitioner requests for time. In the interest of justice and as a last chance, matters are adjourned to 05.11.2012.” Order dated 30.10.2012 “Heard. On the facts and circumstances of the case the amount of Rs.2 crores mentioned in the order dated 16.10.2012 shall be corrected as Rs.17 crores and 5 lacs. Speaking to minutes stands disposed of accordingly.” 8.6 Considering the totality, I find that the auction purchaser is justified in his prayers in Civil Application No.9630 of 2008 and the same needs to be allowed. In view of that, his subsequent application being Civil Application No.1570 of 2009 may not be required to be gone into. At this juncture, it is recorded that the decision of Allahabad High Court relied on by learned Senior Advocate Mr. Naik would not have any applicability in the facts which are recorded above. 8.7. In view of that, his subsequent application being Civil Application No.1570 of 2009 may not be required to be gone into. At this juncture, it is recorded that the decision of Allahabad High Court relied on by learned Senior Advocate Mr. Naik would not have any applicability in the facts which are recorded above. 8.7. Learned Advocate for the applicant has suffered a lot because of this litigation and has been exhausted also and therefore, if he is not dragged into further litigation, he is ready to give up his claim over the interest of the principal amount of Rs.17.05 crores, which is lying in the interest bearing escrow account under the orders of this Court, which would be sizable amount. He has further clarified that in the event, the applicant being dragged into any further litigation by any of the parties in this regard, this concession would not bind his client. This statement is recorded. 9. In view of the above, Civil Application No.7370 of 2008 filed by the original petitioner No.1 and Civil Application No.6583 of 2008 filed by original petitioner No.3 would not survive. 10. For the reasons recorded above, the following order is passed. 10.1 Special Civil Application No.20962 of 2006 is allowed. Impugned order dated 31.12.2005 passed by the Arbitral Tribunal is quashed and set aside. Rule made absolute with no order as to costs. 10.2 It would be open to the petitioners to proceed further with the proceedings under Section 29 of the State Financial Corporations Act, 1951 in accordance with law. 10.3 Civil Application No.9630 of 2008 is allowed. The transaction of sale of properties in question to this applicant i.e. M/s. Unimark Remedies Limited, pursuant to the so called consensus projected before this Court, as reflected in the order dated 30.07.2007, and consequential advertisement dated 14.09.2007, stands cancelled. The amount of Rs.17,05,00,000/- (Rupees Seventeen Crores and Five Lacs Only) lying with the Industrial Development Bank of India in interest bearing escrow account under the orders of this Court dated 01.11.2007, recorded on Special Civil Application No.20962 of 2006, is directed to be refunded to the applicant -M/s. Unimark Remedies Limited, along with the interest accrued thereon, within a period of two months from today. M/s. Unimark Remedies Limited shall hand over the properties in question back to the petitioners within the said period two months from today. M/s. Unimark Remedies Limited shall hand over the properties in question back to the petitioners within the said period two months from today. Petitioner No.1 i.e. Gujarat Industrial Investment Corporation shall act on behalf of all the petitioners in this regard. M/s. Unimark Remedies Limited is directed to abide by the concession given by it, through learned Senior Advocate Mr. Percy Kavina, with 8.7 Learned advocate for the applicant Mr. Kavina has made a statement on behalf of his client – M/s. Unimark Remedies Limited that, the regard to giving up claim over interest, as recorded in para 8.7 above. In the eventuality of interest not payable to this applicant, the said amount earned, shall be distributed by the petitioners and original Respondent No.1, as per the arrangement that may be worked out by the Gujarat Industrial Investment Corporation. 10.4 In view of Civil Application No.9630 of 2008 having been allowed, Civil Application No.1570 of 2009 filed in Civil Application No.9630 of 2008, by the same applicant, would not survive. In view of that, Civil Applications No.7370 of 2008 filed by original petitioner No.1 and Civil Application No.6583 of 2008 filed by original petitioner No.3 praying for the orders of this Court, to give them direction to execute sale deed in favour of the applicant of Civil Application No.9630 of 2008 would not survive. These three applications stand disposed of accordingly. Order accordingly.